
    Fowler and Clepper v. Stonum.
    The act to prevent frauds and fraudulent conveyances (Hart. Dig. p., 835) contemplates the recording of bills of sale of slaves for eeriain ’pnrposes. Therefore a bill of sale of slaves comes within the provision of ihe statute (Hart. Dig., art. 745) respecting the proof of recorded instruments. (Note 10.)
    A general allegation of title to which no exception has been taken is sufficient to authorize (lie ¡lUrodiv-tion of evidence to sustain it.
    The defendant had brought suit aarainst tho plaintiff for the recovery of certain slaves, and had had a writ of sequestration issued and the slaves se.ized ; the plaintiff had given bond and replevied 'hem ; the defendant then forcibly took them out of the possession of the plaintitf, who sued him for trespass and damages : IleM. That, the legal custody and possession of the slaves, for the purpose of and a* between the parties to the first suit, was in ihe plaintiff, and that ihe defendant had no rigid, during its pendency, to disturb that pos^esMon.
    A sequestration is a judicial deposit. It is a conserva'ory act which does not affect the question of title; but the possession under it, as to that suit and the parties to it. is a legal possession
    Where the defendant was sued for clamases for foroiljlv taking and carrying away orrrain slaves which were in the possession of the plaintiffs by virtue of a replevy bond under a writ of sequestration iu a former suit- by the defendant against the plaintiffs: Held, That it was not competent for the defendant, to prove, for the purpo.»e of reducing the verdict below the actual damage sustained, that ho acted under the well-founded belief that t'*o plaintiffs were about to placo the property beyond the reach of legal process, and 10 put it out of their power to comply with t-ho condition of t-heir bond; and quero whether such evidence was competent, even in mitigation of vindictive damages.
    The rule that the wrong-doer is i esporisiblc for nil the consequences which flow immediately from liis wrongful acts is the same in civil as in criminal cases.
    Whore the defendant was sued by the plaint ills for damages for forcibly taking and carrving away certain slaves which were in the possession of the plaintiffs by virtue of a roplevv bond under a writ of sequestration in a former suit by the defendant against the plaintiffs for tlio same property: Held. That it was not competent lor the defendant (o pro\o that prior to the former suit the plaintiffs had wrongfully taken said slaves out of his. the defendant’s, possession, and attempted to run them out of the State, the same being tins trespass to redress which the defendant had resorted to legal process in the former suit The introduction in evidence of a part of the record of a suit by one party entitles the other parly to introduce the wholo record.
    As a general rule the superior court, in reviewing the decision of the inferior court in admitting evidence, will confine itself to the specific objections raised in the inferior court. (Note ll.)
    The better opinion would seem to be that a verdict without a judgment is not evidence of the facts found by it.
    In on action for damages for wrongfully taking and carrying away property the defendant mov, for the purpose of estimating the damages, prove the ownership of the property to ho in himself, although the propc2*ry was, at the time of the taking, in the possession of the plaintiffs by virtue of a replevy bond under a writ of sequestration i-suod in a suit instituted by tlv defendant against the plaintiffs to recover the same property.
    The enticing away of a slave isa ti napas*. and whore the taking is without force, but is accompanied by acts tending to a breach of the peace, it is a forcible trespass.
    Appeal from Harris. This suit was brought by the appellants'to recover of the, appellee damages for mu alleged trespass commuted in inking and carrying away certain slaves claimed to have been the property and in the lawful possession of the plaint ills.
    The defendant pleaded, 1st, ‘‘not guilty ” and a general denial; 2d, in substance, that i he slaves in controversy were the property of the defendant; that previously to the alleged trespass they had been ami were wrongfully and illegally withheld by the plaintiffs from 1 he defendant, and that in the alleged trespass the defendant was lmt acting in the rightful exercise of his ownership over his own property. The 3d plea contained a repetition of the defendant’s ownership of the property, and alleged that the plaintiffs, by combination and confederacy with one Halstead, liad wrongfully and illegally obtained possession of the negroes in controversy, and were, about, clandestinely and by fraud and violence, to convey them away beyond the reach and control of the defendant, for the purpose of cheating