BLACKBURN V. MORTON. VOL. 18 BLACKBURN HON. FELIX J. BATSON, Circuit V.
Judge. MORTON ET AL. S. H Hempstead, for the appellant. It is putely a matter of practice, whether depositions can be taken, in a case at law, befote the Walker & Green, for the appellees. issues are made up: aud in the absence of any rule upon the subject, depositions are not rendered ir-•HANLY, J. This is au action [*3£36 regular by being taken before issue is joined in of detinue, commenced in the Craw-tthe cause to which they apply. ford circuit court, on the 5th February, Where the cet tifteate of the clerk, attesting the official character of the justice of the peace before 1855, for a slave, at the suit of Alias J. whom depositions were taken, has no locus sigilli, Morton and Harriet his wife, and and the court below permits them to be read, Elizabeth Alice Smith, an infant, by against general objections, this court will presume, Wm. Walker her next friend, against in favor of the judgment of the court, that the dit.fect was occasioned by the ominission of the the appellant. Plea, non detinet, and •lerk in making the transcript. issue. Trial by a jury, and a verdict A general objection to a deposition reaches the and judgment for appellees. Motion relevancy, competency, or legal effect of the testi-for a new trial, assigning for grounds mony only; And will not be considered as extending to any matter of form, or question of regularity, or 1st. That the court permitted illegal authority in respect to the taking of such deposi-evidence to go to the jury. 2d. That the tion. court misdirected the jury. 3d. That Where a party, by his counsel, concedes that an the verdict was contrary to the instruc-instrument given by the court below in his favor, is erroneous, this coil/ t will not look into It to de-tions of the court, and excessive. termtne whether the concession be properly or im-The motion for a new trial properly made. was overruled, and appellant ex-3851 *Where no questios is made in respect to *cepted, setting out the testi- P387 the joinder of several plaintiffs in the action, this court will consider any objection for such cause, if mony and the instructions given to the it exists, as having been waived : and if no notice jury. be taken, in the brief, of an instruction objected to The following is the testimony in the court below, the objection will be considered John Shields, of Dallas county, Ala-As having been abandoned. The defendant, in an action of detinue for a slave, l. ama, by deed of the 16th October, having proved five years' possession, the court in-1846, ir consideration of the natural structed the jury that if they should tind cettain love and effection he bore to his son-facts showing a right of property in the plaintiff, • in-law, Girard J. Smith,and his daugh-"they should tind for the plaintiff, unless they should also find that the defendant had, before the ter, Harriet, wife. of Girard J., con-commencement of this suit, held five years of peace-veyed the slave sued for, among others, able possession oi said slave ; Held, that there was to the said Girard J.—but in trust as no objection to the hist, uction that could militate follows : against the defendant in view of the proof. Where an instruction is et. ; oneous and calculatt d "1. The said party of the second to mislead the jury ; and the verdict would have part (Girard J. Smith) is to hold pos-been different had the instiuction not been given, a session of said slaves, and be entitled to new trial will be awarded. the management anti control of them, When parties bring themselves within the territorial jurisdiction of our courts, and one of them and to receive their labor and the applies for redress, they must be held as submitting profits arising from their labor for the to all the laws that have been passed for redrets of support and maintenance of the said such grievances as are complained of : and so, in party of the second part, and Harriet such case, the statute of five years' possession (Dig., ch. 153, sec. 3), will be held to vest a good title to his wife, during their joint lives, and the property, though the possession may have been during the life of the party of the sec-without the territorial limits of our State. ond part, should he survive his said Appeal from the Circuit Court of Craw-wife; and in case she should survive ford County. him, then for her support and main-
JAN. TERM, 1857. BLACKBURN V. MORTON. te p anee, and that of her children by Edward T. Shields, in addition to,
