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COMMON Pleas. 1587.

(Reported Owen, 52.) John Bloss brought an action of trespass, quare vi et armis, for taking of his goods, against Holman, and the defendant pleaded not guilty, and the jury gave a special verdict, namely, that the plaintiff at the time of the trespass was of the Mystery of the Mercers, and that at that time the defendant was his servant, and put in trust to sell his goods and merchandises in shopa sua, ibidem de tempore in tempus, and that he took the goods of the plaintiff named in the declaration, and carried them away, and prayed the advice of the court, if the defendant were culpable or not; and upon the postea returned, Shuttleworth prayed judgment for the plaintiff. And the doubt was because the declaration was quare vi et armis, because it appeared that the defendant had custody of the goods ; but Shuttleworth doubted whether he had custody, and cited the case of Littleton, namely, if I give my sheep to compasture, &c. and he kills them, an action of trespass lies; and the justices held that in this case the action did well lie ; and PERIAM said that the defendant had only an authority, and not custody or possession; and judgment was given for the plaintiff. 3 H. 7, 12; 21 H. 7, 14. And WINDHAJ said, that if he had embezzled his master's goods, without question it was felony. Quod fuit concessum (ANDERSON absent), and the law will not presume that the goods were out of the possession of the plaintiff'; and the next day came the LORD ANDERSON and rehearsed the case, and said, that the defendant had neither general nor special property in the goods, for it is plain he could have no general property, and special he had not, for he could not have an action of trespass if they were taken away, then if he had no property, a trespass lies against him, if he take them ; so if a shepherd steal sheep, it is felony, for he hath no property in them ; wherefore he gave judgment accordingly."

18. C. sub nom. Glosse : Hayman's Case, 1 Leon. 87.

"Thus far nothing has been said with regard to the custody of servants. It is a wellknown doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant is guilty of theft, because he is deemed to have taken the property from his master's possession. This is equivalent to saying that a servant, having the custody of his master's property as servant, has not possession of that property, and it is so stated in the Year Books.

"The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, is made more rational by the old cases. For the distinction taken in them is, that while the servant is in the house or with his master, the latter retains possession ; but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master's possession and in the servant's. In this more intelligible form, the rule would not now prevail. But one half of it, that a guest


(Reported 2 Wend. 137.) ERROR from the Supreme Court. Sarah Stakes, in July, 1821, commenced an action of trespass in the Common Pleas of New York, against Samuel Campbell and Thomas Campbell, and declared against them, for that on the fourth of July, 1820, they drove a certain mare belonging to the plaintiff with such violence, and whipped and cruelly treated her in such manner, that she died. Samuel Campbell alone was taken on the process issued against the defendants. He appeared by guardian, and pleaded 1. Non cul. ; 2. That at the time when, &c., the mare was in the possession of the defendants by virtue of a contract of bailment, whereby the plaintiff had let the mare and a tilbury to the

at a tavern has not possession of the plate with which he is served, is no doubt still law, for guests in general are likened to servants in their legal position.

“There are few English decisions, outside the criminal law, on the question whether a servant has possession. But the Year Books do not suggest any difference between civil and criminal cases, and there is an almost unbroken tradition of courts and approved writers that he has not, in any case. A master has maintained trespass against a ser. vant for converting cloth which he was employed to sell, and the American cases go the full length of the old doctrine. It has often been remarked that a servant must be distinguished from a bailee.

“But it may be asked how the denial of possession to servants can be made to agree with the test proposed, and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower. The law of servants is unquestion. ably at variance with that test ; and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact, coupled with the Roman doctrine as to bailees in general, to seek the formula of reconciliation where they have. But, in truth, the exception with regard to servants stands on purely historical grounds. A servant is denied possession, not from any peculiarity of intent with regard to the things in his custody, either towards his master or other people, by which he is distinguished from a depositary, but simply as one of the incidents of his status. It is familiar that the status of a servant maintains many marks of the time when he was a slave. The liability of the master for his torts is one instance. The present is another. A slave s possession was his owner's possession on the practical ground of the owner's power over him, and from the fact that the slave had no standing before the law. The notion that his personality was merged in that of his family head survived the era of emancipation." Holmes, Com. Law, 226–228.

