Stephen Martin v. John Martin, 12 Leigh 495

STANARD, J. It was objected, that the arbitrators exceeded their authority in awarding the issue born after the institution of the suit, and that the judgment is erroneous in sanctioning , the award. i_ If the objection is well founded, it will not avoid the award as to the matters confessedly .within the submission. It was an excess easily severable from1 the matter which was submitted; and the court in giving judgment on the award should have rejected the excess, and sustained it so far as it was within the submission. Lyle v. Rodgers, 5 Wheat. 394, 409; Cargey v. Aitcheson, 13 Price 639; S.

C. 2 Barn. & Cress. 170; 2 Bing. 199; 9 Eng. C. L. R. 52, 380. Upon the question whether the, objection is well founded or not, after the most careful consideration of it, and of the argument upon it, I think the objection must be sustained. The matter in difference in the action *of detinue demanding three slaves .by name, was referred to the arbitrators': their authority did not extend beyond the matter in difference in that .fiction.

Whatever was recoverable in that suit, had it proceeded to trial and judgment in the ordinary course, constituted the matter in difference, and every thing not so recoverable was extrinsic to the case, as to which evidence would hfive been inadmissible at tffe trial, and judgment would have been extrajudicial and erroneous. The question, then, is resolvable into this: could the increase of the female slave born pending the. action of detinue for the mother, have been recovered, if the case had proceeded to ' trial, verdict and judgment?

The well informed counsel for the defendant in error, seeing that this was probably the equivalent question, maintained the affirmative, on the ground that the increase is but a, mere incident, like interest on principal money, or profits of property detained. This argument from analogy, though most ingeniously urged, I think is not sound. To hold it so, might in this . case subserve the purposes of justice, but. would lead to very different results if established as a general proposition.

If it be established that the increase, of slaves is like interest or profits, and on that analogy the recovery of the increase be allowed in this action, then the principle would apply in a case where, the increase not being recovered in the action for the parent, a subsequent action shall be brought for the increase.

If in a suit for money or property, in which interest or profits are recoverable as incidental to or accessories of the principal subject, such interest or profits be not recovered, no new action can be brought for them ; and, if the increase of slaves born pending a suit for the parents, be considered incidents or accessories of the principal subject claimed in the pleadings, a subsequent suit for such increase would be equally inadmissible.

The consequence would be, that the true owner, suing for and recovering the parent, and ^ignorant or not having proof of the fact of increase pending his suit, would lose his remedy for the increase. And cases in which the plaintiff may be ignorant of the fact of such increase having been born, or may want proof of it, will, probably, be of much more frequent occurrence than those in which his information and proof will enable him to recover them. Again, to hold that such increase is recoverable in the action for the parent, might lead to surprise and injustice.

The defendant has no warning that the plaintiff alleges the birth or existence of such increase; and the plaintiff may introduce evidence as to this matter, of which the pleadings have given the defendant no notice, and by mistake or fraud make proof of increase that never existed or had ceased to exist. And in respect to the increase which had been born but had died, what would be the rights of the parties? Much embarrassment might arise from the application of the principle of Austin’s ex’or v.

Jones, Gilm. 341, where judgment was given for the plaintiff, though it was ascertained by the verdict of the jury, that the slave was dead. In one view of that case, if the increase born pending the"'suit is to be considered as part of the subject embraced and recoverable in the suit, then its death pendente lite would not exempt the defendant from a recovery of its value.

In another view, the argument of Judge Roane in that case goes far to sustain the propriety of excluding the proof that there was such increase, and consequently of denying the right of recovery: he intimated, that the defendant might have protected himself by pleading puis darrein continuance, because such plea would have put the allegation of the fact of the death of the slave on the record, and that would have let in proof of it.

If the death cannot be proved to exonerate the defendant from the charge for the slave that may have died, unless that fact be pleaded in the ordinary course, proof of the birth not stated in the pleadings should not be let in to increase the charge. *My opinion is, therefore, that the arbitrators, so far as their award embraced the increase of the female slave born pending the suit, exceeded their authority; that to that extent the court below ought to have rejected the award, and should have given judgment upon it in like manner as if it had said nothing about the increase; and that this court, reversing the judgment, should render such judgment as that court ought to have rendered.

CABIDDD, J., concurred in the opinion of Judge Allen, and BROOKE, J., concurred in that of Judge Stanard. And the judges of this court being equally divided in opinion, therefore, the judgment, was affirmed. _^