the present, or any subsequent hus— the facts above stated, deposed that. band during her life. after Smith's death, say in the summer 2. That the said party of the second of 1852, he, as the agent of his sister-part (Girard J. Smith) is to hold the Harriet, one of the appellees, went to. legal title to said negroes, in trust for Fort Smith, in this State, in quest of the use and benefit of Elizabeth, Alice the slave Tom, in controversy in this and Felix, the childien of the said suit, who is the same boy Tom, in the party of the second part, and Harriet deed of trust described as being named his wife, and any other children which Tom, and aged fifteen years; aud on his the said Harriet may have, either by arrival at that place, ascertained that he the present or any subsequent mar- was in the possession of the appellant, riage, to be equally divided between Blackbwrn, who resided in the Chero-them, share and share alike, at the kee nation of Indians. That both appel-death of the said party of the second lant and the slave being beyond the part, should he survive his wife, or at reach of civil process, he was induced the death of Harriet, should she sur- by the attorneys whom he consulted, vive her husband. to hire a man to bring the slave to Girard J. Smith left Dallas county, him, and by that means he obtained Alabania, 1848 or 1489, and came to possession of the slave, whom he knew this State, bringing with him the slave to be the identical same boy Tom men— in controversy, together with several tioned in the deed of trust, and started others of the slaves mentioned in the on his return home with him, when he deed of trust, and died in the city of was arrested at appellant's instance, New Orleans, in the latter part of 1849, and taken to Van Buren, and whilst or in the early part of 1850, leaving on his way, with the slave, from Van. Harriet, his wife, in the deed of trust Buren to Fort Smith, to answer the-named, and three children, viz : Eliza- charge made by appellant, appellant, beth Alice, Felix and Hermion, him accompanied by several others, took surviving. In July, 1851, Harriet, the the slave out of his possession. }Iis widow, intermarried with the appellee, understanding was, that the slave was Morton, and in 1852 Felix and Her- taken from him by virtue of a writ of mion, the two youngest children of replevin, or some other process. At all Girard Smith and Harriet, (lied before events appellant directed the seizure 3881 they attained "'their majority, and capture of the slave. The slave and without issue, leaving the appel- was worth then 1,000. Morton, one lee, Elizabeth Alice Smith, the only of the appellees, is the husband of his surviving issue of Girard Smith and sister Harriet, the widow of Girard J. Harriet, them surviving. The slaves Smith, and appellee, Elizabeth Alice, mentioned in the deed of trust be- is the only surviving child of the said longed to John Shields, the donor, at Harriet. He further stated that ap-the time of the execution thereof, and pellant told him he bought the slave in Girard J. Smith held them in his pos- controversy from Girard J. Smith. session, under the deed of trust, down 'Appellees also proved that the P389 to t he time of his leaving Alabama. hire of the slave in question was worth The above facts were established by from $100 to $125 per annum. This was the deed of trust itself, and the deposi- all the proof adduced on the part of the tions ofJohn Shields, the donor named appellees. in the deed of trust, and William B. Appellant then proved that Girard and Edward T. Shields his sons. J. Smith, by bill of sale, bearing date
BLACKBURN V. MORTON. VOL. 18 26th Vetober, 1849, sold the same slave that deed of trust named, has died, and to him. That at the time of the ex-his widow, Harriet, one of the plaint-ecution of the bill of sale, the slave was iffs intermarried with plaintiff, Morton, aged about 15 years, and that he was, and that at the time of *the com- [*390 at the time of the trial, worth $800. mencement of this suit, the plaintiff, That the appellant has resided in the Elizabeth Alice, was the only surviv-Cherokee nation of Indians ever since ing child of the said Harriet, they he purchased the boy of Smith, and has should find for the plaintiffs, unless during all that time, had the slave in they should also find that said defend-his possession in the nation. That Ed-ant had, before the commencement of ward T. Shields obtained possession of this suit, held five years' peaceable pos-the slave, in the manner by him stated session of the said slave. above—that he was arrested upon a 2d. That in order for the defendant's charge of' larceny, for the act, and possession to give him a title to the whilst under the arrest, the boy was re-negro, it must appear that the posses-plevied out of his possession at the suit sion was continuous: and that if the of appellant, and that, at the time the jury find from the evidence that the slave was so replevied, Shields refused said negro was in the possession of the to say, in answer to an interrogatory