
    
      Daniel vs. Holland.
    
    
      May 3.
    
    Error to the Trigg Circuit; Ben. Siiaclelfokd, Judge.
    
      Trespass. Possession. Personalty. Realty. Averment-Executors. Administre tors. Fraud.
    
    TRESPASS-CASE8,
   Chief Justice Robertson,

delivered the opinion of the court.

This is an appeal fi om a judgment in favor of Augustine W. Holland, for §¡727, rendered in an action of “trespass,” brought by him against, George Daniel, for taking, and conversing to his own use, a man slave, named Hardy, “ belonging to the plaintiff A

The defendant filed two special pleas, alleging, in substance, that as deputy sheriff, he levied on, and sold the slave, in virtue of a fieri facias in his hands, against Drury C. Holland, who was the owner of him.

A. W. Holland took issue on these pleas, by averring that the slave belonged to him, and not to D. C. Holland.

•The main question presented by the record, is, whether the evidence authorized the verdict. But the pleadings furnish some preliminary and minor points for consideration, and which will therefore, be first noticed.

The declaration is drawn unskilfully. But the counsel for the appellant, is mistaken, in supposing, that it is in trover. It is expressty in “trespass.” The allegation, that the appellant “converted” the slave, was superfluous, except for aggravation. But it is not fatal. It does not change the form of the action. The force in taking, might have been waived, and Case for trover maintained; But, when the declaration is in tresspass, no allegation, can convert the action into case.

The gist of trespass is force, that of trover is a conversion without force. The plaintiff, in this case, might íiave brought either trespass or trover. He elected' to bring trespass, álihougli, in such an action for an injury to, or asportation of, personal property, it may be customary to aver, that the plaintiff had actual possession at the time of the t> espass, yet such an allegation is not indispensable. There is nosuch averment in this declaration; and this omission is supposedly the appellant’s counsel, to be fatal.

In trespass to personalty, a-verment ‘that plaintiff wa3 inpossessio; at. time of tres- . pass,” is not necessary.

Person in ac« lual possession may maintain trespass. No otherthan the person in possession can maintian trespass, for forcible intrusion on land. Owner of the fee cannot maintain tres* pass for entry on his land, whilst in the possession of another. It seems a declaration for trespass on law!, should aver “that plaintiff was in possession when trespass was committed.”

To mantain trespass for injury lo person* alty, actual possession is not necessary. Where owner of a chattel is neither in possession, not entitled to possession, he cannot maintain trespass for injury to it.

The- person in actual possession, may maintain trespass. No ocher, than the person in possession, can maintain trespass, for a forcibly intrusion on land; because, as trespass is an outrage on the possession, and the injury inflicted by it, is immediate, and not consequential, and as the abstract right in fee to land, does not draw after it the possession, the owner of the fee cannot maintain trespass for an entry, on his land, whilst in the possession of another. Whenever in such a case, he can prosecute any suit for consequential damages, resulting to the freehold, from the trespassof a stranger,he must bring case.

It would seem Lo result as a fair conclusion, that, as no one but the person in possession, when the trespass was commitred, can sue in tr-spuss, for the injury, and as the right to the land does not draw to the owner, the possession, a declaration for a trespass on land should aver, that the plaintiff was in the possession of it, when the trespass was committed.

As the gist of the ac< ¡on is the injury to the possession» actual possession is indispensable to the action; Vanbrunt vs. Shenck, XI Johnson, 386, Bennet vs. Ward, III Caines’ reports, 259, Campbell vs. Arnold, I Johnson’s reports, 511, Tobey vs. Webster, III Ib., 463, 1 Chitty, 175-6.

But, in trespass to personalty, actual possession is not necessary. The general property in a personal thing, draws to it the possession inlaw; and the possession of it, is prima facii evidence of right in the possessor. It is true, that the owner of a cha-tel may neither be in the possession, nor euti led to the possession of it, when a trespass may have been committed on it; and it is equally true, that in such a case, he could not maintain t-espass, for such an injury, unless the trespass consist in abusing a slave, for which the act of 1816, (II Digest, 1163,) allows an action of trespass. But it is not a necessary consequence, from these well settled principles, that the owner of a slave, or other thing intrinsically personal, must aver possession, in a declaration, for a trespass committed on the slave or chattle.

If owner, of chattel is entitled to possession whenever he chooses to take it, he may maintain trespass for injury to it.

fCxecutor or administrator, may maintain trespass for injury done to goods of testator or intestate after his death, and before probate or administration. So may legatee, after executor has assented to legacy, for trespass before such assent.

Omission to aver “possession,” in declaration, for trespass to personalty, is cured by verdict.

