Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-11
btt.sIoss or THE surnnmn OOUHr
OPTICAL.
Opinions OF ana Supreme COGrt Of the state
OF Tenuessecs at Knoxville, Septem Der
Term, 1850. 49,

:
Jesse Lewis VS. Henry Gitsen.
This is an action of trover for horse, in which /
two legal questions arise upon the charge of the |
Court upon which reversal is asked BY the plain
tiff who failed below. LIST to the right of prop
erty in the plaintiff the jury instructed to this
effect, that if the horse belonged 70 one who had 1
committed felony ard he sold him with the intent
and purpose OF evsdng any pecuniary liability that
might dev0lse on him in consequences of his cFme
and the plaintiff c0HcWed Ia that object and purpose
would gee title, but that the transaction wouldbs
fraudulent and yoid VI
The horse was the property of one of the Iewises
sons of the plaintiff who had murdered the sheriff
of Campbell county and his Deputy for which they
were afterwards tried, convicted Of murder in the
first degree and executed under the judgment of
this court The proof Of change Of title is made
by Allen Lewis another son of the plaintiff He
says that day or two after his brothers John and
Jesse were said to have killed Gibson and Oueener
he met them in the road, and they told him that
under the circumstances they could not return to
get their horses, and wanted to sell to him. that he
bought them and in three or four days afterwards
sold them to his father to pay for them. This was
early in August. 1855 He did not nav for the
horses he says he took his fathers note for the
price, but nothing has been paid by either Neither
OF them ever had possession. Allen does not state
what price he was to give or how he bound himself
to pay or for what amount he took his fathers note
or what has become of it, or to whom it was paw
able This kind of proof is certainly Insufficient to
establish a change of title from the former owners
| to the plaintiff. But if this were otherwise the
transaction would be void for fraud rs upon the
| ground stated by the COURT But as t0what persons
win hereafter be noticed. person guilty of aomi-
eide is not only liable for costs of prosecution in
case Of conviction but is liable for damages at the
suit of the personal representative of the deceased.
If he disposes of his property even by sale under
| these considerations for the purpose of avoiding
such liabilities. and the purchaser buys to aid him
In that purpose such sale eonfers title except
as between the parties themselves. Much less would
transfer without consideration for the same purr
pose
! But we presume that this objection to the sale
could only be available to creditors or to persons
i entitled to damages or subsequent purchases and
not by one who has claim to the prOpertys0r de-
mand against the vendor But one who is charged
| with the wrongful conversion of it The statute of
frauds of 1901 confines the objection to the creditor
and purchaser and so all cur decisions so far
then as the change allOwsthe defendant to avail him
self of this objection to the title of the plaintiff there
IS error, and the jury may have been msled by 1t.
1t may be that the verdict would have been the same
upon the ground that there had in fact been no sale
so as to vest the plaintiff with title as against any
one but that question Should have been submitted to
the jury,
The horse was placed in the possession of defend
ant by those who had taken charge of the prosecu-
on previous to any arrest of the Lewises for safe
keeping.
After the arresti is alleged that he was taken by
the creditors Of the former owner, and applied to
the satisfaction of his debts. But this is net legally
made out in the proof. If this were shown il might
be question, whether any damages at all could be
recovered, they should only be nominal even if the
plaintiff established his title by purchase against
defendant and proved previous conversion.
But the case calls for no opinion on that point
now, and none is given -
2. On the other question in the case to the law
in relation to a conversion think his honor went
little beyond the law when he instructed the jury
that depository of horse for safe keeping might
/ not only use him by himself and family moderately
but might 'ereR loan Il out to others without being
subject to any liability for conversion, provided
the property was in way injured, and his pur
pose all the time only take care Of the pro
perry for the true ownerD Such an assumption Of
ownership on the part of bailee to keep as is i'm
piled in lOaning out the animal TO others to be used
woul1, we think, be a conversion. The general
principle is that any unauthorized assumption Of
townershp over the property of another is in law
conversion. 1t may be that saeh moderate use Of
horse placed in the custody of another to keeI
without reward is consistent with his safety and
well being. would not repder the baiee liable ii
rrover; but 10 give up the possession and use &c
az other, either a lone or for hire, is unauthor
lied. ThD court held that any use or hiring fol-
prnnt or advantage would be conversion, but moi
| so where it without advantage or gain to the
baiee
For errors in the charge then upon both point:
we feel constrained TO grant trial. although
from what we can see of the case the verdict may
have been the same upon correct charge.
.,.ss CARUTBEEs.
true copy. Attest c. W. NELSON, Clerk