Unis et al. v. Charlton's Administrator et al. (1855)
Virginia:
Pleas at the courthouse of Rockbridge County before the Judge of the Circuit Superior Court of Law and Chancery for said County on Saturday the 18th day of April 1846 and in the 70th year of the Commonwealth.
Be it remembered that heretofore, to wit, on the 6th day of July in the year eighteen hundred and twenty six, a suit was instituted in the late Superior Court of Law for Montgomery County by
Rhoda Ann a pauper,
Plaintiff
against
William Currin,
Defendant
In Trespass, Assault & Battery & false imprisonment
Also on the same day a suit was instituted by
Randall a pauper,
Plaintiff
against
John Swope,
Defendant
In Trespass, Assault & Battery & false imprisonment
Also on the same day a suit was instituted by
Phillis, William, Helen, Mary, Tarlton, Matilda, Flora & James,
Plaintiffs
against
John McC. Taylor administrator of James Charlton deceased, John L. Charlton, William B. Charlton, William Currin and Rhoda his wife, Joseph Miller & Matilda his wife, Cyrus V. L. Robinson and Lucidna his wife, William Saunders and Juliet his wife, Micajah Thompson, Charlton Thompson, Lucinda Thomason, Elizabeth Thompson, Matilda Thompson, Evalina Thompson & Ellinda Thompson children of Nancy Thompson late Nancy Charlton, Charles Charlton and Elizabeth Charlton,
Defendants
In Trespass, Assault & Battery and false imprisonment
And also on the 12th day of October 1827 a suit was instituted by
Unis, Andrew, Reubin, Cena and Julius paupers
Plaintiffs
against
John McC. Taylor administrator of James Charlton deceased, John L. Charlton, William B. Charlton, Charles Charlton, William Currin and Rhoda his wife, Joseph Miller & Matilda his wife, Cyrus V. Robinson & Lucinda his wife, William W. Saunders and Juliet his wife, Elizabeth Charlton, Micajah Thompson, Elizabeth Thompson, Matilda Thompson, Eveline Thompson, and Ellinda Thompson children of Nancy Thompson late Nancy Charlton heirs at law of James Charlton deceased,
Defendants
In Trespass, Assault & Battery and false imprisonment
The venue in which suits, after issues were made up, were successively changed to the late Superior Court of Law for Giles County on the 19th day of September 1829.
To the Circuit Superior Court of Law and Chancery for Smyth County on the 13th day of October 1832.
To the Circuit Superior Court of Law and Chancery for Roanoke County on the 5th day of May 1840.
And to the Circuit Superior Court of Law and Chancery for Rockbridge County in the 29th day of March 1843.
And at a Circuit Superior Court of Law and Chancery continued by adjournment and held for Rockbridge County at the Courthouse in Saturday the 18th day of April 1846, the day and year first herein before mentioned.
Unis, Andrew, Reuben, Cena & Julius paupers, Plaintiffs
against
John McC. Taylor administrator of James Charlton decd, John L. Charlton, William B. Charlton, Charles Charlton, William Currin and Rhoda his wife, Joseph Miller and Matilda his wife, Cyrus V. Robinson and Lucinda his wife and Elizabeth,
Defendants
. . .
Phillis, William, Helen, Mary, Tarlton, Matilda, Flora & James paupers, Plaintiffs
against
John McC. Taylor administrator of James Charlton decd, John L. Charlton, William B. Charlton, William Currin & Rhoda his wife, Joseph Miller & Matilda his wife, Cyrus V. L. Robertson & Lucinda his wife, William Sanders & Juliet his wife, Micajah Thompson, Charlton Thompson, Lucinda Thompson, Elizabeth Thompson, Matilda Thompson, Evaline Thompson & Ellinda Thompson children of Nancy Thompson late Nancy Charlton, Charles Charlton and Elizabeth Charlton, Defts.
. . .
Rhoda Ann a pauper, Plaintiff
against
James C. Currin surviving administrator of William Currin deceased, Defendant
. . .
Randall a pauper, Plaintiff
against
John Swope, Defendant
In Trespass, Assault & Battery & false imprisonment
This day came again the parties by their attorneys and the Jury sworn on Wednesday last for the trial of the issue in this cause, appeared in Court according to their adjournment and having fully heard the evidence, upon their oath do say, that the Plaintiff is free and not a slave, as by replying he hath alleged, and that the Defendant is guilty, as in the declaration is supposed and they do assess the Plaintiff's damages by the occasion in the declaration mentioned to one cent besides his costs. Therefore it is considered by the Court that the Plaintiff recover his freedom, and also that he recover against the Defendant his damages assessed as aforesaid, and his costs by him about his suit in this behalf expended. And the said Defendant may be taken &c. . . .
Memorandum. On the trial of the foregoing causes (all of them being tried, by consent, by one Jury) the Plaintiffs in support of the issues joined introduced the Deposition of John Lawrence, in the words and figures following, to wit, taken 3rd November 1834.
Question by Plaintiff. If you know any thing of Unis & her mother, state what
Answer. As nearly as I can recollect, about fifty years ago last September, James Simpkins came to my father in the State of New York as a stranger with a waggon and some dressed deer skins, to move James Stephens' family to the State of Virginia. While he was there, he, James Simpkins, bought three negroes of Jacob Lawrence, and hired me to fetch the three negroes, so bought, from Jacob Lawrence's, and when he bought them, he did not know how to get them from a place called the Nine Partners, to Paulings Precinct, where my father lived. He hired me to fetch the negroes, and he paid me and I went to fetch them.
Question by same. What were the names of these three negroes?
Answer. Flora was the mother, and Sena was the oldish girl, and Unis was about four months old.
Question by same. When and where did you next see these negroes?
Answer. Jacob Lawrence told me, when I went for the negroes, that I was going on a particular business. He said they were free negroes, but he did not know it when he bought them, and that I wanted my money back again, and I have sold my negroes to James Simpkins. He told me I must meet him the next day. Jacob Lawrence told me if the negroes got away, he would look to me for the money. Why, says I, uncle Jacob? Because, says he, the negroes say if they can get into New England, they are free, and says he, do you take these negroes to James Simpkins, and deliver them up to him as his property, and I did so, and took his receipt for them, and about two weeks after that, they started, and I followed them about a days journey, and saw nothing of the man called James Stephens. And the next summer following, I saw them in possession of James Charlton, on Meadow Creek in Montgomery.
Question by same. Are Unis and Sena the same who now have suits for their freedom against James Charlton's admr?
Answer. They are the same.
Question by same. In what year did they leave the State of New York?
Answer. Fifty years, last September, they left there.
Question by same. Did you see Jacob Lawrence and James Simpkins together, about the time of this transaction?
Answer. I did.
Question by same. What happened between them?
Answer. Nothing, but Simpkins bought the negroes and got me to go and fetch them.
Question by same. Was there any thing paid by Simpkins for the negroes?
Answer. He paid dress deer skins, and cut money. . . .
Question by same. Did you hear James Simpkins say for whom he purchased these negroes?
Answer. Yes. He told me he purchased them for himself as he could make money by them.
Question by same. When did you remove to this county?
Answer. I came here the spring following.
Question by same. Did you become acquainted with James Stephens shortly after your arrival in this county?
Answer. I did.
Question by same. What were his circumstances?
Answer. Very low.
Question by same. Did you know him before he left the State of New York, and if so, under what circumstances did he leave there?
Answer. I did. His circumstances was very low. He married my oldest sister. He left there some time after dark. My mother filled his napsack with bread and meat. He left there to get clear of debt, and when he left there, his family had nothing to live on, upon earth.
Question by same. When you came here, what were James Simpkins circumstances?
Answer. Very noble. He had several plantations on Meadow Creek.
Question by same. What amount was paid for these negroes?
Answer. Forty pounds.
Question by same. How long before James Simpkins purchased the negroes, as above stated, did James Stevens leave his family in the manner you have stated?
Answer. The spring before.
Question by same. Did you over hear James Charlton say from he purchased the said negroes?
Answer. Yes, from James Simpkins. . . .
Question by same. Did James Simpkins tell you to whom he sold the negroes?
Answer. He told me, over and often, to James Charlton.
Question by same. How far did you live from James Simpkins at that time?
Answer. About two hundred yards.
Question by Defendant. Who was present when James Simpkins paid the cut money and deer skins to Jacob Lawrence?
Answer. They went to Mabbit's store to weigh the cut money, and Jim Mabbit, Joe Mabbit and Sam Mabbit store-keepers, and a good many besides.
Signed John Lawrence
his x mark
The Deposition of Thomas Lawrence (in the words and figures following, to wit:) taken 4th November 1834.
Question by the Plaintiff's attorney: What do you know of Unis and her claim to freedom?