plaintiffs, or their agent, within five propounded, that he recognized or years next before the commencement knew the negro, but said he 'thought of this suit, they will disregard the ev-he knew him. idence offered to prove title by posses-The appellant objected to the reading sion. of the depositions of the witnesses on 3. That the variance between the the part of the appellees, all the proof names of the plaintiffs apparent in the on their part being presented in the declaration, and depositions, is of no form of depositions, some of them hav-consequence so that it appears that ing been taken in Dallas county, Ala-they are the same persons." bama,whilst others were taken in Mis-Blackburn, the defendant below, ap-souri. The objections to the depositions pealed, and assigns for error: were general, and were overruled by 1. That the court below admitted the court, and he excepted. improper evidence against the objec-Certain instructions were given to tions of the appellant. the jury, at the instance of the appel-2. That the court below overruled lees, which were also objected to, at the motion of the appellant for a new the time, and exceptions taken by the trial. appellant, when they were given. The 3. General assignment. instructions, as given by the court, We will dispose of the errors assigned were as follows: in the order in which they severally "1. That if the jury believe from the OCC ur. . evidence, that the negro man men-1. Did the court below admit im-ftioned in the declaration, is one of the proper evidence against the objections itiekirs- mentioned in the deed of trust of the appellant? ex-eddied by John Shields to Girard J. The record in this case shows that, Sratti, and that he was in defendant's before the return term of the original possession at any time before the com-writ, application was made to the clerk mencement , CI; this suit, and that he of the court below for leave to take dep-claimed hintintider purchase from said ositions in behalf of the appellees, and Smith, and Mit, before the commence-that a rule was entered accordingly, ment of this suit, Girard J. Smith in and af,er notice given, the depositions,
• JAN. ' TERM, 1857. • .BLACIIBURN V. MORTON. which were the only evidence off • red, being a court of record, at office in tilt on the part of the appellees, in the town of Cahawba, etc." court below, were taken under a regu- It is insisted, on the part of the apelA lar commission, etc:- It is insisted -by lant, that these depositions should counsel on the part of the appellant, have been excluded as evidence for the that these depositions were not admis- appellees, on account of this omission. sible, because taken before any issue This court will presume in favor of the was made up in the cense. . regularity, and in support of the juag. There seems to be no provision °four ment of the court below, and this pre;. 'statute requiring issues to be Made up in sumption is se Violentin fever of law causes before a rule is-entered to take proceeding§ef • the inferior court, that,-: 391*] o depesitions. It is therefore a When a defect is tibserved to .nuatter purely of practice, and we are 'the record, • which Would .pot adVised that ttiere •has been any judgment of such court, that, the'defect 7 7 uniform rule of practiee established on wa§ occasioned rather by the omiSsicii.` •the : „ §Ubject. In the absence ef. _Such a of the clerk—a ministerial offider4-.th'an rule,;We are'constrained , to hold, as -we 1:;37 the Solemn act of the in ferier cOuit.• do:in thia case, that _deposition§ are _See Broom' a L. Atax. 129; Biwa • pot rendered irregtitai .. bYbeinetaken. 'Clark, 7 How. (111 . 0 `..Hep. .457; 12ObjrisOn: beforelssue is joined -in the *nee kYrnitirt r. Jrry,- ivlaieh they applY:,'If Aitken, 'befora.,:l. sm.& m4r . ..i2i; 4:b enclet v.' FOlis; 2 :i'isSue Is formed, theY . 'nre, as A.t. natitier'.:_oam 545. c;: ; of course, „taken -ftt the 1)64 of the" ' : *APplyingr . thenlinciple -thuS ttgikg .' party wile' tekes -thehi;::>fof if theY , 'stated, We arelIT'eedle intend:in:411S -. .ssheuhl•be '1Ound inapplicable., to the base, thailt:htertltOate :of '4.11-e' - *fie Nyhen filacle tip, nsa conse4tienee;`.:liattia eleilt;'*44fientioated , ihey.watIld net afford evidence the. 4eal,„0-'414e;kithieriee -:Pik y in copOgitenCeg th apphia vtoef 4 1 44 atiiriqiiii4t0 gip; 'tb Lt We littr*ita *4.4,4*.00ttc f *kt-,4iii3 . :Oiic449xxitt, : *3 4 tli l. rk idc4,tet.. 'tielOW . 40 , 4anial.16 fiTiotx , a lOpuk. 3 ; lis iirk 'under t;14 it4 66-1 41 4000 sigiiii ,te-the tran§0114, *here :the .:Seal, • ..PP *I are-••adinOsiWilf. :se" 4s. If tOtoa si-Jek us to have cijnaid ;:i_rdeterni:in:ed
