The opinion of the court was delivered by: Mr. Justice Johnson delivered the opinion of the Court.
THIS cause was argued by Mr. Jones, for the plaintiffs in error, and by the Attorney General and Mr. White, for the defendant in error.
The plaintiffs here, were defendants in the Court below, in an action of detinue brought by Thomas Guy, to recover sundry slaves.
The defendants below plead non detinet, and the act of limitations of the State of Tennessee, which bars the action of detinue in three years.
The plaintiff joins issue upon the plea of non detinet, and files a special replication to the plea of the statute, the object of which is to bring himself within the saving in favour of absentees. The defendants demurred to this replication, but the demurrer being overruled, the parties went to trial on the general issue, and a verdict was rendered for the plaintiff in the form now usual in the action of detinue.
To revise the judgment of the Court in overruling the demurrer, and its decisions upon various points of law raised in the progress of the trial, this writ of error is brought.
The case was this. One Dickerson, a citizen of Virginia, the father of the plaintiff's mother, was owner of a female slave named Amy, from whom the slave claimed had descended. Upon the marriage of Thomas Terry Guy with the plaintiff's mother, or soon after, and prior to the year 1778, the slave Amy passed into the possession of T. T. G, but whether by loan, or parol gift, is a point litigated, and upon which some of the principal questions in the cause arise.
From the year 1778 to 1794, the slaves remained in Virginia, in the possession of the plaintiff's father T. T. G., when he sold her and her increase to David Shelby, who thereupon removed with the slaves to Tennessee, where he and they have ever since resided.
In the year 1788, Dickerson made his will and died; and the will was proved and recorded in July, 1788. In this will he says, 'I lend to my son-in-law T. T. G., the negroes which he now has in his possession, that I lent him in the lifetime of his wife, during his natural life, viz. Cuffee, Gilbert, and Amy; and at his death I give the aforesaid slaves, with their increase, to my grandsons John and Thomas Guy, and their heirs, for ever.'
Thomas Guy, here named, is the plaintiff in this action; the executory devise to him and John, took effect by the death of their father in 1795. John died unmarried, under age, and intestate, after his father, but before the action brought, and neither of the brothers had been in the State of Tennessee until within three years prior to the institution of the suit, but had resided in the State of Virginia.
These are the material facts in the cause. The points argued have been very numerous; but if the plaintiff has tripped in pleading, by a vicious replication, the questions on the merits are put out of the case. The points arising on the demurrer, therefore, must first be considered.
The replication demurred to, states, in substance, the right of Dickerson to the negro Amy, and the continuance of that right up to his death; the bequest to the father of the plaintiff for life, and to the plaintiff and John after his death; the death of the father, and of John; the qualifying of the executors on the will, and their assent to the legacy; the sale by the father to Shelby in 1794; Shelby's removal with the slaves to Tennessee, and subsequent residence there, and the ...