Abercrombie v. Bradford

Joseph H Bradford} Vs assigned} Charles A Abercrombie} {The State of Alabama {To any coroner of Said State Greeting You are hereby commanded without delay to take Charles A Abercrombie if to be found in your county and him safely keep so that you have his body before the Honorable the Judge of the Circuit Court at a Court to be holden for Macon County on the fourth Monday after the third Monday in March A D 1846 there and then to answer Joseph H Bradford assignee of John H Thomas in a plea of Force & conversion &c to the damage of said Plaintiff Five thousand Dollars and have you there and then this writ with your endorsment thereover Witness Sampson Larries clerk of Said Court at office this sixth day of April A D One thousand Eight Hundred and firty six and of american Independence the Seventieth Year. Sampson Larries Clerk Issued the 6th day of April AD 1846 This action is instituted to recover of the defendent the sum of two thousand five Hundred Dollars as damages sustained by him by the conversion by the said defendent of the following property to wit three negroes Tom, Suckey, & Mary, One pleasure carriage & harniss one pair Horses One Buggy & Harniss two mahogany Bedstead 10 Mahogany chairs one mahogany sofa & one center Table all which is the right & property of said Plaintiff and of great value to wit of the value of twenty five hundred Dollars. Dougherty & Cocke Plff Attys

The State of Alabama} Macon County} {In the Circuit Court of Said County Spring Term 1846 {Joseph H Bradford assignee pf John H Thomas by attorney complaint of Charles A Abercrombie in custody &c of a plea of Trover & conversion &c. For that whereas the said Plaintiff as such assignee as aforesaid heretofore to wit on the twentieth day of February in the year Eighteen hundred & forty Six to wit in the county aforesaid was lawfully possessed as of the property if the said Plaintiff as assignee as aforesaid of three slaves to wit Tom, Luckey, & Mary also of the following articles of Household Furniture to wit two Mahogany Bedsteads two Mahogany chairs one mahogany sofa & one center Table also of One pleasure carriage & Harniss One Buggy & Harniss and One pair of Horses of great value to wit of the value of Twenty five Hundred Dollars and being possessed thereof the said Plaintiff afterward to wit on the day and year aforsaid to wit in the County aforesaid casually lost the said property out of his possession and the same afterward to wit on the day & year last aforesaid to wit in the County aforesaid Came to the possession of the said defendant by finding, Yet the said defendant well knowing said slaves articles of Furniture Carriage & Harniss Buggy & Harniss & pair of Horses to be the property of said Plaintiff and of right to belong and appertain to him but contriving & intending to deceive and defraud the said Plaintiff in this behalf hath not as yet delivered the same to the said Plaintiff or any part or portion thereof although often requested so to do and hath hitherto wholly refused so to do, and afterwards to wit on the day & year last aforsaid

298 2d to wit in the county aforsaid converted and deposed of the same to his own use to the damage of the said Plaintiff Five Thousand dollars and therefore he brings his suit &c Dougherty Hocke Plffs atty

Plea Charles A Abercrombie at Joseph H Bradford assignee &c In the circuit Court Spring Term 1846 And the said deft by attorney comes and defends the wrong and injury [???] &c and Says that he is not guilty of the Said Several grevances in Said plffs declaration mentioned in manner & form as in Said Declaration alleged against him and of this the Said deft puts himself upon the County &c. And for a further plea in this the Said deft pleads in Short by consent that he Seized & took Said property in custody and deliverd the Same by virtue of writs of attachment to him directed and deliverd in favor of [blank space] plff and against John H Thomas & Henry H Hunter late partners in trade under the name of Hunter & Thomas bearing date [blank space] and returnable to [blank space] Term of this court and avers that Said property was Subject to Said writ & this he is ready to verify whenfor he prays Judgement &c Gunn & Willis atty for Defts Filed in office Octr 27th 1847 S Larries clk

Preamble Be it remberd that on the 18th day of October , It being the Fourth Monday after the third Monday in September in the year of Our Lord One Thousand Eight Hundred and forty seven the circuit Court of Alabama for Macon County convened according to an Act of assembly in the Town of Tuskegee the Honorable George W Stone present & presided

Joseph H Bradford vs Charles A Abercrombie This day came the parties by their attorney and thereupon came a Jury to wit Harry R Jackson & Eleven other good & Lawful men who being unpanneld Sworn and charged to try the Issue Joined between the parties aforesaid upon their oaths do Say they find for the plaintiff and assess his damages at the Sum of Thirteen Hundred & forty three Dollars It is therefore considered by the court that the Plaintiff recover of the defendant the Sum So assessed by the Jury aforesaid and also costs in this behalf Expended for which an Execution may Issue

Bill of Exceptions Joseph H Bradford vs assignee &C Charles A Abercrombie In Macon Circuit Court Fall term AD 1847 Be it remembered that on the trial of this cause which was an action of Trove brought by the Plaintiff against the defendant Sheriff of Macon County for Seveying [crossed out]

3c 299 certain property which the Plaintiff claimed as the assignee of one John H Thomas . The Plaintiff introduced a deed of assignment Executed to him by Said John H Thomas on the 15th day of January 1846 a copy of which Said deed with the Schedule attached and endorsment thereon is appended to this Bill of Exception made a part of the Same by direction of the court and marked Exhibit A