Answer. About fifty years ago, James Simpkins came to New York in company with James Stephens. They had along with them a waggon and four horses with some dress deer skins. Simpkins and myself went out to see the deer skins, we sold the skins about through the country. While selling the skins, we happened at Jacob Lawrence's, where Flora, Unis, the Plaintiff and Cerra the Plaintiff in another case, were: and Jacob Lawrence said he would sell him the said negroes and take the deer skins. They made a bargain, and Simpkins was to give so much for the negroes, but I do not recollect how much. Jacob Lawrence was to come to my father's John Lawrence house, where the deer skins was and close the bargain by taking the skins. He came down and wanted to be off the bargain, as his wife was unwilling the negroes should go. Simpkins let him off from the bargain. In a short time afterwards Jacob Lawrence came to my father's again, where Simpkins and myself and others were, and said his wife was willing to let them be sold, when Simpkins and Lawrence concluded the bargain for the negroes. I do not know what sum was given. Hew as to let him have what skins was then on hands, and the balance was to be paid in money. I did not see the money paid. The was in a hurry to start this country, and got my brother John to go after the negroes and meet them at Mabbits where the money was to be weighed, being cut money, and paid (I ought to have stated, that when Simpkins came there and commence selling the skins, he said he was acting as an agent for James Stephens in selling the skins.) James Stephens being very much in debt, dare not be seen there, having left there the March before between two days, leaving his wife and family behind upon the County of her friends. John Lawrence brought the negroes to my father's, where Stephen's family was, and James Simpkins. James Stephens himself was not there often, and when he was, it was at night. The negroes remained at my father's several days before the party started to Virginia, with the negroes. Robert Simpkins family, Stephen's family and the negroes started together. The negroes and Stephens family were in the waggon which Simpkins drove to New York, and was called Simpkins waggon. James Simpkins fed the horses while there, and I thought the waggon and horses were Simpkins' until a day or two before they started, when Stephens told me the waggon and two horses belonged to Samuel Langdon, and the other two horses belonged to James Simpkins. I do not know who was driving the waggon when they left my father's. I know that Stephens was not, nor was he at my father's on the day they started. . . .
Question by same. Did you ever hear James Charlton say who he bought the negroes off?
Answer. Yes. He said he bought them of James Simpkins.
Question by same. When did you come to Virginia, and in whose possession did you find the negroes when you arrived?
Answer. I came the July after Robert Simpkins, Stephens family and the negroes came, and I found the negroes in the possession of James Charlton, on Meadow Creek in Montgomery County.
Question by same. Did you ever hear James Simpkins say to whom he sold the negroes?
Answer. I hear James Simpkins say that he sold James Charlton the two youngest, Cena & Unis.
Question by same. Where was James Stephens living when you came to Virginia, and what was his circumstances?
Answer. He was living on the South Fork of Roanoke on a plantation he had rented from John Barnet, and had a small field in corn.
Question by same. do you know, or not know of any thing of any paper writing having been pass between the contracting parties in New York? (The Defendant by his counsel objected to this question being answered unless the writing was produced.)
Answer. There was a paper passed from Jacob Lawrence to James Simpkins, after the bargain was concluded between them, and the wife had given her consent.
Question. What was the character of this paper writing?
Answer. I took it to be a Bill of Sale, and was a subscribing witness to it. It bound Jacob Lawrence and his heirs to support the title of the negroes, to James Simpkins and his heirs.
Question by same. Do you know what has become of the Bill of sale?
Answer. I do not.
Question by same. Did or did not James Simpkins tell you all about this affair either in the State of New York or shortly after your arrival in the State of Virginia?
Answer. I have said what he told me. I do not recollect of his telling me any thing else, about this affair.
Question by same. Did James Simpkins ever say any thing to you about the solvency or insolvency of Jacob Lawrence, and if any thing, what?
Answer. Since this suit was instituted, and the [unclear] of the negroes obtaining their freedom got abroad, and that James Simpkins would be ruined thereby. I think he enquired of me about the solvency of Jacob Lawrence. He might, or he might not, I cannot be positive.
Question by Defendant. Did, or did not James Simpkins tell you that he was acting as the agent of James Stephens in the purchase of the negroes?
Answer. I cannot say positively that he did, but he told me he was the agent in selling the skins.
Question by Plff's Counsel. When and where did you last see the Bill of sale?
Answer. About three years ago I saw it in the possession of James Simpkins. His wife shewed it to me. It was written by my father, and witnessed by him, James Stephens and myself.
Question by Defendant. Did, or did you not state to some person since the trial at Giles Court House that the Bill of sale referred to above, was executed to James Simpkins as the agent of James Stephens?
Answer. I do not know whether I did or not.
Signed Thos. Lawrence
Two depositions of Elijah Mecham (in the words and figures following, to wit:) taken 4th October 1832
I knew old Flora the mother of the Plaintiffs in Connecticut in the year 1778, and in which year for the last time I saw her there. The next time I saw her, she was at squire James Charlton's in Montgomery County, which was one year before the birth of Robert Craig now present, and I believe it to be forty one years ago. As to their freedom I know except by hearsay, that in a conversation I had with James Charlton about one year after I came to this country, believed to be forty years ago, about the freedom of Flora. James Charlton said if she obtained her freedom, it would not hurt him so bad, but it would ruin James Simpkins, and he did not want to do that. This conversation took place at Christiansburg, about one year after I came to this country.
Question by John McC. Taylor admr Defendant. Did you ever tell Flora that she was entitled to her freedom by the laws of the State of Connecticut?
Answer. I did not.
Signed Elija Meacham
2nd Deposition of Elijah Meacham, taken 4th November 1834.
Question by Plaintiff's Counsel. What do you know about Unis & Cena, paupers, who are suing for their freedom?
Answer. I knew old Flora who was reputed to be the mother of Unis & Cena in Hartford County in the State of Connecticut. She was then owned by one Benjamin Scott. The next time I saw her, was about the _ of 1791 in the possession of James Charlton, on Meadow Creek in the County of Montgomery. On a certain occasion I was at James Charlton's where he saw Flora the mother of the Plaintiffs, tied to the bedpost. I told him I heard that he was a going to send the negroes away. He said no that he never had talked of running them, but James Simpkins said he would them to Hell before they should get their freedom. James Charlton said the damn old bitch had been to Ezekiel Howard Esq. to get a warrant for her freedom, that Howard did not grant it, and he hoped no magistrate ever would.
Signed Elijah Meacham
Two Depositions of Henry Carty (in the words and figures following, to wit:) taken 4th October 1832.
I know nothing of the negro's freedom of my own knowledge, only by report. I have always understood from James Charlton the late [over] of the negroes, that he purchased them from James Simpkins, about forty five years ago or more. Once I and James Charlton conversing about the old negro Flora the mother of the Plaintiffs going to Howard's the Justice of the peace for a warrant for her freedom, and he James Charlton said that if ever she went there again or that errant he would correct her for it.
Question by the Plaintiff's attorney. Did you ever hear old Flora say any thing about her freedom?
Answer. yes, I did. She told me at different times that if she had her just rights, she would be a free woman. she also wanted me to write her a letter (at the same that she made the declaration) to send back where she came from to obtain information from the people there concerning her freedom. I refused to write her a letter.
Question by same. Do you know that Flora ever attempted to apply to a magistrate concerning her freedom?
Answer. Squire Howard, who is dead, told me that she had applied to him.
Question by same. Were you well acquainted with said James Charlton, and was he, or was he not, a man of a rigid and severe temper, and likely to keep his slaves in subjection?
Answer. I was well acquainted with him, and I considered him a man of sever temper, and likely to keep his slaves in subjection.
Signed H. Carty
Second Deposition of Henry Carty, taken 12th December 1840.
Question by the Plaintiff Andrew. How long was my Grandmother (Flora) in the possession of James Charlton before you heard of her claiming to be free?
Answer. In less than two years after she came into the possession of James Charlton, she stated that she had been made a slave in this country, and requested me to write back to her former place of residence, and ascertain whether she was not entitled to her freedom.
Question. Did you ever hear him say from whom he purchased Flora and her children?
Answer. I always understood him that he purchased them from James Simpkins.
Question. Did you ever hear that he had purchased Flora from Samuel Langdon?
Answer. I did hear so some time afterwards, but not from Charlton himself.
Signed H. Carty
And two Depositions of Francis Charlton (in the words and figures following, to wit:) taken 8th July 1835.
Question by Plaintiff's Counsel. Where did you reside at the time your brother James Charlton decd purchased old Flora and her two children Unis & Cena?
Answer. About three quarters of a mile.
Question by same. From whom did he purchase?
Answer. I was not present when he purchased, but when he was bringing them home he told me that he had bought Unis & Cena from James Simpkins. The negroes were with him, and has always to this day understood he got them from James Simpkins. As to Flora, I always understood my brother to say that he bought her of Samuel Langdon. . . .
Question by same. Did you know James Stephens, who it is said, came to this country from the North with James Simpkins, and lived on Roanoke?
Answer. I knew him.
Question by same. What were his circumstances while he lived in this country?
Answer. I understood he was a very poor man, and left this country very poor.
Question by same. Do you know whose waggon and team moved James Stephens family to this Country?
Answer. I do no know of my own knowledge, who the waggon and team belonged to. It was whispered about that they belonged to Simpkins and Langdon, James Simpkins and Samuel Langdon trafficked together in those days.
Question by same. Did you know a horse called the Jack of Diamonds and whom did he belong to?
Answer. I knew the horse well. I don't know certainly whether he belonged to Simpkins or Langdon, but I believe he belonged to Langdon. I lived at that time about three quarters of a mile from James Simpkins.
x Question by same. How long after the negroes was brought into this country, before you seen them in the possession of James Charlton?
Answer. A short time, not more than a week or two to the best of my recollection, and maybe sooner.
Signed Francis Charlton
FC
This Deposition is excepted to, because the Deponent states facts not on his knowledge, but hearsay. Vide Question marked x.
