
    Oppenheimer vs. Edney.
    Where the contents of a box were fraudulently converted by a bailee, and the value of such contents could not be proved by any third person, the plaintiff’s oath is admissable as to the contents and value thereof, but not the allegations of his warrant or declaration.
    Edney delivered a box to D. T. Scott, in the city of Nashville, with instructions that it should be conveyed to Shall, Innkeeper at Pulaski, to be by him held until the arrival of Edney at that place. Edney informed Scott, at the time he delivered the box to him, that it contained articles of value. Scott delivered the box to Oppenheimer, a merchant at Pulaski, who took charge of it, and agreed to carry it to Pulaski, and deliver it to Shall. He was informed that it contained articles of value. He did not deliver it to Shall. Edney- demanded the box, and Oppenheimer denied that he had ever received it. Edney charged him emphatically with having received it, and drew forth a letter from Scott, stating the fact of the delivery, and the particulars thereof. Oppenheimer was much embarrassed, and stated that he did remember something about it, but stated that they would not permit him to take his own baggage on the stage when he left Nashville, at the time alluded to, and that he did not receive the box.
    Edney procured a warrant to be issued against Oppenheimer. This warrant charged, that Oppenheimer “undertook to convey, for B. M. Edney, certain property of said B. M. Edney, to wit: one box, containing one fine fur cap, one fine vest, one fine work-bag, one fine silver comb, and one fine boquet-holder, all of the value of forty dollars, from the city of Nashville, Tennessee, to the town of Pulaski, in the same State, there to be delivered, for the said Edney, to Jacob Shall, the proprietor of an Inn in said town, which said box, containing the articles aforesaid, was delivered to and received by said Oppenheimer, for the purpose aforesaid, and which he, the said Oppenheimer, failed to deliver to said Shall, or said Edney, and has converted said box, and the said valuable articles therein contained, to his own use.”
    Oppenheimer was summoned to appear before a justice of the peace for the county of Giles, and after the evidence was heard, a judgment was rendered for the defendant; the plaintiff appealed to the Circuit Court, and the case was tried by Dillahunty, judge, and a jury. The above s.tated facts, were proved before the jury, and the plaintiff, by his counsel offered as evidence, his own deposition, taken at Ashville, North Carolina, where he resided. It was admitted to the jury, but was subsequently withdrawn by the court, from their consideration, on the ground, that it was not duly certified by the officer who took it.
    The court charged the jury, that if they found, from the proof before them, that defendant had received said box and articles, and had fraudulently converted or appropriated the same to his own use, thereby withholding from the plaintiff, through defendant’s fraudulent act, the evidence of plaintiff’s property, and its value, that then the burthen of proof, as to the value of the box and articles, would be thrown on the defendant, and if he failed to exhibit them or prove their value, that the jury might charge him in their verdict with such sum as they thought would do justice to the plaintiff, and that for that purpose they might look to the value of the articles, as laid in the warrant, in connexion with other proof.
    The jury found a verdict, for the sum of forty dollars. A motion for a new trial was made and overruled, and judgment rendered for the plaintiff: the defendant appealed.
    
