
    Angus vs. Dickerson.
    Pleading. Counts requiring; different pleas and judgments cannot be joined. 1 Chitty’s PI. 208; 16 Johns. R. 346; 2 Sauud. R. 117.
    Same. Counts in tort or contract. — Where a contract creates the defendant’s duties and obligations, and he is sued for a breach of them, whether counts assigning such a breach, are in contract or tort, depends upon their conclusion,
    SAME. Counts in tort, — A count ascribing to the defendant’s mere negligence and carelessness, the loss of a negro, whom he, as hirer, was bound to re-deliver, is a count in tort, because the loss is laid to the want of care, not to the failure to re-deliver.
    Practice, New Trial. — The court of Errors will not set aside a verdict upon the ground merely of insufficiency of proof.
    Bailment. Hirer’s responsibility — changing service. A hirer of a slave fora specific service is responsible for all damages arising from employing the slave in a different service: as he is also, for a loss occurring while the slave is so employed, though the proximate cause of such loss was inevitable casualty.
    SAME. Changing service — conversion.—It is a fraud upon the rights of the general owner, and a conversion, to put a slave to a service entirely different from that for which he was hired. Story Bail. § 413.
    SAME. Where there is a general hiring, the hirer is responsible only for ordinary neglect.
    On the 21st of August, 1833, Joel Lane made a bill of sale of a slave named Ned to Achilles A. Dickerson, the execution of which having been duly acknowledged, it was registered. Afterwards Lane filed a bill in the chancery court against Dickerson, charging that this sale, though evidenced by an absolute bill of sale, was in fact conditional, and that the negro had been delivered to Dickerson as a security, for a sum of money loaned him by Dickerson. This suit was decided both in the chancery and supremo court against Lane. On the 16th of March, 1835, while this bill was still pending, Dickerson hired the negro to James Angus to drive his wagon and team, for nine months; and for the hire Angus gave his note of that date payable on the 25th of December. The negro, it seems, desiring to live with Lane, put himself into his possession on the morning of the day on which he was to go, and while on his way, to Angus. When they came to the house of the latter, Lane told him that he had taken possession of the negro as his own property; but that, as Angus was responsible to Dickerson- for his hire, he, Lane, would secure the payment of it in one month, and in che mean time, would keep the negro, paying hire for that time, and surrender the negro to Angus at the end of it, if he failed to give the security. To this Angus assented, but Lane failed to give the security or to surrender the negro, but kept him and refused to deliver him to Angus, who made several unsuccessful attempts to obtain the possession of him. While thus in Lane’s possession, and after the expiration of the period of the hiring to Angus, namely, about March, 1336, the negro sickened and died. The note for the hire was assigned by Dickerson, and paid to the assignee by Angus at maturity.
    On the 9th of January, 1836, Dickerson sued Angus in Giles circuit court in case. His declaration contained seven counts, three of them in trover, and the rest special counts in case, in which the contract of hiring and the breach of it by failing to re-deliver the negro to the plaintiff was stated; each of them concluding with the averment, that by and through the mere negligence and carelessness of the defendant, the negro ivas totally lost to the plaintiff,, and never came again to his possession, fyc.
    
