OF . THE STATE OF ARKANSAS. 557 141 TIM gPeL/ daWy 1839: GkMf ET AL 68. NAZIONS TflOMAS W. GEA'y ET AL against WILLIAM A. NATIONS. ArrnAn from Pulaski Circuit Court. The rule that one on,defendant cannot .be Witness for his co-d-efendant, and, that a party on the record cannot testify in the case, is subject to this exceOtion--That if there is- no eVideece adduced against one of the defencl; ants, where several are joined in an action of trespass, the,court wiU direct, the jury . to find for the defendant, and then permit him to be introduced as a witness. If several persons be proved to be co-trespassers; by _competent evidence, the declarations of one, ae to the motives and CiroumstanCes of the trespasP, will be eVidence against all who are -proved to have combined ogether for the common Object. Where the record shows that one co-defendant had poSSession of 'Part of the goods. taken, and that he was present when the pretended sale-of the seem goeda was made, and when they were taken away, any admissions or state= meats made by hiim.showing a community of design to have.eitisted among all the defendants,- and that they were accomplices in the transaction, is legitimate proof. And if such admissions-were admitted in the court below, and the record.doeS net show their nature and character this court will presyme that they were. made in the preience of the Other d d e a fe n n ts, and *ere coupled with 'other cirdumstances-and testimony, showing a Community of design-and-concord of action on the . part. of the person making : them, and his co-defenclanta. Papers filed after nn appeal prayed and taken, signed . by . the judge below, a.n41 purporting to contain statements of the testimony, will not be regarded in this court. . In replevin, any evidenCe whiCh shows that the defendants obtained possea-sion of the goods, from any person net authorized to nell, is sufficient evidence of an unlawful taking. In replevin, under, the Territorial' Statute, the measbre of daniagei forrthe plaintiff is all the damages sustained by the taking and detention of the goods. At cOmmon law, -the plaintiff could- only recover daniages for the wtongful detention of the goods, in replevin. A Statute is not to be taken to be in . derogation of the common ldw, unless the act itself shows such tO have been the intention and object of the Legie-. Th la e t u " r T e e . rritorial Statute concerning repleVin is an enlarging, and- not a res, training Statute,And authorizes the recovery of damages, as well for the unlawful taking as the unlawful detention. Where plaintiff takes judgment by default, and a writ of enquiry against some co-trespassers lnd before his writ- of enquiry is executed, betakes a verdict and final jUdgmefit ;against the - others, he will be coneidered as havieg waived his reMedy against these who are defaulted, and will be res., trained from afterwards proceeding on the writ of enquiry. ThiS was an action of replevin for sundry goods, wares, and mer-diandise, instituted in the court below by the defendant in error againstthe pIajntiffs in error and Pobert Magness and William McCraw.-
558 CASES IN THE -SUPREME COURT LITTLE The plaintiffs in error pleaded ROM non cepit, and judgment by default was dan'y los taken against Magness and .11tCraw, and a writof ingniry awarded to GRAY assess the damages as to them. Nothing more was ever done as to ETAL Alagness and McCraw. Gray filed hs plea at the retUrn term, and NATIONS .Hinkson at the terrn thereafter. On the trial of Gray and Hinkson, as appears by the bills of exceptions, the plaintiff offered in evidence the statements and admissions of McCraw, to prove the unlawful taking by the said Gray and Rink-son of the . property mentioned in the declaration, on the ground of community of design and action between the plaintiffs in error and McCraw, in obtaining poisession of the property as accomplices. It had been previously proved that McCraw had in his ' possession a cap, and perhaps Some other articles, part of the same property for which the suit was brought, and was at Hinkson's house in company with Gray and Hinkson, and with Davis and Curtis, (two Men who- had been employed by Nations as teamsters to haul the goods to Jackson county, and