Cully v. Jones, 31 N.C. 168, 9 Ired. 168 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 168, 9 Ired. 168

AUGUSTINE CULLY vs. LOVICK JONES & AL.

Where on petition of an executor, in pursuance of the directions of his testatrix, an older was passed in 1805 by the County Court, “that the said executor have leave to emancipate his said slave, he first giving bond and security as required by law,” and the bond was not given till 1816, and ever since that order, until the year 1846, the said slave and her children liad been permitted to enjoy all the rights of free persons of color ; Held, that neither the executor, whose duty it was to give the bond, nor any person claiming under or through him can take advantage of that omission, much less a mere wrong-doer, after the lapse of so many years.

Appeal' from the Superior Court of Law of Craven County, at the Fall Term, 1848, bis Honor Judge Settle ■presiding.

This was an action of trespass vi ej, minis, for false imprisonment. The defendant pleaded that the plaintiff was a slave,upon which issue was joined. By the will of Jane Thompson, to whom Phebe, the mother of the plaintiff, belonged, Reuben Jones, her executor, “was directed to obtain the freedom of Phebe, if practicable, on account of her meritorious services.” In pursuance thereof, Jones filed a petition in the County Court of Carteret. Whereupon it vims ordered by the Court, at November term, 1 S4f5, “that the said Jones have license to liberate the slave Phebe, he first giving bond and security as required by law.” From and after that date Phebe was permitted by said Jones to act as a free person, and she and her children have ever since, up to a short time before this action was brought in 1846, been, treated as free persons. Jones neglected to give the bond as required until until the }rear 1816, when at the August term of said Court, it was ordered “that the said Jones file his bond for the emancipation of the negro woman Phebe, pursuant to the grant of this Court at November term 1806, with James T. Jones as security which was accordingly done.

The plaintiff, Augustine, was a child of Phebe, born in the year 1808, and always acted and was treated as a free person, until just before the commencement of this action, when she was seized by the defendant and claimed as a slave. Judgment for the plaintiff and appeal by the defendants.

J. li. Bryan and J. W. Bryan, for the plaintiff.

No counsel for the defendant.

Pearson J.

It might be urged, with much force, that the bond given in 1816, by order of the Court, had relation back, so as to make effectual the act of emancipation under the order of 1806, and that the plaintiff, although born before the bond was executed, was free by the force and effect of the emancipation of her mother. But, admiting that the sovereign, if such was its pleasure, might insist that the act of emancipation was not valid, because of the omission to give the bond, we are clearly of opinion, that Reuben Jones, the executor, whose duty it was to give the bond, and no one claiming under or through him, can take advantage of that omission ; much less can a mere wrong doer, after the lapse of so many years.— More than forty years have allowed to pass from the act of emancipation and the birth of the plaintiff, before any claim was made to hold her as a slave ; during all which time, she passed as a free person and was so treated and considered by the community, in which she lived. After so long an acquiescence, almost any thing will be presumed, in order to give effect to the act of emancipation.

There was no error in the Court below.

Per Curiam. Judgment affirmed.