delivered the opinion of this court.
The counsel for the appellant, aware of the unfavorable impression which has been generally entertained by the profession in Maryland, in regard to the right of recovery in such a case as this, have combatted its propriety with a zeal and ability which nothing but truth could resist.
It is a mistake, however, to suppose this professional opinion the result only of some vague conception, formed without foundation.
The early case of Queen and Ashton, 3 H. & McH., 439, has doubtless been the origin of such an opinion.
That case was argued by distinguished counsel in the late general court, where the most intelligent members of the bar from all the counties were assembled, and the principles on which it was argued and adjudged, were, in all probability, well known at that time in every part of the Slate. Iiow else is it to be accounted for, that such actions have been unknown from that period, although it is scarcely possible to doubt that occasions for it have frequently occurred?
We have inspected ihe record in that, case, because there is *327some obscurity in the report of it, and we have no doubt the general court decided that the action would not lie. The claimant had been turned out. of court by the judgment, below, from which he appealed. That judgment was the result of a refusal to declare the law as he claimed it. If the general court supposed the law of the case was with the plaintiff, it was an obvious duty to send the case back on a procedendo, with directions to the court below to instruct the jury accordingly, which instruction, according to the facts of the case, must have entitled the plaintiff to a verdict and judgment; but, on the contrary, they affirmed the judgment, thereby deciding that the plaintiff was not entitled to the verdict and judgment, and was properly turned out of court. The obscurity of the case arises from the expression of the reporters, “affirmed on both exceptions,” an error into which they appear to have been led by looking to the docket, an entry on which seems to have been made erroneously at first, then altered, but not correctly altered at last.
The second exception could not in fact have been before the general court. The act of October, 1778, ch. 21, sec. 14, authorises persons affected by an equal division of the court, to have a bill of exceptions; and in 4 H. & J., 177, Smith and Gilmor, this court held, either or both parties might except, under that act, but there is nothing in that act. to justify a party to complain in the appellate court, of an instruction to which he did not except at the trial, nor to prosecute an appeal on an exception taken by the adverse party, who declines pursuing the appeal himself. In the case of Queen and Ashton, the plaintiff did not except to the instruction stated to have been given in the second exception, and the defendant, by whom the exception was taken, did not prosecute an appeal, so that the general court was not called to act at all on that exception.
We cannot agree with the appellant’s counsel, that the case of Queen and Ashton, introduces any new principle. The relations that exist between master and slave, must, necessarily modify those general rules which govern the rights of persons. 'This was fully declared and acted upon in the case of Alfred *328vs. Marquis of Fitzjames, 3 Esp., 3, decided by Lord Kenyon fifty years ago. The plaintiff in that action, which was assumpsit for work and labor, was a slave, in Martinique, to the defendant’s wife before her intermarriage, and came with her to England, where he continued to reside with her, and after her marriage, with the marquis; jmt the court held, and the reporter says, with emphasis: “Lord Kenyon was prepared to give a decided opinion, the plaintiff was not entitled to recover, unless it could be proved that the marquis had expressly promised to pay wages, and then only from that time. And the ground of this decision was, that there was no original contract for wages, which must mean a contract, express or to be implied.” Lord Kenyon cannot be supposed to deny, that in a proper state of facts, a jury not only may, but is bound to infer a contract, a position universally admitted, and to prove which, it is only necessary to refer to the numerous cases cited at bar. But it is an equally sound principle, that no such assumpsit or contract to pay can be implied, where the facts show that the parties did not intend or design the one to pay or the other to receive. Where, from the fact that both parties understood, no compensation was to be made, or, from any other circumstances, it would be utterly inconsistent with the transaction, the law will not imply a contract to pay. 2 G. & J., 341, Stoclcett and Watkins, and cases there cited.
In 5th Wend., 531, the action for work and labor was brought, as here, by a negro man against the person who had held him as a slave, he being in fact free, yet, on the authority of the case of Alfred and Marquis Fitzjames, it was held, the understanding of the parties during the service being that no wages were to be paid, the plaintiff could not recover. We have found no case in which, under such circumstances, an action of assumpsit has been sustained, in England or in any State in this Union, except the one in Pennsylvania and those cited from Illinois.
In 3 Yeates, 250, Negro Peter vs. Steel, decided in Pennsylvania, in 1801, by Yeates and Brackenridge, justices of the Supreme Court, such, an action was sustained. To that *329authority we cannot defer, for several reasons, and, amongst them, because, first, the then chief justice and his immediate predecessor, had each expressed a different opinion in that very case; next, because the later case, in 3 Pennsylvania Reports, 212, Urie and Johnson, seems virtually to overrule it, and again, because the case of 3 Esp., directly in point, was not before the court or cited in the argument, bui, especially, because it was ruled on the ground, that it was a proper form of action in which to try the question of freedom.
