
    MORTON FORD, TRUSTEE, VS. WM. A. CALDWELL, ADM’R. OF G. CHURR.
    Where, in an action against the administrator, to recover for the services of si slave that had been in the possession of the intestate, it appeared that the slave had not been in the intestate’s possession by the consent of the plaintiff, O’Nealx.' J., held that assumpsit would not lie. Justices Gantt, Richardson, and But" her, held that this action might be maintained.. Evans, J., dubitante.
    
    Where a post nuptial deed conveyed a slave to the plaintiff, upon the “trust that the grantor and his wife, during their joint lives, should be permitted Ur have, use, possess, and enjoy the profits, hire, labor, and services of the said slave, not subject to the debts or contracts of the said grantor and his wife ; iff case the wife should survive, then to her for life; but if the grantor should survive, then to him for life ; and after the death of both, to the children of their fnarriage: held that as the deed was post nuptial and conveyed the property to the use of the grantor, it was void as to the creditors of the husband, either existing or subsequent. That the trust was executed in the husband (the grantor)' at least for his life ; for according to the deed he was entitled to possession, and having this, he had both the legal and equitable estate for his life: that the provision against the debts of the grantor and his wife, was void : and the grantor having subsequently conveyed the slave to defendant’s intestate, that no action could be maintained for the use of the slave, during the grantor’s life.
    
      Before Mr. Justice Gantt, at Charleston, May Term, 1836.
    His Honor reported as follows :
    “This action was brought to recover the wages of negroes,- Minda and child, for the time Churr had possession of them. It was agreed that the evidence offered in the action of detinue should be received in this case, and certain additiorfal evidence, which accompanies this report, was introduced. The jury found for the plaintiff.
    Mr, Thompson moved for a non-suit, on the ground that there was no evidence to support this action as arising ex contractu. I thought the law of implied contracts embraced the case, and overruled the motion’. I have no remarks to make on the nature of the verdict found, the court will judge of its correctness.
    The defendant appealed and moved for a non-suit:
    1. Because the case made by the testimony, if it proved any thing definite, proved a conversion by Churr in bis life time.
    2. Because there was no fact to prove a contract, either express or implied, but the reverse — that the property was held by Churr under his title, and never went into his possession with the assent of the plaintiff
    And for a new trial — Because the verdict was’ contrary to law and evidence.
   Cuña, per

O’Neall, J.

In two points of view, the law of this case is against the plaintiff. The intestate was in possession under Swift, the original owner, and the plaintiff’s cestuique trust. It is proved by the witness, Sarah Ford, that the negro was not in his (Churr’s) possession by the consent of the plaintiff. If this be true, and it must here bé so regarded, the defendant’s intestate was in possession against the plaintiff’^ title. In such a state of things there is no privity betwe'en the parties,' which will enable the court to imply a contract of hiring. For the party holding possession, claims in his own right, which is an adverse possession according*to all the cases. If the possession had not been adverse, then the tort might have been waived, and an implied contract might have been’ raised. As when one possesses himself of my property, by claiming to act for me, or by finding, in each of these cases, from the use of the property, an implied promise to pay the valué of the hire, may be raised. But legal implications are nothing move than presumptions, intended to effect what is just and right. Whenever,, from the relative legal position bf the parties, no obligation of right could exist in favor of one and against the other, there can be no implication of law to sustain a promise. In a case of adverse possession, there is a denial of right which negatives at once a'promise to pay rent or hire. This is sustained by our own well considered case of Bryan vs. The Administrator of Marsh. 2 Nott and M’Cord, 156.

