Very early in the history of this court, it was held, that upon a recovery, and satisfaction thereof, in an action of trover, tbe right of plaintiff to the cbattel converted, vests in tbe defendant, as absolutely as if tbe latter bad received it of tbe former on a contract of bargain and sale. White v. Martin, 1 Por. 215; Spivy v. Morris, 18 Ala. Rep. 254. In the former case it was also held, that tbe sale was complete from tbe time of tbe conversion, if tbe plaintiff elected to bring trover, and not detinue, for tbe cbattel so converted, and that by bringing tbe action of trover tbe plaintiff waived tbe tort. His action then proceeds upon the principle *699of a contract between tbe parties for tbe sale of tbe chattel, and an implied agreement on tbe part of tbe defendant to pay interest on tbe purchase money from the time it was due, that is, from tbe date of the conversion, until tbe day of recovery, or the time of the judgment. Proceeding upon tbis view of the rights and liabilities of the parties, this court, in the case of Strong v. Strong, 6 Ala. Rep. 345, held, that in tro-ver, “ the measure of damages is tbe injury actually sustained; therefore, in an action brought for the recovery of a slave, if tbe plaintiff have but a life estate in tbe slave, the measure of damages is not the value of tbe slave, but of the plaintiff’s interest in the slave, with interest on that sum.” In Tatum v. Manning, 9 Ala. Rep. 144, the question of tbe measure of damages in an action of trover, was again raised, and tbe court lays down the rule somewhat broader than it is to be found in Strong v. Strong, but without interfering at all with the principle on which it was rested in the ease of White v. Martin, viz: a sale of the chattel; and saj's, that, “the measure of damages is the value of tbe slaves at the time of conversion, or at any time between that and the time of the trial.'” Proceeding in this extension, as I suppose, (for tbe reason for their conclusion is not very clearly stated,) on tbe supposition that until the judgment, the defendant would have a right to surrender the chattel, and show such surrender in mitigation of damages; and if he failed to do so, it -would show a willingness on bis part to take the property at the highest price at which it might be valued at any time during the period when he might surrender it. In tbe opinion in tbis case, it is remarked, “that the rule with respect to slaves is so modified in South Carolina, as to allow the value of their labor to be recovered in addition to their value. But we are not aware of any reasons applicable to slaves, which may not be applied to any other chattels capable of use. W e think the harmony of decisions is better sustained by recognizing the same rule as governing all descriptions of chattels. Indeed, it is evident, that the defendant in an action may not have realized the value of the hire, from slaves which he honestly supposed belonged to himself.” It is plain from tbe language of the decision above quoted, that in tbe opinion of tbe court the hire of the slaves could, in no event, where the defendant *700retained possession of' them, form an element in measuring tbe damages.
In Lee v. Matthews, 10 Ala. Rep. 682, the court recognizes the rule as laid down in Strong v. Strong, and with regard to its extension in Tatum v. Manning, without referring to that case at all, Judge Ormond, who delivers the opinion of the court, says: 11 The value, therefore, of the property at the time of the conversion, with interest thereon to the judgment, is the measure of damages. This is the general rule, though there are certainly cases, where the jury would be justified in finding the value at a subsequent period, instead of the value at the time of tbe conversion, with interest,” and he cites, Greening v. Wilkerson, 1 C. & P. 625; Whitehouse v. Atkinson, 3 ib. 344, which fully sustain his views.
From these decisions, it may now be regarded as the settled law of this State, that in actions of trover, in which the defendant still retains the propeiiy, the rule of damages is, the value of the property at the time of the conversion, or at any time between that period and the trial of the cause, with interest on such value from the time of conversion. And when the conversion of slaves is the foundation of the suit, their hire is not to be admitted into the computation.
That this is the result of our decisions on this subject, we all agree, and there is no difference of opinion as to the propriety of permitting the cases to remain untouched.
