326.973 St82r 1839f KTtbHySmvEL, EM SLAVE CASE IS59 wokcester I6S9 ^ 9 \ CENTRAL CIRCULATION AND BOOKSTACKS The person borrowing this material is re- sponsible for its renewal or return before the Latest Date stamped below. You may be charged a minimum fee of $75.00 for each non-returned or lost item. Theft, mutilation, or defacement of library materials can be causes for student disciplinary action. All materials owned by the University of Illinois Library are the property of tho State of Illinois and are protected by Article 16B of f/lino/s Criminal Law and Procedure. TO RENEW, CALL (217) 333-8400. University of Illinois Library at Urbona-Champoign tW 0 1 2000 When renewing by phone, write new due date below previous due date. L162 Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/reportofholdensl00stra_0 IIVT RODUCTIOIV. In the present state of our country, every fact whiVK has a d.rect or even indirect and remote bearin J’on momentous subject of American Slavery, is of some im port^ance Few, if any of our Norther/’citizens ^roS to hold slavery m any other estimation than the uro- foundest abhorrence ; and yet, it is undeniable that v^erv many either tolerate its existence in silence, or exer^ but a very inadequate influence for its removai Abstract Slavery every one abhors ; but of slavery as It exists so little IS even yet known that most seem to regard it as mainly a nominal evil, and, therefore e^ne lence very hule sympathy with those who are calFed slaves. To dissipate this darkness and overcome ibis Sm’ ®ohghtened and active friends of the slave ou ht to stand ready to seize upon, and skilfully use such facts as are evolved by the providence of God adaoted necessary operation of the ’inhuman particular allusion is made are the followino-. ° ^ iUxists natural operation of the system of slavery as tLns of domestic and social rkl to reside^ community among whom these persons went 4 There ere, also, ex“mp“'the a^a?: counted for m Eames touching the health of the “"TheTblg overfaTed “h°e elverity, with whioh triv^^^ called “crimes,” was inflict- punishment lor tnv Utevavy and religious ed ; and the her stay in Holden. education of Anne in^ important it is that the ■^.h'of New Said reieWe earl/ and full inatruCion youth ot JNew Ji.ngi of slavery ; and how m- in the true citizens of the North as have timately .^ith the evils of the system ; and relatives at ^^ou^h with^t gj how liable are the w , even with favor. It is with moderated nersoiis in New England, well known that other professors of the among whom are mm ^ tj^is moment, so benign ''f Sou^h and ‘tot these persons al- connected with the . I interference with most oniformly stand alool iron^ this foulest of as “ fanatical andincen- 5?’" 'rmid'“«iy effoft made to awaken the people diary and mad, anhipct It was under the con- to a consideration “/‘‘‘e subject it aoatribute eiction that the f important topics be- to undeceive our that the publish- longing to the Sf®?' ®“ iugi, the following Report, ers^ere Remark, that the Re- And here it may be imp port may be relied the time by a reporter and piled from minutes taken Counsel for the defend- SoseofthcHon. ^harl^ . ants. Mr. Allen of the points in evidence ers with a succinct ^ established, if the which would have District Attorney, when rS'fo^r^n w^nesse, on the defence ^tuw o^'^ilSSevin, bei^ believed, being the first trial un It, t P is deemed of the more ‘<”P»«““ “ this law « Neither should it Xed persons from extend to ever, class of the people. COMPILER- R EPORT. The case of Commonwealth t><. Samuel Stratton, Samuel Foster, .Tames E. Cheney, and Farnum White, Jun who were charged in the indictment with a conspt- racy\o defraud Olivia Eames of Holden, of the voluntary services of her servant girl, named Anne, without her consent, — came on in the Court of Common Pleas, la flji® town, (Worcester) on Tuesday, January 29th, 1839, Judf^e Strong presiding. Pliny Merrick, ^q., District Attorney, conducted the prosecution ; and Charles Al- len, Esq., appeared for the defendants. Mr. Merrick, in opening the case, stated that Mrs. Eames, the party aggrieved, was a native of Worcester County — that she was married to Mr. Lames, also a na- tive of this County, who a few years since removed with her to New Orleans. There he acquired some property, and, among other articles, came in possession of a num- ber of slaves. In 1837, he died; after which, Mrs. Eames sold her property, excepting the girl Anne, then 12 or 13 years of age. She was retained as a house ser- vant and nurse ; and accompanied Mrs. capacity, on a visit to Mrs. Eames’s friends in Grafton and Holden, in Massachusetts. c* ,.Lx>xxr<>. Of course, as soon as she came hnd as free as any native born citizen of this State, and had the right toJemain with or leave her mis ress as she saw fit. The highest tribunal has decided that, if a per- son come here on business or pleasure, S » the slave becomes fiee. u,. In the session of 1837, an pJ the Legislature of this State.