Moore's Adm'r v. Dawney

• Decision Date: 28 October 1808
• Citation: 13 Va. 127
• Parties: Moore's Administrator v. Dawney and Another, Administrators of Bell
• Court: Virginia Supreme Court

13 Va. 127

Moore's Administrator v. Dawney and Another, Administrators of Bell

Supreme Court of Virginia

October 28, 1808

[Syllabus Material] [Syllabus Material] [Syllabus Material]

The appellees, in their character of administrators of Thomas Bell, deceased, brought an action of trespass in the District Court of Fredericksburg, against the appellant's testator, in his lifetime, as late High Sheriff of Orange County; and declared, " for that whereas," G. L. Grasty, one of his deputies, under colour of an execution, in behalf of a certain John Allen, against the goods and chattels of a certain Zachariah Burnley, with force and arms, entered the plaintiff's close, and took and carried away therefrom, eight slaves, by name, belonging to the estate of their intestate; concluding, in the usual way, to their damage of 3,0001. Plea, not guilty.

At the trial, a demurrer to the evidence was filed, from which it appeared, that Thomas Bell, the plaintiff's (now appellee's) intestate, in the month of December, 1795, intermarried with Sally, the daughter of Zachariah Burnley; that immediately after the marriage, Burnley sent the slaves in the declaration mentioned, to the said Thomas Bell, in whose possession they remained till his death, in April, 1795, a few days previous to which his wife died; that, after the death of Thomas Bell, viz. on the 23d of May, 1798, an execution was issued from the Clerk's office of the District Court of Fredericksburg, at the instance of John Allen, against Zachariah Burnley, upon a judgment of that Court rendered in April, 1795, and founded on a contract made in the year 1784; which execution was levied on the said slaves, then in the possession of the plaintiffs, (the appellees,) and who had been possessed of them from the death of the said Thomas Bell, their intestate, as a part of whose estate they had been appraised; that the sale was forbidden by the plaintiffs, of which the Sheriff took no notice, but sold the said slaves in discharge of the aforesaid execution; that, at the time of the marriage above stated, Zachariah Burnley was possessed of a large fortune; that he had been in the habit of giving each of his daughters, upon their marriage and going to house-keeping, seven slaves, and had frequently declared his intention of making a similar provision for the rest of his children, under like circumstances. Then follows, as a part of the evidence demurred to, a certificate of the Clerk of Orange County, of William Moore's being, at the time of the service of the said execution, High Sheriff of the said County, and of Grasty's having been duly qualified as one of his deputies. There is also in the record, a deed from Zachariah Burnley to his son Reuben, dated the 23d of January, 1796, for forty nine slaves; (in which deed the consideration is expressed to be 2,2251.) together with the inventories and appraisements of the estate of Zachariah Burnley, (who died in May, 1800,) and of Thomas Bell.

The Jury found a verdict for the plaintiffs, for 4321. damages, subject to the opinion of the Court upon the demurrer to evidence.

On argument of the demurrer, the District Court gave judgment for the plaintiffs (the appellees) for the damages assessed by the jury, together with the costs. From this judgment Moore took an appeal, pending which he died; and it was revived, by consent, against his administrator.

Judgment reversed.

Warden, for the appellant, relied on the following points:

1. That an action of trespass would not lie against the High Sheriff, for the act of his deputy. The officer who takes the property is alone liable. Trespass is an immediate injury, and the person who commits it, is answerable for his conduct. On this point, he referred to Dalton's Sheriff, 105, who cites Keilway 119, 120; Roll. Abr. 552; O. 9, translated and incorporated in 20 Vin. Abr. 458, pl. 9, Ibid. 459, pl. 1, Ibid. 460, pl. 1.

2. That an administrator, as such, cannot be possessed of a close which may be broken; for which trespass quare clausum fregit will lie. The gist of the action is the breaking of the close; the taking afterwards is like any other taking. If Bell had, by his will, devised lands to his executors to be sold, that circumstance should have been stated, and that thus it become their close. But no property whatever is alleged in this declaration; and that omission is fatal even after verdict. ^[a]

3. That slaves being living things, and rational, as we must intend, could have no value; but might have had a price. If, in a declaration, you state the value of a living thing, it is fatal. ^[b] This holds good, as well in trespass as detinue.