    The defendant pleaded not guilty, and issue was thereupon joined.
    On the trial at February term, 1838, before Judge Dil-lahunty, and a jury of Giles, the evidence submitted to the jury presented the case substantially as it is above stated.
    His Honor summed up his charge to the jury in the following words — “If Angus hired the negro for a special purpose, and put him to a purpose totally different from that authorised by the contract, this would be a fraud on the rights of the general owner, and would be a conversion. If there was no special contract, but a common or general hiring, then the defendant would be bound to take ordinary care of the negro. And if they believed that Angus hired the negro to Lane, and that this hiring was such an act as a man of ordinary prudence, under the same circumstances, would have done with his own negro, then it would not be a conversion. But if under the circumstances of th.e case, they believed that it was such an act as a man of common sense and common prudence would not have done, then such act would be a conversion itself.”
    The jury found the defendant guilty; and his motions for arrest of judgment and for a new trial having been successively made and overruled, he appealed in error.
    Janaury 21, 22
    N. S. Brown for plaintiff in error,
    said, it was a part of the contract of the hiring that Dickerson was to deliver the negro to Angus. This he failed to do; therefore he is the first wrong-doer himself. He cannot come in now and enforce a contract, when by his own showing there are on his part unperformed conditions, precedent to performance on part of defendant. The defendant was not bound to use any means whatever to recover the possession of the negro in the first instance. For the construction of such contracts, and obligations arising under them, see Chitty on Con. 273-74; see also 1 Saund. 320; 1 Chitty on PI. 230, 277; Tidd’s Practice, 440, 445; Selw. N. P. 5 ed. 107, 108; Lawes on PI. c 5 and 6; see also 2 Taunt. 325, n.
    The same rule holds in the case of a concurrent consideration or mutual contract to be performed at the same time.
    The contract of Angus with Lane, that he might hire the negro for one month, cannot be construed into an ownership over the negro. The contrary appears by the facts. Angus had repeatedly endeavored to obtain possession of the negro from Lane, under an apprehension that he would be liable to Dickerson for him; and he surely had a right to secure such indemnity as lay in his power. This contract was not by his own free volition. It was a choice of evils forced upon him by Lane.
    But the period of Angus’ liability to Dickerson being fixed to the delivery of the negro into his possession by Dickerson, according to the contract of hire, no act of Angus’ before the negro came to his possession could be equivalent to it. His right to the negro was an inceptive one, which he could have enforced by law against Dickerson, but which could not be rendered equal to possession, by his assuming to dispose of him to a third person. In yielding this temporary use of the negro to Lane, (if yielding it may be called) Angus surrendered nothing that would not have been exacted from him by Lane without any contract. He acted under duress, and a mistaken notion of his obligations to Dickerson; and it would be as well to frame a law out of his legal apprehensions, and make it operate against his rights. As well might A, who had by accident taken the life of B, be convicted of murder merely because he believed it was murder. This would be at once adopting the fears and apprehensions of men as the measure of legal rights on the one hand, and legal liabilities on the other. It would be levelling down the grave administration of the law to the touchstone of ignorance and caprice, and making the vague notions of right and wrong among men the law of the land. So much for constructive possession of the negro by Angus.
    2. Assuming in the second place, that Angus had possession of the negro, it remains to be inquired what was the extent of his liability according to the facts. It is a well settled principle, that the hirer of property is only bound for ordinary diligence, and of course is responsible only for ordinary negligence. See Jones on Bail. 86, 87, 120, and Story on Bail. 264, 265, 266.
    “‘Also, if the thing hired is lost by inevitable casualty, or y superior force, and without any fault of the hirer, he is exonerated from all risk.” See Story on Bail. 269, and 3 Burr. 1592. “So, if the loss be not strictly inevitable, but there has been no omission of reasonable diligence on the part of the hirer.” Id.
    
