Ponder v. Cox , 26 Ga. 485 ( 1858 )

By the Court.

McDonald, J.

delivering the opinion.

[1] The complainant’s bill does not present a case which would justify a Court of Chancery to interpose in his behalf, by way of injunction. He has the warranty of title from the plaintiff in error, and there is nothing in the bill to show that his remedy at law on that is not adequate and ample. He claims however, that under the facts alleged by him, it is against conscience for the plaintiff in error to enforce the collection of the execution. That is not a sufficient ground of itself, for chancery to interfere with the proceedings in a Court of Law. There must be other equitable circumstances, to sustain it. It is manifest that if a defendant in a Court of Law, have the means of a perfect defence in that Court, and by his neglect alone, he fails to make it, however unjust the demand may be on which the plaintiff has recovered judgment, and however against conscience and morals it may be for him to compel its payment, a Court of Equity will not interpose, for his relief. In this case the defendant in error was sued and judgment was recovered against him, he set up no defence, although he was informed of the insecurity of the title to the negro, about the time the note given for him became due. He allowed the suit to proceed to judgment against him, and did not even institute a cross action for damages, although there was no legal impediment to a suit. From the statements of his bill, Dyson was his agent, and what was to hinder him from suing ? He was not obliged to await a suit by the negro for his freedom. If the title was not good at the time of the sale, there was a breach of warranty. But the complainant excuses himself for not delending in the Court of Law by alleging that he had supposed that the note had been transferred to the plaintiff in that Court, fairly and bona fide, before due, for a valuable consideration. He predicates his right to appeal, now, to a Court of Chancery, on the fact that the execution, shortly after it was issued, was transferred to the original payee of the note. The charge is made argumentatively. He “ feels warranted in believing &c., and therefore charges.” &c. This charge is far from being positive, and injunctions ought never to be granted, except the complainant is willing to make a strong case of irreparable injury, or of threatened or impending wrong, where the legal remedy is inadequate. Mr. Justice Baldwin properly remarked in a case before him in the Circuit Court. of the United States, that “there is no power, the exercise of which, is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous, in a doubtful case, than the issuing of an injunction; it is the strong arm of equity that never ought to be extended unless to cases of great injury, where Courts of Law cannot afford dn adequate and commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction ; but that will not be awarded in doubtful cases, or new ones not coming within well established principles; for if it issues erroneously an irreparable injury is inflicted, for which there can be no redress, it being the act of a Court, not of the- party, who prays it.” Bonaparte vs. Cam. & Am. R. R. Co., Baldwin’s Rep. 217.

It has been decided in Kentucky, that a Court of chancery will not grant an injunction to stay a judgment, where the complainant affirms the contract, and seeks to liquidate the damages upon a warranty, or for fraud upon the sale. Robinson vs. Gilbreth, 4 Bibb, 184. I recognize that as correct in principle, and it has some application to this case. The complainant in this case, if he has not expressly affirmed, has not disaffirmed the contract, and appears to have been somewhat instrumental in bringing about the state of things, which places it out of his power now to disaffirm it. I am not prepared, however, to say, that what he has done, shall prejudice his claims to relief now, if his case were, in other respects such as to entitle him to it; for what he did, seems to have been suggested by that prudence which any vigilant man would observe to guard against future injury or loss. But the complainant does not show a single circumstance which entitles him, under the facts apparent on the face of his bill, to apply to a Court of Equity for relief. There is no allegation that the warrantor from whom his agent purchased the negro, is not able to respond. His insolvency or removal from the State, could alone justify the Court now to interfere by enjoining the judgment, until the question of title could be litigated between the complainant and defendant.

[á.] The bill charges that the negro for whom the note was given was not a slave, but that he was a free person, residing in the State of Maryland, and was prosecuted there for some offence of which he was convicted, and sold as a slave for the term of fifteen years, under the laws of that State; and that the defendant to the bill insists that the fifteen years, the tejun for which he was sold into slavery, expired more than five years ago, and that the statute of limitations has effectually barred his rights. The plaintiff in error insists on the statute as a bar. There is no statute bar to suits for freedom. There is no limitation to suits except by statute. There must be positive law to bar a right. It is true, that “length of time” raises a presumption against old and stale demands, but that presumption is not regarded when the party against whom it is to operate is “non sui juris” as a married woman or an infant. From the state and condition of a negro entitled to freedom, but held in slavery, no presumption can be raised against him. He is in perpetual duress during the time he is so held; and there can be no legal acquiescence on his part. Acquiescence implies knowledge and an agent capable of exercising a will, independent of others. This cannot be assumed in a case of a negro held in slavery.

The complainant alleges further, that the defendant (plaintiff in error,) insists that as laws of this State forbid domestic emancipation, no Court will release the negro from slavery.

The counsel for the plaintiff in error, argues before this Court, in addition, that the negro, is here in a state of slavery, and that he is here in violation of the Act of 1818, which declares that no free person of color shall come into this State, and that persons offending against the act, shall be subject to penalties in the act prescribed. A person who is not a voluntary agent cannot commit the kind of crime, which involves an act. There must in every such case, be “ a joint operation of act and intention.” A negro brought to this State as a slave, cannot be presumed to have any intention to violate our law, or freedom of action, in coming here, though he, in fact, be entitled to his freedom. There is no law against the introduction of free persons of color, subject to temporary slavery, into this State, by the persons having a right to their services as slaves, for a term of years. If such persons are brought here by their temporary owners, they remain here in violation of no law, and are subject to no penalty. They certainly do not remain in a state of slavery, after the expiration of their term of service, and the plaintiff in error cannot be sustained in the position, that his having brought the negro here, enlarged his title from an interest in him for a term of years, to an absolute estate in his person, during his life.

There is nothing in the case to support the argument, that this State will not give countenance to a policy of the State of Maryland to throw off her free colored population on States whose policy prohibits their reception there. There is nothing in the record which warrants the assumption, that the negro who was the consideration of the note sued on, was taken from Maryland or brought here, in furtherance of any such policy on the part of that State.

We think that the Court below erred in overruling the demurrer to the complainant’s bill, and therefore order that the said demurrer be sustained, and the bill be dismissed, unless the complainant can so amend the bill as to show that his remedy at law against the defendant is inadequate by reason of. his insolvency; or, of his having removed out of the jurisdiction, which proposition to amend must be supported by affidavit of the truth of the facts proposed to be introduced by way of amendment.

Judgment reversed.