Wayne County Cases
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Page Created 9 December 2003

28 Tenn. 308; 9 Hum. 308

December, 1848, Decided

PRIOR HISTORY:   McClendon said to his slave James, that he might go
and be free, and James, acting as a freeman, sold spirituous liquors
without license. For this he was indicted in the Circuit Court of Wayne
county, and on trial, Hardin, special judge, charged the jury, that upon
these facts he was indictable. He was found guilty by the jury, and
fined by the court. He appealed.

DISPOSITION: Reversed and remanded.

HEADNOTES: A verbal gift of freedom to a slave, by his master, does not
make him a freeman and as such subject him to the penalties of the law,
if he retail spirituous liquors without license. He cannot be indicted
till the State has given its assent to his emancipation according to the
forms of law.

COUNSEL: Tinnon, for the plaintiff in error.
There is error in the charge of the court to the jury. The proof shows
that the defendant is a slave, the property of Benjamin Morrow, who
purchased him August 19, 1843, of McClendon and Franks.
At common law, the owner of a slave might emancipate him at pleasure,
nor was it necessary to manumit the slave by deed or other writing, but
acts of the owner in pais, evincing an intention and wish to bestow
freedom on the slave, by the owner, would be sufficient. Greenlow vs.
Rawlings, 3 Hum. 90; Hartsell vs. George, 3 Hum., 255.
This common law right still exists in Tennessee, subject to the
restrictions and conditions of the statutes upon this subject. The act
of 1777 is in effect repealed by the act of 1801, ch. 27, which provides
that the owner shall prefer his petition to the County Court of the
county where they reside, setting forth an intention to manumit the
slave, as well as the reason, and the County Court is vested with full
power to emancipate the slave, upon the condition prescribed by the
acts; an additional restriction is added by the act of 1831, ch. 102,
sec. 2., C. & N. 277 and 279.
The legislature, by these several acts, has vested the power in the
County Court to give the assent of the State to the emancipation of a
slave, as between the slave and his owner or those claiming under him.
It may be sufficient that the owner has expressed an intention to
manumit his slave, by any paper writing, by deed or will as against the
heirs, or his personal representatives, or the maker of the deed. Hope
vs. Johnson, 2 Yer., 123; vide 557; McCullough vs. Moore, 9 Yer., 305;
Hinkle vs. Hamilton, 3 Hum., 569; Howard et als. vs. Clemons et als., 5
Hum., 368. But the assent of the owner does not make the slave free,
because the consent of the State must be given as required by the
statutes--until this is done the slave has but an imperfect right of
freedom, and to a full and complete emancipation, the assent of the
County Court, or by the Chancellor in the special cases provided for by
the act of 1828, ch. 29, sec. 1; vide 6 Yer., 119-128 and 116; 3 Hum.
569; 7 Hum., 388; Meigs, 574.

JUDGES: GREEN, J., delivered the opinion of the court.


OPINION:  GREEN, J. delivered the opinion of the court.

The plaintiff in error was indicted in the Circuit Court of Lawrence
county for selling spirituous liquors without license.

The fact of selling, as charged in the indictment, was proved. The
defendant then proved by Benjamin Morrow, that the defendant was a
negro, and was a slave of the witness,--having been purchased from
Nathan McClendon and George W. Franks, for the price of two hundred
dollars;--that after said purchase, and about twelve months before the
trial, witness had said to defendant that he might go and be free, and
from that time he had been acting as a freeman; but witness had executed
no writing securing to the defendant his freedom, nor had he made any
application to the County Court for that purpose.

The court charged the jury, in substance, that if the master of the
defendant, had verbally consented that he should be free,--such consent
conferred such qualified right to freedom,  [**4]  as would make him
answerable for his misdemeanors by indictment; that no writing from his
master, conferring freedom, or application to the tribunals of the
State, for emancipation, were required in order to render him liable for
a misdemeanor, by indictment. The jury found the defendant guilty, and
he appealed to this court.

