1792. Adm❜rs of V. Cherry. vent it, as far as it depends on me, by saying there should be another trial. BAY, J. Wherever the jury find a verdict. against the plain and obvious principles of law, and against the directions of the judges who tried the cause twice, as well as against the opinions of the judges at bar, there ought to be a third trial; otherwise there can be no certainty in the principles of the law. In cases sounding in damages, which properly come within the province of a jury, the court will seldom or never grant a third trial; or in matters where law and facts are, in a great measure, blended together. But wherever the principles of law are outraged by these verdicts, we ought uniformly to grant a third trial, so as to give the party a chance for justice. The case of Goodwin v. Gibbon, 4 Burr. 2188. is in point on this head-where Lord Mansfield said, "there was no ground to say that a new "trial should not be granted after a former new trial; there " is no such rule; a new trial must depend upon answering "the ends of justice." Mr. Justice Yates was clear that a second new trial ought to be granted, as well as the first, if the reasons were sufficient for granting it. Aston concurred. Mr. Justice Hewitt-the new trial a second time, must depend upon the ces of the case. 2 Morg. Essays, 72, 73. As to the second part of the motion to change the venue, we cannot grant it, because the party may have a special jury, which he has not yet tried. Mr. Justice granting a circumstan BUFORD against FANNEN. September In an action of trover, the The property, and compensation de- from the time of demand, The must be the measure of da AN action of trover had been commenced and tried, at Orangeburgh, for negroes and a horse, taken by the defend- ule of the ant from the plaintiff's plantation, during the war. negroes, it appeared, soon afterwards returned, or were livered back, but the horse was never sent back. plaintiff, after proving the value of the horse, wanted to evidence of consequential damages sustained by the loss of juy. his crop; but GRIMKE, J. who tried the cause, refused to let the plaintiff into such kind of testimony, in the present form of action, and the jury found a verdict of 40%. being the value of the horse. give The present, therefore, was a motion for a new trial, on the ground of misdirection in the judge, and for refusing to let the plaintiff into evidence of consequential damages. After hearing Harper for the motion, and Ford against it, RUTLEDGE, Ch. J. was of opinion that this kind of testimony might be allowed in some cases, and was for granting a new trial. WATIES, J. It is of great importance to keep different issues distinct, that the parties in one form of action may not be surprised by evidence which belongs to another. The evidence which the plaintiff wished to produce, would havebeen admissible in trespass, but was, I think, properly re-. jected in this action. Where there has been an unlawful taking, either trespass or trover will lie; but if the party proceeds in trover he waives the tort, except as it is evidence of a conversion, and can only have damages for the value of the property converted, and the use of it while in the defendant's possession. The real value of the property is not always the sole measure of damages; if the conversion of it is (or may reasonably be supposed to be) productive of any mages for the 1792. Buford V. Kannen. benefit to the defendant, the jury may give additional damages for it; as where trover is brought for money in a bag, interest ought to be allowed, by way of damages, for the detention; so, in this case, if the negroes had not been delivered, damages could be given for the labour of the negroes; for the use of money or negroes is a certain benefit to the party who converts them, and he ought to pay for it. But where he acquires no gain to himself by the conversion, it does not appear to me that he is answerable for any damages above the real value of the thing converted; if he was, he would be answering for a mere delictum, for which he is not liable in trever. By waiving the trespass in this action, which the plaintiff must do, he waives, I conceive, every kind of personal wrong which is unattended with any gain to the trespasser; he releases him from every thing which death would release him from. If, for instance, the defendant had been dead at the time of bringing this suit, what could the plaintiff, in any form of action, have recovered from his executors? The same amount which he has now recovered, and no more; that is, the value of the horse taken, or damages for the use of the negroes, while they were in the defendant's possession; but nothing for the less of crop, which proceeded ex delicto, and produced no benefit to the defendant. For the same reason as this action is founded in property only, and no damages can be allowed for the mere delictum, I think the evidence offered was not admissible, and that the judge was right in refusing it. BAY, J. thought, that as in an action of trover the tort was waived, all its consequences were relinquished with it. The very nature of the action supposed that the defendant came lawfully into possession; and, if so, no damages could or ought to be given till the true owner made his demand; from which time only, damages ought to be calculated. And where no specific demand was proved, then from the time of the commencement of the action; and relied on the 1 case of Cooper et al. v. Chitty et al. 1 Burr. 31. where the nature of this action is particularly defined; also, 3 Burr. 1364, 65. 2 Esp. 353. Rule for a new trial discharged. 1792. Buford V. Fannen. The Executors of HARBISON against The Administrators of GILES. Term. are not, by UPON plene administravit pleaded in this case, the Notes of hand question was, whether a note of hand given in June, 1786, the 45th secwas become a specialty by virtue of the 45th section of the tion of the county court act, and was to be put on a footing with bonds, and paid in average with them, under the executor's and administrator's law, in case of deficiency of assets? county court act, put upon a footing with bonds, and to be paid in average with but must, under law, (in case of a deficiency of assets,) be paid according to the course of the common law. Parker, for the plaintiff, urged, that this clause of the them, county court law had altered the common law, and made the executor's that which was only a simple contract, a specialty. That the house of assembly had a creative power, and, in this instance, had exercised it, by giving existence to a new kind of specialty unknown to the common law; and, of course, had given the same kind of efficacy to a writing, without sealing and delivery, which belonged to one with all these legal solemnities; and had, by this means, put notes and bonds upon the same footing. That the county court law having thus put them upon an equality, the executors' law, passed in 1789, found them so. That the 26th clause of this act, classed bonds and other obligations together, as of equal degree, and expressly directed that in case of a deficiency of assets, no preference should be given to debts of equal degree. Besides, the word obligation in the executor's law, was of the same import as the term specialty, mentioned in the county court law; and that notes, being thus made specialties, should, according to the legal construction of the 1792. The Ex'rs of V. of Giles. executor's law, be considered as obligations, and, of course, paid in average and proportion with bonds. Ford, for the defendant, contended, that to give such The Admrs construction to the clause in question, was an absurdity and a solecism in terms; for specialties in law were instruments under hand and seal, executed and delivered with legal solemnities, in direct contradistinction to loose notes and memorandums in writing, which were inferior in degree and efficacy to them. This clause in the county court act, was never intended, he said, to alter the common law, with regard to the legal import and efficacy of these solemn deeds, but only to regulate the practice of the county courts, and to blend a number of actions together into one, in order to prevent confusion which might arise in those courts, by inexperienced practitioners, unacquainted with the nice dis tinctions of actions; for it expressly declares "that all judgments, bonds, bills, promissory notes, &c. shall con"stitute specialties, and that all suits brought on them in "those courts, shall be by action of debt only," which shews that they only meant to consolidate the action of assumpsit, covenant, and debt, into one common mass. This must have been the obvious meaning of the clause, if it meant any thing. Besides, the common law was never altered by construction, but always by some express and positive act It was a maxim of the common law that a statute made in the affirmation, without a negative express or implied, cannot alter the common law. 2 Inst. 200. 4 Bac. 641. That the common law had wisely given a preference to solemn deeds under hand and seal, on account of the care and circumspection used in the making and delivery, and that nothing in this clause positively or expressly destroyed this preference given by the common law. It still remained, although notes were constituted a kind of specialty for bringing the action of debt in the county court, and there only. He further contended, that wherever a new remedy was given by a statute in a particular case, (as the present,) this should not be construed to alter the common law in any other than the particular case, 11 Rep. 59. Hob |