<p>In error from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.</p> <p>John W. Ford, surviving trustee, brought an action of replevin, under the statute,1 against William L. S. Dearing, for two negro slaves, Jerry and Adam, to the October term, 1846, of the circuit court.</p> <p>Affidavit was filed on the 29th day of June, 1846^}1 the clerk’s office, by Isaac Hill, that Dearing had in his “possession the said slaves, and that he was unlawfully detaining them from John W. Ford, surviving trustee, &c., who was legally entitled to their possession, and that said Ford’s right of action had accrued within one year, for the same; a writ of replevin issued thereon, and the property was seized by the sheriff, but was restored to defendant upon his entering into bond, according to the provisions of the statute. Plaintiff also filed his declaration, setting out the same facts stated in the affidavit; to which defendant plead, 1, not guilty; and 2, the statute of limitations of our year, &c.; on both of which pleas issue was taken.</p> <p>On the trial, plaintiff introduced and read to the jury as evidence a trust deed made by defendant to John W. Ford and Sion S. Reid, on the 29th day of February, 1842.</p> <p>He then read the deposition of John Warren to the jury, to prove that Isaac Hill, one of the cestui que trusts mentioned in the deed, had, on the 3d day of February, 1846, paid $526 for Dearing on one of the debts mentioned in the deed.</p> <p>The plaintiff then proved that the negroes, Adam and Jerry, were 'the same conveyed in said deed, and that Adam was worth about $500 and Jerry $650, and were in defendant’s possession in this state in the spring of 1846; and plaintiff here rested his cause.</p> <p>The defendant proved, by John W. Thompson, that he, as auctioneer, sold property mentioned in said déed of trust, at the trustee’s sale, to the amount of $1400, of which the said Isaac Hill purchased $779 worth. Thompson also proved, on cross-examination, that the negroes, Jerry and Adam, were not sold, and that the reason Jerry was not sold was, that Dearing had, about a year before, taken him to Alabama with him, and had not at that time brought him back. He further proved, that Ford, the trustee, was present and called for Adam, and was answered by Dearing that Adam would be present in a short time, but that he was not brought forward or sold.</p> <p>The testimony having closed, various charges were asked by counsel for plaintiff and defendant. The jury then retired, and afterwards returned with a verdict for plaintiff, assessing the value of the slaves at $1150, which was received, and the jury discharged. On the following day, without any writ of inquiry having been awarded, the same jury was called back and the cause again submitted to them to find the separate values of the negroes, when one of the jurors stated that, from the testimony before them, they could not find the separate values of the negroes ; whereupon, one of plaintiff’s counsel stated to the jury that the boy Jerry was worth $650, and Adam $500; to which statement to the jury by plaintiffs counsel, defendant, by attorney, then and there objected and excepted. The jury, having retired, returned and brought in for verdict that they had found the issue for plaintiff, and assessed the value of Jerry at $650, and Adam at $500; afterwards, defendant moved the court for a new trial, which was overruled, whereupon he sued out this writ of error.</p> <p>1. The form of action is replevin in the detinet, under the statute of 1842, by Ford, as trustee, against the grantor in a trust deed, to recover possession of two slaves.</p> <p>There was no evidence of demand and refusal, and even trover could not have been maintained. 2’Saund. PI. <fc Ev. 883; 6 Johns. R. 44; 7 Porter, 279; lb. 466. -</p> <p>. Three things were necessary to sustain the proceedings: 1st. To prove that plaintiff was legally entitled to the immediate possession of the property; 2d. That it was “wrongfully detained ” by Dearing; 3d. That the right pf action accrued within one year. Hutch. Code, 817, 818.</p> <p>The common law action of replevin will not lie unless there has been a tortious taking. Wheelock v. Cozzens, 6 How. 279; 7 Johns. R. 143; 16 Mass. R. 147; 2 Sand. PL & Ev. 759; 4 Bing. R. 299; 1 Mason, 322; 15 Mass. R. 359; 17 lb. 606; 1 Miss. 345; Breese, 130; 2 Blackf. 415; 12 Wend. 32; 1 lb.' 112; 2 Murphy, 357.</p> <p>Under the New York statute, it has been decided, “that replevin in the cepit will only lie where an action of trespass might have been maintained, but, in' the detinet, after demand and refusal.” 3 Hill, 282; lb. 348 ; 19 Wend. 498. Also, that a demand and refusal is not necessary to be proved where the taking was wrongful. 3 Hill, 282; 6 lb. 613; 1 Denio, 329.</p> <p>The Massachusetts statute is much broader than ours, but it is necessary to prove a demand and refusal even in that state. The words of the statute are, “ when any goods and chattels may be taken, distrained, or attached,” &c. The word “ wrongful” is not used. 15 Mass. R. 363. “The statute has greatly extended the remedy.” 17 lb. 610.</p> <p>In order to maintain replevin, the plaintiff must have a right to have delivery of the property at the time of the issuing of the writ. 3 Hill, 577; 3 Pick. R. 255, 258; 15 Mass. R. 310; 15 Pick. 63.</p> <p>2. The verdict of the jury assessed the value of the property in gross; and on the next day of the term, and after the jury had been discharged, the jurors were called back, and the case was again submitted to them.</p> <p>It was irregular to call the jury together again, after having rendered their verdict, and after being regularly discharged; and the evidence was illegal.</p> <p>In actions of trover, where property comes rightfully into the possession of defendant, the detention never becomes tortious until demand has been made, unless some act of ownership has been assumed, amounting actually or constructively to a conversion. See 1 Chitty’s Pleadings, 179; 7 Porter, 279; lb. 466, and authorities there referred to. But it has been decided expressly, both in New York and Massachusetts, that demand is necessary to make the “ detention wrongful,”, and to enable a party to maintain an action of replevin in the detinet, where the property originally came rightfully to the possession of defendant. See the case of Barrett v.' Warren, 3 Hill, Rep. 348; Cummings v. Vorce, lb. 285; Pierce v. Van Dyke, 6 lb., 613, 614, 616, Justice Bronson’s Opinion; also, Halev. Clark, 19 Wend. 498; Boughton v. Bruce, 20 lb. 234; also Badger v. Phinney, 15 Mass. Rep. 359; Gates v. Gates, lb. 311.</p> <p>2. We contend, that the jury, after having rendered their verdict, and been discharged and dispersed for several hours, could not be called back and made to amend their verdict in matter of substance. See Walters v. Junkins, 16 Serg. & Rawle, 414 ; Little v. Larrabee, 2 Greenl. 37; Graham’s Practice, 661; 7 Cowen, 29; Prussel v. Knowles, 4 How. 90; Walker v. Commissioners, fyc., 1 S. & M. 372. If the jury failed in the first instance to find the price or value of each negro separately, as they should have done, the verdict could only be amended, by the court awarding a writ of inquiry, and empanelling a jury for that purpose,- which it should have done, and let legal testimony have been properly brought before them on that point. See Hutch. Miss. Code, 849.</p> <p>Other points touching the testimony were made by counsel for plaintiff in error.</p> <p>1. That no demand was necessary before action brought; the writ was demand enough. 7 Port. 279.</p> <p>2. That there was no error in allowing the jury to come back and amend their verdict. 7 S. & M. 45; Graham, New Trials, 91, 92.</p>
