
    INGRAM’S HEIRS v. COCKE.
    Judgments of the courts under the Franklin government how far valid and how to be proved.
    Detinue for sundry Negroes.—To this action the defendant pleaded non detinet, and the statute of limitations. Replication and issue on the first plea, with a replication of infancy and coverture as to the second, rejoinder and issue.
    
      The case as it appeared in evidence was, that John Rains owed Middleton M‘Donald three negroes, for which he had his obligation; this demand he put into the hands of a certain William Ingram for collection; some time previous to the month of May, 1785, the state of Franklin commenced its operation; this was an illegitimate or assumed government by the people of that part of N. Carolina which lay west of the Apalachian mountain, where all the transactions which were the subject of this action and defence took place: Rains thus indebted was about to abscond—Ingram pursued in order to obtain satisfaction for this demand of M‘Donald’s, for whom he acted as Agent; he came up with Rains, and by cocking his gun and threatening to shoot, forced him to stop without any kind of process. Immediately after which, Ingram got into his possession four negroes, the property of Rains, Clarinda, Sukey, Tinah and Will; but by what means was not precisely ascertained; the proof however formed a presumption irresistably strong, that Ingram procured the negroes by menaces and duress.
    While the negroes were in this manner in the possession of Ingram, he obtained from Rains a bill of sale for them in his own name, bearing date the 25th of May, 1785, with a proviso annexed to it, that if Rains should pay him three negroes by the 25th of October following, then the bill of sale was to be void.
    Samuel Patton, a witness, who saw Rains execute this instrument, says that he understood at that time the reason why Ingram demanded four instead of three negroes from Rains, was, that the fourth was a charge for trouble Ingram had been at in collecting M‘Donald’s debt.
    A short time after this, Rains went to M‘Donald’s and discharged the debt for three negroes by a payment in horses, for which a bill of sale was given, dated 13th of May, 1785, and some money. Subsequent to this, and after Ingram and Rains had been disputing some time, M‘Donald was sent for by them ; M‘Donald, stated that he had received payment of Rains, upon which, he and Ingram settled in his presence, when it was agreed that Ingram should give up all the negroes to Rains.
    These negroes, except Sukey, were afterwards attached by process, returnable to the county court of Spencer, under the government of Franklin, as the property of Rains at the instance of Finney. Mrs. Ingram, the widow of William Ingram now dead, filed an interpleader in this suit. Finney however obtained a verdict and judgment ; execution issued, the negroes were sold as Rains’ property, and the defendant Cocke became the purchaser of several of them.
    Thomas Hutchings, who was clerk of Spencer Court, in his deposition says, that after the dissolution of the Franklin government, he delivered the papers relative to the proceedings of the court into the hands of the sheriff, amongst which, he well recollects, were the proceedings in the cause of Finney vs. Rains, with Ingram’s interpleader.
    Col. Thomas Henderson, a witness for defendant, says, that being a justice of the peace and member of the court for the county of Spencer, he wrote to Col. Thomas Hutchings, the late clerk, for the papers belonging to his office; he did not receive any from him, but obtained one from Mr. King, the sheriff, which was all he ever got, and which was produced in court. This paper appeared to be the minutes of the proceedings of the court of Spencer, in the hand writing of Col. Thomas Hutchings. Among other things was contained, an account of the proceedings in the suit Finney vs Rains, with the interpleader.
    Rhea and Williams, for plaintiff,
    desired the opinion of the court, whether the paper produced by Col. Henderson should be read as evidence. If it were a record, as the defendant’s counsel had suggested, the original could not be read, but a copy ; but they conceived that the proceedings of the pretended court of Spencer were not of record, because the government of Franklin, was an illegitimate and usurped one, and so declared to be by an act of N. Carolina, of which the country governed, formed a part. The acts of such a government, formed a series of violations of order, of the first principles of all political institutions—rent the social compact asunder, so that none of its acts can be recognised as valid or of any effect, Stra. 210. Gilbert’s law of evidence, 27.
    Campbell, argued e contra.
    
