#### Cook v. Darby.*

Argued October, 18th, 1815.

1. Common Carriers — Trespass—What Amounts to.†— In an action of trespass on the case against a common carrier, if it appear, by a bill of exceptions, to have been proved at the trial, that the defendant fraudulently opened certain packages and casks, being in *his cure,*and belonging to the plaintiff, — took therefrom a, part of their contents, —and converted the same to his own use; but not that the said contents were feloniously carried away; such offence is to be considered as amounting to a trespass only.

2. Merger — Civil Injury — Felony,—Qumre, whether the right of action for the civil injury be merged In the feloiiy, or not, in this country, (1) as in England Í

3. Statute of Limitations‡ — Plea by Common Carrier. — ■ The act of limitations may he pleaded in bar to an action, against a common carrier, for fraudulently embezzling goods entrusted to his care.

4. Same — Plea of — Sufficiency of. — It seems, that a plea of “the act of limitations” in those words only, to which the plaintiff replies generally, is good after verdict.

This was an action of trespass on the case, brought in the court of Richmond county, on the 21st of March, 1807, *by John Darby against Thomas Cook, as “owner and master of a certain schooner, sailing and navigating from York river to divers places, in which vessel he was used to carry goods and merchandise for freight and hire.”

The declaration charged the defendant with having received on board his said schooner sundry goods, which the plaintiff employed him to carry for freight or hire, from Baltimore to West Point, from West Point to Norfolk, and from Norfolk to West Point; all which goods he “was bound safely to carry and deliver and that, “contriving to injure and defraud the plaintiff,” he did not deliver them to the plaintiff, or his order, but, “whilst the same were in his care as master and owner aforesaid, lost, secreted, destroyed and embezzled sundry large parcels thereof, &c.”

The defendant pleaded “not guilty,” and “the act of limitation to both which pleas the plaintiff replied generally.

On the trial of the cause, it was proved on the part of the plaintiff, that he employed the defendant in the year 1792, to carry goods for him from Baltimore to West Point, and from West Point to Norfolk, and back again to West Point, on freight ; that, in those voyages made by the defendant, “he opened certain packs of goods, broached casks, and took from the packages and casks a part of their contents, and converted them to his own use, without the knowledge or consent of the plaintiff, — for which embezzlement this action was brought;” — whereupon, the counsel *218for the defendant moved the court to instruct the jury, that the act of limitations pleaded in the cause did apply to it, and barred the action, as there was no circumstance shewn, independent of the evidence above stated, to take the case out of the said act. The same counsel farther moved the court to instruct the jury, that the evidence aforesaid, if it proved any thing in prejudice of the defendant, proved that a civil action was not sustainable ; the circumstances aforesaid amounting to a felony. But the court over-ruled the motions aforesaid on both points, and instructed the jury that the act of limitations did not apply, and the civil action was *maintainable. To which opinions of the court, a bill of exceptions was filed.

A verdict was found, and judgment rendered, in favour of the plaintiff, for $140 damages ; — which being affirmed by the superior court of law, the defendant obtained a writ of supersedeas from a judge of this court.

Wickham for the plaintiff in error.

The plea of the “act of limitations” was worded informally, not being in extenso, but is substantially sufficient; being, at least, as good as that of “conditions performed” to an action of debt on a bond with collateral condition ; which last mentioned plea is received in every day’s practice, notwithstanding it is not shewn, by those two words, who performed, or what conditions were performed. The defendant always relies upon the act generally. If the plaintiff relies upon any exception or equity, he must reply the particular matter.

The county court appears to have decided upon the general principle, that the act of limitations cannot be pleaded to a suit against a common carrier ; which is certainly erroneous. Upon this point, therefore, the judgment ought to be reversed, and a new trial awarded. But the reversal must be in toto, because the declaration contains a charge of felony, and the trespass is merged in the felony, (a)

Upshur contra.

I understand it to be a settled rule of law, that the act of limitations can never be a bar, where the cause of action arises upon a trust, whether created by deed, or arising as a legal consequence from the connexion between the parties, (b) In Jones on Bailments, p. 117, it is expressly said, that “bailment is a delivery of goods on trust, &c. so that the idea of a trust enters into the very definition of the term. And between a common carrier and his employer, it is, perhaps, more necessary, than in any other species of bailment, that this principle should prevail, on account of his superior facilities in eluding the operation of his contract until the time of suing him would run out. In this view of the subject, then, the statute cannot bar.(c) *But the bill of exceptions discloses a clear and gross fraud, and it is unnecessary to cite authorities to prove that the statute will not bar in favour of a fraud. The plea, too, is defective, in not being carried out, and is analogous to the plea of the word “justification,” which is not good, (d) Nor does this objection render a repleader necessary, because another issue was made up, on the plea of “not guilty.”

The second question presented in this case, viz. whether a civil injury can be merged in a felony in this country, is, I believe, new in this court.