and defrauding him of his right to them, and wrongfully usurping 1 lie ownership thereof; wherefore he alleged lie, did take and resume the possession of the negroes; not unlawfully, nor by any violence or infraction of the public peace, but peacefully, and in t lie exercKeof his rights as owner, as he lawfully might do; which is the same supposed trespass, &o. The 4th plea averred that the plaintiffs, “under the false and fraudulent pretense of having replevied said negroes by the execution of a replevin bond by said Fowler and others,” had, previously to the supposed trespass in said petition mentioned, (against the fact of which said defendant protests.) got possession of said negroes, and were unlawfully and fraudulently withholding them from said defendant, who was and is the proper legal owner thereof, and were threatening and about to run said negroes off, clandestinely and fraudulently, for the purpose of cheating and defrauding said defendant out of his rights to tile same, for which reason said defendant peaceably retook and resumed tiie possession of said negroes, as he lawfully might do; which is the same trespass complained of, &c.
    The plaintiffs filed exceptions to the second and third pleas, except to so much of the third as alleged that the defendant took possession of the negroes, “ not unlawfully nor by violence,” &e. To that part of the third plea not excepted to the plaintiffs replied that it was untme; that tiie defendant, with force and arms, did seize, take, and entice away the negroes front the possession of the plaintiffs, and held them with strong hand, and' still holds them, although, in .addition to their ownership and possession, as set forth in the petition, the plaintiffs at tiie time held possession of the negroes in consequence of having given bonds to hold them subject to the judgment of the court in a suit then pending, in which the defendant herein was plaintiff, and the plaintiffs herein and others were defendants.
    To tiie fourth plea the plaintiffs replied the institution of a former suit by the defendant herein against themselves and others, in which they alleged a writ of sequestration was sued out and levied upon the negroes in question in their possession, and that they gave bond and security for their forthcoming to abide the event, of the suit, and therefore retained the possession in accordance with law; that so being in the lawful possession of the negroes, tiie defendant, with force, and arms, did seize, take, and entice them away from the possession of the plaintiffs, and still holds them with strong hand.
    The exceptions to the second and third pleas were sustained, and the case was tried upon the first and fourth pleas, and that part of the third upon which issue was taken.
    The plaintiffs gave in evidence a bill of sale of tiie negroes from one B. H. Halstead to themselves, dated 25th October, 1S45; also certain portions of the record in the case of the (Defendant herein against themselves, described in their replication, including- the writ of sequestration issued in that case, and a bond (hereupon, given by Fowler, one of the plaintiffs herein, for the forthcoming of tiie negroes; amotion that the defendants he required to give a new bond, and a bond with security thereupon given by both the defendants, who are now plaintiffs. The first bond'bore date in January, 1S4G, and the second on the 15th of September of the same year.
    It was proved that the negroes, sixteen or seventeen in number, were in (he possession of the plaintiffs and others holding under them, and that 1 hoy wen- taken from their possession by the defendant, accompanied by several armad men, on Saturday night, and early on the following morning, about (lie last of May, IS47that some of the negroes came to tiie party in the night, and the others were taken in tiie morning; that when subsequently requested, (lie defendant refused to restore them, saying he had them and intended to keep them. The witnesses testified that tiie injury to the plaintiffs in the loss of I heir crop occasioned by the taking away of the negroes could not have been less than five or six hundred dollars.
