Brent v. Chapman. 5 C.

Upon the other point the counsel for the plaintiff in error has insisted that the plea is sufficient.

But the court thinks it so radically defective as to be bad even upon general demurrer.

There is no allegation of fraud, and the circumstances pleaded do not, in themselves, amount to fraud.

Fraud consists in intention, and that intention is a fact which ought to have been averred, for it is the gist of the plea, and would have been traversable.

Upon what was the plaintiff below to take issue? Upon all the circumstances stated in the plea, which are mere inducement, or upon

the conclusion that "the bond is void?" If he had traversed [*358] the inducement, the issue would have been immaterial; * if he had traversed the conclusion, it would have been putting

in issue to the jury matter of law.

Judgment affirmed, with costs.

C. Lee suggested that there was also an exception to the refusal of the court to allow an amended plea to be filed, after the court had adjudged the pleas bad.

But the chief justice said that the court had, in an early part of this term,1 decided that such refusal was no error for which the judgment could be reversed.

BRENT V. CHAPMAN.

5 C. 358.

Five years' adverse possession of a slave in Virginia, gives a good title, upon which trespass may be maintained.

ERROR to the circuit court for the District of Columbia, sitting at Alexandria, in an action of trespass brought by Chapman against Brent, marshal of the District of Columbia, for taking in execution, on a fi. fa., against the estate of Robert Alexander, deceased, a slave named Ben, who was claimed by Chapman as his property.

The jury found a verdict for the plaintiff, subject to the opinion of the court upon a statement of facts agreed by the parties, which was in substance as follows:

1 See the case of Mandeville and Jamesson v. Wilson, at this term.

Brent v. Chapman. 5 C.

The slave was the property, and in possession of the late Robert Alexander, the elder, at the time of his death. His sons, Robert Alexander, and Walter S. Alexander, were named executors of his will, but never qualified as such. On the 17th of December, 1803, Walter S. Alexander took out letters of administration with the will annexed. No division was ever made, by the [359 ] order of any court, of the personal estate of the deceased among his representatives; but previous to August, 1800, a parol division of the slaves was made between Robert Alexander the younger, and his brother, Walter S. Alexander, the latter being then under the age of twenty-one years. Robert Alexander the younger being possessed of the slave, and being taken upon an execution for a debt or debts due from himself in his individual character, in August, 1800, took the oath of insolvency under the laws of Virginia, and delivered up to the sheriff of Fairfax county, in that State, the slave, as a part of his property included in his schedule. The sheriff sold him at public sale, and the plaintiff, knowing the slave to belong to the estate of the deceased Robert Alexander, as aforesaid, became the purchaser for a valuable consideration, and took possession of the slave, and continued possessed of him under the sale and purchase until July, 1806. The plaintiff in the winter usually resided in Maryland, and in the summer in Virginia, on his farm, where he kept the slave, and has never resided in the District of Columbia.

Dunlop & Co. obtained judgment against Robert Alexander the younger, as executor of his father Robert Alexander, and, upon a fieri facias issued upon that judgment, the marshal seized and took the slave as part of the estate of the testator Robert Alexander, there being no other property belonging to his estate in the county which could have been levied except what Robert Alexander the younger had sold and disposed of, for the purpose of paying his own debts. The agent of the creditors, Dunlop & Co., as well as the marshal, had notice, prior to the sale, that the plaintiff claimed the slave.

Upon this state of the case, the court below rendered judgment for the plaintiff, according to the verdict. And the defendant brought his writ of error.

*C. Lee, for the plaintiff.

Swann, contrà.

[ *360]

MARSHALL, C. J., delivered the opinion of the court, to [*361 ] the following effect:

This court is of opinion, that the possession of Chapman was a

Auld v. Norwood. 5 C.

bar to the seizure of the slave by the marshal, under the execution stated in this case. The only objection of any weight was, that there was no administration upon the estate of Robert Alexander, sen., and, consequently, that the possession of Chapman was not an adverse possession.

But there was an executor competent to assent, and who did assent, to the legacy, and to the partition between the legatees, and who could not afterwards refuse to execute the will.

11 W. 361; 16 P. 291; 9 H. 407.

Judgment affirmed.

AULD V. NORWOOD.

5 C. 361.

If the owner of a slave permit her to remain in the possession of A. for four years, and A. then, without the assent of the owner, delivers her to B., who keeps her four years more, the possession of B. cannot be so connected with the possession of A. as to make it a fraudulent loan within the act of assembly of Virginia, in regard to B.'s creditors.

