
    Jesse Pocock vs. Joshua Hendricks.
    
    June, 1837.
    Evidence by a justice of the peace, that when called upon by parties to prepare conveyances for them, it was his habit to inquire whether they desired absolute, or conditional conveyances, that he had no doubt such inquiry was made in the present instance, and that he never failed to shape the paper according to the expressed purpose of the parties; and that he was also in the habit of reading the papers, after they were written, to those for whom they w7ere prepared, and especially if they were workmen : Held to be inadmissible.
    It is for the jury to decide, whether a variety of facts and circumstances admissible as evidence, are sufficient in point of fact to prove that a bill of sale was fraudulently obtained.
    If the instrument under which the plaintiff claims in an action of trover, is proved, or conceded to have been obtained by fraud, it is of no validity ; and the defendant may rely upon such invalidity as a bar to the action.
    The act of assembly prohibiting the bringing or importing into this state of slaves for sale or to reside, provides, that persons brought into the state contrary to the act, if slaves before, shall thereupon immediately be free ; but to entitle the slave to his freedom in such case, the bringing into the state, must be shown to be by the owner, or by his authority, or with his approbation. If a stranger w'ithout the authority or approbation of the master, bring a slave into the state, such slave is not entitled to his freedom.
    Appeal from Baltimore county court.
    This was an action of trover brought by Jesse Pocock, against Joshua Hendricks on the 10th May, 1832, The defendant pleaded not guilty, and limitations on which issues were joined.
    At the trial of this cause, the plaintiff offered in evidence a bill of sale-of a negro boy, named Richard Hughes, dated the 28th September, 1825, from Mary Hare to him, for the consideration of $ 100, which was duly acknowledged, and recorded.
    And also offered evidence, that said Mary Hare previous to the year 1825, and at that time was in.the possession of the said Dick, and exercised acts of ownership over him; that soon after said bill of sale, the said boy came to the farm of the plaintiff, and continued working there until about the last of February, or first of March, 1828, when he went to his former mistress, the said Mary Hare, who resided in the state of Pennsylvania, with the said defendant; that the said Mary Hare was of infirm health, and that the said Hick returned to her with the consent and approbation of the plaintiff, who declared that he might remain in the service, and employment of the said Mary Hare as long as she lived. That the said Mary Hare died about the 6 th of January, 1832, and that between the 20th and 23d of the same month, of the same year, the plaintiff demanded the said Dick of the defendant, in whose possession he was in Pennsylvania, who replied that the boy belonged to him, and that he would defend him with his last cent.
    The defendant' then, to support the issue on his side, offered in evidence certain depositions, taken under a commission, viz:
    
      Maria Hutchens deposed, that she has known Jesse Pococlc ever since she can remember, and that she has known Joshua Hendricks for about twenty-seven, or twenty-eight years. That she knew a coloured boy named Dick — thinks Dick Hughes — he was the son of Cass Johnson, a coloured woman, and that his father’s name was Jim, thinks Jim Hughes — and that said Dick or Richard was claimed and owned by Sarah Galloway — ;she further states that her means of knowing the above facts are or were as follows — about twenty-four years ago, precise time not recollected, Sarah Galloway now Sarah Hendricks, then residing on “ My Lady’s Manor,” near Gunpowder falls in Baltimore county, state of Maryland, 
      purchased a black woman, named Cass Johnson, for a term of years from Philip Garretson, and paid for her; and that after said Cass became the property of the said Sarah Galloway, and before said Sarah was married to Joshua Hendricks, said Cass had two children, one named Joshua and the other Dick, and after said Sarah was married, she sold Josh to Charity Me Clung, for $100, and said Dick was left with Mary Hare, the mother of said Sarah Galloway, now Sarah Hendricks, to wait upon her, said Mary Hare, as long as she the said Mary lived, and at said Mary’s death, was still the property of the said Sarah Galloway. Mary Hare only claimed the services of said coloured boy Dick, as long as she lived — said Sarah Galloway lived with her mother, Mary Hare, before her marriage, and said blacks were kept about the house. Deponent further states, that she always understood from Mary Hare, that said coloured woman Cass, and her two children, Josh and Dick, were the property of said Sarah Galloway, now Sarah Hendricks, and that said Mary Hare, had, nor held, no other claim upon said coloured woman and her children, than the services of said Dick, as long as she the said Mary lived — that she recollects, that after Sarah Galloway was married to Joshua Hendricks, said coloured woman Cass, remained with Mary Hare, and had two more children, Rachael and Luce. — Witness thinks the reason why said coloured woman remained with Mary Hare, after said Sarah Galloway was married, was that she the said Sarah could not take her to the state of Pennsylvania, to which state she removed. Witness further states, that she is the daughter of the said Mary Hare, and is the sister of the said Sarah Galloway, and lived between one or two miles from her said mother’s residence, in Baltimore eounty, Maryland, at the time she has spoken of. After said Sarah was married, she sold the said Cass’ time, to whom, she does not recollect.
    
