#### Vaughan’s Administrator v. Winckler’s Executor.

Argued, Saturday. March 13th, 1813.

I. Trespass — -By Executor against Administrator*— Form of Declaration. — In what form the declaration may be drawn. In trespass by an Executor against an administrator, for goods taken away by the intestate trom the testator.'

a. Same — Same —■ Vindictive Damages. — Quarre, whether vindictive damages may be recovered in such action ?

3. Same — Evidence.†—in trespass for goods taken away, proof by witnesses, that the person of whom the plaintiff bought the goods, was heard to say, before the institution of the suit, that, when he sold them, they belonged to the defendant, is not admissible evidence against the plaintiff.

4. Same — Judgment—Conclusion.—in trespass against an administrator for goods taken away by the intestate. judgment ought not to be reversed, for concluding, “and the defendant may be taken, &c." instead of “and the defendant in mercy, &c.”

The declaration in this case was in the following words : “Mecklenburg County to wit, John Winckler, executor of *John Winckler,'deceased, complains of Richard H. Walker, administrator, &c. of Thomas Vaughan, deceased, defendant in custody, &c. of a plea, of this to wit, that the said Thomas Vaughan, in his lifetime, to wit, on the day of in the county aforesaid, with force and arms, unlawfully took *60and carried away from the said John Winckler, deceased, in 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 enormities 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 demand 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 John 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 vindictive damages ; which instruction the court refused to give. From the second, it appeared that thedefendant offered to prove that ^Robert Lewis, of whom the defendant’s testator purchased, and under whom he claimed the corn, declared, prior to the institution of the suit, that the corn, when he sold it to the testator of the plaintiff, belonged to the intestate of the defendant; 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 the intestate, in the hands of the defendant to be administered, &c. and the said defendant may be taken, &c.” was affirmed by the Superior Court of law, whereupon the defendant appealed to this court.

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 surplus-age. 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 damages, but only the value of the corn, which is all that is given him by the act of assembly : (a) for at common law, he had no remedy; the rule being that actio personalis moritur cum persona, (b) His right to recover ought to be limited to the value, for another reason ; because the administrator was not as competent to make defence, as his intestate would 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 admissible ; (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 distinction between this case and that of Walthall v. Johnston, 2 Call, 275.

4. The judgment concluding “that the defendant may be *taken, &c.” is erroneous. It would permit a ca sa against the body of the administrator, for a tort committed by his intestate.

Munford, contra.

The declaration is not insufficient. The action against the administrator in this case is a mere creature of the act of assembly ; for no such action lay at common law ; and no particular form of declaring is prescribed by the act. It partakes of the nature of debt, 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, at any rate, it is only surplusage ; the declaration, as in trespass, being complete without it.

2. Neither the declaration in the present case, nor the act of assembly, limits the demand to the value of the corn. The act only gives the action, by or against executors or administrators for goods taken or carried away in the lifetime 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 sufficient 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 upon 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 exceptions was properly rejected. In trespass, possession is sufficient 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 Winckler who bought it of him. If such was the fact, Lewis stood indifferent between these parties. In the event of Winckler’s *being defeated in the action against Vaughan, he had a right to look to Lewis for satisfaction ; and if Vaughan was cast, he in like manner, had a claim upon Lewis for selling his corn to Winckler. Lewis therefore, being indifferent, might have been examined as a witness ; and, of course, the testimony of other per*61sons, concerning what he had said, was inadmissible.

4. The defect in the judgment, of adding the capiatur instead of the misericordia, is a mere formal error by the clerk in entering it up, and cured by the act of Jeoffails.(a)

Williams, in reply.

If the jury could give vindictive damages, there was no point at which they could be compelled to stop. They might defeat all the other creditors of the deceased.

The enquiry is not what was the value of the corn, but whether the County Court gave an erroneous instruction, which may have improperly influenced the jury. The action for other enormities, besides the taking away of the goods, is not authorized ■ by the act of assembly.

Friday, January 14th, 1814,

*

 Trespass — By or against Executors — Statute. -1 Eev. Code 1819, p. 390, § 64, which declares that “actions of trespass may be maintained by or against executors or administrators for any goods taken or carried away in the lifetime of the testator or intestate" is an extension of the statute, 4 Edw. 3, ch. 7, de bonis asportatis, so as to embrace actions brought against as well as by, executors and administrators. Boyles v. Overby, 11 Gralt. 207, citing the principal case.

†

 Same — Evidence.—See principal case cited in Ben v. Peete, 2 Rand. 548.

(a)

 See Rev. Code, 1st, vol. ch. 92, sect. 58, p. 167.

(b)

 Cowp. 375, Hambly v. Trott, 1 Saund. 216 a.

(a)

 Rev. Code, 1st. vol. ch. 76,sect. 26, p. 112; Tidd’s pr. 863; 1 Bac. Abr. 150, 166.

the president pronounced the court’s opinion that the judgment be affirmed.