On the merits, he contended, there was no proof of any gift of the slaves to Bell, so as to make his possession of them an exception to the general provisions of the law concerning gifts of slaves. ^[a]

Williams, for the appellees. In this case, Mr. Warden seems to suppose that he is at liberty to except, as upon a special demurrer. He ought to recollect, however, that it is a demurrer to evidence; which will be considered by the Court as a general verdict. This is the law, both of England, and this country. ^[b]

The first objection of Mr. Warden, is to the action itself, in being brought against the High Sheriff for the act of his deputy. After the decisions of the Courts of England, in Saunderson v. Baker and Martin ^[c] in the Common Pleas, of Ackworth v. Kempe ^[d] in the King's Bench, and of James v. M'Cubbin ^[e] in this Court, the question is for ever at rest. In the case in Douglas, all the authorities were reviewed, and those relied on by Mr. Warden, were expressly overruled.

As to the exception that the appellees, in their character of administrators, could not have a close, it is unnecessary to be considered, on the general doctrine. This is a case where they were authorised and required to retain possession, under the particular provisions of our own laws, ^[f] for the purpose of finishing the crop: and if a case can be made out which will support the action, the Court, after a general verdict or demurrer to evidence, will presume it was proved to the Jury. Even admitting that some parts of the declaration state improper grounds of action, yet there are others clearly good, and, after verdict, the Court will intend that the Jury gave damages for the actionable parts only of the declaration. ^[1]

The objection, that no property is stated in the plaintiffs, arises from a misconception of the effect of the declaration. But whether it be so or not, is immaterial after verdict. ^[g] So, with respect to price or value; if both had been omitted, it would have been aided by the statute of jeofails. In detinue, where you go for the specific thing, it is necessary to state the place or value; and the omission, on special demurrer, might be fatal; but in trespass or trover it is not material. ^[h]

It may be said that the administrators should have declared in their own names. To this objection it may be answered, that wherever the property, or damages, if recovered, would be assets, it is not error to declare in the character of representatives of the deceased. Indeed, the plaintiff may declare in either way. ^[i]

It will probably be contended, that, this being a declaration in trespass, the word whereas, in the commencement will vitiate it. But since the decision of the Court of King's Bench, in Douglas v. Hall, ^[k] and of the Common Pleas, in White v. Shaw, ^[l] the law has been considered as settled, that it is well enough after verdict.

The merits of the case are clearly with the appellees. From the facts stated in the demurrer to the evidence, a Jury ought to have inferred, and the Court will presume a gift to Thomas Bell; consequently, the continued possession in him, excepted the case from the operation of the statute to prevent fraudulent gifts of slaves, and the taking by the Sheriff was clearly a trespass.

Randolph, in reply. The declaration charges an entry into the plaintiffs' close, and taking away slaves belonging to the estate of their intestate. This, then, is a mixed demand, for an injury done to the plaintiffs and to their intestate. The damages for breaking the close, belong to the plaintiffs in their own right; those for taking away the slaves would be assets. No principle is better established than that you cannot join in the same action, a demand in your own right, and in a representative character. It is said, however, that the slaves were employed on the land of the intestate, in finishing the crop. This is not stated in the demurrer to evidence, nor can it be presumed.

But the quod cum in the declaration, is decisive of the question. This Court has decided, during the present term, ^[m] that the quod cum in a declaration in trespass is fatal.

[JUDGE ROANE. There was some difference of opinion on the point, whether the quod cum would be fatal after verdict. In the case of Hord v. Dishman, there was a general demurrer filed by the plaintiff to the defendant's plea.]

Randolph. There can no difference on this point, between a general demurrer and a verdict. So much dignity is attributed to a verdict, only from the presumption that the Jury have drawn all the necessary inferences from the evidence.

Judge Tucker. Judge Roane. Judge Fleming.

OPINION

Friday, October 28. The Judges delivered their opinions.

JUDGE TUCKER. Several exceptions were taken to the declaration, by the counsel for the appellants.

1. That an action of trespass does not lie against a High Sheriff for the act of his deputy, as such.

If I had ever entertained any doubt upon this point, the case of Saunderson v. Baker, ^[n] and the decision of the Court in James v. M'Cubbin, ^[o] must have removed it. The law looks upon the Sheriff and his...