OF; THE STATE Ot ARKANSAS. .245 TATTLE 'ROCK, July, 1538. Pl!thl,qa vs: . RICKS. DANIEL PHILE-ips. against ARTHUR - HICKS, . Ap3en. APPEAL from Ci-awford Circuit Court. The same decision made in this' case as to proving the hand-writing of the attesting witness to a bill of sale, and as to the incornpetency'of a Ilistrnh-utee to testify, as in the case of Brown, eNecutor, vs. Hicks, administrator, reported at page 22. This was an action of detinue • for a slave, brought in' the Court below by Arthur Hicks, administrator, &c. of Jobn dec'd, against Daniel Phillips. The:declaration was in the cornrnon.form, with one Count: The pleadings 'and issues were the some . as in the. case Of Hicks, adrn'r of Phillips . in the court below . against EroWn, executor of PhillipS, reported at page:232: On the trial the same .bill ofsale from Ellender Phillips,.to Thomas Phillips, was,admitted in 'esti-_ dence on the smile showing as in that case, and Samuel Phillips ad-. mitted to testify under the same circumstances, and a verdict was rendered against the defendant for the slave, or his:Valle—from which judgment the defendant appealed. TAYLOR, for the appellant: WALKER and . FOWLER, contra: LACY, Judge, delivered the opinion of the court: This is' an .aetion. of detinue foi- the reeevery of- a slave. The deelaration contair,S - but one count,' Which is in the ordinarY form, as on a case of hailment.. . The defendant put in two pleas to the action:- The first, a plea . of nod-détinet, and secondly the plea of the statute of litnitations.. Issues were formed*on both pleas, and on the trial, the plaintiff; in order to support his cause of , 'action, read in eVidence a . bill of sale from Ellen-, der Phillips to Thomas Phillips, of the slave-in controversy under which the defendant claimed. He .. alse: called SaMuel Phillips ai witness, who was ' sv i . orn and permitted to give testimony in the cause. The defendant objected to the bill of sale, and to the cornpetency of Saniuel Phillips, but the court overruled the . objectiOn, and suffered the testimony to be received as evidence.. Whereupon, the jury found a verdict for . the plaintiff; and.the court: pronounced judgment
246 CASES IN THE SUPREME COURT LITTLE . u n l om in his favor. The defendant then prayed an appeal, which was grant. 1838. ed him. Pt/IL/Ars VS. The only questions presented for the court to determine, were decided in thocase of Richard C. S. Rrown, executor of Thomas Phillips, dec'd, against .4rthur _Hicks, administrator, of John Phillips, dec'd, during the-present term. And as the assignment of errors raises but two Points, and as both these were directly settled against the plaintiff in the case above referred to, and the reason§ and . authorities are there given at length, we deem it uanecessary to enter again into the examination of the questions, and we shall therefore content ourselves with simply pronouncing judgment in this Case, and giving the proper instructions to the court below. The opinion of the Circuit Court in permitting the testimony of Samuel Phillips, and the bill of sale from Ellender Phillips, to be read in evidenee upon the trial, was evidently erroneous; and the decision is, therefore, reversed. The judgment of the court below must be set aside with costs, the cause remanded to be proceeded in agreeably to the opinion . here delivered, a new trial awarded, and leave given to the parties to amend their pleadings if desired.
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