
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1815.
    Wm. Alston, Sen’r., v. N. Huggins, Sheriff.
    Where special damages are not laid in the declaration, the plaintiff is not entitled to recover any; for to allow consequential damages in such a case, would be to allow a party to be taken by surprise.
    A witness, whose interest is equal on both sides, is competent; and the objection to his competency goes only to his credibility, of which the jury are to judge.
    Motion for a new trial.
    Action of trespass m et armis, for taking á quantity of iumber in a raft, tried in the Court of Common Pleas of Georgetown district, before Smith, J. Verdict for the plaintiff.
    It appeared in evidence, that a judgment had been obtained for $700; whereupon ají. fa. issued against M. and W. Knight. The execution was lodged in the defendant’s office, as sheriff, the 30th January, 1809, and he was directed to seize in execution, a raft or rafts of lumber, which the said Knights were to send down to Georgetown for sale. A raft was taken in execution, at the plain, tiff’s landing, on Waccamaw river, on the 31st January, 1309, which had belonged to the Knights, and which the sheriff was in. structed was then their property.
    Moses Knight, one of the parties against whom the execution issued, was produced as a witness,for the plaintiff. He was ob. jected to as interested, but was admitted to give evidence ; and he swore that he had sold and delivered the raft in question to the plaintiff, the 2Gth or 27th of January, for $348, and received payment. The plaintiff forbid the deputy sheriff,' who levied on the raft, to meddle with it, and that the taking them away would be a most serious inconvenience. The deputy said he was indemnified, and took away the lumber. Evidence was admitted to prove that the plaintiff had purchased the lumber for the express purpose of ■finishing a rice mill, and that in consequence of the seizure thereof by the sheriff, the plaintiff was prevented from finishing his mill, for a considerable space of time, whereby he suffered very great inconvenience and a considerable loss.
    The judge, in charging the jury, observed, that in such a case they were .at liberty to indulge a latitude, in estimating the damages; That they were not bound to give only the value of the lum'. ber, at market price, but might add the value thereof to the plain* tiff at the time it was taken, under all the circumstances attending the seizure, and the consequential loss sustained by the plaintiff, in consequence of being delayed in completing his mill.
    This motion was argued 6th January, 1815,
    by Simons, in support of the motion; and Richakdson, contra.
    
    For the defendant, it was insisted, that the general charge of alia enormia, in the declaration, will not authorize evidence of eon-quential damages, and that the jury ought to have been instructed to give damages only for the immediate injury, for the trespass done, according to the circumstances attending the taking, whether in aggravation or mitigation. Evidence to shew the character of the trespass may be given in this action, but not to prove consequen, tial damages. If consequential damages are claimed, the same ought to be specially stated in the declaration, under a far quod. Cited 2 Chitty’s Pleadings, 379. 1 do. 384. Peake, p. 46, 62. 1 Massach. T. R. 47. 4 Johns. 126. Knight was improperly admitted to testify, being interested. Should have been regarded as a privy on the record. , He was liable to the plaintiff. The interest in favor of the plaintiff was much stronger than any interest to countervail it. There was not an equiponderant interest on both sides. The balance of interest in favor of the plaintiff rendered him incompetent. Peake’s Evid. 161. 4 Cranch, 70.
    For the plaintiff. The evidence of consequential damages was not objected to at the trial. After the evidence was given, the defendant’s counsel objected to its being considered by the jury as entitled to. any weight, in their estimation of damages. But the evidence having been allowed to go to the jury, they had a right- to take the same into consideration, in awarding satisfaction for the injury complained of. Knight’s testimony was properly admitted. He had no interest,in the event of the cause either way: but if it was not legally administered, still a new trial ought not to be granted on that account, because the facts he deposed to were proved by other evidence. The damages were not excessive. 2 Wils. 405,
   ConcocK, J.

