
    
      Archibald Jordan vs. John B. F. Boone.
    
    Case against an innkeeper: the declaration, after reciting, in the usual form, the duty of innkeepers to keep safely the goods and chattels of their guests, and that defendant was an innkeeper, &o., alleged that plaintiff put up at his inn, and “ then and there delivered into the lawful custody of defendant divers goods and chattels, and amongst the said goods and chattels a horse,” &c: after verdict for plaintiff for the value of the horse, defendant moved in arrest of judgment, because the declaration contained no sufficient allegation of property in the plaintiff: motion refused.
    After verdict for the plaintiff, the defect- must be radical to justify an arrest of judgment : the disposition is to support the declaration.
    A verdict will cure a defect in the mode of stating a title, but not one in the title itself.
    Case against an innkeeper to recover the value of a horse choked to death by his halter in defendant’s stable: defendant proved that the horse had been secured in the stall under the superintendence and direction of the plaintiff: in reply, plaintiff proved the very bad condition of the stall: Held, that defendant was not entitled to rejoin in evidence.
    
      Before O’Neall, J. at Kershaw, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action on the case against the defendant, an innkeeper, for the value of a horse put up in his stable, and killed by being choked to death with his halter.
    
      “ The plaintiff proved that he had been in possession of the horse for several years — that he had rode the horse to Camden.
    “ He called in the morning at defendant’s hotel for his things— horse, saddle, bridle and saddle-bags ; he got all except the horse; he paid his bill at the tavern. The horse was seen dead in the 'defendant’s stable ; he had been tethered with a long rope in one stall; he was lying in another, the rope being still fastened in the other.
    
      “ This was all the proof, when the plaintiff closed, as to the property in the horse, the receipt of him by the innkeeper, and the manner of his death. The defendant moved for a nonsuit on three grounds. 1st. That the plaintiff had not shown property. 2d. That he had not alleged it in his declaration. 3d. That negligence had not been shown.
    “ I overruled the motion. Possession, which had been shown, was prima facie evidence of property in personalty. The alie- • gation in the declaration (if I remember it aright) was that the" plaintiff delivered the horse to the defendant to keep; this, I thought, would do. The burden of showing how the horse came to his death was on the defendant; it was his business to show there was no negligence.
    “ In the defence, the defendant proved that the plaintiff called at his hotel, and desired to have a separate stable for his horse. This he was told he could not have; he was invited to, go, and did go, to the stable; he desired that a stronger rope than that which was about to be used should be got. This was accordingly done and the horse tied as he desired. He wished that his horse should be so secured as not to be able to fight. The horses near the stall in which he was placed were removed.
    “ In reply, it was proved that the stall was in bad condition, being “pawed up" as the witnesses said, near to the trough, so as to make it impossible that a horse should stand by a short tether.
    “To this proof the defendant would have rejoined, but I thought it was strictly in reply to the defendant’s proof, and therefore the defendant could not rejoin.
    “ The case was’submitted to the jury, who found the highest value of the horse proved, $80.”
    The defendant appealed, and now moved in arrest of judgment, on the ground, that the declaration does not contain a sufficient allegation of property in the plaintiff. And, failing in that motion, then, he renewed his motion for nonsuit, on the ground of absence of proof that property in the horse was in the plaintiff; and, also, absence of proof of negligence on the part of defendant. And, failing in his motion for nonsuit, then, he moved for a new trial, on the ground : Because, after the defendant had closed his testimony, showing that the plaintiff had had the horse secured to his own liking and satisfaction, the plaintiff then, for the first time, introduced evidence, tending to show, that the state of the stalls in defendant’s stable rendered it necessary that the horse should be secured in the particular way in which he was secured; to which evidence the defendant was not permitted to reply by evidence negativing the fact.
    
      Workman, Kershaw, for appellant,
    on the ground in arrest of judgment, cited 1 Ch. PI. 379 ; 2 Saund. 379 ; Com. Dig. Pleader, 3, m. 9 ; Steph. PI. 147; Sid. 184; 3 Saund. 378; 2 Stra. 1023 ; 1 Cro. Jac. 46; 9 M. & W. 665; 2 Lev. 156; Com. Dig. Case, B. 1. On the ground for nonsuit, they cited 48 Eng. C. L. R. 164; and, on the ground for new trial, Best on Ev. § 431; 1 Arch. N. P. 8; 2 N. & McC. 161; 4 Rich. 464.
    
      West, Caston, contra,
    on ground in arrest of judgment, cited 2 Saund. 47 f; 6 Har. & Johns. 47; 2 Saund. 74; 6 Com. Dig. Pleader, C. 85 ; 3 Wils. 297; 40 Eng. C. L. R. 16; 1 Ch. PI. 402; 2 H. Bl. 261; 4 T. R. 470 ; 2 Bur. 1159 ; 9 Mass. 148 ; 3 Bur. 1725; 2 Johns. R. 551; Steph. PL 149. On the ground for non-suit, 1 McC. 509; 4 Johns. R. 175; 9 Pick. 280 ; and on the ground for new trial, 1 Stark. Ev. 418.
   The opinion of the Court was delivered by

Whitner, J.

Two questions presented in the grounds of appeal have been particularly pressed in the argument of this case: — the one growing out of the pleadings, the other a rule of evidence.

The plaintiff sued the defendant in case as an inkeeper, to recover damages for a horse committed to his care and killed in his stable.

The motion for nonsuit was not formally abandoned. The grounds suggest “ absence of proof of property in the plaintiff and of negligence on the part of the defendant.” The verdict of the jury, to whom these questions were properly committed, furnish a sufficient reply.