    The defendant gave in evidence an instrument executed to him by the plaintiff’s vendor, Halstead, dated June 12, 1844, and recorded in Montgomery .County on the same day, by which Halstead acknowledged that the'title to (lie negroes was in the defendant Stonum, and that lie held subject to the right ami tide of Slonmn, and upon certain conditions expressed in the instrument. The defendant proved that on the 25th of October, 1S45, Halstead made, a sale of (lie negroes in controversy to one William H. Fowler, who was at the (imp clerk of tiie county court of Montgomery comity, and before whom the last-menlioned instrument was acknowledged for the purpose of being recorded, and that on the same night of this sale the plaintiffs and others ran off the ne-groes, starting for Louisiana, to sell them; that being overtaken, they brought hack (lie negroes, and subjected them to levy by virtue, of a writ of sequestration at the suit of the defendant. The defendant also pioved that some timé in the summer or fall of 1840 the plaintiff Fowler offered the witness Miller five hundred dollars ‘‘to go with the negroes; ” the witness understood him to allude to the negroes in suit, and declined the offer. lie proved by another witness (hat the; witness Miller told him that Fowler liad offered him five, hundred dollars to take off the negroes and sell them, and that he communicated Lliis to (lie defendant. The defendant, also gave in evidence the petition and verdict in the case, in which tiie sequestration had been issued at ids suit against the plaintiffs!, being’ portions of the same record of which other portions had been previously given in evidence by the plaintiffs. The petition claimed the ownership of ilie property, and the verdict found that tiie title to it was in the defendant, the plaintiff in that-suit.
    Bills of exception were taken by the plaintiffs, numbered from one to six inclusive, which presented the following rulings assigned as error:
    1st. The plaintiffs read in evidence their bill of sale from Ilalstead of the 25th of October, 1845, and the defendant having admitted its execution, the plaintiffs insisted that they had the right to use it as evidence by virtue of the probate and record thereof in Montgomery county appearing upon the instrument, and by virtue of its having been filed and diie notice thereof given to the defendant as tiie statute prescribes; upon which “the defendant said nothing; but the court, ox officio, ruled that such a conveyance was not required by tiie registry acts to bo recorded, and therefore was not admissible in evidence by virtue of the probate and record and filing and notice, without proof or admission of its execution.”
    2d. The defendant offered in evidence the instrument executed in iiis favor by Ilalstead on the I2th of June, 1844, and recorded on tho same day in Montgomery County, by which Ilalstead acknowledged his right and title to the property, and which instrument had been filed and notice thereof given to the plaintiffs as tiie statute directs; to tho reading of which the plaintiffs objected, but the court overruled their objections and permitted tiie instrument to l)e read in evidence.
    3d. The defendant proposed to prove by a witness that he (the witness) communicated to the defendant the fact that one William Miller informed the witness that tiie plaintiff Fowler offered him (Miller) five hundred dollars to assist, in running off the negroes and making sale of them, and at what time tiie witness made this communication to the defendant; to which tiie. plaintiff objected as irrelevant, but tiie court overruled tiie objection.
    4rh. The defendant, proposed to ask a witness “Who took tiie negroes off in t lie fall of 1845? When did yon see the negroes? When did you overtake them? and, who had them in .possession?” to the answering of which questions the plaintiffs objected, bub their objections were overruled by the court.
    Stli. The dof-ndant offered to road in evidence the petition and verdict in tiie record of tile suit wherein this defendant was plaintiff and the present plaintiffs and others were defendants, respecting the title to (he property in question in this suit; to which the defendants objected, because, 1st, in this suit, the defendant could not show title in himself to the property which is (he subject, of.allegad ire-pass; 2d, the verdict, having been rendered since the in«t itution of (his suit, cannot, be read in evidence to prove title in the plaintiffs; lid, because irrelevant; which objections tiie court overruled.
    Oth. Tiie court, was asked by the plaintiffs to instruct tho jury, 1st, “ that in this action the title to the property is not in question and cannot be triad;” which (lie court gave with this addition, “but maybe inquired into to determine the right of tho plaintiff to recover and to ascertain the damage; ” 2d, “(hat (he verdict, road in the case of Stonum v. Fowler and others is not evidence in this case to show title in tiie defendant, a motion for a new trial being oil file and not decided at the time such verdict was offered and read;” which, instruction the court refused.
    There was a verdict for tiie plaintiffs, finding tiie defendant guilty of tho trespass, and assessing the damages at three hundred dollars. The plaintiffs moved for a new trial on tiie ground that the court misdirected the j iry. and that the verdict was contrary to law and evidence, and the, damages manifestly too small. This motion tho court overruled and gave judgment upon [he verdict, and the plaintiffs appealed.
    
