1 Port. 215 | Ala. | 1834
The action was trover, by Martin against the' plaintiff in error, in the Circuit Court of Greene county, for the convert sion of two negro children. ..
The suit was tried on aq agreed -case, as follows : In. 1824, Martin brought trover against'White for, the perma-r neilt conversion of several slaves, alleged to be the property of Martin. Among them was a woman, Charity. In 1831? Martin recovered the full value of the slaves sued for, and that judgment has been satisfied. Pending that suit, the-young'negroes, the subject of this action were born. Thesé children not being included in that suit, no recovery was had' ¿or their value. A demand was made of all the slaves first» sued for, including Charily, before the commencement of the , , former action. No other demand was made for these now* . sued for. White took the negroes ñrst sued for, wrongfully. ■ If on these facts the Circuit Court should be of opinion the plaintiff was entitled to recover, it was agreed that there should be an inquiry of damages — otherwise, judgment for the defendant.
In 1832. the court gave judgment for the plaintiff, Martin. A writ of inquiry was executed, and the damages assessed afc , three hundred and forty-five dollars. On the inquest of da_. mages, White offered to prove in mitigation, that these chib dren had been born in his possession, and had been reared by’ him; and also offered to prove, what would have been a rea^ sonable compensation for nurturing and raising them, in mi- ' ‘ tigation of damages. This evidence was rejected, and for this White excepted.
1st. That on the agreed case, the judgment should have been given for the defendant below. .
2d. That the evidence offered in mitigation of damages, showing the expense of nurturing and raising the negroes in , question, ought to have been admitted.
The case presents . a question apparently new. In this precise form, it has not before occurred within the recollection of either member of the court. The learned counsel ad-init, that their researches have not discovered any direct adjudication on the poipt. The question must, therefore, depend on principle, and its analgy to other cases. From the nature of the subject, if the facts of the case furnish aground of action, it might be well supposed similar suits would not have been extremely rare. That a recovery in an action of, trover, for the permanent conversion of chattels, operates as, a transfer, vesting the legal title in the defendant, is a princi-. pie of law now well settled, and not recently contested. The, doctrine is the same in relation to trespass, when the property is destroyed, or the owner deprived of its value. In either case, “ the damages recovered are the price of the chattel so transferred by application of law — “ solutio pretii emptionis lex iuibtier.” Chancellor Kent
As the judgment in question was satisfied, before the institution of this suit, 'the principle alluded to, is no further material to this case, than it can influence the question as to the point of time to which the change of title relates — * whether to thef conversion, the judgment, or the Satisfaction. Admitting the latter to be necessary to the consummation of the transfer, it does not follow that the relation is not to the former. That such should be the relation, appears a necessary consequence of the principle — that the plaintiff seeks redress alone, for the damages arising from the conversion— and that the death or the destruction of the article by any ' casualty afterwards, is the loss of the defendant. Having' done the act, which the plaintiff may treat as a purchase, if he choose to elect that remedy, the defendant must abide the. consequences of the purchase, if the remedy be prosecuted» withsucces. Even in the action of detinue, as the plaintiff is entitled to recover the alternate value of the property, if thespe-. cific article cannot be obtained, the plaintiff, in the" event of the • death or destruction of the property, pending the suit, may* still recover the value. It was so held by this court, in White vs. Ross,
I consider the principle too well established to require any reference to authorities, that in trover, the plaintiff has a right. ■ to recover the value of the property converted, and interest, on the amount from the time of conversion, to the date of the.
One authority has been cited for increasing the measure, where it appeared clearly inadequate to the plaintiff’s loss, and the defendant’s gain. In Greening vs. Wilkinson,
The principles of that decision go to deny the right of a ¡second action for the same conversion, or for the same wrong, whether tortious or otherwise ; also, to show, that the tort in trover or detinue, is always waived. All the arguments used in this case, founded on the supposed tort, must be considered inapplicable, and even if not, the former suit and judgment would preclude further inquiry into it.
It is contended, that justice will not permit White t@ retain the children under his judicial title to the mother, because he has paid damages only for her ; and that these furnish a subsequent cause of action. We would incline to admit, that ' j the plaintiff might, at any time before the former trial, unless | barred by the statute, have dismissed that suit, and renewed t, his action, including the children. Whether in that event, a ■ demand of the children also would have been necessary, is not
The disposition of the first point, supercedes the necessity of any inquiry into the second. -
Let the judgment be reversed. •
2 Kent’s C. 319.
3 East, 251.
1 Stewart.
3 Camp. 447
11 Eng.Com L. R. 499.
Randolph, 457.