Opinion
(December Term, 1855.)
Testimony that raises a mere conjecture, ought not to be left to a jury, as evidence of a fact which a party is required to prove.
ACTION of TROVER for the conversion of a negro man, Bartee, with a joinder of a count in case, for seducing a slave to run away, tried before ELLIS, Judge, at the Fall Term, 1855, of Sampson Superior Court.
McDugald, for plaintiff.
D. Reid, for defendant.
The counsel agreed in writing upon the following as a statement of the case as tried below, viz:
"It was in evidence, that, in the year 1846, James Matthis, the father of the plaintiff, by parol, gave a slave named Bartee, to the plaintiff, who took him into possession. During the winter of 1846, Bartee was missing, and was thought to have run away, and plaintiff advertised him, and took out an outlawry before William L. Robinson and James D. Matthis, (son of the defendant,) who were justices of Sampson county, which outlawry was posted in the county. James Matthis, father of the plaintiff, made his will in 1844, in which he bequeathed this slave, Bartee, to plaintiff, and made plaintiff one of his executors. He died in 1850, and soon thereafter, the will was proved. Bartee was not heard of till 1853, when plaintiff, hearing he was in Georgia, took a witness with him to Savannah, in order to reclaim him. He found Bartee there, in the possession of one McAlpin. Six months after this visit, he went again to Savannah, and returned with Bartee. The defendant was in Charleston in 1847, with Bartee, calling him Lewis, and sold him by that name to one McBryde, who sold him to one Oakes, who sold him to the aforesaid McAlpin in Savannah.
"The plaintiff, on his regaining possession of Bartee, brought this action. Plaintiff offered evidence of his expenses going and returning from Charleston, upon these visits to regain possession of Bartee. Defendant objected to the testimony, but the Court received it.
"Defendant offered a bill of sale from James Matthis for the slave Bartee, dated July, 1847, witnessed by one Milton P. Matthis. Evidence was introduced on both sides, plaintiff insisting that the deed was a forgery, and defendant supporting it.
"Defendant contended that plaintiff could not recover upon the count in trover, because he had no right of property, and had shown the right of property to be in James Matthis at the time of the conversion. Of which opinion was his Honor.
"Defendant further contended, that case would not lie, and that if plaintiff had any cause of action, it was trespass. And that if case would lie, there was no evidence to be submitted to the jury that defendant had in any way interfered with plaintiff's possession. But his Honor was of a different opinion, and charged the jury, that the plaintiff's action on the case, if they believed the evidence, was well brought, and that there was evidence to be submitted to them, the weight of which they were to determine.
"If they believed the bill of sale was genuine, it passed James Matthis' title to the slave Bartee, in July, 1847. In that case, if, before that time, the defendant had seduced the slave or enticed him from plaintiff's possession, plaintiff was entitled to damages for the term of said seduction, or up to the date of the bill of sale.
"If, however, the bill of sale was not genuine, and not the deed of the said James Matthis, then, plaintiff was entitled to damages, up to the time of the death of the said James Matthis in 1850, including such expenses in and about the regaining of possession of the slave as were necessary.
"The jury found for the plaintiff $550 damages. A rule for a new trial was had, and discharged, and defendant appealed.
(Signed,) WINSLOW, for plaintiff.
D. REID, for defendant."
There is one error apparent upon the bill of exceptions, which entitles the defendant to a reversal of the judgment and the award of a venire de novo. Supposing that the plaintiff was entitled to recover damages at all, for the seduction and detention of the slave from his possession, while he held him, as the bailee of his father, it became a question, from what time such damages should commence. The verdict was general, and therefore, if, in any view in which the case was submitted to the jury, the Judge misdirected them upon the question of damages, the defendant has a right to complain of it. The defendant claimed the slave by virtue of a bill of sale, bearing date in July, 1847, from the plaintiff's father, who was admitted to be the owner until his death in 1850. The genuineness of that instrument was disputed, and we refer to it at present for the date only. The Judge charged the jury, that they might give damages for a period prior to that time, if they should find that the defendant had, before such time, "seduced the slave, or enticed him from the plaintiff's possession." The defendant contends, and, as we think, contends successfully, that there was no evidence to be submitted to the jury upon that point.
The only testimony which seems to justify the Judge's charge, is, that the defendant was seen with the slave Bartee, in Charleston, in 1847, calling him by a different name. It is not stated at what time of the year this was, whether before or after the date of the deed in July. The burden of proof was upon the plaintiff, and if his testimony raised only a bare conjecture that it was before that time, and it is manifest that it could do no more, then there was, in effect, no evidence of the fact. Sutton v. Madre, 2 Jones' Rep. 320. Such being the case, it is clear that the defendant may have been, and probably was, prejudiced by the instructions. We cannot tell from the record, whether the jury gave damages for the alleged injury prior to July, 1847, or not; and, as the defendant may have been prejudiced by the erroneous charge, he is entitled to a new trial.
PER CURIAM. Judgment reversed.