TAYLOR, J.
The bill in this case alleges, that pending an action of detinue between the parties, in which Ross was defendant, and in which a recovery [127]*127was had against him of a slave, or the value: the slave died. That the slave, at the time of his death, was living at a considerable distance from the residence of the complainant, and that he was not informed of his death until after the judgment was recovered against him; and prays that the judgment at law, for the value of the slave may he perpetually enjoined.
To this hill a demurrer was filed in the Circuit Court, which was overruled, and a perpetual injunction decreed, according to the prayer thereof.
It is now insisted that the demurrer should have been sustained.
In support of the decree of the Circuit Court, the defendant in error takes two grounds.
1st. That by bringing detinue, the plaintiffs in error elected to retain the property in the slave in themselves.
2d. That the value, at the time of the verdict, was that which the jury was bound to ascertain, and the slave being then dead, could he of no value.
It may be admitted that the plaintiffs in the action at law, did prefer the recovery of the slave in person, to the value; hut their wishes on the subject would not secure their object. Notwithstanding their desire to obtain possession of the slave, it was entirely in the power of the defendant to defeat that wish, by paying the value as assessed by the jury, and thus make the slave his own.
But it is said the profits and the property sued for are all that can he demanded of the defendant in such an action; that the delivery of a dead body would not he permitted, and for this reason, pay-[128]*128meat of damages; in such case, of necessity, discharges the judgment.
This would he a dangerous doctrine, and one, which it is believed, is not established by authority.' That is, that the death or destruction of the thing sued for, pending the action, would be a fact sufficient to prevent any recovery for its value.
It is not pretended that slaves stand in a different situation, in this respect, from other property.
It is true we can not suppose such a diabolical disposition in any person, as to commit murder to’ prevent a recovery against him in a suit. But the high state of excitement and rancorous feelings which are often produced by a lengthy litigation, might induce defendants, when they found the result must be against them, to destroy property sued for, of other kinds, and that in so secret a manner that it would be difficult, if not impossible for the plaintiff to prove that the destruction was intentional.
Accordingly, we find it has been decided in England, where a suit had been brought for title papers, and pending the action the defendant destroyed them, that the measure of damages should be the value of the land.
Suppose the title papers had been destroyed by accident, as the burning of the house of the defendant, can we suppose the judgment would have been different'? It would have been equally a loss to the plaintiff, and one which might never have occurred; had they been delivered to the plaintiff without suit.
Although we can not believe that slaves would ever be murdered to prevent a recovery of them, yet they might not be attended upon with the same care; [129]*129if sick, or fumislied with the same comforts, if well,that they would he were they the undisputed property of the defendant, and which their wants required.-
Nor can the circumstance, that the profits of the property sued for, are recovered in the action of deti-nue instead of interest, make any difference. This might often operate to the benefit of the defendant, as many things, which might be the subject of the action, produce no profit at all, and the party might always relieve himself from the payment of profits, by surrendering the possession to the rightful owner.-
As to the second ground, taken by the defendant in error, it is in no case, determined that the valué of the property, at the date of the judgment, is to govern the verdict of the jury. Nor can I see any good reason, why a different rule should prevail, in this case, from that which should govern in an actioii of trover; and I am strongly inclined to the opinion^ that the verdict should be governed by the value, at the time of suit brought, or demand made.
There is one reason, which seems strongly to forbid the defence attempted to be set up, in this case. It is, that if the plaintiffs at law, had not have been wrongfully kept out of the possession of his slave, he might -have sold him while in life and health ; and indeed, the defendant may have sold him, and while he proves his death, to prevent a recovery, may have in his pocket the proceeds of the sale.
But it is answered, if the defendant had sold him, this might he proved on the trial, and the price which he received for him be recovered, as damages, in addition to the profits.
[130]*130It does seem to me, this would be introducing an investigation foreign to the subject, and into which the plaintiff would have no right to inquire. If he is entitled to the value of the propertv, at the time of the trial only, how can his rights be affected, by the the person in whose possession the value may have deteriorated or enhanced.