      John Sayles for appellants.
    I. The error presented by the first bill of exceptions is that the court ro-fused to permit the plaintiffs to introduce in evidence their hill of sale of the property claimed by virtue of the probate and filing as authorized by the stulules. (Hart. Dig., art. 745; Id., art. 2752; Id., pp. 835, 83G, 839; Id., p. 833; Id., art. 1455; art. 27S7.)
    II. The court erred in permitting the defendant to read in evidence a conveyance of the negroes to himself. He certainly could not do it under the pleadings, as all the pleas setting up title were ruled out or withdrawn. The effect of a general denial is simply to throw on the plaintiff the burden of proving the. trnih of the averments material to his action, and will not let in proof of new and independent facts. . (Mims v. Mitchel, 1 Tex. B.. 443; Guess v. Lubbock,
    5 Tex. B.) In this action naked possession would entitle the plaintiff to recover. (8 Pick. R., 335; 1 Wend. R.„ 436; 2 Id., 122; 10 Id., 110; 9 S. & B. R., 244.) The general issue would merely deny possession and the trespass, and would not authorize the introduction of proof, either in justification or excuse'of defendant’s conduct.
    JII. The testimony referred to in the third bill of exceptions is the lowest species of hearsay testimony, admissible under no circumstances whatever.
    But on What ground was such testimony competent? Was it any justification or excuse of the defendant’s conduct that he believed the plaintiffs were about to run off the negroes? If he had an ini crest in the property, the law furnished him the means of preventing their removal and a remedy for any injury he might sustain. The law had put the property into the possession of the plaintiffs, and they had the right to retain and dispose of it as they pleased. (10 Pet. II., 402; Rochell v. Harrison, 8 Port. B.)
    IV. The testimony referred to in the fourth bill of exceptions is subject to the objections last sLated. Some of the parties connected with the present suit were contending for the property in another action. In the present suit the court, assumed the property to belong to the defendant, and permitted him to detail to llie jury the former acts of the parties to show, we suppose, how much he was injured by their conduct. If Fowler and Clepper tried to run off the property some months previously, we know of no law that would permit such acts to he shown in excuse of the defendant's unlawful act, committed after he liad resorted to his action at law and secured an indemnity from them.
    V. The admission of the record in the case of Stonum «. Halstead, Fowler et al. was clearly erroneous, as urged before. The defendant had not the right under the pleadings to introduce such evidence, (even if it was a good defense when properly pleaded.) Blit further, 1he, verdict was no evidence until entry of I lie final judgment. (1 Ph. Ev., 389; 2 Johns., 181; 1 Har. & Johns., 253; 2 Bin., 70; 2 Bibb, GO.)
    VI. The court erred in refusing to instruct the jury that the defendant could not setup tillo in himself in bar of (be action. Trespass may be sustained by one, who has possession. (8 Pick. R., 335; 2 Id., 122; 1 Wend. R., 446 ; 9 S. &B. R., 244; 10 Wend. R., 110; 17 Id., 91.)
    VII. The court erred in refusing to charge the jury that if the property was in tlie po.-sesffon of tbe plaintiffs and was forcibly taken away and kept by the defendant, they were entitled to recover its value, with its hire and special" damages. Wc know of no other ride of damages than this. The modification of the charge asked, that the tille of the property may be inquired into to determine ihe right of (he plaintiffs and to ascertain the damages, was wrong if the refiual to give the first charge was erroneous. Reference is made to the authorities above cited; also Sedgw. M. D., 29, 30, 531,' 55G, 570.
    VIII. Lastly the finding of the jury was for a grossly too small amount. If the reasoning of the appellants is correct, the value of the property should have been .included in the verdict. The finding of the jury was for three hundred dollars. There is not a single witness who speaks of the damages as less than live or six hundred dollars. On tlmt ground alone the verdict should have been set aside.
    
