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Hays v Borders
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TitleHays v Borders
DescriptionText of the Illinois Supreme Court decision of Hays [Hayes] v Borders in 1844. Andrew Borders sued William Hayes for monetary damages alleging that Hayes helped some of Borders' slaves escape from his farm in Raldolph County, Illinois. The slaves found their way via the Underground Railroad to Knox County, Illinois. The suit began in Perry County and ended up in the Illinois Supreme Court, where the court found the defendant, William Hayes liable for damages. The facts of this case involve the slave "Sukey" (later referred to as Susan Richardson) and her children.
SubjectSlaves
Abolition movement
Abolitionists
Law & legal affairs
Underground railroad system
Named PersonHayes, William; Borders, Andrew; Richardson, Susan; Sukey;
Time Period1840s
Date Created (original)1886
TypeText
Formatpdf
IdentifierNon-circulating KFI1245 .A2 v. 1
Languageeng
RightsSee http://library.knox.edu/digitalcollections/rightsinfo.htm
CollectionStruggle and Progress-African Americans in Knox County, Illinois (Knox College)
Date Digital2012-09-07
TranscriptWILLIAM HAYS v. ANDREW BORDERS.

[*46] Appeal from Perry.

1. PLEADING--joinder of actions. When the same plea may be pleaded and the
same judgment given on all the counts of a declaration, or wherever the causes of ac­
tion are of the same nature, and may properly be the subject of counts of the same
species of action, they may be joined; otberwise they can not.
2. ApPRENTICESHIP--indenture. Under the third section of the act concerning
apprentices, any two justices of the peace in any county may bind out any poor child,
etc.; but it is not necessary in terms to describe, in the indentures, the person so bound
out as a "poor child." (a)
3. SAME--evidence of. The original authority for indenturing and registering serv­
ants, with the mode of proceeding therein, IS found in the law of the territory of In­
diana, entitled 'an act concerning the introduction ofnegroes and mulattoes into this territory" passed Sept. 17, 1807. This act was continued by the territorial legislature
of Illinois, by virtue of an act passed Dec. 13, 1812, wherein it is enacted that "all
laws passed by the legislature of Indiana territory, which were in force on the first
day of March, 1809, in that territory, that are of a general nature and not local to
Indiana territory, and which are not repealed by the governor and judges of
Illinois territory, are hereby declared to be in full force and effect in this terri­
tory." Under this law, the offices of the clerks of the court of common pleas were the
depositaries of the books of indentures and registries of negroes, etc., and those clerks
were the officiating ministers in the matters recorded in such books. The territorial
acts creating the supreme and county courts divested the court of common pleas of its


CASES CITING TEXT. § 6; S. & C.'s Stat. p. 296; Cothran's
(a) See R. S. 1874, ApPRENTICES, ch. 9, Stat. (1885) p. 111.
36

1844.] HAYS v. BORDERS. 46-47


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Statement of the Case.
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vitality, and by virtue of the act establishing the latter, the clerks of that court were
invested with the same authority in relation to the registry of indentures as were the
clerks of the common pleas, when that court existed. They, therefore, were the suc­
cessors of those clerks, and their powers and duties in reference to such proceedings,
were identical. The clerks of the county commissioners' courts subsequently became
the successors of the clerks of the county courts, and their certIficates are, consequently
evidence of the authenticity and contents of the books of registry of indentures depos­
ited in their office.
4. SAME--case re-affirmed. In regard to the sufficiency of a certificate of registry,
the point settled in the case of Phoebe v. Jay, Bre. 207, is recognized in this case. The
facts necessary to warrant the registry need not be recited in the registry.
5. DEPOSITION--notice to take. A notice of the taking of depositions need not
state the residence of the witnesses.
6. SAME--measure of damages for enticing away. In an action for damages for
enticing away the plaintiff's servants, the following instruction was glven to the jury,
to wit: "that the plaintiff, if entitled to recover at all, would be entitled to recover
the value of the services lost, up to the time of the commencement of the suit, the rea­
sonable expenses necessarily incurred in getting said servants back again, and dama­
ges for the loss of time, trouble and injury sustained until the commencement of
this suit in consequence of the taking away of the negroes." Held, to be correctly
given.
7. INSTRUCTION--as asked may be modified. A court may not refuse to give any in­
struction to the jury, compatible with the law and applicable to the pleadings and the
proof, when called for by either party; but, in giving such instruction, is not imper­
atively bound to adopt, as its own, the language in which it may be asked.
That language may be, and when, in the estimation of the court, it is calcula-[* 47]
ted to mislead the jury, should be so modified or changed as to prevent such a
result, but not so as to alter the proposed exposition of the law.
8. SAME--approved in case of entici1lg a10ay registered Woman (slave). An instruc­
tion to the jury, that "if the jury believe from the evidence that the plaintiff lost the
entire service of the registered woman, in consequence of defendant's acts, the plain­
tiff is entitled to the value of the term of her service" was held to be correctly
given. (b)

THIS was an action on the case brought by the appellee against
the appellant, in the PerrY circuit court, to recover damages for
aiding, assisting, and enticing away his indentured servants. The
trial came on at the April term, 1844, before the Hon. JAMES
SHIELDS and a jury, when a verdict was rendered in favor of the
plailltiff below for $300. The declaration contained seven
counts, the substance of which appears in the opinion of the court.
L. TRUMBULL and W. H. UNDERWOOD, for the appellants: It
is objected to the declaration, that it contains counts, some of
which are for a penalty founded on the statute, and others for such
damages as could have been recovered at common law, which is a
misjoinder. 1 Chitty's Pl. 229, 448, 231 ; 1 Tidd's Practice, 11.
The indentures of apprenticeship do not show that the persons
bound were poor children, or such as two justices of the peace
had a right to bind out, and are consequently void. R. L. 68;
Demar v. Simonson, 4 Blackf. 132 ; Reidell v. Morse, 19 Pick. 358;
and their departure from Borders' service was not unlawful. Bos­
ton Glass Manufactory v. Binney, 4 Pick. 425.