If, after the sale, property of the kind had risen a hundred per cent., the defendant could not prove this, to reduce the amount of the verdict — nor if, by some change in the market, a proportionate fall had taken place after the sale, and before the trial — would it be proper to give evidence to that effect, and make the defendant responsible for whatever he had received'? If the slave be dead, at the time of the trial, it is precisely the same to the plaintiff, whether he died in the possession of the defendant or any third person, or whether the defendant had lent, hired or sold him.
Reason and the elementary principles of the law, therefore, would seem to determine, that the death of the slave, pending the suit, would not vary the rights of the parties. Fortunately, however, we are not left to the guidance of these alone, but have the light of so many as three decisions, in the highest judicial tribunals of as many of our sister States, which are precisely in point.
In Austin’s ex'ors vs Jones,
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TAYLOR, J.
The bill in this case alleges, that pending an action of detinue between the parties, in which Ross was defendant, and in which a recovery [127]*127was had against him of a slave, or the value: the slave died. That the slave, at the time of his death, was living at a considerable distance from the residence of the complainant, and that he was not informed of his death until after the judgment was recovered against him; and prays that the judgment at law, for the value of the slave may he perpetually enjoined.
To this hill a demurrer was filed in the Circuit Court, which was overruled, and a perpetual injunction decreed, according to the prayer thereof.
It is now insisted that the demurrer should have been sustained.
In support of the decree of the Circuit Court, the defendant in error takes two grounds.
1st. That by bringing detinue, the plaintiffs in error elected to retain the property in the slave in themselves.
2d. That the value, at the time of the verdict, was that which the jury was bound to ascertain, and the slave being then dead, could he of no value.
It may be admitted that the plaintiffs in the action at law, did prefer the recovery of the slave in person, to the value; hut their wishes on the subject would not secure their object. Notwithstanding their desire to obtain possession of the slave, it was entirely in the power of the defendant to defeat that wish, by paying the value as assessed by the jury, and thus make the slave his own.
But it is said the profits and the property sued for are all that can he demanded of the defendant in such an action; that the delivery of a dead body would not he permitted, and for this reason, pay-[128]*128meat of damages; in such case, of necessity, discharges the judgment.
This would he a dangerous doctrine, and one, which it is believed, is not established by authority.' That is, that the death or destruction of the thing sued for, pending the action, would be a fact sufficient to prevent any recovery for its value.
It is not pretended that slaves stand in a different situation, in this respect, from other property.
It is true we can not suppose such a diabolical disposition in any person, as to commit murder to’ prevent a recovery against him in a suit. But the high state of excitement and rancorous feelings which are often produced by a lengthy litigation, might induce defendants, when they found the result must be against them, to destroy property sued for, of other kinds, and that in so secret a manner that it would be difficult, if not impossible for the plaintiff to prove that the destruction was intentional.
Accordingly, we find it has been decided in England, where a suit had been brought for title papers, and pending the action the defendant destroyed them, that the measure of damages should be the value of the land.
Suppose the title papers had been destroyed by accident, as the burning of the house of the defendant, can we suppose the judgment would have been different'? It would have been equally a loss to the plaintiff, and one which might never have occurred; had they been delivered to the plaintiff without suit.
Although we can not believe that slaves would ever be murdered to prevent a recovery of them, yet they might not be attended upon with the same care; [129]*129if sick, or fumislied with the same comforts, if well,that they would he were they the undisputed property of the defendant, and which their wants required.-
Nor can the circumstance, that the profits of the property sued for, are recovered in the action of deti-nue instead of interest, make any difference. This might often operate to the benefit of the defendant, as many things, which might be the subject of the action, produce no profit at all, and the party might always relieve himself from the payment of profits, by surrendering the possession to the rightful owner.-
As to the second ground, taken by the defendant in error, it is in no case, determined that the valué of the property, at the date of the judgment, is to govern the verdict of the jury. Nor can I see any good reason, why a different rule should prevail, in this case, from that which should govern in an actioii of trover; and I am strongly inclined to the opinion^ that the verdict should be governed by the value, at the time of suit brought, or demand made.
