Francis Bowling & Clarissa Gardiner v. David Atkins. Bills of Exceptions


Gardiners administrators
David Atkins


1st Bill of Exceptions

At the trial of this cause the Plaintiff to sustain the issues on their part joined gave evidence lending to prove that the negroe woman named Matilda, mentioned in the deceleration in this case, was sold & conveyed to Richard B. Gardiner their intestate, by one Schell on the 15th August 1822 (prout the bill of sale of that date, & that said negroe woman was in the possession of Edward Semmes in Washington City District of Columbia, for many years before the year 1827 1827 & that the other negroes named in the declaration were the children of said negroe woman named Matilda, & were born since 1822, the Defendant then gave evidence upon the cross examination of the Plaintiffs witnesses to show that the said Matilda from the Spring of 1827[?] cohabited with the Defendant as his wife & acted & passed as a free woman from some time in the year 1826   2) or 1827 to the present time unmolested by said Semmes or the plaintiffs intestate or the plaintiffs until the year 1833. That during that time she bore & she & her husband maintained the Defendant cohabiting as aforesaid maintained the children in the deceleration mentioned & in that year the said woman & her said children still living with said Defendant, the said Sims was called on after the death of the Plaintiffs intestate & on the part of the Plaintiffs to know what had become of said of the said woman & her children with a view of putting them on their inventory of their intestate's estate (they having administrated in Maryland where they & their intestate resided) & that thereupon said Sims produced the letter from Plaintiffs intestate dated 20th February 1827 (prout the same) authorising him to set the said woman free in his the said intestates name, & then de the said Sims then declared that he had set free the said woman & her children & that this statement of said Sims was communicated to Pltffs intestate shortly afterwards, who acquiesced in the same until within the last two years when they discovered were informed that the said Sims   had not executed any deed of manumission of said woman & her children but had sold the said woman & one of her children but had sold the said woman & home of her children in the year 1836 to the Defendant & had retained in his possession the two eldest children of said Matilda claiming them as his slaves & that the said woman & her said slaves children were not included in the inventory of said intestates estate in consequence of the statement made as aforesaid by said Sims. And the Defendants counsel on offering the above proof stated to the Court & Jury that the Defendant confined his defense solely to the proof above given of the said negroes being free in consequence of the letter of said intestate & the said negroes passing as free as aforesaid & so continuing unclaimed & unmolested from 1826 or 1827 to 1840 as aforesaid & that they did not claim their freedom in any other way or any under any under any other title or right whatsoever under the [illegible] offered in evidence by Pltffs as aforesaid or either of them[?] or under any title[?] of said [illegible] The plaintiffs then gave evidence tending to prove that their intestate Gardiner resided in Charles County Mary land where he died in 1832 & that the plaintiff also reside in said county when they administered on said Gardiners estate   4) (prout the letters of administration), and the plaintiffs gave evidence tending to prove that the Defendant acknowledged he has bought the woman Matilda & her son George from the said Sims (a) & farther read in evidence to the Jury from the records of Washington County in the District of Columbia the record of a bill of sale from the said Sims to the Defendant dated 19th May 1836 (prout the same) & also read in evidence to the Jury the record of a deed) And the Plaintiffs for the purpose of rebutting the testimony offered & given on the part of the Defendant in regard to the passing of the said negroes as free as aforesaid read in evidence previous to the year 1836 & for the purpose of shewing that the Defendant claimed the said Matilda & her son George by purchase from said Sims in 1836 read in evidence to the Jury from the records of Washington County in the District of Columbia, the record of a bill of sale from said Sims to the Defendant dated 19th May 1836 (prout the same) ⌖ & for the purpose aforesaid of rebutting the evidence on the part of the Defendant in regard to said also read in evidence from the records ⌖ And for the purpose of rebutting the evidence on the part of the Defendant as to said negroes passing as free during the time aforesaid   5) aforesaid the record of a deed of manumission by the Defendant dated 23rd May 1836 (prout the same) & farther gave evidence tending to prove that the said Sims about     years ago shortly after the date of said bill of sale took into his possession the two Norah eldest children of said Matilda named Norah & in the year 1840 took Alfred the next oldest child & has ever since kept them in servitude, the said Norah being now about 14 years old & the said Alfred being about Eleven years old which children are not [illegible] in this suit And the plaintiffs further affirmed to read in evidence for the purpose of explaining the character of [strikethrough] said Sims possession, the following letters of said Sims to their intestate written at their respective dates but to the reading of said viz a letter dated 27th Aug. 1822, a letter dated 15th Dec. 1824 & one dated 8th Jany 1825 (prout the letters) but the Defendant by his counsel objected to the reading in evidence of said letters or any of them & the Court refused to permit the said letters or any of them to be read to which refusal of the Court the Plaintiffs except & this their bill of exceptions   6 and the Deft. further offered in evidence [strikethrough] to shew that the said Matilda was married to the Deft and when the said marriage took place the following marriage certificate (here insert it) which was admitted to have the same effect as if the Revd Mr Lucas was duly sworn as a Witness & testified to offered to testify to the same facts. To the admission of which evidence the Pltfs counsel objected, but the Court overruled the said objection, & allowed the said Evidence, to which the Pltfs except.