(b) Notice of intention to sue out dedi- v. Choteau, 18 Ill. 439, 442.
mus, need not name commissioner. Cole
37


48-49 HAYS v. BORDERS. [Dec. T.


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Brief of Counsel.
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The certified copy of what purported to be a registry of one of
said servants was improperly admitted in evidence, said registry,
not being in the accordance of the territorial laws, not properly
certified. Territorial Laws, 468, 469. The court of common pleas
was abolished in 1814, and before the time of said registry; hence
a copy of a record of the clerk of that court in 1817 is a nullity.
Territorial Laws, 337, 339, 345, 348.
The declaration no where claims damages for an entire
[*48 ] loss of the services of the registered woman; consequently
the instruction, that if the jury believed from the evidence
that plaintiff lost her entire services in consequence of defendant's
acts, the plaintiff would be entitled to recover the value of the
term of her service, was erroneous. 1 Chitty's Pl. 444; 1 Tidd's
Prac.445.
Had plaintiff declared for an entire loss of the term of the reg­
istered servant a portion of which was unexpired at the commence­
ment of the suit, still the instructIOn would have been erroneous.
Hambleton v. Veere, 3 Saund. 170, case 80 ; 1 Chitty's Pl. 444.
The value of the services lost and reasonable expenses incurred
in the recaption of said servants, was the proper measure of dam­
ages in this case, and consequently the instruction, that the plain­
tiff was entitled to recover, in addition, damages for the loss of
time, trouble and injury sustained until the commencement of the the
suit by reason of the taking away said servants, was calcula­
ted to mislead the jury and erroneous. 1 Chitty's Pl. 444 ; 1 Tidd's Prac. 445.
The court was bound to give the instructions asked by defend­
ant, they being inconformity with law. The State of Illinois v.
Wilson, 2 Scam. 226.
The testimony in the case did not show that defendant had any
knowledge that the persons claimed by plaintiff below, were his
servants or apprentices, nor in any manner warrant the finding of
the jury, and therefore a new trial should have been granted.
Stuart 4 Simpson, 1 Wend. 376; Boston Glass Manufactory v.
Binney, v. 4 Pick. 425.
G. P. KOERNER, for the appellee, as to misjoinder of the causes
of action, cited Minot's Digest, 577; and as to the sufficiency of
the indentures, Laws of 1827.
No defect in registry can be taken advantage of here. 1 U. S.
Digest 198, § 114; Territorial Laws, 425, §§ 5, 6.
The county court was the successor of tbe court of common
pleas.
The court did not err in substituting, for the instruction
asked, the modified instruction. As to the other instruc­
[*49] tions the court decided correctly, particularly as to the
value of the entire term of service. If the servant was
but one or two months over four years of age, the term had ex­
38



1844.] HAYS v. BORDERS. 50

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Opinion of the Court.
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pired when suit was commenced; at all events, the term had ex­
pired at the time of trial.
If two instructions are given, 0ne of which is improper, they
will be considered together, and judgment, for such reason, will
not be reversed.
The presumption is that the verdict is upon the good counts
when some are good and others bad. Minot's Digest, 192, Div.
II. § 3.

D. J. BAKER, on the same side: It is perfectly immaterial
whether these indentures were void or not in this case. The
ouly question was, were the servants enticed away de facto the
servants of the plaintiff?
The certificate of the clerk of the county commissioners' court
was sufficient evidence of the transfer of the records of the court
of common pleas into that court.
The doctrine in regard to apprentices does not apply; conse­
quently the instructions given were right. Singleton's Will, 8
Dana, 319; Lively v. Ball, 2 B. Monroe's R. 53; 5 Ala. 242.

THOMAS, J. This was an action on the case for aiding, assist­
ing, and enticing away servants and apprentices, brought by the
appellee against the appellant.
The declaration contains seven counts. The first count is for
aiding, etc., four of plaintiff's servants to absent themselves from
his service, whereby, as he says, he lost their services from 15th
September to 1st December, 1842, and was put to great trouble
and cost, and expended a large sum of money, viz.: $200, in
getting the servants back into his possession.
The second count charges the enticing away of Sukey, the
plaintiff's registered servant, whereby he alleges that his said serv­
ant was wholly lost to him, and that he was put to great
trouble and cost, and compelled to expend a large sum of [*50]
money, to wit: $200, in recovering possession of her.
The third count is for enticing away one servant of the plaint­
iff, and is, in other respects, similar to the first.
The fourth count is for enticing away three apprentices of the
plaintiff, and the fifth, sixth, and seventh counts are each for en­
ticing away one of his apprentices.
To these several counts the defenrlant demurred and, they
being held sufficient by the court, withdrew his demurrer, and
pleaded not guilty. The jury impanelled for the trial of the
issue on this plea found the defendant guilty, and assessed the
plaintiff's damages at $300.
A motion was made for a new trial, which was overruled, and
judgment rendered on the verdict.
During the progress of the trial a bill of exceptions was filed,
preserving all the testimony in the cause, and the exceptions