.,1 4 44 8 Pol appeCr from 44:44Oriilthese r.'hefOie ua, that, ',Abe ttie'.fore us tletr -; , ' -th . reaaOnthat the Ohjee.F, to" ':.the,`eietiosiiions . wa g airoplyi; county; -:-.klabania, whieh atteater:the generCti, the counsel:kir' the:nppellent o -lAciatebaracter -Of tie .Tjustie rtit the in the &mit beitiVitailing-te'plAti-his: ? e .C 77 a .7 k 7 i . t 7 a ; : hefor h V 0 43 , • „ePPSis ups ..:1 ' 14 -(3 j ee ion . ape . 4 fie' ;or. spool 7- . that 6t40. *etetiotetfiliii*iiti*aieitteit in suety . Caiazhek,e1.1.hat,41.-.1jeritOcitob-: '-liiiildWffieseal 0464 ui-,Otirt4. 41. rienjection t o r .ade'poaltfoopachea the rele- ttrnplated i-ayi the44404 'fiai01:-*iii.„1:*ancy, et■hiietenek* . leigel , effeet of the - It akseare. titiWever:;*#40);)eitgl=:"Iteathiion;OhliV . lilee .Garvin eatei Or the . elerk 10 The ;OetiOltio4,.-:grell, 10 OccinA46;'0 w4ieh case, concledisthusf "in;viittieti§:whereof I tinney, .L;indeliieringthe opinion of • have hereunte' , set Any band as Iiiteh the Court, said: .-4.!, We'hoizt that •a gen-, "Clerk; and affixe -d. lhe,).. .;of: Saidpre: Cral -ohjection.to . readin g -•of bae court of Dallas Cciutiqr.,-,the salneP.:the• ldeposit4mAs In the present -
BLACKBURN V. MORTON. VOL. 18 case, will be construed in this erence to each of the three instructions court as teferring merely to the com-given by the court below at the in-petency, relevancy, or legal effect of stance of the appellees and against the the testimony contained therein; and objection of the appellant. will not be considered as embracing or As to the first instruction. There be-extending to any matter of form, or ing no question made, either in the question of regularity, or authority in court below, or in this court, in respect respect to the taking of such deposi-to the joinder of the plaintiffii in this tion. If it be liable to objection upon action, we wilt consider the objection either of the latter grounds, the specific upon that score, if any exists, as hav-exception must be pointed out with ing been waived by the counsel. Con-reasonable pcecision and certainty; ceding then that the appellees, under and if overrule() in the inferior court, the proof, had such a joint interest in must be set forth in the bill of excep-the subject of the suit as entitled them tions, and no exception, not thus taken to join in an action for its recovery, and set forth in the record, can be we will at once proceed to determine raised or assigned as error in this court. the propriety of this instruction. To hold otherwise would, not unfre-The peaceable possession of slaves, quently, enable a party to obtain a re-acquired after the 19th December, 1846, versal perhaps on some ground merely for the space of five years, shall be formal or technical, not made in the sufficient to give the possessor the right inferior court, and which, if it had of property thereto, as against all per-been taken there, might have been sons whatsoever, and which may be easily obviated." See also, Duval v. relied on as a complete bar to any suit Ellis, 13 Mo. I?. 203; Hughes v. Nance, in law or equity. See Dig., ch. 153, sec. 1 Swan B. 57; Sexton v. Brock, 75 Ark. 3, p. 943. B. 345, 348.' With the concession above assumed, We have no hesitation, therefore, in we can discover no objection to this holding that the court below did not instruction, which could militate err in admitting the depositions taken against the appellant, in view of the in this cause, to be read at the trial proof shown upon the record. We thereof. therefore hold, as far as the appellant 3934 ] '2. Did the court below err is concerned, that the court below did in overruling the motion of the appel-not err in this instruction. lant for a new trial? As to the second instruction — The counsel for the appellant seems It is conceded on the part of the to have abandoned the third ground counsel for the appellees, that this in-assigned in his motion for a new trial, struction is erroneous. We shall not relying in this court upon the one we look into it to determine whether the have just considered, embraced in his concession was properly or improperly first assignment, and the remaining made. one, viz : "that the court misdirected As to the third instruction— the jury." We will, therefore, in de-The objection to this instruction, if termining the question lastly pro-objectionable at all, seems ato [9394 pounded, proceed to consider it in ref-to have been abandoned in this court l. The objection must be specific and point to by the counsel for the appellant. No the particular evidence to be excluded. Johnson notice is taken of it in his brief. It v. Ashley, 7-473; Camp v. Gullett, 7-529; State was therefore, on this account that we Bank v. Conway, 13-344; Sexton v. Brock, 15-345; Burley State, 29-17; Blunt v. Williams, 27-377; omitted, in the statement of the case, Mellroy v. Adams, 32-319. to designate the supposed variance be-.