This action was brought for the taking and carrying away of a certain raft of lumber. The plaintiff had bought' the raft of one Knight, and it was taken by the sheriff on a Ji. fa. which had been lodged in his office against the said Knight. The raft was valued at three hundred and forty-eight dollars, and the jury' found a verdict for the plaintiff for seven hundred dollars. The plaintiff proved the sale by Knight, and the taking and carrying away by the sheriff, and also that he suffered injury in consequence of the said taking, being then engaged in building a valuable pounding will, whjqh was delayed by the loss of the raft. On the part of -the defendant, it was contended, that Knight-Was incompetent, .being interested ; and that no consequential damages could be re-covered‘i4" this action. As to the firstjgi’ound, I$|nk Knight a com,petent y®ess. When the law speaÉkfof an -alferesl which shall exelude'o|h from being a witness, ifpfeans a ¿pecuniary interest; and the pecuniary interest of Knight could not hive been affected, for he was indebted to both the plaintiff and defendant, and would get a credit from whichever of them prevailed. On the second ground, f think there should be a nevy trial, for no consequential damages should have been given in evidence in this form of action ; but, if any had resulted, a separate action should have been brought for that. The alia enormia embraces only such acts as are done at the time the trespass is committed, or in the commission of it; as if in breaking into the close, the trespasser should beat the owner, this would be included in the alia enormia. - But that the delay which took place in the building the plaintiff’s machine, and the consequential loss of toll, should have been made the subject of consideration, is, in my opinion, contrary to the established doctrine on this subject. See 1 Sel., and the cases there referred to, page 454. “ If the injury be occasioned by the act of the defendant at the time; or the defendant be the immediate cause of the injury, trespass vi et armis is the proper remedy ; but where the injury is not direct and immediate on the act done, but consequential only, then the remedy is by an action on the case.” It is highly important that this distinction should be observed, for how else can a defendant come prepared to defend himself. In this case the defendant could not imagine, from the form of action, that any other point would arise than this, whether the execution in his office bound the property .before the sale. It was not alleged that the taking was accompanied with any aggravating circumstances 5 but, on the contrary, it was stated by defendant to be an act of duty as he thought. I am of opinion a new trial should be granted.

Nott, J.

The testimony of Knight was properly admitted. The evidence to prove consequential damages was not objected to at the trial, and, therefore, might be considered by the jury. The .judge’s charge was warranted by the evidence. ■ Therefore a new trial ought to be refused.

Brevard, j;J.

The action was trespass vi et, armis, for taking away personal property. The declaration was general, without any allegation of special damage. Evidence was submitted of consequential damages to the plaintiff arising from the peculiar circumstances of the case, from which it appeared that the lumber, for the wrongful taking of which the action was brought, was intended by the plaintiff to complete a mill for pounding rice, and *11 conse<luence °f the injury complained of, the completion of the mill was delayed, and the plaintiff greatly damnified. The admission of this evidence was not objected to ; and, for that reason, I am of opinion, the admission thereof, although improper, is not a sufficient cause for granting this motion. But the judge, in charging the jury on this evidence, did instruct them, that they might legally increase the compensation, by way of damages, for the trespass committed, by taking into their consideration the value of the lumber to the plaintiff, under the particular circumstances of the case, and the loss he sustained in consequence of his mill remaining idle for want of the materials in question, which were purchased for completing it. I am of opinion, that this direction to the jury was wrong; and that a new trial ought, in consequence thereof, to be granted. It cannot be fairly presumed that the jury were indifferent to this direction, and that they did not award damages as well for the consequential loss, as for the violent taking of the lumber, which, upon the record in this case, they were not authorized to do, the consequential injury not being specially alleged in the declaration, as it ought to have been, if it could be compensated in this form of action at all; for a plaintiff cannot give in evidence, or recover damages in this action, for any injury for which action lies, unless it is expressly charged in the declaration, under the general charge of “ other enormities done.” He may give evidence of the manner of committing the trespass in aggravation, or outrages accompanying the same, as insulting a wife or child, tossing about goods, &c., but not of any loss consequentially resulting from the trespass complained of. The reasons which support this rule are founded in obvious policy and justice.

Note. The injury for which an action of trespass vi et armis is brought, must be specially alleged in the declaration; 1 Sid. 225; Cro. J. 53d; unless the injury arises ex. turpi causa, lb, Aa in that case it would make the record indecent, and would not bear another action. Ib. See Ld. Raym. 608,110, 15§3. The plaintiff cannot giv*e evidence of any injury for which this action does not lie, unless it 'be expressly charged in the declaration. Cro. J. 534. 3 Wils. 292. But the plaintiff may, after proving the principal injury charged in the declaration, give evidence of any other injury therein also charged, for which this action does not lie, in aggravation, to shew the enormity of the trespass, as tossing goods, &e. I Salk. 642.

Bay, J., was against a new trial; concurred with Nott, J.

In this action only the mercantile value of the chattel cannot be the measure of damages. All circumstances connected with the unlawful seizure and taking, ought to be considered. The circumstantial value of the thing ought to be estimated. The real value thereof to the party at the time.

Grimke, J., agreed with Colcock, and Brevard, Js.

New trial granted.  