
    
      Moore's Administrator v. Dawney and Another, Administrators of Bell.
    October, 1808.
    Trespass — Gist of Action Must Be Laid — Pleading by Recital — Effect of Verdict. — The gist of the action must, in all cases, be directly and positively averred., in the declaration: therefore, if, in trespass the plaintiff declare “for that whereas, ” &c. and do not make a positive averment, it is error, and will not be cured by verdict.
    Same — Against Sheriff for Acts of Deputy,  — An action of trespass lies against- a High Sheriff for the tortious act of his deputy, as such.
    Same — By Administrator — Verdict.—If an administrator declare (in trespass) that the defendant with force and arms, entered his (the plaintiff's) close, and took there from, certain slaves belonging to the estate of his intestate, it will be intended, after verdict, that the trespass was committed on the plantation of his intestate, and that the plaintiff was in possession thereof, for the purpose of finishing the crop, by virtue of the act of Assembly, (Rev. Code, 1 yol. c. 92, s. 46, p. 166.)
    Gifts -By Father to Daughter — In Consideration of llarriage — Case at Bar.- A father possessed of an ample fortune having sent certain of his slaves, immediately after the marriage of one of his daughters, to her husband, in whose possession they remained, without interruption or claim, until his death, which happened two years and four months afterwards; it will be presumed, (no proof of fraud appearing,) that such slaves, being no more than a reasonable provision for the daughter at the time, were a gift in consideration of the marriage; and the right of the representatives of the husband is good against the creditors of the father.
    The appellees, in their character of administrators of Thomas Bell, deceased, brought an action of trespass in the District Court of Fredericksburg, against the appellant’s testator, in his life-time, as late High Sheriff of Orange County; and declared, “for that whereas,” G. U. Grasty, one of his deputies, under colour of an execution, in behalf of a certain John Allen, against the goods and chattels of a certain Zachariah Burnley, with force and arms, entered the plaintiff’s close, and took and carried away therefrom, eight slaves, by name, belonging to the estate of their intestate; concluding, in the usual way, to their damage of 3,0001. Plea, not guilty.
    At the trial, a demurrer to the evidence was filed, from which it appeared, that Thomas Bell, the plaintiff’s (now appel-lee’s) intestate, in the month of December, 1795, intermarried with Sally, the daughter of Zachariah Burnley; that immediately after the marriage, Burnley sent the slaves in the declaration mentioned, to the said Thomas Bell, in whose possession they remained till his death, in April, 1795, a few days previous to which his wife died; that, after the death of Thomas Bell, viz. on the 23d of May, 1798, an execution was issued from the Clerk’s office of the District Court of Fredericksburg, at the instance of John Allen, against Zachariah Burnley, upon a judgment of that Court rendered in April, 1795, and founded on a contract made in the year 1784; which execution was levied on the *said slaves, then in the possession of the plaintiffs, (the appel-lees,) and who had been possessed of them from the death of the said Thomas Bell, their intestate, as a part of whose estate they had been appraised; that the sale was forbidden by the plaintiffs, of which the Sheriff took no notice, but sold the said slaves in discharge of the aforesaid execution ; that, at the time of the marriage above stated, Zachariah Burnley was possessed of a large fortune; that he had been in the habit of giving each of his daughters, upon their marriage and going to house-keeping, seven slaves, and had frequently declared his intention of making a similar provision for the rest of his children, under like circumstances. Then follows, as a part of the evidence demurred to, a certificate of the Clerk of Orange County, of William Moore’s being, at the time of the service of the said execution, High Sheriff of the said County, and of Grasty’s having been duly qualified as one of his deputies. There is also in the record, a deed from Zachariah Burnley to his son Reuben, dated the 23d of January, 1796, for forty nine slaves; (in which deed the consideration is expressed to be 2,2251.) together with the inventories and appraisements of the estate of Zachariah Burnley, (who died in May, 1800,) and of Thomas Bell.
    The Jury found a verdict for the plaintiffs, for 4321. damages, subject to the opinion of the Court upon the demurrer to evidence.
    On argument of the demurrer, the District Court gave judgment for the plaintiffs (the appellees) for the damages assessed by the jury, together with the costs. From this judgment Moore took an appeal, pending which he died; and it was revived, by consent, against his administrator.
    Warden, for the appellant, relied on the following points:
    1. That an action of trespass would not lie against the High Sheriff, for the act of his deputy. The officer who takes the property is alone liable. Trespass is an immediate injury, and the person who commits it, is answerable for his conduct. On this point, he referred to Dalton’s Sheriff, *105, who cites Keilway 119, 120; Roll. Abr. 552; O. 9, translated and incorporated in 20 Vin. Abr. 458, pi. 9, Ibid. 459, pi. 1, Ibid. 460, pi. 1.
    2. That an administrator, as such, cannot be possessed of a close which may be broken; for which trespass quare clausum fregit will lie. The gist of the action is the breaking of the close; the taking after-wards is like any other taking. If Bell had, by his will, devised lands to his executors to be sold, that circumstance should have been stated, and that thus it become their close. But no property whatever is alleged in this declaration; and that omission is fatal even after verdict, 
    
