
    Benjamin E. Lloyd et al. vs. Gaines Goodwin.
    In the action of replevin, under the act of 1842, the right to immediate recovery in the plaintiff, and the wrongful taking or detention by the defendants, are involved.
    Where, therefore, an action of replevin was brought by one who had a life estate in slaves, against a person, who, at the instance of the remainder-man, had taken them into possession, a verdict for plaintiff, for the full value of the slaves, or their restoration to the plaintiff, together with damages for their detention, was held to be erroneous; the plaintiff having but a life estate, the jury should have assessed the value of his interest, and no more ; to be assessed by them as nearly as may be in view of all the facts.
    Tn an action of replevin, brought by one who had an estate in slaves, for the life of the wife of the remainder-man, which estate had been conveyed by deed by the remainder-man to the life tenant, the plaintiff having established his interest, the defendant proved that he had taken possession of the slaves, at the instigation of the remainder-man ; and offered to introduce the remainder-man as a witness, to prove title in himself by way of justifying the taking ; held, that the remainder-man was an incompetent witness to prove, that fact.
    In error from tbe circuit court of Noxubee county; Hon. A. B. Dawson, judge.
    On the 11th of February, 1844, Gaines Goodwin made oath that two slaves, Mary and her son John, on the 9th of that month, were unlawfully taken out of his possession by Benjamin E. Lloyd, Jasper Smith, Toliver Higginbotham, John Upshaw, Lewis Ivey, and James Markham; that he was legally entitled to their immediate possession, and his right of action had accrued within one year. A writ of replevin upon this was sued out; the slaves taken and bond given by the defendants according to the statute. To the declaration the defendants plead, 1. not guilty; 2. that the slaves, when taken, were the property of James Rowsey, and not of plaintiff; 3. that these slaves were the property of Sarah Rowsey, the wife of James Rowsey, and not of plaintiff; 4. that the slaves of Sarah Rowsey were taken by defendants under her authority; 5. that the slaves were the property of James Rowsey and Sarah Rowsey, his wife, and the taking was by their authority.
    The plaintiff demurred; the demurrer was overruled, and he excepted; afterwards the court permitted the demurrer to be withdrawn, and to these pleas, except the first, replications were filed and issues joined.
    A trial was had on the 10th of June, 1846, and the jury found for the plaintiff, and judgment was entered as follows : “ We the jury find the issue in favor of the plaintiff, and assess the value of the said slave Mary in the said declaration mentioned to the sum of five hundred and fifty dollars; and the value of the said negro child John to the sum of one hundred and fifty dollars; and also assess the plaintiff’s damages by him sustained, by reason of the taking thereof, to the sum of one hundred dollars. It is therefore considered by the court, that the said defendants, and Levi Lloyd their security in the replevy bond in this case, restore the said negro slaves to the said plaintiff, or pay to the said plaintiff the said sum of five hundred and fifty dollars, and the said sum of one hundred and fifty dollars, the value of said slaves by the jury aforesaid found out; also that the said plaintiff have and recover of the said defendants and their said security the said sum of one hundred dollars, the damages aforesaid, &c., also costs, &c.”
    The defendants moved for a new trial; it was refused, and they embodied the facts in a bill of exceptions as follows :
    The plaintiff proved, that on the 1st of January', A. D. 1844, he hired the slaves of Wilson Goodwin for one year, for one hundred dollars, and they were taken out of his possession in February, 1844, by the defendants.
    The defendants then introduced the transcript of a suit brought by James Rowsey against the plaintiff in the circuit court of Autauga county, Alabama, in the year 1S38, for the slave Mary, in which judgment was rendered in favor of Rowsey; and proved that the plaintiff had delivered the slave to Rowsey under the judgment, and that John was her child.
    The plaintiff then read a bond in the penalty of two thousand dollars, from himself and William Kirk to James Rowsey, and Sarah Rowsey his wife, dated March 5, 1839, conditioned that “ whereas the above bound Gaines Goodwin has this day hired of the said James and Sarah Rowsey a negro girl named Mary, about sixteen years of age, for and during the lifetime of the said Sarah Rowsey, at the rate of one hundred dollars per annum, commencing the 1st of January, 1840. Now if the above bound Goodwin shall well and truly pay said hire annually, when demanded by the said James and Sarah Rowsey, or their agent, then this bond to be void.”
    This instrument, the record recites, was held by and belonged to Rowsey and wife, but was introduced as evidence by plaintiff, and admitted to be the only contract between the parties.
    The plaintiff then read a bill of sale from himself to Wilson Goodwin, dated in Autauga county, Ala., Nov. 25, 1842, of the slave Mary; and proved, by Thornton A. Taylor, that the slaves in controversy with others were sent in the fall of 1843, by Wilson Goodwin, to the house of witness, where they remained until the 1st of January, 1844, when, by authority received from Wilson Goodwin, who still lived in Alabama, he hired them for one hundred dollars to plaintiff, for which the latter afterwards gave him the receipt of Wilson Goodwin, who was the father of plaintiff. Witness saw the slaves in possession of defendants; one of them told him as they were leaving plaintiff’s house, after having taken them, that they took them for Mr. Rowsey; that he knew he violated the law, but he was responsible.
    The defendants, with the plaintiff’s consent, then proved by Rowsey that he authorized and directed the defendants to take the slaves for him; but the plaintiff objected to his testifying further as to the matter; and the court sustained the objection, to which the defendants excepted.
    There was some other testimony, not however material. The court instructed the jury for the plaintiff, “ that the contract contained in the bond was absolute; the hire was without condition for the life of Mrs. Rowsey; and plaintiff’s failure to pay the annual hire would not affect the time of hiring, nor authorize Rowsey and his wife to rescind the contract; ” and refused for defendants to instruct them, “ that if they believed from the testimony, that the title of the plaintiff to the slaves ceased before the trial of the cause, they would only return a verdict for the plaintiff, for the costs of the suit and damages for the detention of the slaves, from the time the defendants took possession of them to the time the plaintiff’s title ceased, and not assess the value of the slaves in their verdict.”
    Exceptions were sealed, and this writ of error prosecuted.
    
