Opinion
(December Term, 1833.)
The plaintiff in trover must have both the right of property and of present possession, and when one who had hired a slave for a year sold him, and the owner brought trover during the term; it was held that he could not recover, although the defendant claimed an interest in the slave.
TROVER for a slave, tried before Strange, J., at PITT, on the last Spring Circuit.
Devereux for the defendant.
Badger, contra.
The plaintiff produced a deed, whereby one William Butler conveyed the slave in dispute to him in trust for his, Butler's, family. The subscribing witness to this deed swore that he saw the deed signed and sealed by Butler, and heard it acknowledged by him, and that he was directed in Butler's presence, to hand it to the attorney who drafted it, and that at the time this took place, the plaintiff was not present.
Other witnesses proved that the plaintiff hired the slave to Butler, for a nominal hire for one year, during which, the latter removed him to a distant part of the state and sold him to the defendant, who claiming under this purchase, refused to deliver him to the plaintiff. The action was commenced during the year when the slave was thus hired.
For the defendant, it was objected:
1st. That since the act of 1806, the subscribing witness must be able to depose to the delivery, as well as to the signing and sealing of a deed of gift.
2d. That as the action was commenced during the year for which the slave was hired to Butler, the plaintiff had not (71) the right of possession, and could not recover.
His Honor ruled against the defendant upon both grounds, and a verdict being returned accordingly, he appealed.
The subject of the first exception taken by the defendant, has been considered in several other cases recently, and has been determined by the Court to be against him, as expressed in Vines v. Brownrigg, post, 265. We think the statute of 1806, and others which require the due execution of deeds of gift and bills of sales of slaves to be proved on the trial by the subscribing witness, are merely a form of expressing that they shall not be read upon the former ex parte probate and registration, as deeds for land are; but shall be proved as at common law. The acts do not intend to introduce a new rule of evidence as to them, but to restore the old rule of the common law; that the execution must be proved by the subscribing witness as far as he can or will; and at the point where he fails, either from want of knowledge, or memory, or integrity, the party may furnish the necessary proof by other witnesses.
The other point discussed at the bar is, in the opinion of the Court, with the defendant. The case is, that the plaintiff hired the slave to Butler for a year, and that within the year, Butler sold absolutely to the defendant, who refused to deliver him to the plaintiff upon demand, and insisted upon his purchase; when this action was brought, also within the year.
The counsel for the plaintiff does not deny the case of Gordon v. Harper (7 Term, 9), nor the cases in this Court, founded on that authority: but admits that to maintain trover, the (72) plaintiff must have both the right of property and the right of present possession. He insists that the bailee, Butler, was guilty of a conversion by selling the whole property, and not his term only, and that the defendant is likewise guilty of one by asserting an absolute ownership, after notice of the plaintiff's title. I do not perceive any ground for the argument. The authority on which it is advanced, Loeschman v. Machin, 3 Eng. C. L., 359, is a nisi prius decision of Chief Justice Abbott, and is not satisfactorily reported. It does not appear, that the action was brought within a month, to the end of which the hirer would have a right to the possession according to the original contract. The hiring was for an indefinite period, from month to month, at so much a month; and if the hirer during one month, sent the piano to auction, certainly neither he nor the auctioneer would have a right to it after the expiration of that month, after such a use of it, although the owner might not give notice at the end of the month. The hirer by his own act, had determined the contract, at all events, at the end of the month. If it is meant in that case to say, that a bailee upon hire for a determinate period, forfeits his interest by abuse of the article, or by a wrongful sale, so that a purchaser from him gets nothing, I think it is not law. I do not know of any such doctrine of forfeiture as applied to personal chattels. Nor do I think that the Chief Justice intended so to lay it down; because it is at variance with his own subsequent decision in Paine v. Whitaker, 21 Eng. C. L., 390, in which he fully recognizes Gordon v. Harper as sound law. It is said that the act of the party differs from that of the sheriff; because the hirer has an interest which is subject to his creditors, and therefore, the sheriff is justified in selling. True: the sheriff may sell; but what? The debtor's interest only. That the hirer can himself do as rightfully as the sheriff can. If either sell more, it is a wrongful act; and as wrongful in the one as in the other. The question is what is the owner's remedy? It may be, that he has no remedy while the term of hiring continues; for during that period, he sustains no injury, not being entitled to the possession. But (73) if he has a remedy, it cannot be trover; which is an action to repair the wrong done to his right to the possession. If he may bring trover after the term, for the conversion by an absolute sale during the term, he cannot during the term bring the action. For in Gordon v. Harper, that was the point; the sale by the sheriff not being of the interest of the defendant in execution, but of the entire property, and the suit having been immediately brought. I cannot perceive a difference between such a sale by the sheriff on an execution against the hirer, and a sale by the hirer himself, as an act of conversion; and therefore, I am of opinion the plaintiff cannot maintain this action, and that there must be a new trial.
PER CURIAM. Judgment reversed. Cited: Lewis v. Mobley, 20 N.C. 470; Harper v. Burrow, 28 N.C. 32; Murchison v. White, 30 N.C. 54; Barwick v. Barwick, 33 N.C. 82; Gaskill v. King, 34 N.C. 212; Jones v. Baird, 52 N.C. 154.