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first and second sections of the act; inasmuch as a recovery in this suit, under the fifth section, will bar any attempted recovery for any thing done by his slaves, though done in obedience to the order of his overseer.
It might be conceded that under the general law, Harrold, the overseer, would be liable for the whole damages which he procured the slaves to commit, and that the owner would not be liable for wrongs not commanded or participated in by himself, but the appellee preferred an action upon the statute to the common law proceeding; adopted a remedy that looked to the known responsibility of the owner of the slaves, and avoided the possible irresponsibility of the owner's hireling.
There was no misjoinder of causes of action, as only single damages were recoverable for each sort of trespass complained of in the declaration.
The point made upon the alleged illegality of the evidence of removal of the rails cannot be sustained, as that was waived by a motion for a new trial, in which the admission of that evidence is not charged as a ground for new trial.
The verdict was not against the evidence, was in conformity to it, both in being for the plaintiff and in its amount, and was not against law as construed in this opinion.
King entered the land on the 25th of July, 1856, the trespasses were committed on it in the next month. When he bought the land of the United States the crops and fences upon it were his. Floyd vs. Ricks, 14 Ark. 290, 292; McFarland vs. Mathis, 5 Eng. 562; Gibbons vs. Dillingham, ib. 13. Brock vs. Smith, 14 Ark. 436, is not in conflict with these cases, and does not deny the right of King to the crop and improvements upon the land he entered. In that case the trees were severed from the soil and had become personal property before the land was entered. On page 435 the court expressly affirm Floyd vs. Ricks, and distinguish it from the case under consideration.
In refusing the instructions asked by the appellant, and in giving its general charge, the Circuit Court did not declare the
law to be inconsistent with our exposition of it, and upon the whole record the judgment is affirmed.
Mr. Justice COMPTON did not sit in this case.
JACKSON VS. RUTHERFORD.
The finding of the Circuit Court sitting as a jury will not be disturbed, where it does not appear that it was against evidence, nor without any evidence on which to
Appeal from Pulaski Circuit Court.
Hon. JOHN J. CLENDENIN, Circuit Judge.
GARLAND & RANDOLPH, for appellant.
HEMPSTEAD, for appellee.
Mr. Justice FAIRCHILD delivered the opinion of the court. Previous to the time of settlement between the parties, Jackson had deposited swamp land scrip, and had drawn out differ
On the 20th of December, 1856, the parties settled and Rutherford paid to Jackson, as the amount of scrip undrawn, seventeen thousand, eight hundred and fourteen 81-100 dollars,
which he claims to have been seven hundred and eight 50-100 dollars more than was due to Jackson, and to recover the overpayment this suit was brought. The court sitting as a jury found for the plaintiff, and we see no reason to disturb the judgment rendered upon its finding, since we cannot say that the finding of the court is against the evidence, or without any evidence on which to rest.
Let the judgment be affirmed.
HENRY VS. HARBISON.
Where a father-in-law, upon or after the marriage of a daughter, sends slaves home with her, which are permitted to remain, free from his own control or claim, a gift of the slaves sent is presumed to have been intended by the father to his daughter, unless the contrary is established by proof.
Where a demand and refusal to deliver the property in dispute are pre-requisites to the commencement of a suit, and the defendant admits upon the record a demand, the return of the sheriff upon the writ that the property was found in the possession of the defendant, is sufficient evidence of a refusal to deliver possession.
Appeal from Pope Circuit Court.
HON. JOHN J. CLENDENIN, Circuit Judge.
JORDAN and HOLLOWELL, for the appellant.
Where a parent, upon the marriage of his daughter, suffers property to go into her possession, it is prima facie evidence of
a gift. 4 McCord 228; 1 Ib. 214, 139; 4 Iredell 165; 1 Hay. 2; Ib. 97; lb. 451; 2 Ib. 126; 5 Mon. 504; 1 Ala. 652; 20 lb. 720; 22 Ib. 422; 3 Hen. & Munf. 127; 2 Bibb 32; 4 lb. 73.
The defendant having admitted, and made it a matter of record, that a demand in due form was made before suit brought, was estopped from denying a demand, or of taking any advantage for want of it.
Mr Justice FAIRCHILD delivered the opinion of the Court.
In 1852, Henry, the plaintiff below and appellant here, married Mary Ann Harbison, a daughter of John Harbison. The married couple left the house of John Harbison about the first of January, 1853, for their own home, in his neighborhood, taking with them a negro, Martha, which remained with them till August, 1853, when Martha returned home, and in her place the negro girl, Phillis, was sent to Henry's house. There she remained till the fall of 1855, when both Harbison and Henry removed from South Carolina, the place of their residence, to Pope county, in this state. In the latter place both families lived, Phillis remaining in the family of Henry, and under his control, until in September, 1857, she was taken by John Harbison, and after his death, in July, 1858, she came to the possession of the defendant, Hugh Harbison, who may be supposed to have been holding Phillis for the plaintiff, to whom John Harbison conditionally willed the slave. Hence, to recover the negro, the plaintiff brought this suit, an action of replevin, against Hugh Harbison.
The matter to be determined is, whether Phillis, in September, 1857, was the property of the plaintiff or of John Harbison.
It is well settled by a course of decisions prevalent in, the Southern States, that when a father-in-law, upon or after the marriage of a daughter, sends slaves home with her, which are permitted to remain free fron his own control or claim, that a gift of the slaves sent is presumed to have been intended by the father to the daughter. Farrel vs. Perry, 1 Haywood 2; Par
ker vs. Phillips, ib. 451; Davis vs. Duncan, 1 Mc Cord 151; Smith vs. Montgomery, 5 Mon. 504.
Whenever the question of ownership of such slaves arises upon a controversy between the father and son-in-law, or their representatives, the inquiry is, whether the slaves were the subjects of a gift, or of a loan. This is a question of intention. But without facts showing a contrary intent, it will be taken that the father intends a gift to his daughter. And the contrary must be clearly established. This conclusion is in obedience to the dictates of parental duty and affection.
Upon the settlement of a daughter in life, a father's acts towards her are to be construed in the way that will best discharge the obligation which binds him to provide for his child, and will the most promote her advantage. This construction tends much to repress family strife, to promote open and fair dealing between the parties affected and those with whom they have business.
To ascertain the intention of John Harbison, in permitting Phillis to be sent to, and remain in the family of the plaintiff, from August, 1853, to September, 1857, it may be noted, tha upon the plaintiff and his wife first commencing house keep ing, Martha was sent home with them because John Harbison being behind with his work, wished to keep Phillis, who was older and a field hand, to assist him in the coming crop, that after the crop was worked, Phillis, who had, in Harbison's family, been called the servant of Mary Ann, was permitted to go to her and her husband; that she remained in the family of the plaintiff while he and Harbison lived near together in South Carolina, till the fall of 1855, without any claim being made to the negro by Harbison; that the two families then moved together to this state; that Harbison hired out his negroes, and Henry hired Phillis to the same hirer; that the wages of Phillis were paid to Henry, were never claimed by Harbison, and that Phillis remained under the exclusive control and claim of Henry for more than a year after the death of his wife.
The expressions of dissatisfaction made by John Harbison to