Kennedy v. McArthur

5 Ala. 151

• Court: Supreme Court of Alabama
• Decided: January 15, 1843
• Status: Published

Opinion

GOLDTHWAITE, J.

1. The misjoinder of counts complained of in this case, is said to arise from the fact that the two first counts are in trespass, while the last is in case; but we think they all are entitled to be considered aá charging forcible afe well as unlawful acts. The Count supposed to be in case, alleges that the slave had run away from the service of the plaintiff, and that the defendant harbored and Concealed him, with a knowledge of the fact that he was so run away.

It is said the law implies force Where a servant has been enticed away or debauched, though in fact she may have consented, the law considering such a person as incapable of consenting, and therefore in such a case trespass may be supported, though case, for the consequences of the wrong has, till of late, been the most usual form of declaration. [1 Chitty’s Plead. 143.] It is difficult to conceive how the unlawful concealment of a runaway slave can be effective without some positive act of control ovei it, but nothing merely negative, can give the idea of harboring* This offence must be the result of some positive act, and is in every respect equivalent to enticing the slave in the first instance to quit the service of his owner; it is consequently a trespass in the technical sense of the term.

2. The other objection is, that neither count of the declaration contains any averment that the defendant has been prosecuted criminaliter for the act of harboring. In our opinion this is not an essential averment, as the offence charged was nothing more than a misdemeanor, punishable by fine and imprisonment at the time when committed.

Let the judgment be affirmed.