Montgomery Adm'r. v. Erwin

Mr. Chief Justice WaleeR delivered the opinion of the court. The plaintiff, as administrator, brought his action of trover against the defendant for two negroes. A verdict aiid judgment were rendered for the defendant. The plaintiff filed his motion for a new trial, which was overruled; exceptions taken, in which the evidence and instructions of the court are made part of the record. The errors complained of, not embraced in the motion for a new trial, or waived by pleading over, will be considered as-abandoned. The second ground assigned for a new trial is that tlie court erred in refusing to give the fourth instruction asked by the ¿plaintiff, and in giving the second and third instructions asked. for by the defendant. The objectionable part of the fourth in. struction was that the compromise with Michael Stracener for any injury he may have done plaintiff’s intestate, was no defence for the defendant, Erwin, in this action. Under the issue formed, we think the court properly refused to give this instruction. The defendant had plead in bar of the action that the plaintiff’s intestate had compromised with Michael and William Stracener, and that for a valuable consideration she had, by deed or bond, released all her right of action as to them. There was evidence tending to prove that these parties stood in the relation of co-trespassers with the defendant in taking the negroes under this issue and with these facts in evidence, if the defendant had succeeded in showing a valid release to the Straceners, his co-trespassers, such release would have enured to defendant’s benefit as fully as if given directly to him. The second instruction given by the court at the instance of the defendant, was “that the release of Michael Stracener was a valid release of all parties claiming under him in regard to the matter so released.” It will readily be perceived that the court, in this instruction, declared the existence of the most material .matter in issue, that is, whether there was, or not,- a valid release. The defendant had pleaded a release; the plaintiff replied that his intestate was an infant, and was not for that reason bound by the release. The defendant rejoined, first, denying that plaintiff’s intestate was a minor; and second, that after plaintiff’s intestate arrived at mature age she had affirmed her deed, so made whilst an infant, whereby it became valid and binding upon her. This was a matter of fact to be found by the jury, and it was error for the court to declare the release a valid release. In Floyd vs. Ricks, 14 Ark. 29; State Bank vs. McGuire, id., 550; and Atkins vs. State, 16 Ark., 593, as well as in several later decisions, tbis court has held it to be error to assume tbe existence of facts which are in issue to be tried, in giving to the jury instructions. The third instruction, when taken in connection with the second was also erroneous. The court had in the second instruction declared the release valid, and although it was true that if they should find that Stracener, to whom the release was given, and the defendant were co-trespassers in taking the negroes and running them off, the release of Stracener would enure to the benefit of the defendant, the instructions should have gone further and instructed the jury that in order to make the defence valid, they must also find from the evidence, that the plaintiff’s intestate was of age when the deed was made, or that after she became of age, she affirmed the deed of release made whilst a minor. Several other questions in regard to the validity of the release have been argued by counsel, which would more properly have arisen upon demurrer to the pleadings, but which, under the issue formed, we deem unnecessary to notice. Independent of the erroneous instructions given, in view of the whole of the evidence, we are of opinion that the jury not only decided in favor of the defendant against the weight of evidence, but without evidence. TJnder the general issue there was no conflict of evidence as to the title of the plaintiff to the slaves, nor of the taking and conversion by the defendant. Under the first rejoinder the proof was upon the plaintiff: under the second, it was upon the defendant, who upon that issue offered no evidence whatever. But it appeared from the evidence of the plaintiff that his intestate was a minor when the deed was made, and died before she became of age. let the judgment of the circuit court be reversed and the cause remanded for further proceedings.