
    Law v. Law.
    October Term, 1845,
    Richmond.
    i. Slaves — Who may Maintain Action against Person Aiding Slave to Escape. — A party having- the legal title to, and having had possession of a slave, though acquired fraudulently, may maintain an action against any third person who aids said slave to escape.
    
      a. Appellate Practice — Excessive Damages — Failure of Bill to Show Objection Taken Therefor. — A "bill of exceptions, taken by a defendant in the Court below to the opinion of the Court overruling a motion for a new trial, does not shew that the objection was taken to the damages given by the jury, as excessive. The objection cannot be made in the appellate Court.
    3. New Trial — Surprise.—A new trial will not be granted because a party was surprised at the trial, where the surprise arises from a mistake of the counsel as to a question of law.
    This was an action on the case brought in the Circuit Superior Court of Franklin county, by Henry Law, against Burwell Law. The object of the suit was to recover damages from the defendant for having caused and procured a slave of the plaintiff to leave the Commonwealth, whereby the plaintiff had lost the said slave. The de-fence was that the slave was not the property of the plaintiff.
    *On the trial of the cause, the jury found a verdict for the plaintiff for 1000 dollars; and the defendant moved for a new trial upon the ground of surprise at the trial; ancl also on the ground that the verdict was contrary to the evidence. The Court overruled the motion for a new trial, and gave judgment upon the verdict; whereupon the defendant excepted; and the facts being spread upon the record, he obtained an appeal to this Court.
    It appeared that in 1806, John Allen executed to John Smith a mortgage, which was duly recorded, by which Allen conveyed to Smith a negro woman named Betty, and her future increase, to secure to Smith a debt of ninety-five pounds ten shillings and two pence. After the execution of the mortgage, Betty had several children, among whom was a boy named Charles, another named Armstead, and a girl named Betty.
    In 1822, Smith filed his bill in th'e County Court of Pittsylvania, to foreclose the mortgage; in which he charged that Allen was about to remove from the Commonwealth, and take all his property with him, without paying the plaintiff’s debt; and he prayed for a writ of ne exeat regno to restrain Allen from leaving the State. The writ was granted, and served upon Allen, but he escaped, and removed from the State with all his property, except the woman Betty, and her child of the same name, and the boy Charles, whom he had sold to Dudley Lumsden of the county of Franklin.
    The plaintiff then proceeded against Allen as an absent defendant; and amended his bill and made Lumsden a party defendant; claiming to subject the boy Charles to the satisfaction of the mortgage debt.
    In 1832, the cause was finally heard, when the Court made a decree subjecting the slave Charles to the satisfaction of the balance remaining due of the plaintiff’s claim against Allen, after applying thereto the proceeds of the sale of Betty and her child Betty; and Lumsden consenting to a personal decree for that balance, instead *of a decree for the sale of the boy Charles, the Court made a decree directing Lumsden to pay to the plaintiff the sum of 396 dollars 37 cents, with interest on 263 dollars 40 cents, a part thereof, from the date of the decree till paid; and made a decree over against Allen in favour of Lumsden.
    Soon after this decree was made, Lumsden procured a copy of the record, and delivered it to Henry Law, with an assignment to him of the decree endorsed on the record ; though the object of the assignment was to enable Law to collect the debt as the agent of Lumsden. Law, having received this assignment, went in the winter of 1832, to the State of Georgia; where he found the slave Armstead in the possession of Frances Allen, a daughter of John Allen. He there caused said slave to be taken under a legal process, by the bailiff of the county of Jasper,. and brought to the house of David Bostick, where Frances Allen presently came ; and after consulting with her friends, executed to the plaintiff a bill of sale for the slave, purporting to be in consideration of 752 dollars 64 cents, Georgia currency. This bill of sale was executed under an agreement between said Frances and the plaintiff, that on a certain day then appointed, which was a few days after the date of the agreement, the plaintiff would go with her to the State of Alabama, where she proffered to shew him other property of her father John Allen sufficient to pay the debt; and the plaintiff was thereupon to surrender the slave Armstead to her, and deliver up the bill of sale. Before the time fixed for going to Alabama arrived, Frances Allen declined to go; and thereupon the plaintiff, apprehending that she would institute a suit against him for the slave, fled from Georgia, and brought the slave with him to Virginia.
    On the plaintiff’s return to Virginia, he executed to Rumsden his bond for 200 dollars; and retained the slave. And said slave remained in the plaintiff’s possession, *until the fall of 1833, when he returned to Georgia; and the defendant admitted in a conversation with the plaintiff that he had given said slave a pass, that he might get away from the plaintiff, and return to Georgia; though he insisted at the same time, that the slave was the property of Frances Allen,
    The ground of surprise at the trial, was stated in the affidavits of the defendant, and his counsel; and was the exclusion of the deposition of William Willingham, who was a subscribing witness to the bill of sale executed by Frances Allen to the plaintiff; and was her adviser on that occasion. It appears that the deposition of Willing-ham, and those of Charles Raw and others were taken and returned together, and filed among the papers in the cause in 183S. That in 1837, an objection was taken to Raw’s deposition, which was sustained by the Court; but no objection was then taken to Willingham’s; but in 1838, the plaintiff’s counsel endorsed upon it an objection, on the ground that it did not shew it was taken at the place stated in the notice.. The counsel for the defendant, not anticipating an objection to this deposition after the omission to make it in 1837, the senior counsel had not noticed the endorsement until after the jury were sworn, and the junior counsel had only observed it about half an hour before, and not considering the objection of any importance had not mentioned it to his associate; and therefore when the cause was called, they announced that the -defendant was ready for trial. Both the counsel say, that they considered the deposition so material that they would not have consented to go into the trial if they had not thought. that they would have been permitted to read it.
    Upon the motion fora new trial, Willing-ham’s deposition was read. He stated, that he went to Bostick’s and found the slave Armstead there, a prisoner. That Miss Allen was sent for, and. when she came she consulted the witness as to what she should do; and he ^having learned from the plaintiff that he_claimed the slave under a mortgage, and frt>m the justice that a Court would be called to try the right of property, and if it should be found in favour of the plaintiff the slave would be delivered to him, and plaintiff could carry him where he pleased, he advised Miss Allen to execute a bill of sale to the plaintiff, upon his proposing that the bill of sale and the boy should be deposited in the hands of any person Miss Allen would name; and that he would go with-her to hunt other property; and if other property could be found, the ■ bill of sale and boy should be given up to her. Under this agreement the bill of sale was executed by Miss Allen; she receiving no consideration therefor; and as soon as the plaintiff got <the boy, he made his escape with him.
    C. & G. N. Johnson, for the appellant, insisted, that in this action the plaintiff must prove property in himself; 1 Saund. on PI. & Evi. 346; 1 Reigh’s Nisi Prius 584, title Action on the Case, 'i 12; Davis v. Peck, 8 T. R. 330; Moores v. Hopper, 5 Bos. & Pull. 411; and that an agent cannot maintain the action. And they insisted, that the facts of the case proved, that the plaintiff had fraudulently acquired the title to the slave; and it was therefore void.
    They also insisted, that there was no proof that the defendant had inflicted any injury upon the plaintiff. There was no proof that the defendant had aided the slave to get away from the plaintiff, except the defendant’s admission; and that admission was coupled with the declaration, that the slave was the property of Frances Allen. This declaration must be taken with the admission, and therefore, the proofs did not establish the allegation, that the defendant knew the slave was the property of the plaintiff.
    2. They insisted, that the damages were excessive. The evidence of value was the bill of sale from Frances *Allen to the plaintiff, which fixed the price at 752 dollars 64 cents Georgia currency; and the amount of the bond executed by the plaintiff to Rumsden. The first was proved to be merely nominal, and the last was therefore the only criterion of value; and it was a criterion fixed by the plaintiff himself.
    3. They farther insisted, that a new trial should have been granted, on the ground of surprise. The deposition of Willingham shewed, that the plaintiff had given nothing for the slave; but that he had fraudulently gotten possession of him, and brought him off to Virginia. And they attempted' to distinguish between cases, where after verdict and judgment at law, an application is made to a Court of Equity for relief, and cases where an error of counsel is ascertained during the trial. In this last, they insisted, that if the error has occasioned a surprise at the trial the Court would set aside the verdict; though the error was an error in law.
    Reigh, for the appellee.
    The first ques tion is, has the plaintiff a title to the slave which will enable him to maintain this action? Take it, that Frances Allen gave the bill of sale to the plaintiff as. an escrow; and that he came off to Virginia with it. This Court has decided that the delivery of a deed, complete on its face, to the grantee, as an escrow, is an absolute delivery, and the condition nugatory. Hicks v. Goode, 12 Reigh 479. The plaintiff, therefore, had a valid legal title; and the only remedy of Frances Allen was by bill in equity to redeem the slave, upon paying the amount for which he was bound. The legal title being in the plaintiff, and he having had the slave in possession from the early part of the year 1832 to 1833, the defendant, a stranger, interferes, and by his act, deprives this plaintiff of his property; and it is gravely contended, that he cannot maintain an action for the injury he has sustained. See Keane v. Boycott, 2 Hen. Bl. 511; Rogers v. Pitcher, 1 Rng. C. Iv. R. 355. .
    *2. The bill of exceptions makes no complaint that the damages are excessive; and therefore, it is submitted, the Court cannot enter into that question. But if it may be considered, then it is farther submitted, that in cases such as this, the jury are the proper and only judges of the injury sustained by the plaintiff,
    3. The surprise alleged, arose not out of a rñistake of fact, but of the law. No exception was taken to the exclusion of the deposition; but haying acquiesced in the correctness of that decision of the Court, the defendant, after he has lost his cause, comes to complain of the surprise.
    
