Davis v. Braden
ON a certificate of division in opinion from the circuit court of the United States for West Tennessee.
At September term 1825, an action of detinue was instituted in the circuit court, by John H. Davis against Alexander Braden, to recover a negro slave. During the progress of the suit, the plaintiff died, and the suit was revived in the name of Elizabeth Davis, his administratrix, on the 1st day of October 1830. Afterwards the defendant Alexander Braden died; and at September term 1832, his death was suggested by the plaintiff: and at September term 1833, the court made an order as follows: 'It appearing to the court that the death of the defendant was suggested at the last term of this court, and no steps having been since taken to revive the suit against the representatives of said defendant, it is ordered that the same abate.' Afterwards, at the same term, the order abating the suit was set aside, and a scire facias was issued to his executor; and on the return of the same, in September 1834, a motion to revive the suit against the executor of Alexander Braden, was upon argument overruled. On a day afterwards, in the same term, the plaintiff's counsel moved to rescind this order; and the court directed the following to be entered of record, viz.
'This was an action of detinue founded on a tort, brought by the plaintiff against Alexander Braden, the defendant, for the wrongful detention of a slave. The defendant, Braden, died previous to September term 1832, before the suit could be tried. His death was suggested at September term 1832, and a scire facias issued against Margaret Braden and Harvey Braden, his personal representatives, since the last term, returnable to the present term, to show cause why the said action should not be revived.
'The personal representatives by their counsel appeared, and upon argument of the motion, whether the said action should or could be revived against said personal representatives, the opinions of the judges on said point were opposed. Whereupon, upon motion of the plaintiff, by her attorney, that the point upon which said disagreement happened, may be stated under the direction of the judges, and certified under the seal of the court, to the supreme court to be finally decided: it is, therefore, ordered that the foregoing statement of facts in relation to said disagreement, which is made under the direction of the judges, be certified, according to the request of the parties, and the law in that case made and provided.'
Mr Huntsman, for the defendant, stated that the record presents but one question for the decision of this court. Can an action of detinue, founded on a wrongful detention of property, be revived against the executor or administrator of a deceased defendant.
For defendant it is insisted it cannot.
The unlawful detention is the gist of the action. 1 Inst. 286; 1 Chitty, pl. 119. But this question has been put at rest in the state of Tennessee, by the very elaborate decision of the supreme court of that state, in the case of Jones and Glass against E. B. Littlefield, administrators, &c., reported in 3 Yerg. 133. That case is decisive of this cause, and the court say, 'an action of detinue, founded on a wrongful detention of property, cannot be revived against an administrator,' &c.
The instruction to the circuit court should be, that this suit cannot be revived against the personal representatives of Alexander Braden deceased.
No counsel appeared for the plaintiff.
Mr Justice THOMPSON delivered the opinion of the Court.
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