Thweatt's Adm'r v. Jones

• Decision Date: 17 March 1823
• Citation: 22 Va. 328
• Parties: Thweatt's Administrator v. Jones, Administrator, & c. [*]
• Court: Virginia Supreme Court

22 Va. 328

Thweatt's Administrator v. Jones, Administrator, & c. ^[*]

Supreme Court of Virginia

March 17, 1823

SYLLABUS

The following opinions present so full a view of the case, that any other statement would be unnecessary.

Leigh for the appellant.

Gilmer for the appellee.

Judge Green. Judge Coalter. Judge Cabell. Judge Brooke.

OPINION

GREEN, JUDGE

The appellant filed his bill against the appellees, in the superior court of chancery for the Richmond district, charging, that Thweatt and Hinton were joint inspectors of tobacco at Bolling's warehouse: that, after Hinton's death, Brunett brought an action on the case against Thweatt, as surviving inspector of Thweatt and Hinton, for the value of tobacco inspected at the said warehouse, and not delivered according to the tenor of the receipt, and obtained a judgment therefor, which was paid by Thweatt's administrator, amounting, with costs, to 311. 9s. 10d. A copy of the record of the suit at law is exhibited as a part of the bill. The bill further charges, that Adam Finch brought a suit (an action on the case,) against the said Thweatt and Hinton, the foundation of which was, the non-delivery, by the said inspectors, of other tobacco, inspected at the said warehouse, to the " said Finch, or his order; " in which he recovered 96l. 15s. 2d., and costs, against Thweatt; the suit having abated as to Hinton, by his death: that, after an unsuccessful appeal and injunction, Thweatt's representative had paid the whole or great part of the judgment, damages and costs. A copy of the record, in Finch's case, is also exhibited with the bill, as a part thereof. The bill also states, that the plaintiff " has been advised that for a moiety of the said judgment, and costs and damages, the estate of Hinton should be responsible, inasmuch as the recoveries were for a joint malversation in office." Joseph Jones, styling himself, in his answer, to be administrator of S. Hinton, deceased, late inspector at Robert Bolling's warehouse, in the town of Petersburg, answered. The answer does not admit or deny the matter of the bill. The record, in Brunett's case, shews that the suit abated as to Thweatt, by his death, and was revived against his representative, against whom the verdict and judgment was rendered; and that the tobacco was inspected, and receipts given, by Thweatt and Hinton; and that the demand, and failure to deliver, was in the life-time of both, and whilst they were inspectors. The declaration, in Finch's case, charges, that the defendants Thweatt and Hinton had not only failed to deliver the receipts, for the tobacco inspected, to Finch, but had delivered the receipts and tobacco to another person, not authorized to receive the same. The chancellor dismissed the bill, and the plaintiff appealed

The bill in question, was a bill for contribution, and the case depends entirely upon the question, whether the bill presents a fit case for contribution, or not?

The counsel for the appellant seemed to think, that this question would turn upon the enquiry, whether the actions of Brunett and Finch, would or would not have survived against the representatives of the inspectors, if they had both died before a recovery had; and he contended, that those actions, or actions in some other form, could have been maintained against the representatives of the inspectors; either, because the inspectors were bailees, and bound by an express contract of bailment, to deliver the tobacco to the owners; for a failure in the performance of which contract, an action of assumpsit, founded upon the contract, would lie against the executor of the bailee; or, because our statute provides, that an action of trespass may be brought by or against executors or administrators, for goods taken and carried away, in the lifetime of the testator or intestate.