39


51 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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taken to the various opinions of the court. The case is brought
into this court oy appeal, and the appellant assigns for error
the insufficiency of the declaration, the admission of illegal and im­
proper testimony, the gi ving and refusing certain instructions to
the jury, and the refusal to grant a new trial.
It is objected to the declaration that it is defective by reason
of a misjoinder of counts and causes of action, in this, that it
contains counts for a penalty founded on statute, and others for
such damages as could have been recovered at common law. The
result of authorities on the subject of the joinder of different
forms of action is said to be that "when the same plea may be
pleaded and the same judgment given on all the counts of the
declaration;" or, "wherever the causes of action are of the same
nature, and may properly be the subject of counts in the same
species of action, they may be joined; otherwise they can not." 1
Chitty's Pl. 229; 1 Tidd's Prac. 11. Tested by these rules the
declaration is not obnoxious to the objection urged against it.
It is not suggested by the counsel, nor perceived by the
court, that anyone of the counts is insufficient in itself; the
judgment is, therefore, not assailable on the ground that
[* 51] entire damages were rendered upOn the declaration, etc.
The items of evidence offered to the jury by the ap­
peller, and objected to by the appellant, and the legal admissibility
of which in evidence is now questioned by the assignment of
errors, consist of
1. The several indentures of Jarrott, Anderson, and Harrison,
the apprentices named in the declaration, respectively entered
into before two justices of the peace of Randolph county, by and
with the consent of the probate justice of the peace of said
county.
2. A paper, in the words and figures following, to wit:


"Registry of Negroes, Mulattoes, etc.
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
| | | | | | | |
|Person's | |By whom | | |For what length|From where |
Date. |name | Age. |entered.|Color. | Sex.|of time entered|last brought.|Remarks.
|entered. | | | | | | |
| | | | | | | |
------------------------------------------------------------------------------------------
| | | | | | | |
1817 | |About | And'w. | | |Until 32 years | |
Jan'y |Sukey |five |Borders.|Black. |Fema | of age. |Georgia. |
10th | |years | | | | | |
| | | | | | | |
------------------------------------------------------------------------------------------

"State of Illinois, |
Randolph county. | I, Ferdinand Maxwell, clerk of the
county commissioners' court in and for said county, do hereby
certify that the foregoing is a true copy from the records of the
registry of negroes and mulattoes, as the same exists of record

40


1844.] HAYS v. BORDERS. 52

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Opinion of the Court.
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among the records of the court of common pleas, in and for the
connty of Randolph, in the late 1llinois Territory, and now in my
office, into which they have been transferred.
In testimony whereof, I have hereunto set my hand and affixed
the seal of said court, this 8th day of April, A. D.
[Seal] 1844.
F. MAXWELL, Cl'k."
And 3d. The depositions of Peter Frans and Sally Newman.
These questions as to the admissibility of evidence, I will dis­
pose of in the order in which they are made.
Then, first, as to the indentures of apprenticeship. They are
said to be defective in not showing, in express words, that
the persons bound were poor children, or such as two
justices had a right to bind out, and consequently void. [*52]
In this view of the subject, I do not concur. The au­
thority of the justices for binding out the apprentices named in
these indentures is found in the third section of the "act respect­
ing apprentices" (R. L. 69; Gale's Stat. 53;) and which makes
it lawful for any two justices of the peace in any county of this
state to bind out any poor child, who is, or shall be chargeable to
the county, or shall beg for alms, or shall be unaiJle, by reason of
infancy or inability, to take care of and support himself, or her­
self, etc., to be apprentices, etc. The indentures in question do
not describe the persons thereby bound out as pOOr children, it is
true; nor, as I apprehend, were they required by this act to do
so, in terms.
They, however, do describe the child bound out in each case,
as a negro child, named, etc.; the natural child of Sukey, a regis­
tered servant, etc., and "unable, by reason of infancy and inabil­
ity, to support himself." Could the indenture be required to
furnish any other intrinsic evidence of the poverty of the children
than is here done by describing them as the illegitimate offspring
of a parent, herself in bondage, and, of course, destitute of the
means of supporting them? I think not. The recital, therefore,
in this respect, substantially, and in all others, literally conforms
to the requisitions of the statute.
This doctrine in no wise conflicts with that expounded in the
cases relied upon hy the appellant's counsel. The first of those
cases, Demar v. Simonson, 4 Blackf. 132, simply settles that in­
dentures which show upon their face that they are execnted in
cases not warranted by law are void; and the other, Reidell v.
Morse, 19 Pick. 358, that indentures executed under a statute
should recite the cause of the binding out, and that such recital
is not conclusive, but in an action by the parent for the services
of the child, might be contradicted by evidence aliunde.
It has been held in England, that in cases like this, the
defendant can not avail himself of any objection to the in­


41


53-54 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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denture of apprenticeship, 2 H. Black. 511-7 Term. Rep.
310, 311, 314-1 Anstr. 256; and that an apprenticeship de
facto would always suffice against a wrong doer, though
[* 53] there was no legal apprenticeship. 6 Mod. 69; 1 Salk.
68. But whether that doctrine would be recognized by
this court or not is needless now to determine. It is sufficient
for the purpose of this question, that the indentures under con­
sideration are, by their own showing, legal.
The next question to be examined grows out of the objection
of the appellant to the introduction, in evidence, of the paper
purporting to be a certified copy from the registry of negroes and
mulattoes in Randolph county. It is insisted that that paper
was inadmissible in evidence for the following' reasons, to wit:
First. Because no court of common pleas existed on the
tenth day of January, 1817, the date of such supposed registry.
Secondly. Because, if said certificate of the clerk could be so
construed as to prove the act of registering to have been done
before the clerk of the county court of said county, at the date
thereof, still that act of registry was void, as it should be, by
law, have been made with the clerk of the supreme court of the
territory, within and for that county, and not otherwise; and
Thirdly. Because such registry was void, by reason of its
not stating the precise age of the servant registered, nor showing
that such registry was made in the time prescribed by law, nor
by whom the person registered was brought into the territory.
An examination of these objections necessarily involves an in­
quiry into the mode of acquiring property in the services of
negroes and mulattoes, by registering or indenturing them, under
the territorial laws. In making such inquiry, I will notice the
objections, not in the order they are made, but in reference to
their relative importance. In this particular, then, the second
objection requires the first and most thorough investigation.
The disposition of the others, of course, might control or affect
the result of this suit, but upon the determination of this, de­
pend the rights of very many persons to illnch and valuable
property.
The authority for indenturing and registering servants,
[* 54] with the mode of proceeding therein, is found in the law
of the territory of Indiana, entitled "an act concerning
the introduction of negroes and mulattoes into this territory"
passed September 17, 1807. Territorial laws of Indiana.
The first and second sections of this law authorize the intro­
duction of negroes and mulattoes over fifteen years of age into
the territory, in certain cases, and the indenturing of such ne­
groes and mnlatioes within thirty days thereafter, in the pres­
ence of the clerk of the court of common pleas, who is required

