Opinion
03-13-1812
Mortimer v. Brumfield
Wirt, for the appellant, Williams, contra.
[Syllabus Material]
This was an action of detinue, instituted in the year 1807, in the District Court of Fredericksburg, on behalf of Charles Brumfield against John Mortimer, for a negro man slave, by the name of Tom. The declaration stated a casual loss by the plaintiff, and finding by the defendant; and then, without setting forth a special demand and refusal to deliver the slave, proceeded to charge that the defendant, " well knowing the premises, and that the said negro was the proper slave of the plaintiff, although often required, & c. had not delivered, but the same slave had continually detained, and still did detain," & c.
Issue was joined on the plea of non detinet; and at the trial, which was had in May, 1809, the plaintiff offered in evidence the affidavit of Mary Sullivan; (agreed to be admitted by the parties; ) proving, that " about 23 years since, Charles Mortimer, the father of the defendant, Adam Hunter, and the affiant, stood sponsors for the plaintiff at his christening; (he being then not more than two months old; ) and the said Charles Mortimer named him after himself; that the day after the christening, the said Charles Mortimer brought a little negro boy named Tom, to Mrs. Brumfield's (the mother of said plaintiff,) and, in the presence of the affiant, Mrs. Willis, Mrs. Carter, and Nancy Mortimer, observed, that he had brought said negro boy as a present to his god-son, and he left said boy with Mrs. Brumfield, for her son, the plaintiff; the negro boy was then very small, not more than two years old, and appeared to be weakly: Mrs. Brumfield raised the said boy until she removed to Charleston, which was about six or seven years after: upon Mrs. Brumfield's removal to Charleston, the boy was left in the possession of the said Charles Mortimer, but on what terms, or under what circumstances, the affiant knew not of her own knowledge: the said negro boy remained in the possession of said Charles Mortimer, until his death, which happened about eight years since; and the said negro had been in the possession of the defendant from that time until he sold him to William Richards, since the institution of this suit: about two years after Mrs. Brumfield's removal to Charleston, she went to England, and took her son Charles with her, where they had resided ever since: a year or two before Charles Mortimer's death, the said Charles Brumfield came into this country, and remained in Fredericksburg five or six weeks, when he returned to England, and had resided there ever since." The witness being questioned, whether Charles Brumfield, when in Fredericksburg, made any demand on Doctor Charles Mortimer for said negro, answered, " Charles Brumfield observed to me, that he would ask Doctor Mortimer for the negro; but I advised him not to do so, as it might offend Doctor Mortimer, and it was probable Doctor Mortimer would give him more than the negro was worth; and I do not know that he made any demand."
The plaintiff also offered evidence to prove the value of the slave to be 1051. and that his hires, since he came to the possession of the defendant, were of the value of 1081. And this being all the proof exhibited by the plaintiff, the defendant demurred to the evidence, without introducing any on his part; and a conditional verdict was found in the usual form. The District Court gave judgment for the plaintiff, and the defendant appealed.
Judgment affirmed.
Wirt, for the appellant, contended, 1st. That the evidence was not sufficient to identify the slave in question; 2d. That the slave having been more than five years in the possession of Charles Mortimer, the father, and, after his death, more than five years in the possession of John Mortimer, his son, the title of the plaintiff was barred by the act of limitations; the force of which objection is not obviated by the plaintiff's being an infant; because it does not appear, that when he was in this country, he made any demand of the slave. Indeed, no action was brought, or demand made, in the lifetime of Doctor Mortimer, who might have better shown his right than it can now be shown by the present defendant.
Newby's Administrator v. Blakey, 3 Hen. & M. 57.
3. The declaration contains no averment of a special demand before action brought. According to 1 Chitty, 121, and 2 Chitty, 236, the words, " although often requested," are not sufficient in detinue, but a special demand must be laid in the declaration. In Burnley v. Lambert, 1 Wash. (VA) 310, this point was incidentally made, but not decided; a decision upon it being unnecessary.
Williams, contra. The identity of the slave is sufficiently established by the testimony of Mrs. Sullivan.
The act of limitations cannot bar the plaintiff's claim. The five years against him, ran during his infancy. Besides, the act is not pleaded, and the defendant has not given it in evidence under the general issue. In Murdoch v. Herndon, it was decided, that where the defendant may give the act in evidence, the other party may, in like manner, bring himself within the exceptions to its operation.
The case of Newby v. Blakey, is an authority in the plaintiff's favour; for he had more than five years peaceable possession, before his mother left the slave with Doctor Mortimer; which act of her's could not affect the right of her infant son.
As to the necessity of stating a demand in the declaration, it is sufficiently stated by the words " although often requested." The objection was made in Burnley v. Lambert, and must have been regarded as not tenable; otherwise the judgment, which was for the plaintiff, would not have been affirmed. I consider the point, therefore, as decided in that case, that the general allegation of licet saepius requisitus is sufficient, without stating a special demand. It is unnecessary then to examine the British authorities. [*]
The president pronounced the opinion of the Court.
OPINION
On Wednesday, the 8th of April, 1812, the president pronounced the opinion of the Court, that the judgment be affirmed.
[*]Note. The precedents in Mills v. Graham, 4 Bos. and Pull. p. 140, and Kettle v. Bromsall, Willes. 119, do not state a special request, but simply a licet saepius requisitus. In the last-mentioned case, the objection was taken up by Sergeant Comyns, that a count, in the latter form, was not sufficient; but the Court overruled the objection. In that case, too, it is observable, that the point was made, not after verdict, but upon demurrer. --Note in Original Edition.