The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-10-04
DECISIONS OF THE nigh COURT
or
ERRORS AND APPEALS.
AT THE APRIL TERM. lsce.
Hatch Whitfield
1920 VS..
Margcrct Whitfield,
Administrative.
OPINION OF TUE COURT DELIVERED ny
HON. W. l. HARRIS.

n The defendant in error filed his action
n detlhne III the court below ID recover II
I possession Of personal property, alledaed
belong 70 the estate of his intesiate ANA ,
1e IN the possession of the plaintiff m erro
lhe,e was verdict for the defendant In err
on .ne issue joined, motion for new tria
ahd bill OF PRESCRIPTIONS on tho r,sflssal thereo
: and the cause is brought 10 this cont i
! writ Of error =
Numerous errors are assigned which w
will notice in their order
rue INST ~, that the court erred I'm NOR
tnlttihg the witness, Cason, to tes,ih, as 4,
the Nalue OF the property ia controversy
The ground upon which this aSsienmen
~ urged, is not presented by this record
ne record does not show that Cason les
uned as to the value of tho properly h
controversy 20 rs an expert, upon a description
thc property communicated TO him by
"theIs' but 50 lar as the record inclGses. hs
testihed as of his own knowledge. There
seems to be no ground therefore for this
| assignment ''
The second cause of error ia, that tho
court permitted the witness Carson Ia
prove the value of the property, OF the time
OF taxing, instead Of at the time of trial
me question Tor our consideration on this
assignment is, what il the rule of dan,aVes
~ actions of this character, the value nj Tia
t,ihe OF taking or conversions, the value AZ
tle time OF trial, or the highest value al any
intermediate time
rs to be observed that as TO the measure
~ manages There Is strong tendency, by
legislative action, as well ms judicial drcis.
ions, everywhere, to abolish the distinctioys
resulting from the forms of action invented
10 recover the possession Of personal prong-
" or damages for its conversion or detention
OF wrongful appropriation, or for the breach
OF contract, IN relation thereto, and 10 adunt
general rules upon the subject of ,lamapes
susceptible ofuniversal applications Hence |
Ihe text writers as well rs the late decisions |
n discussing this rule of damages, seem 10 |
disregard the form of action. Whether fro.
fef, detlnne, trespass. or repleyin, aud 10
gree, no matter what the form of remedy
nat the plaintiff, when the property il not
estored' upon proof of his right, is entitled
recover luii compensation, or indemnity,
Dr the wrong or injury complained Of
Mr.. Sedgewiek ia his work on tie measure
damages, y. SCI, says the true rule would
ppear To be To make the measure OF DANA
- depend, not on the form of action, but
i its nature.
Mr- Parson, in the I'd vol. Of his works on
'htraets' 9th edit. p 200 says" We have
hlsadered "a similar qnestion--as to the
me wheE the value of property il 10 be | {
ken repeatedly, because different uripri. I
es have been applied 20 II In different
lions. But We doubt il this be wise or z
ST. II we adhere TO the simple rule of com. {
hsatlon, we should say that, in every ae- d
ID 10 recover damages for the wrongful de- Il
nt'on OF personal property, the plaintiff y
ould recover full compensation for the loss 4
all that he might have fairly gained dur. y
I the whole period Of defendants misan. Ii
and the defendant should he s,In. v
seq 10 nave made the wrongful act rs pro- 81
'DIe 10 himself, as the market at any time nj
iilitted' excepting, perhaps, accidental and Il
! mohentary mutations, aud should he T.
lpelled to give over this profit 10 the b,
mum. And 1t will be seen in our notes ~
: we have recent authority sor this gen.
rule,-cltlng Snydam vs. Jenkins, 81 Ii
ldt r. ?. 6l4 and Dunlop vs. Higgins. / as
Lds'' Com. 3ol ,4O3, decided by Ld.Cotten- pl
a. oh
the case of Suydam VS. Jenkins, ] Duer iol
that the principles, which are manifest. be
anu universal IN their application, are ne
elo V"he', 10 whom compensation is ni'
; must be fully Unidentified, aud that the be
ng-doer must not be permitted 10 derive u
vcnsht OF advantage whatever from his Y,
iieIul ACT As the &C. n ~
loss TO the owner is the same. whatever dia
be the form of the action in which rem.
ION Issonght, the sum due to him for ia cas-
pensation must be the same. whether he at
DC plaintiff in the trcspass. or troyer. or eul
defendant in replevin, Sd Sandf u GA the
error Court Of the city of New York dc. tiff
IN lsJO. The ease before Justice PAL
was an action Of tr0ver In reviewing the
OF the cases ON this subject when the ann
OF action was debt or bond he SAYS we tit
10 stress, however, on this distinction. YES
aunt II the rule which was followed in you
rating damages was correct aud lust in He
\ no difference ia the form Of action rtat
ID be allowed 10 prevent its application. Dos
'uie was adopted as a rule Of indemnity Lon
where the right to an indemnity exists, day
leasnre cannot reasonably be made 10 In
I'd upon the form Of the remedy. Aud p. a.
G conclusion Of his opinion he saws, that dam
rbitrary distinctions which we're Der. que,
q 70 how, from difference in the forms prize
ton, are now abolished, --alluding, calcl
less to the statute Of New York ontiiis said
e. dam
his State like policy is indicated l,y
sgislation-tO regard rather the snb not
and nature Of the grievance com. in VI
a ~, than the form Of remedy adopted had
redress and such il the tendency of I'll
Ons in this State. the 4
seslgewiek. in his work already eited. plain
ipeaking Of the confusion existing In cessa
~ 70 the measure Of damages in the mOns
OF trOver, says: An effort might lie the
to render the rule Of damages in frover such
espass identical without references 10 that
nedy resOrted 10. aud dependent only the il
character Of the defendants act : ing v
ns, that we've the thing % be settled aocOr
nniple, the rule might be thus laid the e
Where the original conversion i In
unaocompanied by malice, or whore 81,
Of wilful, the rule Of damages Il a esntr
uestion II law, on which the iurv 4 Chan
oHfrolled by the court. In tlisse csses held
, should BE- directed 10 give the value that !
time Of conversion. with interest. nm. had D
{ that act the plaintiff has been pre- sure Z
from some particular use Of tie fro- Of a \
# which the defendant Lad know given
In that case, " such Ne woud have A.
81 its value % the plaintiff. the iurv - I.
give The highest value ~ the ehaf- -. = !,
any time between The conversior aud -
A. with Interest from the time III 49,, 49,
value 70 the trial. By way Of dam 49, - ~
r the dafeufiuu nj 80.
ing BE- Eiifnl The srue r,,is . ..,ls, =
lPpear % BE-. 10 make The rnea.rre ~ -.
: dePead. net On the forIn. but on H. =. !
Of the action" Sc D 5I9-20 md n. Z
resnleaf szyss IN trUrer the v.7nel 49, p
property 81 the time o. eoarer.ior. : -.