Second Deposition of Francis Charlton. taken 12th Decr 1840.
Question by the Plaintiff. How long had Simpkins possession of my Grandmother Flora, before she was transferred to the possession of James Charlton decd?
Answer. I do not know. I never saw her in possession of Simpkins.
Question. Did you ever hear your brother James Charlton say that he had purchased Flora and her children of Simpkins?
Answer. I think he told me that he had bought the children of Simpkins, but the woman (Flora) of Saml Langdon.
Signed Francis Charlton
FC
The said Depositions having been taken by consent to be read in all of the said causes, and offered to read the Depositions of Sally Coit, Subal Stiles, Jeremiah Nelson, Sarah Nelson and Silvester Graham hereinafter inserted. The reading of which depositions, the Defendants objected to for reasons set out in exceptions thereon endorsed. And the Court having sustained the exception for want of sufficient notice, the Defendants waived that exception. When the Court overruled the first exception, and by consent of the parties, the Court taking time to consider of the 2nd exception, it was agreed that, the Defendants might proceed with their testimony, and that the Plaintiffs might offer the aforesaid Deposition, after the Defendants should get through their testimony. Whereupon the Defendants, to support the issues joined on their part, introduced the Depositions of Massa Simpkins in the words and figures following to wit: taken 16th April 1828.
That about 44 or 45 years ago, she, with her husband and family, removed from the State of New York, and settled on Meadow Creek in Montgomery County, Virginia, where she has lived ever since, and James Stephens and his family came in company, consisting of himself, his wife and children, and a negro woman named Flora and her two children, one of them named Seine and the other at that time was named Rose, and afterwards called Unis.
Question by Defendant Charlton. You state that there was in company a negro woman and two children. Whose property were they?
Answer. The negroes were bought for said Stevens, and paid for with the property, and were brought by said Stevens, to her father's house, and remained there until we started to this Country and said Stevens' family and ours travelled together until we came to this country on Roanoke, where we separated. . . .
Question by same. Did you ever hear, before you left New York, that the negro woman Flora above named was a free woman, or had any claim to freedom whatever?
Answer. I never did. I frequently heard her say, whilst we travelled together, that she had no objection to her master selling her, provided he would sell her in the neighbourhood amongst her acquaintances.
Signed Massa Simpkins
her x mark
of James Simpkins (in the words and figures following to wit) taken 3rd December 1833.
That about 45 or 46 or 47 years ago, the deponent went from the County of Montgomery to Martinsburg in Virginia with a small lot of cattle, probably about 17. That on Roanoke in Montgomery, he fell in with James Stephens, and they went on together to Martinsburg, where the deponent sold his stock, and from thence they went on together to New York, about 20 miles from a place called the Nine Partners. The said Stephens had a quantity of dressed deer skins, and some not dressed. The said Stephens requested the deponent and Thomas Lawrence to go out and try and sell them, and buy for him some young negroes. They went to the place called the Nine Partners, and there a certain Jacob Lawrence offered them a negro woman and two children, in the event that the woman was willing to go. The deponent spoke to the woman, who refused to go. The deponent and Thomas returned to Elder Lawrence's, without purchasing. In a few days, Jacob Lawrence came to the deponent, and told him the negro had consented to go. James Stephens was then at Elder Lawrence's and they, Jacob Lawrence and Stephens, went on with the bargain. Thomas Lawrence was present. The deponent thinks that John Lawrence's father sent him after the negroes; he knows that John Lawrence went after them. John was likewise to take Jacob Lawrence's two horse wagon to bring the negroes in. Jacob Lawrence took Elder Lawrence's wagon on the day after the trade, and went to meet John Lawrence, who was to return in it, and he, Jacob, to return home in his own wagon. The deponent states that a Bill of Sale was executed. But as he was no scholar, he did not know its contents, or to whom it was given. When the payment for the negroes was made, Stephens fell short in the purchase money, and the deponent lent him some cut money to make out the amount. The money was paid after night, but the deponent saw the money paid. The deponent and his brother Robert Simpkins and family, and Stephens and family, left New York for Virginia, and travelled on as far as Martinsburg, where Stephens and Robert Simpkins stopped their wagons for some hours. The deponent staid with them, and boarded with his brother Robert while on the way, until they came to Winchester, where the deponent left the wagon and returned home alone to Meadow Creek. The negroes were with Stephens, and their expenses paid by him, and they were moved in his wagon. The deponent after he had been at home some days, returned to meet them, and went to James River, where he met them. Stephens and the negroes stopped on Roanoke in Montgomery, and the rest of the party came on to Meadow Creek. The negro was named Flora. One child was called Caena, and the youngest was called Rose, and is the negro woman now called Unis, as the deponent believes. The deponent had no interest either direct or indirect in the said slaves, before they were removed to Virginia.
Cross-examined by Plaintiff's Counsel . . .
Question the same. Did you purchase the negro for Stephens, or did Stephens make the bargain himself with Jacob Lawrence?
Answer. Stephens made the bargain himself, and made the payment himself; and I stopped trading for her as his agent, when the negro refused to come as above stated. . . .
Question by same. Did you sell to Squire Charlton either Flora, Caena or Unis, and execute a Bill of Sale to him for the same?
Answer. No, never to my knowledge.
Question by same. Did you ever own either Flora, Caena or Unis?
Answer. No, I never did. . . .
Question by same. Did you ever have a Bill of Sale for the three negroes executed to you by Jacob Lawrence, and in your name?
Answer. No, not that I recollect of. If there was such a writing, I have forgotten it.
Question by same. How long after your first trip to New York was it before Squire Charlton had the negroes in his possession, and how far did you then live from Squire Charlton?
Answer. I lived about two miles from Squire Charlton at that time. I do not recollect how long it was before I saw them in his possession, after my first return.
Signed James Simpkins
William Stephens (in the words and figures following, to wit) taken 30th August 1830.
1st Question by Defendants' Agent. Are you the son of James Stephens, formerly of the State of New York, and afterwards of the County of Montgomery & State of Virginia?
Answer. I am the son of James Stephens, formerly of New York, and afterwards of Botetourt County, which I understand now forms a part of the County of Montgomery, Va.
Question by same. At what time did your father remove from the State of New York to the State of Virginia?
Answer. Forty six years this ensuing fall. I think in September.
Question by same. State whether or not your father, at the time he removed to Virginia, brought with a negro woman named Flor, and her two children Cena & Unis?
Answer. Yes.
Question by same. Do you, or do you not know, that the above named Flora, and her two children, were the property of your father James Stephens?
Answer. This much I know. My father purchased them in New York just before his removal to Virginia.
Question by same. In whose wagon were the said negroes removed, and at whose expense?
Answer. The wagon in which the said negroes were removed, was hired by my father, and their removal was at his expense.
Question by same. Where was the first place your father settled at in the County of Montgomery, and how long did he remain at said place?
Answer. The first year, he rented land on the Roanoke River, in the upper part of what then formed a part of the County of Botetourt, from one John Barnett. The next year, he removed about four or five miles, on a branch of Elliott's Creek, at which last place, he remained about four years. . . .
Question by same. Were you, or were you not, present when the purchase money was paid for said Flora and her two children? If you were, state what kind of money was paid for them, and by whom paid?
Answer. I was present. A part of the money was cut money. I noticed it more particularly on that account, it being the first cut money I had ever seen. The money was paid by my father.
Question by same. Who drove your father's wagon from the residence of John Lawrence in the State of New York, to the North River?
Answer. At the start, I think James Simpkins drove till the horses got better broke. After that, sometimes my father, sometimes my oldest brother, and sometimes I drove myself. The waggon we hired from Samuel Langdon. James Simpkins did not own the waggon.
Signed William Stevens
And of Thomas Stephens (in the words and figures following, to wit) taken 20th August 1830
Question by Defendant's agent. Are you the son of James Stevens, formerly of the State of New York, and afterwards of the County of Montgomery, in the State of Virginia?
Answer. I am.
Question by same. At what time did your father remove from the State of New York to the State of Virginia?
Answer. I was born in 1778. I think I was about six years old when he removed.
Question by same. State whether or not your father, at the time he removed to Virginia, brought with him a negro woman named Flora, and her two children Cena & Unis?
Answer. I recollect he brought Flora and her two children, the name of the oldest was Cena, the youngest I do not recollect the name of, nor do I recollect whether the youngest was a girl or boy.
Question by same. Do you, or do you not know that the above named Flora, and her two children were the property of your father James Stephens?
Answer. That was the understanding that I had. They were called his. I knew of no other claim to them.
Question by same. In whose waggon were the said negroes removed, and at whose expense?
Answer. They were removed, as I understood, in my father's waggon, and at his expense.
Question by same. Where was the first place your father settled at in the County of Montgomery, and how long did he remain at said place?
Answer. He settled at Roanoke river, in what was then called Botetourt County. He made his first crop on John Barnett's place, at the mouth of Elliott's Creek. He then moved up Elliott's Creek a few miles, and remained four or five years, as near as I can recollect. . . .
Question by same. To whom did your father sell the above named slaves, after he came to Virginia?
Answer. I do not know, only as I understood that he sold them to Samuel Langdon. . . .
Question by same. Were you, or were you not, present when the purchase money was paid for said Flora, and her two children? If you were, state what kind of money was paid, and by whom paid?
Answer. I was not present. I do not know what kind of money was paid for them. . . .
