McNamara v. Kerns, 24 N.C. 66, 2 Ired. 66 (1841)

Dec. 1841 · Supreme Court of North Carolina

24 N.C. 66, 2 Ired. 66

ROBERT McNAMARA vs JOHN KERNS et al.

The Act of Assembly (Rev. Stat. c. 89, s. 24,) authorizing'the Wardens of the Poor to seize any horses, cattle, hogs, or sbeep,-belonging to a slave is not unconstitutional.

The Wardens may exercise this power either in person or by a-precept or authority directed to another.

Such a precept or authority directed to “ any constable of a County,” without specifying his name, will justify the constable who executes it, if his act be afterwards ratified by the Wardens.

It is not necessary that to such an authorrty or precept the Wardens should sign their names as Wardens, it in fact they were so.

By the phrase “ cattle, hogs, &e. belonging to slaves,” the Statute means such cattle, hogs, &c. as the master permits the slave to raise for his own use, and to exercise acts of dominion and ownership over, as if they were his own.

Although defendants in an action of trespass sever in their pleas, ye^ where there is but one judgment in their favor, as “ that they go without day,” they shall recover but one set of costs.

The case of Slockslile v Shufford, Conf. Rep. 556, cited.

This was an action of Trespass tried at Fall Term, 1841, of Rowan Superior Court of Law, before his Honor Judge Bailey, in which judgment was rendered for the defendants- and the plaintiff appealed to the Supreme Court. The action was brought to recover the value of nine hogs, which the plaintiff claimed as his and which were taken by the defendants. The facts were that the plaintiff was a farmer, and had several negroes upon his farm, who were permitted to raise hogs for themselves. The negroes had the hogs in pens, within sight of the dwelling house of the plaintiff, and the plaintiff said that they were the negroes’ hogs, that what was theirs was his, and that he claimed them as his and forbade their being taken by the defendants. It was furthermore in proof that a paper writing purporting to be a warrant, signed by five persons, all of whom were Wardens of Poor, and some of whom were Justices of the Peace of Rowan County, was directed to the “-constables, &c.” of said County, and placed in the hands of the defendant, Daniel Kerns, one of the constables of the said County, to -be executed. The paper writing is as follows, viz:

State-of North Carolina, Rowan County.

To the Constables or Sheriff or other officers of Rowan County.

Whereas by and from information of John Kerns, planter, to the Wardens of the Poor of said County, that the slaves of Robert McNamara, and also the slaves of Chañes L. Tor-rence, do, against the Statute, and to the -abuse of the rights thereby secured to the citizens of Rowan County, raise, keep, and mark hogs as their own right and property : ’ These are therefore to command you, in the name of the State of North Carolina, to take and seize upon the property of hogs owned by said negroes, and bring them to the Wardens of the Poor of said County, to be disposed of according to Act of Assembly. Given under our hands and seals at Salisbury, the 3d day of November, 1840.

Will. Barber, J. P. [l. s.]

Isaac Borns, J. P, [l. s.]

J. C. McConnaughey, J. P.

Jno. Caughenour, )

Daniel H. Cress, :$ Wardens‘

Summon for Witnesses John Willis,

James Rush.

The hogs were taken by the defendants, one of whom was a Warden of the Poor, by virtue of said warrant, without any other notice to the defendant. And they justified the taking under an Act of Assembly, authorizing the Wardens of the Poor to seize hogs that shall belong to any slave, or be in any slave’s mark in this State, and sell the same, the amount made by such sale to be applied by^them one half to the support of the poor of the County and the other half to the in-r former.

The plaintiff insisted in the first place that the hogs be-^onSe<^ to and not to the negroes ; and secondly, if they were the hogs of the negroes, that the Wardens had no right ■to seize the hogs in the way they did, and furthermore that the Act of Assembly was unconstitutional and void. His Honor, after explaining to the Jury the object of the Act of Assembly, and the mischief which it was intended to remedy, instructed them that if the plaintiff permitted his slaves to raise hogs for themselves for their own use and benefit, and not for the use of the master, although'the property in the hogs would be in the master, that was the mischief .contemplated by the makers of the Act of Assembly; and that the Wardens of the Poor would be authorized to seize and sell the same; and that the Act of Assembly was constitutional. A verdict was returned for the defendants, and judgment being rendered thereon for the defendants, and also that each defendant should recover his .several costs from the plaintiff, allowing to each .defendant an attorney’s fee, the plaintiff appealed.

