The State

V.

Gilbert.

the world. This indictment, therefore, was for this second entry and detainer by Gilbert.

Mr. Nott, on the part of the defendant, urged, that the writ of possession had issued against Thomas Brandon, who had confessed the unlawful entry. That Brandon had relinquished the possession, therefore the writ was a dead letter as to him; he was not to be found on the land. And he was not answerable for the conduct of Gilbert the defendant, who might have a good title to the premises in question; and he ought to have his title tried before he could be dispossessed. That by turning him out, in this short handed way, he might be deprived of his possessory right, which might in time ripen into a good and legal title. He went peaceably into possession, and therefore ought to be evicted by suit at law, for trying title before he was turned out again.

Mr. Solicitor Thompson contended, that this was a mere contrivance or combination between Brandon and his sonin-law Gilbert, to harass and oppress Judge Grimke, who had bought this land at sheriff's sale, and had been in peaceable possession for some years before Brandon entered. That Brandon had turned out a Mr. Simons, a tenant of Judge Grimke's, before he took possession; but afterwards, he was so sensible of his misconduct, that he pleaded guilty to an indictment against him; upon which judgment had been entered up, and a writ of restitution had issued. When the sheriff, colonel Bratton, went to the premises to give possession to Judge Grimke's agent, he found the defendant Gilbert in possession, who, together with his wife, supported by their adherents, resisted the sheriff to such a degree, that he was obliged to raise the posse comitatus; and before he could get possession, was obliged to pull down part of the house; and had nearly lost his life, by a lunge from the defendant's wife, after he had entered the house, by a bayonet at the end of a pike staff, which in all probability would have killed him, had not his

V.

Gilbert.

eye caught the weapon while she was in the act of making The State this lunge, which enabled him to parry it off. These circumstances, he said, he only mentioned to shew the violence of the parties, and how little they deserved the countenance and support of a court of justice. That upon the whole, the conduct of the defendant was outrageous to the last degree. But what made it still more so, was the defendant's entering again the next day, and breaking open the doors and windows of the house, after the sheriff of the district had turned him out and given quiet possession of the premises to Judge Grimke's agent. That this conduct was not only an open and flagrant violation of the laws of the country, but would, if permitted to go unpunished, defeat this peaceable and quiet remedy of getting possession of lands, which had been forcibly entered on and detained by turbulent and violent men, in open defiance of all law and justice. And the kind of trick practised, if countenanced, would (independent of the violence offered on this occasion) entirely defeat the remedy; for it would only be for one intruder, after a writ of possession was issued, to abandon, and put in a stranger or third person, and then that stranger another, and so on, till there would be no end to these kind of practices and subterfuges, which would prove subversive of this salutary remedy, in open defiance of the authority of the courts of justice.

The presiding Judge, (BAY,) in his charge to the jury, mentioned, that this was the quiet and peaceable remedy which the law had wisely devised, to put men into the quiet and peaceable possession of lands, from which they had been driven and expelled, by high handed, violent and turbulent men, who did not choose to submit themselves to the rules of law, but rather chose to depend upon the strong arm of power and violence to support their rights. That perhaps a wiser and better remedy was never devised by men in civil society than the one now pursued, as it went to check broils and bloodshed, by arraying the power of the country against a bold, daring intruder, instead of leaving

The State

V.

Gilbert.

the quiet possessor, or injured man, to the necessity of
That it was a well known
taking justice by his own arm.
maxim of law, that no man could recover lands but by the
strength of his own title; it did not depend upon the
weakness of his adversary's. It was well known also, that
in this country, five years' quiet possession of lands, not only
cured defective titles, but gave a man a title to lands who
had no other claim but possession. Possession, therefore,
was a matter of vast importance to the citizens of this
country.