JAN. TERM, 1857. BLACKBURN V. MORTON. tween the names of the appellees, as and meaning of the passages referred apparent in the declaration and depo- to. If the learned author is not mis-sitions. We will therefore pass this, understood by us, we can say on and proceed to consider the other the subject, with Parker, C. J.. ground for a new trial, set forth in the "That the laws of any State motion. *cannot, by any inherent au- [*395 3. Was the finding of the jury con- thority, be entitlea to respect extra-. trary to the instructions of the court ? territorially, or beyond the jurisdiction We are of the opihion that the jury of the State which enacts them, is the were warranted in finding for the ap- necessary result of the independence of pellees under the second instruction, distinct sovereignties." (See Blan, which their counsel has conceded to chard v. Russell, 13 Mass. I?. 4.) Ia be erroneous. This instruction being applying the principles we have laid erroneous, and calculated to mislead down in reference to the possession of the jury, we are irresistibly forced to the slave by the appellant, under the the conclusion, that if this instruction circumstances indicated by the record, had not been given them, their ver- we have not called to our aid any for-dict would have been different—cer- eign or extra-territorial laws or stat-tainly for the appellant. utes; but on the contrary, the principle This disposes of the assignments and has been proclaimed, and the doctrine the questions growing out of them, maintained: "that the recovery must except in relation to one point made be sought and the remedy pursued by the counsel for the appellets in their within the time prescribed by our own brief. It is insisted that the statute of law—the lex fori—without regard to the five years' possession cannot be success- place where the cause or its merits fully invoked by the appellant under originated." (See Story's Conf. Laws, the facts shown by the record ; for the 487.) reason, that the appellant has resided And further, as held in McElmoyle with the property in controversy, be- Cohen (13 Peter's R. 312), that, "pre-yond the territorial limits of this State, scription is a thing of policy growing in the Cherokee nation of Indians, out of the experience of its necessity: ever since he bought the Aaves in ques- and the time, after which suits or action from Smith, in October, 1849, tions shall be barred, has been, from a when his possession commenced, aver- remote antiquity, fixed by every na-ring that our statute—the one making tion, in virtue of that sovereignty by five years peaceable possession of which it exercises its legislation for slaves, give to the possessor the right persons and property within its juris-of property against all persons—did diction." not commence to operate upon the Applying these principles and au-subject matter, or the parties to this thorities to the case before us, and the suit, until they were brought, or result is inevitable, that the partiep voluntarily came, within the terri- having brought themselves within the torial limits of this State, and, conse- territorial jurisdiction of our courts, ta quently, within the influence of the which one of them has applied for re-laws thereof. In support of this posi- dress, they must be held as submitting tion, we have been referred, by the to all the laws, which have been counsel, to the work of Judge Story on passed for the redress of such griev-the Conflict of Laws. We have noted ances as are complained of; as much so, the citations made, and conceive the and to the same extent as if they were counsel has misapprehended the force citizens of this State, and had resided
VoL. 18 here continuously and uninterruptedly since the cause of action in this behalf accrued. (See 22d Ala. R. 339.) And we are rather confirmed than shaken in the conclusion just expressed, by the cases of Balker v. Roache (11 Pick. i?. 36), and Leroy v. Crowningshield (2 Masons R. 151). . In conclusion, therefore, we are forced to hold that there is error in the judgment of the Crawford circuit court in respect to the matters hereinbefore pointed out. On account of these errors, the judg— ment is reversed, and the cause remanded, to be proceeded in, etc. Cited:-25-75; 22-475; 27-376; 32-319.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.