who sold the goods to Gray and Hinkson,) at the time when one of the witnesses went to haul away the goods for Gray, from Ilinkson's, and when Davis and Curtis signed a receipt to Gray for the purchase money given them by Gray for the goods. Upon this state of case, the court below permitted the statements and conassions of McCraw to go in evidence to the jury. The court below instructed the jury that any evidence showing that the defendants below obtained possession of the goods in contra. versy from any person not authorized to sell them, was sufficient evidence of an unlawful taking. The court below also refused to instruct the jury that the plaintiff's damages could only be assessed for the detention of the property, from the time it came into the possession of the defendants below, to the time of bringing suit; and instructed the jury, that if they found for the plaintiff below, they would assess all the damages which accrued to him by the taking and detention of the property. The verdict of the jury was—" We, the jury, find for the plain, tiff the sum of sixteen hundred and forty-five dollars "—for which sum the court gave judgment, The defendants below then moved for a new trial, on the ground that the verdict was contrary to law and evidence, which motion was overruled, and they appealed on the ninth of October. On the 20th of October, the counsel for the plaintiff helm filed a statement of the
OF THE STATE OF ARKANSAS. 559 evidence, which he prayed should be made a part of his-motion to . in- litioTas struct the pry, and incorporated together with all the papersin the case. hn'y 1839 This statement was signed by the judge, and the defendants below GRAY flied WI of exceptions to the opinion of the judge, permitting it to NATIONS be .filed. WATKINS St. FOWLER,.,for the appellants: The first question which . presents itself upon the record, is, whether the court below erred in adinitting evidence of the statements and admissions of Wm. McCraw, who was not then a party to the trial, to prove the 'unlawful taking of the goods by the -appellants. The broad; general rule of laW is, that no man is to be bound, precluded, or prejudiced by the acts or admissions of any other person ;— the exceptions to this general rule are such as are founded op obvious reason and:justice, and, without p • articularizing, May be reduced to cases of agency where the acts of the agent are the acts of the principal, bi- of 'arbitration or reference where - it man agree§ to be bound by what another does or says, or of partners where several persons make themselvesone for the convenience Of trade, and the acti ot admission§ \ of cMe partner, within the scope of.the partnership business, are the acts or admissions of all. In indictments and actions .on the case for a conspiracy, from the nature of the action, and the secrecyof such trans-. actions, it . becomes indispensable that the acts and admissions of one conspira t or, §hould be'itt oduced, to throw light upon the motives and intentions Of the others; but even this cannot be done, until the fact of the conspiracy iS proven by other and competent testimony, and we do notrecognize this to be fairly an exception tolhe general rule of law above stated. " Where there are sundry parties to a suit, the confessions of one cannot be given in evidence, nor allowed to operate against anY but the party confessing; where there are several defendants and one of them suffers a default, and the others plead to the action, the confession of the defaulted defendant May be given in evidence on the trial to enhance thedamages; though defaulted he is on trial as to the quan-turn of damages; for the Verdict ascertains the damages as to all the defendants." Swift's Evidence, p. 128; 3 .Day's Con. Rep. 33. Now, here is an authority precisely in point, with this difference only in our favor, that by our Statute when a defendant makes default, the writ of enquiry is returnable to the next term, instead of the damages being
