Sterrett's v. Kaster

R. W. WALKER, J. The familiar rule, that a general objection to evidence, apart of which is legal, may be overruled entirely, disposes of the first two exceptions. A part of the evidence covered by each of these exceptions was, that Tucker was in possession of the goods, at and before the levy of the execution-, and this fact, as it tended to show that the defendant acted in good faith, in having the goods seized and sold as the property of Tucker, was competent evidence upon the question of damages. — Sedgwick Dam. 528*-9. [3.] After a judgment by default, the defendant has not the legal right to plead to the merits of the action. — Ewing v. Peck & Clarke, 17 Ala. 339. But, in actions sounding in damages, after judgment by default, writs of inquiry are necessary to ascertain the amount of injury done; and upon the execution of these writs, matters in mitigation on t he one hand, and of aggravation on the other, become the very gist of the inquiry. It is doubtless true, that it is not competent -for the defendant, after judgment by default, tó show, even in mitigation of damages, a state of facts which is inconsistent with-the plaintiff’s right to recover at all, or which would have been a good plea in bar of the action r, [370] as for example, in the action of trespass, that the plaintiff had, at the time of the taking or injury, neither the possession, nor the right to the possession of the goods. — Garrard v. Dollar, 4 Jones’ L. (N. C.) 175 ; Long v. Wortham, 4 Texas, 381. But evidence showing that the plaintiff was not the owner of the goods, is not necessarily inconsistent. with the fact, that he had either the possession, or the right, to the possession (which is all the title necessary to support the action);; and, as the extent of the injury sustained by the plaintiff may depend, very materially, upon the extent of his interest in the property, evidence that he was not the owner is, on The one hand, admissible for the defendant ; and evidence that he was the owner is, on the other, admissible for the plaintiff. The admission of evidence that the plaintiff was.-not'the owner, does not impair the effect of the judgment by default, as an estoppel upon the question of his possessory right, but simply serves to disclose the extent of the injury inflicted upon him; for he who has a bare possessory right, is not entitled to the same measure of damages, as h.e who has the absolute property. Sedgwick Dam. 482-3, 530 ; Brierly v. Kendall, 10 Eng. L. & Eq. 319; Jones v. Lowell, 35 Maine, 538 ; Compton v. Martin, 5 Rich. L. 14. [4.] A slave cannot be the owner of property: all his acquisitions, whether by gift, or by the earnings of his labor, belong to his master. It is true that, under outlaws, the sale of any article to a slave, without the consent of the master, specifying the article, is a penal offense. But, where the contract has been fully-executed, and the property delivered to the slave, it is clear that, as respects third persons, the property becomes at once the property of the master ; and no subsequent.act or contract of the slave, without the master’s express or implied consent, can divest the latter of his title. It does not lie in the mouth of a third person, who, without such consent of the master, purchases, or takes possession of, property which has been sold and delivered to a slave, to say that the slave got possession .of the property by a contract which the law declares [371] illegal as to the seller. — Bryant v. Sheeley, 5 Dana, 530 ; Brandon v. Huntsville Bank, 1 Stew. 320; Gregg v. Thompson, 2 So. Ca. Const. Ct. R. 332 ; Gist v. Toohey, 2 Rich. L. 425 ; Cobb on Slavery, §§ 25S, 261-4, 268. It follows, that the court erred, in rejecting the evidence which was offered, to show that the goods had been purchased and paid for by the slave Abb. What we have said will-ifurnish'a sufficient guide ió< the oourt below, on another' trial, as to the other questions .presented by the record. - For the error pointed ou-tfthe judgment must be reversed* - and the cause remanded. •.