ERROR to the circuit court for the District of Columbia, sitting at Alexandria, in an action of detinue for a female slave named [*362] Eliza. Upon the trial of the general issue in the court below, the plaintiff in error, who was defendant in that court, took a bill of exceptions, which stated that evidence was offered of the following facts: The slave, in November, 1798, was the property of John Dabny, against whom a fieri facias was issued at the suit of Norwood, the present defendant in error, upon which the slave was seized and sold by the proper officer; that one Charles Turner bought her for the said Norwood, and held her, as Norwood's property, until November, 1802, when he delivered her, without authority from Norwood, to one R. B. Jamesson, who held her until September, 1806, when he became insolvent under the insolvent act of the District of Columbia, and delivered her, as part of his property, to Auld, the plaintiff in error, who was appointed trustee under that act. This suit was commenced on the 19th of September, 1806.

Whereupon the plaintiff in error prayed the court to instruct the jury, that if they found the facts to be as stated, the plaintiff below was not entitled to recover. And if the court should not think proper to give that instruction, that they would instruct the jury that

Slacum v. Simms. 5 C.

the plaintiff's suffering the slave to remain out of his actual possession for so long a time was fraudulent in law as to the defendant. Which instructions the court refused to give, and the defendant Auld excepted. The verdict and judgment being against him, he brought his writ of error.

Swann, for the plaintiff in error.

*C. Lee, and E. J. Lee, contrà, contended,

[ *363 ] That the possession of Jamesson, which was adverse to Norwood, could not be connected with Turner's possession, which was under Norwood, so as to make the case a fraudulent loan within the statute.

And of that opinion was the court.

Judgment affirmed.

SLACUM V. SIMMS and WISE.

5 C. 363.

A magistrate who has received a deed of trust from an insolvent debtor, which deed is fraudulent in law as to creditors, is incompetent to sit as a magistrate in the discharge of the debtor under the insolvent law of Virginia. And the discharge so obtained is not a discharge in due course of law.

ERROR to the circuit court for the District of Columbia, sitting at Alexandria.

The former judgment of the court below having been reversed in this court at February term, 1806, (3 C. 300,) and remanded for further proceedings, the following statement of facts, in the nature of a special verdict, was agreed upon by the parties.

That the defendants executed the bond in the declaration mentioned. That the defendant Simms, being in custody under the execution mentioned in the condition of the bond, [364] afterwards obtained his discharge as an insolvent debtor, by authority of the act of assembly of Virginia, entitled "An act for reducing into one the several acts concerning executions, and for the relief of insolvent debtors." That he was discharged from the prison bounds by warrant from Amos Alexander and Peter Wise, jr., two of the aldermen or justices of the corporation of Alexandria, before whom Simms delivered in a schedule of his estate, and took the oath

Slacum v. Simms. 5 C.

of an insolvent debtor in the manner prescribed by the act, and being so discharged, he departed out of prison bounds, and not before, or in any other manner. That the defendant, Peter Wise, jr., is the same Peter Wise who acted as one of the justices, and who signed the warrant of discharge, and that Simms, before taking the oath, executed a deed, conveying all his property, real and personal, to John Wise, and the said Peter Wise, in trust, for the benefit of the creditors of Simms, who, notwithstanding the said deed, afterwards, and after his discharge, exercised acts of ownership over the property. That Peter Wise never acted under the deed of trust. That the deed of trust was made by Simms with a view of preventing the effect of the plaintiff's execution, and was fraudulent in law, but such fraud was without the participation of the said Peter Wise; and without his privity, other than that the said deed was exhibited to the said magistrates, and discussed by counsel before them, at the time the schedule was delivered, and the oath administered.

That no escape warrant was ever applied for in consequence of Simms's departing from the prison bounds.

That if the law be for the plaintiff as to both defendants, or either of them, judgment to be entered for $2,570.90, to be discharged by the payment of $1,820.20, damages and costs against such defendant or defendants severally; but if the law be for either or both [*365] of the defendants, *then judgment to be entered for such defendant or defendants severally.

The schedule referred to in the statement, was as follows: "I have neither real or personal property, but what has been conveyed by a deed of trust to John Wise and Peter Wise, jr., for the use of my creditors, as will appear, reference being had to said deed.

(Signed)

"JESSE SIMMS.

"August 30th, 1800."

The court below decided the law for both defendants; and the plaintiff sued out his writ of error.

Swann, for the plaintiff in error.

[ * 366 ]

[ *367 ]

*C. Lee, and Jones, contrà.

*

MARSHALL, C. J., delivered the opinion of the court, to the following effect:

The former case between these parties presented the single circumstance of fraud in Simms, the principal debtor, in which Wise had no share, as it was then stated.