1817.

ment in detinue for the same slave, for whom a prior judg- Decided Oct. ment had been obtained. A new action of detinue ought not to have been brought, but a scire facias.

Withers's executrix

V.

ecutor.

Leigh contra. The plaintiff's title is never set forth in the declaration in detinue. If the title be by a Judgment, Withers's exthe plaintiff may recover upon that title, by giving the judgment in evidence, as he might a bill of sale.—A scire facias would not have been a complete remedy:-it would not have given the intermediate damages, for detention of the slave, subsequent to the judgment, while the suit in Chancery was pending.

Call in reply. The form of the declaration in detinue is, in general, such as Mr. Leigh states; but where detinue is brought on a Judgment, it is necessary to set it forth particularly, to prevent the defendant from being harrassed twice for the same thing.

The plaintiff can get no better remedy by action of detinue, than he might by scire facias.-According to the principle of Mr. Leigh's argument, a plaintiff, having obtained a Judgment in indebitatus assumpsit, might bring the same action again, and give the judgment in evidence.

The doctrine is laid down in Murrell v. Johnson's admʼr. 1 H. & M. 450, that, while a judgment in detinue for a slave remains unsatisfied, the plaintiff can not bring another action of detinue, against a third person, for the same slave.

Leigh. The marginal note to the case of Murrell v. Johnson's adm'r., is not justified by the decision of the Court. (1)

Judge ROANE pronounced the Court's opinion.

The Court, (not deciding whether an action, other than a scire facias, can be maintained on a judgment in detinue,

(1) Note. It is true that the point was not involved in the decision of that case; but this Court expressed it's disapprobation of the instruction given to the Jury by the District Court; which instruction was, that a recovery of the slave might be had in such subsequent action, unless the defendant to such action could prove payment of the value of the slave, by the original defendant, to the plaintiff.-If the converse of this proposition, viz. that such recovery cannot be had against a third person, while the judgment against the original defendant remains unsatisfied, be incorrect, quære, under what circumstances could such recovery be had?

1817.

OCTOBER, or not,) is of opinion, that the present action is not brought upon the judgment, but is a new action of detinue, in which Withers's ex- the former judgment is not declared upon, but is only reecutrix lied upon as evidence of title, and not as fixing the value Withers's ex- and damages, as to which, this action is in the nature of a new trial, in a case in which there has already been à judgment. The judgment is therefore reversed with costs; and judgment is to be entered for the appellant.

V.

ecutor.

Decided Oct. 24, 1817.

1. The 2d

section of

1792 con

cerning slaves, ex

to slaves

South against Solomon and others.

THE question in this case, arising on a special verdict the Act of in a suit for freedom, was, whether the appellees, who were slaves unlawfully brought from North Carolina into this Commonwealth, and kept therein more than a tends only year, by the appellant, who had in them a life estate only, brought into were entitled to freedom under the 2d. section of the Act this common- of 1792; (edi. of 1794, 1803 and '14, c. 103.) The the absolute County Court of Russel decided against them; but the Superior Court of law reversed the judgment, and rennot to such dered one in their favour, from which, South, (the imas are bro't porter) appealed to this Court.

wealth by

owner of

them, and

in by wrong doers, or by persons hav. ing only a limited interest in them.

2. The

Court will not give such a con

Call for the appellant. The act of South, in bringing the slaves into the state, did not emancipate them, as he had only a life estate. He could forfeit his own interest, but not that of those entitled in remainder. The reasonable construction of the law is, that, if the owner brings them in, he shall forfeit, and they shall be free.

Wm. Hay, Jr. for the appellees. The words of the struction to Act are general; there is nothing to justify the Court the general in restricting its operation. If Mr. Call's construction words of an Act, as would were permitted, every evil intended to be guarded against, subject the would be let in. South was the proprietor sub modo, for property of

innocent in- he had a life estate.

dividuals to loss by the

The following opinion of the Court was delivered by

acts of third Judge ROANE.

persons; nor

such as

would favour a partial emancipation during the interest of a particular tenant of slaves.

.1817.

South

V.

Solomon & others.

The Court is of opinion that the 2d. section of the Act OCTOBER, of 1792, ch. 103, only extends to cases of slaves brought in by the absolute owner of them, and not to such as are brought in by wrong doers, or by those having only a limited interest in them. We are not disposed to give a construction to the general words of an Act, which would subject the property of innocent individuals to loss by the acts of third persons: and as to a construction favouring a partial emancipation during the interest of a particular tenant, it will not be adopted by the Court, because, in addition to other reasons, it would produce the same result, to the injury of the reversioner or remainder man.

The construction adopted by the Court is justified by analogy to the Act of 1806, (R. Code, Edi. of 1808, p. 95.) the present law on the subject, which expressly provides that "all the right" of the person bringing in a slave shall be forfeited, and the slave be sold for the term for which he is owned by the importer. This sale, too, it is to be remarked, will not enable the slave to abscond, as a partial emancipation would, and thus enable him to defeat the interest of the person in remainder.