* By that act “oy person is entitled to the Writ, unless indicted for ®o'^® ®^®J®®|. He may go to the Clerk and demand it. No power ot • Sea Raid Act at the end of this Report 6 7 Attorney is to be required and no express form is neces- sary. Any person for and in behalf of the plaintiff may sue out this writ. If Mrs. Eaines did innprisf)n her, she might be brought into Court, and she might apply to the Court for security. But the allegation, in "the indictment, is, first, that Anne was not restrained of her liberty at ‘til. Anne was there voluntarily. She did not suppose that her liberty was in- frineed. Yet the defendants sued out the writ, while there was no duress. It is alleged that Anne had no knowlediie of the writ. This is an offence, and it is the offence charged in the indictment. No persons, claiming to be the friends of Anne, had a right to sue out this writ, without her consent. Still, we must be careful not toin- fringe cn the rights of minors. Few, if any, children of those who are educated, know any thing of the writ of personal replevin, much less, one brought up in bondage. If Anne, in any way intimated a desire, directly or indi- rectly, that aid in some form should be granted, the de- fendants are not only excused but justified. If it was done without her knowledge or consent, the defendants are liable, Anne not being in bondage. Undoubtedly, the defendants understood and believed that it was the pur- pose of Mrs. Fames to carry Anne back to Louisiana, where she would be in bondage The defendants thought this was wicked, and the dictates of humanity required that they should interfere. But the motive maybe good, and yet the laws must not be violated from such motives. Some think the business of distillation is pernicious. Now, suppose a philanthropist should think that a labor- er in the distiller’s employ was endangering his health and his soul, and should sue out this writ, for the pur- pose of removing the laborer from the service of the dis- tiller. The motive would be good, but the act would be a violation of the law. So, if a slave should be brought here, and prefer to go back into slavery, we have no right to prevent it. It was so with Anne. She had a right to return and be a slave. The offence charged is the contpiracy. No subsequent ratification by Anne could jus- tify the act of the defendants. If the defendants did de- sign to take Anne and educate and christianize her, if she did not desire it, though she afterwards ratified it and blessed God for their efforts, still the defendants would not be justified. Instances have occurred in this Common- lUaUhy tehere individuals having had their freedom here, and having been treated kindly, have voluntarily gone back into sla- very. We should proceed in this trial as we do in other tri- als, whatever are our sentiments on the subject of sla- very. I hope no prosecutor will be found who will abridge the right of personal liberty. If these individuals were actuated by philanthropic motives, these things will be considered by the Court. I enter on my duties with feelings neither elevated nor depressed. r Mr. Merrick exhibited the Writ above-named, dated Sept. 7, 1838, and a bond signed by S. Stratton, S. Fos- ter, and James E. Cheney, and witnessed by Farnum While, Jun. He then called upon Charles Allen, Esq., who testi- fied, that Samuel Stratton and Elnathan Davis applied for a writ of personal, replevin two or three days before date of the writ. They said that Mrs. Fames had in her custody a Slave, brought from the South, whom she in- tended to carry back and sell — they did not like to lake the girl by force from Mrs. Fames, but wished to do it in a legal way. He understood from them that the girl desired her liberty. He told them of the legal rem- edy — had several interview's with them — the writ was made out under his direction, and the bond was written by him, but not executed at his office. Mr. Foster called to see about signing the bond as surety. Mrs. Olivia Fames being sworn, testified, that she spent the summer of 1838 in Holden and Grafton. Her mother is Mrs. Betsy Sherman of Holden. She, (Mrs. E.) came to New York in 1837, and to Holden in May, 1838. Her husband was Lowell Fames, formerly ofUp- ton. He went to New Orleans in 1835, and died there in 1837. Anne was in her employment as her slave, and all the time, since she left NewOrleans, she never knew her to express a wnsh to leave her, in any instance. Anne often expressed a loish to return to JSTew Orleans. I proposed to leave my babe at the North. Anne tcanted to go back — was 14 years old then. I was in Holden at my father’s house. Anne’s