Signed Thomas Stevens
his x mark
And they introduced as evidence, to contradict and invalidate the evidence of Elijah Mecham, which had been introduced by the Plaintiffs, his affidavit, in the words and figures following it wit.
Montgomery, to wit:
This day Elijah Metchum came before me, a Justice of the peace for the county aforesaid, and made oath that he was acquainted with a woman of colour in the State of Connecticut, by the name of Flora. That he first became acquainted with her about the year of 1775. That she then belonged tot one Benjamin Scott. That some time afterwards, the year he does not recollect, the Legislature of the State of Connecticut, passed a law giving freedom to all the slaves of the said State. That some time after the passage of this act, the said Benjamin Scott permitted the said Flora, to enjoy her freedom, and to go at large and hire herself out, as he has been informed by several of the neighbours of said Scott, the persons who informed him, he does not know whether they are alive, it having been near forty years since he saw them. That upwards of forty years ago the said Flora disappeared from the neighbourhood of the said Scott, and it was generally reported and believed in the said neighbourhood, that she was seen off by Oliver Henchet and David Burnson in order to make a slave of her. That something upwards of thirty years ago (as well as he can recollect) he saw the said Flora in the possession of James Charlton (the elder) in the County of Montgomery, and that he well knew her to be the same he had seen in the possession of the said Benjamin Scott, in the State of Connecticut and that he has always understood that Unis, Searry and Philis were the children of the said Flora. And that he has lived in the County of Montgomery in about seven or eight miles of the said James Charlton for about thirty years.
Given under my hand this 11th day of April 1826.
Hamelton Wade
. . .
And the Plaintiffs then offered to introduce the aforesaid depositions of Sally Coit, in the words and figures following, to wit: (taken 4th Nov 1845)
"Question by Mr. Cowles in behalf of the Plffs. Did you ever know a negro woman by the name of Flora?
Answer. Yes.
Question by same. How long since you knew her?
Answer. I can't tell precisely, some sixty five or sixty six years ago.
Question by same. Where did she live?
Answer. She lived at Southwick, in the County of Hampden aforesaid.
Question by same. Was she married at the time she lived in sd Southwick?
Answer. She was.
Question by same. Do you know where she was married and when?
Answer. She was married sixty five or sixty six years ago in Suffield, Connecticut.
Question by same. To whom was the said Flora married?
Answer. To a colored man by the name of Exeter.
Question by same. Did they remove to Southwick soon after their marriage?
Answer. They came to Southwick the same night.
Question by same. Was Flora a free woman?
Answer. She was not a free woman before her marriage.
Question by same. Was she free after her marriage?
Answer. She was.
Question by same. Were there any slaves in Massachusetts at that time?
Answer. There were not.
Question by same. Did her master in Connecticut oppose her coming to the State of Massachusetts?
Answer. I do not know.
Question by same. How long did she live at Southwick?
Answer. I can't say definitely. Perhaps ten or eleven months.
Question by same. Where did she go after leaving Southwick?
Answer. She was carried to Connecticut as was said by Oliver Hanchett.
Question by same. Did you ever see her after the sd Hanchett carried her away?
Answer. I never saw her afterwards.
Question by same. Is the sd Exeter now living?
Answer. No.
Question by same. Did the sd Exeter remain at Southwick, after the sd Flora was carried away?
Answer. Yes.
Question by same. What is your age?
Answer. I shall be seventy five if I live till January next.
Question by same. How old were you when Hanchett carried away Flora?
Answer. I was twelve or thirteen.
Question by Mr. Hartwell, counsel to Dfts. How far did you live from the master of Flora?
Answer. Three miles.
Question by same. Did you see Flora more than once at her master's?
Answer. Only once.
Question by same. Was Flora free or a slave?
Answer. She was a slave before she was married.
Question by same. How long was you acquainted with Flora?
Answer. I was not personally acquainted with her more than a year.
Question by same. You state that Flora lived in Southwick about eight or ten months. Were you acquainted with her during all that time?
Answer. Yes.
Question by same. Did you see her often while in Southwick?
Answer. Frequently.
Question by same. What was the complexion of Flora?
Answer. She was pretty dark.
Question by same. What was her size?
Answer. About middling size.
Question by same. Had she any children, and how many, if any?
Answer. She had three.
Question by sam. Were they boys or girls?
Answer. One girl and two boys.
Question by same. What were their ages at the time she was sd to have left?
Answer. The girl was not a year old, the boys were older, how old I can't say.
Question by same. Who was the owner of Flora?
Answer. Mr. Scott.
Question by same. How long before her marriage did you see her for the first time?
Answer. Seven or eight years.
Question by same. Did you see her more than once before her marriage?
Answer. I did not.
Question by same. How do you know Flora was free?
Answer. By coming into this State she became free.
Question by same. Did you not state in a former deposition, that you was not acquainted with Flora more than two months?
Answer. I guess not.
Question by same. What were the ages of her two boys, according to yr best recollection?
Answer. I don't know. I can't tell. I can't guess.
Question by same. How do you know Flora was free?
Answer. By coming into the State. her marriage freed her too I suppose.
Question by Mr. Cowles, Plffs Counsel. Did Scott or any other person ever claim any of the children of Flora as slaves?
Answer. Not to my knowledge.
Question by same. Did Flora visit Suffield, while she resided in Southwick?
Answer. Not to my knowledge.
Question by Dfts Counsel. Do you know anything of yr own knowledge, what became of Flora when she left Southwick?
Answer. I do not.
Question by same. Did you see Flora when she left Southwick, and was sd to have been carried off?
Ans. I did not.
Ques. by Mr. Fourard[?], one of the Justices. How far did you live from Exeter when he and Flora were living together in Southwick?
Ans. Perhaps a quarter of a mile.
Signed Sally Coit."
This Depo. excepted to by Defdts for the same reasons he excepts to the Depo. of Sarah Nelson.
of Shubal Stiles (taken 18th June 1845) in the words and figures following, to wit:
"Question by Mr. Washburn for Pffs. What is your age?
Ans. Eighty two, almost eighty three.
Quest. by same. Did you ever know a Negro woman by the name of Flora?
Ans. I did.
Quest. by same. When and where did you know her?
Ans. I never knew her till she was married to Exeter. I never knew her much after that. it was at Southwick, Massachusetts.
Quest. by same. Was she free or a slave when you knew her?
Ans. She was free according to our laws, and she married
a free man.
Quest. by same. Do you know what became of her?
Ans. I don't know only by common report that Capt. Oliver Hanchett came and stole her away, she and her child. I was not an eyewitness. I was not present.
Quest. by same. State all you know about her?
Ans. All that I know about them, it was said they were married. I suppose they were, they were married. It was in warm weather, I should say in the latter part of June. Curiosity led me as it does boys. I went down to the wedding. Well I went down and looked in. There was a number of Negro women and men there. There was music and dancing among them. I looked into the door a minute or two. I left them then and went home, and from that time they lived in the Hare family until Hanchett carried her away. They had one child born in the time. It was carried away with her I suppose. Well I should say Hanchett carried her away in October. I don't know but the last of September.
Quest. by same. What was the appearance of Flora as complexion and size?
Ans. I can't tell you.
Quest. by same. How old were you when Flora was carried away?
Ans. I was twenty years old.
Quest. by same. How long after Flora's marriage before she was carried away?
Ans. Somewhere about fifteen months.
Quest by same. Did you often see Exeter after Flora was carried away?
Ans. Yes. I see him every day almost.
Quest. by same. How far from you did he reside?
Ans. Short of half a mile more than a quarter.
Ques. by same. Was Hanchett often in Massachusetts afterwards?
Ans. Not knowingly, not to my knowledge. No, I presume not.
Quest. by same. Can you assign any probable reason for his avoiding the State?
Ans. No, I can't unless it was this Negro affair. He never catched the old fox in this State again.
Quest. by same. What can you say of any excitement in the community in relation to the disappearance of Flora?
Ans. The excitement was very strong, very great. Everybody was alarmed about it.
Quest. by same. What was the character of Hanchett?
Ans. Well I don't know. Rather a rough man, called so.
Quest. by same. Was Flora ever claimed by any one as a slave?
Ans. Never to my knowledge.
Quest. by same. Did Exeter ever make any journeys with the view to obtain Flora?
Ans. Yes.
Quest. by same. How many, and in what direction?
Ans. Well I can't tell how many. As I know of, he made two or three. He went into York state. I can't tell where. The next into the Jerseys. New Jersey. He had an idea that Hanchett sold her there, but he never could find her.
Question by Mr. Hartwell for Defts. Who first informed you that your Deposition was wanted to free some slaves in Virginia?
Ans. The Priest in West Suffield, Mr. Sessions. The second time, Mr. Herrenway[?].
Quest. by same. Did he state to you that it was very important that you should give your deposition in this case?
Ans. Yes.
Quest. by same. Did he tell you that your deposition would help free the slaves?
Ans. Yes.
Quest. by same. Are you an abolitionist?
Ans. No.
Quest. by same. Are you anxious that these slaves should be set free?
Ans. Yes.
Quest. by same. Who have you had conversation with on this subject, besides those mentioned?
Ans. Not anybody that I know of in particular.
Quest. by same. Have you not had conversation to day upon this subject with E. S. Taylor one of the Justices?
Ans. No I don't recollect as anything in particular.
Quest. by same. Do you recollect the color of Flora, if so what was it?
