Detinue for sundry Negroes. — To this action the defendant pleaded non detinet, and the statute of limitations. Replication and issue on the first plea, with a replication of infancy and coverture as to the second, rejoinder and issue.
The case, as it appeared in evidence, was, that John Rains owed Middleton M'Donald three negroes, for which he had his obligation; this demand he put into the hands of a certain William Ingram for collection; some time previous to the month of May, 1785, the State of Franklin commenced its operation; this was an illegitimate or assumed government by the people of that part of North Carolina which lay west of the Apalachian Mountain, where all the transactions which were the subject of this action and defence took place. Rains, thus indebted, was about to abscond. Ingram pursued, in order to obtain satisfaction for this demand of M'Donald's, for whom he acted as agent; he came up with Rains, and by cocking his gun and threatening to shoot, forced him to stop without any kind of process. Immediately after which Ingram got into his possession four negroes, the property of Rains, — Clarinda, Sukey, Tinah, and Will; but by what means was not precisely ascertained; the proof, however, formed a presumption, irresistibly strong, that Ingram procured the negroes by menaces and duress.
While the negroes were in this manner in the possession of Ingram, he obtained from Rains a bill of sale for them in his own name, bearing date the 25th of May, 1785, with a proviso annexed to it, that if Rains should pay him three negroes by the 25th of October following, then the bill of sale was to be void.
Samuel Patton, a witness, who saw Rains execute this instrument, says that he understood at that time the reason why Ingram demanded four instead of three negroes from Rains, was, that the fourth was a charge for trouble Ingram had been at in collecting M'Donald's debt.
A short time after this, Rains went to M'Donald's and discharged the debt for three negroes by a payment in horses, for which a bill of sale was given, dated 13th of May, 1785, and some money. Subsequent to this, and after Ingram and Rains had been disputing some time, M'Donald was sent for
by them. M'Donald stated that he had received payment of Rains, upon which he and Ingram settled in his presence, when it was agreed that Ingram should give up all the negroes to Rains.
These negroes, except Sukey, were afterwards attached by process, returnable to the County Court of Spencer, under the government of Franklin, as the property of Rains, at the instance of Finney. Mrs. Ingram, the widow of William Ingram now dead, filed an interpleader in this suit. Finney, however, obtained a verdict and judgment. Execution issued, the negroes were sold as Rain's property, and the defendant, Cocke, became the purchaser of several of them.
Thomas Hutchings, who was clerk of Spencer Court, in his deposition says, that after the dissolution of the Franklin government, he delivered the papers relative to the proceedings of the court into the hands of the sheriff, amongst which, he well recollects, were the proceedings in the cause of Finney v. Rains, with Ingram's interpleader.
Col. Thomas Henderson, a witness for defendant, says, that being a justice of the peace and member of the court for the county of Spencer, he wrote to Col. Thomas Hutchings, the late clerk, for the papers belonging to his office; he did not receive any from him, but obtained one from Mr. King, the sheriff, which was all he ever got, and which was produced in court. This paper appeared to be the minutes of the proceedings of the court of Spencer, in the handwriting of Col. Thomas Hutchings. Among other things was contained an account of the proceedings in the suit Finney v. Rains, with the interpleader.
This paper, as I am at present impressed, cannot be read as a record of a court of justice; but as Col. Henderson, in whose possession it has been kept, was a member of the court, of Spencer, was personally acquainted with the whole transaction, and knows it to be in the handwriting of Col. Hutchings, the clerk of that court, I see no reason why the witness may not make use of it to refresh his memory, as in other cases, agreeable to the law of evidence.
CAMPBELL, J. — It seems to me that the paper ought to be received as a record, otherwise great injustice might ensue.
[WHITE, J., absent, having been employed as counsel.] Col. Henderson then proceeded to deliver his testimony, recurring occasionally to the minutes, and stated in substance as above.
RHEA and WILLIAMS, for plaintiff. — We claim these negroes, with their increase, under the bill of sale to William Ingram, the ancestor of the plaintiff's, made by Rains on the 25th of May, 1785, which is sufficient to show our right of property; possession in the defendant has been shown, a demand has been proved, and this is sufficient. Property in the plaintiff, possession in the defendant
with a demand, is all that is necessary to be shown to entitle us to a recovery in this case; for it surely will not seriously be contended that the sale of these negroes by the sheriff, under the pretended authority of the Franklin government, can give any legal right to the defendant. It was an insurrection, as much so as the opposition to the excise, which took place a few years ago in the back parts of Pennsylvania. None of the acts of such a government can be good, or founded on such principles, as to obtain a moment's consideration in a court of competent authority. The proceedings of the court of Spencer cannot be records; if they are, a writ of error would lie in this court, but no lawyer entertains an idea of such a thing. If the proceedings of this court were erroneous, they cannot be reversed, not being the proceedings of a court at all, in the contemplation of our laws. What then must be the condition of parties litigant in such an anomalous court? If they erred, yet the parties were constrained to consider their acts as sacred, there being no method by which they can be re-examined and corrected when wrong.
