majority">Spencer, J.,

delivered the opinion of the court. The defendant has moved for a new trial, and the questions arising on the case are,

1st. Whether the sheriff performed his duty on the writ of h omine replegiando ?

*2682d. Whether the assignment of the bond, and its acceptance pluintiff’s attorney, was a bar to this action ?

3d. Whether Primus became free in consequence of the safe to the plaintiff?

4th. Are the damages excessive ?

The first point was discusssed and decided on a demurrer to the plaintiff’s declaration ; and the declaration was adjudged a good one. We considered the case of Covenhoven v. Seaman and others, (1 Johns. Cas. 23.) as having established the practice and proceedings of this court upon this writ, in conformity with the course of proceedings in England, as laid down in FitzherberPs Nat. Brevium, 68, and 155. The party suing out the writ, and claiming to be free, should enter into a recognisance in court, with sufficient sureties to the party claiming him to be a slave, to prove his liberty, personally to appear in court, and to prosecute his suit with effect. In the case of Covenhoven v. Seaman and others, the suit was on such a recognizance, and the person alleged to be a slave had not proved his liberty, or prosecuted his suit with effect, but had been nonsuited, and the court held that the suit was maintainable. In More v. Watts, (12 Mod. 428.) Lord Holt said, “If a homine replegiando be brought, and the defendant claims the party to be his villein, that Will be a good return for the sheriff to make, and there shall be no replevin until the plaintiff give security, and that in court, and then there shall go a writ, reciting the security entered info in court, to the sheriff' to deliver the plaintiff; and when the plaintiff comes in upon that security so entered into in court, he is not at large, but to find new security that he shall appear, from day to day, pending the cause; and if judgment go against him, he shall render himself to the defendant, and he takes him out of court.” - 0

The judge, at the trial, ruled correctly, that the sheriff ought to have brought Primus into court, on the homine replegiando, and returned that he was claimed as a slave. Instead of doing so, it was admitted that he replevied him and set him at liberty, as mentioned in the declaration of the plaintiffs and the declaration charges that the defendant, as .•sheriff of the city and county of JVem-York, under the writ of pluries homine replegiando, voluntarily permitted Primus, being in his custody upon the said writ, and claimed by the plaintiff" as *269his slave, and taken from his possession, to escape from his custody, and go at large, without sureties, &c.

It appeared, however, that the sheriff took a bond to himself with sureties, for the prosecution of the writ with effect, and that Primus should prove his liberty, and for the return of Primus, if return should be adjudged. This bond we consider of no avail, as the sheriff had no power or right to take it; and, consequently, it affords no proof that an escape of Primus did not take place; nor is it any answer to the allegation, that the sheriff suffered Primus to escape and go at large without sureties; for this means sureties in the mode prescribed by law; and we have already seen, that this must be by a recognizance in court.

It appears that the defendant assigned this bond to the plain- , tiff, with the assent of his attorney. But it is not stated or proved, that it was accepted in discharge of this suit; and in no other way can the assignment bar the plaintiff’s recovery. The bond is not so assignable as to enable the assignee to sue in his name; and the assignment and acceptance of the bond are not pretended to have been by way of accord and satisfaction.

By the act concerning slaves and servants, (K. & R., 1. R. L. 614.,) it is declared unlawful to sell as a slave, or to transfer for any period, any person who shall hereafter be imported or brought into this state; and every person so imported, or sold, is declared to be free. The provisions of this act are, in this respect, similar to those of the act of the 22d oí February, 1788 ; and the latter act received a construction in this court, in the case of Fish v. Fisher, (2 Johns. Cases, 89.) It was there decided, that the elopement of the slave could not be said to be a bringing him into the state; but the subsequent disposition of him to a person residing in this state, instead of reclaiming him, legalized the change of residence by the slave; and thus the slave, by the consent of his master, became domiciled here, and it was, in effect, a bringing in the slave contrary to the statute.

The facts here are widely and essentially different. The slave ran away from his master in Connecticut, and was sold to the plaintiff, a resident of that state; and it cannot be said that the domicil of the slave was changed to this state, by the assent of his master, or by the adoption of the act of the slave in coming here. This case, therefore, is not brought within the pur*270view of the statute, nor within any of the mischiefs intended to be guarded against.

We have no facts before us authorizing us to grant a new trial for excessiveness of damages. We must infer from the case, that the plaintiff has wholly lost his slave. His value, and the damages sustained by the loss, were questions for the of the jury, and we are without dala on which to their verdict incorrect.

Judgment for the plaintiff.

2 Johns., Cas. 89.

Citation profile

Relationships

How this case has been treated — in progress