560 CASES -IN THE SUPREME COURT .ROcK. ascertained imtanter; and in this case McCraw. Was not a party to the laley,1839 tria • l a . or did the verdict ascertain the . dama 0 r tes As to him, at all. art cam( be - that as it ma y ET AL , the evidence of tfie statements . and admissions of vs. Wm. McCraw, -thinorls were not admitted to enhance the danzagei, but to prove the very fact in issue, between the appellee and the appellants, wha. were the parties . to the trial, to 'Wit: the taking of the goods. "In civil cases- it seems that an accoMplieeor joint wrong deer, Who is not a "pi ■rty to the record; is a competent witness on either side, unless he is in some way-answerable over to the defendant, for the, consequences of his conduct," &c:; and the author ' goes on to say— " It seemspow to be settled that a joint trespasser is a ' competent witness for the plaintiff, 'although a recovery against the defendant would discharge the action . .against himself:" and that the fact of his treingal co-trespaiser would tend to leSseiv . his credit. In the next paragraph, the author says; "A • co-trespasser, ot other joint wrong doer, whois not . a . party to' the record, is in general a coMpetent witness forthe defendant;: for the reeord would not be evidence for him in another. action, and his . interest is rather on the other side, since if the plaintiff' failed in obtaining cornpensation against the present defendant; he might afterwards attempt to recover it from the witness; and if the plaintiff recovered, the witness would not be liable to the defendant tor contribiltion: . Where, however, a co-trespasser is made a defend- . ant,_fie is in general competent as a witness on' either side. (And the authorities on this . point 'are . strong, numerous, and all tending to the same conclusion.) . Where a coArespasset lets judgment ko by default, he is a competent witness:for a to-defendant; but he is net a coMpetent witneSs for the .1 Starkie Ev. 131,2, 3; Wakely vs.' Hart . et al. 6 Binney, 319: Brown et al. vs. Howard, 14 -John. 119; Buller .Visi Pruis, 285; Gilheres Ev. 250; 2 Esp. 552. Swift's Law of Evidence, 73, 4; '2 Starkie E y. 581; Blackett vs. Weir, 5 B. (ir C.389; Doe Dern. of Harrop vs. Green, 5 . Esp. Ca: 198; Brown.vs: Bro . wn,2 Taunton, 752.. And• seb particuhnly, the case of Chapman Vs. Graves, and two others, 2 Cainpbell, .383----a case precisely in point, whertthe testimony-of 'Frost; azat*espaSY èr, who had made default, was rejected, when nffeted inetilpate . the other defendant., and the reasons of the rule giveaat large. In view . of ail these -autherities; if the- testimony of a co-defendant in .tort, who had Satfered a * defatilt,..could not be introduced .against, (or even for,) hiS co-defendant on ttial, a fortiori mediate and
• 071" TELE STATE OF ARKANSASa secondatr evidence : 9f his statements adrnissi ns be, Elplitt ted fOr . such evidence is alWays partial and of desibtfaa-ndsusieielonir.S'i.?isr haracter, and for.' . that reason justly eicluded i ,:unleak,the : natnre of isli4't :extreme cases will admit of no -better, testimony. ksiichSebOndary evidence : 'coUld he clrilitted, then the condition-Of thenppellantsin'tiAll'm the -61.1et beloW was indeed fortunate: Stabbed:in thedark by the admissions and statements of a witness,..who was vitally interested • against them; Vaddled with the *bole burthen_ of 'daMages.vvitlioat even an opportunity:Of confronting . that f witness . .14 Crefii:i4amina-ton. liletter if the aPpellants; instead of "pleading to.4lle !actino, had ; abandoned the Case, and awaited their fate.: , The : court needs not to , be reminded, that, ". against-joint trespasser's there canhe but one satisfaction, MA no apportionmen t of damages among , the se'Veral defendants." g iown Vs.; Allan and Oli7fer, 4 :Pp: N.: P. c. 158. , And -tif separate snits be &Fought against several :defendants for a- joint tres-pais;-thenlaintitr may ' recover, separate judgments- agaiast each; but he can !have but one satisfactianand he May elect de , .me,lioribui damnii, and issue his eXecution therefor against one of . them. ingstari ytio 'Bistyip; I. J. H. 29O _ . _ . Ara, thus it reSulti tbatithe . stateMent.s and admiasions , of„Neprdw,-. who: bad : suffered default, were inadmissible-On aceount of hi3 built; vitally iat*sied 9 ; (or that 'damm--ges wonld ,be-asieSsed h , gainit hiM, thOughthq,defeudaufs 4. 13leaditig to
issue 4 were actinitted- crasey vs. PlI sbb;and.OnOiheri 1.,Orang4,11W,a.
