1822 – Dever v. Becknell

[1 Transcribed from documents in Henry Dever v. William Becknell, Howard County, Mo., Circuit Court Case Files, Box 5, Folder 137 (Microfilm C32823), Missouri State Archives.

2 Transcribed from Howard County, Mo., Circuit Court Book 2, Missouri State Archives, pp. 475-76.

3 Transcribed from documents in Henry Dever v. William Becknell (1823), Missouri Supreme Court Case Files, Box 106, Folder 10, Missouri State Archives (available online in Missouri Supreme Court Historical Database: http://www.sos.mo.gov/archives/judiciary/supremecourt/default.asp).

4 Transcribed from Reports of Cases Argued and Decided in the Supreme Court of the State of Missouri from 1821 to 1828, Vol. I, St. Louis, Mo.: Chambers & Knapp (1843), p. 237; also found in Devers to the use of Devers [sic] v. Becknell, 1 Mo. 333 (1823).]

Complaint1

State of Missouri
County of Howard ss

In the Circuit Court of the term of May 1822

Henry E. Dever who sues for the use of William Dever by his attorney complains of William Becknell of a plea that he render to him the said Henry one Negro woman named Sally of great value, to wit, of the value of six hundred dollars of lawful money of the United States which he the said William unjustly detains from him the said Henry.

For that whereas the said Henry heretofore, to wit, on the first day of September in the year eighteen hundred and twenty one at the county of Howard aforesaid was lawfully possessed of a certain negro woman aged about fourteen years of great value to wit of the value of six hundred dollars of lawful money of the United States, and being so possessed thereof he the said Henry afterwards to wit on the day and year first aforesaid at the county of Howard aforesaid casually lost the said negro woman out of his possession, and the same afterwards, to wit, on the day and year first aforesaid at the county aforesaid came to the possession of the said Becknell by finding yet the said Becknell well knowing she the said negro woman to be the property of the said Henry and of right to belong & appertain to him hath not as yet delivered the said negro woman to him the said Henry although often requested so to do, but hath hitherto wholly refused so to do, and hath detained the same from the said Henry, to wit, at the county of Howard aforesaid.

To the damage of the said Henry of one thousand dollars; and therefore he sues &c.

Tompkins & French
attornies for pltff.

State of Missouri
County of Howard ss

Personally appeared before me the undersigned Clerk of the Circuit Court of Howard County aforesaid on the 27th day of March in the year eighteen hundred & twenty two the undersigned Henry E. Dever, plaintiff in the foregoing declaration mentioned who being by me duly sworn, on his oath saith that the negro woman in the declaration mentioned named Sally is his property and that he is lawfully entitled to the possession of the same and that he verily believes the same to be worth four hundred dollars and that the defendant in the foregoing declaration mentioned unlawfully detains the same.

[signed] H.E. Dever

Sworn to & subscribed before me the day & year aforesaid.

[signed] Gray Bynum clk

Plaintiff’s Bond for Costs1

Know all men by these presents that we Henry E. Dever as principal and John Shaw as security do acknowledge ourselves indebted unto William Becknell in the penal sum of one hundred dollars lawful money of the United States to be paid to the said William Becknell or his certain attorney or to his heirs, executors, administrators, or assigns to which pay must well and truly to be  made we bind ourselves our heirs, executors & administrators firmly by these presents sealed with our seals and dated this twenty seventh day of March 1822.

The condition of the above obligation is such that whereas the above bound Henry E. Dever has this day commenced an action of Detinue against the said William Becknell in the Circuit Court for Howard County for a certain negro girl named Sally. Now if the said Henry E. Dever shall well and truly pay to the said Becknell all costs answering in said action that in and by said Court shall be adjudged against him the said Dever or that the said Shaw shall do it for him, then the above obligation to be void otherwise to remain in full force.

Witness our hands and seals the day and year above written.

