Day v. Thibodeau

Matthews, J. delivered the opinion of the court. In this case the plaintiffs, who are here appellants, sue to recover a female slave and her increase, which they allege to be in the possession of the defendant and appellee without title. [49] West'n Dis'ct August, 1826. The title set up on the part of the plaintiffs is in right of the wife, and is stated to be derived from one of her ancestors, by virtue of a will or testament, wherein a life estate in said slave was given to another person, and the reversion to the plaintiff, in whose right the present action is instituted. The will is shewn to be valid and legal, according to the laws where it was made and took effect, and consequently vested a title in the appellant, and right to take the property devised after the decease of the person who held the life estate. She is shewn to be dead, which together with the establishment of the legality and validity of the will, under which the plaintiffs claim, settles all question of law in relation to their title. The only question of fact material in the cause, relates to the identity of the slave. This is not only proven by testimony properly received in the cause, but it is also admitted by the answer. We are therefore of opinion that the verdicts of all the juries are erroneous, being contrary to the admissions in the pleading in relation to facts, and also to the whole evidence of the case. Simon & Bowen for the plaintiffs, Baker & Brownson for the defendant. It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, reversed and annulled, and proceeding here to give such judgment as ought there to have been given. It is further ordered, adjudged and decreed, that the plaintiff and appellant, do recover from the defendant and appellee, the slaves as described in their petition, with costs in both courts.