And the Deft then further proved that from the time of said marriage the said Matilda lived & kept house with the Deft as her husband & passed about openly & publicly in Washington attending the public market as a free woman, until 1840 & bore the children named in the declaration, who were nurtured & brought up at the sole expense of herself and her said husband, & that neither the said Matilda nor the said Children were during the said period molested by the said Sims or Gardner or the Plfts until the said Sims took [page folded]


2nd Bill of Exceptions

In addition to the evidence contained in the aforegoing bill of exceptions the Plaintiffs swore the counsel of the Defendant in this cause & asked him whether he had not in his possession in Court a paper purporting to be an original bill of sale from Edward Sims aforesaid to the Defendant conveying the woman Matilda & her son George named in the declaration to which the said witness replied that all the papers which he had relating to this cause were given to him as his counsel by the Defendant the Plaintiffs then asked said witness to say whether the said paper purporting to be the original bill of sale was not produced by him as a witness in another cause tried in this Court on yesterday & was not then returned to him, to which   the witness replied in the affirmative & the plaintiffs then enquired of said witness to whether the paper so produced by him as aforesaid came into his possession as counsel of the Defendant, which question refused to answer & the Court refuse decided that the witness was not bound to answer such question to which opinion decision of the Court the plaintiffs except.

the Jury

And the Deft further proved that said Gardiner married in 1824, & that after his marriage he was in the habit for some years of coming to Washington every year. but the Witness has no particular knowledge of his so coming to Washington after the year 1824. that when he came to Washington he was in habit of staying sometimes at the Witness's house & sometimes at said Edw Sims's, whose wife was his niece.

And the Pltfs then asked the following instructions which the Deft's Counsel admitted (here insert A & B.) and then asked the following instructions (here insert the others, marked refused) which the court refused to give to which refusal   8 refusal, the Pltfs by their Counsel excepted & prayed the Court to sign & seal this bill of exceptions, which is accordingly done this 17th Decr 1841.

Witness our hands & seals
B. Thurston (seal)
James S Morsell (seal)

And the Deft by his Counsel thereupon prayed the Court as follows (insert C.) which the Court — to which also the Pltfs by their Counsel except & pray the Court to sign & seal this bill of Exceptions, which is done accordingly this 17th Decr 41

Witness our hands & seals.



And at the same time stated that he [illegible] Mr [strikethrough] Simmes had no title to them and suspected Mrs Gardiner had and he [illegible] the witness to see Mrs Gardiner one of said Plaintiffs and see upon what terms he could get the interest[?] of the Plaintiffs [illegible] if they had any interest [strikethrough] in the said negroes

The Plaintiffs farther gave in evidence that the said Defendant was the slave of one Bryan until July 1833 when it is admitted he was manumitted by a competent deed. & that previous to 1833 the said Atkins with the permission of his said Mistress the defendant was allowed to keep house & work for himself & his said wife lived together & were generally seen at market together & that the defendant previous to 1833 acted & passed in the same way that his said wife did who lived with him.

And the Deft's further offered evidence tending to prove that in the year 1827 [strikethrough] the said Sims [strikethrough] after the marriage of said Matilda & after she was going at large as aforesaid, shewed the said letter of said Gardiner to the Witness & stated that said woman was then going at large as aforesaid & the Witness thereupon told the said Sims that he ought to emancipate her.


And it was further agreed that the said Deft. and the said Matilda & children have never been registered as free negroes under the laws of the Corporation of Washington.