Wilson’s Red Book, 267
Court of Common Pleas of Delaware, Sussex County.
November 17, 1799.
Bayard and Ridgely for Draper. Vining an Hall for defendant.
Defendant’s counsel entered a disclaimer for defendant.
Plaintiff’s counsel said they could not prevent the disclaimer but moved for judgment as in the Act of Assembly. Defendant’s counsel urged that no judgment could be entered.
PER CURIAM.
We cannot enter a judgment that shall affect the rights of others, but only as to Freeny. The entry is thus:
And thereupon it is considered and decreed by the Court that the said Negro Draper is entitled, and that he do enjoy, all the benefits and advantages that a free Negro may or can do within this government, and that he be free and at liberty in regard to any right or claim of the said Thomas. Freeny, saving nevertheless the rights of all other persons whatsoever.
Bayard prayed an execution under the Act, c. 170a, s. 2, [1 Del. Laws 381] and said the disclaimer only amounted to what they expected to prove to entitle them to execution, and that was that Freeny had no right. Also, if it appears on the return of this writ by evidence to the satisfaction of the Court that Freeny had the Negro, the further writ can issue; but if Freeny had not the Negro, this execution can do him no injury. The case is precisely the same as if a judgment had been entered without a disclaimer.
Page 249
Vining. The “judgment . . . aforesaid” in the section [3] read alludes to a judgment against a real or pretended master and in this case there is neither a real nor pretended master, and execution cannot go but after such judgment as is mentioned in the Act. There is no person discharged from the custody of a real or pretended master, for Thomas Freeny has disclaimed that he is either a real or pretended master, and therefore no execution ought to go to take the Negro out of his hands where it is evident and known that he is not to be found. And if the Negro ever was in his hands, as he disclaims all right, the proceedings to be adopted for the Negro are such as any other free man has a right to when unlawfully imprisoned or confined.
PER CURIAM. BOOTH, C. J. Let the execution go. At the instance of Bayard it was ordered to be made returnable forthwith.