    3. That slaves being living things, and rational, as we must intend, could have no value; but might have had a price. If, in a declaration, you state the value of a living thing, it is fatal,  This holds good, as well in trespass as detinue.
    On the merits, he contended, there was no proof of any gift of the slaves to Bell, so as to make his possession of them an exception to the general provisions of the law concerning gifts of slaves.
    
    Williams, for the appellees. In this case, Mr. Warden seems to suppose that he is at liberty to except, as upon a special demurrer. He ought to recollect, however, that it is a demurrer to evidence; which will be considered by the Court as a general verdict. This is the law, both of England, and this country, 
    
    The first objection of Mr. Warden, is to the action itself, in being brought against the High Sheriff for the act of his deputy. After the decisions of the Courts of England, in Saunderson v. Baker and Martin  in the Common Pleas, of Ackworth v. Kempe in the King’s Bench, and of James v. M’Cubbin in this Court, the question is for ever at rest. In the case in Douglas, all the authorities were reviewed, and those relied on by Mr. Warden, were expressly overruled.
    *As to the exception that the appel-lees, in their character of administrators, could not have a close, it is unnecessary to be considered, on the general doctrine. This is a case where they were authorised and required to retain possession, under the particular provisions of our own laws, for the purpose of finishing the crop: and if a case can be made out which will support the action, the Court, after a general verdict or demurrer to evidence, will presume it was proved to the Jury. Even admitting that some parts of the declaration state improper grounds of action, yet there are others clearly good, and, after verdict, the Court will intend that the Jury gave damages for the actionable parts only of the declaration.
    
    The objection, that no property is stated in the plaintiffs, arises from a misconception of the effect of the declaration. But whether it be so or not, is immaterial after verdict,  So, with respect to price or value; if both had been omitted, it would have been aided by the statute of jeofails. In detinue, where you go for the specific thing, it is necessary to state the place or value; and the omission, on special demurrer, might be fatal; but in trespass or trover it is not material, 
    
    It may be said that the administrators should have declared in their own names. To this objection it may be answered, that wherever the property, or damages, if recovered, would be assets, it is not error to declare in the character of representatives of the deceased. Indeed, the plaintiff may declare in either way. 
    
    It will probably be contended, that, this being a declaration in trespass, the word whereas, in the commencement will vitiate it. But since the decision of the Court of King’s Bench, in Douglas v. Hall,  and of the Common Pleas, in White v. Shaw, the law has been considered as settled, that it is well enough after verdict.
    *The merits of the case are clearly ■ with the appellees. From the facts stated in the demurrer to the evidence, a Jury ought to have inferred, and the Court will presume a gift to Thomas Bell; consequently, the continued possession in him, excepted the case from the operation of the statute to prevent fraudulent gifts of slaves,, and the taking by the Sheriff was clearly a trespass.
    Randolph, in reply. The declaration charges an entry into the plaintiffs’ close, and taking away slaves belonging to the estate of their intestate. This, then, is a mixed demand, for an injury done to the plaintiffs and to their intestate. The damages for breaking the close, belong to the plaintiffs in their own right; those for taking away the slaves would be assets. No principle is better established than that you cannot join in the same action, a demand in your own right, and in a representative character. It is said, however, that the slaves were employed on the land of the intestate, in finishing the crop. This is not stated in the demurrer to evidence, nor can it be presumed.
    But the quod cum in the declaration, is decisive of the question. This Court has decided, during the - present term,  that the quod cum in a declaration in trespass is fatal.
    
      
       Pleading — Trespass—Pleading by Way of Recital-Statute of Jeofails. — On this question the principal case is cited in foot-note to Winston v. Francisco, 2 Wash. 187; foot-note to Chichester v. Vass, 1 Call 83; foot-note to Hord v. Dishman, 2 Hen. & M. 595; Ballard v. Leavell, 5 Call 531; Fall v. Overseers of Augusta, 3 Muni. 509; Lomax v. Hord, 3 Hen. & M. 271;'Farmers' Bank v. Clarke, 4 Leigh 609; Burton v. Hansford, 10 W. Va. 476: Battrell v. Ohio River R. Co., 34 W. Va. 233. 234. 12 S. E. Rep. 700; Spiker V. Bohrei. 37 "W. Va. 263, 264, 16 S. E. Rep. 577.
    
