Potts ex rel. Potts v. Carls — 3 Del. 86

Majority

p. 86

Negro EMORY POTTS, by his next friend THOS. POTTS vs. JOHN CARLS.

Headnote

An absconded slave having* filed his petition for freedom, through a next friend, proceedings were stayed until the next friend should enter into recognizance for his appearance to abide the judgment of the court.

Petition for freedom.

The defendant, Carls, made affidavit that the petitioner, Emory Potts, had absconded, and that the defendant, after diligent search, had been unable to find him; and on this affidavit moved the court for an order on the next friend, Thomas Potts, to enter into recognizance for the forthcoming of the petitioner, in case the petition should be decided against him.

The motion was opposed, on the ground that the slave had a right to petition for his freedom whether in the actual custody of the master or not; and that there could be no security for costs, because the master is in all cases liable for the costs.

said the terms of the law were very strong to show that the petitioner must be actually held and detained by his master to entitle him to the remedy under the act of assembly; but, in practice, the remedy had been extended to cases where the petitioner was out of the possession of the master. In such cases the court has ordered security to be given for the wages of the slave pending his petition; and has sometimes ordered the master, when the slave was in his possession, and it was apprehended that he might be sent off before judgment, to enter into recognizance for the forthcoming of the slave.

.It is obviously unjust to permit this petitioner to play fast and loose at his master’s expense. The master is in any event bound to pay the costs of this prooceeding; the slave has absconded; it is unreasonable that he should put his master to the expense of defending this

p. 87

petition for his freedom, indeed to all the costs of the proceeding, and take the benefit of the decision if it should be for him; whilst he refuses to put himself in the power of the master, or of the law; or to abide by the decision of the court, if it should be against him.

Laws, for the motion.

Frame, contra.

Order made that the nest friend enter into recognizance in $300, for the appearance of the petitioner; and that proceedings be stayed until such recognizance be given.