The case under consideration, I concede, is not fully within the rule established in the cases referred to, but the spirit of that rule when applied to it, leads my mind to a very different conclusion from that attained in the opinion of a majority of the court; and it is, as I conceive, more in harmony with those decisions.
If in a recovery in trover, the measure of damages is founded, as the court says, in White v. Martin, upon the principle of a sale of the property from the plaintiff to the defendant, with the purchase money due at the time of conversion, and such plaintiff is entitled to no more than the value of the property so sold, with legal interest, it is difficult to conceive, by what process it is, that he can recover higher damages, when the whole principal of the debt is paid pending the litigation, than he could have recovered had the defend*701ant withheld the payment; yet such is the result of the opinion of the majority of my brethren. They all hold, that, if the action had proceeded without the slave being returned, interest on his value, with that value itself, would have been the measure of damages; but that since the slave is returned, and his value thus paid, a new rule of ascertaining the damages for the time he was held by the defendant, must be adopted, and the hire of the slave, and not interest on his value, is to be the measure of damages. The plaintiff is thus allowed, by his own act done pending the suit, to change his rights, and by this change to enhance his recovery. It is certainly at his option, to receive the property, or to let it alone, if it is offered to be returned pending the suit. If he takes it back, his damages are increased; if he lets it remain, they are lessened. So that it is in his power, if he can obtain the goods without committing a trespass, to entitle himself to new rights against the defendant, and this, pending the suit in'which he seeks redress for the injury done him.
The adoption of such a rule is, in my opinion, wholly at variance with the principle on which our previous decisions have been founded, and should not be allowed, while those cases are permitted to stand.
. The return of the property pending the suit, may be shown by the defendant in mitigation of damages. It may be asked, what damages ? The answer is, the value of the chattel converted, with interest thereon from the time of conversion; for this is the rule adopted by the courts in actions of trover. So, if the property (a slave, as in this case,) is valued by the jury at eight hundred dollars, and has been detained one year' before the trial, the additional damages, by way of interest, are sixty-four dollars, and to render our decisions harmonious, this is the only rule we can adopt. But in the opinion of a majority of my brethren, we should, in such a case, be. guided by the rule in South Carolina, which is named, and repudiated by the court in Tatum v. Manning; and adopt the hire of the slave as the measure of damages, in part, and for the- remainder, the expenses of the plaintiff in hunting him up, after he had brought his action, thereby electing to consider the slave sold, and with a full knowledge of the measure of his damages as fixed by law. Thus the defendant *702enters tbc litigation with one- set of liabilities, and comes out of it with another, without any new wrongful act committed by him while the suit was pending.
The return of the property pending the 'suit, if its value, when so returned, equals the value when the conversion took place, or at any period between the conversion and the return, should, in my opinion, entitle the defendant, when th« damages are assessed under the rule laid down in the cases cited from our own court, to an abatement or mitigation of the sum so found, to the extent of this value, and the judgment should only go for the interest. It is said, however, in the opinion of the majority of the court, that, under the rule which requires that a bill of exceptions should be construed most strongly against the party excepting, it may be inferred from the present bill that the plaintiff below had regained the possession of the slave before the suit was brought, and thus the case would be placed beyond both the letter and spirit'of the rule laid down in the cases cited. Let this rule of construction be applied to the record before us, with its utmost stringency, and I do not think such an inference can be legitimately drawn from it. It shows that the writ was issued on the 26th of March, 1850, and by the bill of exceptions we are informed that the slave ran away from the possession of Vaughn, to whom Ewing had sold him after the conversion, “ in the winter of 1850this expression, I apprehend, is generally, if not universally, understood to mean the winter beginning in that year. It is then clear, that the recapture by Blount must have happened pending the suit, and at least eight or nine months after its institution.
I admit, that the cases cited from New York, Massachusetts and Connecticut, sustain the decision of the majority of the court; but I do not see that they harmonize with the principle on which this court has heretofore proceeded, and highly as I regard the source whence those cases proceed, I still prefer conformity to our own decisions, to submission to theirs.