      Guión and Baine, for plaintiffs in error..
    1. The exclusion of Rowsey’s testimony was erroneous; and exception having been taken to it, as a single point, we are entitled to a reversal on that ground, though all the other parts of the case be against us. Worten v. Howard, 2 S. & M. 527.
    Rowsey was not interested in the verdict, even if it had beep proved that the negroes were taken by his authority and for his use, and that the negroes were in his possession; he could not be sued for contribution, nor could the defendants have brought a suit against him to recover the damages sustained by them for obeying his orders or executing his directions. It was a trespass the court will remember ; therefore none of the actions alluded to were maintainable. Again, being a trespass, and he not being sued, he was a competent witness for those sued. Phil. Ev. 73.
    2. The judgment is erroneous for a return of the property specifically, or its full value. Rowsey being the undoubted owner of the remainder (or fee) in the property, any judgment against him, or any one justifying under him, which did not regard this outstanding and undisputed estate, was erroneous. The judgment, if for the plaintiff, ought only to be for the value of the life estate, deducting from it the annual hire to be paid for it. This is the judgment which ought to be entered under the plaintiff’s own proof.
    
      3. The verdict was wrong for another reason, the plaintiff himself had shown that he had only a life estate for the life of Mrs. Rowsey. He then had shown a right inconsistent with the return of the property, in any eventhe had shown an estate dependent on the life of Mrs. Rowsey for its continuance, and surely Rowsey was a good witness for the defendants to prove the determination of the particular estate, so as to modify the extent of the judgment, so as to bring it down to the amount of the value of but one year’s hire, as defendants say it should be.
    4. The plaintiff is a tenant for life; a tenant pur autre-vie. Being such, he attempted to convey an absolute estate. Such by the. common law is a forfeiture of even the particular estate. It is so of lands, (chattels real,) which are indestructible, and not liable to be lost. Much more then is it so of personal chattels, which are destructible, which may be lost. See 4 Kent, 82, 83, 84, being the closing pages of Lecture 55.
    5. Beyond the hire for one year the cause was not within the jurisdiction of a court of law. The plaintiff, on proof of his right, showed that a court of law could not adjust the rights of the parties. It was a case, beyond the hire for one year, peculiarly and exclusively cognizable in a court of chancery. The value of his estate for the life of Mrs. Rowsey, subject to a deduction for the annual hire, could only be ascertained by means of an account, under the direction of a chancellor.
    At all events, this was the criterion of damages, and the charge asked by the defendants to that effect ought to have been given.
    
