
    *James Johnson et al. ads. Theophilus Packer.
    A verdict give'n in the alternative in trespass, may he a ground for a new trial, hut not in arrest of judgment, ut semble, 
      
    
    In trespass vi et armis, the plaintiff is entitled to damages, not only for the injury done in taking away his goods, hut the value of the property; and a recovery in this action, is a bar to an action of trover. 
    
    Where negroes were given hy deed to a trustee, till his cestui que trusts come of age, and that then he should account for the raising and profits of the negroes ;, held that the trustee was entitled to keep possession only till his cestui que trusts attained the age of twenty-one, and that they were then entitled to possession without a general account.
    If a trustee has a lien on, and a right to the possession of trust property, until the expenses with regard to it are paid ; yet, hy voluntarily parting with the-possession of it, he loSes his right as between himself and a purchaser.
    A sale hy an infant, accompanied hy a delivery, is good against third persons, .
    This was an action of trespass, vi et armis, tried before Justice Joiinson, at Marion, in October Term, 1816.
    *Thotnas Grice, by deed, conveyed to his two grandsons, David and Aaron Herring, while they were infants, two negro girls, Nancy and Violet. The deed contained some specific provisions, on the construction of which the rights of the parties principally depended. It was in the first .place a formal deed of gift, (as it is usually denominated,) expressing natural love and affection as the consideration; and the donor expresses a wish or desire that James Johnson, one of the defendants, should have the possession of them until his said grandchildren, who were twins, should arrive at twenty-one years of age, and that he should then account with them for the expenses of raising the negroes, and the profits of their labor. The defendant, Johnson, took possession of the negroes when they were very young, and kept them until they were thirteen or fourteen years of age, and shortly before David and Aaron Herring came of age, he sufferedthemtogo into their possession, forthe purpose of assisting them in making a crop, &c., and he at the same time furnished them with some provisions, and did other acts of kindness for which they were indebted to him, and they were also indebted to other persons in the neighborhood. About the time that David and Aaron Herring came of age, they sold and conveyed the negroes to the plaintiff, their brother-in-law, and delivered them to him, and immediately after left the country, without having made provision for the payment of their debts, and particularly the debt of the defendant, Johnson. The defendants, after the Herrings had arrived at twenty-one years of age, entered the plaintiff’s house armed, and, under circumstances of considerable aggravation, forcibly carried the negroes off. They were proven to be worth from eight hundred to one thousand dollars, and for this injury the present action was brought.
    The jury found a verdict for the plaintiff for fifteen hundred dollars, to be released on the return of the negroes, and the payment of one hundred and fifty dollars.
    A motion was now made in arrest of judgment, on *the ground, that a verdict in the alternative in the action of trespass, vi el armis, is against law — and for a new trial on the grounds :
    1. Because in the action of trespass, vi el armis, the injury done in the taking and not the value of the property, ought to be the measure of the damages.
    2. Misdirection in charging the jury, that David and' Aaron Herring were entitled to the possession of the negroes when they attained the age of twenty-one years, without a settlement with the defendant in relation to the trust.
    3. Because it did not clearly appear that the Herrings were of age at the time of the sale to the plaintiff, and therefore void, but was, at any rate, fraudulent, and void as to creditors.
    
      
      
         Vide M’Dowal vs. Murdoch, post 237. Adm'r. M'Lane vs. Elders, 2 Const. Rep. 189 ; Norris vs. Beclcley, ditto, 228.
    
    
      
      
        Nemo bis vexari debet si constat cur. quod sit pro una, el eadem causa. Ferrer’s case, 6 Cp. 7. The test is where the evidence is the same. Kitchen, assignee, vs. Campbell, "best reported in 3 Wils. 304.
    
    
      
      
        Van Bramer vs. Cooper, 2 Johns. Rep. 279 ; Hartness vs. Thompson, 5 John. Rep. 161; Jackson, exdem, Dunbar vs. Dodd, 6 John. 257. R.
    
   The opinion of the Court was delivered by

Johnson, J.

If the ground taken in arrest of judgment had been made the basis of a motion for a new trial, I am not prepared to say what influence it ought to have had. I think the propriety of such verdicts, in this action, or the action of trover, in which they are in common use, to the extent to compel the defendant to restore the property, may be questionable, as in the event of any accident which would put it out of his power, he would be compelled to resort to the Court of Equity for relief; and they ought therefore to be discountenanced ;• but I am clearly of opinion, that it furnishes no reason for arresting the judgment. In a legal point of view, this alternative forms no part of the judgment, and the plaintiff might have proceeded as though no such provision had been annexed; and I think he would have be„en justifiable, unless, as was the fact in this case, he had given his express assent, for it could only be regarded as a surplusage. I am, therefore, opposed to the motion in arrest of judgment.

As to the grounds taken for a new trial, I am of opinion : 1. That in the action of trespass, vi et armis, *the plaintiff is not only entitled to damages for the injury done in taking away goods, but that he is entitled to recover the value of the goods ; and that a recovery in this action is a bar to an action of trover for the same goods. 1 Morgan’s Essays, 402 ; Thos. Raymond, 412 ; 2 Yentris, 169.

Daniel, for the motion. Witherspoon, contra.

2: I stated to the jury, and am still of opinion, that the deed vested no other right in the defendant, Johnson, than the right of possession, until the Herrings should attain the age of twenty-one years, and that they were then entitled to the possession without a general account with him; and admitting the general principle to be, that the trustee has a lien on, and a right to the possession of the trust property, until the expenses in relation to it are discharged, yet there was no evidence of any thing due on this account, and the defendant, Johnson, by voluntarily parting with the possession, had lost these rights as between himself and a purchaser.

3. Although there was some question made, (and as I then thought, and still think, against the weight of evidence,) as to the fact that the Herrings were of age at the time of selling to the plaintiff, I am of opinion, (even admitting they were not,) that the sale was valid, when accompanied by a delivery, at least against the present defendant. It was clear that the Herrings were of age at the time of his trespass, and as his right to the possession was terminated, he was therefore a wrong doer.

The question of fraud, I am of opinion, could not be tried in this case, as between the defendant, Johnson, as a creditor, and the plaintiff; if the sale to the plaintiff operated as a fraud on him in that character, [on the defendant as creditor,] it gave him no right to the possession; he must therefore restore it, or answer for it in damages; and if that be the case, the law has distinctly marked out the course which he ought to have pursued, and he has but to retrace his steps, and begin where he ought at first.

*The motion for a new trial ought, therefore, also to be discharged.

Colcock, Nott, Curves, and Gantt, JJ., concurred. 
      
       Post, 241.
     
      
       See 2 Sp. 374.
     
      
      
        Etters vs. Wilson, Columbia, May, 1859, 11 Rich. Jones vs. McNeil, 2 Bail. 474.
     