Ans. I do not.
Quest. by same. Was Flora's child a boy or girl?
Ans. A girl.
Quest. by same. How old was it at the time Flora was said to have been taken away?
Ans. Well I cannot ascertain.
Quest. by same. Did you see Flora married to Ex?
Ans. No.
Quest. by same. Were any slaves held by law in Massachusetts at the time Flora lived there?
Ans. Not any.
Quest. by Mr. Washburn for Pffs. Did Mr. Sessions tell you what he wished you to swear to?
Ans. I can't recollect anything in particular.
Quest. by same. Has any other person told you what he or she wished you to testify?
Ans. Not any.
Quest. by same. Did you know a Negro boy called Ex?
Ans. Yes.
Quest. by same. Will you state what you know about him?
Ans. Well I can't state anything about him. He was put out and brought up in West Springfield. I have seen him often.
Quest. by Mr. Hartwell for Defts. Had Flora more than one child?
Ans. I believe she had three.
Quest. by same. Were the other two older or younger than the one you have mentioned?
Ans. Older.
Quest. by same. What was their sex?
Ans. Boys.
Quest. by same. How old were they at the time Flora left?
Ans. I can't tell. It's nothing but a guess. I can't tell.
Quest. by same. Well guess then?
Ans. Well I should [guess] the oldest might be ten or a dozen years old.
Quest. by same. How much older should you think Flora than yourself?
Ans. I should think she was fifteen years.
Quest. by same. Was there but one child taken with Flora?
Ans. Not but one.
Quest. by Mr. Taylor one of the Justices. What became of Flora's two oldest children?
Ans. I can't say.
Quest. by Mr. Hartwell for Defts. Was Flora a tall or a short woman?
Ans. I can't tell.
Quest. by same. Was she fleshy or lean?
Ans. I can't say.
Quest. by same. Were her features flat or sharp?
Ans. I can't say anything about her.
Quest. by same. Did you see Flora frequently when she lived near you?
Ans. I did not. I seldom see her.
Quest. by same. Was she never at your house?
Ans. I have no recollection of her ever being there. I presume she never was.
Quest. by same. Did you know her well? Personally?
Ans. I did not.
Quest. by same. Did you ever see her?
Ans. yes, not close by. I see her at a distance.
Quest. by Mr. Washburn for Plffs. Were either of Flora's children ever claimed as slaves?
Ans. Never as I knew of."
The Defdts except to this Depo for same reason they except to Sarah Nelson's & also because witness gives in evidence the hearsay of a Negro.
of Sarah Nelson taken 6th November 1845 in the words and figures following, to wit:
"Question by Mr. Cowles in behalf of the Plffs. What is your age?
Ans. I call myself seventy six years old.
Ques. by the same. Have you ever lived in Suffield, Connecticut?
Ans. I lived there until I was thirty nine years old.
Ques. by the same. How far from Benjamin Scott's?
Ans. About three miles I was brought up.
Ques. by the same. Did you ever know a negro woman named Flora?
Ans. Yes. I used to see her at meeting.
Ques. by same. with whom did she live?
Ans. With Mr. Scott.
Ques. by same. Was she free or a slave?
Ans. She was a slave I suppose.
Ques. Have you heard any report that Scott made her free?
Ans. I have.
Ques. by same. Was it the common report at the time?
Ans. Yes.
Ques. by same. What became of Flora after it was reported she was free?
Ans. She lived in Southwick, she was mysteriously gone and it was said she was carried off and sold by Hanchett and Bronson in New York.
Ques. by the same. At which time was it, it was said she was carried off?
Ans. About the close of the Revolutionary War it appears to me.
Ques. by the same. Was Flora married?
Ans. She had children, but I cannot tell whether she was married.
Ques. by same. Were you acquainted with Ex?
Ans. I have seen him.
Ques by same. Did Flora live in Southwick at the time it was said she was carried away?
Ans. I understood she did.
Questions by Mr. Hartwell in behalf of Deft.
Question. Who first told you that your Deposition would be wanted to free slaves in Virginia?
Ans. Mr. Samuel Ware.
Ques. by same. Was there much said upon the subject by Mr. Ware?
Ans. He had a letter from Suffield he shewed us but do not recollect much was said.
Ques. by same. Can you tell what was wanted in the letter to be proved?
Ans. I understood they wanted to prove that Flora was free. I recollect nothing more.
Ques. by same. How many children had Flora?
Ans. I do not know.
Ques. Do you know from your own knowledge that Flora was made free or carried away by Hanchett & Bronson?
Ans. I do by common report and nothing else.
Signed Sarah Nelson"
Defdts except to this Depo 1st. Because it has no relation to the issue. There is nothing in the cause to identify the Flora spoken of here with the Flora the ancestress of Plffs. 2nd. So far as witness gives hearsay in evidence.
and of Jeremiah Nelson in the words and figures following to wit: (taken 6th Novem 1845)
"Question by Mr. Cowles in behalf of Plffs. What is your age?
Answer. Seventy five years old.
Q. same. Have you ever lived in Suffield, Conn?
Ans. I was born in Suffield and lived there until I was thirty-nine years old.
Ques. by the same. How far from Benjamin Scott's did you live?
Ans. About half a mile.
Ques. by the same. Did you ever know a negro woman there by the name of Flora?
Ans. Yes sir.
Quest. by the same. With whom did she live?
Ans. She lived with Mr. Scott.
Ques. Was she free or a slave?
Ans. I suppose she was a slave.
Ques. Have you ever heard any report that Scott made Flora free?
Ans. It was a common report that Scott had freed Flora.
Ques. What became of Flora?
Ans. I do not know. I suppose she went to Robbins' when free and made Prudence of visit.
Ques. by the same. Do you know where Flora lived at any time after Scott freed her?
Ans. I suppose she went back to Scott's and from there to Mr. Hare's where Ex lived, and they were married.
Ques. by the same. Where did Mr. Hare live?
Ans. He lived in Southwick, Massachusetts.
Ques. Where did Flora go from there?
Ans. I do not know.
Ques. Have you heard any report what finally became of her?
Ans. It was reported she was stolen and sold by one Hanchet in Virginia and no one knew by whom because no one saw it.
Ques. Were you acquainted with Ex?
Ans. I used to know him, have seen him repeatedly but had but little acquaintance with him.
Ques. Had Flora any children?
Ans. She had had children and I believe Scott sold one a boy in Hartford and before she was married for she was not married until she was free.
Ques. Can you state the time when Flora went to Southwick?
Ans. I cannot tell. When she was freed I was about fourteen or fifteen years old.
Ques. Did Flora have any children after she was married?
Ans. I know nothing about it.
Ques. Did Scott ever claim Flora as a slave after it was reported he had freed her?
Ans. Not as I ever knew of.
Question by Mr. Hartwell in behalf of Deft. Did you see Flora frequently when she lived at Mr. Scott's?
Ans. I used to see her often.
Ques. by the same. Was Flora black or mulatto?
Ans. She was black I believe.
Ques. by same. What was her height?
Ans. Was about middling size.
Ques. by same. Do you know of your own knowledge that Flora was set free by Scott?
Ans. I know nothing about it only by report. Her going to Mr. Robbins and going to live with Ex proved it so.
Ques. Do you know anything of your own knowledge of Flora being stolen and carried away?
Ans. I know nothing about it.
Ques. by the same. How old were you at the time it was said she was stolen and carried away?
Ans. I must be perhaps a dozen years old.
Ques. by Mr. Ware one of the Justices. Do you know that Flora went to live at Southwick after she left Mr. Scotts?
Ans. I did not personally. It was supposed she lived there. I believe it was the common report that she did.
Signed Jeremiah Nelson."
This Depo. excepted to for the same reasons that Sarah Nelson Dep. excepted to by Defdts.
When the Defendants by their counsel objected to the reading of so much of the said Depositions as was hearsay or gave the common report that Flora had been considered a free woman in Massachusetts and had been abducted and carried off by Hanchet or Bronson and Hanchet which objection the court overruled and permitted the said Depositions to be read, but with instructions to the Jury that, so much of the said Depositions as was hearsay, or related to the common report that Flora had been considered a free woman in Massachusetts and had been abducted and carried off by Hanchet, or Bronson & Hanchet from Southwick, must not be regarded by them as primary evidence thereof proving or tending to prove the facts that Flora was actually free and had been abducted by Hanchet or Bronson & Hanchet, but that it was permitted to be read in connection with oral testimony as to their general character introduced by the Plaintiffs to sustain them for the purpose alone of corroborating the testimony of John Lawrence and Elijah Mecham. To which opinion of the Court overruling their said objection to the reading of so much of said Depositions as consisted of hearsay or reputation as to the fact of freedom or abduction as aforesaid and permitting it to go to the Jury for any purpose the Defts by their Counsel except and pray that this their bill of exceptions may be signd seald and enrolld, which is accordingly done.
Lucas P. Thompson (seal)
. . .
Court of Appeals of Virginia.
Lewisburg.
Charlton v. Unis.
(Absent Brooke, J.)
1847. July Term. . . .
This was an action brought by Unis against Charlton, for the purpose of recovering her freedom. The plaintiff claimed to be the daughter of a negro woman called Flora, and that Flora was a free woman at the time of the plaintiff’s birth, in Connecticut or Massachusetts, and had been abducted from thence and sold in Virginia as a slave.
