FREE FRANK AND LUCY v. DENHAM'S ADMINISTRATOR.
COURT OF APPEALS OF KENTUCKY
15 Ky. 330; 1824 Ky. LEXIS 102; 5 Litt. 330
PRIOR HISTORY: [**1] From the Pulaski Circuit Court, the Hon. John L. Bridges sole Judge.
DISPOSITION: Judgment reversed with costs, cause remanded.
COUNSEL: Crittenden, for plaintiffs; no attorney for defendant.
JUDGES: JUDGE OSWLEY.
OPINION BY: OSWLEY
OPINION
[*330] OPINION OF THE COURT, BY JUDGE OWSLEY.
THIS was an action of debt, brought by the administrator of William Denham, deceased, upon a sealed writing executed by free Frank and Lucy, stipulating for the payment of two hundred and twelve dollars to the intestate.
Lucy appeared and filed the following plea: "Free Lucy, in her proper person, comes and prays judgment of the capias ad respondendum of the said administrator; because, she says, that at the time of the supposed execution of the note in the writing declared on by the plaintiff, she was, and is still married to Frank, a person of color, and this she is ready to verify; wherefore she prays judgment of the said capias ad respondendum, and that the same may be quashed," &c.
To this plea the administrator replied, that he ought not to be barred from maintaining his said action, nor should the same be abated or quashed, by reason of any thing contained in said plea; because, he says, the said defendants [**2] are free persons of color, and therefore not authorized to unite in the bonds of wedlock; and this he is ready to verify, &c.
Free Lucy demurred to this replication; but her demurrer was overruled.
The assignment of errors questions the decision of the court upon the demurrer.
The replication is predicated upon the idea that free persons of color are incompetent to contract marriage; and were that position admitted to be correct, the conclusion drawn by the court, in overruling the demurrer, would follow as a necessary consequence. But the principle is not perceived, upon which the position assumed in the declaration can be sustained. Whilst in a state of slavery, we admit that persons of color are incapable of contracting marriage, for any legal purpose. So long as they remain in that condition, they possess no freedom of will or of action, and of course, by no contract, can they either acquire any legal rights, [*331] or impose upon themselves any additional incapacity; but immediately upon being emancipated, the restraint which was imposed upon their will and actions, by their bondage, is removed, and with that, their competency to contract matrimony is restored. Whether [**3] or not the act of this country concerning marriages, applies to persons of this description, is a question which it is not necessary now to consider; for, to marry, is a right common to all the human species, and whenever in fact contracted by persons able and willing to contract, the feme becomes subject to the disabilities of coverture, though in form the requisitions of the act of this country may not have been pursued.
The court, therefore, erred in overruling the demurrer of Lucy, and the judgment must, consequently, be reversed with costs, the cause remanded to the court below, and further proceedings there had, not inconsistent with the opinion of this court.
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