The kind of injury, therefore, which had been committed by Brandon originally in this case, was one of the highest which could be offered to the rights of landed property; as it had entirely changed the position of the parties, and would have made Judge Grimke the plaintiff in any action to try the title to the land in question; instead of Brandon being plaintiff, which would have been permitting him to have carved out for himself a presumptive title, by his own violent act, which the law abhors. This remedy, was, therefore, calculated to place the parties in their original situation, and to leave them to their mutual remedies at law without force or violence. That the conduct of Brandon in confederating with Gilbert, and that of Gilbert in being concerned in the execution of the plan concerted by Brandon, in entering into this land after the judgment against Brandon, was extremely reprehensible and illegal. For if it were once permitted for a defendant against whom there was a judgment, on a forcible entry and detainer, to put in a third person, or for a third person to enter afterwards, with a view of again putting a plaintiff's title to the rack, such third person might again in his turn, after judgment against him, put another into possession, or permit him to enter; so that there might be prosecutions without end, and the object of regaining possession by the plaintiff, would be as far off, as at the commencement of his first remedy, to regain his possession, to the utter subversion of all justice.

That the sheriff who had the writ of restitution, was well warranted in law, in turning out Gilbert or any other person

whom he found in possession of the premises, as the exigency of the writ commanded him to do; and Gilbert's entering again the next day after Judge Grimke's agent had obtained possession, was a high misdemeanor; with the additional aggravation, that it was done in open defiance of law, and the supreme authority of the country.

The jury without hesitation found the defendant guilty; and on the last day of the circuit court, when defendant was called upon to receive the sentence of the court, his counsel gave notice of a motion for a new trial at the next constitutional court of appeals at Columbia, on the ground of misdi

rection.

In support of the motion for a new trial, Mr. Nott took the same grounds which he urged on the trial at Union, when the court after hearing the arguments for the motion, thought it unnecessary to hear counsel against it, and were unanimously of opinion, that the rule should be discharged, as they concurred with the presiding judge on the trial in his construction of the law on this subject.

The defendant was then fined, and ordered to give securities for his good behaviour, but he absconded and soon after left the state.

Present, WATIES, BAY, JOHNSON, TREZEVANT and BREVARD.

The State

V.

Gilbert.*

Columbia, 1802.

A negro deal

ing with the elerk of a

THE STATE against JOHN DAWSON.

UPON an indictment for trading with a negro, without

a ticket from his master or person in whose charge he was, shopkeeper, contrary to the act of the legislature in such case provided.

without a

ticket from Verdict, guilty. Motion for new trial.

his master or

owner, &c. is not sufficient

On the trial of this case at Georgetown, it appeared that to charge such the defendant kept a small retail store in the neighbourhood, shopkeeper on an indictment, and that the prosecutor's negro had been seen carrying corn knowledge of, to this store, and delivering it to a clerk, who had the care of

unless the

the fact was the store.

brought home

or

to him, some general

order proved

The Attorney-General then contended, that the evipose; though dence had brought the defendant clearly within the mean

for that pur

the clerk him

able.

self is charge- ing of the act, which declares, “that if any shopkeeper, "trader, or other person, shall at any time after the passing "of the act, by himself or any other person, directly or in"directly, buy or purchase from any slave in this state any "corn, rice, pease, or other grain, bacon, flour, tobacco, "cotton, indigo, blades, or any other article whatsoever, or "shall deal, trade or traffic with any slave whatever, not "having a ticket or permit so to deal, trade or traffic, or to "sell any such article, from the master or owner of such "slave, or such other person as may have the care and management of such slave, every such person, shopkeeper " and trader shall, for every such offence, forfeit a sum not "exceeding two hundred dollars, to be recovered by bill, "plaint or indictment, one half to the informer, and the "other moiety to the state, in any court of competent ju"risdiction in the same."

The Attorney-General then argued, that although the evidence had not proved that the defendant himself had received the corn, yet it was delivered to his clerk or storekeeper, who was the defendant's agent, and therefore it was presumable he had the defendant's orders for it, and consequently that he was chargeable under this indictment.