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D. E. HUGER.
DANIEL A. MITCHELL, vs. PARHAM & Davis. The word " sealed,” inserted in the body of an instrument, prom
mising to pay money, will not make it a specialty, without a á seal, an (L. S.) or some equivalent mark annexed.
By the whole Court.
W. REED, vs. WM. PRICE. Action on a promissory note. Defence, failure of consideration.
The note was given for negroes. They were proven to have been, about twenty-seven years ago, the property of B. who died about that time, leaving other slaves, and a wife, two sons and a daughter. After B’s death, the negroes went into the possession, and have since continued in the possession of his daughter-or of her trustees, agents or assignees. No administration or distribution of the estate of B. shewn. Held that after so long possession, with the fact that B. died possessed of other slaves, a distribution of B's estate will be presumed; and that the slaves in question were the share of the daughter.
This action was brought on a Promissory Note, not nem gotiable, drawn by Defendant in 1817, and assigned by the payee to the Plaintiff,
WM. REED, us. WM. PRICE. The execution of the note was not denied; but the Defentdant contended that it was given for negroes, to which the payee was not entitled; and that consequently there was a failure of consideration.
It appeared that the negroes in question were the descendants of a woman, who was sent, with some others, to this state about to enty-seven years ago, by a Mr. Butler, who was then residing in Virginia. Mr. Butler intended to follow with his wife and threc children, but was prevented by death. His widow and children (two sons and a daughter) emigrated here soon after, and got possession of the negroes. The woman,
, whose children were purchased by Defendant, was held by Mrs. Butler, as her daughter's property, for six or seven years after her arrival here. On the death of Mrs. Butler, her brother,
took possession of the woman, and held her as the property of his neice. On her intermàrrying with Thomas Bulow, the woman was delivered to him.
He had possession of her for several years; and ultimately sold her and her chil
Iren, to the Defendant. During the whole of this period, these negroes were regarded as the property of Mrs. Bulow. To gratify the Defendant, the elder Butler, (brother of Mrs. B.) consented to join in the bill of sale: the younger had left the state some time before and was supposed to be dead. Subsequently, however, to the sale, he returned; but has never pretended that he was entitled to the negrocs, or any part of them. It did not appear how the estate of the elder Butler had been divided, or that any administration had ever been granted. Verdict for Plaintiff. From this there was an appeal.
The opinion of the Court was delivered by Mr. Justice Huger.
The defence in this case is a failure of consideration in part for the note. It is contended that the younger Butler was entitled to a part of the negroes, and therefore his brother and sister could not sell more than their right; which was but twothirds. What became of the rest of the intestate's estates, does not appear. That there were other negroes, has not been denied. This fact, when coupled with the twenty-seven years quiet possession of Mrs. Bulow, raised an irresistible presumption that she got this negro as her distributive part of the estate
JOHN RODGERS ads. ISAAC NORTON. of her father; and that to her two brothers and mother, were allotted the other negroes. If this had not been so, it is difficult to account for the forbearance of the younger Butler. How old he was when he first came to this state, twenty-seven years ago, does not appear. Since that period (whatever may have 'been his age then) he has had ample time to prosecute his rights, if he had any. In the case of M-Clure and Hill, (2 Con. De. 420) it was decided that thirty years possession of land was suficient foundation for the presumption of a grant from the state; and the judge who delivered the opinion of the court, suggested that twenty would be sufficient. If in twenty years a grant may be presumed against the state, after twenty-seven, the younger Butler may very well be regarded as having relinquished his claim to the property in question. If this presumption could require any further support, it is to be found in the fact, that Defendant himself has held these negroes long enough to perfect his title by possesion.
The motion for a new trial is refused.—Johnson, Nott, Richardson, Colcock, Justices concurred.
John Rodgers, ads. Isaac Norton.
The Clerk shewed for cause " that the said Isaac Norton was a free man of color, and therefore not entitled to the bene fit of that act." The rule was made absolute by the Circuit Court. From that decision an appeal was submitted to this Court.
The opinion of the Court was delivered by Mr. Justice Tuger,
The act of 1788, for establishing the bounds of the Prisons, &c. declares, “ Whereas humanity requires that the confinement of persons on civil process should be less rigorous: Be it enacted, that all prisoners on mesne process, in any civil