
    William S. Oustott v. John Oustott.
    The plaintiff claimed, in his petition, to be the owner of one-half interest in a slave, and alleged the other half interest to be in his mother, whom he joined as a defendant in the suit against the party having possession of the slave; and, in his prayer, he asked that the slave be sold for partition between him and his mother, or else that he have judgment against the defendant in possession for one-half the value of the slave and of her hires. The plaintiff’s mother disclaimed any interest in the slave, and thereupon the suit was dismissed as to her. The jury found generally in favor of the plaintiff, and stated in their verdict the value of the slave and of her hires. The court below rendered judgment for the plaintiff against the defendant for the slave and her hires, or, in the alternative, for her entire value: He 'd that the judgment was erroneous for the reason that the prayer of the petitioner was insufficient to sustain it.
    What, in such a case, was the legal effect of the disclaimer, is not determined.
    Appeal from Fannin. Tried below before the Hon. W. S. Todd.
    The appellee, John Oustott, brought this suit against the appellant, William S. Oustott, and Elizabeth Oustott. The petition alleged that at the death of the plaintiff’s father, William Oustott, Sen., a certain negro girl named Caroline belonged to the community of said deceased and his widow, the defendant Elizabeth; that by the last will and testament of said William Oustott, Sen., the plaintiff became the owner of his community interest in said slave, the other community interest belonging to the said Elizabeth ; that the defendant, William S. Oustott was the favorite child of the said Elizabeth, who was confederating with him to defraud the plaintiff out of his rights in said slave. Prays that the slave be sold for partition between the plaintiff and defendant Elizabeth, or, otherwise, that the plaintiff have judgment against the defendant William S. for one-half the value of the slave and of her hires.
    . William S. Oustott pleaded a general denial, and set up title in himself. Elizabeth Oustott disclaimed, and the suit was dismissed as to her.
    At the Fall Term, 1860, the case came to trial. The evidence need not be detailed. The jury found generally “for the plaintiff,” and stated in their verdict that the girl was worth $1000, and her hires five dollars per month for thirty months. The court rendered judgment that the plaintiff • recover of the defendant the slave Caroline, named in the plaintiff’s petition, and one hundred and fifty dollars, her hires for thirty months; and in case said negro can not be had, that the plaintiff have and recover of said William S. Oustott the sum of one thousand dollars, the assessed value of said negro.
    Motion for a new trial made and overruled.
    
      Johnson & Towns, for the appellant.
    
      W. B. Wright, for the appellee.
   Moore, J.

This was a suit by the appellee, John Oustott, against the appellant, William S. Oustott, and their mother Elizabeth Oustott, for the recovery of one-half the value and one-half of the hire of a negro girl in the possession of the said William S. Oustott; but who as appellee alleged, belonged in equal moieties to himself and his mother, said Elizabeth. Mrs. Oustott filed an answer disclaiming any title or interest in or to said negro; and also alleging that she had never asserted or claimed any such interest: whereupon - the suit, as to her, was dismissed. But no amendment was made by appellee to his petition; nor was there any change made in his prayer for judgment, whereby he had only asked, in the event that said negro should not be delivered for the purpose of being sold for partition between himself and his mother, that he should have judgment against the appellant, William S. Oustott, for one-half of her value and one-half of her hire. Judgment was rendered, however, in favor of the appellee for the negro and her hire; and in the alternative, upon the failure of the appellant to deliver her up, for her entire value as assessed by the jury. As the point has not been ^discussed by counsel, and may possibly be of no importance on another trial of the case, we will not at present undertake to determine the legal effect of Mrs. Oustott’s disclaimer. The prayer of the petitioner is evidently insufficient to support the judgment of the court; and it is therefore reversed, and the cause remanded for further proceedings..

Reversed and remanded.  