1 Ala. 197 | Ala. | 1840
— We understand the declaration to assert, that the plaintiff was in possession of the slave, sued for, as guardian, and that he was deprived of that posession by the defendant. These facts, are admitted by the demurrer, and it is now insisted by the counsel for the defendant in error, that they authorized the judgment of the court below, on the authority of the case of Goff v. Sutherland, 5th Porter, 508. In that case it was decided, that, “The guardian must sue in his own name, when he has a right to the possession, or when an injury is done to the pos
Now, as the declaration in this case affirms, that the slave sued for, was taken from the possession of the plaintiff as guardian, that case is a direct authority to show his right to maintain the action, if he sustains the allegations of the declaration by proof.
In Sutherland v. Goff, the court held the guardian could not recover because he sued, not for a slave’taken from his possession, but for his value as assessed by a third person, which the the court (whether correctly or not) considered a mere chose in action. The case, however, distinctly admits, that for an injury to his possession, the guardian could maintain the action.
We have no intention of abandoning the principle, which governs the case of Sutherland v. Goff, but as the point was one purely technical, we feel no disposition to extend the principle to cases not clearly within the reason of that decision.
Let the judgment be reversed and the case remanded