On the trial of the cause before the Circuit Court of Rockbridge county, the plaintiff introduced the depositions of Jacob Lawrence and Elijah Meacham. Whereupon, the defendant to discredit the testimony of Meacham, introduced an affidavit made by him a short time previous to the institution of this suit, in 1826, in which he stated that he knew the woman Flora in the State of Connecticut in 1775, when she belonged to one Benjamin Scott; and that some time afterwards, the year he did not recollect, the Legislature of the State of Connecticut passed a law giving freedom to all the slaves of the said State. The defendant then introduced as evidence, without objection by the plaintiff, three statutes of the State of Connecticut on the subject of the emancipation of slaves, for the purpose of disproving the fact stated in Meacham's affidavit; and he introduced oral testimony of the general character of both Lawrence and Meacham, tending to impeach the character of these witnesses. The plaintiff then offered in evidence the depositions of Sally Coit, Thubal Styles, Sarah Nelson and Jeremiah Nelson, for the purpose of sustaining and corroborating the testimony of the witnesses Lawrence and Meacham. In the depositions proposed to be read the witnesses spoke of the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett. The defendant excepted to so much of these depositions as was hearsay, or gave the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett; but did not designate the particular passages therein to which the exception was intended to apply. This objection the Court overruled, and permitted the depositions to be read, but with instructions to the jury, that so much thereof as was hearsay, or related to the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett, must not be regarded by them as primary evidence thereof, proving or tending to prove the facts that Flora was actually free and had been abducted by Hanchett, or Bronson and Hanchett, but that it was permitted to be read in connection with oral testimony as to the general character of Lawrence and Meacham, for the purpose alone of corroborating their testimony. To the admission of this testimony for any purpose, the defendant excepted; and a verdict and judgment having been rendered for the plaintiff, the defendant applied to this Court for a supersedeas, which was granted.
Michie, for the appellant.
Francis T. and John T. Anderson, for the appellee.
Allen, J. delivered the opinion of the Court.
The Court is of opinion, that as the depositions of John Lawrence and Elijah Meacham, taken on behalf of the plaintiff, had been read to the jury as evidence to sustain the issue on her part, it was competent to impeach the credit of said witnesses, or either of them, by proof that the witness had made statements, orally or in writing, inconsistent with the testimony given on the trial or contained in his deposition. But such testimony of inconsistent statements is admissible only for the purpose of impeaching the credit of the witness, but cannot be received as evidence of any fact touching the issue to be tried; for that would be to substitute the statements of a witness, generally when not on oath, as evidence between the parties, for his testimony given under the sanction of an oath upon the trial.
The Court is further of opinion, that when such inconsistent statements are offered in evidence, it is not competent for the party thus impeaching the witness, to introduce further evidence to contradict such statements so offered in evidence by himself; because this would be unjust to the witness and the party introducing him; for though every witness may be supposed to come prepared to sustain the truth of his testimony given on the trial, and his general character, he cannot be expected to come prepared to prove the truth of every collateral statement he may have made on another occasion. It was, therefore, competent for the defendant in the case under consideration, to introduce the affidavit of said Elijah Meacham, dated the 11th of April 1826, to shew thereby, if he could, for the purpose of impeaching Meacham's credit, that in said affidavit, he had made statements inconsistent with his testimony as contained in his deposition; but having introduced the affidavit for this purpose, it was not proper to introduce evidence to contradict the statements of the witness appearing in the affidavit, and so to impeach his credit, by giving evidence of a collateral statement, and then proving such collateral statement was false.
It was therefore irregular on the part of the defendant, after reading said affidavit in evidence, to introduce the act of the General Assembly of Connecticut, for the purpose of contradicting a statement in said affidavit, thereby to discredit the witness by shewing a want of memory or of veracity in respect to that statement; and such improper testimony offered for the purpose aforesaid, if objected to by the plaintiff, should have been excluded from the jury.
But the Court is further of opinion, that after permitting such improper testimony to go to the jury without objection, it was not competent for the plaintiff to counteract the effect thereof, by the introduction of testimony in itself illegal and improper. All evidence, therefore, offered by the plaintiff to sustain, not the testimony of the witness, as contained in the deposition, but the statements contained in said affidavit, should have been excluded; and this, whether such rebutting testimony offered by the plaintiff, was confined to the particular in which the affidavit had been assailed, or applied to any independent statement in the affidavit which had not been contradicted. Any other rule would tend to divert the attention of the jury from the real enquiry before them, whether the witness was entitled to credit in the evidence he had given, to the enquiry whether he had told the truth upon some collateral question; and the danger is encountered, that upon this collateral issue raised on the trial, evidence may become proper, and so be let in, which would be illegal upon the trial of the issue between the real parties to the cause; and such illegal testimony may make an improper impression upon the minds of the jury, notwithstanding any instruction of the Court as to the proper bearing thereof.
The Court is further of opinion, that the question growing out of the form of the exceptions to the depositions, does not arise upon the bill of exceptions in this case; because it appears that the parts of the depositions excepted to, were brought to the notice of the Court, acted on by it, and were permitted to be read to the jury, under a specific instruction applicable to such portions of the depositions only. The Court having acted and decided, the propriety of that decision is the sole question presented by the bill of exceptions, and not the question whether the Court might not have refused to consider the exceptions on account of the form in which they were taken.
It therefore seems to the Court here, that the Circuit Court erred in overruling the exceptions of the defendant to so much of the depositions of Sally Coit, Thubal Styles, Sarah Nelson and Jeremiah Nelson, as was hearsay, or gave the common report that Flora had been considered as a free woman in Massachusetts, and had been carried off by Hanchett, or by Bronson and Hanchett; and in permitting such portions of said depositions to be read to the jury, for the purpose of corroborating the testimony of said John Lawrence and Elijah Meacham, or either of them, or for any other purpose.
Judgment reversed, verdict and judgment set aside, and cause remanded for a new trial of the issue joined, upon which so much of said depositions as were excepted to for the cause aforesaid, are to be specifically designated by the Court and excluded from the jury if again objected to.
Unis & als. v. Charlton's Adm'r & als.
Four Cases.
July Term, 1855, Lewisburg. . . .
These cases were before this court in 1847, and are reported in 4 Gratt. 58. They were four actions for freedom brought in 1826, in the Circuit court of Montgomery county. All the paupers were descendants of a woman named Flora, who, they alleged, was a freewoman in Connecticut, and abducted from thence with her two infant children; and that they had been brought into Virginia, without the oath being taken by the claimant of them which was then required by the statute. The defendant in one of the cases was the administrator of James Charlton; and the other defendants claimed under Charlton, from whom they derived those of the paupers who were in their possession.
There were many trials of the cases; and they were removed to the Circuit court of the county of Rockbridge, from whence the former appeals were taken. After the cases were sent back they were returned to the Circuit court of Montgomery county; and came on for trial there in June 1853: By consent they were all tried together. Upon the trial the plaintiffs offered in evidence the deposition of Shubal Stiles, taken in June 1845, before two justices of the peace for the county of Hartford in the state of Connecticut. The deposition showed that W. Hartwell, professing to act as counsel for the defendants, appeared and cross-examined the witness; and the justices certify that the defendants appeared by their counsel at the time and place of taking said deposition.
To the introduction of the deposition as evidence, the defendants objected, upon the ground that no notice of the time and place of taking it had been given; and also upon the ground that no commission had been awarded to authorize the justices to take it. No notice or commission was produced, nor did the record show that a commission had been awarded; and the certificate of the justices did not state that it was taken by virtue of a commission: These objections were not endorsed on the deposition. The court sustained the objection, and excluded the evidence; and the plaintiffs excepted.
The plaintiffs also offered in evidence the deposition of Henry Carty. In answer to questions put to him by plaintiffs' counsel, he said that old Flora, the ancestress of the plaintiffs, had told him at different times that if she had her just rights she would be a freewoman; and she at the same time wanted him to write her a letter to send back where she came from, to obtain information from the people concerning her freedom. That Squire Howard, who is dead, told the witness that Flora had applied to him as a magistrate concerning her freedom. And that James Charlton was a man of severe temper and likely to keep his slaves in subjection.
The plaintiffs offered this testimony to rebut the presumption arising from lapse of time, that James Stephens, who, defendants alleged, brought Flora and her children into the state, had taken the oath prescribed by the act of 1778. But the defendants objected to so much of the deposition as is above given, and the court sustained the objection; and certified that it did not appear when the declarations of Flora were made; but that it did appear that her application to the justice Howard was not made within twenty years after she was brought to Virginia. And it further appeared, from the petition filed by the plaintiffs, that they did not rely upon this ground as entitling them to freedom, when they instituted their suits. To this opinion of the court the plaintiffs again excepted.
All the testimony offered on the trial of these causes was in the form of depositions; and after the plaintiffs had read the depositions of several witnesses, for the purpose of proving that Flora and her two children had been brought from New York to Virginia by a certain James Simpkins; and that they had been sold by Simpkins to James Charlton, with a general warranty of title; the defendants offered in evidence the deposition of Simpkins, which was objected to by the plaintiffs on the ground that the witness was interested in the result of the suits. To obviate this objection, the defendants produced certain releases, whereby John McC. Taylor, the administrator of James Charlton, released to Simpkins all right of recovery which might in any way accrue to him as administrator as aforesaid, against the said Simpkins, in case the plaintiffs in the action against himself or in any of the other actions should recover their freedom. There were also releases from a number of the heirs of James Charlton. These releases bore date prior to the taking of the deposition. The plaintiffs objected that these releases were insufficient to restore the competency of the witness, as they did not release as to all the defendants, and because the release executed by Taylor was an insufficient release. But the causes were all tried together, and it was agreed by the counsel on both sides that the evidence taken in one case should be read in all. The court therefore overruled the objection, and admitted the evidence; and the plaintiffs again excepted.
