
    Marshall vs. Penington.
    In a proceeding before a justice of the peace, to recover the penalty ifvon by the act of 1799, ch. 28, sec. 2, for enticing away and harboring a slave, the warrant need not state that the offenco was committed in the county.
    A warrant issued to recover the penalty given by the act of 1799, ch. 28, sec. 2, stated that the defendant was summoned to answer, &c. for -enticing and persuading the slave of A to runaway, and for harboring and maintaining the slave so runaway: Held, that the warrant was good, and could not be quashed. '
    The right of re-caption does not exist in this State.
    The person who is owner of a slave within the meaning of the act of 1799, ch. 28, sec. 2, is one who has a possession of which lie cannot be deprived but by a legal remedy.
    In an action by one who bad the possession of a slave, to recover the penalty given by the act of 1799, ch. 28, sec. 2, for seducing the slave from the owner’s possession, the defepdant cannot give evidence of title in himself to the slave.
    This suit was commenced before a justice of the peace; the warrant issued is in these words, to wit: “To any lawful officer to execute and return; you are hereby commanded to summon John Marshall to be and appear before me, or some other justice of the peace for said county, (Warren) to answer the complaint of Henry Penington, in a plea of debt of fifty dollars due from the said Marshall, for harboring, enticing and persuading a certain negro woman, slave for life, named Peggy, from the lawful ownership, possession, and lawful service, of the said Penington, and concealing and harboring said negro woman when so enticed, persuaded, and absented from said lawful ownership, possession, and lawful service, contrary to the form of tho act of assembly, in said case made and provided. Herein fail not,” &c. On the trial before the justice, a judgment was rendered in favor of the plaintiff, Penington; from which judgment, Marshall, the defendant, appealed to the circuit court. In the cir~ cuit court, Marshall, by his1 counsel, before the trial, moved to quash the warrant, hut the court overruled the motion and refused to quash the same, to which opinion of the court, an exception was taken. On the trial of the case before the jury, it appears that Penington had the negro in possession under a hiring from Bates, and that she left his possession at the solicitation of defendant, and got in company with defendant a short distance from M’Minnville, the place where Penington lived, who took her home with him; and that defendant had kept her ever since, and refused to permit plaintiff to take her into his possession. There was no positive and direct evidence to prove that the offence had been committed in Warren county. Thé defendant proved that he was administrator of his father, John Marshall, dec’d., by the production of a copy of the record of- his appointment, and letters of administration, and then offered to prove, that as administrator of his said father, he was the owner of the negro; and that she belonged to his father at his death, and th.at she had been sold by the widow to Bates, without his authority, and after the death of his father; to the introduction of this proof, the plaintiff objected, and the same was rejected by the court; to this opinion of the court, an exception was taken. The judge charged the jury amongst other things not excepted to, 1st. That if the negro was in the possession of the plaintiff by hire from Bates for a definite or indefinite time, plaintiff would be so far the owner of said slave; and if she was not hired for any definite time, the running off of the negro, or taking her out of the possession of the plaintiff, by force or fraud, cannot, put an end to his ownership. 2d. - That it must appear ^rom the proof that the offence was committed in the county of Warren, or a justice of the peace could exercise no- jurisdiction over it. But it may be proved to have been committed in Warren county, by circumstances from which you may legally presume it was committed in said county; as were it done in or adjoining the town of M’Mmnville, or near there, and at a place known to all ,, . . ' ,1 T ... , ol you equally to be within the county? It would m such case be unnecessary to swear one of you to tell the rest of his fellows on his oath, what you all know as well as himself; proof is used to inform a jury of a fact not equally known to all of diem.” The jury found a verdict for the plaintiff; and the defendant having moved for a new trial, it was refused, and thereupon a motion in arrest of judgment having been made and overruled, the defendant appealed in the nature of a writ of error to this court.
    