Iftit theevidence of the:statements and adpiissionS.of McCraw were
odioitted ou the grodnd of a.,commtinity of , interest and: design, " it havin g been proVen that Affkato 'hada- rap, and, perhaps sbm4, Other
artickspf the Same lot of goodfi,: ., at;the .time that:',PaVis and
Curtis signed a..tecewt to; on e 9( the appellants of -tilc Ptuthae.Onong of-. the: goods; (otto, that effect ; -.see r IA II of exceptions). „Now we suggest that this bare, nakect : shOwing does:ncit establish:a einnalunity 'of Ante-test an& Slesigni , but if:it , shows any thing it vbews that iamething had
13een nrOVen against-One of , the defendants whOSertestimony, or:iather we -should.say, the_ eVidence of 'whose; lestirnonywas seaght to be intredUeed; : and that tcording to all the 'rules of law above,-_stated such evidence waS inadmissible. But allthis is wholly "aterial; because . by Making .default -the defendants McCraw and ,Nagness, admitted Ow -tort laid in the declaration; and if, by any ponibility, .the _ appellee could avail himself _of their testimony, he could onlydo so . • by' entering a remitter of damages, which he ' did- notide-;:,- hat. fia, .d LI
sal CASES IN THE SUPREME COURT ape a x a . judgment by default entered up, and a writ of enquiry of damages Ittivy ma awarded against theM. ‘7 RA ,i, The Second assignment of errors we pass by in silence. ETAL The third and foUrth assignments of eriorS may be -considered NATIONS together. There is much barrenness in the decisions, as to the measure of damages in replevin, at the coininon law. But the appellee haf waived anyquestion'which might arise here, by , adopting in his whole proceeding ouistatutory regulation Conceining the action of replevin. except in the one material Matter of damagei. Our Statute, aftet regulating the action Of replevin at length, is clear and eXplicit, that "if judgment be for the plaintiff, he shall have his damages assessed by a jury, or the court; for the detention from the time the property came to the posseSsiOn of the defendant to the time of bringing-the action." Dig. Tit. Peplevin and 4 Detinue, sec. 2. In the face of this provision of law, the court below refuSed so to instruct the jury, but initructed them " that if they:find for the plaintiff, they are to find for the plaintiff all the dainages which actrued to the pfaint. ;er by the taking and detention of the goods by the defendants." We claim that our Statute, clear and explicit in its terms, is not so without reason. - When the Statute gives the remedy by replevin, "in all cases Where any goods or chattels shall be takeri from the pos session of any person lawfully possessed thereof, without his or her consent," it does not mean to give the plaintiff in replevin dangerous ane unreasonable powers. We suggest whether the common law doctrine of distress forrent or damage feasant, is not to all intentS and purpose abolished by disuse- in this State; and that when the legislature so extended the remedy of replevin, it was clearly intended to make the the aetion of . replevin similar in its operation to the action of detinue, except that in replevin tile Statute requires an affidavit of the unlawful taking, aS well as haying been lawfully possessed of the chattel,lbefore it will arbitrarily diiest 'one than of property, and Yest the 'possession of it in another, tiretrious to any trial of the right or property: :With the : exception of the unlawful taking, replevin and detinue are co-ex-- tensive reinediei; in both cases the -Statute giVes damages: for the detentio! but in neither, for the taking: If there are any peculiar circanastances attending the taking, fle plaintiff hath adequate reme• dy, by action of trespass, and the alia enorrnia go in aggrayatioth As a further parallel between replevin and detinue, in both cases, the specific chattel may be restored to the : plaintiff: in the one case; it Js
OF THE STATE OF ARKANSAS. 663 restored to him on tnesne process, n the other, on final process; and in tyrrut either ease, the party remaining in posseSsion of the chattel pending jannoycfn GRAY the suit, gives bond to swire the other. e . The action of replevin would of itself seem to imply t , hat the spe- LA cific chattel Sought to be.replevied has been delivered to the plaintiff. NATIONS $elzvyn, X P. Tit. Replevin, p.1143. Tor the plaintiff has his elec-fion to bring trovei ., and recover the value of the goods in damages, and the presumption is, that he will eleet the best form of action; but in the present case such speculations are needless, because ihe return of the sheriff shoWs that the goods were delivered to the plaintiff.