42


1844.] HAYS v. BORDERS. 55

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Opinion of the Court.
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to make a record thereof in a book to be kept by him for that
purpose. Ibid. 467, 468.
The fifth section provides for holding negroes and mulattoes
under fifteen years of age to serve their masters or possessors,
males until thirty five, and females until thirty two years of age.
Ibid. 468.
The sixth section prescribes the mode of registering servants,
and is as follows, to wit: "any person removing any negro or
mulatto into this territory, under the authority of the preceding
section, it shall be incumuent on such persons within thirty days
hereafter to register the name and age of such negro or mulatto,
with the clerk of the court of the common pleas for the proper
county." Ibid. 469.
A separate government for Illinois territory was established
by an actof congress passed Feb. 3, 1809; and afterwards by an act
passed by the territorial legislature of Illinois, Dec. 13, 1812, it
was enacted that "all laws passed by the legislature of Indiana
territory, which were in force on the first day of March, 1809,
in that territory, that are of a general nature and not local to
Indiana territory, and which are not repealed by the governor
and judges of the Illinois territory, are hereby declared to be in
full force and effect in this territory. lb. 33, 24. The law of
1807 above referred to, not having been repealed in manner afore­
said, was thus continued in force as a law of the Illinois territory,
and no other provision on the subject was ever afterwards specifi­
cally made by legislative enactment. So long, therefore, as the
courts of common pleas remained with powers and jurisdic­
tion unimpaired by legislative innovation, no doubt could or [* 55]
did exist, as to the proper officer before whom this cere­
mony was to be performed. The offices of the clerks of those
courts were the depositaries of the books of indentures and
registries of negroes, etc., and those clerks were the officiating
ministers in the matters recorded in such books. But, after­
wards, when those courts were abolished, their jurisdiction and
powers parcelled out among other tribunals, and the duties and
functions of their clerks divided among, and required to be per­
formed by the clerks of other courts, doubts were engendered,
and in the minds of some persons, would seem still to exist, as
to the functionaries inheriting this prerogative of their clerks.
A careful examination of the several provisions of law dis­
tributing the jurisdiction and powers of the courts of common
pleas between the supreme court of the territory and the county
courts established in the several counties of the territory, and
devolving the powers and duties of the clerks of the former tri­
bunals, upon those of the latter, by distribution, together with
a general reference to the nature of the jurisdiction of those
several courts succeeding to the powers and jurisdiction of the

43

56 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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courts of common pleas, and to the purposes of their creation,
are necessary to the solution of such doubts. I therefore proceed
to such examination, in the confident belief, that I can demon­
strate that, by the operation of the several laws to be considered,
negroes and mulattos might properly have been indentured and
registered before clerks of the common pleas and county courts,
whether they could have been before any other officers or not.
The act entitled "an act establishing a supreme court for Illi­
nois territory" approved December 13, 1814, was the first to
take from the courts of common pleas any of their jurisdiction
and powers; but those courts were not entirely abolished by it.
It impaired their powers and curtailed the duties of their func­
tionaries, but did not annihilate them, and among the resicluum
of duties remaining to be performed by their clerks was, as I con­
ceive, that under consideration. lbid. 337.
But it is insisted by those who put a different construction
upon this law, that it operated to take from the clerks
[*56J of the court of common pleas the custody of the books of
the indentures and registries of negroes, etc., and giving
it to the clerks of the supreme court, thereby to transfer from
the former to the latter officers, the powers and privileges inci­
dent to the keeping of those books. This exclusive authority
claimed for the clerks of the supreme court, is derived under
the thirteenth and fourteenth sections of the law enacting as
follows, to wit:
"Sec. 13. A clerk shall be appointed by the governor of the
territory, in each county, whose duty it shall be to issue process,
in all cases arising in his county; to keep and preserve the rec­
ords of all the proceedings of the court therein; and to do and
perform in his county all the duties now enjoined on the clerks
of the general court, and the several clerks of the courts of com­
mon pleas, except those which relate exclusively to county busi-
ness, of which the court hereby established has no original juris­
diction."
"Sec. 14. Whensoever the governor shall appoint a clerk as
aforesaid, it shall be his duty if any court of common pleas shall
have been established in the county to demand of the clerk of
said court of commpn pleas therein all the books and papers in
his possession, except those which relate to the county business,
of which the court hereby established has no jurisuiction, and
such clerk of the court of common pleas shall deliver the same
under the penalty of one thousand dollars" etc. Ibid. 339.
This language of these provisions of law, it is conceded, does
not leave the question under consideration free from doubts.
The difficulty is found in determining what duties are excepted
from the transfer of duties, from the clerks of the courts of com­
mon pleas to the clerks of the supreme courts. Ifsuch only were