      Jesse Hutchens deposes, that he has known Jesse Pocock ever since he has known himself, and that he has known Joshua Hendricks for about twenty-eight years past. — That he knew a coloured boy called Dick, or Richard Hughes— he was the son of Jim Hughes and Cass Johnson, who were coloured people. He, witness, states that he lived, at the time he was acquainted with the facts, he has and is about to state, between one and two miles from the residence of Mary Hare, in Baltimore county, state of Maryland, before, at, and after the marriage of Sarah Galloway, to Joshua Hendricks, and always understood at that time, and ever since, that Sarah Galloway before her said marriage, purchased said coloured woman Cass, for a term of years, from Philip Garretson, and paid for her, and that said Cass had two children, named Josh and Dick ; and he, witness, further states, that he always understood said coloured woman Cass, and her two children, were the property of said Sarah Galloway ; this he understood from Mary Hare, the mother of the said Sarah. Witness further states, that he is very certain, that old Mrs. Hare, never claimed the black boy Dick, as her own property, but only the services of the . said Dick, as long as she lived, to wait on her. Sarah Galloway, now Sarah Hendricks, before her marriage, lived with her mother Mary Hare, and said coloured woman, and her two children were kept on the place. — Witness recollects,of Sarah Galloway selling the boy Josh to Charity Me Clung, wife of Joseph Me Clung, for $100. Witness states, that Cass remained with Mary Hare, sometime after Sarah. Galloway was married, and removed to Pennsylvania.
    
    
      Joshua Green deposes, that he is well acquainted with plaintiff and defendant, that he has seen the negro boy Dick frequently. He was said to belong to Jesse Pocock. That some time after this same black boy, now in dispute, between Jesse Pocock and Joshua Hendricks, was in the possession of Joshua Hendricks, I saw .Jesse Pocock, and, asked him if he was not afraid that his black boy would be free, by the laws of the state of Pennsylvania, to which Jesse Pocock replied and said, that the black boy did not belong, to him, that he belonged to Joshua Hendricks, or he is a part of Sally’s estate, and is none of mine.
    The defendant further offered evidence to prove that Mary 
      