CAMPBELL and WHITESIDE, for the defendant. — The Franklin government is not to every purpose to be considered as an usurped one. It is not similar to the insurrection in the western part of Pennsylvania; that was an absolute opposition to a law of the United States essential to its existence; one for raising a revenue.
The government of Franklin arose, from necessity, from the situation in which the people of North Carolina, west of the mountain were placed. Detached from anterior settlements in the eastern part of the State, exposed to the incursions and merciless barbarities of the neighboring savages, the State of North Carolina could not, or did not, afford the people in this country that prompt assistance which was indispensable to their happiness, nay, almost to their existence.
Under these circumstances they formed a government of their own, distinct from that of North Carolina; but they did it in a peaceable manner, it was not attended with violence, civil war, or bloodshed. In this state of things North Carolina, being as we
suppose sensible of the situation of the people, never attempted to maintain her rights of sovereignty, or to cause the execution of her civil laws, through the medium of courts or otherwise.
The histories of most nations furnish precedents of government defacto, as well as de jure, particularly the English, whose laws we have adopted.
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Detinue for sundry Negroes. — To this action the defendant pleaded non detinet, and the statute of limitations. Replication and issue on the first plea, with a replication of infancy and coverture as to the second, rejoinder and issue.
The case, as it appeared in evidence, was, that John Rains owed Middleton M'Donald three negroes, for which he had his obligation; this demand he put into the hands of a certain William Ingram for collection; some time previous to the month of May, 1785, the State of Franklin commenced its operation; this was an illegitimate or assumed government by the people of that part of North Carolina which lay west of the Apalachian Mountain, where all the transactions which were the subject of this action and defence took place. Rains, thus indebted, was about to abscond. Ingram pursued, in order to obtain satisfaction for this demand of M'Donald's, for whom he acted as agent; he came up with Rains, and by cocking his gun and threatening to shoot, forced him to stop without any kind of process. Immediately after which Ingram got into his possession four negroes, the property of Rains, — Clarinda, Sukey, Tinah, and Will; but by what means was not precisely ascertained; the proof, however, formed a presumption, irresistibly strong, that Ingram procured the negroes by menaces and duress.
While the negroes were in this manner in the possession of Ingram, he obtained from Rains a bill of sale for them in his own name, bearing date the 25th of May, 1785, with a proviso annexed to it, that if Rains should pay him three negroes by the 25th of October following, then the bill of sale was to be void.
Samuel Patton, a witness, who saw Rains execute this instrument, says that he understood at that time the reason why Ingram demanded four instead of three negroes from Rains, was, that the fourth was a charge for trouble Ingram had been at in collecting M'Donald's debt.
A short time after this, Rains went to M'Donald's and discharged the debt for three negroes by a payment in horses, for which a bill of sale was given, dated 13th of May, 1785, and some money. Subsequent to this, and after Ingram and Rains had been disputing some time, M'Donald was sent for
by them. M'Donald stated that he had received payment of Rains, upon which he and Ingram settled in his presence, when it was agreed that Ingram should give up all the negroes to Rains.
These negroes, except Sukey, were afterwards attached by process, returnable to the County Court of Spencer, under the government of Franklin, as the property of Rains, at the instance of Finney. Mrs. Ingram, the widow of William Ingram now dead, filed an interpleader in this suit. Finney, however, obtained a verdict and judgment. Execution issued, the negroes were sold as Rain's property, and the defendant, Cocke, became the purchaser of several of them.
Thomas Hutchings, who was clerk of Spencer Court, in his deposition says, that after the dissolution of the Franklin government, he delivered the papers relative to the proceedings of the court into the hands of the sheriff, amongst which, he well recollects, were the proceedings in the cause of Finney v. Rains, with Ingram's interpleader.
Col. Thomas Henderson, a witness for defendant, says, that being a justice of the peace and member of the court for the county of Spencer, he wrote to Col. Thomas Hutchings, the late clerk, for the papers belonging to his office; he did not receive any from him, but obtained one from Mr. King, the sheriff, which was all he ever got, and which was produced in court. This paper appeared to be the minutes of the proceedings of the court of Spencer, in the handwriting of Col. Thomas Hutchings. Among other things was contained an account of the proceedings in the suit Finney v. Rains, with the interpleader.
