McDonald v. Peacemaker

BERKSHIRE P. The action in this case was assumpsit for the price or value of sundry cattle alleged to have been sold and delivered by the plaintiff to the defendant. The defendant pleaded non assumpsit, and also two special pleas; the latter pleas alleging, in substance, that the cattle mentioned in the declaration were sold by the plaintiff to* the defendant for the use of the armies of the so called Confederate States of America, then engaged in armed hostility to the armies and Government of the United States; that the plaintiff well knew at the time' of such sale and delivery they were purchased for such use and purpose; and that they were in fact delivered over by the defendant to the Confederate army, without any benefit or profit to the defendant; and then aver that such sale and delivery were against the public policy of the United States, and therefore not binding on the defendant, but were null and void. Upon these three pleas issue was joined and the trial had. The objections urged here against the judgment complained of were, that if the plaintiff was entitled to recover at all for the taking of the cattle, trespass and not assumpsit was the proper remedy; and further, that if the latter action would lie, then the alleged sale and delivery of the cattle sued for, being against the public policy of the Government [442] of Che United States, were consequently null and void and the plaintiff could not therefore recover. It seems to be very well settled that in certain cases of trespass to personal property the owner may waive the tort or trespass and sue in assumpsit for the value of such property. 8 Rob. prac (New) 399, 304 and authorities there referred to. 1 Chitty’s Pleading 107. 1 A. K. Marshall 83. 3 N. Hamp. 384. 2 Gill & Johnson 326, 342-3. From the facts disclosed by the record it would seem that the defendant himself regarded the transaction, at the time of the taking of the cattle in question, in the light of a sale rather than of a trespass; and accordingly proposed to and promised the family of the plaintiff, to' pay for them in certain trade, and at the same time prepared and delivered to them a certificate or paper in reference to the pay for the cattle, to be delivered to plaintiff upon his return home. I think therefore that no substantial errors are disclosed by the appellant’s third and fourth bills of exceptions. Nor are there any, of which he can justly complain, prescribed in his first, second and fifth bills of exceptions. I think, therefore, the judgment should be affirmed with costs and damages. The other judges concurred. Judgment affirmed.