44

1844.] HAYS v. BORDERS. 57-58

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Opinion of the Court.
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intended to be designated by the exception, as solely affected the
interests of counties, as corporations, then the duty of clerks
of the common pleas connected with the indenturing and register­
ing of servants was not embraced therein, and did devolve on the
clerks of the supreme court. But I think that such is not the
proper construction of the language used. My impres­
sion is, that the exception included not only duties relat- [*57]
ing to mere county business, but also such as related
to any and all other business, of which the supreme court had
no original jurisdiction.
In this view of the subject, the extent of the transfer of cleri­
cal duties in this case, would be measured by the jurisdiction of
the supreme court. That jurisdiction is defined, the nature and
character of those courts are exhibited, and the powers and privi­
leges of their judges are enumerated in the sixth section of the
act establishing supreme courts (Territorial laws 337), and the
third section of the law supplemented thereto, passed December
22, 1814. By reference to those laws, it will be seen that the
entire powers and jurisdiction of the general courts were merged
in this tribunal, and that it also absorbed "all the common law
jurisdiction" whether of a civil or criminal nature, with which
the courts of common pleas had been vested, not inconsistent with
the principles of the law creating it; while all the powers and
duties which were, previous to the passage of the law establishing
the supreme comt, vested in and enjoined on the judges of the
courts of common pleas, and the judges of the general court so far
as the same were connected with the jurisdiction or duties of the
supreme court, were vested in and required to be exercised by its
judges. Looking, then, for the limits of the judicial and clerical
powers and duties conferred on the functionaries of the supreme
court, into the laws establishing the courts from which those
powers and duties were derived, and it appears that the supreme
court was clothed with original and appellate jurisdiction for the
trial of civil and criminal causes only, and therefore intended for
purely judicial purposes. Ibid. 303, 305, 312.
Then why claim for the clerks of the supreme court any other
duties than those incident to or connected with its jurisdiction?
Why not fix the same limits to the transfer of clerical, that is by
law assigned to that of judicial fnnctions? The courts of com­
mon pleas being still left in existence, why strip their clerks of
powers and privileges peculiarly appropriate to their office, and
confer them on the clerks of other tribunals, brought into
existence for wholly different pnrposes, when the legisla- [ *58]
ture expressly refuses to clothe their judges with any
powers incompatible with the jurisdiction legitimately exercised
by them? A single instance of the operation of such a construc­
tion will suffice to prove it incorrect. By "an act concerning

45



59 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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executors and administrators" passed September 17, 1807, cer­
tain probate powers were conferred upon clerks of the common
pleas courts in vacation, subject to revision by those courts (to
which it gave plenary probate powers,) in term time. This power
of the clerks was incident to the jurisdiction of the courts, and
such jurisdiction not being conuected with or relating to the
trial of causes civil or criminal, and therefore not passing to the
supreme court, this duty, of course, did not pass to the clerks of
that court. If it were otherwise, then by separating the jurisdic­
tion from its incident, it would follow that the courts of common
pleas would possess the power of revising clerical duties, which
their clerks could not perform; while, on the other hand, clerks
of the supreme court might perform certain duties which that
court could not revise, those duties being, in either case, to some
extent inoperative without judicial sanction. Then this duty, al­
though not relating to county business, did not devolve upon the
clerks of the supreme court, for the reason that it did relate to
business of which that court had no jurisdiction.
But there are other laws in pari materia, necessary to be con­
sidered in the investigation of this subJect. The act of immola­
tion of the common pleas was not consummated by the law creat­
ing the supreme court. Those tribunals, shorn of all their more
general powers and jurisdiction as courts, still survived for pur­
poses incompatible with the nature and duties of the supreme
court, until by the "act concerning county courts" passed De­
cember 19, 1814, they were deprived of their last vestige of vital­
ity. By that law courts of common pleas were made to pass
quietly out of existence, and a new creature, styled county courts,
to supply their place, while, by a sort of legisiative metempsy­
chosis, the soul of the former was caused to enter into and ani­
mate the boJy of the latter.
By a comparison of the provisions of the law establish­
[ * 59] ing county courts, with the enactments in relation to the
courts of common pleas, it will be seen, that the organiza­
tion, powers, duties and jurisdiction of these two courts were
identical, and therefore, that the legislature, instead of creating
a new tribunal, may be said to have only intended, in the exer­
cise of their undoubted prerogative, to change the name of an old
one. But be this as it may, the propriety of indenturing and reg­
istering negroes and mulattoes before clerks of the county courts,
as originally required to be done before clerks of the courts of com­
mon pleas is undoubted. If the powers and duties of the clerks
of the courts of common pleas, in reference to such proceedings,
had not been transferred from them to the clerks of the supreme
court, by the law establishing the latter court, then this law con­
tinued those powers and duties with the clerks of the county
courts; while, on the other hand, if those powers and duties had

