William Johnson

“ The exceptions to the counts clearly cannot be sustained. They are consubstantial, and the same plea and judgment proper to both. Averring that the defendant came to the possession of the chattel by finding, does not constitute a count in trover; an alleged conversion characterizes that form of action. Nor is it any objection to the counts, that one of them states a right to recovery covery founded in a possession merely, without the direct allegation of property, since a tortious letention may well be of that which another has no interest in, but to the temporary use or custody. ”

“ The defendant here, was a purchaser from T. T. G. at the time when the will of the grandfather was of record. How far purchasers are affected with record notice, is obviously a point of local law. And, we understand, that much importance is attached to it in the jurisprudence of Virginia. Certainly, in ordinary cases, where such a source of information is open to all, those who do not avail themselves of it come with an ill grace before a Court to complain of imposition. ”

“ That the proof that Dickerson, on the marriage of Guy with his daughter, had sent the slave in question with them, or to them, upon their going to house-keeping, and permitted her to remain there ever after as their property, without any specific declaration of the interest vested in them, other than the will of 1788, with a variety of corroborating facts, was sufficient to sustain an inference of a gift or transfer by parol, and of such an adverse possession as might constitute a bar under the act of limitations of Virginia of 1705. ”

“ We come, then, to the question raised by the demurrer upon the statute of limitations of Tennessee; and here we are met by one of those embarrassments which necessarily grow out of our peculiar system.
North Carolina, in common with most of the old States, adopted the language of the statute of James in its act of limitations. This was the law of Tennessee before its separation from that State, and continues so to this day. The persons excepted from its operation, are infants, femes covert, &c. ”

“ From the year 1778 to 1794, the slaves remained in Virginia, in the possession of the plaintiff's father T. T. G., when he sold her and her increase to David Shelby, who thereupon removed with the slaves to Tennessee, where he and they have ever since resided. ”

“ It follows, we think, that, on the same principle, such a possession must constitute a good defence in Tennessee. To preclude the defendant from availing himself of the benefit of that evidence which would have sustained an action for the same property by the person from whom he purchased it, would be to convert a good and valid title in Virginia, into a defeasible title in Tennessee; a sufficient title in a vendor, into a defeasible title in his vendee ”

“ In this, it is contended, the Court erred, both as to the law, and as to its application to the case.
As to the law, we are of opinion, that the question is not now to be stirred. We do not mean to intimate an opinion on the construction of the acts of 1757 and 1758, on this subject; but only to treat it as a decided point upon the construction of those statutes, that a parol gift of slaves made in Virginia, even where the possession passed, between the years 1757 and 1787, was void, or voidable ”

“ These are the material facts in the cause. The points argued have been very numerous; but if the plaintiff has tripped in pleading, by a vicious replication, the questions on the merits are put out of the case. The points arising on the demurrer, therefore, must first be considered.
The replication demurred to, states, in substance, the right of Dickerson to the negro Amy, and the continuance of that right up to his death; the bequest to the father of the plaintiff for life, and to the plaintiff and John after his death; the death of the father, and of John ”

“ Litt. 286. Roll. Abr. 575.) Thus, a bailee, or common carrier, or sheriff, may maintain this action, and expressly against one who has them by delivery or finding. (2 Saund. 47. Cro. Jac. 73. et passim.) ”