But another tiiew is equally fatal to the plaintiff’s case. The deed conveys'the slave to the plaintiff, upon the trusts, first, that the grantor and his wife, during their joint lives, should be permitted by the trustee to have, úse,possess, and enjoy, the profits, hire, labor, and services, of the said slave, not subject to the debts or contracts of the said grantor and his wife : in case the wile should survive, then to her for life : but if the husband, the grantor, should survive, then to him for life; and after the death of both, to the use of the children of the marriage. This deed, it must be observed; is post nuptial, and conveys the property to the use of thé grantor, which would make it void against the creditoré of the husband, éither existing or subsequent. This would be enough for the defendant; for his intestate’s possession arose from the grantor’s inaebtédness to him. But I am not disposed to rest the case upon it. I hold that the trust was executed in the husband, at least for his life. For according to the deed, he was entitled to the possession of the slave; having this, he had both the le: gal and equitable estate for his life. For the trustee had nothing to do with it during this time : "he had delivered the slave to one who was under no legal disability : this was equivalent to a conveyance to him for the time he was to possess it. For the condition annexed to the trust, not to be subject to the debts or contracts of the husband and wife, is void. The husband having thus both the legal and equitable estate, could transfer it, which he did to Churr. In Swan vs. Ligan and Rudd, 1 M’Cord, 227, where a slave had been conveyed to a trustee, in trust for the use of husband and wife for life, to the use of the wife surviving, and after her death to the use of the children of the marriage, it was held, that delivery of the property to the wife, after she was discovert, was an execution of the trust: and that the remainder man might maintain a bill for the property, without making the trustee a party. In Porcher vs. Gist, decided by the Court of Appeals, at this place, in the spring of 1832, and Clancy vs. Allen, 1 Hill’s Chancery Reports, where property was settled to the use of husband and wife for life; to the use of the survivor for life, and after the death of the survivor, to the use of the children of the marriage; the wife survived, and had the property in possession ; it was held, in the first case, that it was liable in execution for her debts ; and in the second, for the debts of the second husband, to the extent of the life estate of the wife. The same principle of law is maintained by Semes vs. Cole, 2d Bailey, 230, in which it was held that remaindermen, after the death of a tenant for life, under a deed of trust to the use of their mother for life, and then to them in remainder, could in their own right maintain trover. According to these authorities, the use in favor of the husband was executed, and during his life, he, or his assignee, has the right to the possession against the plaintiff, the trustee. It was conceded that Swift, the grantor, and husband, was still alive; it therefore follows, that' the plaintiff can have now no right to demand hire from Churr, to whom his cestuique trust (Swift) conveyed the slave.

The motion for a non-suit is granted.

Evans, J.

I concur, on the ground that the trust was executed as to Swift, and that Churr’s title was good during the life of Swift. On the other point I express no opinion, but am inclined to think assumpsit would not lie, unless money had been actually received, so as to constitute Churr an agent.

Butler, J.

I concur on the construction of the trust deed, but I dissent on the first ground taken in the above opinion, believing that assumpsit might lie.

Mr. Justice Richardson

delivered the following opinion :

I concur in the decision that a new trial ought to be granted. But upon the non-suit, I consider the presiding judge correct in refusing tbe motion. The question is, can the value of the use (wages) of the negroes be recovered against the representative of Churr, in an action of assumpsit, or was the use of the negroes such a mere trespass as died with him ? The proper and legal meaning of tort or trespass, is the violation of another’s right, without pecuniary benefit to the offender. If,' after the violence or trespass done, and in consequence of it, pecuniary benefit springs to the offender, but which in law belongs to the party offended, he may recover it. in an action of assumpsit. In common law-language, he may waive the trespass, i. e. damages for the outrage, and go for the money actually received. No one can doubt, that if A violently took the money of B, and then A died, B may recover the money actually taken and used by A, in his lifetime; and the action would be competent against the representative of his estate ; because the money had gone into the estate;- The reason why the action of trespass does not survive the trespasser, is, because the outrage committed is personal, and not beneficial to the offender. It hurts, another, but brings no money to the trespasser; as where a man strikes you, or kills your negro. But if he takes your negro and sells or employs him, he then gets your money, which goes into his estate ; and assumpsit of course lies, to recover it, either of him or his representative. The admission, that if the trespasser should have hired out the negro and received money for his services, then you may recover such money, yields the whole principle. Money received, and money’s worth, afford the same cause of action. The amount of money received of the hirer, serves no other purpose but as a measure of the benefit which sprang to the trespasser by employing the negro ; and whether the benefit accrued from the services of the negro ,to the trespasser personally, or came to him indirectly in the sum of his wages, still, money is the measure of the loss to the owner and of the benefit to the trespasser. He has received in the one case a specific benefit, measured by the wages received in money ; in the other, he has received an equal benefit in money’s worth ; but which, the jury must assess, because the case affords not the same specific measure as the money would.