I doubt whether an action of assumpsit, founded upon the contract, (in which the contract is the gist of the action, and therefore, may be brought by or against an executor,) could be sustained against the inspectors. They are public officers. They have no reward for their services in relation to the crop tobacco brought to the warehouse, other than a fixed salary, which they receive from the commonwealth. In case of the death, removal or resignation of an inspector, his care and responsibility, in relation to the tobacco, devolve on his successor; and neither he nor his executor, has any controul over the tobacco in the warehouse, so as to be enabled to comply with the supposed contract of bailment. Inspectors are liable by the provisions of the act of assembly, to the parties aggrieved by their misconduct, for various specified penalties, and for damages arising from their failure in, or neglect of, duty. In short, the commonwealth seems to be the bailee, (but without responsibility as such,) and the inspectors, her agents and officers. To maintain an action of assumpsit ex contractu, it is necessary to aver and prove a consideration; otherwise, the promise is nudum pactum unde non oritur actio. What consideration could be alleged to exist, between an inspector and a planter, carrying his tobacco to a warehouse for inspection and safe keeping? It is true, that a special action of assumpsit, (as it is called, though it be really an action ex delicto,) may be maintained against a bailee, who, without consideration, undertakes any thing in relation to another's property, and performs his undertaking so unskilfully and negligently, as to produce a damage to the owner. But, in such case, the damages are recovered for the mal-feasance, or negligence of the bailee, which is the gist of the action. The undertaking, indeed, must be alleged and proved; but, it is nevertheless, only matter of inducement. Such an action, therefore, could not be maintained by or against an executor, it being actio personalis quae moritur cum persona; unless it be given by our statute.

It has been decided under the statute of 4 Ed. III. ch. 7, that an executor may maintain an action for any injury done to his testator's personal estate, by which it has been rendered less beneficial to the executor: Because, the title of the act (which is in the terms of an enacting clause,) says, " that an executor shall have an action of trespass for a wrong done to his testator," and recites that " in times past, executors have had no actions for a trespass done to their testators, as of the goods and chattels of their testators taken and carried away," & c. and enacting " that the executors in such cases, shall have an action against the trespassers," & c. In the construction of this statute, it has been decided, that the word trespass, as it was then understood, embraced all cases of tort: that the word wrong in the title is general, and that the words as of the goods & c. were inserted only by way of example, so as to confine the remedy to cases in which the wrong affected the goods and chattels. But, our statute, without any such title or general words as are found in the title, and in the enacting clause of the English statute, gives the action of trespass for goods taken or carried away, and provides for that case only substantively, and not by way of example. So that I should doubt, whether any action would lie against an executor for a tort by his testator, unless it were shewn that goods had been taken or carried away by him. I have not, however, thought it necessary to examine those questions minutely, because they seem to me unimportant to the decision of this case. If, however, it were necessary to shew that Hinton's representatives were responsible to the owners of the tobacco, notwithstanding his death, that responsibility is fully ascertained by the case of Scott v. Hardaway, ^[a] in which it was decided in this court, that an inspector was liable, on his official bond, for any injury suffered by any person, in consequence of his misconduct.

Contribution is not due, by reason of any contract, express or implied. But, when any burthen ought, from the relation of the parties, or in respect of property held by them, to be equally borne, and each party is in aequali jure contribution is due, unless the claim to contribution has arisen out of some actual fraud, or voluntary wrong, in which the party claiming contribution has participated. The mere non-performance or violation of a civil obligation, is not such a wrong, as will condemn a claim to contribution.^[b] The act which precludes a party from the right to claim contribution from those who were equally liable to the burthen as himself, must be malum in se, as actual fraud or voluntary wrong. Thus, if there be a common partition wall between two coterminous tenants, and it becomes ruinous, and one, in spite of the prohibition of the other, pulls it down, and re-builds it, he is entitled to contribution for the expense.^[c] Thus, if the conusor dies, having sold a part of the lands bound by the recognizance to several purchasers, and leaving a part to descend to his heir, the heir is not entitled to contribution against the purchasers, because he is not in aequali jure; but the purchasers are (without contract, express or implied,) entitled to contribution against each other; without regard to the time or order of the purchases. So, " if judgment be against two disseisors in assize for the land and damages, and one disseisor dies, the execution shall not be awarded against the surviving disseisor, who was party to the wrong, but as well the heir as the disseisor shall be charged; "^[d] and, a fortiori, if the surviving disseisor had paid the damages, he ought to have contribution against the representative of the deceased disseisor. The reason why the law refuses its aid to enforce contribution amongst wrong-doers, is that the...