46



1844.] HAYS v. BORDERS. 60

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Opinion of the Court.
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been thus taken away from the clerks of the common pleas, they
were hereby restored to their successors, the clerks of the county
courts.
A careful examination of several of the provisions of the law
concerning county courts, will prove the foregoing positions to be
correct. The first section, after providing for the establishment
of county courts, enacts that "the said courts shall have, possess
and exercise all and every of the powers, privileges and jurisdic­
tion (as near as may be,) and perform the same duties, that the
courts of common pleas of the respective counties might lawfully
have performed on the first day of Novemuer last, except so far
as relates to the trial of causes civil and criminal, over which the
county courts shall have no jurisdiction, for the trial thereof."
thus, then, it is apparent, that if the act of December 13, 1814, had
stripped the courts of common pleas of any other attributes than
those pertaining exclusively to judicial proceedings, this law ex­
pressly restores to the legal succession of those courts all such
attributes, thereby leaving to the supreme court no jurisdiction
derived from that source, except in relation to the trial of causes
civil and criminal. Ibid. 345, 346.
But again, by the fourth section it is enacted, that "the
clerk of said court shall be appointed in the same manner, [* 60]
in all respects as the clerks of the courts of common pleas
were appointed, and they shilll have the same power in court, and
in the vacation thereof, and perform the same duties, that the
celrks of the courts of common pleas could or might have done, and
the clerks shall have the same fees that are allowed by law. Ibid.
347, 348. Is not this language sufficiently explicit for the pur­
pose of continuing to clerks of county courts, all of the powers
and duties of clerks of common pleas touching the matter of indent­
ruing or registering negroes, etc., if not previously divestted by law,
or if divested, of restoring them? I think so, most certainly. The
clerk of the common pleas could or might have exercised this
power and performed this duty either in court time or vacation,
and they consequently come within the class of duties and pow-
ers conferred by this section on clerks of county courts. But if
this delegation of powers is to be measured, with reference to the
rights of clerks of the common pIcas to the exercise of powers
and performance of duties, not at any and all times during tbeir
official existence) but at some particular period of time, then this
section is to be construed in connection with the first section, and
it follows, that as this power and duty do not relate to the "trial
by the common pleas of causes civil and criminal" the clerk of
the common pleas could have exercised and performed them on
the first day of November, 1814, and therefore clerks of the
county courts could properly do so, under this law. Then, in any
aspect in which the provisions of this law can be viewed, authority


47


61-62 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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for the performance by clerks of the county courts, of the duty
claimed for them, may be legitimately deduced under this law.
Ibid. 347, 348.
But, in addition to this law, there was another act supple­
mental to it, and intended to relieve it from its supposed ob­
scurity, passed December 24, 1814, to which reference here is
barely necessary, as it did not accomplish its intended office
of explanation. It simply requires, so far as it relates to
clerks of county courts, that those clerks shall perform all
the duties, before its passage, vested in, or required of the
[* 61] clerks of the courts of the common pleas, so far as the same
duties related to the powers and jurisdiction of the county
courts, and "all other duties that had not been transferred either
expressly, or by necessary implication, to the clerks of the supreme
court" but no others. I think I have shown, that the duty under
consideration had not "been transferred either expressly, or by
necessary implicatiun, to the clerks of the supreme courts" and,
therefore, that it is recognized by this law, as belonging to clerks
of the county courts, as, had this law not been enacted, it would
have been.
However, satisfactory as the foregoing conclusions would seem
to be, they can not be said to be removed entirely beyond the
pale of doubt, so far as they go to show the powers and duties
claimed for clerks of the county courts to belong to them exclu­
sively. The law last referred to, as is shown by its preamble,
was the offspring of doubts on this subject, even then, cotempo­
raneonsly with the creation of the several courts and functiona­
ries, whose powers and duties are under consideration, existing.
The necessary consequence of the existence of these doubts was,
that in some cases the clerks of the common pleas tranferred their
books of indentures and registries of servants to the clerks of the
supreme court in their respective counties, and in others to the
clerks of the county courts, according to the construction put up­
on the several laws that have been examined. Therefore, while
we hold that negroes and mulattoes might have been legally in­
dentured or registered before clerks of the county courts, after
the establishment of those courts, we are not prepared to deny
the right of clerks of the supreme court to the custody of the
books containing such indentures and registries, placed in their
hands by the clerks of the common pleas of their respective coun­
ties, particularly if such books contained, also, as in some cases
they probably did, the records of the judicial proceedings in the
common pleas in trials of civil and criminal causes, and were,
therefore, imperatively required to be surrendered to the clerks of
the supreme court. In this view of the subject, the clerks
[*62] of the county commissioners' court, having succeeded to
the general duties of the clerks of the county conrts, are

48


1844.] HAYS v. BORDERS. 63

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Opinion of the Court.
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now the proper keepers of the books of the indenturing ana regis­
tering of the servants, either before the clerks of the common
pleas, or county courts, where, on the organization of our state
government, those books were found in the county court clerks'
office of their respective counties; and consequently the certifi­
cates of those clerks are evidence of the authenticity and contents
of such books.
The inquiry arises in disposing of the next objection to be con­
sidered, whether there is in the record any sufficient evidence
that the book, from which the registry recited in the certificate in
this case is copied, ever was in the office of the clerk of the county
court of Randolph county? If so the certificate of that clerk was
admissible to prove its contents. In the examination of this
question reference should be had as well as to the history of the
registry of negroes and mulattoes, as to the phraseology of the
certificate. Those annals are found in the legislation already so
extensively examined, and show, that although the courts of com­
mon pleas had ceased to exist in 1817, yet their records had not,
but were still extant, and in other hands were in actual use for the
purposes of their original destiuation.
Among other books and records of the common pleas, trans­
ferred on the abolition of those courts to the county courts, were
the books kept by the clerks of the former courts for the registry
of negroes, etc., for the space of seven years. These bookR origi­
nally denominated records of the courts of common pleas as per­
taining to the duties of their clerks, did not afterwards lose that
distinctive appellation, when used to record registries by other
clerks. Such, undoubtedly, was the fact in this case. The clerk
of the common pleas of Randolph county kept the registry of ne­
groes, etc., until his office was abolished; the clerk of the county
court succeeded to its custody. and, as authorized by law, entered
the registry of negroes, etc., in it, until he, in his turn, gave way
to the clerk of the county commissioners' court and transferred
to his hands this among the other records of his office.
The county commissioners' clerk, thus becoming the
successor of the clerk, not of the common pleas, but of the [*63]
county court, acquired the right by derivation from the
latter officer, to prove whatever he could have done touching
this record, but nothing more. He might, therefore, properly
authenticate it as a record of the county court eo nomine, or of
the common pleas as having been transferred from that court to
the county count, and from it into his office. Does not the cer­
tificate under consideration thus establish the book, from which
the registry set out in it is copied, as that record? Purporting,
as it does, to be a record of the common pleas, and having been
proved by the certificate to have been transferred to the office of
the clerk of the county commissioners' court, it does not require
4. GILM. VOL. 1.