Badger for the plaintiff.

Barringer for the defendants.

Daniel, J.

The defendants justify the trespass under the written authority, signed by five of the Wardens, and set forth in the case. First, it was insisted for the plaintiff that the Act (Rev. Stat. c. 89, s. 24,) was unconstitutional. This ground is abandoned here, and we think corrector, as the plaintiff, on the seizure, might have had his writ of Replevin and tried the validity of the taking, before a Court, and Jury, according to the course of the common law; for replevin lies to recover the possession of goods and chattels unlawfully or wrongfully taken. Com. Dig. Replevin. Bul. N. P. 52.—Shannon v Shannon, 1 Sch. &. Lef. 324. Leigh’s N. P. 1323. Secondly, the plaintiff contends that the hogs were his property, ánd not the property of the slaves. It is true that the title to the hogs was in the master until the seizure and sale for the forfeiture, and then the title was changed by force of the Statute. The forfeiture arose in consequence of the plaintiff permitting his slaves to raise the hogs or mark them in their mark, and exercise acts of ownership and dominion over them as if they were their own ; that is what the Statute means by the words “ that shall belong to any slave.” Thirdly, it is said that the written authority, under which the defendants justify, is not signed by a majority of the Wardens, in their official characters as Wardens. The answer is, that the five persons, whose names are signed to the writing, were Wardens at the time, and they had power to act in the business as Wardens, and they had no authority to intermeddle as Justices of the Peace. The return is directed by the writing to be made to the Wardens, and not to any Justice or Justices of the Peace. The circumstance of the letters J. P. being added to the names of some of them does not affect the validity of the authority, given in that mode in which by law they had a right to exercise it. It is a maxim of law, that that which is right and useful shall not be destroyed or vacated by that which is useless. Fourthly, it is admitted that the Wardens, or a majority of them, might have taken the hogs, as it appears that there was a regular informer; but it is denied that they had any judicial powers to issue process to the ministerial officers of the County, or to any other persons, to have the hogs seized. We however understand, that it is a rule of law, that an authority is to be so construed as to include all necessary and usual means of executing it with effect, 2 H. Black. 618. We therefore think that the defendants could justify under the said order or li-cence of the Wardens, in the same manner that a person can justify a trespass on land by the order or licence of the owner. The case of Rex v Croke, Cowp. Rep, 26, does not militate against this opinion, for that case only decides that the proceedings of a court of limited jurisdiction must show upon their face, that the court acted within the sphere of its powers. Fifthly, it is contended that the authority is defective and void, inasmuch as it is not given to the defendants, or either of them, by his and their Christian and surnames. The warrant is directed “ to the constables or Sheriff, or other officers of Rowan County.” The Sheriff had nothing to do with it. Could Kerns, one of a general class of persons, (viz. “ constables,") be permitted to aver that he was a constable, and execute this power alone ? We think we are not driven to the necessity of deciding this point of law, as all the Wardens who signed the paper, as well as Kerns the constable i and those who were with him at the seizure, are sued as defendants. And the seizure was subsequently assented to and ratified by the said Wardens, which we think cured any irregularity, if there was any, in the mode of its execution. Sixthly, the defendants had a right to sever in, their pleas. 1 Chit. Plead. 596. But if all of the several issues had been found for the'plaintiff, the Jury must have assessed the damages entire against all the defendants, and there would have been but one judgment and one set of costs for the plaintiff. Will the verdicts in iavor of all the defendants, upon all of the several issues, subject the plaintiff to more than one set of costs 1 We think not, because there are not several judgments upon each issue, but one judgment reciting the several verdicts, and concluding that all the defendants go without day. The case therefore does not come within the rule laid down in the case of Stockstile v Shufford, Conf. Rep. 556.

The judgment is affirmed except so much of it as gives a separate set of costs to each of the defendants, and that portion of it is reversed with costs to the plaintiff in this Court.

Per CpniAsr.

Judgment accordingly.