    The paper produced is a record or should be viewed as one. It is well known that the books afford many instances of writings which are admitted as evidence, though they cannot strictly come under the idea of the procedings of courts, such as parish registers, &c.
    Overton judge.—This paper, as I am at present impressed cannot be read as a record of a court of justice; but as Col. Henderson in whose possession it has been kept, was a member of the court of Spencer, was personally acquainted with the whole transaction, and knows it to be in the hand writing of Col. Hutchings, the clerk of that court, I see no reason why the witness may not make use of it to refresh his memory, as in other cases, agreeable to the law of evidence.
    Campbell, judge.—It seems to me that the paper ought to be received as a record, otherwise great injustice might ensue.
    
      [White, Judge, Absent, having been employed as counsel.] Col. Henderson then proceeded to deliver his testimony, recuring occasionally to the minutes, and stated in substance as above.
    Rhea and Williams, for plaintiff.
    We claim these negroes with their increase, under the bill of sale to William Ingram, the Ancestor of the plaintiff’s, made by Rains, on the 25th of May, 1785, which is sufficient to shew our right of property—possession in the defendant has been shewn, a demand has been proved, and this is sufficient. Property in the plaintiff, possession in the defendant with a demand, is all that is necessary to be shewn to entitle us to a recovery in this case ; for it surely will not seriously be contended, that the sale of these negroes by the Sheriff, under the pretended authority of the Franklin Government, can give any legal right to the defendant. It was an insurrection, as much so as the opposition to the excise, which took place a few years ago, in the back parts of Pennsylvania. None of the acts of such a government can be good, or founded on such principles, as to obtain a moments consideration in a court of competent authority. The proceedings of the court of Spencer cannot be records ; if they are, a writ of error would lie in this court, but no lawyer entertains an idea of such a thing. If the proceedings of this court were erroneous, they cannot be reversed, not being the proceedings of a court at all, in the contemplation of our laws. What then must be the condition of parties litigant in such an anomalous court ? if they erred, yet the parties were constrained to consider their acts as sacred, there being no method by which they can be re-examined and corrected when wrong.
    Campbell and Whiteside, for the defendant.
    —The Franklin government is not to every purpose, to be considered as an usurped one. It is not similar to the insurrection in the western part of Pennsylvania; that was an absolute opposition to a law of the United States essential to its existence; one for raising a revenue.
    The government of Franklin, arose from necessity; from the situation in which the people of N. Carolina, west of the mountain were placed; detached from anterior settlements in the eastern part of the state, exposed to the incursions and merciless barbarities of the neighbouring savages, the state of N. Carolina could not or did not, afford the people in this country, that prompt assistance which was indispensible to the their happiness, nay almost to their existence.
    Under these circumstances they formed a government of their own, distinct from that of North Carolina; but they did it in a peaceable manner, it was not attended with violence, civil war or blood shed. In this state of things North Carolina, being as we suppose sensible of the situation of the people, never attempted to maintain her rights of sovereignty, or to cause the execution of her civil laws, through the medium of courts or otherwise.
    The histories of most nations furnish precedents of government de facto, as well de jure, particularly the English, whose laws we have adopted.
    Surely it will not be contended that, all the acts of the English courts and ministers of justice, during the protectorship of Cromwell, were void and tortious.
    The books prove the contrary. The act of oblivion, passed by N. Carolina, in the year 1786, C. 23 does not reprobate the proceedings of the Franklin courts, either directly or by inference; criminal causes excepted, which the act particularly embraces.
    The acts of the government or its courts whilst it existed, cannot be considered as void; the defendant has fairly purchased the negroes at a sheriff’s sale, under the authority of that government, and ought to hold them.
    Independent of the consideration of the legitimacy of the judicial acts of the court of Spencer, the plaintiff cannot recover these negroes; for it appears clearly in evidence, that William Ingram, the ancestor, obtained them by gross fraud. How came Ingram in possession of the negroes? he had them, and no person knows how; except that we are told that he and Rains, before the bill of sale was given, were frequently quarrelling. That he obtained the possession by menaces and duress, we have no doubt. The bill of sale certainly was not procured in a much fairer manner, else why take it for four negroes; the demand was but for three.
    The evidence shews that the acquisition of these negroes by Ingram, was attended with such circumstances of fraud, that the plaintiffs his representatives cannot recover upon this ground.
    
