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Riley vs. Martin.

the merits of his case; and that the Court, in denying him this right, committed error. Judgment reversed.

JOHN J. RILEY, plaintiff in error, vs. JAMES E. MARTIN, de fendant in error.

The Deputy Marshal of the State, having in his hands an execution issuing from the District Court of the United States, in favor of A-against B-levies the same on the property of C, which he sells, and appropriates the proceeds to A, the plaintiff. Held, that an action of Trover will lie at the instance of C, against the Deputy Marshal, to recover the value of said property, with the interest thereon.

When slaves are wrongfully converted, previous to emancipation, the plaintiff is entitled to recover the value thereof.

Trover. In Bibb Superior Court. Tried before Judge COLE. May Term, 1866.

This action was brought by Martin, the defendant in error, against Riley, the plaintiff in error, for the conversion of a negro slave named Jack.

At the trial, the plaintiff declared his option to take a verdict for the value of the negro, not for the negro himself. The case made by the evidence was substantially as follows:

The negro was sold in 1858, by John Martin to the plaintiff below, James E. Martin, for $900.00. A bill of sale was made, and the purchase money paid, but the negro remained in the possession of John Martin. Afterwards, John Martin acted as the agent of James E. in a copartnership bar room business, the other partner being one Joseph A. Boon. He also, as the agent of James E., hired the negro to Boon, or rather, it would seem, Boon took an interest of

Riley vs. Martin.

one-half in the negro's services for about five months, and paid one-half his wages.

While the possession was in John Martin and Boon, the negro was levied upon as the property of John Martin, by Riley, the plaintiff in error, as Deputy Marshal of the District Court of the United States, by virtue of an execution from that Court, against John Martin and Lindsey H. Durham. Durham having, to save his own property from levy, pointed out the negro to Riley and the Attorneys for the plaintiffs in execution, to be levied upon, and having also given to Riley, to indemnify him, a mortgage upon negroes.

Under this levy, the negro Jack was sold on the 8th of August, 1860, by Riley, as Marshal; and was purchased by James E. Martin, the defendant in error, and the purchase money ($1.000.00,) was paid by the latter to the former, and by the former to the Attorneys for the plaintiffs in execution. The value of Jack, at that time, was about $800 or $1.000.

The Court was requested by Riley's counsel, to charge as follows:

1st. That the defendant, having in levying upon the negro Jack, acted as Deputy Marshal of the District Court of the United States, under instructions of the plaintiff in execution, by virtue of a fi. fa. in his hands, issued upon a subsisting judgment obtained in said Court, his levy and seizure of the negro was not a tort, and he was not guilty of a conversion; and therefore, the plaintiff is not entitled to recover in this action.

2d. That the slave, Jack, having been emancipated by the action of the Federal Government, the loss of the slave fell upon the owner: That the plaintiff's right to recover in Trover depends upon his title; and if the jury believe that the evidence established title in the plaintiff to the negro Jack, he could not recover his value, and they would find accordingly.

These charges the Court declined to give; but instructed the jury that in this case, the levy and possession of the ne

Riley vs. Martin.

gro by defendant was a conversion, and would authorize the plaintiff to recover the value of said negro, if they believed, from the evidence, that the plaintiff owned the negro, and that such levy was made, and defendant took possession of him. Also, that if the jury believed, from the evidence, that the plaintiff was the owner of the negro, and that the defendant levied upon and took possession or control of him, and that his value was also proven, the plaintiff was entitled to recover his value, with interest thereon from the time of the conversion, and they would find accordingly.

The jury found for the plaintiff one thousand dollars, with interest from August 8th, 1860.

It is now alleged that the Court erred in refusing to charge as requested, and in the charge as given.

E. A. & J. T. NISBET, for the plaintiff in error.

WHITTLE for defendant.

LUMPKIN, C. J.

Riley, as Deputy Marshal of the State, levied an execution from the District Court of the United States, upon a negro, as the property of John Martin, as defendant in execution. Riley takes the negro into his custody, sells him, and appropriates the proceeds to the plaintiffs in fi. fa. The defendant in error brought Trover against Riley, to recover the value of his property thus taken under an execution against John Martin. The Marshal was induced to make this levy by Durham, the security of John Martin, giving him a mortgage to indemnify him for so doing. Emancipation has rendered this security valueless. But is this a sufficient reason to justify Riley in thus using an execution to sell the property of James E. Martin? The conversion of Riley being previous to emancipation, he, of course, must pay the value of the negro. James E. Martin, having re

Gay vs. Mitchell.

purchased the negro at the Deputy Marshal's sale, he, of course, loses the negro by freedom; and Riley the benefit of his mortgage taken from Durham. So that manumission is not only a two-edged sword, but rather like the flaming sword placed at the East of the garden of Eden, at Adam's expulsion, turning every way towards the community.

Judgment affirmed.

ALLEN GAY, SR., plaintiff in error, vs. WILLIAM L. MITCHELL, Executor of ROBERT TAYLOR, deceased, defendant in

error.

One who goes into the possession of land as a mere "squatter," disclaiming title, holds as tenant at will of the true owners, and cannot, by secretly attorning to another, change the character of his possession so as to make it adverse.

Motion for New Trial. In Early Superior Court. Decided by Judge CLARKE. April Term, 1866.

An action of complaint, brought by the defendant in error against the plaintiff in error, to recover a lot of land, was tried before Judge PERKINS, at April Term, 1861, of Early Superior Court.

Gay, the defendant in the Court below, had a paper title from the State down to himself. The executor of Taylor, the plaintiff in the Court below, relied upon color of title and possession under it for more than seven years. To make out such possession, it was necessary that the occupancy of one Daniel Kirkland should be counted as the possession of Taylor, and there was evidence tending to show that Kirkland, although he subsequently attorned to Taylor, held originally under one Richard Gay who held under Curry, a squatter. There was no evidence that Allen Gay, Sr., or

Gay vs. Mitchell.

those under whom he claimed, had any notice or knowledge of Kirkland's recognition of Taylor's title.

The Court charged the jury, among other things, that where a party goes into possessiou of land, disclaiming title, he is a mere squatter, and holds in subordination to the rights of the true owner--not as his tenant, and, therefore, not for him; that, going in as a squatter, his possession is not adverse, and, not being his tenant, can, after being in, agree with another to hold for him, and it is not necessary that the knowledge of such change of possession should be brought home to the true owner to make such possession ad

verse.

The jury having found for the plaintiff, the defendant moved for a new trial, on the ground of error in this charge, and on various other grounds.

The motion was heard by Judge CLARKE, at April Term, 1866, who overruled it, and refused a new trial. This is the error alleged.

Hoon, for plaintiff in error.

DOUGLASS, for defendant.

Judge HARRIS did not preside, one of the parties being a relative.

WALKER, J.

As early as the case of English vs. Register, 7 Ga. R. 389, this Court decided that when the tenant in possession disclaims having any title to the premises, the presumption of law is that he holds the possession in subordination to the title of the true owner. In delivering the opinion, Judge LUMPKIN, p. 391, says: "The legal principles which I assert and maintain are, first, that he who has a perfect legal paper title to the land, is presumed in law to be seized and pos7 thereof. Second, that such seizin and possession is

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