
    Ballard v. Leavell & al.
    [October, 1805.]
    Pleading — Trespass-Pleading by Way of Recital. — In trespass for taking away a slave from tlie plaintiffs close, the charge was laid by way of ouod cum, or recital: The court was equally divided in opinion, whether it was error, or the defect was cured by the verdict: And therefore, as to that point, the judgment was considered as affirmed.
    New Trial- Refusal to Receive Evidence. — But as the court below refused to receive evidence on the part of the defendant to prove that the title to the slave was in himself, because the plea was Not guilty, the judgment was reversed, a new trial awarded, and the evidence directed tobe received in mitigation of damages only.
    Leavell and others brought trespass against Ballard, for breaking their close, and taking away a negro woman slave. The declaration laid the charge by way of quod cum, or recital; and the defendant pleaded not guilty.
    Upon the trial of the issue, Ballard filed a bill of exceptions to the court’s opinion, stating, that he offered evidence to prove that the title to the slave was in himself, he having been in quiet possession for six years, with a claim of title : and that the plaintiffs had a few days before the *time of the alleged trespass, taken her out of his possession. That he re-took her by virtue of a warrant from a justice of the peace ; and that the court rejected the evidence.
    Verdict for the plaintiffs :
    And the defendant moved for a new trial, upon the affidavit of his counsel, stating that he was prepared at the trial to have proved the facts alleged in the bill of exceptions ; that he had intended to have pleaded specially, and thought he had done so, until after the jury were sworn to try the issue : That the counsel practising in that court attend other courts, and arc obliged, from that cause, to be frequently absent when the rules, in the clerk’s office, are held; by which means, pleas, not intended, are entered ; and that the members of the bar are in the habit of admitting amendments at any time, (often after the jury are sworn) ; but that privilege had been refused him, on the present occasion. And that the court being equally divided in opinion upon the point, the motion fell, and the evidence was consequently disallowed.
    The district court gave judgment for the plaintiffs ; and the defendant appealed to the court of appeals.
    G. Hay, for the appellant.
    The charge is not direct, but by way of recital only; which is fatal. 2 Ld. Raym. 1413 ; Salk. 636; 1 Stra. 621; 2 Call, 39. There is a difference in this respect between the practice of the court of common pleas, and that of the king’s bench, owing to the circumstance of the writ being set forth at large in the first, but not in the latter, 1 Wils. 99; 2 Wils. 203 : and we follow the practice of the king’s bench. The evidence offered by the defendant to prove that the slave belonged to him, ought to have been received ; for the title may be gone into upon the general issue, whether the contest respects real or personal property. 7 T. Rep. 354 ; 12 Vin. Ab. 147 ; Bull. Nis Pr. 90 ; 8 T. Rep. 404; 12 Vin. Ab. 148, 149 ; 5 Bac. Ab. 217. There ought to have been a new trial, on account of the surprize ; for the defendant’s counsel intended to plead the special matter, but was prevented by mistake.
    *Williams, contra.
    The doctrine of quod cum has long been disregarded, as unreasonable, and Mr. Hay’s own cases prove it; for 1 Wils. 99, shews that quare vi et armis, is sufficient; and that the quod cum may be rejected as surplusage. 1 Wils. 100. And in 2 Wils. 204, the court speak certainly as to the court of common pleas, and doubtfully as to the king’s bench. The second point is equally untenable; for the old rule was, that-special matter could not be given in evidence upon the general issue. 6 Mod. 153 ; 12 Vin. Ab. 169, 202 : And, although that rule has been relaxed in some degree, it has not been carried so far as is contended for on the other side; for whether the defendant had title to the slave or not, he had no right to enter in a hostile manner upon-the plaintiff’s land to take her. There was no ground for a new trial, as the defendant ought to have pleaded his justification, if he meant to avail himself of it. • The indulgence allowed each other by the members of the bar, is not important, as it might be retracted, 6 Bac. Ab. 671; and the district court had a legal discretion upon the point; which does not appear to have been exercised improperly. Besides, a new trial could not be asked for after a bill of exceptions. 1 Wash. 5.
    Botts, in reply.
    A -recital never amounts to a charge, either in pleadings or conveyances. The defendant ought to have been permitted to prove title in the property. 5 Bac. Ab. 607, 608, 627, 628. Which is the stronger, as the plaintiff went only for the value of the property. There ought to have been a new trial; for justice required it, as there was a complete surprize on the part of the defendant and his. counsel.
    Cur. adv. vult.
    
