13.

In ques tions of

slavery or

presump

tion of sla

from a

black com

plexion,

but none from that

of a mulat

to.*

SCOTT V. WILLIAMS. June T. 1828. 1 Devereaux's North Caro

lina Rep. 376.

The plaintiff declared in trespass for an assault and battery and false imprisonment; the object of the suit being to ascertain freedom, a whether the plaintiff, a negro held in slavery by the defendant, was not in truth free. On the trial, the plaintiff proved that he was very arises the son of Jemima, who was the daughter of Jane Scott; and the question was, whether Jane Scott was a free woman. Contradictory statements of her color were given; but the plaintiff introduced an indenture whereby Jemima was bound to the father of the defendant, as a free girl of color. The plaintiff was given as a slave by the defendant's father to him, and resided with, and served the defendant from the time of the gift to that of the trial. His honor, the judge below, instructed the jury, that the first question for them was, whether Jane Scott was a free woman. And in ascertaining that fact, her color might enter into their consideration. If she was of a black African complexion, they might presume, from that fact, that she was a slave; if she was of a yellow complexion, no presumption of slavery arose from her color. The defendant appealed.

Per Cur. Hall, J. How far the charge of the judge in this case will admit of verbal criticism, is not my province to inquire; but that it is plain and perspicuous, so as to be readily comprehended by the jury, I think there can be but little doubt. They were told that they might consider whether Jane Scott was of a black complexion. If she was, they might presume from that fact that she was a slave; if she was of a yellow complexion, no presumption of slavery could arise from her color. This part of the charge has been found fault with in argument, because the jury were not instructed that they must presume that Jane Scott was a slave, if she was of a black complexion. The judge, to be sure, in more harsh dictatorial terms might have done so; but I think the differ

* It is a general rule in all the states where slavery exists, that every negro is to be presumed a slave. In addition to the cases abridged, Gibbons v. Morse, 2 Halst Rep. 253; Davis v. Curry, 2 Bibb's Rep. 238. But this rule is qualified in North Carolina, and is confined to the black color, and does not extend to the mixed blood, mulattoes, mestigoes, &c. Gobu v. Gobu, 1 Taylor's Rep. 164.; 2 Hayw. Rep. 170. See 2 Brevard's Dig. 235.; Mississippi Rev. Code 376.; Laws of Maryland, act of 1715.

ence would be verbal rather than substantial. When they were told that no presumption could arise from a yellow complexion, they must have understood the judge to mean, that a presumption of slavery must arise from a black one. I think there is nothing solid in the objection.

14.

MAHONEY V. ASHTON. Oct. T. 1797. 4 Har. & M'Hen. Rep. 63.

Report of the neighborhood

cestor of

that the an the petiheard entitled to

On a trial for freedom the deposition of Henry Davis was read, in which he stated, that he had heard his uncle, David Davis, (who is deceased,) say, that it was the report of the neighborhood that if she, Joice, (meaning the ancestor of the petitioner,) had had justice done her, she ought to have been free; and this he sundry times from his uncle when talking the matter over. counsel for the defendant objected to reading the evidence to the jury.

tioner was

The freedom 18

The court, Chase, Ch. J., overruled the objection, and determined it should be given to the jury.

15.

PEGRAM V. ISABELL. March T. 1808. 2 Hen. & Munf. Rep. 193.; S. C. 1 Hen. & Munf. 387.; SHELTON v. Barbour, 2 Wash. Rep. 64.; LEE, ex'r of DANIEL, V. COOKE, 1 Wash. Rep. 306.; HUDGINS V. WRIGHTS, 1 Hen. & Munf. 134.

proper tes

timony in

favor ofthe petitioner.

spring may dence the

give in evi

record of

ment in an

This was an issue, whether the complainant was a free person or The offa slave. The ground on which the complainant claimed her freedom was, that she was descended from an Indian, who had been imported in this country under such circumstances as would not justify the judg her detention in slavery; and on which ground her mother Nanny had recovered her freedom of one Mayes, her master. dict and judgment of the court in favor of Nanny, the mother of the plaintiff, was given in evidence. Verdict for the complainant, and the defendant appealed to this court.

The ver

The court, Tucker, Roane, and Fleming, J's., held, that the record of the verdict and judgment upon a writ of inquiry, in a suit by the mother of the plaintiff against a third person, in which record the ground of the judgment does not appear, may be given in evidence to prove that the mother had recovered her freedom; not that she was entitled to it "by reason of being descended in the maternal line from an Indian ancestor imported into this state since the year 1705:" but the question on what ground the judgment in that

other suit

in favor of the m.

ther in a freedom.

trial for

suit was rendered, and whether the defendant was born after the mother acquired her right to freedom or not, ought to be left open.