"It is important to note exactly the difference between a mere servant and a bailee. If A. gives goods to B., e. g. a carrier, A. retains the right to possess the goods, but he passes the possession itself to B. If, on the other hand, B. is not a carrier, but a mere servant, A., though he may give the custody or detention of the goods to B., does not pass to him the possession of them. Hence B., the bailee, has, as against third parties, a right to possession, and can bring trover; but B. the servant having no possession, has no right to possession, and cannot bring trover. It is conceived, that if B. should be in any way acting, not only as a servant, but also as a bailee, he might bring an action for the conversion of the goods.” Dicey, Parties, 358, note (c).

defendants for hire, averring that at the time of the making of the contract, and also at the time of the supposed trespasses, the defendants were respectively infants within the age of twenty-one years. The plaintiff demurred to the second plea, the defendant joined, and the Common Pleas gave judgment for the defendant. The plaintiff removed the record into the Supreme Court by writ of error, and in August, 1825, the judgment of the Common Pleas was reversed, and judgment for costs taxed at $95.42, given in favor of the plaintiff in error in that court, and a venire de novo awarded. At the ensuing term, Campbell applied for and obtained leave to amend his plea, 5 Cowen, 21, when he plead 1. Non cul ; 2. That the mare, at the time when, &c., was in the possession of the defendants by virtue of a contract of bailment for hire; and that the supposed beating, fatiguing by overdriving, &c., occurred and took place through the unskilfulness, want of knowledge, discretion, and judgment of the defendants; and that, on the termination of the contract of bailment, the defendants returned and re-delivered to the plaintiff the mare in full life; and averred that

trespasses, the defendants were respectively infants, &c., concluding with a verification and prayer of judgment. The plaintiff replied precludi non, because the said S. Campbell, of his own wrong, and without the cause by him in his plea alleged, and with force and arms, &c., did commit the said several trespasses, &c. in modo et forma, &c.; and further, that at the time when, &c., the defendant was of full age, concluding to the country with similiter. In November, 1826, the cause was tried at the New York Circuit, and the jury found the defendant guilty of the premises laid to his charge in manner and form, &c. and assessed the damages of the plaintiff at $200, but took no notice of the issue on the plea of infancy. On this verdict, a judgment was entered in the Supreme Court.

In June, 1827, John Campbell, the administrator of Samuel Campbell, who was deceased, brought a writ of error, removing the record from the Supreme Court into this court. Besides the general assignment of error that the declaration is insufficient, &c. the plaintiff specially assigned for error the reversal of the judgment of the Common Pleas, alleging that the same ought to have been affirmed. The defendant pleaded in nullo est erratum.

J. Platt, for the plaintiff in error.
J. Anthon, for the defendant in error.

THE CHANCELLOR. The first point made by the plaintiff is, that the action should have been case, and not trespass. If the object of this point is to support the first error assigned, to wit, that the declaration is insufficient, it certainly cannot be sustained.

The declaration is in the ordinary form of a declaration in trespass, and I can see no objection to it, either in form or substance. But I presume this point was intended to apply to the case made by the special plea of the defendant in the court below. I am satisfied an action on the case cannot be maintained against an infant under such circumstances. If the infant was liable at all, trespass was the proper form of action. An action on the case necessarily supposes the defendant to have a right to the possession of the property under the con. tract of hiring, at the time the injury is committed. Independent of the contract of hiring, the defendant would have no right to the possession, and trespass would be the proper remedy. If the plaintiff declares in case, he affirms the contract of hiring, and the plea of infancy is a good defence to such an action ; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his plea of infancy. The cases of Jennings v. Randull, 8 Term Rep. 335, and Green v. Greenbank, 2 Marsh. Rep. 485, were cases of that description. . The contract of an infant is not void, but is voidable at the election of the infant. If a horse is let to him to go a journey, there is an implied promise that he will make use of ordinary care and diligence to protect the animal from injury, and return him at the time agreed upon. A bare neglect to do either, would not subject him or an adult to an action of trespass, the contract remaining in full force. But if the infant does any wilful and positive act, which amounts to an election on his part to disaffirm the contract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort. If he should sell the horse, an action of trover would lie, and his infancy would not protect him. The case of Vasse v. Smith, in the Supreme Court of the United States (6 Cranch’s Rep. 226), was decided upon this principle. The special plea in the Court of Common Pleas was defective in not averring the fact, which was afterwards inserted in the amended plea, that the injury complained of, occurred in the act of driving the mare, through the unskilfulness and want of knowledge, discretion and judgment of the defendant. With that averment, I think the plea of infancy, with the contract of hiring, would have been a complete answer to the action. But without such averment, I think the court were bound to presume it was a wilful injury, which would amount to an election by the infant to disaffirm the contract. I therefore am of opinion that the judgment of the Supreme Court on the pleadings as they stood was correct.