The only question here is, whether upon this proof, the plaintiff in
error is indictable for a misdemeanor, as a freeman. And we think he is
not. It is true, as his Honor told the jury, this negro has an
incomplete right to his freedom, so that his master could not re-assert
his dominion over him, so as to make him a slave; and if the master
refuse to apply to the County Court for his emancipation,--any other
person might petition in his behalf, but until this is done, and he is
emancipated according to the forms of the law, he does not become a free
member of society, so as to be proceeded against as a freeman.

The master, by failing to petition the County Court, and give bond
according to law, remains liable to all the penalties of the law, as
though he had never consented to his freedom. In view of the law, the
negro is not a freeman, until the [**5]  State, through the proper
tribunal, consents to his freedom. Until that is done, the master may be
indicted for permitting him to act as a freeman, and is liable to all
the other consequences that would have existed, if he had not consented
to the defendant's freedom.

The master cannot, by parting with his right to the slave, elude these
responsibilities, and turn the slave loose upon society, without those
guaranties the laws demand in such cases.

For all the acts punishable by law, a person situated as this negro is,
must be proceeded against as a slave, and punishable as such. Reverse
the judgment and remand the case.

Abstracted and submitted by Bill Page

HARBOUR v. RAYBURN and others.
15 Tenn. 432; 7 Yer. 432
March, 1835, Decided

PRIOR HISTORY:  This was an action of detinue, brought by the plaintiff
against the defendants, in the circuit court of Wayne county; the plea
non detinet. The plaintiff claimed under a deed of trust executed to him
by his father, Elijah H. Harbour, for the benefit of Sally Kerlogue, the
daughter of said Elijah. The defendants insisted that, previous to the
execution of the deed of trust to plaintiff, said negroes in the deed
mentioned had been given by said Elijah to the husband of said Sally,
and that the property in said negroes was not in said Elijah at the time
the deed was executed, but was in the husband, Kerlogue, and, as such,
had been sold. The plaintiff insisted that the delivery of the negro to
Kerlogue, before the deed was executed, was by way of loan, declared at
the time, and not as a gift. There were several mistrials and
continuances, as appears by the record. Upon the last trial the
plaintiff introduced Elijah Harbour, the father of Mrs. Kerlogue, Elisha
Harbour, her brother, Mrs. Harbour, her mother, and Willoughby Pew, to
prove the manner in which the son-in-law, Kerlogue, came to be possessed
of the negro in dispute. The defendant introduced various witnesses, and
the record shows a great contrariety of evidence. The jury returned a
verdict for the defendants. The charge of the court was unexcepted to by
either party. The plaintiff moved for a new trial, on the ground that
since the trial he had discovered three material witnesses, by whom he
could prove the lending by Elijah Harbour to said Kerlogue, viz., Bell,
Allen, and Willougby Pew, who had been examined. The affidavit of
neither of the witnesses, except Pew, is produced, and he was examined
at the trial. The judge refused a new trial, from which opinion the
plaintiff appealed in error to this court.

DISPOSITION: Judgment affirmed.

will not be granted by the supreme court, after several mistrials, where
the evidence is very contradictory, on the ground that the verdict is
contrary to the evidence; nor upon the ground of material evidence
discovered after the trial, where the new proof relates to a fact
decisive of the cause, and which must have been within the knowledge of
a witness who was in attendance and interested in the success of the
person applying for a new trial, and where, in view of the
circumstances, the court must either come to the conclusion that there
is no truth in the affidavit, or that there has been unpardonable
negligence on the part of the applicant. [See Young v. Stringer, 5 Hay.
30; Luna v. Edmiston, 5 Sneed, 159.]

