#### Fanny, a woman of color, Appellant, v. Montgomery and others, Appellees.

APPEAL FROM FAYETTE.

Where the defendant in an action of trespass, assault and battery and false imprisonment, justifies under a certificate granted by a justice of the peace in pursuance of the act of congress respecting fugitives from labor, the plea must show that all the facts existed at the time of granting the certificate contemplated by that act.

The plea should also state affirmatively, to whom the certificate was given, whether the person claiming the fugitive, or his agent, and if the agent, his name.

Opinion of the Court by

Justice Lockwood.

This is an action of trespass, assault and battery and false imprisonment, brought to try the plaintiff’s right to freedom. The defendant plead in bar that plaintiff and others were taken before a justice of the peace in and for Bond county, as a person- held to labor and owing service in the state of Kentucky, to John *248Housten, and that the justice of the peace, upon proof to his satisfaction that the said Fanny with others, did owe service or labor to said Housten, in Kentucky, according to the laws thereof, and that the said Fanny and others, were fugitives from the service of him, the said Housten, Ac., did in pursuance of the constitution and laws of the United States, grant a certificate to said Housten, or his attorney, to have and take said Fanny, and that he take her where she belonged. Defendants further say that after the granting said certificate, and while it was in force, they assisted said Housten, or his attorney, to take said negroes, for the purpose of removing them as authorised by said certificate, they having no interest whatever in said negroes ; that no more force was used than necessary, and that this is the same trespass mentioned in the declaration, and which said certificate the defendants have now in this court, ready to be produced, Ac. To which plea the plaintiff demurred, and on joinder therein by defendants, the circuit court sustained the plea and gave judgment for defendants, and thereupon an appeal was taken to this court. A great number of errors have been assigned. I shall only, however, notice such of them as I deem important to the decision of the case as presented by the record. The first error assigned is, that it does not appear from the plea that the justice, in granting the certificate, had jurisdiction.

No principle in pleading is better settled than that where a party justifies under a power derived from an inferior court or magistrate, that he must show that such court or magistrate had jurisdiction of the subject matter. The authorities to this point are so numerous that it is unnecessary to cite them. Does it then appear from this plea that the justice had jurisdiction of the case ? The third section of the act of congress referred to in the plea,* declares “ That when a person held to labor in any of the United States, or either of the territories, on the northwest or south of the river Ohio under the laws thereof, shall escape into any other of the said states or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her, before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof, to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken and certified by a magistrate of any such state or territory, that the *249person so seized or arrested, doth, under the laws of the state or territory from, which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be a sufficient warrant for removing the said fugitive from labor, to the state or territory from which he or she fled.” In order to give a magistrate jurisdiction under this act, it ought to appear that the person apprehended as a fugitive slave had escaped from the state or territory where the labor or service is due, into the state or territory where he or she is apprehended, and that proof, either by oral testimony or affidavit, be exhibited, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labor to the person claiming him or her.

It does not appear from this plea that Fanny had escaped or fled from Kentucky; the allegations being that she was taken, &o., as a person held to labor and owing service in the state of Kentucky, to Housten. This is not sufficient, for the authority conferred to take and arrest fugitives from labor or service, is only granted where the fugitive has fled, or escaped from the service of his or her master.

But the plea is still more fatally defective in not stating that the proof was, that she now owes service and labor in Kentucky.

The words of the act are, doth owe service or labor. The proof exhibited may be true, that she did owe service, and yet show no right to her present service, for that service may long since have terminated; and, consequently, she would not be liable to be taken and carried back to Kentucky.

Under the attachment laws, an affidavit that a debtor hath absconded, being in the past tense, is insufficient; and such an error has been decided to render an attachment irregular, and all proceedings under it void. I consider the first assignment of error well taken and sufficient to reverse the judgment, but as this case will have to go to the circuit court again, I think it better to notice some of the other errors assigned. The seventh error assigned is, that the plea does not set forth to whom the certificate was given, but is in the alternative. The language of the plea is, that the certificate was granted to “ Housten or his attorney,” without naming who the attorney was. This, I think, altogether too uncertain ; it ought to have shown affirmatively to whom it was granted, and if granted to an attorney, who that attorney was. The plea is therefore bad in this respect. The ninth error *250assigned is, that it is not stated that either of defendants assisted Housten or his attorney, or that they acted under any legal authority. The words of the plea are, “ that defendants assisted Housten or his attorney, to take said negroes.” Who did they assist ? Housten, or his attorney ? and if the attorney, who was that attorney ? The plea does not answer this plain interrogatory with any kind of certainty; it is, therefore, too uncertain in this respect.

Hall and Cowles, for plaintiff in error.

McRoberts, for defendants in error.

For these and other reasons, I am of opinion that the judgment must be reversed, with costs, and remanded to the Fayette circuit court, with liberty to defendants to amend their plea, upon payment of the costs occasioned by the plea.

I have not deemed it necessary in making up an opinion in this cause, to give an opinion on the question, how far a certificate which is good, prima facie, can be inquired into. Whether such a certificate would be final and conclusive, does not arise on this plea. We are not required, from the state of the pleadings, to go into any such inquiry; on this point, therefore, I forbear; for “ sufficient unto the day is the evil thereof.”

Judgment reversed.

*

Rev. Code of 1829, p. 242.