Davis v. Hooper , 4 Stew. & P. 231 ( 1833 )

Saffold, J.

The action was trespass, for taking and carrying away ten bales of cotton, the property of the plaintiff.

Two questions are presented for revision by the assignments of error, now relied on.

1. Was it competent for the Circuit Court to grant an order, nunc pro tunc, for a change of venue, at the next succeeding term after the showing, and first order were made; the change of venue' not having been entered on the minutes, at the previous term. ?

For the plaintiff in error, who was defendant below, it is insisted, that his motion to dismiss the cause, made in Pickens at the first term after it was entered there, should have prevailed, because it had been illegally made. That like an attachment, the cause for the change may have ceased to exist prior to the second term, when the order was consummated; al~ ■so, that the circuit judge was authorised by law, to order the change in vacation, as well as in term time; and for the plaintiff’s delay in obtaining it, and filing the proceedings in the Court of Pickens, his' suit should have been dismissed.

The motion and supposed order for the change having been made at the appearance term, the order nunc pro tunc, was granted at the first trial term.-— Though the judge in the recess, had authority to act, ■the election is clearly given to the party, to .make his application to the Court in session. As he did this in due time, and on a showing then deemed sufficient, and not now questioned, and as the change was allowed, he should not suffer from the neglect of the clerk to enter the order on the minutes. The' probability, that the cause for the change may have ceased within the six months, is only the same that it would have been, had the order been perfected at the first term. If the order had been at first completed, and then the cause had ceased, the idea of remanding would never have suggested itself. After the second term, when the papers were subject to removal, no default or uñnecessary delay in the transfer of the proceedings, is imputed to the party obtaining the change. Hence we think, there was no error in overruling the motion to dismiss.

The second question is, whether under the general issue in trespass — there being no other — the defendant should have been permitted to introduce evidence of his having taken the property by virtue of an execution against the father of the then plaintiff, who was in fact the true owner of the property, ■though it was in the possession © the t 'tintiff, and field as his own?

Without entering' into a re-investigation of the doctrine, it is sufficient to say, the former decision of this Court in the case of Harrison vs. Davis,^a is decisive of this question. We think the attempt of the counsel to distinguish this case from that, was unsuccessful. It was there held, that in trespass for taking goods from the plaintiff’s possession, the defendant can not, under the general issue, introduce evidence, that the sale, under which the plaintiff holds, is fraudulent. “That one who commits a trespass on property-in the possession of another, who claims tobe the absolute or qualified owner, can neither jus-* tify or palliate the trespass, by proving, that the os^ tensible owner, claims and holds the property under a fraudulent sale from a third person, between whom and the defendant there is no privity of interest or connection of title.” It is equally clear, that a justification in trespass, that the defendant acted by vir-¡ tue of a legal process, asan officer, must be specially pleaded, and can not be given in evidence under the general issue.

We are unanimous in affirming the judgment.

a 2 Stewart 350.