Cobb v. Cornegay

• Decision Date: 30 June 1846
• Court: North Carolina Supreme Court
• Parties: ENOCH COBB v. GEORGE F. CORNEGAY et al.

6 Ired. 358

28 N.C. 358

45 Am.Dec. 497

ENOCH COBB

v.GEORGE F. CORNEGAY et al.

Supreme Court of North Carolina.

June Term, 1846.

Justices' judgments are not property in the plaintiff, for which an action of trover will lie.

They are not records, but they are judicial determinations and muniments of the rights of both parties.

Appeal from the Superior Court of Law of Duplin County, at the Spring Term, 1846, his Honor Judge SETTLE presiding.

The only material facts in this case are stated in the opinion delivered in this Court.

W. Winslow, for the plaintiff .

D. Reid, for the defendant .

NASH, J.

This is an action of Trover, brought to recover the value of a justice's judgment converted by the defendants to their own use. The plaintiff had recovered a judgment before a single magistrate, which he had placed in the hands of Summerlin, the deputy sheriff, and one of the defendants for collection. He transferred it to Taylor, by whom it was collected, and the money divided between all the defendants, by previous agreement. Several points were raised in the argument below. We do not feel called on to give an opinion on but one, and that is the first. The Court instructed the jury, that an action of trover can be maintained for the conversion of a justice's judgment. Believing there is error in this opinion, as it lies at the foundation of the plaintiff's right of action, we have confined our attention to it.

His Honor was well justified in giving the opinion he did, as such had been declared by Judge HALL to be the law in delivering the opinion of the Court in the case, Hedspeth against Wilson, 2 Dev. R. 372. Upon examination of that case it will be found, that the judgment was for the defendant, and the only point in the case was, whether property, fairly won at gambling, and delivered by the loser to the winner, could, by the former, be recovered back. As the judgment below was in favor of the defendant on that point, and the Supreme Court coincided in its correctness, it was unnecessary to decide the other. And believing it incorrect we feel at liberty to revise it. To support the action of trover, the plaintiff must have in himself, at the time of the conversion, the right of property, either general or special, and also must, in general, have in himself, the exclusive right of possession. Brown on actions at Law, 433-'4, 29 th L. Lib. 309. 310. A Justice's judgment, is neither goods, nor chattels, nor has the plaintiff a property in it--and, if he has, it is not an exclusive property. It is well established that trover will not lie for a record. Bro. on Ac. 435, 29 th Law Lib. 311 t,i 6 h Ba. Ab. Trov. Letter D, 687, Hard. 111, because it is not private...