      
      IT. IV. fy M. M. Potter, also for appellants,
    argued the points made in Mr. Sayles’s brief, and in addition to the authorities there cited to support the position taken under the second and sixth heads, cited Hogan v. Lucas, 10 Pet. B., 400; Bowlett a. Fulton, Adm’r; Blakely’s Adm’r a. Duncan, decided at December Term, 1849.
    
      P. TV. Gray, for appellee.
    I. As to the first bill of exceptions, it is sufficient to say that it presents a mere abstiact point of law. The testimony referred to had" already been admitted without objection.
    IT. As to the second, the contract, whether a mortgage, trust deed, or agreement on conditions, was required by law to be recorded, and was so recorded. (Hart. Dig., arts. 2707, 2774; Id., 2770, 2777; Id., art. 745; St.eph. PL, 179.) See also authorities on the 6th head below as to the relevancy of the testimony.
    III. As to the third and fourth, the testimony of Shannon and Devereux was admissible in mitigation of damages and to show title in defendant.
    IV. As to the fifth, where a party introduces a part of a record or other document in evidence, the opposite party may introduce the whole record. (Bumpass ». Webb, 1 Stew. It., 19; Glasscock v. Hays, 4 Dana B., 59; Thompson v. French, 10 Terg. B., 452; Wheeler v. Hill, 4-Shep. B., 329; Cabiness v. Martin, 4 Dev. B., 10(5.)
    V. As to the sixth, in trespass the defendant may show title in himself in justification and in mitigation of damages. (Steph. PL, 179; 3 Blackst., p. 4; Wells v. Wells, 8 N. S., 307; 2 Stark.'Ev.. 816, and notes; 2 Ph. Ev., 192; 4 Ph. Ev., Cow. & Hill’s Notes, 246; 5 Bacon Abr., 217, 607, 60S, 627, 628; Wilkins’a. Despard, 5 Tex. B., 112; Dodd v. Kyffin, 7 Id., 354; Argent v. Durant, 8 Id., 404; Ballard v. Leovai, 5 Call B., 531; Swigert v. Thomas, 7 Dana It., 220; Martin v. Podger, 2 Bl. B., 701; Bawson w. Morse, 4 Pick. B., 127; Clay o.'Daperton, 1 Mon. B., 10; I-Iolly v. Brown, 14 Conn. B., 255; Ilaumer v. Wilsey, 17 Wend. B., 91; Hite v. Long, 6 Band. B., 457; Berry v. Caliounau, 2 Halst. B., 77.)
    VI. As to the motion for new trial—
    1st. The testimony shows clearly that the plaintiffs had no title to the negroes. They claim by bill of sale from Halstead, who held under the contract .with Stonum. If, then, that contract be only an agreement for sale on conditions, the title was in Stonum until the conditions were complied with. (Hussy v. Thornton, 4 Mass. B.. 405; Gaither v. League. 4 Ired. B., 65; Bennett v. Simms, 1 Bice B., 421; Kroesen v. Seevers, 5 Leigh B. 434.)
    2d. If the contract were only a mortgage, on forfeiture of conditions such title was vested in Stonum as authorized liim to take possession or maintain an action for the property. (Bich v. Hall, Doug. B., 22; Birch v. Wright, 1 Tex. B., 382; Hopkins v. Thompson, 2 Port. B., 433; Prescott v. Smith, 1 McC. B., 486; Newman v. Montgomery, 5 How., Miss. B„ 742; Paulding v. Scan-land, 4 B. Mon., 365; Hendly v. Buckner, 6 Sm. & M., 70.)
    3d. If the contract was a mortgage, then under the proof no title passed from Halstead to the plaintiffs. They were tort feasors; their purchase was in violation of a positive statute and therefore null. (Laws Tex., vol. 5, p. 180; Story on Cont., 539, et seg.; 2 Story Eq., 555, sec. 1326; Hunt®. Bobin-son, 1 Tex. B., 748; Collins v. Blantem, 1 Smith L. Cases, 353, and notes to Id., 364.)
   Wheelbe, J.

