In an action of trespass for forcibly invading a plantation,
carrying off some slaves, and frightening others away, it was
proper for the plaintiff to give in evidence the consequential
damages which resulted to his wood and corn.
It was proper also to allow the defendant to give in evidence a
judgment against the owner of the plantation, as principal, and
himself as surety, and his own payment of that judgment. It was
allowable, both as an explanation of his motives and to show how
much he had paid, both reasons concurring to mitigate the
damages.
Evidence was also allowable to show that arrangements had been
entered into between the principal and surety whereby time would be
given for the payment of the debt. This was allowable as a
palliation of the conduct of the principal in removing his slaves
without the state.
Evidence was also admissible to show that the surety had not
been compelled to pay the debt by showing that the creditor had
been enjoined from collecting it. This was admissible in order to
rebut the evidence previously offered on the other side.
It was proper for the court to charge the jury that in assessing
damages, they had a right to take into consideration all the
circumstances.
This was an action of trespass brought by Crofford, who
described himself as a citizen of Tennessee but who had a
plantation in Arkansas. The suit was brought against the
McAfees
Page 54 U. S. 448
and Alford for acts which are described by the testimony stated
in the first exception. In the course of the trial there was but
one bill of exceptions taken, which included the whole case. It
will be better understood by dividing the rulings of the court
below, which is rendered necessary by the great length of the
exception.
There were three exceptions to the admission of evidence and one
to the charge of the court to the jury. The declaration contained
four counts to the following effect:
1st. For entering upon the defendant's plantation in the State
of Arkansas and forcibly carrying off and converting to the use of
plaintiffs in error a number of slaves of the value of $15,000.
2d. For entering and by threats and violence chasing and
frightening away from said plantation other slaves of the value of
$40,000, whereby said slaves were greatly damaged and lessened in
value.
3d. For the injury done to the defendant's business of planting
and cutting and selling cordwood by thus forcibly carrying off some
of the slaves and frightening away others.
4th. For the value of the services of the slaves during the time
they were gone from the defendant's plantation and wood yard.
The plea was the general issue with an agreement, entered of
record, that any matter constituting a good plea in bar might be
given in evidence upon reasonable notice.
First Exception. Upon the trial, Crofford, the
plaintiff, offered to read the depositions of three of his
neighbors, Parker, Driver, and Kafkemeyer, who testified in
substance to the following facts:
About the last of October or 1 November, 1846, the McAfees and
Alford, assisted by several other persons, all armed, crossed the
Mississippi River in skiffs and forcibly carried off twenty-one
slaves from Crofford's plantation. Crofford was absent. His
overseer remonstrated, but the assailants replied that they
intended to take all the negroes, and would kill anyone who
interfered. There were forty-two negroes, men, women, and children,
on the plantation, but as the assailants were engaged for several
days in catching and transporting them to the opposite bank of the
river, four women and seventeen men were so frightened that they
ran off into the swamps, and remained out five or six weeks.
Crofford had some 1,800 or 2,000 cords of wood cut at the time of
these occurrences, which, on account of the absence of the slaves,
was either floated off or greatly injured by a subsequent rise in
the river. In addition to this, the neighbor's hogs, cattle,
horses, and mules broke into the plantation and nearly destroyed
120 acres of growing corn, all of which was the consequence of the
absence of the hands.
Page 54 U. S. 449
These witnesses testify that the slaves carried over the river,
being twenty-one in number, were worth $12,580, wood worth $2.50
per cord, and corn 50 cents per bushel.
To all this testimony the plaintiffs in error objected, but the
court overruled the objection, and the depositions were read.
The counsel for the defendants below excepted.
Crofford then proved that his plantation was in Crittenden
County, Arkansas, and then closed his case.
Second Exception. The defendants below, on their part,
offered in evidence the record of a judgment rendered in one of the
courts of Mississippi in favor of the Commercial Bank of Manchester
against James T. Crofford and Morgan McAfee for the sum of
$4,143.93, together with divers writs of
fi. fa. issued
thereon, levied upon Crofford's property, delivery bond given and
forfeited, and
fieri facias issued upon this. By virtue of
this last
fi. fa., the slaves forcibly carried away from
the plantation in Arkansas were levied upon and most of them sold,
producing the sum of $6,132, which fully satisfied the said
execution.