The allegation of property is prima facie evidence of possession. The owner may maintain trespass for an injury done his chattel by force, although, at the time of the trespass, he was not in the actual possession, provided, he had sucha right, as to he entitled to the actual possession, whenever he pleased to take it. But if he had not such right, he could not maintain trespass; Putnam vs. Wyley, VIII Johnson’s reports, 432, Vanbrunt vs. Shenck, XI Ib. 383, II Sanders, 41, N. I. and the cases there cited, I Chitty, 167, III Starkie, 1143.

If, in this case, Hardy was hired out, so that Holland had nota right to take possession of him at any moment, according to tile contract of hire, the injury was to the reversion, and therefore, case appropriate remedy, III Thomas vs. Coke, 343,1 Selwin’s N. P. 421.

The rule, that the general property draws to it the constructive possession, and that such a possession will enable the owner to maintain trespass, even applies to executors, administrators and. legatees, by relation; for an executor or administrator may “maintain trespass for an injury done to the goods of the testator or intestate, after his death, and before probate or administration; so may a legatee, after the executor has assented to the legacy, for a trespass committed, before such assent;” I Chitty, 167, Ba. ab. executors, H. 1., II Sanders, 47, N. I.

An averment of property mayffié sufficient in trespass to personalty; see 1 Chitty, 365-6, II Ib. 426.

But if we are mistaken in the opinion, that an allegation of property, in a personal thing, imports prima, facie, that the owner has also the possession, still, the omission to aver possession, in a declaration for trespass by the owner, would be cured by verdict.

“A verdict will aid a title defectively set out, but not a defective title;” 1 Tidd’s Practice, 827, I Sal. 365, Letcher vs. Taylor, Hardin 80.

It is a rule ofpleading established by the common law, because it is a dictate of common sense, that after verdict,-it will be intended that every thing was proved, without proving which, there could not have been aver-diet fortbe party; provided, tile declaration contain a general allegation of a came of action, defective only in some circumstance or fact, which may be embraced by it, and inferred from it*

Deojaration w;n be good after verdict, if it contain from which every fact ne~ cessary to maintain the action, may bre^mriy

Buller says, that “nothing is to be presumed after a verdict, but what is'expressly stated in the declaration, or necessarily implied from the facts which arc stated.” This ruléis unreasonable. ,

That which is necessarily implied by what is expressly-averred, is understood, and therefore virtually expressed. There is in pleading, no essential difference betwixt averring a fact positively, and alleging other facts expressly, from which, it must be necessarily inferred.

The sensible and practical rule is, that a declaration will be good after verdict, if it contain allegations, from which every fact necessary to maintain the action, may he fairly inferred-, but that a fact will not be presumed, which cannot be reasonably implied by what is alleged, or which has no natural or usual connection with any fact that is averred.

Now an allegation of property in a slave, does not ne-eessarily imply, that the owner had possession. But the possession may be inferred from the right, and has a natural and usual connection with it. , But if there had been no allegation of property in this case, there could be no inference, that there was possession.

We are, therefore, of the opinion, that the verdict cures the defective allegation of the cause of action, if It be defective; and we are fortified in this opinion by-high and express authority: See II Sanders, 47, n. 1, k.

The pleas are not unexceptionable; neither of them avers that the taking under the execution, is the same charged in the declaration.

But the plaintiff might have made a new assignment in his replication, and thus have brought the defendant to a certain issueable point. He has, however, waived all other objections to the plea, by taking issue on the liability of the slave to the execution.

The issue as taken, is not immaterial.

But for other reasons the judgment must be reversed.

It is our opinion that the evidence preponderated strongly against the verdict.

If possession <1 o. not accompany and follow sale of slave, it is void in law as to creditors, and cannot be aided by evidence of honorable and legal intentions.

There are strong badges of fraud in fact, in the alleged sale of the slave by D. C. Holland, to A. W. Holland. The sale was made on the day on which judgment for execution was rendered on a scire facias against D. C. Holland, for a large sum in favor of Bouldin, under whose execution the negro was sold#

The value of the slave as proved, was f500; the price given was considerably less* A. W, Holland, borrowed ibe money to pay for him, and within two days after-wards refunded it, in t tank notes, some of which were the same which he had borrowed*

In a few days afterwards, D. C. Holland was in possession of the slave* There is proof that A. W. Holland disclaimed title, positively to one witness, and virtually to another.

But the jury decided that there was no fraud, and as the cause will be remanded for a new trial, for reasons unconnected, with the question of fraud, it would not be proper1 for this court to determine whether the facts proved on the late trial, would be sufficient to justify a verdict for Holland.

Nor shall we intimate whether the evidence, as reported to us in the record, would necessarily show a fraud in law. We will only remark, that whether there was fraud in fact, depends on the intention of the parties, to the alleged contract; but that whether the contract is fraudulent per sc, must depend exclusively on a single fact, and that is the possession of the vendor after the sale.

