M'Gowen v. Young

| Ala. | Jan 15, 1830

By LIPSCOMB, C. J.

The first order of the Chancellor did not operate on the property in controversy, but simply injoined it from being removed out of the jurisdiction of the Court. If this order had directed the sheriff to take possession of the property, so long as the order had any influence, it would have barred the plaintiff’s suit at law. But the plaintiff was then in the peaceable and rightful posession, and it was only a possible residuary interest, that complainant sought to secure. He then had a right to'sue for the property, at the time the suit was commenced, even if the residuary interest was in the complainant. It is contended however, that the second order of the Chancellor on the supplemental • Bill, interposed a bar to a recovery. If the plaintiff had a right to the property at the time he commenced suit, which is not controverted, he had a right to recover damages for its conversion, commensurate with his interest; and the subsequent order of the Chancellor, could not affect such right, as it did not injoin the suit at law.

The counsel for the plaintiffs in error has attempted, with much ingenuity, to assimilate the proceedings in chancery to the admiralty process, operating in rem; and he would draw the conclusion, that the strange and annomalous case of two jurisdictions, both operating at the same time, on the same property, was presented. The premises from which this conclusion has been attempted to be drawn, are not well founded. The two Courts were not proceeding at the same time against the property. Chancery can at all times proceed in rem, but such had not been the course in this ease. The. suit at law is not of that character, nor does it seek a recovery in specie. If the action had been detinue, it might have been urged with much force, that the last order of the Chancellor, on the eomplainat’s Bill, would afford an excuse for not delivering the property. But in the action of trover, it could certainly be no defence. It was urged, however, that if the testimony could not amount to a defence to the action, yet it ought to have been received in mitigation of damages. A slight examination will show that this position is wholly untenable. In this action, and on the issue joined, the jury could fairly take into eonsideration, by way of reducing the amount of damages, the value of the complainant’s residuary interest in the property in contest; and evidence of a legal character, should have been admitted to show what was the probable value of such interest. But neither the Bill, the supplemental Bill, nor the several orders made by the Chancellor, could have proven that complainant, had any interest, either present or in expectancy, in the property sued’for; the answer of Young, so far as'he made admissions against himself, was proper testimony, and it was admitted by the Judge who tried the cause; it was right enough too, to refer to the Bill for explaining the answer. Suppose the testimony rejected had been admitted, it could only have tended to mislead the jury, if it could have any effect at all. And if it had induced the jury to reduce the damages to a mere, nominal’ amount, what possible-remedy could the plaintiff at law have resorted to? The judgment would have, vested an absolute right to the slaves in the defendant, although by her own shewing, she claimed only a possible reversionary interest in them, on the contingency that Mrs Young, the wife of the plaintiff; should die without issue capable of inheriting. We are therefore of opinion that there is no error in the judgment of the Circuit Court.

Judgment affirmed.

Judge Crenshaw, not sitting.