The essential principle of the action upon the implied contract with the administrator, is no more than this, that the lawful property of the plaintiff had gone to the estate of the intestate. And if the property has disappeared, you can recover, only in pecuniary measure, the amount of the use. If the intestate sold the property, the price received constitutes that measure,' If he hired it out, the wages received gives the measure. ' If he uses it, the value of the use affords the measure. But the right of action is the same in either case, and is equally supported in law.

The essential points to be verified, are the loss of the plaintiff’s right and the actual gain to the estate of the intestate. The mistake arises from an erroneous-construction of the case of Ryan vs. Administrator of Marsh, 2 Nott and M’Cord, 156. The action was for the use and occupation of land by the intestate Marsh. The history of the case points to the true .Construction. The judge first ruled that the 'action was competent. It depended upon the question, whether the intestate had received pecuniary benefit from the use 1 And I here repeat, that money and money’s worth, give equally the right of action. The sole difference is, that money gives, both intrinsically and in terms, its own standard measure of value ; but neither property nor services afford the measure in terms; therefore, you must of necessity estimate and express the amount of money.

But to proceed ip Marsh’s case. Afterwards, the parties agreed that both th.e possession and the taking had been a continued tort. The judge then non-suite.d the plaintiff, and the non-suit was unanimously supported. >

But we are .told in the very case, that the action might be supported, if the tender had been converted into cash ; or if rents had been received by Marsh ; or by his bare occupation of the land; as long as it is left to implication to determine, whether the occupation was permissive or not. But this could not follow, when the entire possession was admitted to be a continued tor,t.

So in the case before us, if it appeared expressly, or by consent, that ,the taking of the negroes, and the possession afterwards, was one continued .tortious cause of action, and if Churr took the negro and kept him locked up, in order to punish him for some offence, or to spite the owner, the action would be personal, and die with the trespasser. But the moment the trespasser makes actual value out of the negro, either in cash, or that which is worth cash in market, as labor and services, such value goes into the mass of his estate; ,and the representative of the estate must refund such value to the proper owner, as much as if it had been received in dollars. Any distinction between money and the value, is merely in language, not in reason or nature. Money is the palpable exhibition of the value of property, or services, — when we express the value in money —as when we say, a horse is worth $100, we mean to express the value of the horse, by the standard symbol — money. The value is presented to the understanding by the amount in money. In old time wheat was the standard of value; and a slave, for instance, was worth 500 bushels of wheat.

Now, according to the distinction taken, if the wheat were taken by .the trespasser, his representative would be liable. But if the slave himself be taken, you cannot recover for his use or value, unless the use or value has been exchanged for wheat. That is, you may recover the specific representative of the value, if the property, or use of it, has been cashed. But if not actually cashed, you cannot recover the value of either.

Thompson, for motion. Hunt, contra.

No such distinction can be supported now-a-days ; gold and silver coin represent the value of services reridered, and of property instead of wheat. There is no magic or complexity in the change from wheat to metal; each has been, in turn, the standard measure or representative of the value of property ; and both are the subjects of property.

Can it be of any consequence, whether the estate of the trespasser has been increased by the use of the property, or the value of the use received in coin — by the property itself, or the sales of the property — by the wheat, or the slave — by the money or the money’s worth 1

The only rational inquiry, is, whether, and to what extent, has the property of another gone into the intestate’s estate 1 If it has, the represen-, tative is liable, and must refund it in kind or in money.

If the trespasser commits a ..mere outrage, which cannot enrich him, although it make his neighbor poor, yet his executor or administrator is not responsible. The rule applies, “Actio personalis, moritur cum, personal

And the proper test in the application of the maxim, is, has money, or (which is one and the same,) money’s worth, gone into his estate % If it has, the representative is liable to the extent of the money, or money’s worth, actually received by his intestate, in an action upon the implied contract; which eitherthe receipt of money, or the acceptance of services, always implies.  