The sole reason upon which the principle, that the civil injury does merge in the felony, in England, is supported, is that, by the commission of felony, even before office found, the goods and chattels of the felon are forfeited, and there is nothing left to answer damages. The reason is founded on the necessity of the case. It would be absurd to contend for damages, when the only fund which could meet them is absorbed by the crown. But it will hardly be pretended that this reason has any application in this state, since the act of assembly of 1792, which takes away all forfeitures for felony. Nor, even without that statute, would the reason have applied ; because it is against the genius and spirit of the government established by the revolution. Thus, the maxim, “cessante ration e, cessat ipsa lex,” applies with full force.

That there is no other reason than that which I have assigned, for the doctrine as it exists in England, is proved by the fact that, in all cases of offences below the grade of felony, where there is no forfeiture, there is no merger. Thus, in trespass, in assault and battery, and other breaches of the peace, both an indictment and a civil action will lie. We are not to confound the reason of the forfeiture with the reason of the merger in consequence of the forfeiture. Forfeiture might very well have been made a consequence of felony, in order to restrain men from committing it, by the fear of entailing poverty on their families ; and this reason would apply equally in all countries whose-governments were not, in their nature, opposed to it. But *it does not prove the existence of the other principle, in countries where no forfeiture can take place. Nor can it be said that the injured party is deprived of his remedy in damages, in order to make him a more disinterested, and therefore a more competent, witness to prove the felony. This argument would prove too much. It would prove that a civil action would not lie in any case where an indictment would lie. But the law is known to be otherwise, even in England, in all cases of a breach of the peace below the grade of felony. It appears, therefore, that the only reason upon which the principle of merger is founded in England cannot possibly apply here.

Another reason is equally powerful, to shew that it ought not to apply. By destroying the civil remedy, you invite to the compounding of felonies ; for the injured party would be strongly tempted to hush up the. criminal prosecution, on condition of indemnity for his own loss.

But, in fact, it is not material to the case that this question should be decided. No felony is shewn on the record. Although, (as Mr. Wickham has said) it is felony in a common carrier to break open a package committed to his charge, and convert a part of its contents to his own use, with a feloni*219ous intent, yet, if the act might reasonably have proceeded from necessity, or other inno•cent motive, the felonious intent is not to be presumed. Besides, in the eye of the law, every man is innocent until he is proved to be guilty. If Cook had been tried for the felony, and found guilty, the argument would have applied: if, upon such trial, he had been found not guilty, surely the question could never have arisen. As no trial has been had, this court by deciding that the civil injury is emerged in the felony, would ■assume the province of a court of criminal jurisdiction, and pronounce the plaintiff in error guilty of a felony.

Wickham in reply.

Mr. Upshur’s argument, concerning trust and fraud, would prevent the act of limitations from being a bar to any action for embezzlement. I admit that, in cases of continuing trusts, the act does not apply until the trust has ceased. But, where the trust is only temporary ; *for example, to carry goods from one place to another; — the trust ceasing immediately upon the embezzlement; — the act of limitations runs from that moment.

As to the fraud, the doctrine is that the act runs from the time of its being discovered.(a) If, therefore, theplaintiff wished to protect himself from the operation of the statute, he should have filed a replication, stating that he brought his action within five years after the discovery of the fraud.

Monday, October 23d, 1815.

*

For monographic note on Embezziement, see end ot

†

Common Carriers — See monographic, *note*on “Common Carriers” appended to Farish v. Reigle, 11 Gratt. 697.

‡

statute of Limitations. — See monographic *note*on “Limitation of Actions” appended to Herrington v. Harkins, 1 Rand. 591.

Same — Fraud—When Statute Begins to Run. — See *foot-note*to Rice v. White, 4 Leigh 474, where the question is discussed, and the principal case is cited in a quotation from Thompson v. Whitaker Iron Co., 41 W. Va. 585, 23 S. E. Rep. 799. The principal case was also cited in Rice v. White, 4 Leigh 481, 482.

(1)

 Note. See Kennedy v. Wallers, 2 H. & M. 415; in which case, however, the point was not made in argument. — Note in Original Edition.

(a)

 See 3 Bac. Abr. 132.

(b)

 2 Ch. cases, 20, Heath v. Henly and others, 4 Bac. Abr. 473.

(c)

 1 Vern. 256, Parker v. Ash.

(d)

3 H. & M. 388; Kirtley v. Deck.

The president pronounced the court’s opinion, that, as it is stated in the bill of exceptions to have been proved, in this case, that the plaintiff in error opened certain packages and casks, and took therefrom a part of their contents, that act might have amounted to a larceny, although the said packages and casks were delivered to him as a common carrier, had it been also stated, and proved, that the said contents were by him feloniously carried away ; but as it is only stated to have been proved that he converted the same to his own use, which does not necessarily imply a felony, the court is of opinion (without «deciding whether such larceny would have merged the civil injury, or not,) that the «ffence proved at the trial, and stated in the declaration, only amounted to a trespass and conversion; and, consequently, that the action well lay; and that upon this point, there is no error in the judgments of the said County Court: but the court is of «pinion that the plea of the act of limitations well applied to this case, being one of a mere bailment and conversion; and that there is error in the judgment of both courts in having held the contrary.

Both judgments reversed ; and cause remanded to the superior court of law, and from thence to the county court, in order to have a new trial therein, on which no such instruction as that last mentioned is to be