
    Frazier vs. Spear.
    1/ one joint tenant.or ten« mon, bring m action alone foe * ehattie, ⅛ of by Plea ⅛ abate-
    he rtuiirecoY* ft* Hr iv'-T-biM r ⅛⅞ wnch’.
    
      judge Wallace abfent.
   OPINION of the Court, by

Judge Clark.—

This was an action of trover in the Fayette circuit court, by apear against brazier, for a negro man named Daniel. The facts were agreed; by which it ap-nears that Daniel, the negro man mentioned in the de-duration, was descended of a negro woman slave ed Phcebe, devised by John Spear (father to the defen-iant) to his wife -,-Spear, for her life, and at .her death to Hezekiah and William Spear; but the iorr< rwe of f’ha'w si’> l John aguar Amu: Aj rs. S| d*. id, \S ¡11 Vi as dec 1 who were d to IT e.r On ah, - aUtl Ls ⅛ A lliia.rt if ⅜-ar, b •• the widow of John *p >r ¡w a-i eiUcd suit ay ansi Fra/oet, --'en -i.ii! oí Dar.t'l, and obtained ajudg-⅞ ih-e to whxh judgment Frazier | to-st oi error.

■or ib. phoifoTin enor it ts contended, 1st, that the f'V.to ag;. l I au- too iu i 1‘rlect to authorise a judgment for the defendant, it not appearing whether Daniel was descended of Phoebe through the male or female line j and 2d, that William Spear having a right only to one third of the slave, the action cannot be maintained. in his name alone.

It is true that in an agreed case we cannot infer a fact dehors the agreement. The fact agreed is that “ Daniel is the grandson of Phoebe, in the will of John Spear mentioned.” If marriage between slaves was recognised by law, some doubt might exist whether he was to be understood as the grandson through the male or female line ; but as the father of a slave is unknown to our law, we are irresistibly led to conclude that he is descended through the female line.

As to the second point, we conceive the rule to be well settled, that one joint tenant or tenant in common of a chattel, cannot bring an action of trover against a stranger in his own name alone : but it is equally well settled that it can only be taken advantage of by plea in abatement, and if the defendant fails to plead such, matter in due time, the plaintiff shall recover his aliquot or proportionable part — Salk. 290 and Bul. N. P. 35-91. The judgment in this case being for the full value of the negro, is erroneous and must be reversed.

Wherefore it is considered by the court that the judgment of the said circuit court be reversed, and the verdict of the jury set aside , that the cause be remanded to said court with directions to cause a jury to be em-paunelled to ascertain the one third of the value of the said negro Daniel, and enter up a judgment therefor - against die said Mazier, with costs.  