After the deposition of Simpkins had been read, the plaintiffs offered evidence to prove that he had made statements inconsistent with his deposition. The defendants objected to this evidence, and the said statements not having been made on oath, and no foundation having been laid for their introduction, the court sustained the objection, and excluded the evidence: And the plaintiffs again excepted.
The plaintiffs further offered in evidence the deposition of Robert Gardner. This deposition was taken on Thursday, the 11th of April 1850, at his house in the town of Christiansburg, in the county of Montgomery. At that time these actions were pending in the Circuit court of Rockbridge county; and the term of that court commenced on the 12th of April. The distance from the residence of the defendants to Lexington, where the court was held, is about ninety miles, and Taylor, one of the defendants, attended the court at that term. The notice for taking the deposition was served on one of the defendants on the 8th, on another on the 9th, and on another on the 10th of April. The defendants objected to the evidence on the ground that the notice was not reasonable; and the court sustained the objection: And the plaintiffs again excepted.
There were verdicts and judgments in all the cases for the defendants: Whereupon the plaintiffs applied to this court for supersedeases, which were allowed.
Hoge, for the appellants, insisted:
1st. That the objection to Stiles' deposition should not have been sustained: That the objection was not taken before the jury were sworn, and could not be taken afterwards. And he insisted further, that the appearance of the counsel for the defendants and the cross-examination of the witness by him, dispensed with the necessity of producing the commission and notice. He referred to Jones v. Lucas, 1 Rand. 268; 2 Dan. Ch. Pr. 1122.
2d. That the evidence as to the statement and acts of Flora should have been admitted; that it was for the jury to decide whether these statements were made within twenty years form the time she was brought into Virginia. Abraham v. Mathews, 6 Munf. 159; Kheel v. Herbert, 1 Wash. 203; Ross v. Gill, Id. 87.
3d. That Simpkins was interested, and his testimony should have been excluded. Woodward v. Woodson, 6 Munf. 227; 1 Greenl. Evi. 501, 502. That the releases were not by all the parties interested; and moreover, though they were dated prior to the taking of the deposition, yet they were not proved until the trial, when they were produced by the defendants. He referred to 1 Philips' Evi. 160; Mandeville v. Perry, 6 Call 78; Rowt v. Kile, Gilm. 202; Temple v. Ellett, 2 Munf. 452; Wilcox v. Pierman, 9 Leigh 144; Turberville v. Self, 4 Call 580; Richie v. Moore, 5 Munf. 388. That a release from the administrator was not sufficient, 1 Rev. Code of 1819, p. 387, 432, the administrator not having any interest in the slaves except for the payment of debts. He referred to Rosser v. Depriest, 5 Gratt. 6; Fisher v. Bassett, 9 Leigh 119; 1 Story's Equ. Jur. 23, 24, 25; Knight v. Yarborough, 4 Rand. 566. That the agreement to admit the evidence in all the causes, did not authorize the admission of illegal evidence in one cause, because it was legal in another. Chitty on Contr. 74, 76; Story on Contr. § 634, 635, 636.
4th. That the evidence of the statements of Simpkins was admissible to impeach his credit. Charlton's adm'r v. Unis, 4 Gratt. 58.
Baldwin and Patton, for the appellees, insisted:
1st. That the want of a notice and commission was conclusive against the admission of Stiles' deposition: That the appearance of counsel for the defendants did not cure this defect. Blincoe v. Berkely, 1 Call 405. But that there was no evidence of such an appearance, or even that the deposition was taken; for the justices had no authority without a commission, and their certificate thereof in the absence of a commission proved nothing. Gillespie v. Gillespie, 2 Bibb's R. 90; Taylor v. Whiting, 4 Monr. R. 364; Clarke v. Goode, 6 J. J. Marsh. R. 637. That the objection was taken at the proper time, and it was not such an objection as was required to be taken before the jury was sworn.
2d. That the statements of the woman Flora were not proper evidence for the purpose proposed. That after twenty years it will be presumed the oath was taken. Abraham v. Mathews, 6 Munf. 159; McMichen v. Amos, 4 Rand. 134; George v. Parker, Id. 659; Betty v. Horton, 5 Leigh 615. That the statement had no relation to the oath, but to her having been free in Connecticut. That moreover the claim spoken of by the statute is a judicial assertion of the claim; and such as it was, it was after sh had been here twenty years.
3d. That the causes were all tried together, and the true construction of the agreement of the counsel is, that if the evidence was legal in one case, it should be admissible in all. But if this was not so, the release of the administrator of Charlton, who alone could sue upon the warranty of Simpkins, was sufficient to render him a competent witness. 1 Lomax on Ex'ors 286, § 4; 287, § 9; Hays v. Hays, 5 Munf. 418.
4th. On the fourth point made by the counsel for the appellants, they referred to 1 Greenl. Evi. § 462; 2 Philips' Evi. 432.
5th. As to the notice to take the deposition of Gardner, they referred to Stubbs v. Burwell, 2 Hen. & Munf. 536; Winsookie Turnpike Co. v. Ridley, 8 Verm. R. 404; Waters v. Harrison, 4 Bibb's R. 87; Rennick v. Willoughby, 2 A. K. Marsh. R. 20; 2 U.S. Dig. 219.
Daniel, J. Proceeding to consider the causes of error in the order in which they are assigned in the petition, it seems to me that there is no just exception to the action of the Circuit court in excluding the deposition of the witness Stiles. It appears from the bill of exceptions, that no commission for taking the deposition, no notice of the time and place of taking it, was produced; the record did not show that a commission had been awarded, and the justices in their certificate doe not state that they took the deposition by virtue of a commission. There was thus an absence of all proof to show that the plaintiffs had complied with the conditions on the performance of which their right to read the deposition depended. The failure to object to the deposition on this score, before it was offered on the trial, was no waiver of the objection. It was for the plaintiffs to show either an observance of the requirements of the statute under which they claimed a right to read the deposition, or that the defendants had waived or dispensed with it. Whether an appearance of the defendants by counsel, at the time and place of taking the deposition, might have been taken as the evidence of such waiver, is a question which cannot be raised. The only evidence of such appearance is in the certificate of the justices: And as it does not appear that they acted under a commission, they had no warrant or authority to speak in the matter; and their certificate is without force or virtue as proof in the cause.
No ground is laid on which to raise the question which the plaintiffs seek to present by the second cause of error assigned. In the fourth section of the act of 1778, for preventing the importation of slaves, 9 Hen. St. at Large 471, an exception is made in favor of persons removing from any other of the United States into this; provided that within a certain period after their removal they take an oath to the effect that their removal into the state is not made with an intention to evade the provisions of the act, and that they have not brought their slaves with an intention of selling them. And by repeated adjudications of this court (as in Abraham v. Mathews, 6 Munf. 159, George v. Parker, 4 Rand. 659), made in cases arising under acts containing like provisions, it has been settled that twenty years' possession, by the master, of slaves thus brought into the state, without any claim of freedom on the part of the slaves, justifies the presumption that the master had duly taken the oath required by law. How such a claim should be asserted in order to have the effect of repelling this presumption, has never been decided by this court, and does not arise for consideration now. It is obvious, however, that no matter what may be the essentials of such a claim, or how it must be asserted, it can be of no avail unless made within the twenty years before the presumption has matured. It appears from Carter's statement that Charlton had purchased Flora, the ancestress of the plaintiffs, at least forty-five years before the date of his deposition; and he no where fixes the date of the loose declarations of Flora, that "if she had her just rights, she would be a freewoman." These declarations, from aught that appears to the contrary, may have been made long after the presumption had attached; and were therefore plainly inadmissible as testimony for any purpose. The opinion of the witness in respect to the temper and character of Charlton as a master, was, I think, equally inadmissible. If such testimony could be resorted to as furnishing a reason or argument why the presumption should not be allowed, it would be equally proper to go into proofs of the character of the slaves, as whether remarkable for timidity or otherwise. Such proofs, it is manifest, would rather serve to dissipate the attention of the jury, and to invite them into the indulgence of loose surmise and conjecture, than to guide them to those results which it is the aim and tendency of legitimate testimony to establish. The exception to the testimony was, I think, properly sustained by the court.
I cannot perceive any force in the objection to the releases executed to the witness Simpkins, on the score that they were not executed by all of the defendants. No good reason is suggested why such a release should be made by any one but Taylor, the personal representative of Charlton. No suit could be maintained against Simpkins for a breach of the warranty, whether express or implied, of the title to the plaintiffs as slaves, by any one but Charlton's representative, and the release of all right of recovery by him divested the witness of all interest in the controversy, in respect to all of the plaintiffs embraced in the release.