The Plaintiff next proved that on the 20th day of February 1846 the defendant levied on certain property named in the Deed by vertue of an attachment placed in his hands as Sheriff of Macon County while in the possession of the Said John H Thomas to wit three negroes a Carriage and harniss & two horses two mahogany bed Steads & one Buggy and harness Ten mahog chairs one Sofa one Center table Said attachment was Sued out on a debt due by Hunter & Thomas and also proved the value of Said property and gave evidence tending to prove a demand made of the Said defendant for the Same previous to the institution of this Suit and a refund on the part of the defendant to give Said property up he the Said defendant at the date of the levey of the aforesaid attachment having left the Said property with the Said John H Thomas taking a forthcoming Bond under the Statute for the delivery of the Same as a day Subsequent to the date of Plaintiff demand. The Plaintiff further proved that the debts Secured by the deeds were valid debts that a portion of them were contracted by Henry H Hunter and the Said John H Thomas under the St?? of Hunter and Thomas a mercantile firm which previously had existed in Tuskagee and another portion of them the individual debts of the Said John H Thomas and also that the assets conveyed in the deed had once belonged to the firm of Hunter & Thomas with the exception of the lands and the property levied on which was the individual property of the Said John H Thomas and which was admitted to be equivalent in value to his individual debts Secund in the Said deed. The Plaintiff then introduced as a Witness the attorney who drew the deeds& who testified that the portion of the deed which provided for certain of the property therein named remaining in the hands of Thomas was inserted by witness without consulting with either Bradford or Thomas: that after Said deed was drawn with the Said provision in it the witness Read it over to Bradford & Stated to him that he had inserted said provision because he Bradford lived in Coosa County Some fifty miles from Tuskegee where the property was & when it could probably be Sold to more advantage than at Bradford place of residence and when it could be taken care of until a Sale could be effected that Bradford assented to Said provision; that the Deed was then read over to Thomas who Executed it without any thing being Said by or to him about the Said provision. The Same witness also Stated that there had been great intimacy between Bradford and Thomas; that Some eighteen months or two years before the Execution of Said Deed, Bradford was well acquainted with Thomas business that a week or two before the Deed was Executed Thomas went over to Coosa County to See Bradford & that Witness went to Tuskegee from Montgomery to draw said Deed at the request of both Bradford & Thomas

4th 300 and it being Shown that Thomas was in a failing condition and insolvent at the date of the deed. The defendant objected to the introduction of the testimony of Said Attorney but the court overruled the objection and permitted the evidence to go before the Jury to which the defendant Excepted. The Plaintiff introduced no proof Shewing that any of the Creditors provided for in the deed had assented to the same previous to the levey of the attachment by the defendant on the 20th of February AD 1846 Except Bradford and Sanders and hen closed his case. The defendant then introduced a deed from Henry H Hunter to John H Thomas bearing date on the 20th day of February 1845 conveying to the Said Thomas all of the Said Hunters interest in the assets of the copartnership of Hunter & Thomas and also proved that they were the Same assets conveyed afterward in the deeds marked Exhibit A, with the Exception of the Land and property levied on and also the Same debts owing by Said copartnership with the Exception of the individual debts of the Said Thomas above mentioned a copy of which Said last mentioned deed is appended also to the Bill of Exceptions with the endorsement thereon markd Exhibiit B. and by the court made a part [blank] of the same. The defendant further proved that John H Thomas retained the possession of the property levied on by him from the Execution of the deed by him to Plaintiff until the date of the levey. That at the date of the levey to the defendant took a forthcoming Bond for the delivery of the Said property from the Said Thomas without an actual Seizure of the Same and that before the time when it was to be delivered to him according to the term of Said Bond, the Plaintiff then demanded it of him and that he the the defendant replied that he could not give it up because it was not in his possession . The defendant further proved that he the Said Thomas also remained in possession of the House and lot mentioned in Deed A. until the levey of the attachment to defendant and that afterward he carried a portion of Said property with him into the State of Georgia about the last of the Spring of 1846 whither he had removed with his family but delivered it up according to the condition of the forthcoming Bond after the date of Deed A The assignor Thomas was a man of family That he had a wife and Seven children - that up to the date of the levey he was in the habit of using the propeerty levied on and it was also proved that the Plaintiff when he accepted the trust was entierly Solvent and that he has Since remarried So this was all the proof offered Except what appears hereafter, under under this Statement of fact the defendant asked the Court to charge the Jury First ch 1 That if Thomas was in the possession of the property levied on at the date of the levey of the attachment by the permission of Bradford under the deeds and that the defendant as Sheriff levied on the Same without

removing it from the possession of Thomas but only received from Thomas a forthcoming Bond for the delivery of the Same and that aftermath and while the Said property remained in the possession of the Said Thomas the demand for it was made by the Plaintiff of the defendant and he thus replied that he could not deliver the Said property because he did not have the possession of it that there the Plaintiff is not entitled to recover. 2nd That if they believed that then is no proof that Bradfor demanded the property