      N. Baxter, for the plaintiff in error.
    
      A. Wright, for the defendant in error,
    1. Though the defendant undertook to carry gratuitously, and so received the goods, he is liable, if guilty of bad faith, gross neglect, or a conversion. This is a case of bad faith, — a conversion, bordering closely upon a felony. Story’s Bailments, secs. 137,138, 139,140,163,164, 165, 166, 167, 168, 169, 170, 172; 174, 175, 176, 177, 178, 183,188.
    2. The proof that he received them is clear — that he never delivered them, or accounted for them, either to Mr. Shall or to Gen. Edney, is equally clear. He was silent as death, never mentioning the goods until traced to him, and then he was guilty of falsehood and prevarication. A ¡mandatory is bound to account to the mandator. If he does not the onus is on him. Story’s Bailments, sections 191, 212, 213; 2 Greenleaf’s Ev., sec. 213, Run-yan vs. Caldwell, 7 Hum. Rep., 134, 135. He had incurred no expense, was entitled to no compensation, and had no lien upon the box or goods. Story, sec. 150. If he had, he could not convert them, or fail to account for them. Story, sec. 154,'[197.
    3. Can' the charge of his Honor, the Circuit Judge, in the case be maintained? We think it can, upon reason and authority. Mr. Greenleaf, in section 37 of his work on Evidence, (1 Greenleaf Evi., 101) says, “the general rule is, Omnia pressumuntur contra spoliatorem. His conduct is attributed to his supposed knowledge, that the truth would have operated against him. Thus, also, where the finder of a lost jewel would not produce it, it was presumed, against him, that it was of the highest value of its kind. But if the defendant has been guilty of no fraud, or improper conduct, and the only evidence against him is of the delivery to him of the plaintiff’s goods, of unknown quality, the presumption is, that they were goods of the cheapest quality. No authority, it seems to us, can be more direct. The case of the jewel is Armory vs. Delamino, 1 Strange, 505. In Dalton vs. Coatsworth, 1 P. Wms., 731, it was held, in odium spoliatoris, where the defendant had suppressed the deed, under which complainant claimed, so that the witnesses differed as to its contents, the complainant should hold the estate as claimed in his bill. And in the case of Hampden vs. Hampden (1 P. Wms., 732) where plaintiff, as devisee under a will, claimed an estate in opposition to the heir at law, and there was proof of a will — but no exact account of its contents; — but inasmuch as the court was satisfied, defendant had suppressed it, and that, though no pxact proof was made of the contents, the defendant might clear this by producing the will, it was decreed the devisee should hold the estate till the will was produced. This case was first decided by the Master of the Rolls, then affirmed by the Lord Chancellor upon appeal, and then by the House of Lords. 1 Ero. P. C., 250. The principle is sustained by many other authorities. Hob. 109, Sanson vs. Nunnery, 2 Vern., 561; Clunnes vs. Pezzey, 1 Camp. 8; Sharpe vs. Bagwell, 1 Dev. Eq. R., 116; and in Hanson vs. Eustace, 2 Howard’s Rep., (S. C. U. States) 708, 709. „
    
      4. Edney’s own affidavit is admissible in a case like this. 2 Greenleaf’s Evi., sec 213; 1 do. sec. 347, 348 and note 1 349f35tí; 16 Pet. Rep., 211. He is treated in the books as a witness — is like a party to a record in Chancery, whose deposition can be had — his “affidavit” the books say. He comes under the act of 1794 for depositions. 1 Greenleaf’s Evi., sec. 361. It can make no difference if a bill of discovery might be filed, or that Oppenheimer might be examined upon interrogatories, under the act of 1847-8. We need not trust him as a witness. He that will rob or steal will swear, out of it. Childress vs. Saxby, 1 Yern., 207. So thought the Circuit Judge. But he rejected the affidavit for want of a certificate. .In this we think he erred to the prejudice of Edney. It is submitted, the certificate is ample. What difference can it make, whether the proper facts appear in' the caption, or close of the deposition ? We have no rule upon the subject. All the commission required was satisfied. The act of 1794 does not say who shall be commissioner, or the form of the caption or certificate. The Chancery rules are not rules at law. The case of Wilson vs.* Smith, 5 Yer. Rep., 383,406-7, is no authority here. That case was upon a rule of court — prescribing what the commissioner should certify.
    5. Finally will the court grant a new trial even if the judge may have erred in his charge to the jury, seeing, as .this court must, that justice has been done in the court below, and that a second trial will inevitably end in the same result. 5 Hum. Rep., 476.
   McKinney, J.

delivered the opinion of the court.

This is a suit, in the nature of an action of trover, commenced before a justice of the peace, to recover damages for the fraudulent conversion of sundry articles of wearing apparel, and trinkets contained in a box, which was delivered to the plaintiff in error, to be by him conveyed to Pulaski, in this State, for the defendant in error, to whom they belonged. The box had been left in charge of the proprietor of the “Sewanee House,” in Nashville, by the defendant in error, who was' on a journey, to be forwarded to him at Pulaski: and the plaintiff in error, who is a resident of the latter place, being on a visit to Nashville, received and undertook to convey said box, and deliver the same to the keeper of a public house in Pulaski, for the defendant, who was absent in the western district of this State. He failed to deliver said box, and denied having ever received it; and the same, and also the contents thereof, have been wholly lost to the defendant in error.