    Under a contract of hiring, the hirer acquires a special property in the thing hired, during the continuance of the contract. He can maintain an action for any tortious dispossession of it, even against the owner himself. The owner parts with his whole property in it for the time being. Cannot the hirer appropriate the thing hired as he pleases, so he uses ordinary diligence in preserving it, and no injury happens to it by his neglect? Cannot he, therefore, being the sole proprietor for the time being, hire it to a third person, being responsible for neglect in that third person? And if, as in this case, the property perishes in the hands of the second hirer, and never returns to the owner, and ordinary diligence was used to preserve it, how can the first hirer be responsible? In this case the negro died. This is an inevitable casualty: all due means were employed to preserve him. There was no neglect either on the part of Angus or Lane. His death was not caused by any want of diligence. The diligence or neglect of Lane is the diligence or neglect of Angus; for he stands in the relation of agent to Angus for those purposes. Where then is the fault of Angus? Surely not in his neglect of the negro; he is not responsible for his death. His fault, if any, consists in the detention of the negro beyond the expiration of the term of hire; but he is not to be answerable on this account for the value of the negro. The value of his time during that detention, would be the only proper measure of damages. See M’Neill vs. Brooks, 1 Yerg. 73.
    Comes on the same side,
    insisted, 1, that the court erred in refusing to arrest the judgment on account of a misjoinder of causes of action. 1 Chitt. Rep. 619, Thomas vs. Pearce; 1 Chitty’s Pleadings, 180, 182; 1 Salkeld, 10; 1 L. Raymond, 272-3; 2 Saunders, 117.
    If a count be for nonfeasance and breach of contract, it will be taken to be in assumpsit and cannot be joined with a count in trover. 1 Chitty’s Pleadings, 180; and for the consequence of a misjoinder, see 1 Chitty’s Pleadings, 188.
    2. The jury were misdirected by the court in this, that they were charged, that if Angus hired the negro for a particular purpose or use, and during the time of the bailment, put the negro to any other purpose or use, this would be a conversion, and Dickerson would have a right to recover in trover without any demand of the negro. To show that this was a mistaken direction of the law, see Gordon vs. Harper, 7 Term Rep. 9; M’Neill vs. Brooks, 1 Yerger, 73; Caldwell vs. Cowen, 9 Yerger, 262.
    Wright for the defendant in error.
    1. Case and trover may be joined in the same action. The form of the action is the same, the same plea may be pleaded, and the same judgment given on all the counts in the declaration. 1 Chitty’s PI. 179, Í24; Govett vs. Radnidge, 3 East, 70; Brown vs. Dixon, 1 T. Rep. 173.
    The other counts in this declaration joined with the counts in trover are well framed, and are properly special counts in case, founded upon a tortious negligence or breach of duty in the defendant. In all actions upon a simple contract, whether express or implied, it is at the election of the plaintiff to frame bis declaration in case or assumpsit. The gravamen of the action in the one case consists of a breach of duty; in the other, in a breach of promise. Brown vs. Dixon, 1 T. Rep. 273; Comyn on Contracts, 21; Dickon vs. Clifton, 2 Wils. 319; Coggs vs. Bernard, 2 L. Raym. 909. See precedents in 1 T. Rep. 273; 2 Lord Raymond, 909; 1 Ch.PI. 122, 3; Govett vs. Radnidge, 2 East, 70; 1 Ch. P. 129, 5th A.merican from 4th London edition; Dearborn vs. Dearborn, 15 Mass. Rep. 31b; Gilbert vs. Williams, 8 Mass. 51; Church and Demitt vs. Munford, 11 Johns. Rep. 479. The nature of the defendant’s undertaking and duty should be distinctly averred; at all events the averment will not vitiate the counts. 1 Ch. P. 331; Elsee vs. Gatward, 5 T. Rep. 144; Stoyell vs. Westcott, 2 Day’s Rep. 418; Bulk-ley vs. Storer, 2 Day, 531; Samuel vs. Judin, 6 East, 333, in point; 2 Chitty’s PI. 651; precedents 651, 652, 653, notes e. p.; 2 Ch. PI. 654, 663, 664, 669, 670. The declaration in 12 East, 452, was admitted to be in tort; Hallack Powell, 2 Cain’s Rep. 216; Mast vs. Goodson, Black. 848.
    The court, will sustain the verdict if possible. 2 Cain’s Rep. 217, 218.
    If all the counts are in tort and some only are defective, the verdict will be sustained. 1 Ch. PI. 179; 6 East, 331, 335; 2 Term Rep. 205; Peck’s Rep. 318; Act 1801, c. 6, §63.
    