employment was to take care of my child, and to go of errands ; went to the neighbors freely, some- times went with the babe. I was absent from home occa- sionally ; don’t keep house ; none of the family were at home but my mother, and a brother 10 years old, and a brother 7 years old. Mr. Flagg lived in the house at that time. Mrs. Flagg was at home. I saw Stratton, 8 Foster, Cheney, White, and Hinds at Judah Wright’i first. When F. White passed the house, the girl was m the garden picking apples. Jim w housi and went to go where the girl had been, but she had come to the house. I went out to see what they were looking after — did not think it was the hlack girl. Cheney came to the door and asked for mother-I asked them to sit down — Hinds said that he understood that I had a colored girl in my possession— I said I had^ he said that he had come to take her away. I told him I could’nt help it, he couldn’t have her. He said he had authority to take her, and read a paper. I told him 1 didn’t know any thing about il;— didn’t care who author- ized him — he had no right to take her. He asked to see her I told him she was in the back room— went to call her. He followed. 1 went for her, but she wasn’t there. I went up chamber — Anne was out back with my child. Hinds and Jim Cheney were attending to their business the best way they could. I called her in, told her, Mr. Hinds wanted to speak to her — Hinds asked her age, she did’nt know — he asked me, but didn’t find out he said to Anne, will you go with me r She said, no. Mr. Hinds patted her on her head — told her he would not hurt her— he would take her to Worcester— Worcester is a beautiful place- 1 told him if he took Anne he must take me and the child too. He didn’t seem inclined to take us. Cheney went out and came back with Stratton and Foster. You have been out for more help, I said ; if you get more help you will not frighten me. Anne went into the bed-room ; Hinds went in after her, and Jim Cheney next. Anne began to cry — Hinds ^told her not to be frightened, and like of that — coaxing her. Hinds told me to take the child. I wouldn’t take it, and mother wouldn’t. Then Mrs. Flagg took it, so he ^ot rid of it. He asked for pen and ink — refused. F . White brought in pen and ink. I took hold of Anne, and Anne took hold of me. Sam Stratton was in the room. Che- ney was called back — said they had help enough, but Hinds commanded him to assist. Jim Cheney took hold . of me; Hinds took me round the waist. Hinds threw me on the bed. 1 told them they ought to be in better busi- ness — they were insulting — they separated us. Foster and Stratton were trying to hold a pen in Anne’s hand to make her make her mark — I don’t know nothing what the paper was, and nothing about it. I scrabbled round I 9 Mdgol away from Hinds— Anne was in the road and Stratton had hold of her — I was so flustered that I did’nt see Cheney, guess he was about somewhere, Foster was writing on the wall— went to see what he was up to— look hold of the paper and pulled it away from him He said it was well I didn’t tear that paper, I should have had to ^o to State Prison during my life, if I had— I went back into the house to see niy child, and they carried Anne off. Stratton said in the bedroom, well, well enough has been said, take her along. I didn’t see her after they carried her off. Saw her in Grand Jury room have not seen her since. When at the table, told my brother to run for father and Mr. Putnam. I always lived ill Upton till I went to New York six years airo remained there till 1835. ® ’ Examined by Mr. Men . — Said, Anne went out with oth- er children. There was a school in the neighborhood she didn’t go to school, or to meeting since she came from Louisiana. Her principal work was to nurse the child, and to do other chores, such as I chose to have her do. She sometimes went to Judah Wright’s and o-ot a pail of water. We lived at the top of the hill, and Wright down the hill— it was’nt so steep a hill as I have seen— the hill is there and you can see it. She did not bring 10 pails of v/ater in a day — some days, not any she carried it on her head— I told her to, as she could bring it easier, she was most used to that way — didn’t see her spill the water. Question was then put to Mrs. Fames by Mr Allen whether she intended to carry Anne back a.s a slave.’ This question was objected to by Mr. Merrick, who re- marked-Mrs. Fames has not ventured to say that she was in her voluntary service. Objection was overruled by the Court. ^ Qmlion by Mr. Alien . — What did you intend to do with her . Ant. / did not intend to compel her against her will. 1 suppose she would tell me what she wished. I never cmidered her property, after / came to the Morlh— never called Mr property after I came into this free country. 