[signed] H.E. Dever [Seal]
[signed] John Shaw [Seal]

Test.
[signed] A.D. Carden

Summons of Defendant1

State of Missouri
County of Howard ss

The State of Missouri to the Sheriff of the County of Howard, Greeting. We command you to take William Becknell if he be found in your County and him so taken you safely [ ] so that you have his body before one Circuit Court to be held at the town of Franklin within and for the County of Howard on the fourth Monday of May next, then and there to answer unto Henry E. Dever who sues to the use of William Dever of a plea that he render unto him the said Henry one negro woman named Sally of great value to wit of the value of six hundred dollars of lawful money of the United States which he the said William unjustly detains from him the said Henry to the plaintiff’s damage as is said of one thousand dollars. And have you then and there this writ.

Witness Gray Bynum clerk of said Court at Franklin the twenty seventh day of March in the year of our Lord one thousand eight hundred and twenty two and of the Independence of the United States the forty sixth.

[signed] Gray Bynum clk

Defendant’s Bond1

Know all men by these presents that we William Becknell and Jesse Morrison are held and firmly bound unto Nicholas S. Burckhartt Sheriff of Howard County in the State of Missouri in the sum of Five hundred Dollars lawful money of the State of Missouri which payment well and truly to be made we bind ourselves our and each of our heirs, executors, administrators, and assigns firmly by these presents. Signed with our hands and sealed with our seals this the 27th day of March 1822.

The condition of the above obligation is such that if the above bounden William Becknell shall appear at our next Circuit Court to be holden in the Town of Franklin within and for the County of Howard on the fourth Monday of May next, then and there to answer unto Henry E. Dever who sues to the use of William Dever of a plea that he render unto him the said Henry one negro woman named Sally of great value, to wit of the value of six hundred dollars of lawful money of the United States which he the said William unjustly detains from him the said Henry to the plaintiff’s damage as is said of one thousand dollars. And if Judgment be given against him at that or any subsequent Term of the Circuit Court for Howard County that he the said Becknell will pay the damages aforesaid and costs and surrender himself in Execution thereof or that the said Jesse Morrison will do it for him then this obligation to be void else to remain in full force & virtue in [ ].

[signed] Wm Becknell [Seal]
[signed] Jesse Morrison [Seal]

Answer1

Circuit Court
May Term 1822

William Becknell
ads
Henry E. Dever who sues for the use of Wm. Dever

And the said William by his attorney comes and defends the wrong & injury when &c and saith that he doth not detain the said Negro Sally in said Declaration specified in manner and form as the said Henry hath thereof complained against him & of this the said William puts himself upon the County &c.

[signed] Redd
Atto. for Def.

And the said Plaintiff likewise.

[signed] Tompkins & French
Atty for plaintiff

Depositions of David Berry, James Berry, Anne Dever, and N.S. Dallam1

The depositions of David Berry, Anne Dever & James Berry & N.S. Dallam taken on this 24th day of August 1822 at the house of Matthew Patton in the Town of Hopkinsville in Christian County State of Kentucky between the hours of six of the clock in the forenoon & eight oclock of the afternoon before William Murrell Esq. an acting Justice of the Peace in & for said County to be read as evidence in a certain suit of Detinue now pending in the Circuit Court of Howard County State of Missouri in which Henry E. Dever for the use of William Dever is plaintiff & William Becknell is defendant taken by virtue of the annexed Dedimus issued by Gray Bynum Esq Clerk of the said Circuit Court in Vacation on the 25th day of June 1822 in said Case.

These deponents all of whom are residents of said County of Christian & over the age of twenty one years being first duly sworn on the holy evangelists of God to speak the truth the whole truth & nothing but the truth concerning the said Case say, swear & depose as follows, to wit—

