Dunn v. Choate

Wheeler, J. Of the several errors assigned, it does not become necessary, in. the view we have taken of the case, to consider particularly but the one regarded as most material; that is, as to the ruling of the court in refusing a new trial. To entitle the plaintiff to recover in this action, it was incumbent on him to prove a property in himself, either general or special, in the slave. (1 Wash. R., 308; 2 Stark. Ev., 280.) And a present right of possession is essential to the right of action; a mere reversionary interest is not sufficient; aud the right must exist at the time of bringing the action. (Ib; 7 R. R., 9.) The only evidence offered to. prove the plaintiff’s property and right to recover was the proof of his own deed of gift and the testimony of the witness Vaughn to the fact of the making of the deed of gift, and the possession and removal by him of the negro from Tennessee to Texas. It seems clear that this evidence was not sufficient to prove property, either general or special, in the plaintiff. There was no evidence that the plaintiff had any right or tide whatever to thé negro at the time of the execution by him of the deed of gift, or that she then was or ever had been in liis possession. And the mere fact of his execution of tile deed of gift cannot surely, in any action instituted by him to recover the property named in it, amount to proof of his property therein and right to make the gift. So to hold would be to permit a party to manufacture his own evidence. The testimony of the witness Vaughn seems to have been'introduced merely for the purpose of proving the deed of gift and the happening of the event upon which the title was, by the terms of the gift, to reverb to the giver. He testifies to no fact touching the plaintiff’s title or right to make the gift, and. his testimony is not regarded as amounting to proof of property in the plaintiff. Had (here been evidence of property or possession in the plaintiff at the time of execution of the deed of gift, it would have presented a very different ease. But there is in the record no proof of ownership or property in the plaintiff. The verdict, therefore, as to this essential fact was without evidence, and the court erred in refusing a new trial. As the objections tot ho rulings of the court upon the exceptions to the pleadings and the admissibility of evidence will doubtless be obviated by amendment and proof, if deemed necessary, it is not material now to consider them further than to remove such objections as may be again urged at the trial. The execution of (lie original deed of gift and its loss being proved, it was competent to prove, by a witness who had examined it and knew the fact, the correctness of the copy in his possession. (1 Stark. Ev., 3-19, 350; 6 T. R., 236.) Bnt it was not a sufficient proof of the loss of the instrument to prove the declarations merely of the person in whose custody it was at the time. That person should have been introduced or his absence accounted for. if it be proposed to prove by parol the contents of a lost deed, it must in general be shown that inquiry has been made after the deed, and the loss of it must be proved [10] by the person in whose custody it was at the time of loss, if that p'erson be living', ancl if he he dead, application should be made to his representatives, and search made amongst the documents of the deceased. (Ib; 1 Stark. Ev., 352, 2 Am. Edit.) Note 3. — There are no degrees in secondary evidence. An examined copy is equally admissible with a certified, copy. (White v. Burney, 27 T., 50.) • Note 4. — Where no demand is proven, damages are computed from service of the writ, (Calvit v. Cloud, 14 T., 53.) . JTo demand of the property by the plaintiff was necessary in this action before the institution of his suit. In an action to recover a slave or other personal property specifically, demand before suit is not necessary, except for the purpose of entitling the plaintiff to damages for the detention between the time of the demand and the commencement of the suit. (1 Bibb. R., 186; 4 Id., 340; 3 Litt. R., 46.) In an action for damages for the wrongful conversion of the plaintiff’s property, the conversion must" be proved; and a demand of the property by the plaintiff, and a refusal to deliver by the defendant, is prima facie evidence of a conversion. (16 Conn. R., 71; 2 B. & C., 76; 7 Johns. R., 254.) But such is nob the character of the present action, it being an action to recover the property speciiically, not damages for its conversion.' Because there is error in tho judgment" of the court overruling the motion for a new trial, we are of opinion that the judgment be reversed and the cause remanded for further proceedings. Judgment reversed.