— Suppose the goods to have been worth $2,000 cost and carriage, with an advance of 20 . or 25 per cent: by way of profit: they are charged ifi the:declarrition to have come to the possession of the defendants. on .the 15th of January, 1838; the writ was isSued on. the 2:2nd, and returned. , exeeuted by the sheriff on the , 23rci of the same Month, showing that the defendants had possession of the goods for one week-yet the verdict of the jury gave the plarntiff $1644 daMages, SO that -by this proceeding, the plaintiff has not only bad a return of his goods, but haS recoVered nearly their value in damages for this brief detention. It Moreover appearS frOin the declaration, that the goods replev-ied were of such an inanimate nature, that the plaintiff, by their detention, for a short space of time, could not have been greatly dam-nified. If . the property Sought to be replevied were a steam- boat; or the like, in good business, then the plaintiff would he clearly entitled to recover such reasonable darnages for the detention, as he - Might have suffered, by being deprived of the use of the boat,. while she was in the pessession of the defendant; These. facts appearing in the record clearly show, that the verdict of .the jury in this case was outrageous and oppressive, arid that the instruction of thc court and the refuszil to instruct, set out in the third and fourth assignment of errors, is manifestly erroneous. Of this motiOn the appellants took uo nOtice, except to file 'their bill of exceptions by way of protest. It wOuld . be an insult to your Honors to argue • that the evidence in a cause can never conic up before this court, unless it is brougbt up legitimately by exceptions to endence, demurrer to evidence, or for a variance, or by motion for a new trial upon the ground that the verdict is-contrary to evidence. We cannot travel out of the record to state the condition in life of thc appellants; but wc ask for the magnitude and importance of the
56i CASES IN" THE SUPREME COURT LITTLE Me, As exfiibited'by the record, that patient andthorough.investi= 1839 gatiorovhich yOur Honors might not Censider .due . 4:o the principles x G T R AN invelved. AL NATIONS:. TRAPNALL COCKE, contra: During-the progre§s of the triaFon the issue joined, the appellants took various exceptions to the opiniens.of tbe court. : The jury return:- ed a verdict in favor ef . the appellee. for $1,645 in damages, and afterwards, at the same term, the coun§el of-the appellee presented a -drift-ef the . evklence givo u po nthetrial,.and the court upon his me-tion made it a partof the record, to which the appellants excepted.— In the-absence of . any principle _or .. precedent denying the authority of the A!ourt, it is. not perceiVed how the correctness er.soundness .of this opinion can : be- successfully controverted.. The appellate court will be governed more . by the actual- mei . its . and general result of a • cense, than the propriety Or impropriety of- any interlocutory opinion§ -giVen by the inferior Court dteing the trial. An . erroneous : opinion is frequently r endered:perfectly harmless by the . subsequent admission af testimony, that stipplies the defiCiency and - materially changes the CoMplexion of -a cause.. A Party May, .and freqh en tly. does, present .a view of 'the:Case by . incorpOrating a Partial abstract of the evidence into a bill of exceptions, which would be entirely changed by a survey of-all:the testimeny.. Nninjury Can be done, brit may sometime§ be Pre . vented; . by makingithe whale evidunce a part of the fecord;— and-the Supreme Court will then he more enabled Co understand and appreciatethe . opinions of the inferior court, and determine according to . the juitiCe of the cause... yide Givms Vs. Bradley, 3 4t;. Bibb. 15; .B1b6. 1 Littell; 255; . - Clarke %s. Castlensan,1 J. J. .11 1 . arsh. 70: The adinissions of a c o -trespasser' are evidence , against every.cne who acted together and in concert with him in: the commissien of the trespass. : "). Sasinders on Pl. and . Ev. 59; Rex. vs.. Inhabitants of H Starkie, 467; although made in.the absence of the.Otheri.. Wright . vs.- Court, 2 -Car. St Payne, 232. . As to what Makes Co-trespassers,see'2 Starlde, .401, 2, p; :19 Johnson, 382; 10 Wetilall, 634; I2 Wendall, 39. The action of replevin iS analogous to, : and governed by, many of tlie . same rdlesthat regulate the action of trespais de bonis- asportatis, and is ce-extensiie with it.- I'M/L : 140, 3; 14 John. 17; 1 Chitty, 159; 3.J. J. .Marsh. 124.
