Evans v. Kennedy, 2 N.C. 487, 1 Hayw. 487 (1796)

Oct. 1796 · North Carolina Superior Court

2 N.C. 487, 1 Hayw. 487

Evans v. Kennedy.

The action of trespass and false imprisonment is the usual and proper remedy for one who is held in bondage, to try his right of freedom. When the Plaintiff in an acti'-n of this kind is not ready, and obtains a cout-miaoce, the Defendant must give bond and sureties, for the Plamtff’s appearance at the next term, and, in the mean time, to treat nim with humanity: and, by Haywood Judge, also to allow Ph.inuff time to procure evidence-, but Williams, Judge, thought otherwise.

The Plaintiff was a person of colour, who claimed his freedom, and was detained in slavery by the Defendant. The Plaintiff and Defendant had agreed that an action should be instituted without process, and an issue made lip :n try the fact; ami some doubt now arising in regard to (he proper form of action, and of the issue to be made up. iney referred it to the court to direct the proper form of action and issue.

El per cm iam

Wirriams & Haywood, Judges

The action used mi such occasions for eight or ten years past, is the action of trespass and false imprisonment; to which the Defendant pleaded that the Plaintiff is a slave, and cannot maintain an action ; ami to this, the Plaintiff replies, he is not a slave $ and an issue is made up upon this point and tried by a jury. The issue was (hen made up in the present case accordingly, and the evidence not being competent to prove the Plaintiff’s freedom, the court recommended the withdrawing a juror*-which wao agreed to ; and then the Plaintiff's counsel moved, that Defendant might give bond and sureties to permit the Plaintiff to appear at next term, and to treat him with humanity in the mean time.

Etper curiam — This has often been ordered before on similar occasions, and is the usual practice where the trial is delayed till a succeeding term — and it was so ordered accordingly in the present case.

Judge Haywood — I think the bond usually given goeth. further — to allow the Plaintiff time to collect evidence and procure denositions, if necessary. Judge lv 11,1,1 ams-—1 do not recollect the Defendant was ever bound to that: it would produce a loss of the Plaintiff’s service, which in the. etent of a verdict against him, the owner could not be compensated for. So the bond was ordered to be taken as above.

Note. — Vide Gober v. Gober. 2 Hay. 127. Parker - Ib. 345. Negroes are presumed to be slaves till the contrary appears ,- not so of persons of mined blood. Gober v. Gober, 2 Hay. 170. Scott v. Williams, 1 Dev. Rep. 376. This last case also decides Hint, under par-ticuhr citcimisUnces, substantial damages may be given in actions of this nature.