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Johnson 0. White.

on demurrer was pleaded in bar in this action, to which plea a demurrer was sustained. On the trial the defendants in error succeeded, and Johnson brings up the case by writ of error.

Three grounds are relied on for reversing the judgment, to wit; 1st. That the demurrer to the plea of former recovery was improperly sustained ; 2d. That the court erred in giving the instructions asked by the plaintiffs below, and in refusing those asked by the defendant; and 3d, The motion for a new trial was improperly overruled.

1. The effect of a former judgment as a bar to a second action was considered by this court in the case of Agnew v. McElroy, 10 S. & M.552. The general rule that a judgment is conclusive between the same parties for the same cause of action, was held to be subject to certain exceptions. It is no bar to a second suit if the first action was incompetent, or if the plaintiff mistook his character, or if the first judgment was given for faults in the declaration or pleadings. This case seems to fall within the exceptions; the judgment was given against the plaintiffs on a fault in pleading. The action of replevin may have been barred, but the action of trover was not. A judgment for the defendant on demurrer to a declaration does not bar a new action, and it would seem that a demurrer to a replication should not. Nor is à judgment on any other pleading, which does not go to the foundation of the action, a bar to a subsequent suit. 3 Phillips, Ev. 835. The foundation of the action in this instance was the right of property ; the matter adjudicated was as to a particular remedy. The merits were not involved, for although the remedy adopted might not have been the proper one, yet a different one wonld not have been subject to the same objection. The particular objection applied only to the action of replevin. If the merits of the second action were not decided in the first, it is no bar. Ib. 838. The merits, that is the right, were not adjudicated in the first suit. The demurrer to this plea was therefore properly sustained.

2. Did the court err in giving the instructions asked by the plaintiffs, or in refusing those asked by the defendant? The instructions given seem to be free from objection, except the

Johnson v. White.

second, which is too restricted. It was calculated to lead the jury to believe that there was no conversion, until demand and refusal. This subject is more directly presented by the first charge asked by defendant and refused. It is in substance this: If Johnson acquired the negroes by his purchase in 1833 from Winn and his pretended wife Cecilia, and has held and claimed them as his own ever since, or for three full years before the commencement of this suit, the law is for the defendant, though the plaintiffs, or either of them, were infants until within three years; and that these facts defeat, although demand was made within three years.

The defendant Johnson had pleaded the statute of limitations that the cause of action had not accrued within three years, to which plaintiffs replied generally that the cause of action had accrued within three years. The question is thus raised, When did the statute begin to run? In trover the cause of action ac. crues by the conversion. The doctrine is very clearly laid down in the anthorities. The finder of goods must convert them before he is liable, and demand will be evidence of conversion. But when goods are tortiously taken, the statute of limitations begins to run from the taking, for the tortious act is of itself a conversion. So an unlawful disposition of property rightfully in possession, is a conversion, and the statute begins to run from the time of such disposition. And it is immaterial whether the plaintiff knew of the conversion or not, if no fraud was practised to prevent his knowledge. Angell on Limitations, 327, 328; Read v. Markle, 3 Johns. Rep. 523. Greenleaf says,

"A conversion in the sense of the law of trover, consists either in the appropriation of the thing to the parties' own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's right." ... "If a bailee, in violation of orders, deliver goods to another, it is a conversion; and a wrongful sale of another's goods is a conversion.” 2 Greenl. Ev. 530, 531.

The case of McCombie v. Davies, 6 East, 538, is very clear to the same effect, although it is sometimes cited to establish a different doctrine. Lord Ellenborough said, “Certainly a man Lacoste et al. v. Pipkin. is guilty of a conversion of my property by assignment of it to another who has no authority to receive it; for what is that but assisting that other in carrying his wrongful act into effect.” Lord Holt said, the very assuming to one's self the property and right of disposing of another man's goods, is a conversion. Baldwin v. Cole, 6 Mod. R. 212.

On these authorities, it is perfectly immaterial whether Winn and his pretended wife, Cecilia, had the rightful possession of the negroes or not. If they had a right to possession, the sale was illegal; the property belonged to White's children, and the sale was a conversion. If, on the other hand, their possession was tortious, that of itself was a conversion. The dominion exercised by Johnson, his absolute claim of ownership, was a conversion. In any event, the conversion occurred in 1833, and from that time the statute of limitations began to run.

