Essex Novemr. 1771.
On motion to give property in evidence on non cul. ruled that in this case it must not be, ruled by 3 of the Justices. R[opes] and Cushing gave no Opinion having heard no argument.
Mr. Adams then moved for a repleader. Objected that its grantable not of right but [favor?]
and its error when granted or refused wrongfully. Its grantable in cases where the right of the suit cant be determined by the issue.2
Also objected that this is after verdict below.
. The diff[iculty?] is that the defendant by repleader deprives the plaintiff of the advantage. Hut[chinson]and Trow[bridge] against it because the plaintiff may lose an advantage. Cushing inclining to replead. J. Ropes says nothing. J. Oliver against a repleader.
Adams moved to ask the plaintiffs witnesses whether the plaintiff was not reputed a Slave and used as such by his master the defendant (in mitigation of Damages).
Proof was given that Taylor owned3
a bargain between Caesar and him for his freedom for £600 O[ld]
and that part of it had been paid.
Note. J. Trowb[ridge] said in this case that the pleadings allowed the plaintiff to be a person and one able to sue. He is therefore not property which is a thing and a thing can't maintain an action. By English laws a person must be free, else no murder to kill him.
Said by Mr. Adams that Superior Court in J. Sewall's day determined from civil law authorities produced by Mr. Gridley and Pratt, that the children of a woman slave were the property of the master of the mother, and that negroes are in classe rerum
and are Slaves in this Country.4