The McAfees also proved that Morgan McAfee was only security for
Crofford in the aforesaid judgment, and that at the time of
executing the delivery bond mentioned above, Crofford promised not
to remove his negroes from Tallahatchie County until said debts
should be paid.
The McAfees then introduced a witness whose evidence, drawn out
upon cross-examination, constituted the subject of this exception.
The witness was introduced to prove various admissions made by
Crofford in reference to the amount of his corn crop and his
cordwood, which witness, upon cross-examination, stated, that in
the same conversations Crofford said that Morgan McAfee had agreed
with him to obtain from the said Bank of Manchester an extension of
one, two, and three years in which to pay the said debt, and also
to credit thereon a judgment of Crofford against Morgan McAfee in
the United States District Court at Pontotoc for about $1,500 or
$2,000. To this evidence, elicited on cross-examination, the
McAfees excepted.
Third Exception. The McAfees then proved that before
the trespass complained of, Morgan McAfee had paid the debt to the
Bank of Manchester, which had assigned the judgment to Madison
McAfee.
As rebutting testimony, Crofford offered to introduce the record
of a proceeding by
quo warranto in one of the courts in
Mississippi by which it appeared that at the time of the sale of
the negroes upon said execution, the said bank, its agents, and its
assignees, were enjoined from collecting any of its demands, though
the levy upon a part of the negroes was made before the execution
of the writ of injunction. Crofford also offered to
Page 54 U. S. 450
introduce records showing that he had existing unsatisfied
judgments to the amount of $2,847 against Morgan McAfee. The
defendants below objected to the admission of this rebutting
testimony, but the court overruled the objection and admitted it,
whereupon the McAfees excepted.
The charge of the court was as follows:
"The court instructed the jury that a trespass had been
committed by the defendants"
"if the jury believe from the testimony that the defendant had a
judgment in Mississippi against the plaintiff, the defendant would
not be authorized to collect said judgment by forcibly removing the
property of the plaintiff from the State of Arkansas to the State
of Mississippi."
" That in assessing damages, the jury had a right to take into
consideration all the circumstances,"
"to which said first charge the counsel for the defendants at
the time excepted, before the jury returned from the bar of the
court, and to which several matters and things the said defendants,
by their said counsel, excepted and tendered their said bill of
exceptions as hereinbefore stated, and before the jury retired from
the court, and prayed that the same might be signed and sealed by
the court and made part of the record herein; all which is done
accordingly."
"S. J. GHOLSON [SEAL]"
The jury found a verdict for the plaintiff and assessed the
damages at $10,613.72.
Page 54 U. S. 454
MR. JUSTICE McLEAN delivered the opinion of the Court.
A judgment was obtained in favor of the Commercial Bank of
Manchester against James T. Crofford and Morgan McAfee in the State
Court of Tallahatchie County, Mississippi, 24 November, 1840, for
the sum of $4,143.93, on which an execution was issued and levied
on sundry slaves of Crofford, who owed the debt; McAfee, the other
defendant, being his security, a delivery bond for the property was
executed, which was forfeited 22 November, 1841, by which
forfeiture the bond had the effect of a judgment. On this latter
judgment an execution was issued which was levied on twenty-one
negroes owned by Crofford, all of whom, except three, were sold by
the sheriff for $6,132.
Sometime after the first levy it appears that Crofford removed
with his slaves across the Mississippi and settled on a plantation
on that river in Arkansas, not far from his former residence in
Mississippi.