      A. W. Dabney, on same side,
    after arguing the propriety of the decision on the demurrer, and the action of the court below in allowing it to be withdrawn, insisted,
    1. That Rowsey was competent to prove, that the slaves in controversy were the property of himself and wife. He cited 2 Phil. Ev.'. (Cow. & Hill’s notes) 87, 93 ; 7 Bacon, 93; 1 Chit. PI. 385 ; 12 Wend. 30.
    2. The contract under which the plaintiff below claimed title was not absolute; it was conditional. The word “hire” shows that it was not the intention of Rowsey and wife to part with the absolute title. The slave is delivered with the condition annexed, that payment is to be made annually. Unless the payment is made, the contract is forfeited, and Rowsey and wife can reclaim the property. Chit, on Cont. 124.
    The right to retain the slaves a succeeding year depends upon the payment of the hird for the preceding year. If so, a condition precedent is created, which if Goodwin fails to perform, Rowsey may rescind the contract. Chit, on Cont. 274.
    3. The evidence shows that the title of the defendant in error to the slaves ceased before judgment. He was not entitled to a return of the slaves. Wilson Goodwin, from his own testimony, was entitled to the possession. He could only recover his costs of suit and damages for the detention of the slaves from the time plaintiffs in error took possession of the same to the time his title ceased. Simpson v. McFarland, 18 Pick. 431.
    
      Henry Gray, for defendant in error,
    contended,
    1. That there was no error in the exclusion of Rowsey. The defendants justified the taking of the slaves in controversy, under the authority of the very witness sought to be .introduced. That they were his agents, and held the property for him. The result of the judgment was to take away the slaves from the custody and possession of his agents, who held for him, and whose possession in law was his, and to give them to another who held adversely to him. It was not a mere interest in the question, as the books term it, but a direct interest in the result of the suit.
    2. The meaning of the charge given for plaintiff below was that the non-payment of the money was not a condition precedent; that even if the appellee had failed to pay the money when demanded, it would not avoid the contract, but that Rowsey and wife must resort to their action on the bond. This charge was correct. The hiring was for the lifetime of Mrs. Rowsey, not from year to year. The payment was to be made yearly, to secure which a bond with security was given, which Rowsey and wife held at the time of trial, and still hold, and have never surrendered.
    3. The statute regulates this action, and declares what judgment shall be .rendered. It declares that the judgment (when the defendant retains possession) shall be, that the defendants restore the property or pay its value. The verdict pursues the statute, and complies with its provisions.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an action of replevin, under the statute of 1842, regulating said action, for the wrongful taking and detention of two slaves, mother and son.

The question raised upon the pleadings and the judgment of the court thereon, we will not consider, because the result was a trial upon the merits, which is now the object of the law in this state, and we could do no more than direct such an attempt in this state of the case.

The circuit court rejected the testimony of James Rowsey, who was introduced to prove a title in himself to the slaves as a foundation for showing the absence of a tortious taking, it having previously been shown that the defendants below acted at his instigation, and under his directions. The court did not err in so ruling, for although such proof might avail under different circumstances, Rowsey was not a legal witness to the fact.

It was in evidence that Rowsey had hired the slaves to Goodwin during the life of Rowsey’s wife, and at a certain sum per annum secured by deed and security; this contract entitled Goodwin to their possession during that term, and warranted a recovery so far as this action was concerned, which involves the right to immediate recovery in the plaintiff, and the wrongful taking or detention by the defendants. The circuit court, therefore, instructed the jury correctly as to this matter.'

In this instance, the judgment of the court is for the full value of the slaves, or their restoration to the plaintiff, together with damages for their detention. But the plaintiff below being entitled to possession only during another’s life, and the tafdng having been proved to have been at the instigation of the hirer of the slaves, the value assessed should have been commensurate with the value of his title and no more; and, therefore, the judgment must be reversed, and a new trial granted, when the measure of damages must be approximated by the jury, in the event of a finding for the plaintiff, as near as may be in view of all the facts surrounding the case.  