Opinion
11-27-1818
Ervine v. Dotton
Leigh for the appellant,
On the trial of an issue in detinue, on the plea of non detinet, it was admitted by the defendant, that, on the 9th day of August 1803, the slave Dinah, in the declaration mentioned, was the property of the plaintiff, and that the other slaves were her children born after the said day. It appeared in evidence that, on that day, the plaintiff executed an obligation to the defendant, in the penalty of three hundred dollars, with a collateral condition, that whereas " the above bound William Ervine hath this day bargained and sold a negro woman named Dinah, unto the above named Andrew Dotton, for the sum of two hundred and seventy dollars; now, if therefore the said Dotton shall well and truly pay the said sum of two hundred and seventy dollars, and forty dollars a year, in property, half in salt, the other half in goods, for the hire of the said negro woman, until the whole sum shall be paid up to the said Ervine for the two hundred and seventy dollars aforesaid; but at any time, the said Dotton paying up the money aforesaid, the hire of the negro shall cease; and, on the said Dotton complying in the payments and tendering the full amount of the money aforesaid, the said Ervine shall convey a lawful right and title of the said negro woman unto the said Dotton, his heirs & c., free and clear from all claims whatever. The title of the said Negro is in said Ervine until paid. Then this obligation to be void, else to remain in full force."
It was also admitted that the slave Dinah in the declaration mentioned was the same mentioned in the condition of said obligation. The defendant's Counsel moved the Court to instruct the Jury that, by the said instrument of writing, the right of possession and of property of the negro Dinah, and her issue born after the date thereof, was to be vested in the defendant and that the plaintiff Ervine could not recover in this action. The Court so instructed the Jury, who thereupon found for the defendant; the plaintiff having filed a Bill of exceptions. Judgment was entered according to the Verdict; from which the plaintiff appealed.
Reversed judgment and remanded the cause, fir a new trial; with a direction.
Leigh for the appellant, insisted that the instruction given was contrary to the plain intent of the contract.
No Counsel appeared for the appellee.
OPINION
The Court reversed the Judgment, and remanded the cause, for a new trial; with a direction that no such instruction be given to the Jury.