      There is however, another important part of the testimony, which ought not to be omitted; and of itself would decide the question in favor of the defendant, if there was nothing else.
    It was not a debt due to Ingram, but to M’Donald for whom Ingram acted as agent; now M’Donald swears that Rains discharged the debt to him, which would avoid the bill of sale to Ingram, under which he now claims.
   Overton, judge.

In taking a view of this subject, it does not appear necessary to consider the case as it stood, at the time the Franklin government was in existence, but how it now stands. In its origin and continuance it cannot be assimilated to the insurrection in Pennsylvania. History affords various instances of governments de facto; when they cease to exist the former or legitimate government by their legislative acts, usually furnish the ground upon which municipal courts proceed in giving an opinion.

In this case the people voluntarily relinquished the authority of the Franklin government, and placed themselves under the authority of the state from which they seceded.

North-Carolina, then passed an act, usually termed an act of pardon and oblivion, which will be found in Iredel’s revisal, page 597. By recuring to this act it will be perceived that the legislature took a distinction in the transactions of the pretended government, between offences immediately against her rights of sovereignty, crimes and misdemeanors, and such as related to the ordinary intercourse of individuals which forms the basis of the civil law.

The pardon and oblivion, relate to the first, or criminal jurisdiction exercised by the pretended State.

As to the second, the legislature in the first section of the act, uses these words “provided that where any decisions have been had respecting property, which are incompatible with justice, the person or persons injured shall have his or their remedy at common law.” Ird. 597.

From these words it must appear, that N. Carolina designed where disputes had been determined in a judicial way in these courts that they should remain obligatory on the parties, unless incompatible with justice.

Consistently with propriety, or the usages of nations, N. Carolina could not declare the government of Franklin lawful, nor the proceedings of its courts matters of record.

They have said all that was proper for them to say by indirectly declaring the proceedings of the court obligatory, where substantial justice had been attained—Such a declaration in my opinion, is consistent with that part of the law of nature, which relates to contracts, or determinations of disputes relative thereto.

Though the erection of the state of Franklin, was in opposition to the sovereignty exercised by N. Carolina, yet a state of society might exist by social compact, in which its members would be bound by the acts of the government when substantial justice had been attained.

It is for the public interest, that there should be an end of disputes—public and private happiness require it; nor is it conceived material, upon the principles of the law of nature, by what particular means it has been accomplished, provided the consent of parties either expressed or implied appears.

In this case, Ingram, Rains, Finny and the defendant, were all citizens of the country, over which this government extended.

Proof of express consent to the erection of the government conformably to the spirit of the act, does not appear necessary. They were within its temporary protection, and if it administered substantial justice, all parties ought to be bound. The act as it appears to me has wisely established this principle.

The act having in this manner recognised the forensic proceedings of the government in civil matters; the presumption of law, that such proceedings are compatible with substantial justice, attaches in this case, and will prevail unless it appears otherwise to the jury.

The judicial proceedings of the Franklin courts, though not of record, being the acts of men in society, are susceptible of the application of the ordinary rules of evidence, and in that view, he conceived it proper to admit testimony by witnesses of what actually passed in the court of Spencer; a great part of the proceedings of that court having been lost.

It has been suggested, that the plaintiff’s claim is founded in the fraud, or unfair dealings of the ancestor, William Ingram, and even, if good, that it lost its force by the discharge of the obligation to M’Donald by Rains. Upon this last point, it does not appear necessary to give an opinion at present, for if the jury should be of opinion that the bill of sale from Rains to Ingram was obtained by fraud or duress, it ought not to prevail even in a court of law.

Campbell, judge, concurred

—Verdict for the defendant. 
      
      Kaims’ pr. Eq. 394. T. Bl. vol 1 p 1 Appen. 11.
     
      
       Addi. Rep. 186.
     