      Hare, came to reside with witness’s father, the defendant in this cause, in the state of Pennsylvania, in the year 1827, and thus continued to reside until her death, which occurred about the 6th January, 1832, that said boy Dick came to said defendant’s to be in the service of Mrs. Hare, in February or March of the year 1828. That shortly after he returned to Mr. Pocock, his former master, for his clothes, and then coming back, he remained until the first of the ensuing May, at which time he was hired to a certain Elijah Galloway, who resided in the city of Baltimore for the benefit and advantage, and by the direction of Mrs. Hare, where he continued until late in the following fall — that being sick, he was again carried by the daughter of Mrs. Hare to the state of Pennsylvania, where he remained about six or eight weeks, when he returned to Galloway’s in Baltimore, and there staid to complete his time of two years. About the 1st September, 1830, the said boy went again to Pennsylvania, and immediately after worked with one Walker, who resided in Mew Market, Maryland, for one month; that during the one month the boy returned to defendant’s every Saturday night, where his washing was done for him, that by the end of the said month, the said boy, about the 1st of October, went to the defendant’s house, where he continued until about the last of March, 1831, when he was sent again to the said Galloway’s with whom he continued to live, and with wThom he was when the witness left the state of Maryland, on the 1st of October, 1831, to go to the state of Ohio, after which he knew nothing further of the said Dick. The defendant further offered evidence that the plaintiff and defendant lived within a mile or two of each other, the defendant in Pennsylvania, the plaintiff in Maryland; that the said boy Dick, between the years 1828 and the death of Mrs. Hare, was frequently in the state of Maryland, once or twice at a husking match on the farm of the plaintiff, also at a camp meeting in the neighbourhood, and that he appeared at all times openly, and it was notorious to the neighbours that he resided with the defendant for the period above stated. The defendant also offered evidence to prove that on the morning of the 28th of September, 1825, the plaintiff waited on Mrs. Hare, and requested her to give him an instrument lest he should have money to pay, Witness persuaded him to waif' until Elisha Galloway, who was the son of Mrs. Hare, should return from market, and witness kept them from going for an hour, but they afterwards, went — something was said in this conversation about the boy Hick,- and his being an indemnity, and about the suit of Me Clung7s, and that plaintiff said he did not wish to claim the boy unless he should be obliged to pay thé money. The defendant proved that Mrs.' Hare could .not' write or read writing, and then offered in' evidence from the records of Baltimore county court, certain docket entries in four suits, the two brought by Me Clung against' Mrs. Hare, and the others by the same persons against the plaintiff as security of .Mrs. Hare on an administration bond, and also offered in evidence an order to enter the judgments in said suits, satisfied.
    The defendant then proved that the money to satisfy said judgments had been paid to the amount of f 1-17.67 by Elisha Galloway, the son of Mrs. Hare. The defendant further proved, that in a conversation which the witness had with the plaintiff a short time before Mrs. Hare's death, he observed, c£ are you not afraid that Dick will be free,” to which the plaintiff replied, “ that, he had the boy as a-security and he believed the money was nearly paid up.”- The plaintiff then further to prove the issue on his part, offered in evidence by William, A. Schaeffer, a competent witness, that he was a magistrate, and acted in that character in the fall of 1825, that on the day of the date of - the said bill of - sale, he was applied to by the plaintiff and the lady who executed the same, but whom he does not think he would now know if he wére to see her, to prepare an instrument of writing for them, that he accordingly wrote the said bill of sale, and witnessed the signature of Mrs. Hare to it, and took the acknowledgment — that it has been a long time ago, and he does not recollect the conversation when the transaction occurred — that he is now, and was at that time, frequently-called upon to prepare bills of sale and other instruments, and that he had by him forms of absolute and conditional conveyances by way of mortgage ; and the plaintiff offered to prove further by the said witness that it was his habit to ask those who called upon him to prepare papers for them, whether they desired an absolute or conditional conveyance ? That he has no doubt that such an interrogatory was in substance, put to the said Mary Hare and the plaintiff in the present instance, and that he never failed to shape the paper according to the expressed object of the parties.
    To the whole of this last piece of evidence, the defendant objected as incompetent, which objection being sustained by the court, (Purviance, A. J.) the plaintiff excepted.
    2d ExceptioN. — The plaintiff then proved by the said witness, that he was in the habit of reading the papers after they were written, to those for whom they were prepared, and especially if they were workmen. The counsel for the plaintiff then asked the said witness whether from such his habit, he had any doubt that said bill of sale had been read to Mrs. Hare by him. To this question the counsel for the defendant objected on the ground, that any belief or, impression of the witness drawn from his customary mode of transacting business with those who called on him to prepare papers, was incompetent evidence to go to the jury, that the said bill of sale was read to Mrs. Hare before she executed the same, which objection being sustained by the court, (Purviance, A. J.) The plaintiff excepted.
    3d Exception. — The plaintiff further proved that witness went to the meadow of the defendant, late in the summer or early in the fall of 1825, and that the defendant being there, said to him, “tell your father, (that is the plaintiff in this cause) to get Dick from Mrs. Hare or he will never get any thing, and that if he, the plaintiff, did not get him, Elisha Galloway would,” and witness accordingly repeated the above message to his father, who about two or three weeks afterwards went to the house of the defendant, who in the presence of his wife made, the same statement in substance as herein just before stated.. The plaintiff further to support the issue on his part, offered in evidence a bill of sale from the said Mary Hare to Sarah Hendricks for negro Cass and her children Rachel and Luce, dated the 15th day of May, 1817, and proved the due execution thereof by the said Mary Hare, and the acknowledgment and recording thereof.
    Whereupon the plaintiff prayed the court to instruct the jury: _
    _ 1. That if they believe from the evidence that Mary Hare had title to the- boy Dick, or not having' title if they believe that Hendricks was his owner, and advised the plaintiff to get him of Mrs. Hare, who accordingly applied to Mrs. Hare, and • obtained from her the bill of sale of the 28lh September, 1825, and that the said bill of sale was duly executed and acknowledged, and the plaintiff obtained possession of the said boy under the same, and peaceably continued therein until October, 1828, at which time the said boy by the direction and with the consent and permission of the plaintiff, went into the service of Mrs. Hare for her life, and continued therein until her death, which happened about the 6th January, 1832, and that the plaintiff about the 20th and 28th of the same month and year, did demand the delivery of the said boy from the defendant, who was in possession of him, and that the defendant refused to deliver him, asserting title in himself, then the' plaintiff is entitled to recover.
    2. That there is no evidence in the cause from which they can infer, that the plaintiff practised any concealment, misrepresentation, or fraud, to induce the said Mary Hare to execute the- bill of sale of. the 28th September, 1825, and that all the evidence offered by the defendant, to impeach the title of the plaintiff under said bill of sale, by showing that although absolute on its face, it was yet designed by the parties, as nothing more than a mortgage or indemnity, is wholly incompetent for that purpose, and cannot be considered by the jury'. .
    