1 never jnade no application to any one in New Orleans to buy her afterwards. I gave no commission about (he sale of Anne I had no negociations to sell her there, when she returned. If I went back to live in New Orleans, I should set very much by her — I don’t think I said I Should carry Anne back. It was my intention to go back 3 10 11 —I don’t know that I should have asked her consent to carry her back— can’t tell what 1 should do— should car- ry her, if she was willing to go — I had no more interest in her than in any other — I always set by her I never told her she was a slave or free, told her she was to live with sister June, if I did. Her health has not been injur- ed hy parrying water and other loads. I don't recollect say- ing she would answer rny purpose as long as I wanted her. Mrs. Caldwell said, I had better call a physician and do some- thino- for her. I didn’t say she would answer long enough for my use, never. I did not say that no body ever heard of sending for a doctor fora negro. Hinds took me in full possession. Scratch 9 Shculd'nt think strange if I did. Bite ? They know best if they got bit. Col. Hinds called.— I made service of the writ of personal replevin. I think, I took it from my table, Mr. Allen did not furnish me with the form of a return, when I took the writ. t i l The writ and bond I took together. I went to Mr. Judah Wright’s, I think Mr. Cheney went with me to Wright’s ; neither of the Def’ts was there while I was there. I stopped at the door. I saw the deft’s first at Col. Strat- ton’s. Found Stratton, Foster and Cheney there. My partner told me to call there, as there would be sureties there to sign the bond. Bond was not feigned there. 1 told them it was necessary for the girl to sign the bond first. The next I saw Stratton and Foster, they came into the house at Mr. Sherman’s. I did not see Anne make her mark to the paper. I saw Foster and Stratton sign their names, one did it out of doors, I am not sure but both. Anne stood in the road close by , when Foster and Cheney signed their names. Anne was pretty much, alone. I took the paper. They walked down to Chen- ey’s. Stratton, Foster, and Cheney came there, no one led her. She walked independently by herself. I was be- hind her. There was a carriage at Cheney’s. Foster, Stratton and Anne were in the carriage. I took the paper. Asked Anne if she made her mark. She said, she did. I got Mr. White to witness it. She sat on the backseat. Would not be seen from the houses as she passed. I did not hnow where she was going. I told her she was going to Worcester. I told Stratton and Foster, they must take charge of her. I don’t recollect making arrangements with Foster and Stratton to take her, before I took her from Mrs. Fames. Mr. Stratton lived 2 1-2 or 3 miles from there, Mr. Foster 1-2 a mile, or more, farther. They would come past the meeting-house to get to Stratton’s. I told Anne at Mrs, Eames’s 1 think, that she was goino- to Worcester. “ Cross Examined.— 1 directed Mr. Foster and Stratton to take Anne and put her in some safe place, where she would not be taken ^away or stolen. We weht to the house of Mrs. Eames — were invited in — I inquired for Mrs. Eames. Mrs. Eames came. I asked her if she had a colored girl with her. She said she had. 1 told her I came to take her. She said she did not know what busi- ness 1 had to take her girl. I told her I would show the authority. I read the writ. She said, I might take my writ and go home — I should not have the girl. I told hep I was bound to take her and must take he'r. I must take her at all events. She said she would call her. She did not find her. We walked out and walked round. Cheney went to the back-house door — it was shut. He called ; Anne answered. I told Anne, I had come afterher to carry her away. I asked her if she wanted to go. She droppedher head, and said, “ I don’t know.” Her mis- tress spoke and said, “ don't know, Anne 9 you know you don't want to go." Anne made no reply. Mistress spoke very quick. I then talked with Mrs. Eames some time, told her to be quiet. If I did what 1 ought not, she would have a bond to cover all expense. After trying a great while to persuade her to give her up peaceably, the "irl went into a small room. I went there— Mrs. Eames fol- lowed, and took the girl round with both hands and held her tight. I asked Mrs. Sherman to take the child. She would not, I took the child myself, and Anne let go of it. 1 stepped into the kitchen. I saw several youn^ ladies, I asked one to take it. She said she did not know as it would answer. I told her I would stand between her and harm. She took it. I stepped back into the little room. Mrs. Eames still stood clinched round the girl. I called upon her to give her up. She refused. I took hold of one of Mrs. Eames’s hands, and Cheney the other. Mrs. Eames resisted violently. She tried to bite and scratch. Our throwing her on to a bed must be a mistake. It must be some other time and person. There might have been a bed 111 the room, but I think there was not. We were there an hour and a half trying to persuade her. I said every thing I could. She was very violent the whole time, f vised as little violence ar nossible to effect the object. 