Polk's Administrator v. Allen

delivered the opinion of the court.

This is an action for the recovery of damages for taking a slave. Judgment was given for the return of the slave, and damages equivalent to his hire from the time the plaintiff took out letters of administration on the estate of his intestate..

1. It is clear that the judgment of the court is not warranted by the pleading in the case. Such a judgment as was rendered could only have been given on a procedure in pursuance to the provisions of the 8th article of the present practice act. As the plaintiff went for damages for the conversion of the property, he was only entitled to interest on the assessed value of the slave, and not to damages equivalent to his hire. The action was brought in a form which affirmed the act of the defendant in converting the slave. If he was converted, interest in the way of damages could only be given from the time of the conversion. The allowance of the hire, as damages, was permitting the plaintiff to blow hot and cold with one breath. The slave was converted and the slave was not converted. If the slave had died after action brought, the loss would clearly have been on the defendant. He would have been liable for the value, as the plaintiff had affirmed his act in taking him, and having affirmed it, he had no longer any right to his hire. R. C. 834, sec. 28.

2. Husband and wife cannot be joint tenants or tenants in *469common of a chattel. A gift or bequest to the husband and wife would vest the entire property in the husband. On the death of the husband, the property would go to his representatives, and the wife would only be entitled to her dower in it. Whatever may be the construction of the act concerning married women, passed 5th March, 1849, the gift or bequest of the slave here, was long prior to that time.

3. The statute of limitations did not run during the time there was no administration on the estate of Polk. It would only commence running from the grant of letters. McDonald’s Adm’r v. Walton, 2 Mo. Rep. 43.

4. If the slave was gratuitously left with Griffin, no damages are recoverable until a demand was made for him. It will be seen that this judgment is reversed for errors beyond the reach of the bill of exceptions. Judge Ryland concurring, the judgment is reversed and the cause remanded.