OF THE STATE OF ARKANSAS. 565 Having the goods in possession is -sufficient evidonce of the. taking Li •R rm OO y K s , in replevin. WaltOn vs. Kcrsop, 2 Wils. 355; 1 Chittil Pl. 159. It 1.a n'y 1839 is sufficient to show:that . the defendants had the pods in . poS g ession at GRAY the place alleged. 2 Saunders' Pl. and Ev. 287;. 3 Stdrkie, 1296. ET, 2 i 1.L Under The general issue in replevin, which -admits- property -in the "Tmi" plaintiff', see 2 Saunders' Pk andEv.'28-1.. The defendant is a. wrong doer, and his possession-is unlawful, ua-. less he takes the goOds by the . authority. of 'the owner. '1 Saunders' Rep. 347, er; ChaMbers ys. Donaldson, 11 East. '65; Graham. vs. Pe; al, 1 East. 214; Harker vs:. Birkbeck, 3 . Burrozus, 1556. The plaintiff is- entitled to judgment for the fall amount of . the injury, and•all and each one of the • co-tresp • assers, even if not . tried 'at the same time.. Sodinsky vs . .McGee, 4 J. J. Mirshall, The judgment' is for the taking and detention of the goods. The record shows a motion fora new trial of the cause still pending, and consequently on that ground the appeal must be -dismissed. DicluNsoN, Judge, delivered the opinion .of the court: This is 'an . action of replevin.. The declaration is in the usual form. On the return of the writ, the appellants appeared and pleaded non cepit, to which there was a replication -and issue, and judgment rendered in favor of the appellee . ; to. reverse - which .. an appeal is now prosecuted in this eptirt.. On the trial of the cause at . the October term, 1838; judgment was taken by . default against William McCraw and Robeil Magness, co-defendants; and a writ of enquiry .awarded. * Whether the writ of e...quiry was ever executed or not, we are at a 'loss to determine; for the rt.cord does not shoW that any further proceedings were afterwards had against them. During the progress of the trial, several bills of exceptiohs were filed . to the opinion of the court by the appellants and the assignment of errors pr'esents the questions of law that were made . in the court below. For the appellants, it is contended on the first assignment, that the evidence• of McCraw, offered by the appellee in support of his action, was inadmissible; he being a co-defendant upon the record. •The bills of excep-- tions,set forth, that the testimony of McCraw consisted in. statements, and admissions that conduced to prove the unlawful taking by Gray and Hinkson of the property or goods mentioned in thc declaration, on the ground of community of design between. Gray, Hinkson, and McCraw, in obtaining possession. of •the goods; it being proved.that
CASES IN THE SUPREME COURT LITTL E nOck, MeCraza . .h ad -in his. possession a cap. and soMe ether articles-• :grey Ws-belonging to the tot of . geods for which the • snit ibrougbt,. and that he-- GR Ay was at. Binkson's- in company- wait . Gray anti. Hinkson,. *hero Davis wr AL and (Antis signed a receipt to Gray forthe pnrchase meney given..for• WAW1 " 8 Said goods:- and.that he was_also there when the goods were- hauled away for Gray: It has been often ruled in this r court, . and tho soUndness-of the doctrine cant-mot be controverted or tleni6d, that all legal presumptions operate in sopport of the verdict and judgtnent below, unless the -Sanie be. manifestly erroneous by some-affirmativematter contained in The record itself, ot from some other facts and circumstances- that the Court-is bound judicially to take notice of- This being the -case, We-are bound- to presume every thing in.favor of 'the verdict and judgment of: the Circuit • Cotirt.. rhe rule that one to4lefendant cannot be wanes's' for his eo-defendant, , or that .a.party on the reeord cannot ttis-: dy in the case, is subject to this exception: . For instance,-if there ig no evidente.adduced -against One or the defendants- where seveMi are Joined in an action ot trespass,..the 'court will direct the . jury to find a-verdict for that defendant, and then • perrnit him to beintrodticed -as. witness; for if- thiS was not the case, by joiniog several •defendants in• trespass or the like, the plaintiff would thereby eiclude- from. the consideration- ot the jury evidence that was- in every way itn-: portant and -competent. The iSsile-in- this ease Was- non .cepit, and therefore it waSineurnhent on the plaintiff tO proVe the taking of the goods, or partef them, in theplace• Specified in the declaration; hnt itt igsufficient-under: this issue-to prove a detention of these got:kis by the defendant in that place: 2 Starki,.1,Z95. Ahd what:evidence could be more