McAnulty v. Bingaman, 6 Howard 382

Mr. Justice Turner delivered the opinion of the court. These four cases come up on writs of error from the circuit court of Pike county, and, by the written agreement of counsel, it is admitted, that each of them is for the same property, that the issue and record of each case is precisely the same, and they agreed to argue one case only, and that the decision of one should decide the rest. The record shows that the writs of error are sued out to reverse judgments rendered against Bingaman, the claimant of property, levied on by the sheriff of Pike, as the property of A. P. Cunningham.

The proceedings were very irregular. The record commences with a bond executed by Bingaman and his securities, payable to Michael McAnulty, guardian of the minor heirs of James Leggett, deceased, and thirteen others, in the penal sum of five thousand dollars, with condition, reciting fourteen several executions of those several obligees, against A. P. Cunningham, the levy on sundry slaves, the claim of Bingaman, &c. and the affidavit of Bingaman claiming the slaves, &c.

Then follows this entry, viz: “The plaintiff by his attorney tendered an issue for the trial of the right of property to said negroes, which reads thus: “whereas the plaintiff in this case recovered judgment at the September term, 1839, for the sum of six hundred and ninety-five dollars and twenty-five cents, and cost of suit, taxed at twentyisix dollars and eighty-seven and a half cents, on which judgment execution issued 12th May, 1840, and levied by the sheriff of Pike county, on the following negro property, belonging to A. P.

Cunningham, one of the defendants in execution, to wit, (naming the slaves and their ages,) the sale of which was delayed by A. L. Bingaman giving bond and security for the trial of the right of property, which bond was returned with said execution, September 25th, 1840, and the plaintiff in execution gives the .court to understand that the property above levied on was at the time the property of the defendant A. P.

Cunningham, and subject and liable to said execution, all of which he is ready to verify; wherefore, <fcc. (signed) Stone, for plaintiff in ex.” And the said Bingaman, by his attorneys, joined issue, in these words, to wit: “and the said defendant, A. L.

Bingaman, the claimant of the negroes levied on by the sheriff of Pike county, in the before recited execution, by his attorney, comes and defends the wrong and injury when, &c. and says that the negroes levied on by the said sheriff to satisfy the before recited execution, were not, at the time of the said levy, the property of the said defendant Cunningham, and are not subject and liable to said execution, and of this he puts himself upon the country, &c. (signed) O. J. G. Stewart, attorney for defendant A. L. Bingaman, joined by consent. Stone, attorney, O. J. G. Stewart, attorney for A. L.

Bingaman.” The record then sets out a jury trial, and verdict in favor of the plaintiff, setting forth the name and value of each slave, and that the claim was made for purposes of delay. Then followed a judgment, that the plaintiff recover of the claimant the slaves, or their value, and judgment for one hundred and forty-three dollars and sixty-four cents damages, “being ten per cent, damages on the amount of his said judgment and costs.” A motion was made for a new trial, and overruled. Several bills of exceptions are embodied in the record.

Several questions arise from this record for the consideration of the court. In the first place, Bingaman offered a bill of sale of the slaves in question, and proof of its execution. It was objected to, and the objection sustained, on the ground that it was not probated and recorded within the time prescribed by the statute, but afterwards, In this we think the court erred, inasmuch as a deed is not a nullity or absolutely void, which is not proved and recorded according to law, but is binding between the parties and those having notice thereof.

The deed should have been admitted, as a link in the chain of evidence, and the court could have instructed the jury as to its legal effect, after the evidence was gone through with. For this error alone the judgment should be reversed. The entire proceedings are irregular, from the bond given by Bingaman to try the right of property, to the judgment. There should have been a separate bond for each case, and a separate issue; and each issue should contain the proper parties, and the judgment should follow the issue.

We do not think that there is that certainty in the record, which is essential in every case, to warrant a final recovery by the judgment of a court of record. The act of 1830, How. & Hut. 653-4, gives to such an issue and trial the same dignity and effect, as belongs to the action of detinue. There is no order of court directing the issue. This however might be inferred; but it is certainly better to insert it.

I consider, too, that a new trial should be granted, as the evidence was insufficient to show that the claim was made for purposes of delay, when it evidently appeared that it was made in good faith, although it may not be sustainable in point of law. That will depend on the evidence when fairly and fully submitted to another jury, under a proper issue to be made up, in each of these cases. In these several cases, four in number, the judgments must be reversed, and causes remanded for further proceedings in the court below.