Thrash v. Hardy

• Court: Georgia Supreme Court
• Writing for the Court: Lyon, J
• Citation: Thrash v. Hardy, 31 Ga. 203 (Ga. 1860)
• Decision Date: 31 August 1860
• Parties: THRASH. vs. HARDY.

31 Ga. 203

THRASH. vs. HARDY.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

Trover, in Troup Superior Court. Decision by Judge Bull., at the May Term, 1860.

This was an action brought by Mary B. Thrash, against James Hardy, to recover damages for an alleged conversion of a negro man slave by the name of Sam, of black complexion, and about thirty years old.

Upon the trial in the Court below, it appeared from the evidence, that Mary B. Thrash was the daughter of Peter Strozier, and intermarried with John Thrash in the year 1823 or 1824; that upon such intermarriage the said Peter Strozier delivered to the said Thrash and his wife several negroes, to wit: Sam and Olivia, or Only, and her children, to keep until he, the said Strozier, should otherwise dispose of them; and that the delivery of the negroes was only a loan, the title being retained by said Strozier; that the negroes were accepted by said John Thrash and his wife upon these terms; that the said John Thrash often spoke of said negroes, to different persons, as belonging to his wife and not to him, and that he wanted to sell them if practicable, but complained that the negroes were given in such a way as to allow him no control over them; that these declarations were made whilst Thrash was in possession of the negroes; that the negro boy, Sam, was worth from eleven to thirteen hundred dollars, and worth for hire, from 1840 to 1850, an average of seventy-five dollars per annum, and since 1850, an average of one hundred and twenty-five dollars per annum; that John Thrash sold said negro, Sam, to Thomas Hardy, and the defendant had been in possession ofthe negro for about five years, claiming him as his own, and exercising the usual acts of ownership of masters over their slaves.

The fifth and sixth items of the will of Peter Strozier (which was read in evidence), are in the following words, to wit:

"Fifthly—I give and bequeath to my son-in-law, John Thrash, the sum of five dollars, and no more, of my estate, both real and personal, for his full share.

"Sixthly—I will that my beloved daughter, Mary B. Strozier, now Mary B. Thrash, that she shall keep the negroes she has now in possession, for her only use, and for the use of the lawful heirs of her body, during life."

The evidence also showed that the testator, Peter Strozier, died in 1840, leaving his will in force, which was proven and executed according to its provisions.

During the progress of the trial the defendant proposed to prove "the value of the negro in dispute, for and during the lifetime of the plaintiff;" which testimony was objected to by counsel for plaintiff, on the ground that the measure of damages was the value of the property, with hire, and that the plaintiff was entitled to recover the corpus of the property.

The objection was overruled and the testimony admitted, to which the plaintiff excepted.

Upon this state of...