12 She clinched at the paper o«cc, but did not get hold of it I was close by, Foster was there with the paper. She was out at the wall, 1 think, when they signed the paper. I heard no such declaration of t oster at the walL TlvL-d no such declaration of Mr. Foster at any time as, you would have had to go to State Prison, &c. If such a d^laration was made, I must have heaid it. I was very dose to Foster, when he put his name to the boniL After Anne had left her mistress, she went very willing y as perfectly composed and calm. She walked ^wn cheerfully and after she was in the carriage, she appeared I told Mrs. Earaes she had better keep the bond as her security Mr. White took no part whatever m this, except going after ink. I sent Mr. Cheney to get ink Mr. Cheney came without the being followed with iU That was the first of Mr. «hite s Deing at the house. I don't recollect Mr. Foster's ’ He had the paper at the table, that was the fiistof Mr. o ter’s having ^aAy thing to do. Besides tins, I don't know anv thing that Mr. Foster did. I told Mr. Foster and Cheney and Strattw, it was neces- sary for them all to sign the bomL Mr. White witnessed the\ond,at my request. Anne made her mark. 1 took the the pen and made the cross. I asked her if f ® ^ untarily and freely, she replied, she presumed an effort would be made to arre^ h^, and toW them to take care of her. Cheney did not by my command. After I told him he must, at first he rather hesitated. «iAit would rum the child. I told her, she must doctor her. 3 1 18 «h« was diseased. It was plain enough to be discovered. T told Mrs. Eames, I thought it was occasioned ^>7 her lifting and working more than her age would bear. Mrs. I^fs replied^ a negro ! She said was ^ impossible^to doctor a negro. She said, she had boi ed i sheep’s bladder in some milk and given her. She said, she was^ffoin^r to sell her, and she would not be of any use to TJZchlonser. She would answer her purpose what ht~ a7Ze she Zuted her. She was going off vntkher Time and again, Anne expressed a great desire that she Mt he free. Anne said nothing against the Wly. Af- ^ Mr Richardson talked with her, one day she can^to me“ d^id, O, Mrs. Caldwell, do you think they will do TvThing forme? I heard her say more to my brother Wright She would often say, she was a poor ^ave and wrigni. one there with Mis. Sherman, clothe her ThU “as a Jut a leek going to be sold- Aftefher mother had washed, Mrs. f-k,a„a .he ~ 1 hare before stated, took place. She said he a stir ntade to t^e awa^. she ^nd if she told them she wanted to go, I thought * I never ‘saw the daV when I could ge?tL reto of the hoop-poles. The girl looked unwil- Mrs 1 said, I an^raid of their hurting you. h TJ'^mmented before the Grand Jury. I ^ not ^k- ed to go before the jury, and tell my st^y^ 1 Z days I sid to Mrs. Eames, it is a tord case to be mJned without any fees, and you had a, 1 should say any thing m your fa^vor. ^he re^ ’ opeb« it is, it is not so hard as mine, to have ^ ^ 19 taken away. When they took the sirl, then took THF CHIEF OF MY PROPERTY. I told Mr. Cheney, I pitied the poor girl, for she said they were going to carry her off and sell her, and she want- ed to be free. I told him I thought Christians could not pass over such things. I told him, she said she wanted re- j lief from some body. Mrs. Warren heard me talk about it with Anne. Cross Examined . — These conversations were all at my brother’s house. I did not tell Mrs. Eames that Anne want- ed her freedom. I was afraid she would abuse her. The first time I heard Anne speak of the subject, she was at my brother’s house, and he asked her where she lived ? and she told him. He asked her if she always lived with Mrs Eames ? She said no, she was sold to her. He asked her if she was a slave then ? She said yes. He asked her if she expected to be? She said she exjiected to be sold again. He asked if she did not feel bad about being sold ? she said she did, but as she must be sold, she had rather go back and be sold at New Orleans, than be a field slave, for she understood they fared hard. I cannot say that my brother told her she was free, but think he did, at that time. She , .said, she had been told so before, f Mrs. Julia Ann Flagc called by Defendants . — I live in the house of Mrs. Sherman. I heard Col. Hinds come in and enquire for Anne, Mrs. Eames called her, came back without her. Told Mr. Hinds if he would be seated ^ she would call her. She brought her