STATE vs THOMPSON, 2 Overt. 96

Overton J. sitting alone. If there were any defects in the indictment, we might entertain a motion to quash, or in arrest of judgment, but they cannot come in view on the trial of the issue. It is urged that the defendant had a claim to the negro in Mr. Deadrick’s possession, and therefore he had a right to take her, relying upon the doctrine of recaption in 3 Bl. Com. 4. There is no room for the application of this principle here.-When property is lost, and found again, the owner may take his property without inquisition, or other process.

But when an individual claims property, to which another has a claim also, he is not justifiable in using any kind of force, either actual or implied to regain property. The law is the arbiter, and recourse must be had to it. If two men are disputing the property of a horse, and he is in the possession of one, being in his use, the other cannot without violating the order of society, take and carry him away. It is not necessary that there should be personal violence to make an indictable offence.

The examples of indictments for cheats 3 Burr. 1199 per Wilmot J. killing a horse 1 Dall, 335, breaking a house, as in Burrow—all show that personal violence is not necessary to make an indictable offence; the case in 1 Hay 13 per Williams justice, decisively puts the case before the court at rest, that was an indictment for trespass, in taking negroes—it is in point, and the reasons given by Judge Williams are, irrefragible. It is of the first moment, that this species of property should be inviolably guarded from the control of others the their master.

Verdict for the state, and at another day the defendant’s counsel moved the court to impose a fine. Per Curiam. Is the defendant in court? for the court have a right to his presence, when it is moved on his behalf to inflict the punishment. The court deferred giving any opinion, and at another day the defendant came in, and was fined only. They differ from all other kinds of property; they have reason and volition.

Where a slave is in the possession or ordinary empolyment, of a person, and another takes such slave away, it should not be matter of inquiry with the court, whether the negro was willing to be taken or not.