Allen v. . Allen , 44 N.C. 60 ( 1852 )

(61) "On motion, in open court, by George Davis, Esq., to emancipate Sam, a Negro man, formerly the property of Thomas Hogg Hooper, Esq., deceased, and a mulatto woman, the property of Elkanah Allen, by the name of Clary; and it being stated to the court that the said slaves have rendered meritorious service to their owners, the said court do therefore order and direct, that the said slaves be emancipated and set free, agreeable to the act of Assembly in such case made and provided; Sam, by the name of Sam Hooper, and Clary, by the name of Clary Beel. And it is further ordered by the court, that upon sufficient security being given agreeable to law, to keep the said persons, Sam and Clary, from becoming an encumbrance upon any county in the State, that the clerk issue a certificate of their emancipation," etc.

The plaintiff also produced on the trial a certified copy of a bond executed by Elkanah Allen and John G. Scull, of record in Brunswick Court, dated 25 April, 1809, and conditioned, "that whereas, the above bounden Elkanah Allen did, on 26 July, present to the Court of Pleas and Quarter Sessions, then sitting, in and for the county of Brunswick aforesaid, a petition praying that Clary, a negro slave therein named — to wit: Clary Beel, should be emancipated and set free, under the name of Clara Beel," etc.; that the said "Elkanah Allen shall well and truly, notwithstanding the emancipation of said slave, Clary, keep her from ever hereafter being chargeable to the county," etc.

It was admitted that Clary, named in the foregoing record, was the property of the said Elkanah Allen named therein, up to the time of her alleged emancipation, and that the plaintiff is a daughter of said Clary. Evidence was offered by the plaintiff showing that the said Clary, from the time of her alleged emancipation to the time of her death, acted as a free person, and was so regarded by the community; and that the plaintiff, the daughter of said Clary, also acted and was reputed to be a free person, until some five or six years prior to the commencement of this suit, when she was seized by the defendant, the grandson of Elkanah Allen, named in the record. The plaintiff then offered to prove that she was born subsequent to the alleged emancipation of her mother, and counter evidence was offered by the defendant as to this fact. His Honor being of opinion that the record exhibited did not show a valid (62) act of emancipation, on this intimation, the plaintiff submitted to a nonsuit, and prayed an appeal to the Supreme Court, which was granted. The only question presented in the bill of exceptions is, whether his Honor was correct in expressing the opinion, after the other proof had been given, that the record of the County Court of Brunswick, at its July sessions, 1808, did not show a valid act of emancipation for Clary, the mother of the plaintiff.

It is not denied by the defendant's counsel, that by the law as it then stood, the application to the court, by the owner for license to liberate his slave, might have been made orally as well as by a petition in writing;Sampson v. Burgwyn, 20 N.C. 21; but he contends, upon the authority ofBryan v. Wadsworth, 18 N.C. 388, that when the application is by motion, the record ought to show that it was made by the master, or at least by an attorney for him, and in his name; and that when that is not set forth in the record, nothing — neither a bond filed by the master, in which he states that the motion was at his instance, nor any length of acquiescence by him and the public, in the enjoyment of freedom by the slave — will avail to supply the defect. We think the rule contended for by the counsel is too rigid, and is supported by neither reason nor authority.

We admit that no person, nor the Legislature even, can set a slave free without the consent of his owner; Allen v. Peden, 4 N.C. 442. The question, then, is restricted to this: Must the master's consent be stated expressly in the record, or may it be inferred or proved aliunde? Every court, acting within the scope of its jurisdiction, must be presumed to have acted correctly, until the contrary appears. When one moves a court to do an act on his behalf, he may do so in person or by an attorney of the court. If the motion be made by an attorney, the court may well suppose that he had authority from his client for the purpose; and if it appear afterwards that he was not authorized to move in the matter, the person for whom he assumed to act may apply to the court, and have the proceeding set aside. But if, instead of making such application to have the proceeding vacated, he files in the same court a paper, either expressly or impliedly (63) referring to the act done for him, and saying it was done at his instance; and if in addition to this, he acquiesces and treats as valid the thing done for a long series of years, certainly neither he nor any other person can afterwards question its validity. Such, we think, is substantially the case before us. The record states that "on motion in open court by George Davis, Esq., to emancipate a mulatto woman, the property of Elkanah Allen, by the name of Clary," etc., "the said court do therefore order and direct the said slave to be emancipated and set free," etc., "by the name of Clara Beel; and it is further ordered by the court, that upon sufficient security being given agreeably to law, to keep the said Clary from becoming an incumbrance upon any county in the State that the clerk issue a certificate of her emancipation." Among the records of the same court, we find a bond executed on 25 April, 1809, by Elkanah Allen and one John G. Scull, the condition of which recites, "That whereas the above bounden Elkanah Allen, did, on 26 July, present to the court," etc., "then sitting for the county of Brunswick, a petition praying that Clary, a Negro slave therein named — to wit, Clary Beel — should be emancipated and set free," etc. Clary Beel was then permitted to act as a free woman, and was treated and regarded as such until her death; and her daughter, the present plaintiff, was treated and regarded in like manner, until 1842 or 1843, when she was seized by the present defendant, a grandson of the former owner. Surely, after such a distinct acknowledgment by the owner, that he applied for and obtained from the court a license to liberate his slave, and had from that time permitted her to go free, and he and all other persons had for more than thirty years treated and regarded her and her daughter as free, every presumption ought to be made in favor of her actual emancipation according to law. Cully v. Jones, 31 N.C. 168;Stringer v. Bircham, 34 N.C. 41.

The judgment of nonsuit must be set aside, and a venire de novo ordered.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Jarman v. Humphrey, 51 N.C. 31.

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