Mcbain v. Smith

• Decision Date: 31 May 1853
• Docket Number: No. 44.,44.
• Citation: 13 Ga. 315
• Parties: Thomas McBain, plaintiff in error. vs. William B. Smith, defendant in error.
• Court: Georgia Supreme Court

13 Ga. 315

Thomas McBain, plaintiff in error. vs. William B. Smith, defendant in error.

No. 44.

Supreme Court of the State of Georgia

MAY TERM, 1853.

,

Trover, in Thomas Superior Court. Tried before Judge Hansell. November Term, 1852.

This was an action brought by Wm. B. Smith against Thomas McBain, for the recovery of a negro man, Martin. Itappeared in evidence that the negro was stolen from Smith in Alabama, brought to Georgia and sold to McBain. On the trial, counsel for McBain moved to nonsuit Smith, on the ground that he had not prosecuted the thief, on Joshua Ferguson, to conviction or acquittal, before commencing this suit. The Court refused the motion, and this is the first error assigned.

It was in evidence that "Smith said that the negro was originally the property of old man Ferguson; that James Ferguson was his (Smith's) factor in New Orleans, and had used his money from sale of cotton; that James Ferguson brought the boy to his plantation and left him there; that the boy was all he ever got for his debt; that a suit was pending against him in Kentucky for said boy, by the heirs of old Ferguson, who claimed him."

Defendant's counsel requested the Court to charge the Jury that "the admissions of the plaintiff, made with an understanding of his rights, adverse to his interests, was one of the highest species of evidence against him." The Court refused so to charge, and this also is assigned as error.

Seward, represented by Rockwell, for plaintiff in error.

Cole, for defendant in error.

By the Court.—Warner, J., delivering the opinion.

[l.] The first question made by the record in this case, is the refusal of the Court below to nonsuit the plaintiff, on the ground that Joshua Ferguson, who stole the negro in the State of Alabama, had not been prosecuted to conviction or acquittal before the commencement of the suit. In Neal vs. Farmer, 9 Georgia Rep. 559, this Court held, that in cases of treason, and such crimes as are felonies by the Common Law, the person injured is not entitled to his action until the offender is prosecuted to a conviction or acquittal. Whether it was a felony, by the Common Law, to steal a slave, we donot find it necessary to determine, in the view which we take of this case. The object of the plaintiff\'s action was not, technically speaking, to recover damages for any specific injury done to his property, but to recover the possession thereof.

In this State, the action of trover is a substitute for the old action of detinue, the object of which is to recover the possession of the specific chattel sued for.

In the old action of detinue, the judgment was in the alternative, that the plaintiff recover the specific chattel, or the value thereof, if he could not obtain the chattel itself, and his damages for the detention. 3d Bl. Com. 151. 1 ...