First David Berry says that he was at the home of old Mr. Wm Dever in Christian County Ky. sometime about three years ago last June & on the morning that he was there Wm E. Dever the son of the old gentleman was there & was about to start to Missouri State to live & then & there the old gentleman in the presence of this deponent & others called on this deponent in the presence of said William E. Dever his son to notice & observe that he the old gentleman then & there loaned to his said son Wm. E Dever three slaves viz Phillis a woman grown & her child Milly & another young female slave named Sally. It was then & there expressed & understood & agreed between the old gentleman & his said son William E. Dever that whenever the old gentleman called for the said slaves or either of them they were to be delivered up to him as it was only a loan & not a sale or a gift of them by the father to the son. These slaves I had frequently seen in the possession & under the management of the old gentleman (who is a near neighbor of mine) & I knew them to be his property. On the same morning the old gentleman loaned two slaves to his son Henry in the same way & both the sons agreed & promised to return & deliver said slaves whenever he called for them. This deponent cannot now give a particular description of said slaves but he remembers they were likely valuable slaves. He remembers also that it was observed in his presence at the time of loaning the slaves by the old gentleman that he had bought lands in Missouri & his son Wm. was going there to improve them but having nobody to cook for him this negro Phillis could cook & keep house for him & he could go on to make improvements. He believes Phillis was at that time worth about $500 & now she would bring about or near $600. And further this deponent says not.

[signed] David Berry

Also the deposition of James Berry who says he resides in Christian County Ky. The deponent also says that about the time Wm. E. Dever took to Missouri three slaves viz Phillis & her child Milly & Sally he frequently heard old Mr. Wm Dever the father of said Wm. E. Dever say he had loaned them to said William E. Dever to be returned to him whenever he called for them. He says he lived in sight of the old gentleman at the time the loan was made & knew said slaves to be the property of the said Wm. Dever Senr the father of Wm. E. Dever. Phillis was a woman of low stature about 25 or six years of age heavy well set & very black & a smart [ ] negro. Her child Milly was about 2 years of age small of its age & was a likely child. The other slave Sally was at that time about ten or eleven years of age heavy & well set, was very black & was likely & smart. I believe & am of opinion that Phillis was then worth about five hundred dollars. Her child Milly was worth about $250 & Sally was worth about $350. Had she been mine I would not have taken less for her than four hundred dollars. And further this deponent says not.

[signed] James Berry

Also the deposition of Anne Dever who says that about three years ago last June she was at the house of old Wm. Dever the father of Wm. Ewing Dever in Christian County when & where she found Wm. E. Dever fixing to go to Missouri & who did start for that state on that day & at that time in her presence the old gentleman Wm. Dever loaned to his said son Wm. E. Dever three slaves viz Phillis a girl or woman perhaps about 25 or 30 years of age of low stature but chunky & heavy built of very black complexion & she was a good field hand & was the mother of Milly a child then about two years of age a very likely child but small of its age & of black complexion but I think not so black as its mother. The third slave was named Sally I should believe to be then about ten or eleven years of age of very black complexion stout & heavily made a likely girl of good countenance tho she had large white eyes. These slaves I knew to be the property of old Wm. Dever. Phillis I knew in his possession & as his property for fourteen or fifteen years before that time & Milly & Sally I knew to have been born his & I knew them from their birth. At the time I speak of when these slaves were loaned to said Wm. E. Dever by Wm. Dever Senr his father it was expressly agreed on by and between the said father & son that said slaves should be returned & redelivered by the son to the father whenever he should call for them as they were loaned to him in my presence on that very condition. I knew both the parties well, lived near them & had heard them agree upon the terms of the loan before the day I speak of as well as on that day & I know from the statements & conversations of both father & son that there was no sale or gift of said slaves or anything further than the loan  have spoken of above. I will add further that on the same day these slaves were loaned by the old gentleman to his son as I have stated & the delivery made the said Wm. Dever loaned to his son Henry E. Dever two slaves on the same terms which he has now in his possession on that loan, to wit, Phinney & Peggy. And further this deponent says not.

[signed] Anna Devr

Also the deposition of N. S. Dallam Esq. taken at the said time & place who says that on the 17th day of October 1821 the power of attorney which is attached to this deposition marked A on the back thereof was produced to him in the clerks office of the Christian County he then & still being an acting deputy clerk duly qualified for John Clark Clerk of the said County Court by William Dever the maker thereof & then & there was acknowledged by said Dever before me as clerk as afsd to be his act & deed hand & seal for the purpose named therein & thereupon I as deputy clerk as afsd for said Clark certified the same as it now stands & appears in the name of said Clark & affixed thereto the seal of the said County Court Office. And further this deponent says not.