In the view of the case we have taken it will not become necessary to examine particularly all the various rulings of the court presented by the record, but those only will be considered which it is deemed may be material to the present disposition and ultimate decision of the case. It is not necessary to revise the ruling presented by the first bill of exceptions. The defendant had admitted the execution of the plaintiff’s bill of sale. It had been thereupon admitted in evidence. Whether it was such an instrument as was required or permitted by law to be recorded, and was therefore admissible by virtue of the recording under the statute, without the necessity of proving its execution, was not material.

The act to prevent frauds and fraudulent conveyances (Hart. Dig., p. S35) does contemplate the recording of bills of sale of slaves for certain purposes, and this therefore was such an instrument as is permitted by law to be recorded and as comes within tiie provision of tiie statute respecting tiie proof of recorded instruments. (Hart. Dig., art. 745.) If, therefore, tiie bill of sale had been excluded, the ruling would have been necessarily the subject of revision ; but as it was admitted in evidence, it is not perceived that the ruling could have prejudiced the plaintiff’s case or that it was at all material.

The instrument embraced in the second bill of exceptions, whatever may have been its legal effect, whether a conditional sale or a mortgage, was rightly admitted in evidence, without other proof of its execution than that afforded by its having been duly recorded.

But it is now insisted that it was not admissible under tiie pleadings, there being, it is said, no averment of title in the defendant. This, however, is a misapprehension of the fact as presented by the record. The fourth plea, being one of those upon which tiie case was tried, and to tiie legal sufficiency of which no exception was taken, does contain the distinct averment that the ownership of tiie property the subject of tiie alleged trespass was in tiie defendant. Under this plea the evidence was admissible.

The ruling of the court iii admitting the testimony contained in the third bill of exceptions presents a graver question ; that is, whether it was competent for the defendant to prove that in the taking of tiie property lie acted under the well-grounded belief that the plaintiffs were about to place it beyond tiie reach of legal process, and to put it out of their power to comply with the condition of their bond, given to replevy the property.

The defendant had invoked tiie aid of legal process to recover of tiie now plaintiffs this property, and they had exercised their legal right of re-plevying the property. This unquestionably gave them tiie legal custody and possession of it for the purposes of that suit and as between tiie parties to it. It follows that the defendant had no right during the pendency of the suit to disturb that possession.

A sequestration is a judicial deposit. (6 La. R., 542.) It is a conservatory act, which does not affect the question of title; but tiie possession under i(, as to that suit and tiie parties to it, is a legal possession. So it is held that property levied on remains during the pendency of tiie levy in the custody of tiie law. And where slaves levied by an execution from a State court were claimed by a third party, who gave bond to try the title and for the forthcoming of tiie slaves, the Supreme Court of the United States held that tiie property was not subject to another execution in the hands of a Federal officer. (10 Pet. R., 400.) Whatever right of recaption may have appertained to the party previously by the institution of legal proceedings, such right, if it ever existed, was abandoned. Having appealed to tiie arbitrament of the law, he was bound to abide its decision ; and any attempt, under whatever pretense, to anticipate or forestall that decision by bis own unauthorized tortious act, was a violation of the law and iiis duty. It could admit of no legal justification or excuse.

If the evidence offered were admissible in any conceivable aspect in which it may be viewed, it could only be in explanation of the motive with which tiie trespass was committed, and, in answer to a claim for vindictive or exemplary damages, where the, motive of tiie party becomes a proper subject of inquiry, to show that the defendant was not actuated by a malicious or-lawless spirit; but its admission even for this purpose would be of dangerous consequence. It would be to permit a party to palliate acts of lawless violence, tending to a breaeii of the peace, by showing that lie did not intend tiie natural and [jrobable consequences of his own acts. But for these tiie law holds everyone responsible. Tiie wrong-doer is responsible for all the consequences which flow immediately from his wrongful acts, and this rule is the same in civil as in criminal cases. (9 Port. R.. 336.) Here, Hiere was a willful and deliberate trespass, committed under circunislanees tending manifestly to a breach of the peace, and it was not, it is conceived, admissible to show the motive of tlie party, even in extenuation or mitigation of damages. Had there not been a preconceived purpose and deliberate intention to commit the act, and, as appears, at the hazard of a breach of the peace, it might have been otherwise; but where parties thus appeal to force, regardless of the law and order of society, their acts, and not what might have been their motives, must give character to the transaction in which they stand implicated.

