Jefferson County MsArchives Court.....Hinds, Thomas June 1818
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Deb Haines ddhaines@gmail.com December 7, 2005, 8:03 pm

Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

THOMAS HINDS vs. WILLIAM TERRY.


That counsel did not continue to press the examination of a witness unwilling 
to testify, lest the court might commit the witness for a contempt, is no 
ground for a new trial.

The court will not grant a new trial upon the suggestion of the discovery of 
new and material evidence since the trial, unless the truth of the suggestion 
is fully established.

One tenant in common cannot sustain an action of trover against another.

If one tenant in common take all the personal chattel to his own separate 
possession, the other has no remedy by action, but may take to himself the 
personal chattel, when opportunity occurs.

In trover, the value of the personal chattel, and interest from the date of 
the conversion, is the true measure of damages.


OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS.

This cause came up from Jefferson county, on a motion for a new trial, on the 
following grounds.

1st. Defendant was taken by surprise.

2. Because of the discovery of new and material evidence since the trial.

3. Because the judge misdirected the jury as to the law.

4. Because the damages were excessive.


The court, in giving its opinion in this case, will examine the several points 
relied upon by counsel in the order in which they have been presented to us.

First, that Joseph E. Davis, Esq. refused to give testimony; by which means 
defendant was deprived of evidence material to his defence. The position 
cannot be sustained, as it appears from the report of the judge below who 
tried the case, that defendants counsel declined urging the question, because 
it might have resulted in committing the witness for a contempt of court. But 
it should been recollected by counsel, when he had all the means in his power 
to coerce the witness to testify in the cause, except so far as it related to 
the disclosure of professional secrets, he should have insisted on his 
evidence being introduced, under the instruction of the court. And if he 
failed to do this, he cannot reasonably ask the court for relief, for a party 
cannot take advantage of his own wrong.

Secondly that new and material evidence has been discovered since the trial. 
This has not been fully established, and the court cannot take presumptions 
for facts.

The third and fourth points, that the judge misdirected the jury as to the 
law, and consequently the verdict should be set aside.

It appears from the report of the judge who tried the cause, that the negro, 
the subject of controversy between the parties, was the property of one 
Mrs.James during her life, and that the reversionary interest was in the two 
young Browns, as tenants in common. In the year 1813, the interest of James K. 
Brown, one of the tenants in common, was sold under execution, and purchased 
by the plaintiff and that after the death of Mrs. James, the plaintiff came to 
the possession of the negro, and it is further stated, that some time after 
this, the defendant caused said negro to be seized and tied, and sent to the 
court, where he was sold, and it is further stated, that the defendant claimed 
under sales by execution to Philip Gilbert, but the execution was not given in 
evidence. The defendant, for and in consideration in the sum of three hundred 
dollars, purchased the interest of the other tenant in common. From this state 
of the case, it appears, that both plaintiff and defendant had an equal 
interest in the negro, as tenants in common, because they stood precisely in 
the same relation to each other as the two young Browns, having acquired their 
interest respectively and different periods, and this can be done without a 
destruction of the tenancy in common, unless the unity of possession be 
destroyed by the act of the parties. Co. Lit. 189. B. 1 Salkeld 392. 1 East. 
363. 2 Term Rep. 658. The question which now presents itself to the 
consideration of the court, is simply this. Have either of the parties, by 
their own act, destroyed that unity of possession, incidental to this species 
of property. The judge reported, there was such a destruction of the common 
ownership, in contemplation of law, as amounted to a severance of the tenancy 
in common, and instructed the jury to find for the plaintiff, if they believed 
there was a conversion.

There could not have been a severance of the tenancy in common, in this csse, 
but in one of two ways. First, by a destruction of the property, or secondly, 
by one of the parties selling his interest to the other, which would have 
constituted it an estate in severalty. If one of these facts had not been 
proved on the trial, a non suit would have been the result, for one tenant in 
common cannot maintain his action of trover against another. "If two be 
possessed of chattels personal, by divers titles, as of a horse &c, and one 
take the whole to himself out of the possession of the other, the other hath 
no remedy, but to take this from him, who hath done the wrong, to occupy in 
common, &c. when he can see his time." Littleton, Sec. 328. And Coke, in his 
commentary upon the above passage, says, "if one tenant in common take all the 
chattles personal, the other has no remedy by action, but he may take them 
again." The modern decisions recognize the same doctrine as correct. 1 Day 
30l. 2d Haywood 186.

Lastly, as to the verdict of the jury, and the excessive damages. It will 
probably be necessary to remark, that in this action of trover, the plaintiff 
does not truly state his case, but is permitted to use a fiction, and say, 
that he lost the goods, the value of which he seeks to recover, which renders 
this action different from others sounding in damages. It was acknowledged by 
counsel, in argument, that a verdict was had for about $1100, in favor of the 
plaintiff and the value of the services of the slave whilst in possession of 
the defendent. Half the value of the negro, proved on the trial, would have 
been the proper measure of damages for the jury in their finding—and I believe 
this distinction is invariably taken for instance, if trover is brought for 
money in a bag, said to be worth so much, interest should be allowed by way of 
damages for the detention, as it is an article productive of a certain 
benefit. But when the property converted is not of this description, the full 
amount of the value of the chattels, and interest from the time of conversion 
down to the last act of the court in giving judgment, can only be recovered, 
otherwise, we should make the defendant answerable for a delictum, which is 
expressly waived by the plaintiff in the institution of his action, except so 
far as the evidence goes to prove the tort. 1 Bur. 31. And again, the law, as 
I have before said, suffers the plaintiff to resort to a fiction, and say that 
he has lost his property, and that it has come to the possession of the 
defendant, either by finding, or delivery, the value of which he seeks to 
recover. Is it not apparent from this view of the law, that the jury should 
have some fixed measure of damages? I think it is, and it would be absurd, on 
the trial, to let in evidence of consequential damages. The only alternative, 
is to resort to the rule laid down in the case of Wilson vs. Conine, 2 Johnson 
280, to avoid the difficulty and perplexity of an arbitrary finding by the 
jury. 1st. Bay. 273. From every view of the case, we are clearly of opinion, 
that the verdict should be set aside, and a new trial awarded.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 80-83.

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