Dorsett, adm'r, vs. Frith.

the value of the woman and child at the time of the sale, or the value at any time afterwards, up to the trial, might, at the option of the jury, be taken as the measure of the damages.

The time of the sale, for ought that appears to the contrary, was the time of the conversion. The conversion consisted it seems, in the act of sale.

There is a conflict among the authorities, as to whether the jury are confined to the value at the time of the conversion, or are to have the option of taking that, or, some subsequent value. Mr. Sedgewick seems to think, that they are confined to the value at the time of the conversion. Sedgewick, Meas. Dam. 481. See Id. 475, et seq. See too, Suydam vs. Jenkins, 3 Sand. 61-1.

This Court has held, that the jury were at liberty to take the value even up to the trial.

The injury consists in the conversion, and as long as the conversion endures, the injury endures. Every instant of the conversion may be considered a repetition of the injury. The thing remains the true owner's at the last instant of the conversion, as much as it was his, at the first. But after the wrong doer has parted with the thing to another person, the conversion ceases as to him, and passes over to that person, and abides with him as long as he keeps the thing.

I think, therefore, that the only cases in which, the option exists to the jury, of taking a value subsequent to the first conversion, are the cases in which, the property remains in the possession of the defendant subsequent to that conversion; that is, are cases in which, there is a continuing conversion; and, that in these cases, the option does not extend beyond the time when he parts with the possession; that, if the owner wants to recover by a value taken subsequent to that time, he must elect to sue the person to whom the possession has passed.

In the use of the word, "elect," I do not mean to say, that suing one who converts a female slave, and recovering from

Dorsett, adm'r, vs. Frith.

him, is a bar to a suit against a person to whom he may have. sold her, for the issue of the slave, if she have had issue after she came into the possession of this person. I express no opinion on this point.

It must be apparent from what I have said, that I agree with the Court below, on the question under consideration. The conversion was not a continuing one.

MCDONALD, J. dissenting.

I dissent on the ground alone, that I think evidence of the value of the woman Feraby and her child, and of her hire from the time of the sale to the time of the trial, ought to have been admitted to go to the jury. The action enjoined was an action of trover. The plaintiff might have waived the tort, and sued in assumpsit for the price for which the woman and child were sold. In that event he could have recovered the sum for which they were sold with the interestBut he chose to proceed in tort. The defendant in trover was a wrong-doer and the plaintiff ought not to have been damnified by his tort, even if the defendant derived no advantage from it, further than the then value of the negro. The English rule of damages affords no just criterion here, in suits for the recovery of slaves, because they have no slaves there. A case like the one before us, of the conversion of a female slave and her child, constant increasing in value, is unknown in the English law. But apply a principle of the English law to this case, and there is no difficulty: If a case be such that either the person who commits, or the Jerson who suffers the wrong must lose, the loss must fall on the wrong-doer. The defendant should make complete reparauon for the wrong which he had committed. If he had not sold the negro, the administrator would have been entitled to receive from him the negroes as they were at the time of the trial. Should the tort of defendant put him in a worse condition? I think Judge WARNER, in delivering the

VOL XXV.-35

Stamper et al. vs. Hayes.

opinion of the Court in the case of Schley vs. Lyon & Rutherford, 6 Ga. 535, stated the principle of the Court in awarding damages in actions of trover to be, "that the plaintiff is entitled to a full indemnity for the injury sustained, by reason of the wrongful conversion of his property by the defendant; that the defendant shall derive no benefit from his own wrongful act"

MARTIN W. STAMPER et al., plaintiffs in error, vs. JAMES HAYES, for use, &c., defendant in error.

[1.] In a suit on a promissory note, slight evidence that title to the note is in the plaintiff, will be sufficient to prevent a nonsuit.

[2] A receipt of payment, though not obtained fraudulently, yet, if obtained by mistake, or, without consideration, does not bind.

[3] A purchaser, even with notice, from a purchaser without notice, is equally protected with the latter.

Complaint, from Early county. Tried before Judge KIDTerm, 1858.

DOO,

The facts of this cause are stated in the opinion of the Court.

HOOD & ROBINSON, for plaintiffs in error.

COOK & LYON, contra.

By the Court.-BENNING J. delivering the opinion.

The suit was on an endorsed note, of which the following is a copy:

Stamper et al. vs. Hayes.

"By the first day of January, 1855, we promise to pay James Hayes one thousand dollars, for value received.

This 20th July, 1854."

(Signed)

"M. W. STAMPER,

E. C. CORBETT."

"I endorse the within note, and transfer it to C. Hart, for value received. August 24th, 1854."

There was no endorsement from Hart to Pollok, for whose use the suit was brought by Hayes.

The defendants "moved for a non-suit, upon the ground, that the equitable title in the note, having been transferred to C. Hart, by written endorsement, and never having passed from him, it was improperly brought; no equitable title or interest having been shown in Morris Pollok; which motion, the Court overruled, and the defendants excepted." This is the first exception.

A part of Barnard's testimony was as follows: "He does not know whether or not, Morris Pollok traded for the note with the notice that the negotiability of the same was restrained. He gave for the note, the effects of a grocery, he considered, worth three hundred dollars."

Heree, is some evidence, that the title had "passed" out of Hayes and into Pollok. True, this witness, Barnard, had, in a previous part of his answers, said, that "Hayes," (not Pollok) "bought out the effects of a grocery from Hart and McCabe." "The thousand dollar note was to pay for the same."

But both statements being before the jury, it might be, that they saw reason to prefer the one first quoted to the one last quoted; or saw some way of reconciling this to that.

Then, the possession of the note was in Pollok.

[1] We think then that there was evidence enough of Pollok's title to the note, to prevent a non-suit, especially, as

Stamper et al. vs. Hayes.

he had not been particularly warned to bring evidence to that point, there being no plea, that he had no title to the

note.

The defence was payment; and, to support it the defendants introduced a receipt in the following words:

"Received of E. C. Corbett, one thousand dollars, in full payment for a note, I hold on Stamper & Corbett, due January, eighteen hundred and fifty-five. Oct. 10th, 1854." "JAMES HAYES."

(Signed,)

And witnessed,

JNO. M. SMITH."

One of the defendant's requests to charge, was; "That Hayes, in order to evade the effect of his receipt, must show, that it was obtained fraudulently, and if not so shown, it is good against him, and is a good defence to this note, unless Morris Pollok had previously obtained an equitable interest in said note." This request was refused, and the refusal was excepted to.

[2.] It may be, that a receipt will not bind, even though not obtained fraudulently. A receipt obtained by mistake, or without consideration, does not bind; and it was quite a question on the evidence in this case, whether this receipt was not obtained without consideration.

The first part of this request, then, was not proper.

[3.] The same may be said of the remaining part relating to Pollok, and, for the reason, that that part leaves out of view, the relation which Hart, the first transferee, bore to the case. If Hart's title was good, if he got the note at a time previous to the receipt, and Corbett knew that, when he took the receipt, then the title of Pollok, Hart's transferee, was equally good, even though Pollok, when the transfer to him took place, had notice of the receipt. A purchaser, though with notice, if, from a purchaser without notice, is protected to the same extent to which, the latter is.

We think, that the Court was right in refusing this request in both its parts.