Francis Bowling & Clarissa Gardiner v. Edward Simms. Jury Instructions
Defts 1: Prayer - granted
If the Jury believe from the evidence that the Defendant had possession of the negro woman Matilda, the mother of the two negro Children in dispute in this cause for this term of three years & more next before the commencement of this suit, claiming the said negro Matilda as his property & exercising act of ownership over her with the knowledge of the Plaintiffs Intestate Rd. Gardner. the court is of opinion that such possession rested the absolute right & title in the said negro Matilda in the Defendant.
And if the Jury further believe from the Evidence that the said negro Children were born of the said Matilda while she was so in the possession of the Defendant, & that the said defendant has held possession of the said children, claiming them as his property three years or more next before the commencement of this suit, the Plaintiffs are not entitled to recover
Plffs 1st Prayer (granted)
But if the Jury believe from the evidence aforesaid, that the defendant did not during the life of R. B. Gardiner claim the property in said negro woman or her children adversely to said Gardiner, and exclusive of his right, and that the said Gardiner died in 1832, then a subsequent adverse possession even if found by the Jury, for more than three years before the bringing of this suit will not for bar the administrators of said Gardiner unless the Jury should find from the evidence that the said Administrators or either of them were aware of such adverse claim.
2nd Instruct.
If the Jury believe that the mother of the negroes in dispute, came to the possession of the Defendant with the permission of R. B. Gardiner under whom Plaintiffs claims, the Defendant then not setting up any claim to such property, then the statue of limitations will not begin to run until the Defendant Plaintiffs or the said Gardiner under whom they claim became aware of said adverse claim. & the possession
Given nem. con. Dec. 15. 1841
1 Instruction
3rd Jury
If the Jury believe from the evidence the Richard Gardner, the Plaintiffs intestate, being the legal owner of a negro woman named Matilda, by parol gave her to the wife of the Defendant & at the [strikethrough] time of the said gift the said negro woman Matilda was in the possession of the Defendant & that she has remained in his possession from the time of the said gift until the commencement of this suit & that after the said gift, & while the said negro Matilda was so in the possession of said Defendant, the two negro children in dispute in this action were born of the said Matilda. Then the Court is of opinion that the Defendant acquired an absolute right & title in & to the said negro Matilda by said gift & possession which accompanied & followed it, & was entitled to her after born issue & the Plffs are not entitled to recover in this action
But, If the Jury should find from the evidence that R. B. Gardiner did give Matilda to the wife of Defendant, yet if the Jury further find that the Defendant did not agree did agreed to said gift but continued to hold her in right of said Gardiner then the title to said woman did not rest in said Sims.
(3)
But if the Jury believe from the evidence aforesaid, that the Defendant did not claim during the life of R. B. Gardiner claim the property in said negroe woman or her children adversely to said Gardiner & exclusive of his right & that the said Gardiner died in 1832, then a subsequent adverse possession even if found by the Jury, for more than three years before the bringing of this suit will not for the administrators of said Gardiner unless the Jury should find from the evidence that the said administrators or either of them were (in the District of Columbia more than three years before the bringing of this suit)
The Court, nem. con. refused to give the instruction including the words in the parenthesis, within the brackets, but gave it with the words "Aware of such adverse claim," substituted for those in the brackets.
Decr. 15. 1841
