
    *Stephen Martin v. John Martin.
    January, 1842,
    Richmond.
    Arbitration and Award — Objections to Award — Omissions and Incorrect Recitals — Case at Bar. — S. tiring's detinue against J. for one slave, and J. detinue against S. for three slaves, and J. brings also an action of debt against S. and the parties agree to refer all matters in difference in the three suits to two arbitrators and their umpire, whose awards, or the awards of their umpire, to be made the judgments of the court; which submission is made a rule of court: the arbitrators proceed to arbitrate the two actions of detinue, and make an award therein, without arbitrating the action of debt; in their award, the date of the submission is not recited, and the submission is recited as referring to arbitration the two actions of detinue only; and the award in J.’s action of detinue against S. gives J. the three slaves demanded in his declaration, and two other slaves, increase of a female slave demanded, born after the action brought: Held, neither the omission to state the date of the submission in the award, nor the recital of the submission as referring the two actions of detinue only, nor the failure to proceed to arbitration of the action of debt, is a good ground of objection to the award under the terms of this submission.
    Detinue — Female Slave — Recovery of Increase — Quere.--—Whether, in detinue for a female slave, her increase born pending the action can be recovered ? Whether, in the trial of such action by jury, verdict can properly be rendered, and judgment given, for such after-born increase ? Whether there is any difference, in this respect, between a trial by jury and an arbitration, so that if a jury cannot properly render a verdict for such after-born increase, the arbitrators may award the same ? Two judges of this court hold the affirmative, and two the negative.
    Arbitration and Award — Rejection of Excess in Award. —It seems, that where an award settles matters of difference that are, and other matters that are not, within the submission, the court may reject the excess, and render judgment on so much of the award as is within the submission.
    Upon writs of supersedeas to two judgments of the circuit superior court of Bed-ford, the case was thus :
    Stephen Martin brought detinue against John Martin for a slave named Charles: John brought detinue against Stephen, for three slaves, a negro woman named Lucy, and two negro boys, William and Caesar, sons of Lucy: and John also brought an action of debt against ^Stephen. The parties agreed to refer the causes to arbitration, and their submission was made a rule of court and entered of record, under a caption in which all the three causes were mentioned, in the following words: “By consent of the parties all matters of difference between them in these suits are referred to the final determination of J. E. Sale and J. Wilson, or to an umpire to be chosen by them in case they disagree, and their awards or the awards of their umpire to be made the judgments of the court; and it is ordered accordingly. ’ ’ The arbitrators, under a caption mentioning the two actions of detinue, omitting the action of debt, made the following award : “Pursuant to an order of the circuit superior court of Bedford made by consent of the parties in the two causes before mentioned depending in the said court, we, the undersigned arbitrators in said order mentioned, have this day, in the presence of the parties and at their request, both professing, to be ready for trial, proceeded to adjust the differences between them in the said suits, and after the statements and the witnesses introduced by the parties, we do, award, that the suit of Stephen Martin against John Martin shall be dismissed, and that the plaintiff pay the defendant his costs expended in that suit. And, in the last mentioned cause of John Martin against Stephen Martin, we award, That the plaintiff recover against the defendant, the negro woman Lucy in the declaration mentioned of the value of 600 dollars, the-negro boy William in the declaration mentioned of the value of 325 dollars, the negro boy Caesar in the declaration mentioned of the value of 175 dollars, a negro girl (name not known) a child of the said Lucy born since the institution of this suit of the value of 200 dollars, and an infant negro, girl, a child of the said Lucy, also born since this suit was brought, of the value of 100 dollars; if the said negroes may be had; if not, then the prices aforesaid of them or of such of them as may not be had;■ and the *costs of the said plaintiff expended in the said suit. Given under our hands &c.”