49

64 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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the aid of very violent presnmption to trace it back to its origin
in the office of the clerk of the common pleas, and thus to identify
it as the book in which the registries of negroes, etc., wera en­
tered by the clerk, as well of the common pleas as of the county
court. The certificate is, therefore, sufficient, in my estimation,
to prove the registry of the servant Sukey, as having been en­
tered by the clerk of the county court. Either the book copied
from, or the particular entry copied, may be considered as exist-
ing among the records of the common pleas, the former as being
a record of, or pertaining to that court, the latter as being entered
among the records of the registry of negroes, etc., made by the
clerk of the common pleas, although not a record of that court itself.
The only objection to the certificate remaining to be consid­
ered has already been disposed of by this court in the case of
Phoebe v. Jay, Breese 207, so far as it goes to attack the registry
for not showiug by whom the person registered was brought into
the territory, nor that she was registered within thirty days after
her arrival. By the authority of that case, and subsequent ad­
judications affirming it, it is settled that the facts necessary to
warrant the registry need not be recited in the registry.
The remaining branch of that objection is likewise unavail­
ing to defeat the registry. The law is sufficiently complied
with by the registry in describing Sukey (the servant
[*64] registered) as being, at the date of the registry, about five
years of age. This can only be construed as indicating
that as her exact age, as it was unquestionably intended that it
should do. This, then, constitutes no valid ohjection to the reg­
istry, or if it does affect it at all, does not render it wholly void,
and therefore cannot properly be here inquired into.
I come now to consider the question of the legal admissibility
in evidence of the depositions of Peter Frans and Sally Newman,
read to the jury by the appellee and objected to by the appellant.
Several objections were made to these depositions in the court
below, and are again suggested here, but one only seems to have
been relied upon, and the other, therefore, need not be noticed.
That objection is that the notice of the taking of these deposi­
tions was insufficient, "in this, that it did not state the name of
the officer before whom such deposition would be taken, nor the
residence of the said witnesses." The alleged defect in the
notice does not exist. It does designate "the clerk of the cir­
cuit court of Knox county" as the officer before whom the de­
positions are to be taken, and specifies the time and place of tak­
ing them. It does not, however, and need not, state the resi­
dence of the witnesses; that office was properly performed by the
affidavit filed by the appellee. R. L. 226; Gale's Stat. 244, § 2.
The next question arising upon the records, and made by the

50


1844.] HAYS v. BORDERS. 65

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Opinion of the Court.
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assignment of errors, grows out of the refusal of the court to give
certain instructions to the jury, as asked for by the appellant's
attorney, and the giving of certain other instructions in their
stead, and the giving of a certain instruction asked for by the
appellee's attorney. First, as to the instructions requested on
the part of the appellant. They were as follows, to wit:
1. "That if the jury believe from the evidence that the de-
fendant is guilty, as charged in said declaration, then the plaint­
iff can only recover in this action the value of the services lost
up to the time of the commencement of this suit, and the reason-
able expenses necessarily incurred in getting said servants back
again."
2. "That the jury must believe, from the evidence,
that the said Sukey and her children were bound to ren- [* 65]
der service to said Borders as his apprentices or servants,
before they can find a verdict for the plaintiff."
These instructions the court refused to give, in the terms in
which they were asked, and instructed the jury, in lieu of the
first of said instructions, "that the plaintiff, if entitled to recover
at all, would be entitled to recover the value of the services lost,
up to the time of the commencement of this suit, the reasonable
expenses necessarily incurred in getting said servants back again,
and damages for loss of time, trouble and injury sustained, until
the commencement of this suit, in consequence of the taking away
of the negroes;" and, instead of the other, "that the jury must
believe, from the evidence, that the said negroes were servants
or apprentices of the said plaintiff, before they could find a verdict
in his favor."
In 4 Moore, 12, it is said, "that the measure of damages in this
action is not to be ascertained as the actual loss plaintiff sustained
at the time, but for the injury done, by causing the servants, etc.,
to leave plaintiff's employment." Tested by this rule, the action
of the court in refusing the first of these instructions, as asked
for, and giving it as modified, was correct. The former would
have limited the appellee's right of recovery, for a part only of the
injury sustained by him, "by the causing of his servants, etc., to
leave his employment;" the latter measured the damages to be
recovered by the entire injury sustained. But this was right on
general principles. The tort feazor, in an action like this, is re­
sponsible for all the conseqnences growing out of his wrongful
act, and the right of the party injured by him to redress, is com­
mensurate with his liability.
The testimony preserved in the record in this case shows that
the appellee and his son spent much time, and incurred great
trouble and expense, in necessarily making several long journeys
to a distant part of the country, to which his servant and appren­
tices had gone, 01' been taken, for the purpose of recovering pos­