    
      
       Sherifi — Liability for Acts of Deputy. —The principal case is cited in .foot-note to James v. M’Cubbin, 2Call 273; Meshy v. Mo-shy, 9 Gratt. 604, 605; Garrett v. Hutchinson, 86 Va. 875, 11 S. E. Rep. 406. See mono-graphic note, on “Sheriffs and Constables" appended to Goode y. Galt, Gilm. 152.
    
    
      
      Gifts -In Consideration of Marriage. — The principal case is case is cited in Ü ayes v. Jones, 2 Pat. & H. 603. See monographic note on "Gifts" appended to Barker v. Barker, 2 Gratt. 344.
    
    
      
       3 Mor. Att. Vade Mecum, 236, tit. Pleading's in Trespass, div. 9.
    
    
      
       Style’s Rep. 182, Dell and Brown.
    
    
      
       See Rev. Code, vol. 1, c. 103. p. 192, s. 47, 48.
    
    
      
       ) 2Wash. 203, Stephens v. White.
    
    
      
       2 Wm. Black. 832, 3 Wils. 309, S. 0.
    
    
      
       Doug. 40.
    
    
      
       2 Call, 273.
    
    
      
       See Rev. Code, vol. 1, c. 92, p. 166, s. 46.
    
    
      
      See 2 Johnson’s (N. Y.) Rep. 283, Steele v. Western Inland Lock Navigation Company; Ibid. 442, Phetteplace v. Steele, and the cases there cited. —Note in Original Edition.
    
    
      
       1 Ld. Raym. 239, Eontleroy v. Aylmer, 6 Bac. .Abr. Gwil. ed. 600.
    
    
      
       20 Vin. 535, pi. 4, 2 Wash. 192, Pearpoint v. Henry.
    
    
      
       4 Term Rep. 277, 281, Cockerill and wife, Executrix of Moody, v. Kynaston.
    
    
      
       1 Wils. 99.
    
    
      
       2 Wils. 203.
    
    
      
       Hord v. Dishman, vol. 2, p. 595.
    
   [JUDGE ROANE.

There was some difference of opinion on the point, whether the quod cum would be fatal after verdict. In the case of Hord v. Dishman, there was a general demurrer filed by the plaintiff to the defendant’s plea.]

Randolph. There can no difference on this point, between a general demurrer and a verdict. So much dignity is attributed to a verdict, only from the presumption that the Jury have drawn all the necessary inferences from 0the evidence.

*Eriday, October 28. The Judges delivered their opinions.

JUDGE TUCKER.

Several exceptions were taken to the declaration, by the counsel for the appellants.

1. That an action of trespass does not lie against a High Sheriff for the act of his deputy, as such.-

If I had ever entertained any doubt upon this point, the case of Saunderson v. Baker, and the decision of the Court in James v. M’Cubbin, must have removed it. The law looks upon the Sheriff and his officers as one person: he is to look to his officers that they do their duty; for if they transgress, he is answerable to the party injured by such transgression; and his officers are answerable over to him.

Administrators, as such, may, by possibility, have a close, under our act of 1792. but I consider that part of the declaration merely as an inducement to the trespass in taking- the slaves. Were it otherwise, the -Court, after verdict, would intend that the administrators were in possession of their intestate’s plantation and slaves, under that -act.

The blank in the declaration, and the different modes of spelling one of the negroes’ names, in the declaration and in the demurrer to evidence, are of no importance. The Court ought to understand the evidence, as a Jury would in such a case.

As this case was decided entirely upon the merits of the case stated in the demurrer to evidence, in the District Court, I -shall notice them.

It was an action of trespass, for that one G. B. Grasty, a deputy of the defendant, under colour of an execution against the «state of Zachariah Burnley, entered the -close of the plaintiffs and took and carried away from them certain negroes. Plea, not guilty. A demurrer to the evidence was filed in the cause, which stated, that in December, 179S, Thomas Bell, testator of the plaintiffs, intermarried with Sally Burnley, daughter of Zachariah Burnley. That, immediately after the marriage,the said Burnley '"'sent the slaves in question to the said Thomas Bell. That they remained in Bell’s possession till his death in April, 1798, a few days before which his wife died. That, on the 23d -of May, thereafter, an execution issued from the office of the District Court of Fredericksburg, at the instance of John Allen, against the said Zachariah Burnley, founded on a judgment obtained at April Court, 179S, which execution was levied on the said slaves. That the sale thereof was forbidden by the plaintiffs, in whose possession they were and had been from the death of Thomas Bell. That, at the time of the marriage between Bell and Sally Burnley, Zachariah Burnley, her father, was possessed of a large fortune, consisting of fifty-odd slaves, &c.