      
      Appellate Practice — Excessive Damages — Failure of Bill to Show Objection Taken Therefor. — The established rule In this state Is, that If no objection appear by the bill of exceptions, taken to the overruling of a motion for a new trial, to have been made in the trial court to the excessiveness of damages, such objection cannot afterwards be made in the appellate court. And the reason is that upon a motion to grant a new trial for this cause, the court may impose upon the successful party the alternative of remitting such portion of the damages as justice may require, or submitting to a new trial. R. & D. Railroad Co. v. George, 88 Va. 230, 13 S. E. Rep. 429, citing principal case.
      See further, monographic note on "Bills of Exception" appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
      New Trial — Erroneous Advice of Counsel. — In Ruffner v. Love, 24 W. Va. 185, it is said: “It (the affidavit) shows that the defendants were well acquainted with the facts, and that their failure to make de-fence before the justice or take an appeal, within the ten days prescribed by law, was due entirely to the advice of their counsel as to legal effect of the judgment. It is well settled that the erroneous advice of counsel in such case is no ground for a new trial. Law v. Law, 2 Gratt. 366; Pleasants v. Clements, 2 Leigh 474. It is, also, well settled, that where a party has full knowledge of the facts, his ignorance of the legal consequences which flow from these facts, is no ground for relief. Pusey v. Gardner, 21 W. Va. 469; 2 Rob. (old) Pr. 35.”
    
   By the Court.

Affirm the judgment.  