      2. It is very dear from the proof that Dickerson hired and delivered this negro to Angus, and that Angus in point of fact and law, received him and took upon himself the duties and obligations of a hirer. In order to constitute a good delivery, it is not necessary that there should be an actual manual reception of the chattel by the vender. Undertaking to deal with the property as his own, either wholly or for a time, will have the effect. Chaplin vs. Rogers, 1 East, 192; Rice vs. Austin, 17 Mass. Rep. 197. This being the case,I contend,
    3. That the hirer of a slave takes upon himself a personal trust, and in the absence of any express authority from the owner, has no power to hire out such slave again. Slaves are a peculiar species of property; in the language of this court “a property in intellectual and moral and social qualities, —in skill, in fidelity and in gratitude, as well as in their capacity for labor.” Henderson vs. Vaulx and wife, lOYer. Rep. 37, 38, 39; State vs. Thompson, 2 Tenn. Rep. 96; principles applicable to this peculiar property must be adopted and enforced. Story’s Com. on Bailments, 368; Boyce vs. Anderson, 2 Pet. Rep. 150. It is against every principle of humanity and sound policy, to permit a person who hires a slave to dispose of him at his own will and pleasure to any and all persons whatsoever. If in the absence of any express limitation, the hirer can dispose of the slave to one person and for one purpose, he may to any and for all purposes whatsoever. Hence, in the absence of any express stipulation, the law comes in and makes it a personal trust.
    4. But the testimony was sufficient to warrant the jury in coming to the conclusion that Angus was restricted from parting with the possession of the negro. “He hired him to ■drive his own wagon and team and for his own use.”
    5. It was a want of that “ordinary care” and prudence in Angus, which the law required he should maintain, to hire the negro to Lane. Angus was therefore guilty of a conversion the moment he hired Ned to Lane, which determined the bailment, destroyed his special property in him, and made him liable thereafter for inevitable accidents. The law is well settled, if the bailee use the thing for a different purpose, or de-hors the contract of bailment, he is liable at all events. JWc-Néill vs. Brooks, 1 Yer. Rep. 73, 74; Story on Bailments, 261, 262, 263, 272, 273. Hence he was liable in case of negligence. 1 Yerger, 73, 74.
    But suppose there was no conversion during the time for which the negro was hired to Angus, and that he was not wanting in care and prudence, in the act of hiring him to Lane, still the case is with me; for
    6. Angus was bound to restore the negro to Dickerson whenever the time for which he was hired expired. If he did not, and he died or was lost by inevitable accident, he is liable. Story 272, 273; 2 Lord Raym. 915; Wheelock vs. Wheelwright, 5 Mass. 104; Isaacs vs. Clarke, 2 Bulst. Rep. 306, 309; Story, 93; Jones on Bailments, 22; note Code Napoleon, Jones, 68; see also note L, 68-70; Jones, 121; see 3d and 4th rules, 121. He is liable on all the counts, either in trover or for a breach of duty. Jones, 49, 5i, also note F; Story, 93, 272, 273; 16 Johns. Rep. 74, 75; 1 Comyn’s Digest, 639. In this case there was an express contract to restore the negro on the 25th of December, 1835; independently of this, the law implies a contract to restore at the expiration of the time. Story, 273.
    No demand was necessary in this case. 9 Johns. Rep. 360, 361; Story, 273. There was a precedent duty. 9 Johns. 361. But suppose there was no bailment of this negro by Dickerson to Angus, suppose the delivery never to have been perfected, and that no special property was created in Angus, still the case is with me; for
    7. Angus was still guilty of a conversion of this negro. He either had a special property or he had not. If he had, the propositions before taken are sustained; if he had not, he had no right to intermeddle with the negro. Any intermed-dling with property, or the exercise of any dominion over it, subversive of the dominion of the owner, is evidence of a conversion. 1 Comyn’s Digest, 439; Reid vs. Colcock, 1 Nott and M’Cord; Kinder vs. Shaw, 2 Mass. 398: Barton vs. White, 1 Har. and Johns. 519; Bristol vs. Hurt, 7 Johns. Rep. 254; 10 Johns. 172; 14 Johns. 128. To constitute a conversion, it is not necessary to show a manual taking of the thing in question; nor that the defendant has applied it to his own use; but any unauthorised disposition or dominion over it will be a conversion. Bristol vs. Hurt, 7 Johns. Rep. 254; 7 Johns. 304; Bisset vs. Drake, 19 Johns. Rep. 66; 4 Taunton, 24.
   Green, J.,

delivered the opinion of the court.

