I concur on the ground that the trust was executed as to Swift, and that Ohurr’s title was good during the life of Swift. On the other point I express no opinion, but am inclined to think assump-sit would not lie, unless money, had been actually received, so as to constitute Churr an agent.

I concur on the construction of the trust deed, but I dissent o a *285tho fir.it ground taken in the above opinion, believing that assumpsit might Jie.

delivered the opinion of the court.

In two points of view, the law of this case is against the plaintiff. The intestate was in possession under Swift the original owner, and the plaintiff’s ces iiiique trust, it is proved by the witness, Sarah Ford, that the negro was not in his (Churr’s) possession by the consent of the plaintiff. If this be true, and it must here be so regarded, the defendant’s intestate was in possession against the plaintiff’s title. In such a state of things there is no privity between the parties, which will enable the court to imply a contract of hiring. For the party holding possession, claims in his own right, which is an adverse possession according to all the cases. If the possession had not been adverse, then the tort might have been waived, and an implied contract might have been raised. As when, one possesses himself of my property, by claiming to act for me, or by finding, in each of these cases, from the use of the property, an implied promise to pay the value of the hire, may be raised. But legal implications are nothing more than presumptions, intended to effect what is just and right. Whenever, from the relative legal position of the parties, no obligation of right could exist in favor of one and against the other, there can be no implication of law to sustain a promise. In a case of adverse possession, there is a denial of right which negatives at once a promise to pay rent or hire, This is sustained by our own well considered case of Bryan vs. the administrator of Marsh. 2 Nott and M‘Cord, 156.

But another view is equally fatal to the plaintiff’s case. The deed conveys the slave to the plaintiff, upon the trusts, first, that tha grantor and his wife during their joint lives, should be permitted by the trustee to have, use, possess, and enjoy, the profits, hire, labor, and services, of the said slave, not subject to the debts or contracts of the said grantor and his wife : in case the wife should survive, then to her for life ; but if the husband, the grantor, should survive, then to him for life ; and after the death of both, to the use of the children of the marriage. This deed, it must be observed, is post nuptial, and conveys the property to the uso of the grantor, which would make it void against the creditors of the husband, either existing or subsequent. This would be enough for the defendant; for his intestate’s possession arose from the grantor’s indebtedness to him. But I am not disposed to rest the case upon it. I hold that the trust was executed in the husband at least for his life. For according to the deed, he was entitled to the possession of the slave : living this, he had both the legal and equitable estate for his life. *284For the trustee had nothing to do with it during this time : he had delivered the slave to one who was under no legal disability : this was equivalent to a conveyance to him tor the time he was to possess it. For the condition annexed to the trust, not to be subject to the debts or contracts of the husband and wife, is void. The husband having thus both the legal and equitable estate, could transfer it, which he did to Churr. In Swan vs. Ligan and Rudd, 1 M'Cord, 227, when a slave had been conveyed to a trustee, in trust for the use of husband and wife, for life, to the use of the wife sur-riving, and after her death to the use of the children of the marriage, it was was held, that on delivery of the property to the wife, after she was discovert, was an execution of the trust i and that the remainderman might maintain a bill for the property, without making the trustee a party. In Porcher vs. Gist, decided by the Court of Appeals, at this place, in the spring of 1832, and Clancy vs. Allen, 1 Hill’s Chancery Reports, when property was settled to the use of husband and wife for life : to the use of the survivor for life, and after the death of the survivor, to the use of the children of the marriage, the wife survived, and had the property in possession; it was held, in the first case, that it was hable in execution for her debts ; and in the second, for the debts of the second husband, to the extent of the life estate of the wife. The same principle of Jaw is maintained by Jones vs. Cole, 2d Bailey, 230, in which it was hold that remaindermen, after the death of a tenant for life, un-tier a deed of trust to the use of their mother for life, and then to them in remainder, could in their own right maintain trover. Ac-©ording to these authorities, the use in favor of the husband was executed, and during his life, he, or his assignee, has the right to the possession against the plaintiff, the trustee. It was conceded that Swift, the grantor and husband, was still alive ; U therefore follows, that the plaintiff can have now no right to demand hire from Churr, to whom his ces tuique trust (Swift) conveyed the slave.

The motion for a nonsuit is granted.

JOHN B. O’NEALL.