satisfactory -than the 'admissions of . the defendantS themselves ; for itis well settled that if. several _he proved to be co-trespassers-by competent evidence, the declaration of one as to the, motives and circumstances of -thetreSpass; will beevidence against all-who are proved to:have coMbined together for th e common object. The record - in thiscaSo shows that part of the goods- were in possession of McG..M.o, that he was present when -the pretended sale was made, and when they were taken away ; and any adnnis§ions -or statements that he Made, Showing a eommunity of design to have existed . among all the defendants,' and that•they were aceomplieca ifi the transaction, • was legitiMato proof: The bill of exceptiOns wholly 'fails to seteut the extent-and character of these admissions: • We are bound-tberelore. tO presume. that they were made in the -presence of Gray aria Flinkson,
OF TIM STATE OF ARKANSAS. 567 and coupled with other circumstances and testimony showing. a corn- Loe and 'concert of action on . the part Of MeOuzo and Jaw) , 1839 mimity . of design . the 'appellants, and therefore- proper and legitimate evidence for the i s Y kt consideratiOn o( the jury: It may not be amiss to . state in this stage of NATIoNs the eiamination,. that there are . tivo papers, attached to the. record, and ' Which Are . signed by the judge, purporting te give a detailed statement of the evidence or testimony 'adduced on the trial. We cannot regard theM as -constituting any. .part . of the retord, for they were filed, one on 19th,.the other.on the 20th 'Of- October, 1838, and therecordshews that prior to that time, to wit, on the . 17th day -of the same month,_ an appeal-had been regularly prayed and taken; and it does . not appear that -these exceptions . we re taken during the trial, or upon any motion made previmis to the . granting Of the appeal; consequently, they cannot be regarded as comprising . a part of therecord; and it is therefore.iMprope r t e look into or give any opinion upon these statements.. The second assignment questions the-opinion .of the court, in instructing the jury "that any evidence which showed that the ap, pellants obtained possession of the goods from any person not authorized to . sell, was: sufficient evidence of an unlawfUl taking by the appellants." It was certainly competent for the-plaintiff to show that he had a general and-special propertyin-the goods, and that the defendant had obtained through the instrumentality of nny person who had no authority to sell, or to . deliver the possessiOni -If the goods were the property -Of the appellee; . and the appellants. obtained- . poession of them without authority of . law; surely these facts or . circumstances prove an unlawful taking by the appellants, - and, were calculated tO when-coupled with . that testimOny,would amount to 'full and-conclu7 sive proof of an . unlawful taking. . The court therefore rightly instructed the jury, that any evidence that showed an unlawfultaking by the appellants, :was . -competent proof in 'the cause. . The third and . fouith assignments may be considered togeater. 1st, Iri refusing . they find for . the plaintiff, * they are to assess to instruct the jury that if his damages only ' for the detentiOnof the prOperty, froM th . e . time the saMe came into the . defendant's .possessiou, to the time of bringing the action; and in instructing theM that they are to. find .for the plaintiff all the dantages which-he had sustained for-the taking and detention of the goods, In Order . to , determine the queStion eorrectly, ' it is necessa r y to consider - the nature and character of the action of
CASES IN THE SUPREME COURT Lyrrpt Boox, replevin, which is analogous to, and governed by many of the sanid lan'y 1839 rules _that regulate the action of trespass/de bonis asportatis,,and GRA y co-extensive with it; for it is laid down by ET AL BLACKSTONE that the taking and detaining a man's goods are respectively trespasses. dIrchbold'g Prac. 194. It is stated that in replevin a verdict for the plaintiff gives damages precisely as in trespass. At common law the action of repleY. in was brought only for the restitution of goods unlawfull y taken with damages for the loss sustained by the invasion of the parties' rights, and was generally founded upon a distress wrongfully taken, and without sufficient excuse; and as the goods were delivered to the owner, he could only recover damages fOr the unjust detention from the time the same came into h — is possession, until the bringing of the action, and not for the caption; because the Original taking was.unlaWful.