[signed] N.S. Dallam

The Commonwealth of Kentucky
Christian County

I William Murrell an acting Justice of the Peace in & for said County certify that the foregoing depositions of David Perry, James Perry, Anne Dever & N.S. Dallam were on this day taken and subscribed before me as in the caption of the said depositions is mentioned. Given under my hand & seal this 24th day of August 1822.

[signed] Wm. Murrel JP [seal]

Commonwealth of Kentucky
Christian County Sct

I John Clark Clerk of the County Court for said County do hereby certify that William Murrel whos name appears to the foregoing certificate is an Acting Justice of the Peace in and for the County aforesaid duly commissioned and qualified as such and that full faith and credit is due to all his official acts. In testimony whereof I have hereto set my hand and affixed the seal of said County Court at the Court House in Hopkinsville this 24th day of August 1822 and in the year of the Commonwealth the XXXI.

[signed] Jn Clark

Commonwealth of Kentucky
Christian County Sct

I Matthew Wilson presiding Justice of the County Court for said County do hereby certify that John Clark whos name appears to the foregoing certificate is Clerk of our said Court and that his Attestation is in due form of law. Given from under my hand this 24th day of August 1822.

[signed] M Wilson

Deposition Attachment A3

Know all men by these presents that I William Dever of the County of Christian & State of Kentucky do hereby constitute nominate and appoint my son Henry E. Dever of the County and state aforesaid my true and lawful attorney for me and in my name to claim demand sue for and receive certain negroes slaves belonging to me and now (as I am informed) in the State of Missouri to wit a negro woman named Phillis about thirty years of age and her female child named Milly now two or three years of age. Also a negro girl named Sally now about thirteen years of age together with their other increase if any they have hereby vesting my said attorney with full and ample powers for me and in my name to claim demand and receive the said negroes and if not delivered immediately to institute a suit or suits in my name for them and for me and in my name to make any arrangement which to him may seem meet and good to effect their recovery in as complete and ample a manner as I could do were I personally present. Hereby ratifying and confirming whatever my said attorney may or shall do touching the premises. In testimony whereof I have hereto set my hand and seal this 17th day of October 1821.

[signed by mark] William Dever [seal]

Order Book Entry2

Thursday, September 26th 1822

Henry E. Dever
who sues for the use of William Dever
vs.                                                       } Detinue
William Becknell

Now at this day come the parties by their respective attornies aforesaid and thereupon come also a Jury, to wit, William McMullin, John Bowles, Taylor Berry, James Gaw, John G. Parrish, Pemberton S. Bridges, John S. Patton, Henry Bower, Peter B. Harris, James I. Byrne, Augustus H. Evans, and Edward R. Bradley, twelve good and lawful men who being duly elected tried and sworn well and truly to try the issue joined between the parties aforesaid upon their oath do say that the said defendant William Becknell doth not detain the said slave in the declaration mentioned in manner and form as the said Henry E. Dever hath complained against him. It is therefore considered by the Court that the said Henry E. Dever take nothing by his writ aforesaid but that he be in mercy &c for his false clamour and that the said William Becknell go thereof without day &c and it is further considered by the Court that the said William Becknell recover against the said Henry E. Dever his costs and charges by him about his defense in this behalf laid out and expended and that he have thereof execution &c.

Memorandum: Before the Jurors aforesaid withdrew from the Bar of the Court here the said Henry E. Dever by his attornies aforesaid filed in Court here his Bill of Exceptions to the opinion of the court and prays that the same may be signed and sealed by the Court and made a part of the record which is done.