    This award being returned to court, Stephen Martin filed seven exceptions to-it: five of which were founded on allegations of fact, imputing error in the proceeding of the arbitrators: the other two presented the following objections to the award — 1. That it was not in pursuance of the submission, nor did it decide all the matters submitted; and 2. that the award was not within the submission.
    The court overruled the exceptions, and gave judgments according to the award; judgment in the action of- detinue of' Stephen Martin against John Martin, dismissing the suit with costs; and, in the action of detinue of John against Stephen, judgment for the plaintiff, not only for the three slaves, Lucy, William and Casar, which were claimed in the declaration, but for the other two children of Lucy born since the institution of the suit, which therefore were not demanded but which were awarded to him by the arbitrators.
    Upon the petition of Stephen Martin, this court allowed him writs of supersedeas to the judgments. '
    The cause was argued here, by Grattan for the plaintiff in error, and by Robinson for the defendant.
    I. Grattan objected, that the award was not made in pursuance of the submission : for 1. the submission was not identified in the award, either bjT reference to the date of the rule of court whereby it was made, Turner v. Moffett, 2 Wash. 70, or by a correct recital of the terms of the submission whereby the three suits between the parties were referred to arbitration, not the two actions of detinue only, as was stated in the award. 2. The award did not extend to the whole subject submitted: it determined the matters in difference between the parties in the two actions of detinue, leaving the action of debt undecided, and indeed unnoticed; which vitiated *the whole award, Randall v. Randall, 7 Last 81; Ingram v. Milnes, 8 Id. 44S; Mitchell v, Staveley, 16 Id. 58; Winter v. Munton, 2 J. B. Moore 723; 4 Eng. C. L. R. 421; 1 Wms. Saund. 32, note 1.
    Robinson answered, that in Turner v. Moffet there was a misrecital in the award of the date of the submission; here, the award omits the date of the submission, and therefore, there could be no misrecital or variance. The submission was ascertained by the caption to the award shewing the cases arbitrated, and the caption to the cases on the record shewing, the cases referred. As to the objection, that the award did not determine the whole subject submitted, it was answered by the terms of the submission: the three cases -were referred, and the awards of the arbitrators or the awards of the umpire were to be made the judgments of the court; so that the arbitrators might have made three several awards in the three cases, or one award in all three, or one award in two of the cases, and another in the third, or one award in the two cases leaving the third to be afterwards arbitrated. Non constat but that there had been another arbitration of the action of debt.- Besides, it appeared, that the two cases of detinue were arbitrated “at the request of the parties, both professing to be ready for trial,” that is, to proceed in the arbitration.
    II. The second question was, whether the award was not vitious, because it extended to matters not submitted to arbitrament? The objection under this head was, *that the award in the action of det-inue of John against Stephen, and the judgment of the court, gave him two infant slaves, children of the woman Lucy, born since the suit was instituted, who were not demanded in the declaration, and the r ght to whom, therefore, was not a matter in difference in that suit. Supposing this objection well founded, another question of practice would arise, Whether the court should have given John judgment only for the three slaves' demanded in his declaration and awarded to him, leaving him to prosecute a new action for the two infant children of Lucy? or should have set aside the award as wholly vitious?
    
