Barksdale v. Appleberry

• Decision Date: 31 October 1856
• Citation: 23 Mo. 389
• Parties: BARKSDALE, Appellant, v. APPLEBERRY, Respondent.
• Court: Missouri Supreme Court

23 Mo. 389

BARKSDALE, Appellant,

v.APPLEBERRY, Respondent.

Supreme Court of Missouri.

October Term, 1856.

1. Where, in a suit under article 8 of the practice act of 1849 (Sess. Acts, 1849, p. 82) for the possession of a slave, it appeared from the finding of the facts by the court, that the slave belonged to plaintiff, was in the possession of defendant, and had escaped therefrom after the commencement of the suit, but it did not appear whether the possession of defendant was wrongful or rightful; held, that the finding was defective, and that a judgment for defendant was erroneous.

Appeal from St. François Circuit Court.

Perryman, for appellant.

Frissell, for appellant.

RYLAND, Judge, delivered the opinion of the court.

This is a suit in the nature of an action of detinue for recovery of a slave. The plaintiff alleges that she was the owner of the slave; that defendant got possession of him, and refused to deliver him to her, and that he wrongfully detains him to her damage, and prays for delivery of the slave or the value. An order for delivery was made. The sheriff returned that he could not find him.

The defendant filed his answer, denying the title of plaintiff to the slave, and denying her possession. He says the slave belonged to his father's estate, and that the slave was in possession of Elizabeth Appleberry, the mother of plaintiff, and of defendant, as dower property of her husband's estate in the state of Virginia; that when their mother moved to this state, she left the slave with the plaintiff in Virginia, as a loan and in trust for the parties interested, and not as plaintiff's property; that said slave ran away towards the latter part of the year 1850, and was taken up as a runaway in Mason county, Virginia, and put into jail, where he was kept for several months; that defendant went to Virginia and took him out of jail, and brought him with him to this state, having paid the reward, fees and expenses, and that he ran away from him here without defendant's fault, and with much trouble he has not been able to retake him or even to hear of him.

There was a trial by the court without a jury. The court found the facts as follows: “That at and before the institution of this suit, defendant had possession of the negro boy in controversy, which is shown to have been, at the time, the property of the plaintiff; that on the 18th day of August, 1851, plaintiff filed her petition in this cause, and sued out a writ in the nature of a writ of replevin in this cause, and the attorney of plaintiff, and Elisha Arnold, sheriff of St. François county, in company proceeded to the house of defendant; that they found him at Perry's Mines, a short distance from Appleberry's house, perhaps three or four hundred yards from the mines. The sheriff told him, his object in coming to see him was to take possession of the negro boy, and requested him to deliver him up. He hesitated at first, and expressed a desire to see a lawyer, and obtain advice before doing so, but finally consented, on the advice of a friend, to give bond for his forthcoming as required by law; and, upon going with a friend to his house, before giving the bond, to look after the boy, he (the boy) could not be found, but had made his escape, perhaps, into Illinois, and has never since been seen or heard of, although defendant has made much effort to get possession of him. The court finds that the boy escaped without the fault or connivance of defendant. The boy was of the value of $800. Upon the above state of facts, the court declares the law to be as follows: That the possession, by the defendant, of the boy not being wrongful, but, as far as there was any evidence to the contrary, being rightful, he is only responsible for neglect in keeping the boy, or for conniving at his escape; and there being...