--. This rule was based upon the principler that, as such original taking was lawful, it would be unjust that the plaintiff should recover any damages other than for such detention; for that is the gist of the actiorr:. 2nd Chitty's BlaCkstone, 146, 151; claitty's Pl. 146; - Coke Littleton, -145,b. The question now recurs, does our Statute enlarge the Common law, or is: it in derogation of- it? In determining this point, it neCessarily tests the correctness of the instructions given to the jury in the _court below. It is a rule of sound, legal construction, forti. fied by authority and reason,that a Statute shall not be taken in .derogation of the common law, unless the act itself shows such.to have been the intention and object of the Legislature. The proceeding ia this case is prosecuted underour Statute, and that it is art enlarging and not a restraining Statute, the act itself clearly demonstrates; for it declares that in all cases where any goods or chattels shall be. taken froth the possession of any person lawfully possessed . thereof, without his or ' her consent, it shall be lawful for such person te bring his actiOn therefor against any person or persons in whose hands or possession they' may be found, and that before any writ of replevin shall issue, the plaintiff shall file in the office Of the clerk of the Circuit Court an affidavit, stating he was lawfully possessed of the property in the decla, ration mentioned, and that the same was unlawfully taken from his pos. session, and withodt his consent, within one year next preceding his application for such writ; and that he is lawfully entitled to the possession thereof. If be then complies with the other regulations of the act, he is entitled" to prosecute his remedy in conformity therewith. Here the aCtion is clearly , given for the unlawful taking, as well
569 :OF THE : STATE . OF ARKANSAS. as for an unlawful detention, and of course if the plaintiff is en- LigcTic tat titled to a•verdict, he should be permitted to recover damages, Jan'YI, 13 9 as well for the unlawful taking, as for the unlawful detention, of GRAY 1 : "; the property. TO give him a right to the action for . an unlawful _ NATIONfi taking, and te . afford hinat the same time no remedy for,Such a taking, would be for the Legislature to clothe 'him with a right, and in effect to cl-eby , hiii; any adequate -redres ' i'for the injUry 'suitained. BY' the common la*, if he was entitled to a Verdict, he.was entitled to damages only for the 'detention of the property;:and . not:.for the Captioa;-- and . the ,principli & . is tally :recogniOd and 'establiShed bY nue Statute and where the Statute, in addition to this, declares the action shall be for the unlawful and Wrongful taking'of ithe p'roperty'euf of the pos, sessioa Of him who ' is entitled to it; it certainly int . ended tO extend: , to him the neceisary redress, for the injUry it asSerts he ha g sustained_ If these positionS be true, then the instruttions of the court below are evidently eerrect. .TheY nierely assert that the jury are to find for the plaintiff all the damages which aecrned to him by the taking arid detention Of the goods by the defendants, which is in strict Conformity totiur Statute. : Before the examining of ihe record; as previouAy reMarked, it does'nOt appear that any further Steps Were taken upon the writ Of enquiry awarded 'agai0 1he Co 7 defendantS, nor is ahy question raised in Oita. there Caa haVeheed nO - doubt bid that the appellee:had : aright to prosecute his aCtion tO recover, as:well against -the : appellants, as the Other cidefendants; . bnt he is entitled to one satisfaction: :he:should-, after the Verdict had been rendered in his favoragainstithe;appellants-,_ have omitted . to enter up jUdgment against them,: until the- damages had been : awarded 'againSt the Other Co-defendaats. Ile 'could tlien ha .ve made his election as to ivhieh Of the parties he would have had judgMent against; and relied upen for satifaction; but inosnauch upon the rendering of the Verdict against the apPellantS, he proceeded tO eiiter UP Anal jUdgMent, it ninst be. eonsfdered tbat he had made his electiea tnproceed against tliem alone, : and the deing So operated as a restraiat against the Co-defendant, and detained' him from any further' proceeding upon the writ Of enquiry. We are therefore of opinion, that thereis no error . f in the proCeediags, arid that the judgment el the Circuit Court of PulaSki county be affirmed with ;cests. MIli
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.