If the possession liaccompanied and followed ihe salef it is not fraudulent, unless the intention of the parties was to delay, or defraud creditors or purchasers; but if the possession did not “accomp■ my und follow” the sale, the contract of saléis void in law as to Bouldin, and cannot be aided by proof of honorable and legal intentions.

It appears that when the fieri facias was levied, the slave was in the possession of a stranger who held him on hire. Therefore, at that time, Á. W. Holland had neither the actual possession, nor the legal right to it, unless he could prove that the term had expired, or that Hardy was held by lexander at will, and not for any definite time. There is no such proof. There is proof to the contrary.

In trespass, slave unfer execution, plaintiff cannot recover value of his after levy,

Petition for re-hearing

Wickliffc and Woolcy, and Triplett, for appellant, Denny, and Mills and Brown, for appellees.

Therefore, according to some of the foregoing author# ities, and many others which might be added to thern^ the proof did not show any right by Holland to any thing in the action of trespass. But this objection was waived by the pleadings.

There is another objection to the judgment, which must be fatal. The court permitted Holland to prove the annual value of Hardy’s hire» Thi: proof might be admissible, as a circumstance aiding in the computation of the value of the slave* But it was not necessary for that purpose in this case* Only one witness was examined as to the value of the slave, and he proved that he was worth ‡500, as there was no attempt to prove any other value, it was conceded that $500 was the real value*

The plaintiff could not recover for the use of the slave after he was taken under the execution.

The verdict is about equal to the value of the negro and of his hire.

Not only, therefore, was the proof of the value of hire, calculated to mislead the jury, butit is almost certain, that they weie deceived by it, and therefore, found so high a verdict as $727.

If the evidence, as to the hire, were admissible, for its legitimate purpose, it is evident that it was not introduced for that, but for an illegal end, which it accomplished. And it is very clear too, that the verdict is unjustifiably high, unless there had been proof that the officer had acted unfaithfully, negligently, or unjustly.

Wherefore, the judgment of the circuit courtis reversed, and the cause remanded for a new trial.

The counsel for Holland presented the following petition for are-hearing.

Thu counsel for the appellee, feels so much aggrieved by the loss of the judgment on one and that scarcely noticed in the court below, or in this court, and one which they conceive untenable, that they apply for a re-hearing.

It is by no means conceded, that the issue is material: we have no doubt that if is immaterial: and that the do ¡feeíive pleas are not cured by any replication, more than if the defendant bad alleged in Lis pleas, that he had taken the slave, and brought him from Africa to America, and the plaintiff had replied that he did not. Yon might find this issue any way, and still, from the record, the charge contained in the declaration, be as true as ever. Draw out the matter in simple propositions, and it will appear. The plaintiff says, the defendant took, and carried away, and converted his slave. The defendant says, that on a certain time, the slave was the property of D. C. Holland, and he took him and sold him. The plaintiff replies, that at that time, he was not the property of Holland. Now try this, find the slave on that occasion, to belong to Holland, and the charge that the defendant took the plaintiff’s slave, and carried him off, is as true as ever. It is a liberal curing of defective issues, to say that this issue can be made material. If it is immaterial, the appellant can complain of no error in the judgment, except such as would avail him, if the eause had been tried on a writ of inquiry.

If we understand the opinion of the court, it accordingly reverses the judgment for an excess of damages only. For although it is said in the opinion, that the evidence preponderates against the verdict; yet, in another part it is said, that the court will express no positive opinion, and indeed it ought not. For it cannot he denied, that there is evidence on both sides, and when there is, the jury ought to decide, especially, as the court who tried the cause, has approved the verdict.

But the ground on which the court has set aside the verdict is, because the damages are excessive, and the court admits it is no mot e than the price of the slave and his hire, till the rendition of the verdict, or probably till suit brought. It is the first instance, in the knowledge of the undersigned, where a court has attempted to fix a legal criterion in trespass, in a case of tort, where the jury, and not the court are the judges, and the first that has excluded a jury from damages, not only commensurate with the value, hut the use. of the thing carried away, If the trespass had been the taking of moneys, could the interest he excluded? If anj other commodity, whose use exceeds interest, is taken, cannot that use be allowed ? We must say this is a new precedent.

