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Latest revision as of 15:51, 20 July 2019
Brooks (a pauper) vs Brooks Exr &c } Note by counsel for Jas. M. Garland Exr of Mary M. Garland dec'd For the defendant Garland it is insisted that he is not bound to purchase the freedom of the plaintiff until every Legal resource of the plaintiff to recover his freedom under the will of Thos. Brooks dec'd has been exhausted and has proved unavailing, such is the plain meaning and intent of the Will of Mary M. Garland, and if it were not, there would be neither justice nor propriety in requiring him to apply the assets of his testatrix to purchase the freedom of the plaintiff, when he might be entitled to it by law, and could secure it by a proper assertion of his rights in a court of Justice. 2. It is insisted that the plaintiff is entitled to his freedom now, by law, and without the aid of the defendant Garland because upon a proper legal settlement of the accounts of the Exr. or Thomas Brooks the facts already developed in the suits show that there are or ought to be in the hands of the Exr. assets more than sufficient to pay all the debts of the testator. In Patty v Colin 1 H&Mun. 519 Judge Roane said "that this court (the court of Appeals) only determined against paupers in the last resort, and after every possible source of redemption should be found to have failed" And in Dunn v Amey 1 Leigh 465. Judge Cabell said, "the right to emancipate slaves is subordinate to the obligation to pay debts previously contracted. In this case therefore an account ought to be taken of the assets and of the administration thereof by the Exr. and if it appear that the debts of the testator can be satisfied without resort to the value of the slaves, then they should