to that rule, the Court of Appeals must greatly lament it. JASTARY,

1814. Under this impression, it is humbly asked that, if the petition should be rejected, the ground of the rejection may be stated, Spencer and to enable the legislature to possess the court of a branch of White, power so important to the best rights of the people of our Wilson. country.

I will mention, that on the principles herein investigated must depend cases which are yet of more common occurrence than the one presented by the petition. I mean those in which the defendant at law, knowing that there is a balance due on the bond, or account, on which he is sued, in the confidence, so commonly entertained, that the creditor will give the just credits, fails to incur the expence to himself, and the delay on the plaintiff, of proving them before a jury. If Spencer fails, so must all the debtors who are thus lured into such an unfortunate confidence.

Wirt, for the appellants.

Nicholas, for the appellec.

Thursday, January 13th, 1814, Judge ROANE pronounced the following opinion of this court.

The court is of opinion that, although the appellants might have submitted the question, involving the authority of Patrick Cavan as agent for the appellee, to the jury in the trialat law; and although it may be that such jury ought, in that case, to bave affirmed his competency to have received the sums paid on account of the bond in question ; yet it not appearing that such defence was actually made at that trial; and this being a question involving trust and confidence, and

(1) Note. See Alderson v. Biggars and others, 4 H. & M. 470; Nia cholson and Heth v. Hancock and others, Ibid 491; De Lima v, Glassell's adm. Ibid. 369; Syme and others v. Montague, Ibid. 180; Terrell v Dick, 1 Call, 546; Turpin adm. of James v. Thomas, 2 H. & M. 139; Kincaid 1, Cuningham, 2 Munf. 1. ; the Andito. v. Nicholas, 2 Munf. 31; Fenmsick v. M. Murdo, and Fisher, 2 Munf. 244 ; Duvals v. Ross, 2 Munf. 290; and Price's executor v. Fuqua's administrator 3 Munf.

as such peculiarly appropriate to the jurisdiction of a Court JANUARY, 1814.

of Equity; and it not being proper to confine the appellants

to the common law jurisdiction, in which they would have Spencer and been deprived of the appellee's testimony ; the bill was proWhite,

perly exhibited. And as it appears that the said Cavan was Wilson.

generally reputed and considered as the agent of the appel-
lee; and it being, moreover, admitted by the answer of the
appellee, that he was specially authorised to sell the land, for
which the bonds in the proceedings mentioned were given'
and to receive the money due upon the first of said bonds;
(which circumstances were well calculated to inspire a con.
fidence in the said agent's competency in the present in-
stance ;) and no measures whatever having been taken by the
appellee prior to the payments proved to have been made on
account of the bond in question, calculated to do away that
confidence and presumption; the court is further of opinion
that the appellee ought to be bound by the payments afore-
said ; and that the decree aforesaid is erroneous.

Decree reversed, and cause remanded to the Court of
Chancery, with directions to that court to re-instate and per-
petuate the injunction, for such sums as may be proved to
have been paid, pursuant to the principles of this decree.

Argued, Satur. Vaughan's Administrator against Winckler's Ex

ecutor.

day, March 13th, 1813.

1 In what

The declaration in this case was in the following words : form the declaration may

“ Mecklenburg County to wit, John Winckler, executor of be drawn, in trespass by an Executor against an administrator, for goods taken away by the intestate from the testator.

V.

Jihn Winckler, deceased, complains of Richard H. Walker, MARCH,

1813. administrator, &c. of Thomas Vaughan, deceased, defendant in custody, &c. of a plea, of this to wit, that the said Tho- Vaughan's admas Vaughan, in his lifetime, to wit, on the

day of

ministrator, in the county aforesaid, with force and arms, unlawfully took Winckler's and carried away from the said John Winckler, deceased, in

executor. his lifetime, a large quantity of corn, that is to say, fifteen barrels of corn, of the value of 301. then and there being the lawful property of the said John Winckler, deceased, and in his quiet possession, and other wrongs and enormilies to the said John Winckler then and there did, against the peace of the Commonwealth, whereby right and action accrued, in pursuance of the act of General Assembly in that case made and provided, to the said John Winckler, deceased, in his lifetime, and to the plaintiff, who since his death, qualified according to law as executor of the last will and testament of said John Winckler deceased, to de. mand and receive of the said Thomas Vaughan, in his lifetime, the amount of the value of said corn, and other damages so as aforesaid done to said Jolin Winckler, deceased : Yet the said Thomas Vaughan in his lifetime, and the said Richard H. Walker since his death, although often required, have hitherto altogether refused to pay the same to the said John Winckler, deceased, in his lifetime, and to the said plaintiff since his death, and the said defendant still doth refuse so to do ; to the plaintiff's damage one hundred dollars, wherefore he brings suit, &c."