But whatever opinion may be entertained as to the admissibility of the testimony we have been considering for the purpose: of showing the motive which actuated the party at the time, it is clear that it could have been admissible for ho other purpose, and there is no purpose for which the testimony contained in the fourth bill of exceptions could have, been legally admissible. Its object, was to show the lawless conduct of the plaintiffs in possessing themselves of the property and removing it off in 1845 before the institution of the suit for its recovery. But however their conduct in that Instance may be characterized as lawless or even felonious, still it could have no effect to justify or palliate a subsequent trespass by the defendant after having resorted to legal process and obtained the security which the law provides. 'That would be to set-off or palliate one tortious act by another.

We are unable to perceive any purpose for which tills testimony could have been legally admissible, and that it was calculated materially to inlluence the finding of the jury cannot admit of a doubt.

The introduction in evidence of the verdict shown by the fifth bill of exceptions ivas objected to in the court below upon three distinct grounds,'but one of which is now relied on, and that lias been in effect disposed of in considering tlie second exception. But it is now insisted that the verdict was not evidence without tlie production of a judgment upon it.

This objection to the admissibility of the evidence is not, we think, maintainable. Tlie introduction of a part of the record by tile plaintiffs entitled tlie defendant to introduce the whole record. Besides, it lias been held tiiat where tlie court is asked, as in this instance, to reject evidence for a cause to which it is not obnoxious, all other objections may be presumed to have been waived. (9 Port. R., 67.) As a general rule, it lias been said tlie superior court, in reviewing the decision of the inferior court in admitting evidence, will confine itself to tlie specific objection raised in tlie court below. (11 Wheat. R., 199; 6 Cond. R., 270.)

But tlie admissibility of evidence and its legal effect are different questions. And the refusal to give the instruction asked was the expression of an opinion as to tlie legal effect of tlie evidence tlie correctness of which may well be doubted. Conflicting opinions as to the effect of a verdict as evidence, without the judgment, have been- entertained, and tlie question lias not been considered free from doubt. (2 Bibb R., 50, 60.) But tlie better opinion would seem to be tiiat without the judgment the verdict is not evidence of the facts found by it. (Ib.; 1 Phil. Ev., 389, and n. 729.)

It lias been made and may again become a question whether it was competent for the defendant to prove title in himself to the property in controversy. Upon the trial the court ruled, botli in the admission of evidence .and in instructions to tlie jury, and we think rightly, tiiat tlie question of title as between the parties was the proper subject of inquiry in order to estimate tlie damages. Tlie objection that tlie evidence was not admissible, under the general issue, and the authorities cited to show tiiat matter in justification or excuse must be pleaded, are answered by the fact before noticed that title in tlie defendant was pleaded.

The jury found the defendant gniity*of the alleged trespass. They could not have dono'Otherwise under the evidence.

Note 10 —Manly v. Culver, 20 T., 143.

Note 11.—Davenport v. Lackie, 8 T., 351; Hubert v. Bartlett, 9 T., 97; Leach v. Millard, 9 T., 651; Norton v. Mitchell 13 T., 47; George v. Lemon, 19 T., 153.

The enticing away of a slave from the owner has, boon hold to be a trespass. although no force was employed. (3 J. J. Marsh. R., 185.) And where the taking was without actual force, but was accompanied by acts tending to a breach of the peace, it was held to amount to a forcible trespass. (Ired. R., 207.)

But although the jury found the defendant guilty of the alleged trespass, they estimated the damages at but three hundred dollars, when the lowest estimate by the witnesses of the actual loss sustained by the plaintiffs to their Crop in consequence of the taking away of the negroes was five hundred dollars. The amount of the verdict was probably the result of the admission of the evidence contained in the third and fourth bills of exceptions. That evidence, as we have seen, if admissible at all, conhl have been so for no other purpose then as an answer to a claim for vindictive or exemplary damages. It could in no event have authorized a reduction of the damages below the immediate and direct injury occasioned by the tortious acts of the defendant.

If, therefore, we had been of opinion' that the testimony in question was admissible, it was not entitled to the effect which appears to have been given to it; and for this cause a new trial must have been directed. But we are of opinion that the testimony was erroneously admitted; and because it may have influenced the finding of the jury, the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.  