Finch v. Clarke.

transaction, the nonsuit was wrong. The wrongful assumption of title was such a conversion. Brown on Actions, 337; Hare v. Pearson, 4 Ire., 76; Ragsdale v. Williams, 8 Ire., 498. Belief in his claim will not excuse; Carraway v. Burbank, 1 Dev.. 306; Dowd v. Wadsworth, 2 Dev., 130. The defendant's claim was for himself and not for another, which renders the conversion complete, notwithstanding the mistake. Lee v. McKay, 3 Ire., 29.

Young, contra.

1. Notwithstanding the verdict upon the question of title, Trover could not be supported upon what occurred before the second interview, without a demand and refusal. Neither the honest claim of the defendant, sanctioned by oaths and admitted by the plaintiff, nor the lawful possession which resulted therefrom, nor the use, consistent with the scope of such possession, was such conversion. Glover v. Riddick, 11 Ire., 582; Chit. Pl., Trover, Esp. N. P., 589, Buller N. P., 44.

2. Nothing occurred at the second interview to dispense with a demand. Indeed, after the agreement then made, it was a breach of faith to bring this suit without a demand. Even a demand would not have justified a suit before the day on which they were to meet. Ragsdale v. Williams, 8 Ire., 498.

PEARSON, C. J. Trover "is an action ex delicto," and the gist of the action is a wrongful conversion. We concur with his Honor, that the facts do not make out a cause of action. The defendant had probable cause of action, and did believe that the mule was his property. The plaintiff, being also satisfied of that fact, put the mule in possession of the defendant. Up to that time there was nothing wrong, no tort. There was nothing in the defendant's putting the animal to work, for it could hardly be expected that he was

Finch v. Clarke.

to keep him in his stable doing nothing. And when the plaintiff changed his opinion, and gave notice of it to the defendant, the latter did nothing wrong; on the contrary, he averred a willingness to do what was right, and there is no ground on which to question his sincerity; and, thereupon, it was agreed that the defendant should retain the possession until the Saturday following, on which day the parties were to meet, and endeavor to arrange the matter of controversy. After this agreement, it was well put by Mr. Young, on the argument, that the plaintiff was not at liberty to terminate the bailment, before the day fixed on, by a demand; but without deciding that point, we are entirely clear in the opinion, that the plaintiff could not, without a demand, commence an action treating the defendant as a wrongdoer, and thereby subject him to the costs of a lawsuit, before the day which had been agreed on, and up to which day the plaintiff had consented that the defendant should retain the possession. If the defendant had sold the mule, or attempted in breach of the bailment, to run it out of the State, the case would have assumed a different aspect, and put the defendant in the wrong. But there was nothing of this kind to terminate the bailment, and the plaintiff was wrong for bringing the action in violation of his agreement. The case seems to be so plain as not to call for an examina. tion of the authorities. Indeed, there is no question about the principle on which the action is based, and the only difficulty which ever occurs is as to the application of the principle; but, in this case, the application as well as the principle, is free of difficulty.

There is no error.


Judgment affirmed.

State v. Potter.


There is no ground for arrest of judgment unless a fatal defect appears in the record proper, as distinguished from the statement of the case by the Judge.

The Statute of Ann, allowing a defendant to enter two or more pleas, does not apply to indictments.

INDICTMENT, for Assault and Battery, tried before Mitchell, J., at Spring Term, 1867, of the Superior Court of LENOIR. The defendant pleaded autrefois convict and not guilty. The case, as made up by his Honor, states that there was evidence that in the Spring of 1865 the defendant and another went to the house of Sarah Hill, the prosecutrix, in the night time, and after threats and firing of guns, obtained admittance; that the defendant laid his hands on the prosecutrix and attempted to pull her out of the door; that he then went into the yard, where he staid a short time, and then returned and burst open the door, and several times pointed a gun at the prosecutrix.

The above facts had been given in evidence on a similar indictment in the County Court of Lenoir, and the defendant introduced the following record from March Term, 1867, of that court: "State v. James Potter and Isaac Moyer. A. and B. The defendant James Potter comes into open court and submits. Judgment suspended upon payment of costs and in custody of Sheriff till costs are paid."

The statement of his Honor proceeds: "A verdict of guilty was rendered, subject to the opinion of the court."

"The Solicitor insists that the evidence in this case establishes two assaults and batteries; that, as no judgment was pronounced in the County Court, the record of that court in this trial is no protection against even a single assault. On motion of the defendant judgment is arrested, from which the Solicitor prays an appeal, which is granted."

State v. Potter.

Attorney General, for the State.

No counsel for the defendant.

PEARSON, C. J. The record and case sent up by the Judge is in such a shape that this court can take no action on it, except to award a venire de novo.

We can see no ground for an arrest of judgment. That must be for some fatal defect apparent on the face of the record proper, as distinguished from what is set out in the Postea, or case made up by the Judge.

"A verdict of guilty was rendered, subject to the opinion of the court." This, we suppose, was intended to present the question on the plea of "former conviction," and yet the Judge has given no opinion upon either of those questions; so we have nothing to act on, and the case must be sent back for another trial.

It seems the defendant pleaded "not guilty," and also pleaded" former conviction," which latter is a plea confessing and avoiding, and is manifestly inconsistent with the former plea. As the Statute of Ann, allowing more than one plea, does not apply to indictments, the defendant must put himself upon only one of the pleas, or the court should treat the latter plea as a waiver of the former, as was the case at common law in respect to a plea "since the last continuance" in civil suits.


Venire de novo.

State v. Smith.


A stick with which the mortal blow was given may well be described in an indictment for murder as "a certain stick of no value."

(State v. Owen, 1 Mur., 452, cited and approved.)

MURDER, tried before Buxton, J., at the Spring Term, 1867, of the Superior Court of BURKE.

No statement of the facts of the case is necessary.

Under the charge of the court the jury found a verdict of Guilty, and the defendant appealed.

Moore, for the appellant.

Attorney General, for the State.

The form of the indictment is sustained by Wharton's Prec., pp. 51 and 71; 3 Chit. C. L., 761; Arch. Cr. Pl., 314 and 395. See also Owen's case, 1 Mur., 452; 1 Russ. Cr., 466; Roscoe, 706; 1 East. P. C., 341; 2 Hale P. C., 185.

BATTLE, J. This case comes before us upon a motion for a new trial, and also upon a motion to arrest the judgment. The motion for a new trial has been very properly abandoned by the counsel in this court, for there is not the slightest pretext for it. The bill of exceptions shows that the trial was fair, and the prisoner properly convicted.

Upon the motion in arrest the only error assigned is that the indictment describes the instrument with which the mortal blow was inflicted simply as "a certain wooden stick of no value," without stating its length and thickness, so as to show that it was a deadly weapon. It was necessary to set forth the manner of the death, and that, it is contended, was sufficiently done by the statement that it was with a "wooden stick." In support of this proposition approved precedents are relied upon. Thus "an iron poker" and a

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