MILLS & BROWN, for Holland*

In trover, it is often said, that the value of tlie article commuted, is the criterion; but this is tobe understood that less is not to be given. A jury may give far For this court, in the case of Outen vs. Barnes, Littell’s Select Cases, 130, and authorities there cited, refused to restrain a jury in trover, to the value, even with its interest, and had the hogs then taken, been a subject that would have brought a sum of money by hire, beyond all doubt, the court would not have excluded the hire. The truth is, actions ex-conlmctu, have frequently their legal criterions, which belong to courts; but actions of tort, most generally, have no such criterion, and the sound discretion of a jury is their only limit, and courts control verdicts in such cases, where the jury have violently and extravagantly exceeded any certain estimation. In this base, the plaintiff might have brought trover, and in such case he would have waived the tortious fairing; but would at least, have been entitled to the value, and the reasonable use; or he might have brought detinue, in which case, he could not have recovered for the tortious taking, but could have recovered the thing, or its value, and the hire of it, till the rendering the verdict. Or he might have brought replevin, in which case, he would have recovered the thing, with damages for the tortious talcing alone, waiving the detention. But the action of trespass which he chose to bring, is the broadest, and covers the ground of all these; and includes the tortious taking,the value, and the detention. This, it is seriously contended, is the law, and a sound precedent, limiting the recovery to less, is challenged, and we trust that this will not be the first. If the verdict in this case, had exceeded the value, and the use, and all probable allowances for tor-tious taking, then there would have been some ground for charging the jury with passion and feeling; and with a verdict that would offend the moral sense of dispassionate men; but until this can be done, it is insisted that the province of the jury is infringed and curtailed by the decision of the court. We do conceive, that the decision will be a precedent, changing the law of ages, and that for this cause, it ought not to stand.

In trover, the criterion of damages in general, is the value of thing converted, at time of comer-cion.

Judgment in trover vests title to thing in defendant, from time of conversion.

In trover jury may give interest, on value of thing converted, from time of conversion.

Chief Justice RobertsqN

delivered the following opinion of the court, overruling the,petition. ,

V/n cannot consider the issue immaterial; and we deem it wholly unnecessary and unprofitable to argue such a matter. The fact in issue might have been proved under the general issue; and the special issue itself, is, in substance, good, if it be not, it is the fault chiefly, of the defendant in error.

Nor can we concur with the petition on the other point. We had supposed, that in trover,ihe proper criterion of damages (as a general rale) is the value of the thing converted, at the time of conversion. And if this be not the law, we confess that we liave yet to learn it. The conversion gives the cause of action* By the conversion, the owner is injured* The measure of the injury is what he lost by the conversion; and that is the value of the thing when it was converted* If he elect to bring trover, instead of detinue or replevin, he agrees to take that value* If he bring trover, he thereby agrees that the defendant, by the conversion, made the property bis own, and the judgment for damages, vests the title in the defendant by relation, to the time of conversion. If the owner desire to recover the specific property, and the. consequential intermediate value of its use,he must not sue in trover, if he elect to sue in a form of action, which concedes to the defendant, the property, he cannot be entitled to the value of the use of it by the 'defendant. The hire is incident to the thing. If the latter go to the defendant, so must the former, which is only its accessory.

If the slave, in this case, hud been a female, and had borne children, since her sale, and before the trial, could the defendant in error recover, not only her value, but that of her children, in an action for the conversion by the sale of her?

As the owner is entitled to the value at the time of conversion, be may recover legal iuterest on that value, if a jury will allow it. See Wilson and Conine, II Johnson’s Reports, 282; and Sanders vs. Vance VII Monroe, 214.

But the reason for this is, because the value is willu held. But these authorities, not only do not sanction a verdict for the use of the thing, but are irreconcilcable with any'such assumption of right. They show that the value of the property when converted-, and not when the suit is brought, shall be the proper criterion, and that the value of the use of that amount, and- not the value of the use of the property itself, may be added to it.

Jn trespaS3 “smart mo-n.ey” may1,e Slvenl’y Jurv-

This seems to be the“neplus ultra? because, if there had been any trespass, it has been waived by bringing trover; and this has been, as we think, expressly and. recently decided by our predecessors. See Sanders vs, Vance.

When trespass is brought instead of trover, the same rule must necessarily apply, as to the value of the property, and of the use. The only difference between trespass and trover is, that in the former, damages, or in other words, “smart moneymay be also implied. But such damages may be excessive, 'When, as in this case, fliere was no intentional wrong, and the officer acted honestly, and has not been guilty of negligence; but little, if any smart money, should be given.

We consider the verdict of the jury as excessive, at “the first blush.'1'1 It is the result of mistake. The jury were evident^ induced to find the amount of the value and the hire, by the opinion of the court, as to the legal criterion. We have no right to presume that, as high a verdict would have been given, if improper testimony, used for an improper end, had not deceived the jury.

In such a case as this, the standard of right between the parties, is not so indeterminate as it is in slander, assault and battery, and other actions, for personal injuries; and therefore, the alleged analogy between such cases and this, fails.

We cannot fail to see that injustice has been done to the plaintiff in error; and we cannot look at the facts proved, and admit that the verdict and judgment must stand.

We feel no apprehension, that the opinion in this case, will establish a new or dangerous doctrine, or encroach on any principle of law or justice.

Petition overruled.  