      Andrew J. Marchbanks, for plaintiff in error.
    The court below erred in rejecting the evidence offered by Marshall, to prove that the negro belonged to him as administrator of John Marshall, deceased, and not to Penington or Bates; this point is directly decided in the case of Gorden vs. Farquhar, Pek’s Rep. 155; and also in the case of Hyatt vs. Wood, 4 Joh. Rep. 157, 158, and,
    Secondly, the court erred in overruling the motion in arrest of judgment. The judgment should have been arrested, 1st. for the-reason that the verdict was found only by eleven jurors; to this point I need not refer to authorities. 2d. For the reason that the warrant does not malee out a case to entitle the plaintiff below to a judgment for the penalty given by the act of 1799, ch. 28, sec. 2, Haywood & Cobb, 319. Every fact and circumstance that a penal statute requires to constitute the offence, must be averred. This statute provides that the penalty shall be recovered by action before any justice of the peace within the county in which the offence was committed. It is no where alledged in the warrant, that the offence was committed in Warren county; this' averment should have been made. See 1 Chit. Plead. ■ 276, 356. And 3d. Enticing and harboring are, by the act of assembly, two distinct and separate offences, and one of them alone should have been relied on, and not both. See Lane vs. Marshall, Mar. & Yer. 258.
    
      James Rucks, for defendant in error.
    Négroes are a peculiar species of property, and therefore, it was necessary to pass the statute of 1799, ch. 2S, sec. 2.
    The question is, whether upon trying the fact of enticing away the negro, you shall involve the title, and try the right of property. To admit the evidence, is to decide that, if a party has a good title to a negrp, he may entice or steal it away; it would be an awful precedent to set in society, and of very immoral tendency.
    The good and upright part of society would not ask such a privilege, for they would disdain to resort to it; it ought not to be extended to the bad, for it would lead to the most shameful abuses, and often end in bloodshed. In this very case, when Penington found out -where she was concealed, he made up a company", broke down Marshall’s door, and re-took her by force. No lives were lost, but the party were indicted for the trespass. The defendants upon that trial offered to go into the title, and to prove that she belonged to Bates; the court rejected the evidence, and the cause was brought to this court and affirmed.
    That decision is fully decisive of this cause, unless the counsel can establish this distinction, that he who meanly looks about in the night to entice or steal away a negro, is more to be favored and encouraged than him who goes openly and independently and re-takes his property. Both are criminal actions, forbidden by law; neither can be defended upon the right of property.
    If a man has a claim to negroes, he must resort to the law, and,not to stratagem and theft. And if this court should decide that he may entice them away, it is vain to say to the honest possessor, that he shall not re-take them? for every man in society will do it. It would he so strongly repugnant to the common sense of the community, that though they might submit to the penalties, they could not conform to the rules of the law. There is more reason for punishing the man who secretly entices away negroes, than him who re-takes them; for he is the first aggressor.of the law, without excuse or apology; whereas,the trespass of him who re-takes them is mitigated by the crime of the other party.
    In the State vs. White and another, 1 Hay. 13,'defend-ants were indicted for taking the negroes out of the possession of Bailey. They attempted to prove that the negroes belonged to one Scott, and that they took them by his command; the evidence was rejected. The case proves that this mode of acquiring the possession of property cannot be defended upon the title, and is fully decisive of this case.
    If it should be said this is not an indictment, we answer it is exactly the same thing; for the conviction of defendant in both instances depends on his violation of tire law, and is not justified by any title which he may have. It is unlawful to entice away negroes, even though the party may have a good right.
    The case is stronger against admitting the evidence upon this warrant than upon an indictment. For here you-cannot mitigate damages. The statute was made to protect the possessor, and drive the outstanding claimant to his action. It is liquidated damages for interfering with the possession. State vs. Thompson, 2 Ten. Rep. 98. Deakrick was in possession of the negro; Thompson found her upon the public square in N-, and carried her home with him, he was indicted and convicted.
    This case has some analogy to proceedings for forcible entry and detainer; there the trespasser may have the better right, but still may be convicted and turned out; he cannot defend under his title; he cannot give it in evidence. Tho reason for protecting the possession of ne-groes, is at least as strong as that protecting the possession of land. See the act of 1779, ch. 11 sec. 4.
   CatRON Ch. J.

delivered the opinion of the court.