Issue was joined on the plea of not guilty ; and a verdict found for the plaintiff for one hundred dollars damages; two bills of exceptions having been tendered by the defendant, and signed and sealed by the court. The first stated that, on the trial the defendant's counsel moved the court to instruct the jury, that, even if they believed the corn in the declaration mentioned belonged to the plaintiff, they should only give the value of the corn, and not vindiclive damages ; which instruction the court refused to give. From the second, it appeared that the defendant offered to prove that

S

VOL. IV.

MARCH, Robert Lewis, of whom the defendant's testator purchased, 1813,

and under whom he claimed the corn, declared, prior to the Vaughan's ad

institution of the suit, that the corn, when he sold it to the ministrator,

testator of the plaintiff, belonged to the intestate of the de. Winckler's fendant ; which evidence was not permitted by the court to

;
go to the jury.

Judgment "being entered for 100 dollars damages, to be
levied on the goods and chattels of ihe intestate, in the hands
of the defendant to be administered, &c. and the said defen.
dant may be taken, &c.” was affirmed by the Superior Court
of law, whereupon the defendant appealed to this court.

executor.

(a)

Williams, for the appellant. The declaration is defective. It should not have been one half in trespass, and the balance in case, but altogether in trespass.

It may be said that the part appearing to be in case is merely surplusage ; but whenever a plaintiff assigns a breach as the foundation of his action, he has not a right to consider that as surplusage. Here the breach, in failing to pay the money, is laid as the foundation of the action.

2. The plaintiff was not entitled to recover vindictive da

mages, but only the value of the corn, which is all that is Rew.Code, ist. given him by the act of assembly :(a) for at common law, he vol ch. 92. had po remedy; the rule being that actio personalis moritur sect. 58. p. 167.

cum persona (6). His right to recover ought to be limited (6) Coup: to the value, for another reason ; because the administrator 375, Hambly

Troit, i was not as competent to make defence, as his intestate would
Saund. 216 a.

have been if the suit had been brought against him in his
lifetime. It is evident that vindictive damages were given
by the jury ; the sum allowed being one hundred dollars for
only fifteen barrels of corn.

3. The testimony of declarations made by Robert Lewis
was admissable; (to shew that he had no title ;) because
Winckler claimed under him ; and the question was as to
Lewis's title to the corn. I cannot very clearly see any dis-
tinction between this case and that of Walthall vs. Johnston,
2 Call, 275.

4. The judgment concluding “ that the defendant may be

;

VS.

ages, il

the hans

COUIL

defects d the best y be si

ndatiad

prior to be taken, &c." is erroneous. It would permit a ca sa against

MARCH,

1813 dit to the the body of the administrator, for a tort committed by his of the de intestate.

Vaughan's ad. be court

ministrator Munford, contra. The declaration is not insufficient. The Winkler's action against the administrator in this case is a mere crea

executor. ture of the act of assembly; for no such action lay at comfaid defe

mon law; and no particular form of declaring is prescribed
by the act. It partakes of the nature of clebt, as well as
trespass; because the damages, when recovered, are assets
in the hands of the executor. The clause stating a demand
and refusal may therefore not be improper ; but, ait any rate,
it is only surplusage ; the declaration, as in trespass , being

complete without it. plusu

2. Neither the declaration in the present case, noi' the

act of assembly, limits the demand to the value of the curn, rplusat

The act only gives the action, by or against executors or
administrators for goods taken or carried away in the life -
time of the testator or intestate, but says nothing as to the
quantum of damages. The declaration contains, also, a
clause of alia enormia, which is usual in trespass, and suffi-
cient to cover damages beyond the value of the goods. But
it does not appear that, in reality, the damages recovered
are vindictive. What the corn was actually worth at the
time does not appear; for all the evidence is not spread up-
on the record. The price of corn perhaps was high ; and
interest
upon

that price may have been added by the jury.
3. The evidence mentioned in the second bill of excep-
tions was properly rejected. In trespass, possession is suffi-
cient to entitle the plaintiff to recover. Admitting the corn
to have been the property of Vaughan, he had no right to
take it vi et armis ; Winckler having obtained possession
peaceably, by buying of Lewis. His proper course would
have been to bring his action of trover against Winckler.
Hearsay evidence of acknowledgments to Lewis, that he
sold corn not belonging to him, was improper against Winck-
ler who bought it of him. If such was the fact, Lewis stood
indifferent between these parties. In the event of Winckler'a

ctive de

limited istrato: