
    Pridgin v. Strickland.
    The old rule for the measure of damages in the action of trover, viz, the value of the thing at the time of conversion, and interest thereon up to judgment, besides being almost entirely exploded, has no application to our remedial system, which is independent of forms of action; here the rulo varies with different property with the fact.
    The owner of a negro unlawfully detained is entitled to recover not only his value but damages for the value of his services from the time of the demand up to the time of trial. (Note 83.)
    Where property is unlawfully detained the owner may elect to sue for moncjr or for the property, and so much monevas is pqnal to the damages sustained by the detention; in either case the measure of damages for the detention' is the same. In the former case the verdict ami judgment may bo in the aggregate for the detention of the property and damages for its detention; in the latter, for the property, fixing an alternate value on the same and damages for its detention.
    Where an amendment to the petition was filed, to which the defendant excepted, and the record did not show any specific action upon it, bub the verdict and judgmeut corresponded with the prayer of the original petition and not with the prayer introduced by the amendment, die Supreme Court presumed that the amendment had been disregarded by the parties ami the court.
    An amendment which would deprive the defendant of the benefit of the statute of limitations where lie would be otherwise entitle * to it cannot bo admitted.
    In our practice we do not look to the prayer for relief for the designation of the grounds of action.
    Error from Harrison. This suit was instituted by the defendant in error against the. plaintiff in error iu March, 1845. The petition in substance set up that plaintiff' was and is the owner of a certain slave named Ben ; that the defendant had gotten possession of said slave and converted him to his own use, and withheld him from plaintiff, although demanded; that the slave is of the value of one thousand dollars. The plaintiff prayed judgment for damages to the amount of fifteen hundred dollars.
    The defendant answered “not guilty,” and at a subsequent term, i. e., at May Term, 1848, further answered that he had received the possession of tlie said negro from petitioner in pledge from petitioner for the loan of two hundred anil fifty dollars, the hire of the boy to pay the, interest on the said loan of the said snui. There was a trial at May Term, 184S, and verdict for the plaintiff for twelve hundred and fifty dollars, and a new trial was granted to the defendant.
    At the Pall Term, 1848, an amended petition was filed, more in the form of a common-law action of definite,, praying for the value of (be hire of the slave and that he should be decreed to be delivered up to the plaintiff, and claiming damages to the amount of three thousand dollars. To (his amendment the defendant excepted, and his exception does not appear to have been acted upon. The defendant further answered that the said amended petition was not filed within two years after the cause of action accrued. There was a jury trial, and a verdict iis follows: “The jury find for the plaintiff as follows: Negro boy, Ben, $800; specific damage, $450, with all costs;” on which the following judgment was entered by the court: “It is therefore considered by the court that the plaintiff have and recover of the defendant the sum of twelve hundred and fifty dollars and all costs in this behalf expended, for which execution may issue.”
    A motion was made by the defendant for a new trial, which was overruled.
    TT. 77. Bristow, for plaintiff in error.
    This was an action brought by Hardy Strickland against Wiley W. Pridgin for damages for a conversion of a negro. Original petition filed March 3d, 1845. In' the original petition there is no prayer for the negro nor for his services.
    On the 20th December, 1848. Strickland fded his amended petition, by which he seeks to recover the negro and his hire from Pridgin,
    To this amended petition defendant excepted, that same was not filed within two years after the cause of action had accrued; which exception the. court overruled, and which overruling of said exception Pridgin assigns as error, for the following reasons :
    In a petition every circumstance should he stated which the defendant has need of knowing, in order to put him on a just defense of his suit. (Duncan v. ISiehtoId, G Mart. X£., 510.) And no amendment which has the effect of altering tlie claim contained in the petition or the defense contained in the answer can be permitted. (8 N. S. Da. R., 342.) And this court ruled at the last term, in the case of Carter v. Reynolds, that in no case could an original petition be so amended as to alter the cause of action as set forth in the original petition.
    In Louisiana it is ruled that actions receive their character from the nature of the relief sought, and an amendment which alters the substance of the original petition in this respect is inadmissible. (Riissell v. Spriggs, 10 La. R., 424.)
    Mow, the gist of Strickland’s original petition lay in the conversion and deprivation of "his property to recover damages to the extent of the value of the tiling converted, and had not for its object and result the recovery of the thing itself nor the value of (lie services, and by it he seeks to throw the property' on the defendant and to deprive him, the defendant, of the option of restoring the property in mitigation of damages. (1G Verm. R., 138-390.) A temporary conversion will render a defendant liable, for a conversion once taken place cannot be cured. (St. John v. O’Connell, 7 Port. R., 466.) Nor if there be a tortious use or taking of the property a subsequent demand of it will not operate as a waiver of such conversion, nor entitle the defendant to prove an offer to return it upon such demand. (Man well u. Briggs, 17 Verm. R., 176.) At common law a recovery in trover vests the title of the property in the defendant, and ttie damages recovered are the price of the chattel so transferred by implication of law. (White v. Martin, 1 Port. 215; 2 Kent. Com., 388; 3 East. R., 251.) Whether the, change of property relates to the conversion, the judgment, or the satisfaction, it is evident that admitting the last to be necessary to the consummation of the transfer, it relates back to the conversion. So that children of a slave, born during the pendency of trover for the mother, cannot lie recovered in a subsequent action. (White v. Martin, 1 Port. R., 215.)
    The amended petition of Strickland, in changing the nature of the relief sought, alters the substance of the original petition in this respect, and that after an interval of upwards of three years. Therefore the statute of limitation is a good defense and a bar to any' recovery thereon.
    2d and 3d exception. If there! is a legal rule for the measurement of damages the jury must follow it. (Ryan v. Be.ldriek, 3 McC. R., 49S.) In assessing damages for a conversion, plaintiff is entitled to the value of the prop -rty at the time of its conversion and interest to tlie date of the judgment. (White v. Martin, 1 Port. R., 215; Weld v. Oliver, 21 Pick. R., 559.) The, rule of damages in au action of trover is a question of law, (Baker v. Wheeler, 8 Wend. R., 505.) Por the employment of a slave without tlie consent of tlie owner the, measure of damages is the injury to tlie plaintiff from tlie employment; and if the slave, be lost daring the employment, will be tlie value of the slave. (Gray' v. Cochran, 8 Port. R., 191.)
    Prom these authorities we find that tlie charge asked of the judge and by him refused was in strict law tlie ride for tlie assessment of damages.
    
      W. P. TIM, for defendant in error.
    I. The first error assigned is, that the amended petition in this case fded by plaintiff was not filed within two years after the cause of action had accrued.
    
      If there was error in this, why did not defendant insist upon his motion to strike out the amended petitions? But the intendment is that die statute of • limitations bars the cause of action set up in the amended petition. If the amended petition did introduce a new cause of action distinct from and independent [4of the cause of action disclosed in the original petition, the force of tiie object ion would be obvious. But this is not the ease; tiie technical difference between trover and detinue will not be recognized here.
    In both petilious the subject-matter, i. e., the slave Ben,’the ownership and possession of plaintiff, tiie illegal detention and conversion (words that in our pleading and practico in a case like this are nearly and perhaps altogether synonymous) of the slave by defendant, and the damages claimed by plaintiff, constitute the sole cause of action and the end to be obtained. The only marked difference is that the amended petition specifies a rule of estimating damages (the labor and services of tiie slave) which is not so specified in the original petition.
    II. Tiie second error assigned is that “the court erred in overruling the exceptions taken by defendant to the introduction by plaintiff of tiie evidence as to the worth of the yearly services of the negro boy from the year 1S43 to tiie present time.
    This assignment raises tiie proposition that tiie hire or value of the services of Ben could not be considered by the jury in estimating the damages to which tiie plaintiff was entitled.
    1. The, first answer to this objection is that the amended petition contained a distinct averment of tiie value of the services and labor of the slave, and a prayer for the recovery of the same as part of plaintiff’s damages. Tiie evidence objected to was, therefore, in strict accordance with the rule that the allegata and probata must correspond. Tiie objection eould not be sustained unless Hie. allegation which the proof was intended to sustain was wholly immaterial to the case or grossly repugnant to the rules of law which govern in such eases.
    2. But I prefer to meet the proposition on its own merits, and insist that plaintiff was entitled to recover tiie value of the labor and services of his slave. ‘•It is a general and very sound rule of law,” said Sedgwick, in delivering the opinion of the Supreme Court of Massachusetts in Rockwood v. Alien, lix’r, 7 >Iass. It., p. 234, “that where an injury lias been sustained for which the law gives a remedy, that remedy shall be commensurate to tiie injury sustained.” “It is a natural and legal principle,” said Sliippen, Chief Justice of tiie Supreme Court of Pennsylvania, “ that tiie compensation should be equivalent to tiie injury.” (Bussey «. Donaldson, 4 Dali. B. R., p. 20G.)
    “The general rule of law,” said Story, J., in Dexter v. Spear, 4 Mass. R.. 115, “is tliis: whoever does an injury to another is liable in damages to the extent of that injury. It matters not whether tiie injury is to the property or the person or tiie rights or tiie reputation of another.”
    Washington, J., '"in Walker v. Smith, 1 Wash. C. C. R., p. 132, said tiie “rule is that the. plaintiff should recover so much as will repair tiie injury sustained by the misconduct of the defendant.” (Sedgw. Meas, of Dam., p. 29, 30.)
    In the application of this exact rule of justice it became necessary to establish other rules for ascertaining tiie amount of damages to which the injured party would be entitled. In England these rules must have respect to the structure of the forms of action in use and tiie rules of evidence applied to them. (Sedg. Meas, of Dam., 20G-7.) One rule of damages was made for ac.-tions ex contractu, and another rule for acl ions ex delicto. If the form of action belonged to tiie class ex contractu the damages were strictly limited to the direct pecuniary loss resulting from the breach of tiie contract in question, (lb.) And no mutter if the facts of the case demanded a more generous compensation, it could no! lie allowed.
    Is not the reason and principle precisely applicable (o tliis case which is applied to actions for tiie recovery of mesne, profits? In tiie action of ejectment tiie plaintiff recovers the annual value or mesne profits of the land, as a corollary from tire recovery of the land itself. Mesne profits of land are those received while the property is withheld from its rightful occupant. They are recoverable whether tiie lands are withheld in good or in bad faith. (Sedgw. on Damages, 121-124.) On what principle are the profits restored with the land? Because the right to the first is as unquestionable as the right to the last; and again, because they can be ascertained with as much precision as the metes and*bounds of the land itself. Is it not equally so in the case of a slave? The value of his hire is as much within the scope of proof and as easy to be established by proof as the profits of land.
    
      216
    
      But we are not without authority in point. In Banks v. Hatton, 1 Nott & McCord, 221, the doctrine is laid down that, “in an action for the conversion of negroes, the measure of damages should be their value and the value of their labor.” This authority is not iii Tyler, but I have seen it, and it sustains the above doctrine fully. It is referred to in 3 U. S. Dig., p. 591, sec. 240; see also tiie case of Buford v. Fannew, 1 Bay R., 273-274. where the same doctrine is clearly maintained. In Georgia tiie same point is directly decided in the case of Schley o. Lyon & Rutherford, 6 Ga. R., 535, in which the above case of Banks v. Hatton is referred to as authority.
    Perhaps I ought to have considered this question as already decided by this court; for, although I know of ucease in which the precise point has been adjudged, I find cases in which hire was recovered by tiie plaintiff, and tiie judgment for hire affirmed. (Davis v. Loften, 6 Tex. R., 489; Robbins’ Adm’r. v. Walters, 2 Tex. R., 130.)
   Lipscomb, J.

There have been presented several distinct grounds on which tiie court is asked to reverse tiie judgment in this case; but it is believed that everything material can be noticed under the objection to the amendment of tiie plaintiff’s petition, and that therefore it is not essential to a correct decision that those points should be separately and distinctly examined; and it may well be remarked here that all tiie embarrassment thrown around this case arises from an attempt to engraft tiie common-law forms of action upon our system, when it is so clear, and has been so often announced in judicial opinions, that neither the action of trover nor detinue is known to our forum, and that our petition, in its structure, is more analogous to a bill in chancery or to a special action on the case than to any other forms known in other systems of jurisprudence.

The petition as first framed, though very objectionable in this, that it had too many of the fictions to be found in a common-law declaration in trover, was more in conformity with what our petition ought to be than the amendment-, and there can be but little doubt that the plaintiff could have achieved the same result, had it not been amended, which was afterwards given to him by the verdict of the jury. Whatever may have formerly been the difficulty in settling tiie.rule of damages for an injury done, when that injury is susceptible of judicial cognizance in a civil suit, if the damage is immediate, and not too remotely consequential, that it should be commensurate with the injury sustained, is a principle that is now believed to obtain even in courts where they are fettered, and in some measure controlled, by long-established judicial usages under particular forms of actions. It is so in trover, in detinue, and in trespass; and what seems a little strange is, that this doctrine of extending the amount of damages to make it adequate to the injury, in its early growth, received more encouragement in the English courts than in the common-law courts of the United States. (See cases referred to in Sedgw.'on the Measure of Damages, p. 3, Burr., 1303; 1 Car. & Payne, 625.) And there can be no doubt that it may safely lie assumed that the old rule in the action of trover, that the value of the thing at the time of conversion and interest thereon up to the judgment, if not entirely abolished, has been subjected to so many exceptions as to leave it not worth preservation, and the amount of the damage will vary according to the particular property to which it may be applied; a workman would be allowed damage, not limited to the value of his tools at the time of conversion, and interest thereon, but such amount as the jury might believe from tlie evidence would be more adequate to the loss he* sustained in being deprived of their use in the exercise of his trade. (I -Johns. It., (;j.) And, doubtless, on the same principle, the owner of a negro would be allowed to recover not only his value but damages for the value of his services from the lime of the demand up to the time oi the trial; and such, no douiil. would be 1 he correct rule, and in practice has been acted upon in our courts on a petition setting forth an injury like the one complained of in tins suit.

Note 83. — Anderson v. Dtlifleld, ante, 237.

If the party injured and deprived of his property has a particular fancy or preference for the specific property instead of recovering its value and damages for tlie detention, there is no change in tlie narration of facts of l lie injury for which lie seeks redress. In the concluding part, instead of asking damages to be. adjudged to him, he will ask for the specific property to be delivered'up and damages for its detention, and tlie jury would then find for file plainti.i' the property sited for, fixing ail alternate value on the same and damages equal fo tlie actual injury sustained for its detention. On such finding ilie judgment would be that the defendant should deliver up the properly ami pay tlie damages assessed for its detention, and on failure to deliver the’ properly the plaint ill' should have judgment and execution for tlie value found by the jury and the damages assessed for its detention. Tu the case under consideration the jury have found the value of the slave $800, and specific damages $1.30. This would have been a good verdict if tile original pef.il ion liad stood alone, without its hybrid associate presented by the amendment, it would have been no objection to the verdict that the jury bad two distinct sums, that when added together formed the aggregate of the damages to which the plaint iff was entitled. Their finding the different sums only shows the rule by which they arrived at the result, and tlie judgment of the court could well have thrown together tlie two sums, as it has been done in this case. The verdict and the judgment are both just sneli as might well have been returned and rendered on the original petition, and both tlie jury and tlie judge seem to have disregarded the amendment.

Can we presume from tlie record before us that the court did disregard the amendment? I think we can, because the record nowhere siiows that it bad been acted on and approved by the court, nor was there any action on the defendant’s exception to it; it seems to have been passed over in silence, and never brought to Lhe notice of the court. The evidence introduced and all the rulings of ‘ the court, as shown by the bill of exceptions, might just as well have occurred on a trial upon tlie original as upon the amended petition; hence it may well be concluded that it was disregarded.

To the objection so well presented by the counsel for tlie plaintiff in error, on the hypothesis that the amendment bad received the sanction of the court, that a party ought not to be permitted to amend his petition in such way as to subject the defendant to answer a new cause of action — and be illustrated it by supposing- that an amendment might introduce new matter, which, if it related back to the commencement of tlie suit, would deprive the defendant of the benefit of the statute of limitations, that had completed the bar before the amendment — it is readily admitted an amendment drawing with it snob consequences ought not tobe received. The amendment offered, however, in this case would not have, as it is believed, been attended with such grave results if it had been received ; and should an amendment in any case have such an effect, so far at least it would lie error to receive so much of it.. An amendment should not be permitted to substitute a new cause of action, but under our praciice we arc not prepared lo say that we must look to the prayer of judgment for the designation of the grounds of action; onr practice has never been so stringent.

We believe that there is no error in file record that can authorize a reversal of the judgment, and it is therefore affirmed.

Judgment affirmed.  