This paper, as I am at present impressed, cannot be read as a record of a court of justice; but as Col. Henderson, in whose possession it has been kept, was a member of the court, of Spencer, was personally acquainted with the whole transaction, and knows it to be in the handwriting of Col. Hutchings, the clerk of that court, I see no reason why the witness may not make use of it to refresh his memory, as in other cases, agreeable to the law of evidence.
CAMPBELL, J. — It seems to me that the paper ought to be received as a record, otherwise great injustice might ensue.
[WHITE, J., absent, having been employed as counsel.] Col. Henderson then proceeded to deliver his testimony, recurring occasionally to the minutes, and stated in substance as above.
RHEA and WILLIAMS, for plaintiff. — We claim these negroes, with their increase, under the bill of sale to William Ingram, the ancestor of the plaintiff's, made by Rains on the 25th of May, 1785, which is sufficient to show our right of property; possession in the defendant has been shown, a demand has been proved, and this is sufficient. Property in the plaintiff, possession in the defendant
with a demand, is all that is necessary to be shown to entitle us to a recovery in this case; for it surely will not seriously be contended that the sale of these negroes by the sheriff, under the pretended authority of the Franklin government, can give any legal right to the defendant. It was an insurrection, as much so as the opposition to the excise, which took place a few years ago in the back parts of Pennsylvania. None of the acts of such a government can be good, or founded on such principles, as to obtain a moment's consideration in a court of competent authority. The proceedings of the court of Spencer cannot be records; if they are, a writ of error would lie in this court, but no lawyer entertains an idea of such a thing. If the proceedings of this court were erroneous, they cannot be reversed, not being the proceedings of a court at all, in the contemplation of our laws. What then must be the condition of parties litigant in such an anomalous court? If they erred, yet the parties were constrained to consider their acts as sacred, there being no method by which they can be re-examined and corrected when wrong.
CAMPBELL and WHITESIDE, for the defendant. — The Franklin government is not to every purpose to be considered as an usurped one. It is not similar to the insurrection in the western part of Pennsylvania; that was an absolute opposition to a law of the United States essential to its existence; one for raising a revenue.
The government of Franklin arose, from necessity, from the situation in which the people of North Carolina, west of the mountain were placed. Detached from anterior settlements in the eastern part of the State, exposed to the incursions and merciless barbarities of the neighboring savages, the State of North Carolina could not, or did not, afford the people in this country that prompt assistance which was indispensable to their happiness, nay, almost to their existence.
Under these circumstances they formed a government of their own, distinct from that of North Carolina; but they did it in a peaceable manner, it was not attended with violence, civil war, or bloodshed. In this state of things North Carolina, being as we
suppose sensible of the situation of the people, never attempted to maintain her rights of sovereignty, or to cause the execution of her civil laws, through the medium of courts or otherwise.
The histories of most nations furnish precedents of government defacto, as well as de jure, particularly the English, whose laws we have adopted.
Surely it will not be contended that all the acts of the English courts and ministers of justice, during the protectorship of Cromwell, were void and tortious.
The books prove the contrary. The Act of Oblivion, passed by North Carolina, in the year 1786, c. 23, does not reprobate the proceedings of the Franklin courts, either directly or by inference; criminal causes excepted, which the act particularly embraces.
The acts of the government, or its courts whilst it existed, cannot be considered as void; the defendant has fairly purchased the negroes at a sheriff's sale, under the authority of that government, and ought to hold them.
Independent of the consideration of the legitimacy of the judicial acts of the court of Spencer, the plaintiff cannot recover these negroes; for it appears clearly in evidence, that William Ingram, the ancestor, obtained them by gross fraud. How came Ingram in possession of the negroes? He had them, and no person knows how; except that we are told that he and Rains, before the bill of sale was given, were frequently quarrelling. That he obtained the possession by menaces and duress, we have no doubt. The bill of sale certainly was not procured in a much fairer manner, else why take it for four negroes; the demand was but for three.
The evidence shows that the acquisition of these negroes by Ingram was attended with such circumstances of fraud, that the plaintiffs, his representatives, cannot recover upon this ground.
There is, however, another important part of the testimony which ought not to be omitted, and of itself would decide the question in favor of the defendant, if there was nothing else.
It was rot a debt due to Ingram, but to M'Donald, for whom Ingram acted as agent. Now M'Donald swears that Rains discharged the debt to him, which would avoid the bill of sale to Ingram, under which he now claims.