Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-10-03
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Opinions OF she supreme court q the STATE
az SEPTEMBER reSIas 1885, r1
KsliJ &C. Daviss
This suit Wss oommenced before Justics Of the
JD.eoo under the third section Of the set oflel3 Oh
ISs vbioh prohibits ell irRie With slaves Except
for articles of 'theiP own msnufactme'') without
permission Of the o81er The a6ast sscti5n1prs-
scribes the penalty. and Likewise the mode Of re.
covsry, as follows; The person 60 offending ssshal
be fined in q sum not less than I've, nor mora than
ten dollars 30 be recovered before any Justice q
the Peace Of the county wherein such offence shall
be committed; one half to the use Of the person
who shall sue for The same the other half to the
owner Of such slave or slaves In that part of the
act which declares the penalty, t-ere is want Of
exact technical precisiot- in the use Of the word
tffned," but notwithstanding, from the whole Of
the first section taken together the meaning of the
Law is plain enough. The mode Of recovery con-
templated By the Legislature was not IS has been
assumed, in the form Of criminal proceeding. The
inaccurate Of the word '.fned, upon which this
assumption is based does not warrant any such
construction. The meaning obviously Is, that the
offending party should be subject to the penalty of
not less than five nor than ten dollars, in the
discretion Of the Justice The construction con-
tended for derives no support from the omission Of
the Legislature to prescribe eng form Of action Il is
q familiar principle Of pleading that il statute
prohibit the doing OF an act under penalty Of for
feiture and do not prescribe any mode OF recovery
debt may be maintained. Chitty's PL 127.
The objection, that no right Of recovery is given
TO the masier or owner Of the slave, ia not well
founded. True the statute does not, in, express
tsFms give the master the right to sue for the pen
altyi but il must be implied that il the inten>
iion Of the Legislature that be should have such
right The master, in general, 10 the person njur-
ed By the violation Of the statute and, in reason.
the recovery zh0uld inuIe 20 his benefit, And The
Legislature Intended not 90 deny him the right OF
hut At efo
in before him and sought to recover the penalty
still one half Of the penalty should inure TO the mas
ter's use Thus fa=, and upon all the other points
made in the case the instructions Of the Court were
correct except as to the effect Of the parol evidence
Of q former recovery.
The plaintiff in making out his case before the
jury, would seem from the record before US, saw
proper to prove the fact b. his own witness that he
had recovered former judgment against she defen-
dRnt for So before Justice Of the Peace, for the
Of aotiOn for which the present recovery
was had. Of this no explanation is given in the
proof and pTid facis the former Judgment was reg
Ulsrly obtained and remains in full force. The de-
PENDANT offered evidence whatever as it appears.
Acting upon the Assumption as for the present, we
feel bound to do that such former judgment was OBJ
tanned. the present suit cannot be maintained The
plaintiff, who Voluntarily made this proof, cannot
escape the consequences on the ground that the
record Of the former suit was not produced. Ii is
very true that the defendant could not have set up
this ground Of defence without the production OF
the record, had not the plaintiff by his own proof
dispensed with the necessity ofthe higher evidence
The point is that the plaintiff, by his own evidence
which allowed to go to the jury withot any OBJ
lection either side has defeated bis right 10 main
tain the present action Taking the case as present.
ed in the record, the judgment must be reversed on
the later ground alone. On another trial The plain
tiff will have opportunity to present his case proper
", and the defendant to make his defense.
Judgment reversed MCKIKsEY
Test: c. W. NELSON, CLERK.