Rowan v. Hutchisson

RICE, J. The evidence does not show that the slaves ever were' in the possession' of the plaintiff, after they went [334] into the service and control of Michael, in the city of Mobile, in 1845 or 1846 ; but, on the contrary, there is a preponderance of evidence in favor of'the proposition, that the,possession of these slaves by Michael was continuous from 1845 or 1846, until the levy of the attachments, made after he had gone to California. All the declarations of the plaintiff as to-his ownership of the slaves, offered in evidence by him, were properly rejected, upon the ground that at the time he made these declarations he was not in possession of the slaves. Thomas v. De Graffenreid, 17 Ala. 603. Upon the same ground, (without alluding to any other,) the declarations of the slave Mary, as offered in evidence by the plaintiff, were properly excluded. It is clear from the evidence, that although the other slaves may have lived with Mary, or at the same house where she lived, yet she and the other slaves were under the control of Michael Rowan; and that she had no possession of any of the slaves, which could authorize the court to admit any of her declarations as to ownership or possession, as evidence for the plaintiff in this cause. Under the issue in this case, the defendant had the right to prove, that although the bill of sale for the slaves, upon its face, showed the title to them to be in the plaintiff, yet the actual title and ownership were in Michael Rowan, and that he had not ab'andoncd them. In this point of view, it was proper to allow the evidence as to the assessments of property to the plaintiff made upon his own information in 1852, after Michael had gone to California ; and also the evidence that Michael, in 1849, and whilst.he had possession of the slaves, had mortgaged them to the Bank of Mobile; and that when he left for California, just as the steamer was leaving the wharf, he declared his intention soon to return to Mobile and not to remain away permanently. This evidence, in connection with the other evidence in the cause, certainly tended to show that the slaves were the property of Michael, and not the property of the plaintiff, and that Michael had not abandoned the slaves. After the plaintiff had proved that nine or ten slaves had been assessed to him in Mobile county, it was proper to allow the defendant to prove any admission of plaintiff that he [335] owned at the time nine slaves other, than those in controversy. The deed of plaintiff to A. H. Ryland, read in evidence, was an admission in writing by plaintiff to that effect, and was therefore admissible. We cannot conceive of any good ground of objection to the introduction of the two notes of Michael Rowan, after it had been proved that they were executed by him in 1849, and that these were the notes on which one of the attachments issued, by virtue of which the defendant, as sheriff of Mobile county, had taken the negroes in controversy into possession. The only objection made by the argument for appellant to the charge of the court, is, that in effect, it excludes an examination of plaintiff’s title to the slaves. Concede this objection to be true in point of fact, yet it is unavailing in point of law; for, although the title to the slaves was in the plaintiff, yet, if he permitted them to remain in possession of his brother Michael for three years next before the levy of the attachment, and as shown in the evidence and supposed in the charge, he could not recover in this case. When, as in this case, the plaintiff in an action of detinue, by giving the bonds required by statute, causes the possession of the slaves to be taken from the defendant and turned over to him, during the pendency of the suit, if the jury trying the case find for the defendant, they are authorized by the act of 10th of February, 1848, (Pamph. Acts of 1841-8, p. 82,) to assess the damages and the value of the slaves. Bearing in mind this statute and the issues in this cause, it is clear, the verdict, finding the defendant not guilty, and assessing the damages and the separate value of the slaves, is sufficient to support a judgment in his favor. The fair and necessary construction of it is, that the defendant did not do what is alleged against him in the plaintiff’s declaration, and that the jury negative the right of recovery asserted by the plaintiff. The jury could not have found such a verdict, unless the plaintiff had failed in proving his right to a recovery. The meaning of the finding is plain, and the only fault is in the form. — Tippen v. Petty, 7 Por. R. 218; Law v. Merrells, 6 Wend. R. 272 ; Hawks v. Crofton, 2 Burr. R. 698 ; Cro. Eliz. 157; 6 Com. Dig., tit. Pl. (S. 26.) There is so ground for reversal. Judgment affirmed.