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From: MS Archives <>
Subject: Ms-Jefferson Co. Wills (Hinds)
Date: Wed, 7 Dec 2005 20:03:06 -0500


Jefferson County MsArchives Court.....Hinds, Thomas June 1818
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Deb Haines December 7, 2005, 8:03 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

THOMAS HINDS vs. WILLIAM TERRY.


That counsel did not continue to press the examination of a witness unwilling
to testify, lest the court might commit the witness for a contempt, is no
ground for a new trial.

The court will not grant a new trial upon the suggestion of the discovery of
new and material evidence since the trial, unless the truth of the suggestion
is fully established.

One tenant in common cannot sustain an action of trover against another.

If one tenant in common take all the personal chattel to his own separate
possession, the other has no remedy by action, but may take to himself the
personal chattel, when opportunity occurs.

In trover, the value of the personal chattel, and interest from the date of
the conversion, is the true measure of damages.


OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.

This cause came up from Jefferson county, on a motion for a new trial, on the
following grounds.

1st. Defendant was taken by surprise.

2. Because of the discovery of new and material evidence since the trial.

3. Because the judge misdirected the jury as to the law.

4. Because the damages were excessive.


The court, in giving its opinion in this case, will examine the several points
relied upon by counsel in the order in which they have been presented to us.

First, that Joseph E. Davis, Esq. refused to give testimony; by which means
defendant was deprived of evidence material to his defence. The position
cannot be sustained, as it appears from the report of the judge below who
tried the case, that defendants counsel declined urging the question, because
it might have resulted in committing the witness for a contempt of court. But
it should been recollected by counsel, when he had all the means in his power
to coerce the witness to testify in the cause, except so far as it related to
the disclosure of professional secrets, he should have insisted on his
evidence being introduced, under the instruction of the court. And if he
failed to do this, he cannot reasonably ask the court for relief, for a party
cannot take advantage of his own wrong.

Secondly that new and material evidence has been discovered since the trial.
This has not been fully established, and the court cannot take presumptions
for facts.

The third and fourth points, that the judge misdirected the jury as to the
law, and consequently the verdict should be set aside.

It appears from the report of the judge who tried the cause, that the negro,
the subject of controversy between the parties, was the property of one
Mrs.James during her life, and that the reversionary interest was in the two
young Browns, as tenants in common. In the year 1813, the interest of James K.
Brown, one of the tenants in common, was sold under execution, and purchased
by the plaintiff and that after the death of Mrs. James, the plaintiff came to
the possession of the negro, and it is further stated, that some time after
this, the defendant caused said negro to be seized and tied, and sent to the
court, where he was sold, and it is further stated, that the defendant claimed
under sales by execution to Philip Gilbert, but the execution was not given in
evidence. The defendant, for and in consideration in the sum of three hundred
dollars, purchased the interest of the other tenant in common. From this state
of the case, it appears, that both plaintiff and defendant had an equal
interest in the negro, as tenants in common, because they stood precisely in
the same relation to each other as the two young Browns, having acquired their
interest respectively and different periods, and this can be done without a
destruction of the tenancy in common, unless the unity of possession be
destroyed by the act of the parties. Co. Lit. 189. B. 1 Salkeld 392. 1 East.
363. 2 Term Rep. 658. The question which now presents itself to the
consideration of the court, is simply this. Have either of the parties, by
their own act, destroyed that unity of possession, incidental to this species
of property. The judge reported, there was such a destruction of the common
ownership, in contemplation of law, as amounted to a severance of the tenancy
in common, and instructed the jury to find for the plaintiff, if they believed
there was a conversion.

There could not have been a severance of the tenancy in common, in this csse,
but in one of two ways. First, by a destruction of the property, or secondly,
by one of the parties selling his interest to the other, which would have
constituted it an estate in severalty. If one of these facts had not been
proved on the trial, a non suit would have been the result, for one tenant in
common cannot maintain his action of trover against another. "If two be
possessed of chattels personal, by divers titles, as of a horse &c, and one
take the whole to himself out of the possession of the other, the other hath
no remedy, but to take this from him, who hath done the wrong, to occupy in
common, &c. when he can see his time." Littleton, Sec. 328. And Coke, in his
commentary upon the above passage, says, "if one tenant in common take all the
chattles personal, the other has no remedy by action, but he may take them
again." The modern decisions recognize the same doctrine as correct. 1 Day
30l. 2d Haywood 186.

Lastly, as to the verdict of the jury, and the excessive damages. It will
probably be necessary to remark, that in this action of trover, the plaintiff
does not truly state his case, but is permitted to use a fiction, and say,
that he lost the goods, the value of which he seeks to recover, which renders
this action different from others sounding in damages. It was acknowledged by
counsel, in argument, that a verdict was had for about $1100, in favor of the
plaintiff and the value of the services of the slave whilst in possession of
the defendent. Half the value of the negro, proved on the trial, would have
been the proper measure of damages for the jury in their finding—and I believe
this distinction is invariably taken for instance, if trover is brought for
money in a bag, said to be worth so much, interest should be allowed by way of
damages for the detention, as it is an article productive of a certain
benefit. But when the property converted is not of this description, the full
amount of the value of the chattels, and interest from the time of conversion
down to the last act of the court in giving judgment, can only be recovered,
otherwise, we should make the defendant answerable for a delictum, which is
expressly waived by the plaintiff in the institution of his action, except so
far as the evidence goes to prove the tort. 1 Bur. 31. And again, the law, as
I have before said, suffers the plaintiff to resort to a fiction, and say that
he has lost his property, and that it has come to the possession of the
defendant, either by finding, or delivery, the value of which he seeks to
recover. Is it not apparent from this view of the law, that the jury should
have some fixed measure of damages? I think it is, and it would be absurd, on
the trial, to let in evidence of consequential damages. The only alternative,
is to resort to the rule laid down in the case of Wilson vs. Conine, 2 Johnson
280, to avoid the difficulty and perplexity of an arbitrary finding by the
jury. 1st. Bay. 273. From every view of the case, we are clearly of opinion,
that the verdict should be set aside, and a new trial awarded.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the
Courier and Journal Office, 1834; pages 80-83.

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