Clayton v. Solomon Banks — 1 Del. Cas. 520

Majority

p. 520

JAMES CLAYTON v. SOLOMON BANKS, Negro.

Court of Common Pleas.

December 3, 1814.

Clayton’s Notebook, 37.

p. 521

Hall, contra.

In cases of petitions for freedom, which are similar to this, a copias never issues, but a summons. Besides, plaintiff might have presented his petition before the term expired.

BrincTcle.

This case [is] materially different from petition for freedom. There petitioner demands his freedom only; he claims no duty, the recovery of which the pretended master might avoid by absconding, but here we claim an indemnity for our losses by service, which defendant may avoid if permitted to go at large, 1 Del.Laws 211. As to the loches imputed to us, we are clearly guilty of none, as defendant was never within our reach until his term of servitude had expired.

The motion seems reasonable. Let the writ issue returnable forthwith.

Hall today moved to discharge the Negro on filing common bail. He read the indenture and assignments.

BrincTcle opposed it: first, because he had no notice, and so Hall could take nothing by his motion but a rule nisi. Plaintiff, he said, was taken by surprise. At any rate, as plaintiff had verified his petition by affidavit, and as the Court had thereon awarded a copias, they would not now turn about and discharge the defendant. This would make the copias frivolous. Besides, defendant will be out of reach before we can proceed a step further.

It would be hard to detain defendant until next term in prison. The Court think he should be discharged on filing common bail.

Rule granted.

Hall and Way, Justices, absent