    The court was unanimous in the opinion, that the first set of objections to the award were rightly overruled by the circuit superior court. But as to the second objection,
    ALLEN, J., said — The action of John Martin against Stephen Martin was brought to recover three slaves, one a female. The case was referred to arbitrators, who awarded to the plaintiff the three slaves named in the writ and declaration, and two other infant slaves, children of the female born after the institution of the action. The order of reference under which the arbitrators proceeded, referred all matters in difference in the suit. It is contended, that the arbitrators were limited by the terms of the submission to those matters which could have been passed upon by the verdict of the jury, if the case had gone to trial; and if so, the plaintiff must shew that this increase of the female slave could have been recovered in that action, otherwise the arbitrators have exceeded their authority.
    The action of detinue is little used in England; the defendant was entitled to his wager of law; in consequence of which, it has seldom been resorted to in modern *times, and the decisions of the courts in the action are very scant. The importance of slave property has led to the revival of the action with us, and it has become a convenient and valuable remedy. The damages recovered in an action of trover, the substitute for detinue in England, would furnish no adequate remedy in respect to this species of property; for, owing to the attachment springing up between master and slave, no damages would compensate for the loss. In reviving this obsolete action, and adopting it as a remedy in this particular case, we use it for the assertion of a right unknown to the common law. The title of masters to slaves rests upon the municipal law of our own State. The rights and duties of owners, the mode acquiring and transmitting title, all depend upon our own statutes, which (for this purpose) are Virginia common law. One principle of law respecting this property, is, that as a general rule, the issue follows the condition of the mother. Indeed, the rule may be considered as universal: I can hardly imagine a case which would form an exception to it. The case of a gift of the mother by, will, and of the issue thereafter to be born, to a different person, is supposed to constitute an exception. It has never been decided that such a gift of the afterborn issue is valid; and it would seem to be inconsistent with the previous absolute donation of the mother. But be that as it may, it would form an exception (and one of rare occurrence) to the general rule, that he who shewed title to the mother, thereby shewed title to the issue; that one follows as an incident to the other, and that the establishment of right to the one, concludes the title to the other, except in the possible case above alluded to, or where there has been an alienation of the issue after the title thereto had accrued. Such being the law as to the rights of the owner, and there being no statutory remedy for the assertion of these rights, the courts were called on to furnish one: and the obsolete action of det-irme *was revived, and adopted for this purpose. The right being ascertained and regulated by law, cannot be altered or impaired by judicial decision. But, it seems to me, the court is by no means transcending its authority, when it moulds and adapts the remedy so as to be adequate to the assertion of the right. This, indeed, constitutes one of the peculiar excellencies of the common law. While rights are held inviolate, remedies may be modified and regulated so as to conform to the changing condition of society. If no change could be made in the application of remedies to the ever varying and expanding relations of men in an improving community, without legislative enactment, society would move in trammels, and the courts be always behind the age. Accordingly, we find that while the forms of action have continued unchanged, there is scarcely one which has not undergone modifications to adapt it to the changed condition of society. In regard to this very subject, we have a striking illustration of this proposition. There was no form of action known to the common law, by which the right to freedom could be tried. The laws upon the subject of villenage had no application to the condition of slaves in Virginia. Our courts, without any legislation, have moulded the ordinary action of trespass for false imprisonment, in form an action to recover damages for a tort, into a suit to tr3r the right to freedom. Where is the incompatibility of moulding the action of detinue so as to render it adequate to the purposes to which it is applied? The argument ab in-conveniente if a different practice should prevail, is entitled to some weight. Humanity dictates that the child should not be separated from the mother; and where the right to one, is determined by the adjudication of the question as to the other, why should the plaintiff, having recovered the parent, be turned round to a new suit to recover the child? Again; the owner being out of possession may not know, and has no means x'of ascertaining, the names of the issue, or the times of their birth. The controversy may be protracted; and if the possession is adverse, and has continued for five years, the title is perfect. Such adverse possession must commence at the moment the child comes into being: and, unless the real owner has in every instance instituted a new action for the increase, within the five years, his right will be barred. This would be holding out inducements to wrong doers to protract such controversies, with the hope of securing a title to the increase.
    It is supposed, that if the jury should include the increase, the defendant might be surprised by evidence touching their value, of which no notice was given by the pleadings. This in practice could be easily obviated, by requiring the plaintiff to file a specification of the children born after the institution of the suit, before the trial. The courts too, by granting new trials, could always guard against any injustice from surprise.