There was no replication of infancy in this case, nor was that question raised, and of course it is left out of view. The charge asked should have been given, and for this error the judgment must be reversed, and the cause remanded. The other points need not be noticed.

21 589 70 332

21 589 74 539

CHARLES A. LACOSTE ET AL. vs. A.xx E. PIPKIN.

In an action on the case for injuries to personal property, it must be proved

that the plaintiff had a legal right or interest in the matier or thing affected by the injury, at the time of such injury. The absolute or general owner having the right of immediate possession, may in general support an action for an injury thereto, though at the time when the injury was committed, the goods were in the actual possession of a servant, carrier, or other bailee; but if the goods have been let to hire, the action cannot be sustained by the

general owner, unless an injury to the reversionary interest is established. If the owner of slaves hire them to a third person, he cannot sue for an injury

to them, during the time of the hire, unless he prove an injury to his reversionary interest.

Lacoste et al. v. Pipkin. In error from the circuit court of Madison county; Hon. Robert C. Perry, judge.

The facts of this case are sufficiently shown in the opinion of the court.

L. Maury Garrelt, for plaintiffs in error.

G. Calhoon, for defendant in error.

Mr. Justice CLAYTON delivered the opinion of the court.

This was an action of trespass upon the case, brought by the defendant in error, for illegally causing slaves which belonged to her, to be seized under execution against a third person. The suit was brought against the sheriff and his su reties in his official bond, against Lacoste, the plaintiff, under whose execution the slaves had been taken, against Balfour, who was his surety in an indemnifying bond given to induce the levy, and against the attorney of Lacoste. The suit was subsequently discontinued as to several of the parties, and upon the trial a verdict was rendered in favor of the sheriff, but against Balfour and Lacoste, for the sum of $270.

The declaration avers, that, at the time of the injury," the slaves had been let to hire to one James P. Clark, for a certain time then to come and unexpired, and that they were then in possession of said Clark, under and by virtue of such letting; and that defendants wrongfully took said slaves out of the possession of said Clark, to the injury of the reversionary interest and property of the plaintiff.”

The evidence is, that the negroes were taken from the possession of Clark by the sheriff in the summer of 1940, were detained by him for about ten weeks; and were redelivered to Clark after he had obtained an injunction to prevent their sale. There is no proof of any injury to the reversionary interest. On the contrary, the evidence is, that the negroes were redelivered to Clark, during the year, and were by him surrendered 10 the agent of the plaintiff at the end of the year.

There is a great deal of other extraneous matter, not at all necessary to be noticed in this opinion.

Lacoste et al. v. Pipkin. In the action on the case for injuries to personal property, it must be proved that the plaintiff had a legal right or interest in the matter or thing affected by the injury, at the time of such injury. The absolute or general owner having the right of immediate possession, may in general support an action for an injury thereto, though at the time when the injury was committed, the goods were in the actual possession of a servant, carrier, or other bailee. But then such owner must have the right of immediate possession, as well as the right of property at the time. If the goods have been let to hire, the action cannot be sustained by the general owner, unless an injury to the reversionary interest be established. 1 Saund. Pl. and Ev. 346 ; Gordon v. Harper, 7 T. R. 9.

The first instruction given to the jury, at the instance of the plaintiff, was as follows: "If they believe that the plaintiff owned and had possession of the slaves, by herself or agent, and that they were placed in possession of Clark on hire by her or her agent, and that, during the time they were so in his possession under her, the defendants procured the sheriff to take possession of them, and that he did take possession of them, and refused to redeliver them on request; this refusal was a tort and an injury to the plaintiff, for which the defendants were liable."

According to the principles just stated, this charge was erroneous. The damage complained of was done to Clark, to whom the slaves were hired. The plaintiff could not sue for an injury to them, during the time of the hire, unless she proved an injury to her reversionary interest. This was a material allegation in the declaration, and the failure to prove it, deprived the party of the right of recovery.

The judgment is reversed, and new trial awarded.

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