The proceedings below were grounded upon the act of 1799, ch. 28, sec. 2, which provides, “If any person shall hereafter entice or persuade any servant or slave to absent him or herself from his or her owner’s service, or shall harbour or maintain, under any pretence whatever, any runaway servant or slave, such person shall for every such offence, forfeit and pay to the owner of. such servant or slave, the sum of fifty dollars, to he-recovered by action of debt before any justice of the peace within the county where such offence shall be committed, and be further liable to said owner in action of damages.” Ought the warrant to have been quashed, 1st. Because it is not alledged the offence was committed in the county of Warren? The suit is to be by warrant in debt, before a justice of the peace of the county where the offence was committed; whether the magistrate had jurisdiction, rested in proof, not on the pleadings. No venue is laid in covenants before justices. 2d. Should the warrant have been quashed because two distinct offences are charged in it? The enticing a slave from his' owner’s service is one of-fence, and the harboring a runaway slave is another, for either of which, the penalty is given. Here a penalty ol fifty dollars is sued for, because Marshall enticed and persuaded the slave to leave the service of her owner, and the warrant alleges he concealed and harbored her after she had'left Peningtori’s service, but thé whole is stated in connexion as one transaction, and so was the fact. The defendant persuaded the woman to leave her master, carried her on his horse to his own house, and there concealed and 'kept her, and clearly incurred the penalty. The rule, in declaring on a penal statute, is to set forth the acts jone by the defendant, so as to bring the offence within the provisions of the statute, and to state all the necessary circumstances to support the action. 1 Chit. Plead. 356. Here the offence is stated with the circumstances according to the truth of the case, and we think it well stated, at least in a proceeding such as is presented by the record. Baker vs. Allen, 2 Ten. R. 175. 3d. Was the proof of ownership offered by the defendant properly rejected? The evidence offered, proposed to establish the fact, that John Marshall, at his death, was the lawful owner of the slave, and that the defendant had been appointed his administrator. This might have been true, and still Penington he entitled to the services of the slave for a time, and the owner for the time; but could the administrator be permitted to assert his title by re-caption, had it been undoubtedly the better right? If it be true, that re-caption is a rightful remedy, then it was not unlawful for the proper owner to re-capture the slave. The danger of this mode of asserting title to slave property, was experienced shortly after the opinion of the court in Blanton vs. Coulson, (3 Hay. Rep. 155) was published; and in the cause of Kigler vs. Miles, (Mar. & Yer. Rep. 426) the assumption was rejected. The claim of title, therefore, formed no defence for Marshall, on the assumed ground to re-capture the slave.

In this part of the cause we are called upon to review the opinion of this court, made at June term, 1823, in Gordon vs. Farquhar, (Peck’s Rep. 155.) where it is holden that the sentence, “entice from his owner’s service,” means an acknowledged owner, not one whose claim. is opposed by that of the defendant by virtue of another claim of his own. If the prior possession is to be regarded, says the court, and he who is the owner with open possession is not to be disturbed, then a new possession taken by force and avowedly as a re-caption, is not the object of the penalty awarded by the law; for that is but a restitution to the state, from which it ought not to have been taken, and one which is effected without force, and not without a justificatory motive;” and into this motive, the court hold in the concluding paragraph, the jury had the right to inquire but not to adjudge the right of property. Still, to ascertain the motive, the right of re-caption must be inquired into, and the evidence of title heard, to establish the honest intention of the defendant. In the case of Gordon vs. Farquhar, the right of re-caption is asserted, and it is there holden, that if the defendant believed he had the right to re-caption, and under the influence of this belief enticed the slave to leave, the service .of the owner, he vaas not. guilty, by force of the statute of 1799.

Gordon was, in that case, the apparent owner, with open and lawful possession, as was Penington in this, and the right of re-caption not existing in either, it follows the defendant could not lawfully disturb the possession, by taking away the slave by persuasion or other means; the “owner,” within the statute, being him having the lawful possession, of which he could not be deprived but by a legal remedy; nor would it have been any defence had it been proved that the motive of Marshall was to obtain possession of his own property, as such would have been unlawful, so would have been the motive to its exe-^ cution; we therefore think the evidence was properly rejected, notwithstanding what is said in the cause of Gordon vs. Farquhar. To maintain that slaveholders may be deprived of their slaves by tampering with them to their ruin,' as with planters might be the case, and then permit the wrong doer to say in defence, he meant no harm to the injured party, would, it is to be feared, inducejhe latter to take the law into his own hands to reg; session, as was the inevitable tendency oMj^JJskíW exploded doctrine of the right of re-caption:1^ aid as was. the case in this instance, an indictment against Wenington and others having sometime since been brought before ihis court for breaking the house, and comi kitt|}ji.B#fo:--lent outrage upon the defendant Marshall’s house and family, and for re-taking this slave:' and when they attempted to defend themselves against an indictment, because they liad the right of re-caption as true owners of the slave, their defence, was rejected.

To that part of the charge which informed the jury that they might from the localities proved, find that the offence was committed in the county of Warren, we think there is no objection. The judgment will be affirmed.

Judgment affirmed.  