Stump v. Roberts

• Decision Date: 01 January 1813
• Parties: STUMP v. ROBERTS.
• Court: Tennessee Circuit Court

3 Tenn. 350

STUMP

v.ROBERTS.

Circuit Court, D. Tennessee.

1813.

This was an action of trover to recover the value of a negro man named Dave. It appeared in evidence that the negro in question had been purchased by the plaintiff of William Roberts, one of the defendant's sons, who had executed to the plaintiff a bill of sale therefor. Whereupon the defendant introduced the son to prove that Dave was the property of the defendant, and that he had been sold without any authority from him.

Mr. Dickinson, for plaintiff, objected that William Roberts, the son, was not a competent witness because of his interest in this suit; and also upon the ground that he should not be permitted to destroy his own deed or prove his own turpitude. 2 Bac. Abr. 584; 2 Term R. 63; 4 Term R. 678. But it was answered by--

Whiteside and Cooke, for defendant, that he was not so immediately to be a gainer or loser by the event of the suit as to exclude the testimony, particularly as his interest was equal. 1 Peake, Ev. 102; 1 Hen. & M. 154;2 Call. 232; 1 Strange, 35; 1 Term R. 164; 4 Term R. 480. Neither can he be excluded upon the ground of his being estopped by his own deed. That rule only applies to papers of a highly commercial character, and even then the rule has been much relaxed. 7 Term R. 604; 1 Peake, Ev. 128; 1 Hen. & M. 154.

TODD, Circuit Justice.

There is a great clashing in the decisions upon what shall and what shall not exclude a witness; but I consider the present question settled by the modern adjudications. The case of Jordaine v. Lashbrooke, 7 Term R. 604, in principle settles both the objections that have been made to the admission of the testimony of William Roberts; and when I add to this the determination of the court of appeals ov Virginia, 1 Hen. & M. 154, and a decision of the supreme court of Connecticut reported by Day, I feel prevented by precedent from declaring this witness to be incompetent. But I am perfectly satisfied that these cases have been properly adjudged. The witness offered has an equal interest each way; and I can see no solid reason nor any good authority for saying that he shall be estopped from giving evidence by his own deed. This is not one of those cases where such a rule ever obtained.

M'NAIRY, District Judge.

I feel a considerable aversion to the admission of the evidence offered, principally upon the ground that a witness ought not to be permitted to show his own turpitude. I am not satisfied that the testimony ought to be received, nor do I feel any couclusive opinion either way, but I am most inclined to reject it.

Objection overruled by a division of the court.

The defendant then proved by the witness aforesaid and other testimony that the negro in question belonged to him; that in the year 1808 William Roberts, who then resided near Nashville, wrote to his father who lived near Lexington, in Kentucky, to send him Dave to assist him in making powder, and that he would pay his father Dave's hire. Dave was sent accordingly; and on the morning he started the defendant's wife proposed to the defendant that Dave should be given to William, but he refused. The negro remained about two years in the possession of William before he sold him to the plaintiff, during which time he was generally considered as the property of William Roberts, but some persons had heard him say that Dave belonged to his father.

Dickinson urged that, as between the father and an innocent purchaser without notice, it ought to be presumed that this was a gift to the son (1 Hayw. 97; 2 Hayw. 72), and that upon the general doctrine of bailment the right of the defendant was divested. The son had a special property in the negro, and might have sued any person in his own name for a violation of that property. And if he could sue any person who trespassed upon his possession, there can be no reason why he might not sell; because a recovery against a third person of the value of the negro would be as much a divestiture of the defendant's title as a sale. 2 Bl. Comm. 449, 452; 2 Saund. 47, note b.

But it was answered by the...