majority">Fishek, J.,

delivered the opinion of the court.

The plaintiffs below brought this action in the Circuit Court of De Soto county, to recover damages alleged to have been sustained in consequence of a trespass committed by the defendant in illegally taking and detaining the slaves of the plaintiffs.

The errors assigned, relate to the action of the court below, in admitting certain testimony on behalf of the plaintiffs, and rejecting testimony offered by the defendant. The plaintiffs introduced a witness, and proposed to prove by him the amount of expenses which they had incurred in procuring a carriage to attend the trial, before the judge of that district, on a writ of habeas corpus, in relation to the slaves alleged to have been taken by the defendant. The defendant objected to this testimony, on the ground that it was not first shown that the amount paid as expenses was reasonable, or, that the carriage was necessary. The court overruled the objection and admitted the testimony, and we think properly. The very object of the action was to compensate the plaintiffs for the trouble, loss of time and expense incurred in regaining possession of their slaves, and it was certainly competent *259to show the amount actually paid as expenses, and to show by other testimony that such amount was under the, circumstances reasonable. All that the court could decide at that stage of the proceedings was the question as to the relevancy of the testimony, and if it tended to prove a material fact in issue, it was of course relevant, and should have been admitted. It may have been incomplete, or insufficient by itself to establish the fact, which it was intended to establish. But this was not the question. The court had to determine the relevancy of the testimony, and the jury its sufficiency.

Again, the same witness was asked by the plaintiffs whether the defendant did not, on the day he delivered the slaves to the witness, as sheriff, in virtue of the judgment on the writ of habeas corpus, sue out a writ of replevin against the plaintiffs, and whether he had not dismissed said suit.

The action of replevin was commenced, it seems, to recover possession of the slaves from the plaintiffs, and the object of the testimony, as appears from the bill of exceptions, was to show that the defendant was'actuated by malice in committing the trespass, and consequently to increase the damages. It was, no doubt, proper to show the peculiar feelings and motives which prompted the defendant in taking the slaves; and such feelings and motives might have a tendency to show that the act was wholly unjustifiable, or wantonly done. But the difficulty in the question is to determine how the mere fact of bringing an action of replevin, long after the trespass, can be construed as evidence of the motives which actuated the defendant in taking possession of the slaves, and especially of a bad motive.

The plaintiffs propose to introduce evidence to show malice in the .defendant at the time he committed the trespass. The court decides that evidence to establish this fact may be admitted, with a view of increasing the damages. But the question is, how is the fact to be proved ? The answer is, by showing that the defendant brought an action to recover the slaves, when he ascertained that he could not retain possession under his trespass, and that he has failed to prosecute that action. The question again recurs, how can malice be inferred from these acts ? The mere fact of bring*260ing the suit, so far from proving malice, would negative any such presumption, because it would tend to show that the party believed at least that he was entitled to the slaves, and was, therefore, in pursuit of his right; but in an illegal manner, when he took possession of them in the first instance.

Again, the failure to prosecute the action,- proves nothing as to previous motives.' He may have been governed by his counsel, both in bringing and dismissing the suit. The inference from a fact proved must be natural; and even a bad motive in bringing the action of replevin, would not necessarily raise the presumption of a bad motive in committing the trespass. Malice, in such case, must arise out of the transaction itself. As, for instance, the manner in which the act was done, taking and detaining the slaves without a color of title, or any other act evidencing a disposition to injure the plaintiffs by the commission of the wrong.

We are therefore of opinion, that the court erred in admitting this testimony, and for this error the judgment will have to be reversed.

Judgment reversed, and new trial granted.

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