Jones v. Fulwood, No. 23

No. 23 | Ga. | Aug 15, 1852

By the Court.

Warner, J.

delivering the opinion.

[1.] This was an action of trover, for the recovery of a negro slave, named Frank. The plaintiff in the action, insists that'he is entitled to recover, on the ground that Frank was delivered to the guardian of defendant, by mistake, at the time his negroes mentioned in the trust deed, were delivered.

The record showsthatatthetimethe negroes andtheirincrease, mentioned in the deed of trust, were delivered to the defendant’s guardian, by the, plaintiff, that a boy by the name of Jim, included therein, was missing. The guardian claimed him, or, that he should be accounted for; the plaintiff, in order to account for the missing negro, said that Jim and Plummer was the same negro; that he was sometimes called Jim, and sometimes Plummer. Here then, was a controversy between the guardian of defendant and the plaintiff, as to whether the boy Plummer, which had been delivered, was the same negro which was designated in the deed of trust, by the name of Jim. The plaintiff appears to have been as fully cognizant at the time of the delivery of the negroes, (if such was the fact,) that Jim and Plummer was the same negro, as he is now, for Doctor Lamar testifies, “that at the time of the settlement, the plaintiff said Plummer and Jim were the same, and it was so understood in the familythe plaintiff, however, gave up the boy Frank, now sued for, in the place of Jim, who was missing. There is conflicting evidence in the record, as to the fact of Jim and Plummer being the same negro.

The Court charged the Jury, among other things, that if they believed that Frank was given up by the plaintiff, to the guardian of defendant, by way of compromise, that they must find for defendant; to which portion of the charge of the Court, plaintiff excepted, and now assigns the same for error here.

The argument is, that there is no evidence in the record which would authorize the charge of the Court; that it was made upon an assumed state of facts, and therefore erroneous, as has been repeatedly ruled by this Court. There is no foundation for the objection, in our judgment.

Doctor Lamar, as the guardian of the defendant, demanded of the plaintiff, the negroes named in the trust deed, and their increase. On the settlement with the defendant’s guardian therefor, one of the negroes named in the trust deed, was missing. The plaintiff said Jim and Plummer was the same negro, and was so understood in the family. The guardian does not appear to have been satisfied with that statement of the plaintiff in regard to Jim, and required another negro in his place. There was clearly a controversy between the defendant’s guardian and the plaintiff, in regard to the boy Jim; that controversy was settled or compromised, by the plaintiff’s giving up to the guardian another negro by the name of Frank, which the guardian has since turned over to his ward, who is now the defendant.

[2.] In Stockley vs. Stockley, (1 Vesey and Beame, 30,) Lord Eldon held, that family compromises of even a doubtful right, should be favored. We find no error in the charge of the Court, and the Jury having found a verdict in favor of the defendant, on the evidence submitted, we shall not disturb it.

Let the judgment of the Court below be affirmed.