51

66-67 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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session of them. Of course, in having his servants thus
[* 66] enticed away from his possession, and in being himself
forced to leave his home, to the neglect of his ordinary
avocations, to go in pursuit of them, he was necessarily injured
to an amount greater than the pecuniary expenses incurred, and
the value of their services lost by him. Did not these conse­
quences grow out of the wrongful act of the appellant, if guilty?
Most assuredly they did. Then, why not allow the appellee to
recover therefor? The instruction asked for admits his right to
recover for the expenses incurred by him, while in pursuit of
the servant, etc., enticed away; why not allow him for the value
of his time, when thus employed, also? The distinction is not
apparent.
In reference to the disposition made by the court of the other
instruction asked for by the appellant, we are not prepared to say
that the court erred in refusing to expound t he law as he desired,
and in the language suggested by him for that purpose. Indeed,
it would be difficult to point out any material difference, between
the instruction asked for and refused, and that given. The one
placed the appellee's right of recovery upon proof that Sukey
and her children were bound to render service to" him "as his
servants and apprentices;" the other "that the said negroes were
his servants and apprentices." If they were his servants and ap­
prentices, they were bound to serve him as such; otherwise not.
Then, is it not apparent, that if the instruction, as asked for, gave
a correct exposition of the law, as to the proof necessary to war­
rant a recovery, that given did a1so, and in such terms, as clearly to
enable the jury to understand their duty? It is probable that the
circuit court feared, that the instrnction, if given as asked for,
might mislead the jury, and therefore chose to give it in different
words. This it had an undoubted right to do, without thereby
in the least degree derogating from the appellant's right. A court
may not indeed refuse to give any instruction to the jury com­
patible with the law, and applicable to the pleadings and proof,
when called for by either party; but, in giving such instruction,
is not imperatively bound to adopt, as its own, the language in
which it may be asked. That language may, and when
[* 67] in the estimation of the court, it is calculated to mislead
the jury, should be so modified or changed as to prevent
such a result; but not so as to alter the proposed exposition of
the law; that would be tantamount to a refusal to give the 1n­
struction, and therefore erroneous.
The instruction asked for by the appellee, and given by the
court as the appellant alleges erroneously, was as follows, to wit:
"that if the jury believe from the evidence that the plaintiff lost
the entire service of the registered woman, in consequence of the

52


1844.] HAYS v. BORDERS. 68

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Opinion of the Court.
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defendant's acts, the plaintiff is entitled to the value of her term
of service." This instruction is said to be erroneous.
First. Because the declaration nowhere claims for an entire
loss of the services of the registered woman.
Second. Because a portion of the term of service remained un­
expired at the commencement of the suit.
The first of these objections is answered by reference to the
second count, which states that the said servant was wholly lost
to the appellee by means of appellant's unlawful act, etc.
To support the second objection, the case of Hambleton v. Veere,
3 Saund. 170, is mainly relied upon. That, however, I think,
was not an analogous case. There the action was brought for en­
ticing away an apprentice, in whose services alone the master had
property, and the declaration claimed damages for the loss of
services as well as for the time past, as for the residue of the term
remaining unexpired at the commencement of the suit, and it
was held that the action could not be maintained, and properly
so as the master could not be said to have been deprived of the
benefit of services, which, at the commencement of the suit, and
even at the trial, had not become due. But here the case is very
different. The master sues for enticing away his registered serv­
ant, recognized by the laws of the state as his absolute property,
during the entire term of service, and alleges the entire loss of
such property when he sues. If such allegation is sustained by
proof, is he not entitled to recover accordingly? Then suppose
that although it appears at the trial that even then the term re­
mains unexpired, and yet that the servant was, at the com­
mencement of the suit, wholly lost by the master, as by
having been before that time, removed to some foreign [* 68]
country, where legal process would be entirely unavailing
to recover possession of her, would not the allegation of entire
loss be sustained thereby? I think it would thus be as fully sus­
tained as if the servant had been killed, or her term expired:
for all purposes of benefit to the master, she would be considered
as having passed out of existence. On such proof, the plaintiff
would unquestionably be entitled to recover the full value of
the term. Well, in this case the testimony shows that the serv­
ant in question was enticed away from her master, on the thirty­
first day of August, 1842, and had never afterwards been in his
possession--that she was registered on the tenth day of January,
1817, being then five years of age, to serve until she became
thirty-two years old, and that consequently her term expired on
the tenth day of January, 1844, after the commencement of the
suit, which was on the eighth day of February, 1843, but before the
trial, in April, 1844. This testimony taken in connection with the
fact also in proof, that the appellee made constant but unavailing
efforts to regain possession of her, after her elopement, fully sus­

53


69 HAYS v. BORDERS. [Dec. T.

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Opinion of the Court.
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tained his claim to the value of her entire service, and warranted the
instruction given by the court. It is also sustained by the positive
authority of Dubois v. Allen, referred to in Anthon's Nisi Prius,
83. It is there said "that in actions for enticing away plaintiff's
servants the general rule of damages is the value of the service
during the time the servant has been absent, etc. But the jury
may, in certain aggravated cases, give the whole value of the serv­
ant by way of damages."
The only question remaining to be considered, is that growing
out of the alleged error of the circuit court in refusing to allow
the appellant's motion for a new trial. The grounds assigned in
support of that motion were the following, to wit:
" First. Because said verdict is contrary to law;
Second. Because said verdict is contrary to evidence;
Third. Because improper evidence was permitted to go to the
jury; and
Fourth. Because the court misdirected the jury."
The last two of these grounds have already been fully dis­
cussed, and found to be untenable. For the disposition of
[*69] the others it will be sufficient, without encumbering this
opinion with the testimony found in the bill of exceptions,
to say that it was proved on the trial by the confessions of the
appellant and other testimony, making out an irrefragable chain
of positive and circumstantial proof that he was knowingly and
wilfully guilty of the wrongful acts charged upon him by the
appellee in his declaration, and consequently the verdict was
neither against the law nor the evidence. The court properly
refused to grant a new trial.
The judgment is affirmed with costs.

LOCKWOOD, J. dissenting: I do not COllcur In the opinion just
delivered. I think that the registry of a servant before the clerk
of the court of common pleas, after the court of common pleas
had been abolished, was void. I am also of opinion that the reg­
istry is void, because of the uncertainty as to the age of the serv­
ant attempted to be registered.

Judgment affirmed.
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