The further objection made to the releases, that they do not extend to all the plaintiffs in each of the suits, is met by the statements of the judge in the bill of exceptions, that "it was agreed by the counsel on both sides that the evidence taken in one case should be read in all." The terms of this agreement, it is obvious, are fully satisfied when it is shown that the deposition would have been legal evidence in any one of the cases: And as it is conceded that the releases embrace all of the plaintiffs in one of the suits, I see no reason why the agreement should not be allowed to cure the omission in the releases. The convenience of both sides was no doubt promoted by the agreement. The plaintiffs in each of the suits were all descended from one common ancestress; the testimony in respect to the claim of one was equally applicable to the claim of each; and it is difficult to conceive of injury resulting to the rights of any of them from the court's enforcing the agreement according to its terms. The third ground of error is, therefore, I think, untenable.
The fourth assignment of error raises a question which, it is somewhat remarkable, has never before been distinctly presented to this court for its decision, to wit, whether a witness who has testified in a cause may be impeached by the proof of contradictory or inconsistent statements, alleged to have been made by him on other occasions, before the foundation for the introduction of such impeaching testimony is first laid, by an examination of the witness touching the fact of his having made such statements. In the Queen's Case, 2 Brod. & Bing. 292, 6 Eng. C. L. R. 121, the question, so far as it relates to examinations in courts, was very fully discussed, and was decided in the negative by the unanimous opinion of the judges. This case occurred in 1820. The rule there stated has been adhered to in numerous cases since decided, and may now be regarded as firmly established in England. In some of the United States the courts have refused to adopt the rule; but I am satisfied, as well from an examination of such of the reports as are to be found in our library, as from a statement of Mr. Greenleaf in a note to his Treatise on the Law of Evidence, p. 579, that the rule has obtained in a large majority of the states of our Union.
In the case of Downer v. Dana, 19 Verm. R. 338, a distinction is taken between the case of a witness examined in court and one who has given his testimony in the form of a deposition. In that case the court sanctions, and expresses a determination to adhere to, the rule, that testimony, as to the previous declarations of a witness produced upon the stand, offered for the purpose of impeaching him, is not to be received, unless an opportunity be first afforded him to explain or qualify the imputed declaration. But it still decides that the rule has no application to testimony in the shape of depositions, whether taken with or without notice, and whether the adverse party attended at the taking or not, and that the adverse party may in such case, without previous enquiry, prove any inconsistent declarations or conduct of the witness.
After a careful examination of the opinion in which this distinction is taken, I have been unable to perceive the force of the reasoning on which it is made to rest. The principal reason assigned by the learned judge who delivered the opinion of the court, for refusing to apply the rule to depositions, is, that such a practice would impose on a party, wishing the privilege of impeachment, the necessity of attending in person or by attorney at the taking of every deposition to be used against him, within or without the state, which, on any other account, he might not be disposed to do. This argument ab inconvenienti is not wholly without show of reason when urged in behalf of the exercise of the privilege of impeachment by a party who has had no notice of the taking, or who, though notified, did not attend at the taking of a deposition which he seeks to discredit, but seems to me devoid of weight when extended to the case of a party who was present at the taking of the deposition, and had thus the same opportunity of cross-examining the witness, and calling his attention to the imputed inconsistent statements, that he would or might have had, in case the witness had been examined in court.
I have seen no other case in which this distinction has been taken, whilst in a number of cases decided by the courts of New York, Tennessee, Alabama and Mississippi, the rule has been held applicable as well to depositions as to the oral examinations of witnesses on the stand. Kimball v. Davis, 19 Wend. R. 437; Same Case, affirmed in the Court of Errors, 25 Wend. R. 259; Story v. Saunders, 8 Hump. R. 663; Richmond v. Richmond, 10 Yerg. R. 343; Howell v. Reynolds, 12 Alab. R. 128; Sawyer v. Sawyer, Walk. Ch. R. 48. And in the case of Conrad v. Guffey, 16 How. Sup. Ct. R. 38, recently decided by the Supreme court of the United States, the authorities are fully examined and reviewed in the arguments of counsel and in the opinion of the court delivered by Justice McLean.
The effort there was to discredit a witness, who had given a deposition under a commission, by proof of antecedent contradictory statements; and the court were unanimous in the opinion, that as the witness had not been interrogated as to those statements when he was examined, the proof was not admissible. And the court quotes with approbation the opinion of the Supreme court of New York in the case of Kimball v. Davis, just cited, holding that where the imputed contradictory statements are alleged to have been made since the taking of the deposition, the adverse party can avail himself of such statements only by taking out a second commission.
The rule, we are told in Greenleaf on Evidence 579, proceeds from a sense of justice to the witness; for as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject, he should have an opportunity to recollect the facts, and if necessary to correct the statement already given, as well as by a re-examination to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said. These reasons, it is obvious, apply just as forcibly to depositions as to oral examinations in court. And indeed there are considerations which urge the application of the rule to the case of an impeachment of a witness who has given his testimony in the form of a deposition, which may not arise in an effort to discredit a witness who has been examined in court. In the latter case the witness usually remains in or about the court till the trial is concluded; and if an assault is made upon him by proof of inconsistent statements, he might, even before the adoption of the rule requiring him to be first examined as to such statements, be recalled and re-examined by the party in whose favor he had testified; and he may thus have an opportunity of repelling or explaining away the force of the assault: Whereas the witness whose deposition has been taken is usually absent from the scene of the trial, and has no shield against attacks on his veracity other than that provided by the rule. And as was very justly said by Chief Justice Nelson in Kimball v. Davis, in the absence of such a rule, strong temptations would exist for tampering with witnesses, and for perverting or manufacturing conversations after the taking of the depositions, and when explanations would be impossible.
Upon the whole, the rule appears to me to be a safe, just and convenient one; and I can see no good reason for refusing to follow the current of authority, in adopting it as a general rule. Cases may be supposed in which the courts may be strongly called upon to dispense with, or to make exceptions to the rule; and I will not undertake to say that special exigencies may not occasionally arise, requiring the courts to depart from the rule, rather than to sacrifice justice by sternly adhering to it. The same remark may, however, be justly made in respect to most rules of a like character, and suggests no serious objection to the adoption and observance of the rule in question as a general one.
There are no peculiar considerations calling upon us to exempt this case from the operation of the rule: For it appears from the deposition, that the plaintiff's counsel was not only present at the taking, but exercised on the occasion his privilege of cross-examining the witness. And as it does not appear that any predicate was laid in the course of the examination, for the introduction of proof of the inconsistent declarations offered on the trial to impeach the witness, the court, I think, did right in refusing to allow such proof to go to the jury.
The fifth bill of exceptions to the course of the court furnishes, I think, no ground of error. The defendants had a right to be present at court, as well as at the taking of the deposition. And it is manifest from the facts set out in the bill of exceptions, that they could not have attended the taking of the depositions and then have reached the court by the commencement of its session: And the exception to the reading of Gardner's deposition was, I think, properly sustained.
I have been unable to discover any error in the action of the court, and am for affirming the judgment.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed.
- Title
- Unis et al. v. Charlton's Administrator et al. (1855)
- Description
- In this freedom suit, the descendants of a Black woman named Flora claimed their freedom on the grounds that Flora was free before being abducted and sold into slavery in Virginia. Between 1826-1855, a series of cases bounced around county and appellate courts in Virginia before finally being decided against freedom for Flora's descendants.
- Excerpted
- Yes
- Date
- 1855
- Author
- Virginia. Court of Appeals
- Subject
- African Americans
- Procedural History
- Court of Appeals of Virginia; Circuit Superior Court of Law and Chancery for Smyth County, Roanoke County, and Rockbridge County; Superior Court of Law for Montgomery County, Virginia
- Document Type
- Court Case
- Document Category
- Primary Source
- Bluebook Citation
- Charlton v. Unis, 4 Gratt. 58 (Va. 1847)
- Archival Source
- West Virginia State Archives, MS79-83 Virginia Court of Appeals, Lewisburg, Records, 1776-1921, Box 4, Folder 79, Case 451.
- Bibliographic Citation
- Peachy R. Grattan. Reports of Cases Decided in the Supreme Court of Appeals, and in the General Court, of Virginia. Volumes IV, XII. Richmond: Shepherd and Colin, 1848, 1856.
- Digital Repository
- HathiTrust
- Title
- Unis et al. v. Charlton's Administrator et al. (1855)
- Description
- In this freedom suit, the descendants of a Black woman named Flora claimed their freedom on the grounds that Flora was free before being abducted and sold into slavery in Virginia. Between 1826-1855, a series of cases bounced around county and appellate courts in Virginia before finally being decided against freedom for Flora's descendants.
- Excerpted
- Yes
- Date
- 1855
- Author
- Virginia. Court of Appeals
- Subject
- African Americans
- Procedural History
- Court of Appeals of Virginia; Circuit Superior Court of Law and Chancery for Smyth County, Roanoke County, and Rockbridge County; Superior Court of Law for Montgomery County, Virginia
- Document Type
- Court Case
- Document Category
- Primary Source
- Bluebook Citation
- Charlton v. Unis, 4 Gratt. 58 (Va. 1847)
- Archival Source
- West Virginia State Archives, MS79-83 Virginia Court of Appeals, Lewisburg, Records, 1776-1921, Box 4, Folder 79, Case 451.
- Bibliographic Citation
- Peachy R. Grattan. Reports of Cases Decided in the Supreme Court of Appeals, and in the General Court, of Virginia. Volumes IV, XII. Richmond: Shepherd and Colin, 1848, 1856.
- Digital Repository
- HathiTrust