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Negro Emanuel Gilbert v. Horatio Ward.
On a petition for freedom under a will, the burden of proof is on the respondent to show that the petitioner was more than forty-five years of age, or that the manumission was in prejudice of creditors.
Petition for freedom, under the will of Peter Dejean.
Mr. Tabbs, for the defendant, objected, at the trial, that there was no evidence that the petitioner was "under the age of forty-five years," when his title to freedom accrued. If he was over forty-five, he is not entitled to his freedom. It is a necessary part of his title, and he must prove it; see
Mr. Wallach,
Mr. Tabbs, in reply. The cases are different. Here the age is part of the plaintiff's title.
The Court (Thruston, J., absent,) was of opinion, that under the
Verdict for the petitioner.