Kaufman & Co. v. Barb , 26 Ark. 24 ( 1870 )

Harrisoh, J.

This was a suit on a writing obligatory, executed by the defendant to Hirsch & Adler, and assigned by them to the plaintiffs.

The defendant filed nine pleas. The first and second were, on the plaintiff’s motion, struck out, and they took issue to the ninth, and demurred to the others.

The court sustained the demurrers to the third, seventh and eiyhth pleas, but overruled those to the fourth, fifth and sixth,. and, without disposing of the issues taken to the ninth, rendered dual judgment against the plaintiffs.

The fourth, fifth and sixth pleas, though varying, somewhat in language, wei’e, in substance the same, and the defense set tip in them was, that the instrument sued on was given for a negro man, purchased by the defendant from Hirsch & Adler, in Independence county, in this State, on the 10th day of July, 1863, that had been emancipated and freed by the proclamation of the President of the United States, of September 1, 1862, and January 1, 1863, and therefore without consideration.

It was not averred, in the pleasj that the county of Independence was within the territorial lines when the sale was made,, or that the negro man had ever been within them after the proclamation of January 1, 1863; and as every body is presumed to make the most of his own case, and it is a maxim of construction that every thing shall be taken most strongly against the party pleading, the presumption is against such facts.

In Dorris v. Grace, 24 Ark. 326, it was decided that the emancipation proclamation did not liberate and free the slaves in the insurrectionary States, outside the lines of occupation of the national forces. Of the correctness of the decision in that case, we think there can be no doubt, and as it is conclusive of the question presented in this, the judgment of the court below is reversed, and this cause remanded to it, with instructions to sustain the demurrers to the fourth, fifth and sixth pleas, and proceed to the trial or disposal of the issue formed on the ninth, and otherwise in accordance with law.