Per Tucker, J. How far a verdict inter alias is admissible, either as conclusive, or only as presumptive evidence in suits respecting freedom, I think may be shown by the following case: a female held in slavery recovers her freedom by judgment in the court of one county or district; she removes to another county or district, without a certificate of her freedom; is taken up as a runaway; advertised and sold as such under the act concerning runaways. She brings another suit for her freedom against her new master. Can it be required of her to do more than to produce the former record of her recovery, with an averment that she is the same person ?I conceive not; and that such record is conclusive against all the world, unless the judgment can be impeached by a person whose title was antecedent to the recovery, on the ground of fraud and collusion between herself and the defendant against whom she had recovered, or whose title was paramount to that of the defendant, and who would not have been barred by the act of limitations, if he had brought an action of detinue for her as his slave. Now, let us suppose, that at the time she was apprehended as a runaway, and sold, she had a child with her, who should also be sold as a slave, would it not be competent for this child to produce the record of the mother's recovery, and aver that she was born after the commencement of the suit, or the day of the writ purchased. And if she proved this, would not the record be conclusive evidence in her favor against all the world, except as before mentioned. And if it would be conclusive evidence in that case, as I hold it would, could she not avail herself of that record as circumstantial evidence, to prove her right to freedom, under a prior right thereto, in her mother, if the child should happen to be born before, instead of after the writ purchased in that suit? I am decidedly of that opinion also. For if the child be let in to prove the fact that her mother was a free woman by hearsay testimony, ought she not to be let in to prove it by a judgment? I am of opinion that the record may be admitted as evidence; that Nanny, one of the plaintiffs in that suit, was a free woman, or entitled to her freedom on the day of the emanation of the writ in that suit; leaving it open to both parties to show upon what ground that judgment was rendered; and also, whether the present plaintiff was born before or after the emanation of the writ in that suit.

(C.) OF THE DAMAGES.

1.

PHILLIS V. GENTIN. March T. 1836. 9 Louisiana Rep. 208.

Phillis was a statu libera in Pennsylvania, to serve until she was Damages for illegal28 years. She was transferred to and from various persons, until ly holding the defendant brought her from a person claiming her as a slave a person in slavery. for life.

The 28 years having expired, and the woman having been taken to Ohio, where slavery is not tolerated, the court declared her free. And as to the damages, they observed, "we think they ought not to be allowed against the defendant, or any of the warrantors, except the vendor, who first violated their rights by selling her as a slave for life; he would be liable to vindictive damages in a suit regularly brought for that purpose. The others, who have had her in their possession, appear to have been possessors in good faith."

2.

PLEASANTS V. PLEASANTS. April T. 1800. 2 Call's Rep. 350.

Held by the court, that negroes and mulattoes, recovering free- Ibid. dom, are not entitled to damages for detention, or to an account of the profits of their labor, while held in slavery.

3.

damages

only will be given where the

defendant

THOMPSON V. WILMOT. Spring T. 1809. 1 Bibb's Rep. 422. Nominal Held by the court, Bibb, Ch. J., that where the defendant has reasonable ground to believe the person in servitude is his slave, only nominal damages would be given for the detention; but where the party held a negro in servitude after the period at which he himself contracted to emancipate him, actual damages were decreed.

had reaground to

sonable

believe the plaintiff to be his slave.

4.

MATILDA V. CRENSHAW. March T. 1833. 4 Yerger's Tenn.

Rep. 299.

This was an action of trespass, brought by the plaintiff, Matilda, A person against the defendant. The following facts were agreed on : That held in slaon the 15th of June, 1825, and long before, the defendant held the very, but plaintiff to labor as his slave; on that day she sued out her writ in recovered

who has

her free

dom, may maintain

an action

of tres

was so held

trespass against the defendant, returnable to the succeeding term; at which term she declared against the defendant for an assault and battery and false imprisonment; to which the defendant pleaded, pass for her that she was his slave. Upon the trial of the issue, the jury found labor and a verdict in favor of the plaintiff, and on the -services, day of April, 1827, whilst she final judgment was rendered in her favor. From the said 15th in slavery, June, 1825, until said - day of April, 1827, the day on which the judgment was rendered, the defendant continued to hold the plaintiff to labor as his slave. One of the questions in this case was, whether the plaintiff could maintain this action to recover damages for detention during the pendency of the original suit, and prior to its determination. It was agreed, that if, upon the facts, the court should be of opinion that the plaintiff should be entitled to recover, judgment should be entered for her for the sum of $20 per annum, for so long a time as the court should be of opinion the defendant was liable.

Per Cur. Catron, Ch. J. Can a person holden in slavery, but who by a suit has established her right to freedom, bring a second suit to recover for profits produced by her labor to him who held her as a slave? Is the first suit, in which nominal damages were recovered, an estoppel to a second recovery? Both the actions are in trespass vi et armis. But the first for freedom tries the title, as an ejectment in cases of land; slave or no slave, is the issue, which has never been holden in this state to involve the question of hire. We borrowed the form of action from our sister states, especially Virginia, where the same rule of practice prevails. Pleasants v. Pleasants, 2 Call's Rep. 277. 293. 299. That the slave cannot sue the master, is a general rule. A suit for freedom tries the fact, whether the plaintiff is a slave. This, established by a verdict and judgment, concludes the defendant to the suit for freedom from controverting the right, as in cases of ejectment, where trespass quare clausum fregit is brought to recover mesne. Bull. N. P., 87. But the judgment in the freedom suit will only relate to its commencement, and estop the defendant to that time; wages and damages for previous time, and because of previous abuse are claimed, the controversy will again result in one of title. This is in analogy to the rent for mesne profits of land, in which case the recovery in ejectment is conclusive evidence of title from and after the commencement of the action; before the right has not been adjudged Bull. N. P. 87.; Adam's 333, 4, 5. The defendant, Crenshaw, being estopped to controvert the freedom of Matilda, or to say he rightfully held her to service from and after

if