1. The first question is, whether there is a misjoinder of counts in this declaration.

The first three counts are in trover, and it is contended in behalf of the plaintiff in error, that the other four counts are in assumpsit, and are improperly joined with the counts in trover. It is clear that counts requiring different pleas and different judgments, cannot be joined in the same action, and such are trover and assumpsit, 1 Chitty Pl. 208; 16 John. R. 146; 2 Saund. R. 117.

Whether the four last counts in the declaration are as-sumpsit, or case, depends upon a distinction not very obvious. In either case, the contract must be set out correctly as it existed, by which the negro came into possession of the party, and by which his duties and obligations were created, and the difference exists in the conclusion, or assignment of the breach.

“In an action on the case, ex contractu, the contract and its violation is the gist of the suit, and the injury sustained thereby, is collateral thereto; and in an action on the case, ex delicto, the wrong done, either by misfeasance, malfeasance, or nonfeasance, is the gistof the proceedings, and the contract collateral thereto.” Baxter & Hicks vs. Pope MS.

Note. There was another point determined in this cause, which, however, is beside the purpose for which it is now reported. The plaintiff had examined a witness, and he had been allowed to retire. He was afterwards recalled by the defendant, and asked a question, on answering which, the plaintiff propounded a question to him, the answer to which was designed to impeach his credit. This was objected to by the defendant, but his Honor, the circait judge, allowed the question to be put; and then allowed the plaintiff to introduce other witnesses to prove that the witness in question had made to them statements differentfrom his present testimony. This court decided that this was erroneous, upon the well settled principle, that a party who introduces a witness cannot impeach his credit. But they expressly left undecided the question — Whether when the defendant recalls the plaintiff’s witness, and proves by him a substantive matter of de-fence, the plaintiff may not assailhis credit'?

Judging these counts, (for they are all substantially alike,) by these rules, we think they are in form ex delicto, and are well joined with the counts in trover. The conclusion of the last count is, “that the defendant did not, nor would, re-deliver the said last mentioned negro man Ned to the said Achilles A., on the said 25th of December, in the year 1835, or at any time hitherto; but on the contrary thereof, has hitherto wholly neglected so to do; and took such little and such bad care of the said last mentioned negro Ned, that he, the said negro Ned, by and through the mere negligence and carelessness of said James in this behalf, is totally lost to the said Achilles A.” Here the loss is charged as having been produced by the want of care, the negligence and carelessness of the defendant, and not as the consequence of his failure to deliver the negro. Hence the gist of the charge is the wrong done by the malfeasance of the defendant, and the contract, as stated, is merely collateral. The action, therefore, is in form ex delicto, in all the counts.

2. it is insisted that Angus never had possession of the and therefore is not liable.

Upon this point the charge of the court is not complained of; but it is said there was not sufficient evidence to have authorised the jury to arrive at the conclusion, that possession had been acquired by the defendant. We do not feel called upon to criticise the testimony, inasmuch as there was proof conducing to show that the possession had been taken by the defendant. This court will not set aside verdicts upon the ground merely of the insufficiency of the proof.

3. It is next insisted that there was no act of Angus that ought to be regarded as a conversion of the negro.

Upon this point the court charged the law correctly, that “if Angus hired the negro for a special purpose, and he put him to a purpose totally different from that authorised in the contract, this would be a fraud on the right of the general owner, and would be aeon version." See Story on Bailments, § 423, p. 272-3.

It was left to the Jury to say from the evidence, whether it was a special hiring; and whether the property was employed in a manner different from the purpose for which it was hired. There was evidence conducing to prove that Angus had hired the negro specially to drive his wagon.

If that were so, and he afterwards hired him to Lane, it would be a violation of his contract, and a conversion of the property. An owner of a slave might be very willing to hire his servant to A. to drive his wagon, and at the same time would by no means agree, that he should be employed under B. to drive his wagon. Hence, if there be a special stipulation in the contract of hiring as to the description of labor the servant is to perform, and the hirer employ him in an entirely different kind of service, he is responsible for all damages, and if a loss occurs, although by inevitable casualty, he is responsible therefor. Story onBailments. § 413.