      3. That if they believe the title to the negro boy Dick was in Mary Hare, or if they believe the title not being in her, but in the defendant, and that the defendant advised the plaintiff to obtain the said boy Dick from the said Mary Hare, and that said plaintiff did in accordance with this advice apply to the said Mary, and get from her the bill of sale mentioned in the evidence, then the plaintiff is entitled to recover; although they should find, that it was agreed by the plaintiff and the said Mary Hare, that the said boy should be nothing more than an indemnity to the plaintiff, in the event of any loss by her sustained in the suit then pending against him in Baltimore county court as surety for said Mary Hare ; provided the jury further believed, that the said plaintiff permitted the said boy to be hired out and otherwise employed for the benefit of Mrs. Hare during her life only, and that after her death he did demand the delivery of the said boy, being in the possession of the said defendant, who refused the same, claiming the property in himself.
    4. If the jury believe, that Mrs. Hare did in fact, execute and acknowledge the bill of sale of the 28th September, 1825, and that the possession of the boy was delivered to the plaintiff, that the prima facie title of the plaintiff and his possession there under, cannot be called in question by the defendant, and under the general issue in this suit, by any allegation of fraud practised by the plaintiff on Mrs. Hare in the obtension of the said bill of sale.
    Which prayers being refused by the court, (Purviance, A. J.) the plaintiff excepted.
    4th Exception. — Whereupon the counsel for the defendant prayed, that if the jury shall believe from the evidence, that the boy in question, was in the year 1828, sent by the plaintiff or with his approbation and consent, out of Baltimore county, state of Maryland, into the state of Pennsylvania, to live in the service of Mrs. Hare, at that time a resident of the 'State of Pennsylvania, during the balance of her life ; and that the boy did actually go, and for some time remain in her service ; and if the jury shall further believe that the said boy was afterwards brought back, or sent into the state of Maryland to.reside, that then by the laws of this state, the boy is free, and the plaintiff is not entitled to recover. Which instruction being given by the court, the plaintiff excepted. . ' .
    The verdict and judgment being against the plaintiff, he prayed an appeal' to this court.
    The cause was argued before Stephen, Archer, Dorsey, and Chambees, Judges.
    R. Johnson, for the appellant,
    abandoned the first and second exceptions.
    Under the third exception he insisted, that each- of the four prayers offered by the plaintiff, were erroneously rejected in part, or in the whole.
    1. Because upon the hypothesis of fact, stated in the first prayer, of- which there was evidence before the jury, it was not competent for defendant to impeach the validity of the bill of sale, under which the plaintiff claimed.'
    