COUNSEL: J. W. Combs, for plaintiff in error.
J. S. Yerger, for defendants in error.
1st. The evidence in this case warranted the jury in coming to the
conclusion they did in their verdict. At any rate the evidence does not
preponderate so strongly for the plaintiff as to justify a new trial in
this case, under the rule laid down by this court. 3 Yer. 442.
2d. The affidavits present no ground for granting a new trial. They do
not show any new evidence. The witnesses mentioned are only additional
or cumulative, designed to speak to a point which was principally in
dispute on [**3]  all the trials, and, therefore, forms no ground for a
new trial. 4 Bibb, 563; 3 Marsh. 109, 110; 1 Lit. Rep. 39; 1 Bay, 263; 2
Bay, 267; 2 Cain, 129; 8 John. 84; 15 John. 210.
The fact of there having been several mistrials and continuances shows
conclusively that the plaintiff did not use due diligence in order to
procure the evidence of the witnesses, and for this the new trial must
be refused. 18 John. 489.
Applications for new trials upon these grounds are not favored, and are
looked at with suspicion. 5 Hay. 32.
The witness Pew was examined at the trial; his explanations afford no
ground for a new trial. 2 Cain, 129.
The plaintiff's affidavit must be accompanied by that of the witnesses
themselves. 3 Hay. 164.
The plaintiff, from all the proceedings in the cause, will be seen to
have sworn, if not falsely, under such circumstances as do not entitle
his statement (that he discovered said witnesses since the trial) to any
credit. We see him surrounded by the parties interested, who are his
sister, the father, the mother, and the brother, and by them endeavoring
to prove a loan, the very fact in dispute; and, as the record shows, the
father caused the suit [**4]  to be instituted, and yet he swears that
he was never informed until after the trial itself, and several
mistrials, that there had been any witnesses to the loan. The facts to
fix him with a previous knowledge are too abundant in the record, and
the enquiry too natural for him to make, whether there were witnesses to
the loan attempted to be set up, to induce any candid mind to believe
that he made the discovery after the trial. These facts were known, if
they existed, and the witnesses, too, by whom they could be proved, to
Mrs. Kerlogue, the party taking under the deed, and this was sufficient;
she was bound, and no doubt did, communicate them to the plaintiff. His
affidavit is not entitled to credit. 1 Bay, 263; 15 John. 210; 18 John.

JUDGES: GREEN, J., delivered the opinion of the court.


OPINION: GREEN, J., delivered the opinion of the court.

This is an action of detinue for a negro girl. The plaintiff claims
under a deed of trust executed to him on the 28th day of September,
1826, by which the negro was conveyed, by Elijah Harbour, to the
plaintiffs, to be held in trust for the benefit of his daughter Sally
Kerlogue. The negro had been placed in possession of Kerlogue about a
year before the execution of the deed, and the only question was whether
she had been given to Kerlogue when thus placed in his possession, or
whether she had been loaned only. There were several mistrials, and at
last a verdict for the defendants. The plaintiff moved for a new trial
upon two grounds: First, that the verdict was contrary to the evidence;
second, that he had discovered material evidence after the trial.

Upon the first ground, it is enough to say that the evidence as to
whether Harbour gave the girl to Kerlogue or not is very contradictory.
The juries have found so much difficulty in determining this fact that
there have been several mistrials. It would be going much further than
this court has ever gone, to order a new trial under such

2d. The second ground of newly-discovered evidence is not sufficiently
made out, as set forth in the plaintiff's affidavit, to authorize a new
trial for that cause. The affidavit states that since the trial the
plaintiff has discovered that, when Elijah Harbour (the father) put the
negro girl into the possession of Kerlogue, he called upon two witnesses
to take notice that it was only a loan, and that [**6]  he can prove
this fact by these witnesses; that their residence is distant, and he
cannot get their affidavits. When we take into consideration that there
had been several trials, that Elijah Harbour was in attendance as a
witness, that this fact was decisive of the cause, and that, if
witnesses existed who could prove it, they must have been within the
knowledge of Elijah Harbour, whose feelings must be supposed to be
strongly interested in the success of the plaintiff's action, we must
either come to the conclusion that there is no truth in the affidavit,
or that there has been unpardonable negligence on the part of the
plaintiff. We cannot, therefore, on this affidavit, give a new trial. 18
John. 489.

Judgment affirmed.

Abstracted and submitted by Bill Page

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