The court also told the Jury in substance, that where there is a general hiring, the hirer was only liable for ordinary ne-gleet; and that if the facts of this case showed such general hiring, and the defendant had acted as a man of ordinary sense and prudence would act with his own property, he was not liable.

The whole case was thus fairly before the Jury, and had the verdict been either way, we should not have felt authorised to disturb it.

Lot the judgment be affirmed. 
      
       BAXTER HICKS vs. POPE. — Pleading. Rule to distinguish between counts in case ex contractu and ex delicto. In. the former, the contract and its violation are the gist of the suit, — the injury sustained thereby is collateral thereto. In the latter the wrong done, whether by misfeasance, malfeasance or nonfeasance, is the gistof the action, the contract collateral thereto. — Practice. Wit-nesSy by whom credit of cannot be impeached. The party who introduces a witness cannot ask him a question tending to impeach his credit. But if the defendant use a witness of the plaintiff to prove a substantive matter of defence, may not the plaintiff impeach his credit?
      Turley J. delivered the opinion of the court.
      This is an action on the case in form ex delicto, against the hirer of a negro man for not returning him at the expiration of the term for which he was hired.
      It is objected, that there is a misjoinder of actions in the declaration. It is a principle too well settled to admit of dispute that actions which require different pleas and different judgments, cannot be joined, — such as those in which the pleas are nob guilty and non assumpsit, and the judgments are quod, capiatur and in misrecordia; and that this objection is good in arrest of judgment and on writ of error. 1 Chitty Plead. 208; 16 Johnson 146; 2 Saund. 117. Whether there is* in this case, such a misjoinder, depends entirely on the construction to be given to the second coant in the declaration. All the rest are in form, case ex delicto; but this, it is contended, and we think successfully, is in assumpsit.
      
      It is sometimes difficult to distinguish with certainty between a declaration in an action on the case in form ex contractu, and in form ecc delicto. A good rule to solve the uncertainty is this, that in an action on the case ex contractu, the con" tract and its violation are the gist of the suit, and the injury sustained thereby is collateral thereto; and in action on the case ex delicto, the wrong done, whether by misfeasance, malfeasance or nonfeasance, is the gist of the proceedings, and the contract collateral thereto. And the question is — whether this count is fram" ed on the contract to hire and return, or on the negligent conduct of the plaintiff in error, by which a loss has been sustained by the defendant in error?
      This count is in substance — “That the plaintiff'below, at the special instance and request of the defendants, let and delivered to them a male servant of the value of one thousand dollars, to be had and used by them for a certain price, then and there agreed upon; and in consideration of said agreement and said price» the plaintiff then and there delivered said servant to said defendants to hire for one year, and then and there agreed with said defendants, that atthe expiration of said term, said servant was to be re-delivered by the defendants to the plaintiff.” And the breach assigned is on. the promise, viz. ‘‘That although the time for the hire of said servant had expired, and although the defendants had been often requested to deliver him, yet, they, not regarding their duty and promise so made in this behalf, but contriving* to deceive, injure and defraud, had not delivered said servant to said plaintiff; by means of which he has wholly lost the use of said servant, and sustained damages to the amount of §1000.”
      It is hard to conceive that this is not an action brought for a breach of the contract to re-deliver; and the declaration appears to us to be, iu substance, a copy of the forms in an action of assumpsit against a bailee, given in 2 Chitty’s PI. from page 339 to 156.
      
      The precedents in an action on the case in form ex delicto against a bailee, may be seen in 2 Chitty’s PI. 311 et seq., in which it will be seen that the breach assigned is not of a contract, but of the performance of a duty, of the defendant, which consists always either in a nonfeasance, misfeasance or malfeasance. We therefore think that there is a misjoinderof actions in this case, and that the judg« ment must be reversed and arrested.
     