There is some other loose testimony stated respecting the provision which Burnley had made for other daughters, when they were married, and the nature of that provision, whether absolute, or only by way of loan. Zachariah Burnley died in May, Í800.

It appears to me that the delivery of the negroes to Bell immediately after the marriage, may well be presumed to have been made in consideration of the marriage; and, the possession having remained with Bell from that time till his death, no presumption of fraud arises upon that transaction. And, as the demurrer to evidence admits that Burnley, at the time of the marriage, had a large fortune in possession, that circumstance is sufficient to rebut any presumption of fraud arising from the obtaining a judgment in the District Court. That judgment does not appear to have been followed by an execution against Burnley’s ■estate, at any time before the marriage, nor at any time after, within the year. The personal chattels of Burnley were not bound thereby, unless an execution was ■actually taken out and delivered to the Sheriff. There being no legal lien upon the .slaves in consequence of the judgment, there could be no legal impediment to a fair disposal of them: the provision made for his daughter does not seem exorbitant; it must be considered then as a fair disposition of the negroes to her. *And being so, the property therein could not be subject to an execution sued out more than three years after the judgment. By what means the right of suing out the execution at that time was kept alive, or whether it was kept alive, does not appear; nor can the Court presume any thing about it, except that, if an execution had been taken out, and delivered to the sheriff before the marriage, so as to have bound the property of the slaves as the property of Burn-ley, it is not probable that so important a fact would have been omitted upon the trial of this cause. I continue of the same opinion as formerly upon this point of the case.

It was, however, noticed at the bar, though not by the leading counsel for the appellant, that this declaration, like that in Hord v. Dishman, a few days past, begins with a whereas, although the action is in trespass. This, we have decided, was an incurable defect upon a general demurrer. The inclination of my mind, then, was to hope that it might be aided by our statute of jeofails after a verdict. But, I am reluctantly compelled to abandon that hope. After an attentive consideration of the principles settled in this Court, in the cases of Winston v. Francisco, Chichester v. Vass, and Cooke v. Simms, lam convinced we cannot sustain- this declaration. In every action at common law, there must be an affirmative and a negative, to make an issue. Here there is no affirmative; the whole declaration is mere recital; leading to an affirmative, but not containing one. And, though the statute of jeo-fails will aid many omissions after a verdict, it will not cure the defect in a declaration, in which the very gist of the action, is omitted to be charged.

It is much to be lamented that the inattention of gentlemen of the profession to their pleadings should so frequently defeat the substantial justice of their clients’ causes; as many late decisions in this Court prove. The publication of them it is to be hoped will operate as a warning to them in future, not to sacrifice their clients’ interests, by a degree of negligence, inattention, or want of skill, which it is difficult to excuse.

*'In the present case, I feel myself mortified to decide against the real merits of the case; but, for the reasons which I have already alleged, I am compelled to say that the judgment of the District Court must be reversed for this fault in the declaration, and judgment rendered for the defendant, the appellant.

JUDGE ROANE

said, he did not know that he should differ with the Judge, who had preceded him, on the merits of the case; he believed he should concur. But having delivered his opinion, in full, in two former cases, and declared that such a declaration as this could not be supported, he did not deem it necessary to consider the other points in the cause.

JUDGE FLEMING

observed, that it was much to be regretted that so good a cause as this, should be lost by defective pleadings. But, on the authority of cases decided both in England and in this country, particularly one during the present term, the Court felt constrained to decide, that the judgment must be reversed. 
      
       3 Wils. 309, 2 W. Blacks. 832, S. G.
     
      
       2 Call, 273.
     
      
       Per Black, J., in 3 Wils. 317, 2 W. Black. Rep. 834. See also Doug. 40; Cowp. 403, Cameron et al. v. Reynolds.
     
      
       Rev. Code, vol. 1, c. 92, s. 40, p. 106.
     
      
      0>) 2 Wash. 187.
     
      
       1 Call, 83.
     
      
      tl) 3 Call, 39.
     
      
       Ballard v. Leavell, M. S. and Hord v. Dishman, ante, vol. 2, p. 595.
     
      
       Hord v. Dishman.
     