      
      Pieading — Trespass—Pleading by Way of Recital.— It is a general rule of pleading that the gist of the action must be directly and positively averred in the declaration, and not by way of recital. Therefore, if in actions of trespass or trespass on the case for torts, the facts necessary to state a cause of action are stated under a quod e,um or after a ‘'whereas,” such mode of statement must be regarded as recital, and such count is fatally defective on general demurrer. Spiker v. Bohrer, 37 W. Va. 261, 264, 16 S. E. Rep. 577 ; Battrell v. Ohio River R. Co., 31 W. Va. 233, 12 S. E. Rep. 700 ; Burton v. Hansford, 10 W. Va. 476 ; Moore v. Dawney, 3 Hen. & M. 135 : Hord v. Dishman, 2 Hen. & M. 602 ; Taylor v. Rainbow. 2 Hen. & M. 444 (all the above cases cite the principal case) ; Lomax v. Hord, 3 Hen. & M. 271; Donaghe v. Rankin, 4 Munf. 261.
      Same — Same- Same — Statute of Jeofails. — In Moore v. Dawne 3 Hen. & M. 127, the beginning of a declaration in trespass with the word “whereas” was considered as an incurable defect upon a general demurrer, and not one that was aided by the statute of jeofails after verdict, the court holding- that the use of the word “whereas" causes the whole declaration to be merely recital which leads to an affirmative allegation, hut does not contain one.
      In Burton v. Hansford. 10 W. Va. 475, the court said: “Upon the question whether, it is a fatal defect for, a declaration to a state nnder a quod emu or after a ‘whereas,’ any fact necessary to consti-tnte a cause of action, there have been a number of Virginia decisions. The court of appeals of Virginia has decided that both in actions of trespass, and of trespass on the case for torts, such a mode of stating such a fact, is fatally defective on general demurrer to the declaration, or prior to the amendment of the statute of jeofails suits above quoted in the Revised Code of 1819, it was equally fatal even after verdict. See Ballard v. Leavell, 5 Gall 531; Moore v. Dawney. 3 Hen. & M. 127 : Lomax v. Hord, 3 Hen. & M. 271. and Donaghe v. Rankin, 4 Munf. 261. And these decisions are in accord with the old "English authorities.”
      See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   ROAN®, Judge.,

It always gives me pain to reverse' judgments upon grounds which appear to be technical, and do not entirely accord with the general understanding of men. But I hold myself bound by well established precedents, and disclaim a power to change the law.

*In the case before us, I am compelled to consider the declaration as radically defective, in not making a positive charge of the trespass therein mentioned. Rinding in 5 Bac. 345, a direct authority to this point, (which was not cited at the bar,) I shall rely on it in addition to the cases which were cited. It is there held, that “ the declaration must contain such certain affirmation that it may be traversed ; for, if there be no certain affirmation to make the declaration itself traversable, it will not be cured after a verdict, because it is a defect in substance ; as if the declaration be quod cum the defendant assaulted, him, and the defendant plead not guilty, here is nothing put in issue; for the pleadings have affirmed nothing; and though the defendant be found guilty, yet cannot the plaintiff have judgment; because nothing is positively affirmed.”

This position is believed to be entirely supported by all the cases antient and modern ; and has never been departed from but. in relation to declarations in the court of common pleas in England ; and there only, on the ground that the writ is incorporated with, and made part of the declaration, and is considered to cure the defect. This has never been holden to be the law, however, in the court of king’s bench, except when acting as a court of error upon proceedings in the court of common pleas.

However the statute of jeofails may be construed to operate, it has often been decided here that it did not extend to cure an omission to state the very substance and git of the action. In addition to the cases cited at the bar, I will beg leave to add the case of Francisco v. Winston, 2 Wash. 187; which in principle is not unlike the present.

On this ground, therefore, without deciding upon the points adjudged by .the district court at the trial, I am compelled to say, that the declaration is substantially defective, and that the judgment ought to be reversed.

FLEMING, Judge.

I think the evidence ought to have been received ; for although it might not have amounted to *a justification, it would have gone to mitigate the damages. But the quod cum is fatal; for there must be an affirmative charge ; and, although the defect is cured by the writ in the court of common pleas, it is not in the court of king’s bench ; to which the practice here conforms. I am therefore of opinion, that the judgment must be reversed.

CARRINGTON, Judge.

The quod cum was formerly an objection ; but the modern authorities have shaken it. I think it is sur-plusage merely, and cured by the act of jeo-fails. The court does not usually reverse because there is too much, but because there is too little, in the declaration; for in the first case the redundancy is expunged, and the substantial parts preserved. Thus in Chichester v. Vass, 1 Call, 83 ; Winston v. Francisco, 2 Wash. 187 ; and Cook v. Simm, 2 Call, 39, there was a defect, and not an excess, of matter. But in no case has it ever been decided that excess was fatal; for utile per inutile non vitiatur. Strike out the quod cum in the present case, and the declaration contains a complete charge. Ought we then, against the spirit and policy of the statute of jeofails, to retain those unimportant words for no other purpose, than to turn the parties round, and put them to the expense and vexation of another suit? I think not. The court, however, erred in not receiving the defendant’s evidence in 'mitigation of damages; and, upon that ground, I am of opinion that the judgment ought to be reversed, and a new trial awarded, with a direction to the district court, to receive the evidence.

LYONS, President.

I think also, that the quod cum is surplusage only ; and.cured by the verdict. Upon that point, therefore, the court is equally divided ; and so far the judgment is affirmed. But the evidence ought to have been admitted; for the plea denied that the plaintiff had any title to the negro ; and therefore it could not, with any propriety, be . said, that the defendant took away a slave belonging to *the plaintiffs. So that although she was taken from the close of the plaintiffs, which the defendant had not authority to do, yet it lessened the gravamen ; and would have reduced the damages sustained by the trespass as to the freehold only, without regard to the value of the slave. The judgment therefore is to be reversed ; and the following is to be the entry :

“This day came the parties by their counsel, and the court having- maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, that the said judgment is erroneous, in this, that the district court refused to permit the evidence offered by the defendants, on the trial of this cause, to prove that the title of the slave, in the bill of exceptions mentioned, was in the defendant Ballard, to go to the jury, which ought to have been admitted in mitigation of damages : Therefore, it is considered that the same be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal aforesaid here. And it is ordered that the jury’s verdict be set aside ; that a new trial be had in the cause ; and that, on such trial, the defendant be permitted to give evidence in mitigation of damages only, that the title of the said slave was in the said Janies Ballard.  