On these grounds, the Court reverses the judgment of the District Court, and affirms that of the County Court.

A

Grant against Hover.

Decided Oct.

27, 1817.

tion of slan

THIS was an action of slander brought by the appellee 1. In an acagainst the appellant in the Superior Court of Kanawha der, for County. The declaration charged the defendant with charging the plaintiff with having said “that the plaintiff was a perjured rascal,” perjury in a meaning thereby that "the plaintiff was guilty of swear- judicial proceeding; the ing falsely in a judicial proceeding where he was le- defendant, "gally called upon to depose, and a lawful oath admin- on the plea of not guilty, "istered to him." Plea Not Guilty. At the trial, the (tho' not defendant, (after having examined Andrew Donnally, a permitted to witness introduced by him, (which witness was the mag-falsity of the

prove the

words sworn

by the plaintiff,) may prove what those words were, in mitigation of damages.

1817.

Grant

V.

Hover.

66

OCTOBER, istrate before whom the testimony impugned had been given by the plaintiff,) whether the plaintiff refused to answer any question put to him by the said magistrate, who said he did not refuse, but sometimes hesitated before he gave the answer,) then wished to interrogate the witness as to what the plaintiff swore before him; but the Court would not permit the defendant's counsel to introduce such evidence, considering that the truth or 'falsehood of his answers were improper, upon the plea "of not guilty," "the opinion of the Court being that "the defendant, upon that plea, had a right, in mitigation "of damages, to give in evidence any quarrel between "the plaintiff and defendant at the time the plaintiff gave "evidence, or that he was under the influence of the party "for whom he deposed, or that he was a man of ill fame "in witness-bearing; but that what he swore upon the "trial before the magistrate, was improper to go to the "jury in mitigation of damages, or in any manner to "justify the speaking the words upon the plea aforesaid." Whereupon the defendant filed a bill of exceptions. Verdict and judgment for the plaintiff for $500 damages;— from which the defendant appealed.

488.

Wickham for the appellant. The Court's opinion was (a) Chitty, clearly against law.(a) If the plaintiff in his testimony had spoken ill of the defendant's character, or of the character of his wife, or of some near relation of his, would not evidence of this have been proper in mitigation of damages? Perhaps the defendant might have been sworn before the same magistrate, and his testimony might have been contradicted by that of the plaintiff. He might (b) 6 Bac. then have said that the plaintiff was perjured. (b) This 226. Moulton is a supposed case; but we cannot introduce any other; v. Clapham. for the judge would not let us shew what the case was.

Wirt contra. A Bill of Exceptions is the joint act of the Court and Counsel. The only opinion given is that, on the plea of not guilty, the defendant could not give the (c) Under- truth of the words in evidence by way of mitigation.(c) wood v. The defendant should have stated, in the bill of excepParks, 2 tions, for what purpose he wanted to introduce the testimony, if it was not to prove the truth of the words.

Stra. 1200; 3 Selwyn

1066.

That appears to be the only object, according to this Bill OCTOBER, of Exceptions.

Wickham in reply. The opinion of the judge certainly went to exclude all evidence to shew what it was the plaintiff swore to; and this was wrong. It is not said in the bill of exceptions, that the defendant offered to prove that the plaintiff was perjured. His object in putting the question to the witness is not stated.

Judge ROANE delivered the Court's opinion.

The Court is of opinion that, altho' it might have been improper to have permitted the appellant, in this case, to prove the falsity of the words charged to have been sworn before the magistrate, and thus, upon the plea of not guilty, to fix upon the appellee indirectly the charge of perjury, it was competent for the appellant to draw from the witness what those words were, in mitigation of damages: it being evident that the character of the words in question may liave had a tendency to mitigate or aggravate those damages.

The Judgment is, therefore, to be reversed, and a new trial granted, in which the question propounded by the appellant, is to be answered, if requested.

1817.

Grant

V.

Hover.

Arnold against Hickman.

Decided Nov. 1, 1817.

1. A con

THIS was an action of assumpsit brought by Adam Hickman, against George Arnold, and James Arnold, in tract under the County Court of Harrison. The declaration contain- uable consid

seal, for val

eration, ought not to be avoided on the ground that a party was intoxicated at the time, if his assent was afterwards given, when not disabled by intoxication or otherwise. 2. It seems that intoxication is nota sufficient ground for vacating a party's assent to a contract, unless he was so drunk as to be incapable of business.

3. If a judgment of a county court be assigned, and afterwards reversed by the Superior Court of law, the assignee may thereupon sue the assignor, without carrying the case to the Court of Appeals.

4. Assumpsit may be brought against the assignor of a judgment, afterwards reversed;--notwithstanding the assignment was by a sealed instrument; for, in such case, the sealed instrument is not the ground of the action, but only inducement thereto. See Baird v. Blagrove, i Wash. 170-172.