Opinion
June Term, 1824.
In an action by a man of color for his freedom, defendant offered in evidence a record to show defendant to be a slave; from which it appeared that the proceedings of an inferior court on a habeas corpus pronouncing him free had been reversed on the ground of want of jurisdiction in the inferior court. To rebut any unfavorable inference from this record, the plaintiff was permitted to give in evidence the declarations of one not a party to the record, but who had possession and claimed title to the plaintiff under the party to the record of reversal at the time the declarations were made.
TRESPASS vi et armis, alleging an assault and false imprisonment, brought by the plaintiff, a man of color, against the defendant, to recover his freedom. The defendant pleaded that plaintiff was a slave, to which there was a replication and issue. Verdict for plaintiff.
Gaston for defendant.
Ruffin contra.
The plaintiff was the child of a woman of color named Jane Scott who, in 1774, was in the possession of one Allen. Allen stated that she was free, and while in his possession she acted as a free woman. In 1784 the plaintiff was indented by Surry County court as a free boy to one Meredith, who frequently said he was free, but at length sold him to one Moses Woodruff. Woodruff afterwards sold him, and stated that he was reported to be a free boy; the purchaser must take (107) him at his own risk. Allen, after making the declarations above stated, sold Jane Scott to one Cresong, who sold her, together with twelve of her children, including the plaintiff, to William Terrill Lewis on 22 October, 1788; and Lewis carried or sent such of the children as he had in his possession (Jack not being one of them) out of the State, assigning as a reason for so doing his fear that if they remained he should lose them. The declarations of Lewis were objected to by defendant, but the court received them. Verdict for plaintiff; new trial refused; judgment, and appeal to this Court.
On the trial below the defendant, to show that Jane Scott was a slave, introduced a copy of a record from Salisbury Superior Court, from which it appeared that Jane Scott and her children had been released and set at liberty as free persons, on a writ of habeas corpus, returned to Surry County court, and the judgment of Surry County court had been reversed by Salisbury Superior Court, on the ground of want of jurisdiction in the county court.
Cresong (who sold to Lewis) was a party to this proceeding, and on the same day on which he sold to Lewis executed a power of attorney to him, by virtue of which Lewis received the negroes from the sheriff, on the process issuing upon the reversal of the judgment, and while the negroes were thus in his possession he made the declarations which were given in evidence.
The judgment and proceedings on this writ of error in the Salisbury Superior Court, reversing the judgment of Surry County (109) court, by which Jane Scott and her children were restored to their liberty, was introduced by the defendant to prove that the plaintiff was a slave, he being a son of Jane Scott.
In rendering judgment on the writ of error, the question whether Jane Scott was a slave or not was not examined. The ground of reversal of the county court of Surry was that the county court had not jurisdiction in such cases, but the defendant relied upon it as evidence of his title.
It appears that Abraham Cresong, who was party to that proceeding, did on the 22 October, 1788, convey by deed to William Terrill Lewis the woman Jane Scott and her children, and on the same day executed a power of attorney to said Lewis, under which he received from the sheriff Jane Scott and the plaintiff in consequence of a process issued for that purpose upon the reversal of the judgment of Surry County court. It was whilst Lewis was possessed of Jane Scott and some of her children, perhaps not the plaintiff, and claimed title to them, that he made the declaration which is the subject of the present question submitted to this Court.
I will not say what I think ought to be the judgment of this Court, provided that record had not been offered in evidence by the defendant, and provided it had appeared that William Terrill Lewis was dead; but I must say that as Lewis claimed Jane Scott and her children under Cresong, who had been party to the record when he made the declaration, that it was proper to give that declaration in evidence to counteract any conclusion which might be drawn by the jury (110) from the record unfavorable to the plaintiff.
It will be seen that the conveyance had been made to Lewis by Cresong at the time when judgment was given on the writ of error, and if not the nominal he was the real party to that proceeding; and, as the defendant wished to derive a benefit from the record, it was proper under those circumstances that the declarations of Lewis should accompany it when offered in evidence. I therefore think the rule for a new trial should be discharged.
And in this opinion the rest of the Court concurred.
PER CURIAM. No error.