Irwin v. Wells

• Decision Date: 30 April 1821
• Citation: 1 Mo. 9
• Parties: IRWIN v. WELLS.
• Court: Missouri Supreme Court

1 Mo. 9

IRWIN

v.WELLS.

Supreme Court of Missouri.

April Term, 1821.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

MCGIRK, C. J.

Action of detinue for a slave--judgment for plaintiff in the court below. This case is presented to the court by a bill of exceptions--the declaration has only one general count. The bill of exceptions shows, that in 1806, in December, in the State of Kentucky, one James H. Audrain married the daughter of Wells, and that, in that same year, Audrain moved to Fort Wayne, and took the slave in question with him. That when Audrain was about to leave Kentucky for Fort Wayne, with this slave, Wells, the plaintiff, called on some of his family to bear witness that the slave Kate was only lent to Audrain, and not given. That Audrain, in the year 1807, came back to Kentucky and lived with Wells till June, 1809; that then he left Kentucky, and came to St. Louis; that in 1810 Audrain moved to Fort Osage, on the Missouri; that Audrain brought Kate to St. Louis with him and kept her till 1812, when he removed to Kentucky and left his property in this country, and Kate also was left. That while Audrain was at Fort Osage, he and his brother, Francis Audrain, became indebted to one Cottle, for stock, to the amount of $2,000, for the security of which they gave Cottle their joint and several notes. That James Audrain sent Francis back to this country as his agent, with authority to collect and take care of his property, and sell it and pay his debts, and particularly the debt due to Cottle, with instructions to send Kate to Gen. Wells, in Kentucky. Francis Audrain, in pursuance of said authority, came on and sold some of James' stock to Cottle, in part payment of said debt due to him; that Cottle sued Francis and recovered judgment against him for the balance of the debt aforesaid; and, to satisfy the execution, Francis, having no property of his own, delivered Kate to the sheriff, as James' property, to be sold to pay the debt. The sheriff sold Kate, accordingly, as property of Francis, and Rufus Easton, under whom the defendant claims, became the purchaser. The bill of exceptions also shows that when Audrain left Kentucky, in 1809, for St. Louis, he executed to Wells an instrument of writing, in the following words and figures, to-wit: “June 19th. 1809. For the hire of a negro girl, named Kate, that I have this day hired of Gen. Samuel Wells, his heirs or assigns, the just and full sum of $42 per year, making $3.50 per month, from the present date, until I return the said negro girl. It is clearly understood, that I am to pay three dollars and fifty cents per month for Kate's services, to clothe her, pay tax, and return her at any time when called on by Gen. Samuel Wells for that purpose. Witness my hand and seal, the day and year above written.” That at this time James was indebted about $2,200, and owned property to the amount of about $2,000, principally in whisky. It was also proved that, before the sheriff's sale, Wells had demanded Kate of Audrain. The defendant gave in evidence, on the back of said instrument of hiring, as follows: “In consideration of the within slave having been sold under some process of law, and of my having brought suit to recover her from the present holder, a certain James Irwin, I do hereby release the said James H. Audrain from liability to return the said negro woman to me, and also to release him from the payment of the hire mentioned in the within receipt from the time the said slave was taken under the process above referred to, and her services became lost to the said James H. Audrain, Witness my hand and seal, June 18th, 1818.”

As to the error alleged respecting the release, this court see no cause of reversal. The next point relied on is, that the Circuit Court erred in permitting the plaintiff to give evidence of a demand of the slave of Audrain, such demand not being alleged in the declaration. To sustain this ground, the appellant relied on the case of Gordon v. Harper, and on the 1st Chitty, 322, and 2d do. 335.

In the first case relied on, the plaintiff in fact had not the possession, nor the right of possession, when he commenced his action, and had only a reversionary interest in...