Opinion
12-07-1814
Elam v. Bass's Executors
Wickham, for the appellant. Leigh, for the appellee.
Argued November 12, 1814
In an action of detinue, brought by the appellees against the appellant, on the 8th of October 1810, for several slaves, the defendant pleaded non detinet and the act of limitations; on which pleas the plaintiffs joined issue. Afterwards, by consent of parties, the plea of the act of limitations was withdrawn, and a jury impanelled to try the cause upon the issue joined; whereupon, the defendant, on his part, " proved that he and those under whom he claims had possession of the slaves in the declaration mentioned for more than five years before the emanation of the writ in this action; to wit, ever since the 13th day of December 1804: to rebut which testimony, and to avoid the operation of the statute of limitations, the plaintiffs offered to introduce the record of a suit, lately pending in the Superior Court of Chancery of Richmond, wherein the plaintiffs in this action were plaintiffs, and the defendant in this action, together with his wife Elizabeth Howlett, and Judith Bass administratrix of Edward Bass, deceased (under whom the now defendant claims) were defendants, the object of which suit was to recover for the now plaintiffs the same two slaves, Dolly and her child Polly (among others,) to recover whom this suit is brought; " the record of which suit was exhibited in haec verba; " and it appeared, from the said recited record, that the said suit in chancery was commenced within less than five years after the said 13th of December 1804, (at which time the possession of the defendant and those under whom he claims accrued,) the said suit in chancery having been commenced on the 8th day of April 1807; and it was admitted that the slaves Doll and Polly in the declaration mentioned are the same slaves as the slaves Doll and Polly in the above recited record mentioned: and it appeared by comparison of the date of the decree in the said suit in chancery, (which was the 21st February 1810,) with the date of the writ in this suit, (which is the 8th of October 1810,) that the writ was sued out within one year after the rendition of the said decree: whereupon, the defendant by counsel moved the court to exclude the above recited record from going in evidence to the jury; but the court overruled the said motion, and suffered the said record to be read in evidence, to avoid the effect of the statute of limitations so as aforesaid relied on by the defendant in his defence; to which opinion the defendant by counsel excepted. Verdict and judgment for the plaintiffs, from which the defendant appealed.
Note. See a report of this case, in the Superior court of Chancery, 4 Hen. & M. 478. --Note in Original Edition.
Judgment reversed, verdict set aside, and cause remanded for a new trial.
Wickham, for the appellant.
Leigh, for the appellee.
The president pronounced the court's opinion.
OPINION
Wednesday, December 7th, 1814, the president pronounced the court's opinion, that the five years quiet possession of the slaves in controversy, before the institution of the appellee's action at law to recover them, vested the legal right to the slaves in the appellant, and those under whom he claims; and that, according to the decision of this court in the case of Gray v. Berryman, the suit in chancery, instituted by the appellees for the recovery of them, is no bar to the act of limitations stated in the bill of exceptions; and that the said judgment is erroneous.
Judgment reversed, verdict set aside, and cause remanded for a new trial.