Bill of Exceptions1

Dever who sues to the use of Dever
vs.
Wm. Becknell

Afterwards to wit on the twenty sixth day of September in the year 1822 this case came on to be tried by a Jury of said County of Howard on the issue aforesaid for that purpose duly impannelled that is to say (here insert the Jurors names) [sic] good & lawful men of said county; at which came there as well said plaintiff and said defendant by their attornies and the Jurors aforesaid, impannelled to try said issue being called also came and were then & there in due manner chosen & sworn to try the said issue, and upon the trial of that issue the counsel for the plaintiff to maintain & prove the said issue on his part read in evidence the following depositions (here set out the whole of the depositions) [sic] and there the said counsel for the plaintiff aforesaid further to maintain & prove said issue produced offered to read in evidence the following instrument of writing attached to said depositions marked A described in the deposition of said N.S. Dallam (here set out the power of attorney in words letters & figures with the signatures &c) [sic] whereupon the said counsel for the said plaintiff did then & there insist before said Court that the said several matters so produced & given in evidence on the part of said plaintiff were sufficient, and ought to be admitted and allowed as decisive evidence to entitle the said plaintiff to be allowed to read the said instrument of writing in evidence; and the said plaintiff by his counsel did then & there pray the said Court to admit & allow the said matters so produced & given in evidence for said plaintiff to be conclusive evidence that the said instrument of writing ought to be read in evidence to the said Jury. But to this the counsel for the defendant did then & there object & insist before the said Court that the same were not sufficient nor ought be admitted or allowed to entitle the said plaintiff to have the said instrument of writing marked, read in evidence to the Jury; and the said Court did then & there declare & deliver its opinion that the said several matters so produced & given in evidence were not sufficient to entitle said plaintiff to read in evidence the said instrument of writing marked A as aforesaid; and debarred said plaintiff from reading said instrument of writing to said Jury and the said Jury then & there gave their verdict for said defendant; whereupon the said counsel for said plaintiff did then & there on behalf of said plaintiff except to the aforesaid opinion of said court; and was much as the said several matters so produced & given in evidence on the part of the said plaintiff do not appear by the record of the verdict aforesaid, the counsel for said plaintiff did then & there propose their aforesaid exception to the opinion of the said Court and requested said Court to put its seal to this bill of exceptions; and thereupon said Court did put its seal at the request of said counsel to this bill of exceptions.

[signed] David Todd [Seal]

Appellant’s Affidavit1

Dever who sued to use of Dever
vs.
Wm Becknell

The said affiant maketh oath & saith that he does not make application for this appeal for purposes of vexation & delay, but because he verily believes that he is aggrieved by the Judgment of this court on which this appeal is prayed.

[signed] H.E. Dever

Sworn to and subscribed in open court Sepr 27 1822

[signed] G Bynum clk

Missouri Supreme Court Opinion4

Fayette District, September Term, 1823

Devers, to the Use of Devers, v. Becknell.

An agent cannot sue in his own name when the legal interest is in his principal.

Pettibone, J., delivered the opinion of the Court.

This was an action of detinue for some negro slaves, tried in the Howard Circuit Court; plea, non detinet; verdict for defendant. The plaintiff, to support his action, offered in evidence a power of attorney from his father, William Devers, who was the owner of the slaves, authorising him to sue for them. This power of attorney was objected to by the defendant, on the ground, that the execution of it was not sufficiently proved, and was excluded from being given in evidence by the Court. To the opinion of the Court in excluding this testimony, the plaintiff excepted. It is not necessary to detail the evidence which was given of the execution of the power of attorney, because, admitting the Court to have erred in excluding that instrument, yet the plaintiff has shown, that if he had had the benefit of that evidence, he could not have maintained this action. The record shows, that the plaintiff was only the attorney of William Devers, that the legal interest in the slaves was in William Devers, and not himself. An attorney never can bring suit in his own name when he acts merely as agent or attorney, not having any beneficial interest in the suit: Bogart v. Debussy, 6 Johns. 94; Gunn v. Cantine, 10 Johns. 387. The suit [334] must be in the name of the person having the legal interest: 1 Chitty Pl., 3.

The judgment in the Court below must be affirmed, with costs.