in— Hinds asked An- ne, if she wanted to go with him ? She seemed frightened j and said she ■“ did not know. ’’ Mrs, Eames said, yes you ! do know too. Mr. Hinds asked Anne, if she had a shawl and bonnet? She said, she did not know. He asked how old ; she was. She said she did nor know. He asked Mrs. Ij-ames her age. She told him, it was none of his business, she was pot ao very old. Mrs. Eames told Anne to keep Jne babe. After Mr. Hinds took it, she told Anne she ! ® go- She told Anne to go into the j bed room. I was present when they were at the table with Hinds did not throw Mrs. Eames on the bed, j ■ Eames took hold of Anne, not gently, she hurt her I much, I think. She laid hold of her violently. Mrs. Eames was very angry all the time, Mrs. Sherman was al- so very angry. Mrs. Eames told Mr. Hinds Anne should not 20 to, and he should not take her. She did not «y any thing to Mr Hinds about Anne’s being at liberty to go if she waiu^ed to, or if he could rersuade her to go. Mrs. Braes Ktoteltod knd bit. Col. Hinds called Mr. Cheney to help. Mrs. Braes told Anne not to sign the jmper. She told her “other not to let her sign the paper. Anne went willingly with the men. 1 saw them down as far as Mi. Wright s. She did not le ^ the payment of any dam^es which the defendant may tain by reason of the institution of the suit. , - , The 16th section authorises any person in behalf o 29 other to sue out the writ and prosecute the suit to final judgment, without any express power from the person res- trained of his liberty. The 16th section makes provision for the commence- ment of the suit WHERE THE NAME OF THE PERSON RESTRAINED IS UNKNOWN OR UNCER- TAIN. The objection that no adequate provision was made by the Statute ibr costs to which, under certain circumstances, the plaintiff whose name is used might be subjected, was met by a reference to the provision therein made, for security to the plaintiff as well as the defendant, for costs which might be sustained. It is further urged by the defendant’s counsel that objections arising from an omission to provide fully for any injury which might possibly result from the use of the process, in any case which could be suffered to arise, could not avail to defeat the plain enactments of a law. The Legislature of 1837, which passed the law, es- tablished a great principle, to wit, the right of a trial by jury in cases affecting personal liberty, apd it gave ample means for enforcing the right. It may be, as is often the case, that experience may show the necessity for subsequent Legisla- tion to make perfect the details of the law. The Court decided that no authority to commence the suit need be given by the person in duress, that the Statute itself was sufficient authority. The objection was therefore overruled, and the evidence was admitted. Non. The writ of personal replevin referred to in this trial was duly entered in Court at the December term of the Common Pleas, and stood on the Docket, Anne vs , Olivia Eames. The defendant appeared by her attorney, but afterwards was defaulted by consent, and judgment for nomi- nal damages (being all that was claimed,) and the costs of Court, was ren- dered against her. This was proved on trial, but, by mistake, was not in- lerted in its proper place in this report * The reader will also observe, that in the testimony of Geo. Putnam and Thomas Randall, on pages 16 and 17, the name of Mr. Stratton was incor- '•ctly introduced instead of that of Mr. Sherman. 30 AN ACT TO RESTORE THE TRIAL BY JURY, ON Q,UES- AN Al.1 QP personal FREEDOM. Sect. 1. If any person is imprisoned, restrained ot his liberty, or held in duress, unless it be in tlie custody of some public ofhcer of the law, by force of a lawful warrant or other process, civil or criminal, issued by a court of competent jurisdiction, he shall be entitled, as of right, to the of personal replevin, and to be thereby delivered in the manner ^^^CT. The writ shall be issued from and returnable to the court of common pleas, for the county in which the pi amti^ff is confined, and shall be issued fourteen davs at least before the retmn day thereof. Sect 3. It shall be directed to the sheriff of the county, or his depu- ty or to any of the coroners thereof, and shall be served by either to whom it shall be delivered, without delay. . Sect. 4. The said writ shall be in ’the, form following, viz. Commonwealth of Massachusetts. ss. To the sheriff of our county of or his deputy, ^ (l. 8.) the coroners thereof, tr, We command you, that justly and without delay, you cause to be re- nlevied C. D. who (as it is said) is taken and detained at - , within Sur .aid county, by the duress of G.H., that he the sai d C. D. at our court of common pleas, next to be ho den at -- — , witoin om bounty aforesaid; then and there in our said court to demand r‘ght