I am also of opinion that the defendant in the court below, by electing to amend his pleadings, waived his right to bring a writ of error on the judgment of the Supreme Court, founded on the original pleadings. If the cause had been originally commenced in the Supreme Court, the former pleadings would not have been found in the record. As the venire de novo was awarded in the Supreme Court, and these proceedings formed a part of the record of the Court of Common Pleas, which was brought into the Supreme Court by writ of error, it was perhaps necessary that the original pleadings should remain upon the record. But the election of the defendant to waive them by amending his plea,

also forms a part of the record ; and he cannot now take advantage of any error in the judgment of the Supreme Court, founded on the original pleadings.?

F. Actions of Bailor against Third Person.


Nisi Prics. 1649.

[Reported Clayton, 135, pl. 243.] The plaintiff did deliver his horse to be kept at grass, and the defendant took him away from the pasture, &c., and the plaintiff brought trespass, and the judge overruled it that the action would not lie in this case, because the horse was in the possession of another, which was against my opinion being of counsel with the plaintiff, because the action is transitory, and he is in the owner's possession everywhere, and if I give my horse in London to I. S., I, being then at York, he may have trespass without other possession. F. N. B. 140; Perkins, 30; 21 E. 4, 25; 21 H. 7, 39 ; 21 H. 6, 43.

i The rest of the opinion is omitted.

Of Campbell v. Stakes, GIBSON, C. J. in Wilt v. Welsh, 6 Watts, 9, 12, says: “I know nothing, nor did I ever before hear, of a constructive election to disaffirm in order to strip an infant of his privilege, and, by turning him from a contractor into a trespasser, to put him in a worse condition than if the contract had been indefeasible. Such a construction is not in keeping with the benign principles of the common law, which, in other cases, holds him only to such acts as are beneficial to him, and declares such as are positively detrimental to him to be positively void. Even were that other. wise, yet to give to an injury done to the thing bailed the character of an independent trespass, would require the bailment to have been first terminated; for the very foundation of the argument is, that the contract was out of the way at the time ; but by the most attenuated construction, its cessation and the inception of the wrong, could be but simultaneous. On what principle, then, can it be a trespass ? The distinction taken in the Six Carpenters' Case, 8 Co. 146, betwixt an authority given by the law, whose abuse makes the offender a trespasser from the beginning, and a license by the party, whose abuse does not, has never been questioned. The killing of a beast distrained by the grantee of a rent charge makes not the distress a trespass, because it is given by the grant and not by the law. 1 Inst. 141. The reason is that a party is entitled to the best protection the law can give against the abuse of an authority delegated not by himself but by the law, which, to that end, makes void everything improperly done under it; while a party who gives an authority to an unsafe person has only himself to blame for it. 6 Wils. Bac. 561. Now taking for granted that the act amihilated the contract, it cannot be denied that there was a precedent license, for an excessive use of which the infant is sought to be charged as for a trespass ; with what pretence of reason, when an adult could not be so charged, it is unnecessary to say. The theory on which a breach of contract has been thus turned into a trespass, is as incomprehensible to me as the theory on which a common recovery bars an entail ; and why we should employ any juggle whatever to tear from an infant the defences with which the law has covered his weakness, is equally incomprehensible."

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