The proof in the record is plenary as to the fact of the delivery of said box to the plaintiff in error, at the “ Se-wanee House,” and his undertaking to convey, the same to Pulaski; but there is no legal proof whatever in relation to the contents of the box, or the value thereof, or that in fact it contained any of the articles specified in the warrant — the witnesses, who deposed on the trial, having no knowledge or information in regard to that matter. For the purpose of proving the contents of the box, and their value, as set forth in the warrant, the deposition of the defendant in error, who is an inhabitant of Ashville, North Carolina, was taken, and read to the jury on the trial in the court below: but being objected to, on the ground that the certificate of the justice was defective, it was, by direction of the court, withdrawn from the jury.

The court instructed the jury, that “ if they found from the proof before them, that defendant had received said box and articles, and had fraudulently converted or appropriated the same to his own use, thereby withholding from the plaintiff, through the defendant’s fraudulent act, the evidence of plaintiff’s property and its value, that then the burden of proof as to the value of the box and articles, would be thrown upon defendant, and if he failed to exhibit them, or prove their value, that then the jury might charge him in their verdict, in such sum as they thought would do justice to the plaintiff, for which purpose they might look to the value of the articles, as laid in the warrant, in connexion with other proof.”

The jury found a verdict for forty-one dollars damages in favor of the plaintiff below, and the court refused to grant a new trial, whereupon the defendant prosecuted an appeal in error to this court.

However strong our disinclination to disturb the verdict i n this case, we should feel constrained to do so, even were the charge of the court free from exception, on the ground that there is no admissible evidence in the record before us, to warrant or sustain it; and the rather, because we Ihink the direction of the court, in one respect at least, necessarily tended to mislead the jury.

The gravamen of the action, is the alledged fraudulent conversion of certain articles of value contained in the box, not merely the box itself, for that, perhaps, was of little value: and for the value of these articles, as stated in the warrant, a recovery has been had. Upon what evidence ? Simply upon proof of the fact that the defendant below received into his! possession, and refused to ■ deliver the box, as he had undertaken to do, without the semblance of proof that it contained any one of the articles of property described in the warrant, or indeed anything whatever.

The authorities justify great latitude of presumption in a case like the present; but, we think no case can be found, that will maintain the extent to which it has been carried in- this case.

The jury were instructed, that they might look to the warrant in connexion with other proof, to ascertain the value of the articles alledged to have been converted. But there was no “ other proof” in the case, as to value, and they must have understood, from the direction of the court, though probably not so intended, that the value of the goods, as stated in the warrant, was not only admissible but likewise sufficient proof of value, and they must also have taken it for granted, as they well might, that if the statements in the warrant might be looked to as evidence of value, they might also be looked to as evidence of the character, quantity, and quality of the articles charged in the warrant, to have been converted, and also of the main fact, namely, that such articles were in fact contained in the box, and received by the defendant. Upon any other hypothesis the verdict is inexplicable. And, indeed, if the warrant was admissible for. the one purpose, it was equally so for the others. There is no principle upon which it can be admitted as proof of value, and rejected as to the other facts alleged therein. This is just as clear as that it is inadmissible as evidence, of any matter averred therein, to support the plaintiff’s right of recovery, except perhaps, to show the time of the commencement of the suit, and that it regularly issued.

There is the less reason for straining salutary and well •established principles in the present case, because it properly falls within a well established principle — constituting an exception to the almost universal rule in courts of law, by which the oath in litem, as it is known in the civil law, or the party’s own oath, is received as competent testimony, to prove the contents of a box, a trunk, &c„ and the value thereof, violated under the circumstances alleged to exist in this case. This exception, however, has been admitted “ from the extreme necessity of the case,” and is confined by the common law to cases, where, from their own nature, no other evidence of the contents, or value of the goods is attainable; because it is exceedingly improbable that any other person, than the party injured, should possess any knowledge of the facts.

But, in the language of Mr. Starkie, “the law has justly been jealous of any extension of this rule, and ^ts operation has consequently been very limited in practice.” 1 Starkie Evi., 120; 1 Greenleaf’s Evi., sec. 248, 350; Story on Bail., sec. 454; (3d edition) 10 Watts’ Rep., 335, 337.

We are of opinion, that there is error in this record, and, therefore, reluctantly order, that the judgment of the Circuit Court be reversed, and the case be remanded for a new trial.  