Whether the plaintiff has sufficiently stated his property or interest in the chattel to retain his verdict, presents an inquiry of more difficulty. The objection would have been better presented by way of demurrer, being then free from embarrassments growing out of collateral matters and subsequent proceedings. The defect must be radical to justify such interposition as that now asked, when the .whole costs of litigation have been incurred and the questions of right decided by a jury. This objection. therefore, encounters a strong disposition to aid the right, or, as it is termed, to help the declaration. Approved forms of pleading and adjudged cases, suggest a better statement than that adopted in this instance, and although the strict nicety of former years may .be somewhat relaxed in later times and in our Courts, sufficient precision and accuracy are still necessary and must be required.

The declaration properly charges the obligation of innkeepers to keep and preserve such guests and their goods and chattels as may be in the lawful custody of such innkeepers, and their corresponding liability for default and negligence — that defendant was an innkeeper — that the plaintiff sojourned in the inn of defendant, on a day stated, and “ then and there delivered into the lawful custody of defendant divers goods and chattels, and amongst the said goods and chattels a horse,” &c., which defendant then and there had in his lawful custody — followed with a proper allegation of loss and consequent damage.

Title is not the gist of this action, though some property or interest in the subject matter of'the suit must be stated and proved.

“ The fundamental rule,” says Chitty, “ upon the subject of showing title in actions ex delicto is, that as against a mere wrong-doer or person apparently having no color of right, mere possession suffices, and a special statement of title is unnecessary.” Again: “ In personal actions, therefore, title is mere inducement, at least in a pleading point of view, as regards the declaration.” (1 Chitty Plead. 379, where will be found full references to authorities — 10th Amer. edition.)

Mere possession, in the proof, would sustain an allegation of property in the pleading. A bailee may certainly maintain an action against such as injure or take away the chattels ” in his custody. (2 Bl. Com. 452.) This is true as to a mere depositary, and yet an inquiry into the property he may have, or whether it is not a custody only, is one of much perplexity. (Co. Lit. 145; 3 Atk. 49; 1 Ld. Ray. 275.)

It is true, there is a distinction between title and possession, the owner and possessor, and when essential to be maintained, should not be confounded. As contra-distinguished, possession is but the actual exercise of that power which ownership has the right or legal capacity to exercise. When opposed to each other, the distinction becomes palpable and may be material, otherwise it may be wholly immaterial. The allegation here of the delivery of this chattel, implies so necessarily the fact of possession in the plaintiff, that illustration is not required. The recital in the declaration is in aid of this view.

An action on the case for nuisance was sustained on plaintiff’s allegation of possession for a term of years, without showing the commencement of the term,- the title being only inducement to the action. (2 Mod. 71.) To same point may be seen 2 Vent. 292; Cro. Jac. 43, 123.

A declaration is the' statement, on the part of plaintiff, of his cause of action. Yet when the facts sufficient to maintain that action are correctly set forth, it is alleged the declaration in this particular may not be sustainable. This must be formal, not substantial.

Whatever may be the difference of opinion and authority on this point, we are not to lose sight of the fact, that the defendant has declined his opportunity of demurring, and plaintiff has had a recovery against him on this point, wherein it is presumed he was held to satisfactory proof. (1 T. R. 545, 704.) So that although an omission of the gist of the action would not be thereby aided (Cowp. 825) or a defective title thereby supplied, yet it is otherwise as to a good title, though defectively set forth. (2 H. Bl. 261.)

As stated by Comyn, who, Lord Kenyon says, (3 T. R. 64,) “ was considered by his cotemporaries as the most able lawyer in Westminster Hall,” and his opinion, therefore, alone of great authority,” “a verdict will cure a defect in the mode of stating a title, but not one in the title itself.” (6 Com. Dig. 98, Plead. C. 87, relying on the authority of 4 T. R. 470; 2 Bur. 1159; Doug. 683.)

Quite an array of American authority may be found collected by Day in Com. Dig. Plead. C. 87, of instances in which want of averment after verdict shall be intended to have been supplied by proof, and as to what defects will be cured by verdict, (pages 99, 100). These are sufficient for the determination, of this point in the case, adverse to the motion in arrest of judgment.

As to the remaining ground, for new trial, because the defendant was not permitted to rejoin in evidénce, in the case made, this Court concurs in the ruling below.

The state of the pleading had not placed this defendant in the position of affirmation and rejoinder, such as he claimed, hence no objection may be well founded from any analogies in such a case.

The facts proved on the part of the plaintiff, and the legal presumptions arising, had devolved on the defendant a full exhibition of every matter, by way of excuse, for the negligence or want of diligence, whether arising from the conduct of the plaintiff, or of actual diligence on the part of defendant, in providing proper stalls and fixtures for the safe keeping of the property in his custody. To these inquiries his testimony was properly directed and fully heard. The evidence of the plaintiff, as to the true condition of the stall, stated no new matter of inquiry. It was strictly in reply to defendant’s testimony, and a rejoinder only on the part of plaintiff, because in corroboration of the position first established by his direct proof. Any other rule would introduce an endless investigation. The illustrations furnished in the anonymous case, (1 Hill, 251,) on the second ground of appeal there taken, are deemed sufficient for this branch of the case.

The motions for nonsuit, in arrest of judgment and for new trial, are refused.

O’Neall, Frost and Withers, JJ. concurred.

Evans, J.

I incline to the opinion the defendant should have been permitted to reply in evidence. In all other particulars I concur.

Motions refused.  