    It is said, if the afterborn children may be recovered, then, if the plaintiff, through ignorance of the existence of such children, neglects to give evidence of such fact, his right may be lost. I do not think so. In many cases, though the plaintiff might have blended distinct claims together in the same action, his failure to do so will not preclude a recovery in another suit for a claim of which no evidence was given in the first action. The action of assumpsit presents a familiar illustration of this rule. So, if the afterborn children should die before trial, the same rule which governed in the case of Austin’s ex’or v. Jones, Gilm. 341, would apply: for such issue the jury would probably allow nothing.
    For the reasons before indicated, direct authority could not be expected in any of the EJnglish cases. But, in adopting the action of detinue for the assertion of this right, the courts have availed themselves of a form of action which did admit anomalies, when viewed with reference to the strict rules of pleading, which distinguish *it from other actions, and, in effect, justify the modification here proposed. According to the old authorities, the defendant may plead in this action, that the goods were delivered to him by the plaintiff and A. aequa manu, upon a condition which he knew was not performed, and pray that A. be garnished. So, if A. bails goods of C. to B. in detinue by C. against B. he may plead bailment by A. to be redelivered to him, and pray that he may be garnished. 6 Com. Dig. Pleader. 2X9, p. 405-6. Upon this plea a scire facias issued against the garnishee: if he appeared and interpleaded, and the plaintiff succeeded, he had judgment against the original defendant for the recovery of the thing detained, and for his damages, though these could not exceed the amount laid in the declaration; and he might also recover damages against the garnishee for the delay after the writ purchased, and these damages might exceed those laid in the declaration, for (as it is said) it was not against him. Id. 2X 12; 1 Roll. Abr. 578; Pilford’s case, 10 Co. 117; Ed. E.llenbor-ough’s opinion in Ushúr v. Dunsey, 4 Mau. & Selw. 99. See too, 1 Roll. Abr. 578; Bro. Abr. 227, 8 Vin. Abr. Detinue, D. 6, p. 38. Here, then, is an instance in this action, where a departure w;as allowed from all the rules of pleading applicable to other personal,actions.. A, stranger not named in the writ or declaration, .was brought into the case; if he.interpleaded, the suit proceeded against both, and judgment was rendered against both.. The action therefore did admit of one essential difference from all others. And when revived in this country, and adapted to the assertion of a right to property in slaves, is it more incongruous to admit it to be so moulded as to be an adequate remedy, than it was to permit this interpleader and' judgment against a third person?
    By the old common law, the writ of re-plevin was resorted to,, for the redelivery and recovery of, the specific chattel; a remedy, in some respects, more effectual than *the action of detinue.. The gist of the action was the tortious taking. Vaiden . v. Bell, 3 Rand. - 448; Pangburn v. Patridge, 7 Johns. Rep. 140; Marshall v. Davis, 1 Wend. 109. , In the last case, it was held, that replevin would not lie unless the taking was tortious. In P. 1ST. B. 69,, it ip, said,, “A man shall have a replevin of divers cattle that are taken ; and if a man take, divers cows or sheep, and afterwards they have .calves or lambs, the plaintiff shall have ..his replevin of them all, as .well as of the cows and sheep which were taken.” And in a note to this passage it is said,, ‘Í Where, on the issue that he did .not take, and the special matter found, it shall . be adjudged for the plaintiff.” This,, though not directly in point, is a strong authority .in support of the view I take of the case under consideration. When Eitzherbert wrote, the rules of special pleading were rigorously enforced. The tortious taking, we perceive, in an action of replevin was the gist of the action. Unless the .plaintiff made that out, he failed. But in the case put, where there had been increase from the cows.and sheep after the taking,’ though the tortious taking could not be predicated of such after increase, yet upon the special matter being found, the plaintiff had .judgment. As to the increase an exception was made. So here, though regularly a plaintiff may not be permitted to recover more than he de-, dares for; in this particular case, and,in this form of action, shewn in other respects to have admitted of essential departures from the ordinary rules of pleading, it seems to me, the increase may be recovered; that the analogies of the law justify such a modification of the action; and that substantial justice will be promoted by allowing it.
    There is another view of this particular case, which, perhaps, would justify the award; though I have not fully satisfied myself as to this point. There would be no doubt of the right of a court of equity, in a proper case, to give a decree for the increase of slaves, born during *the pendency of the suit. The arbitrators are a domestic, .tribunal, se.lected by the • parties. The title to the slaves named was in controversy; that controversy embraced, and the settlement concluded, the title to the increase. The parties appeared, and there is no allegation that the defendant was surprised by the arbitrators considering a matter not embraced in the submission. They were an equitable tribunal. By their award they have gone no further, than (if I am correct) a court of equity would have gone. The objection to the power of the court of law to render judgment for such increase, is technical: the arbitrators were bound by no such formal rules. And as the controversy submitted to their decision, did,'in effect, embrace the increase, as well as the mother, it seems to me, they were justified in including all in their award.
    But on the first ground, I think the increase might have been recovered in det-inue; and I am, therefore, for affirming the judgment.
    