In Kinney and Cook, 3 Scammon, 232, such an action was sustained in Illinois. The principal question seems to have been, whether the negro was free because he was a negro? Not a particle of evidence was given to show the plaintiff to be free, nor was a single authority referred to in the cause by the counsel or the court, as far as (he report shows; and the learned justice who gave the opinion very civilly decides, that the rule which, in the slave states, imposes the onusprobandi on the party asserting his freedom, is founded in “injustice,” is “subversive of natural right, its arbitrary character is repugnant to moral sense,” &c., &c. Notwithstanding these most potent recitals, we must decline allowing Justice Smith’s repealing act to operate extra-territorially, as far as relates to Maryland, where, we will, non obstante, abide by the old fashioned practice of requiring a party asserting a fact to prove it, when an issue is taken upon it by the adverse party. The other case referred to in Illinois, and found in 2 Gillman, 1, the case of Jarrot vs. Jarrot, was argued and decided, not only with very much better temper, but with very much greater ability and legal learning. The great question in the cause was, whether the plaintiff was free or a slave? There does not appear to have been any question made as to the form of action for which the authority of the previous case was relied on by counsel, and it was doubtless on the question of freedom vel non that the court divided.
But besides that, this question was not seriously discussed, it must be remembered, that the reason on which these cases rest is conclusive against their authority in Maryland. That *330reason is, that it is a proper form in which to try the title of the negro to freedom. Now, in our State, the mode in which this question is to be tried, is not only prescribed by statute, but there are peculiarities in regard to it, which cannot be gratified but by an observance of the mode indicated. It must be by petition in a court particularly designated, and the right of peremptory challenge is expressly secured to both master and slave. To deny to either party the privilege secured by the statute, if the trial be by petition, would be an admitted violation of the plain meaning and express words of the law. Is it less so to permit one of the parties to deprive the other of this privilege, by using a different form of action?
So in some of the slave States, where no special provision exists as to the mode of trying the question of freedom, they use the action of trespass vi et armis for that purpose, as is proved by the cases cited by counsel, and in some of which it is said, the freedom should be thus established before they can claim compensation, although that compensation was said to be recoverable afterwards in the same form of action.
The counsel attempted a distinction between cases in which there was ground for reasonable doubt, and where no doubt could exist. In the case of Alfred and Marquis Fitzjames, no such distinction was relied on, and certainly there could be as little ground to doubt in that case, where no one could be a slave, as in this case, (where the manumission does speak of some conditions,) or indeed in any case which can occur in our State. But the impossibility of practically following out any such rule must be obvious.
Who is to judge whether the case be'clear or one of doubt? When is it to be ascertained, and how? Is the form of action only to be ascertained by the result of the trial? The parties will certainly differ. It is of frequent occurrence that juries are unable to agree upon questions of fact, and judges are not always unanimous in regard to questions of law. The only persons at all likely to be held and claimed as slaves in this State, are such as have been manumitted by last will, and tes*331tament, or a deed recorded, and whose freedom is to commence at some date subsequent to the execution of the will or deed.
But as all such instruments are exposed on the public records, to which all persons have ready access, and of which any one is able to procure copies, there is very small probability in this age of benevolence and charity, that there will be wanting persons to remind them of their rights, should they be otherwise uninformed. Experience has fully demonstrated, that they have never failed in the recovery of their legal rights, for the want of generous professional aid. We do not therefore admit the necessity, if, on other accounts, we could perceive the propriety or claim the authority of changing the recognised principles of common law applicable to this question, especially as our statute law enforces the necessity of adhering to it.
This decision on the principal question would conclude the whole case, and, especially, so much as relates to the fact of imprisonment, alleged to be implied by holding and claiming the appellant as a slave.
The remaining question in the cause, though practically unimportant in this case, after the view we have taken, is, however, presented by the record, and has been most elaborately argued by all the counsel, and is one of much interest to the profession.
A most careful and deliberate consideration has therefore been given to the numerous authorities referred to, and without here entering into a detail of reasoning, or a minute examination of their respective claims to deference, it is sufficient to announce the conclusion to which we have been conducted, with the same unanimity with which we have acted on the first point. That conclusion is, that in Maryland, where we have a separate and distinct chancery jurisdiction, the question of fraud, as a means of preventing the effect and operation of the statute of limitation, must be referred to that jurisdiction, and is not matter to be relied on, by way of replication to the plea of the statute, in a court of law.
JUDGMENT AFFIRMED.