Daniel McRaeny, Trustee, &c., Plaintiff in Error vs. William Johnson and Wormley R. Moore, Defendants in Error, 2 Fla. 520

Opinion by Justice Baltzell : That the owner of a slave is entitled to damages from a wrong doer for an injury occasioning his death, is not denied ; but in the present case it is urged, that the trustee is not the proper person to bring the suit, nor trespass the form of action appropriate to such an injury. The slave, on whose account the action is instituted, is found by the jury in their special verdict to have been in the possession of a married woman, under a deed of trust constituting the plaintiff trustee ; and whether he can maintain the action, under such circumstances, is the question.

For injuries to personal property, without amotion or carrying it away, the remedy is either trespass or case. The injury should be immediately injurious in the action of trespass, and the plaintiff should be in the actual or at least constructive possession of the chattel at the time it was injured. Arch. Pl. & Ev., p. 16, 17. Constructive possession is where the general owner, although the chattel is in the actual possession of another, has the right to reclaim it immediately; the person in possession not being entitled to retain it against his will. 8th Pickering, p. 335.

Bacon Abridg., title trespass, C. 7th Connecticut R., page 235. 5th Vermont R., page 97. The plaintiff must have a constructive possession in respect of the right being actually vested in him. 1 Term. Rep., 480. 3 Day, p. 498. 8 Johnson, p. 432. A general property in a personal chattel draws to it the possession in law. Bacon. Abridg., title trespass, C. 7 Connecticut, 235. 5th Vermont, 97. Not only he who has the property, but also he who has the possession of goods, shall' maintain trespass for the goods. 7th Comyn’s Digest, 510.

Has the trustee for a married woman such property or possession by right actually vested as will enable him to maintain the action 1 We confess that but for the confidence with which the contrary has been maintained by learned counsel, we should have no hesitancy in giving an affirmative answer, as he is the proper person to bring any action at law for asserting or defending the legal title, and every action founded on such title must be brought in his name. Lewin on Trusts, p. 481, 482.

The trustee cannot maintain the action in this case, it is said, because the feme was in the actual possession, and by the deed was entitled to it. There is nothing peculiar in this ; “ for,” says an eminent writer, “ it is a case that seldom happens, for the trustee to be in the actual possession.” 1 Cruise’s Digest, 489. In the ease of Haselton v.

Gill and another, which was trover for eight cows, &e., the marriage settlement was in trust, that the trustees should permit the feme (about to be married) to keep and enjoy, and at her will to sell and dispose of the said cows and premises, and the increase and produce to arise and be produced from the same, for her own use, &c., and to carry on the business and trade of a cow keeper and milk-seller; and the action was by the trustees, for part of the cattle contained in the deed, and others bought with the trust money.

Lord Mansfield says : “ By the common law the wife can have no property during the coverture, hut all her estate is in the husband. But courts of equity have for ages past thought the rules of the common law too hard, and have thought it right to protect the property of the wife from the extravagance of the husband, in cases clear of fraud. This is done by the intervention of trustees, and thus far the wife is, to all intents and purposes, a single woman.

And whenever the trust can be supported in equity, this Court will consider the trustee entitled at law.” The title having been contested as fraudulent, on account of the possession, Ashurst and Butler, Justices, say, “ it was consistent with the deed — the wife was the agent of the trustees — she acted as their agent, and a recovery was had.” 3 Term R., p. 622, n. To the same effect, and under like circumstances, are the cases of Jarman v. Woolaston and another, 3 Term R., p. 622. Caddogan v. Kennett, 2 Conn. R., 242, and Foley, &c. v. Sheriff of Middlesex, stated in a note to this latter case.

These were cases of trover, yet property is required in it, as well as in trespass. “When the defendant takes goods wrongfully and by trespass, the plaintiff, if he brings trover, waives the trespass, and admits the possession to have been lawfully gotten.” Coolidge v. Chitty, &c. 1 Bur., 31.— “ Two things are necessary in the action of trover — property in the plaintiff and a wrongful conversion by the defendant.” Ibid. In trover, there must be proof of actual possession, or that plaintiff was entitled to the immediate possession of the goods. 2 Phillips’ Evidence, 221. 7 Term. R., 13.

A case still more conclusive is that of Wooderman v. Baldock, being an action of trespass, for the as-portation of goods, brought by trustees, under a deed of assignment, with a clause for the trustees to permit the goods to remain in possession of the assignor — those remaining with him were levied upon, and suit being instituted, a recovery was had, no objection being raised as to the form of the action, or to their want of possession, although a new trial was moved on other grounds. 8 Taunton, 677.

Referring to elementary treatises, whilst the rule is as we have stated, as to the right of the trustee to sue, there is no exception as to any particular action, or class of cases. He is owner, and there is no reason for denying him all the remedies devised by law for redress for any injury sustained by the property under his charge.

Nor is there any obstacle, on account of the interest of the cestui que trust; the cases just quoted speak of him as the agent of the trustee ; others, of his possession as the “very possession of the trustee,” and not liable to be displaced by it, however long continued, the holding not being adverse. Hill on Trustees, 266. Adams on Ejectment, 52. Such right to the possession, it is said, is recognised in .equity only. Lewin, 481. Again: cestui que trust is regarded as tenant at will and at sufferance of the trustee. Hill, 266. Lewin, 481.

In Dane’s Abridgement, as mere borrower of goods from, the trustee. 4 Dane, 249. Courts of law do not distinguish between a sute brought by trustee against his cestui que trust, and that by another person. 8 Term Rep., 122, 123. Nor are trustees for married women, as has been insisted in argument, mere nominal appointments, or dry trustees; on the contrary, we find them classed amongst the trustees clothed with active duties. Hill, 545. Where, then, is the pretext for considering their interests and rights as distinct or separate ?

If the provision, entitling the feme in a trust deed to the possession, may not be noticed or asserted in a court of law, by what rule or right can it avail a stranger claiming its protection, not only adversely, but in a manner to annihilate and destroy, as well the possession as the interest and property itself? It is sought to bring this suit within the authorities holding that trespass will not lie in cases where there is a bailment or right of possession derived from the owner. To this it may be answered, that if the trustee of Mrs.

Williams, by his implied sanction, had hired the negro for a term, and during its continuance the injury had been committed, there might be pretext for the argument, though even in such case the destruction of the chattel, for obvious reasons, will give right of action even against the bailee. 1 Chitty PL, 171.

In cases of injury to this peculiar species of property, the American Courts, by a spirit of enlightened humanity, have extended a more enlarged protection than prevails in cases of mere chattels; it is said, “ slaves are, by the operation of our law, deprived of all personal rights, yet they are moral agents, subject to the same feelings, and have a right to protection from abuse, as other human beings.” Whilst different remedies have been used, “ they all, either impliedly or expressly, admit the right of the master to sustain trespass for any battery of his slave. 2 Bailey, 95.

Harper, 113. 1 McCord, 100. 11th Alabama, 395, n. s. The right of action for the injury in the present case, is asserted to be in the husband, Williams, and his wife the cestui que trust, but he has neither the ownership nor possession — neither a right in law, nor one in fact. For him to maintain the action, is to permit him to defeat his own deed, and destroy the very interest he had vested in the trustee. We are satisfied that the trustee is the person to bring the suit, or there is no remedy — that it was his duty to have brought the action, and that it was rightly brought.

The judgment of the Court below will be reversed and set aside, and the cause remanded, that a judgment may be entered on the special verdict for the plaintiff in that Court.