and justice against the said G. H. for the duress and imprisonment aforesaid, and to prosecute his replevin as the law directs : Pnmded, the said C. D. shall before his deliverance give bond to the said G. H., in such sum as you shall judge reasonable, and w'* sureties at tlie least, having sufficient within to appear at our said court to prosecute his replevin JJe said • H., bH to have his body there ready to be redelivered, thfeto ordered by the court ; and to pay all such damages and costs as ®haU be then a there awarded against him . Then, and not otherwise, are you to deliver Sm. And if the said C. D. be by you delivered ^ ting of our said court, you are to surninon the said G. H. by ®®^ing^ wi& an attested copy of this writ, that he may appear at our said court to answer to the said C. D. an nlprt Witness, L. S. Esq. at B— , the — day of — in the year — . A .B. clerk. Sect. 5. No person shall be delivered from his imprisonment or res- traint, by force of luch writ, until he shall give bond in the "lanner ex pressed in the preceding section; and the bond shall be toL in like manner as a bail bond is returned, and shall be left in tn clerk’s office, to be delivered to the defendant when he shall J Sect. 6. The officer, who serves the wr t, shall be answemble for the insufficiency of the sureties in such bond, in like manner as he is ans able for taking insufficient bail in a civil action. , , n oUoitiiD- Sect. 7. If the plaintiff shall maintain his action, and ^ball make ^ pear that he was unlawfully imprison^ or restrained, he sha ^ ged, and shall recover his costa of suit against the defendant, damages for the said imprisonment and detention. 31 Sect. 8- If the plaintiff shall not maintain his action, the defendant shall have judgment for his costs of suit, and also for such damages, if any. 1 as he shall have sustained by reason of the replevin. Sect. 9. If it shall appear that the defendant is bail for the plaintiff or is entitled to the custody of the plaintiff, as his child, ward, secant, ap^ prentice or otherv^ise, he shall have judgment fora redelivery of the body of the plaintiff, to be held and disposed of according to law. Sect. 10. If it shall appear, from the return of the wit of personal replevin, that the defendant has secreted or conveyed away the plaintiff’s body, so tliatthe officer cannot deliver him, the court shall, on motion, is- sue a capias to take the defendant’s body, and him safely keep, so that he may be had at the then npt term of the court, to traverse the return of the said writ of personal replevin ; but the defendant may give, and the offi- cer serving the same shall receive bail, as in civil case, for his appearance as aforesaid, in such sum as the officer may judge reasonable. Sect. 1 1. At the term at which the capias is returned, the defendant may deny, by plea, the return on the writ of replevin, and ifit shall appear, on the trial thereof that he is not guilty of secreting or conveying away the plaintiff, as set forth in the return, he shall be discharged and recover his costs. Sect. 12. If the defendant shall not traverse the said return as aforesaid, or if, upon the said traverse, the issue, on trial, shall be found against him, then an alias writ of capias shall be issued against him, and he shall thereupon be committed to the common jail, there to remain in close custody until he shall produce the body of the plaintiff, or prove him to be dead ; and if the defendant shall suggest such death at any time after committal as aforesaid, then the court shall impannel a jury to ^ the fact, at the expense of the defendant; and if the death be proved, the defendant shall be discharged. Sect. 13. If, at any time after such return of secretion and convey- away as aforesaid, the defendant shall produce the body of the plain- rtt in the court to which the writ of personal replevin was returned, or in which the suit is pending, the court shall deliver the plaintiff from res- traint, upon his> giving bond agreeably to the condition of the writ ofper- sonal replevin; and for want of such bond the plaintiff shall be commit- k 11 k .i“^gfnent on the replevin; and in either case the suit shall be proceeded in, as if the plaintiff had been delivered on the writ of personal replevin. Sect. 14. Either party may appeal from any judgment upon either of me matters aforesaid to the supreme judicial court, as in common civil actions; and in case of an appeal from the judgments which may beren- aered under the writs of capias aforesaid, the whole case shall be ear- ned up to \he supreme judicial court and be there disposed, of, as it appeal^ ° in'tlie court of common pleas, if there had been no Sect. 15. The writ of personal replevin may be sued out by any per- son tor and in behalf of the plaintiff, and may be prosecuted to final jud