The opinion of

I concur in the decision that a now trial ought to be granted. But upon the nonsuit, I consider the presiding judge correct in refusing the motion. The question is, can the value of the use (wages) of the negroes be recovered against the representative of Churr, in an action of assumpsit, or was the use of the negroes such a mere trespass as died with him 1 The proper and legal meaning of tort or trespass, is tho violation of another’s right, without pecuniary benefit to the offender. If, after the violence or trespass done, and in consequence of it, pecuniary benefit springs to the offender, but which in law, belongs to tho party offended, he may recovar it, in an action of assumpsit. In common law language, he may waive the trespass, (i. e.) damages for the outrage, and go for the money actually received. No one can doubt, that if A violently took the money of B, and then A died, B may recover the money actually taken and used by A, in his lifetime ; and the action would be competent against the representative of his estate ; because the money had gone into the estate. The reason why the action of trespass dees not survive the trespasser, is. because the outrage committed is persona], and not beneficial to the offender. It hurts another, but brings no money to the trespasser; as where a man strikes you, or kills your negro. But if he takes your negro and sells, or employs him, lie then gets your money, which goes into his estate ; and assumpsit of course, lies to recover it, either of him or his representative. The admission, that if the trespasser, should have hired out the negro and received money for his services, then you may recover such money, yields the whole principle. Money received, and money’s worth, afford the same cause of action. The amount of money received of the hirer, seryes no other purpose, but as a measure of the benefit, which sprang (o the trespasser by employing the negro ; and whether the benefit accrued from the services of the negro to the trespasser personally, or came to him indirectly in the sum of his wages, still, money is the measure of the loss to the owner and of the benefit to the trespasser. He has received in the one case a specific benefit, measured by the wages received in money ; in the other, he has received an equal benefit, in money’s worth ; but which, the jury must assess : because the case affords not the same specific measure as the money would.

The essential principle of the action upon the implied contract with the administrator, is no more than this, that the lawful property of the plaintiff had gone to the estate of the intestate. And if the property has disappeared, you can recover, only in pecuniary measure, the amount of the use. If the intestate sold the property, the price received constitutes that measure. If he hired it out, the wages received gives the measure. If he uses it, the value of the *286use afford the measure. But the right of action is the same, in either case ; and is equally supported in law.

The essential points to be verified, are the loss of the plaintiff’s right and the actual gain to the estate of the intestate. The mistake arises, from an erroneous construction of the case ot Ryan vs. administrator of Marsh, 2 Nott and M‘Cord, 156. The action was for the use and occupation of land by the intestate Marsh. The history of the case, points to the true construction. The judge first ruled that the action was competent. It depended upon the question, whether the intestate had received pecuniary benefit from the use ? And I here repeat, that money, and money’s worth, give equally the right of action. The sole difference, is, that money gives, both intrinsically, and m terms, its own standard measure of value; but neither property nor services afford the measure in terms; therefore, you must of necessity, estimate and express the amount in money.

But to proceed in Marsh’s case. Afterwards, the parties agreed, that both the possession and the taking had been a continued tort. The judge, then nonsuited the party, and the nonsuit was unanimously supported.

But we,are told in the very case, that the action might be supported, if the timber had been converted into cash, or if rents had been received by Marsh ; or by his bare occupation of the land; ns long as it is left to implication to determine, whether the occupation was permissive or not. But this could not follow, when the entire possession, was admitted to be a continued tort.

So in the case before us, if it appeared expressly, or by consent, that the taking of the negroes, and the possession afterwards, was one continued tortious course of action, as if Churr took the negro and kept him locked up, in order to punish him for some offence, or to spite the owner, the action would be personal, and die with the trespasser. But the moment the trespasser makes actual value out of the negro, either m cash, or that which is worth cash in market, as labor and services, such.value goes into the mass of his estate; and the representative of the estate must refund uuch value to the proper owner, as much as if it had been received in dollars. Any distinction between money and the value, is merely in language, not in reason, or nature. Money is the palpable exhibition of the value of property, or services, — when we express the value in money — as when we say, a horse is worth $100, we mean to express the value of the horse, by the standard symbol,— money. The value is presented to the understanding by the amount in money. In old time, wheat was the standard of value ; and a Slave for instance, was worth 500 bushels of wheat.

Now according to the distinction taken, if the wheat were taken by the trespasser, his representative would be liable. But if the slave himself be taken, you cannot recover for his use, or value, unless the use or value has been exchanged for wheat. That is, you may recover the specific representative of the value, if the property, or use of it, has been cashed. But if not actually cashed, you cannot recover the value of either.

Ño such distinction can he supported now-a-days ; gold and sil* ver coin represent the value of services rendered, and of property, instead of wheat. There is no magic, or complexity in the change from wheat to metal; each has been in turn, the standard measure, or representative of the value of property; and both are the subjects of property.

Can it he of any consequence, whether the estate of the tres, passer has been increased, by the use of the property, or the value of the use received in coin — by the property itself, or the sales of the property — by the wheat, or the slave — by the money, or the mo. ney’s worth 1

The only rational inquiry, is, whether, and to what extent, has the property of another gone into the intestate’s estate ? If it has, the representative is liable, and must refund it in kind, or in money.

If the trespasser commits a mere outrage, which cannot enrich him, and although it make his neighbor poor, yet his executor or administrator is not responsible. The rule which applies, “ Actio personalis, moritur, cum persona.”

And the proper test in the application of the maxim, is, has money, or (which is one, and the same,) money’s worth, gone into his estate? If it his, the representative is liable to the extent of the money, or money’s worth, actually received by his intestate, in an action upon the implied contract; which either the receipt of money, or the acceptance of services always implies.

J. S. RICHARDSON.

I concur in this opinion.

A. P. BUTLER.