There is one reason, which seems strongly to forbid the defence attempted to be set up, in this case. It is, that if the plaintiffs at law, had not have been wrongfully kept out of the possession of his slave, he might -have sold him while in life and health ; and indeed, the defendant may have sold him, and while he proves his death, to prevent a recovery, may have in his pocket the proceeds of the sale.
But it is answered, if the defendant had sold him, this might he proved on the trial, and the price which he received for him be recovered, as damages, in addition to the profits.
[130]*130It does seem to me, this would be introducing an investigation foreign to the subject, and into which the plaintiff would have no right to inquire. If he is entitled to the value of the propertv, at the time of the trial only, how can his rights be affected, by the the person in whose possession the value may have deteriorated or enhanced.
If, after the sale, property of the kind had risen a hundred per cent., the defendant could not prove this, to reduce the amount of the verdict — nor if, by some change in the market, a proportionate fall had taken place after the sale, and before the trial — would it be proper to give evidence to that effect, and make the defendant responsible for whatever he had received'? If the slave be dead, at the time of the trial, it is precisely the same to the plaintiff, whether he died in the possession of the defendant or any third person, or whether the defendant had lent, hired or sold him.
Reason and the elementary principles of the law, therefore, would seem to determine, that the death of the slave, pending the suit, would not vary the rights of the parties. Fortunately, however, we are not left to the guidance of these alone, but have the light of so many as three decisions, in the highest judicial tribunals of as many of our sister States, which are precisely in point.
In Austin’s ex'ors vs Jones,
It is not denied, that the destruction of the property, before trial, is no defence in the latter action: in that action the question is, to whom did the property belong at the time of the conversion'? and its object is to recover the value thereof, in damages. The action of detinue is only a broader action — substantially, it is the same, with the addition, that the specific property may be recovered, if to be had, and if not, the alternative value, with damages for the detention.
“ According to the form of the action of detinue, also, it can not be maintained for the hire of property, and damages, for its detention only. In both actions, the value of the property must be recovered, or nothing: so that, in this case, if the death of the slave is to avail, the judgment must be for the defendant, as to her. An omission to find the value of the slave by the jury, would have rendered the verdict imperfect, and no judgment could have been given on it, for hire and damages.
“But, it is contended, that proof of the death of the slave, relates to the value, and not to the posses[132]*132sion. Is it correct, to say that proof of the non-existence of a thing, is proof of its value 'l Value is a question of plus or minus. The inquiry pre-supposes the existence of the property, and possession in the defendant. It goes to show, that he was not in the possession at the time of the trial; that is, that he was not in a condition to deliver her to the plaintiff, which is interdicted. The plea relates to the time of suing out the writ, or to some previous period, as regards the possession, and not to a time subsequent.”
The case of -vs-,a decided by the Court of Appeals of Kentucky, sustains the same doctrine. There, as here, the only question was as to the effect of the death of the slave, pending the action of detinue, upon the judgment, and it was determined, that it should be for the value of the slave, at the commencement of the suit.
And, in North Carolina, the law is the same. — See the case of Skipper vs Hargrove,b in which it was de~ elded, that the plaintiff should have judgment, though the slave, for which the action was brought, died after the demand.
English authorities can not be expected to be adduced. The action of detinue is rarely resorted to, there, because the wager of law would defeat it. — - With us, that objection does not apply; and it is becoming a favorite and valuable remedy, particularly when the title to slaves is the subject of dispute.— But, if the loss or destruction of the property were to defeat a recovery, trover, for this reason, would supplant it here, as completely as it has done in England, because of the wager of law.
[133]*133The decree must he reversed, and the hill dismissed, at the cost of Ross, the defendant in error.
LIPSCOMB, C. J., not sitting in this cause.
Gilmer's Rep. 341.