      
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
    
      
      See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt, 578.
    
    
      
      The arguments of counsel on this point are not reportea, because it is very fully argued in the opinions of the judges. — Note in Original Edition.
    
   STANARD, J.

It was objected, that the arbitrators exceeded their authority in awarding the issue born after the institution of the suit, and that the judgment is erroneous in sanctioning , the award. i_ If the objection is well founded, it will not avoid the award as to the matters confessedly .within the submission. It was an excess easily severable from1 the matter which was submitted; and the court in giving judgment on the award should have rejected the excess, and sustained it so far as it was within the submission. Lyle v. Rodgers, 5 Wheat. 394, 409; Cargey v. Aitcheson, 13 Price 639; S. C. 2 Barn. & Cress. 170; 2 Bing. 199; 9 Eng. C. L. R. 52, 380.

Upon the question whether the, objection is well founded or not, after the most careful consideration of it, and of the argument upon it, I think the objection must be sustained. The matter in difference in the action *of detinue demanding three slaves .by name, was referred to the arbitrators': their authority did not extend beyond the matter in difference in that .fiction. Whatever was recoverable in that suit, had it proceeded to trial and judgment in the ordinary course, constituted the matter in difference, and every thing not so recoverable was extrinsic to the case, as to which evidence would hfive been inadmissible at tffe trial, and judgment would have been extrajudicial and erroneous. The question, then, is resolvable into this: could the increase of the female slave born pending the. action of detinue for the mother, have been recovered, if the case had proceeded to ' trial, verdict and judgment? The well informed counsel for the defendant in error, seeing that this was probably the equivalent question, maintained the affirmative, on the ground that the increase is but a, mere incident, like interest on principal money, or profits of property detained. This argument from analogy, though most ingeniously urged, I think is not sound. To hold it so, might in this . case subserve the purposes of justice, but. would lead to very different results if established as a general proposition. If it be established that the increase, of slaves is like interest or profits, and on that analogy the recovery of the increase be allowed in this action, then the principle would apply in a case where, the increase not being recovered in the action for the parent, a subsequent action shall be brought for the increase. If in a suit for money or property, in which interest or profits are recoverable as incidental to or accessories of the principal subject, such interest or profits be not recovered, no new action can be brought for them ; and, if the increase of slaves born pending a suit for the parents, be considered incidents or accessories of the principal subject claimed in the pleadings, a subsequent suit for such increase would be equally inadmissible. The consequence would be, that the true owner, suing for and recovering the parent, and ^ignorant or not having proof of the fact of increase pending his suit, would lose his remedy for the increase. And cases in which the plaintiff may be ignorant of the fact of such increase having been born, or may want proof of it, will, probably, be of much more frequent occurrence than those in which his information and proof will enable him to recover them. Again, to hold that such increase is recoverable in the action for the parent, might lead to surprise and injustice. The defendant has no warning that the plaintiff alleges the birth or existence of such increase; and the plaintiff may introduce evidence as to this matter, of which the pleadings have given the defendant no notice, and by mistake or fraud make proof of increase that never existed or had ceased to exist. And in respect to the increase which had been born but had died, what would be the rights of the parties? Much embarrassment might arise from the application of the principle of Austin’s ex’or v. Jones, Gilm. 341, where judgment was given for the plaintiff, though it was ascertained by the verdict of the jury, that the slave was dead. In one view of that case, if the increase born pending the"'suit is to be considered as part of the subject embraced and recoverable in the suit, then its death pendente lite would not exempt the defendant from a recovery of its value. In another view, the argument of Judge Roane in that case goes far to sustain the propriety of excluding the proof that there was such increase, and consequently of denying the right of recovery: he intimated, that the defendant might have protected himself by pleading puis darrein continuance, because such plea would have put the allegation of the fact of the death of the slave on the record, and that would have let in proof of it. If the death cannot be proved to exonerate the defendant from the charge for the slave that may have died, unless that fact be pleaded in the ordinary course, proof of the birth not stated in the pleadings should not be let in to increase the charge.

*My opinion is, therefore, that the arbitrators, so far as their award embraced the increase of the female slave born pending the suit, exceeded their authority; that to that extent the court below ought to have rejected the award, and should have given judgment upon it in like manner as if it had said nothing about the increase; and that this court, reversing the judgment, should render such judgment as that court ought to have rendered.

CABIDDD, J., concurred in the opinion of Judge Allen, and BROOKE, J., concurred in that of Judge Stanard.

And the judges of this court being equally divided in opinion, therefore, the judgment, was affirmed. _^  