      2. Because, as assumed in the second prayer, there was no evidence to impeach the said bill of sale, on the ground of mistake or.fraud.
    3. That under the facts assumed by the third prayer, the plaintiff’s title was a good one, as against the defendant.
    4. That the bill of sale being executed, and the slave delivered in pursuance of it, the title was a good one as against the defendant.
    Upon the fourth exception, he insisted that under the circumstances of the case, it was not in the power of the defendant to avail, himself of the importation into the state of the slave in controversy, upon the hypothesis stated in the defendant’s prayer.
    This assumes that the plaintiff once had property in the negro, arid it is predicated on all the evidence in the cause. It finds' the defendant claiming title to the negro, and presents two contending parties, one demanding the slave by his action, and the other claiming to retain him. The defendant failing to show title sets up the freedom of the negro, yielding up his own right. But freedom cannot be tried in this collateral way. The negro must assert that right, which he has not done. The prayer does not assume, that the plaintiff brought the negro back from Pennsylvania, nor that he was brought back to reside, or for sale. The Pennsylvania law is not before the court, and there is nothing which forbids a Maryland master, from sending his slave to Pennsylvania, and taking him elsewhere. The plaintiff did not bring the negro back, and if sent here by a stranger, it does not produce his freedom. Under our laws, the effect of the residence in Pennsylvania, is not before the court, and it is the importation into Maryland, which gives freedom here. The carrying out, and the importation must be voluntary, and by one of full age, and the master must assent to it.
    If there is error in any one instruction, material to the plaintiff’s right, there must be a procedendo.
   Dorsey, Judge,

delivered the opinion of the court.

The objections raised in the two first exceptions taken by the plaintiff were rightly sustained, according to the principles settled in the case of Flack vs. Green, 3 Gill and John. 474.

The next inquiry is, did the county court' err in rejecting the plaintiff’s four prayers in the second bill of exceptions. The propriety of granting the three first prayers depends entirely upon the question, whether there was evidence in the cause legally sufficient to have been left to the jury to find the fact; that the bill of sale from Mary Hare was fraudulently obtained by the plaintiff. There is no evidence other than the bill of sale itself; that any consideration was paid by the plaintiff to Mary Hare ; or that they stood in any relation to each other, which rendered it probable that such a bill of sale would have been executed, but upon full and adequate consideration; nor is it in proof, that the bill of sale was ever read, or its import communicated or explained to Mary Hare. It is in evidence that she could neither write, nor read writing; - that by the agreement of the parties the instrument to haye been executed was not an absolute bill of-sale, but was intended to secure the plaintiff from loss by reason of his seeurityship for Mary Hare ; that' he acknowledged the negro was not his property but belonged to the defendant, (who married Mary Hare’s daughter,) as part of his wife’s estate '; that he held the negro in question as security for a liability which was nearly or'quite extinguished; that after obtaining the bill of sale and possession of the negro, and after his liabilities' were discharged, he suffered the negro slave to go to Mrs. Hare, in Pennsylvania, and remain with her or in her service more than three years, and until the time of her death; and that when asked if he were not, afraid he would lose his slave by reason of the emancipation laws of Pennsylvania, he replied, that he had the boy as a surety, and that he believed the money was nearly paid up. Whether these facts are sufficient in point of fact-to prove that this bill of sale was'fraudulently obtained,.it is the exclusive province of the jury to determine; but that, they are legally sufficient to be left to the jury to be by them considered, in determining the question, we entertain no doubt. As the fourth prayer which we are - called upon to decide is made upon the concession that the bill of sale was obtained by actual fraud practised by the plaintiff, we have only to say that the instrument' in question being at law of no validity, we can see ho reason why the defendant may not rely upon its invalidity in bar to the plaintiff’s action.

In the last exception the prayer on. the part of the defendant would have been rightly granted had it called on the jury to find one additional fact, viz : That the bringing of thé negro back into, the state of Maryland to reside, was the act of the plaintiff,- or was done by his authority, or with his approbation." In granting the prayer, the county court have in effect said, that if the bringing the slave to Maryland to reside was the act of a stranger without the authority or approbation of the plaintiff still the slave is entitled to his freedom. Súch. a decisión is neither conformable to the letter or spirit of the act of assembly, which after prohibiting the bringing or importing into this state any slave for sale or to reside, provides that, any person brought into this state as a slave, contrary to this act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this state, and shall be free. We concur with the county court in sustaining defendant’s objections to testimony taken in the first and second exceptions; and in all their refusals to grant the prayers made on behalf of the plaintiff, but dissent from the instruction given to the jury at the instance of the defendant’s counsel as stated in the third exception, and therefore reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.  