A short time before the last levy, Morgan McAfee, with an armed
force, in the absence of Crofford, crossed the river, seized, from
day to day, twenty-one of the negroes on his plantation, and
brought them into Mississippi. The other slaves of Crofford were
alarmed and absconded, and were not reclaimed before the lapse of
from four to six weeks. The overseer of Crofford
Page 54 U. S. 455
remonstrated, and some steps were taken to arrest the
proceedings of McAfee, but his force was too strong, and he
threatened to kill anyone who should interfere with him in taking
off the negroes. For this trespass an action was brought against
the plaintiffs in error. In the declaration it was alleged that by
reason of the trespass, the plaintiff lost the services of thirty
negro men and as many women &c., which, through fear,
absconded, besides the number taken by McAfee, and that he was
subjected to great expense in reclaiming them; that by taking the
slaves, chasing and frightening the others from his farm and wood
yard and from and about the business of the plaintiff, he was
greatly damaged &c. The defendants pleaded not guilty &c. A
verdict for $10,613 was rendered by the jury, on which a judgment
was entered. To reverse that judgment the writ of error was
brought.
The exceptions arise out of the rulings of the court and the
charge to the jury.
The trespass was proved as charged in the declaration. The party
were several days in searching for and arresting the negroes, and
all on the plantation not taken were frightened and fled.
The male slaves were employed in cutting cordwood, and supplying
Crofford's wood yard. He had at the time of the trespass, it was
proved, from eighteen hundred to two thousand cords of wood cut on
the low ground back from the river, which was worth two dollars per
cord, and sold at the yard for two dollars and fifty cents; the
hauling cost fifty cents per cord; that the river became swollen by
rain, and having no hands to remove the wood to the yard, much of
it was carried off by the flood, and what remained was so injured
by being under water as to make it unsalable; that, having no hands
to attend the crop, the horses, mules, and other stock of the
neighborhood broke into the cornfield and destroyed a large part of
it; that corn was worth fifty cents a bushel at that time. There
were one hundred and twenty acres in corn, which, with proper
attention and protection, would have yielded forty bushels to the
acre.
The defendant offered in evidence the judgment of the Commercial
Bank against Crofford as principal and himself as surety, and a
receipt for the payment of the judgment, amounting to the sum of
$6,233.38, in mitigation of the damages claimed on account of the
trespass, which, though objected to by the plaintiff, was
admitted.
The evidence was admissible on two grounds. First, to explain
the motive of the plaintiffs in error in committing the trespass,
and thereby in some degree to mitigate the damages
Page 54 U. S. 456
claimed. Second, to reduce or abate from the damages the amount
paid in discharge of the judgment, not as an offset, but in
mitigation of the injury done. This right resulted from the
relation between the parties. McAfee was a co-defendant with
Crofford in the judgment, but he was security only, and he had a
right to expect, from the forthcoming bond and the assurances of
Crofford, that the negroes first levied on would be delivered up in
satisfaction of the second execution. In an answer in chancery he
alleged that the bank judgment had been satisfied. A stranger could
not take the property of his neighbor, have it sold under process,
and apply the proceeds in discharging the debts of his neighbor,
and then claim the right to have such payments received as a setoff
or in mitigation of the damages done by the trespass.
The plaintiff below then introduced the transcripts of two
judgments in the district court against Morgan McAfee, one in favor
of Crofford, the other assigned to him, amounting to twenty-one
hundred dollars and upwards, which, though objected to by the
defendants, was admitted by the court. For what purpose this
evidence was introduced was not stated, and under such
circumstances, if the records of the judgments were admissible for
any purpose, the exception to the evidence cannot be sustained.
It was proved that at New Orleans, before the trespass was
committed, McAfee agreed with Crofford to return to Mississippi and
make an arrangement with the bank to give one, two, and three years
for the payment of the judgment against Crofford and himself, and
he agreed to credit on said judgment the above judgments against
himself.
We think that those judgments were properly admitted as
evidence, because they conduced to show that Crofford, in removing
with his slaves to Arkansas, was less blamable than charged by the
defendant McAfee, as he had grounds to believe that a part of the
bank judgment would be paid by McAfee and that an indulgence of
some years would be obtained for the payment of the balance.
The judgments being admissible on this ground, it is unnecessary
to inquire whether they were not evidence to reduce the bank
judgment paid by McAfee under his agreement. This point might have
been made if the court had been requested to instruct the jury that
this effect could not be given to the evidence by the jury. The
judgment being admissible for the purpose first stated, it is
unnecessary to inquire, if it were practicable to do so, which it
is not, how the evidence was applied by the jury.
The record of certain proceedings against the Commercial
Page 54 U. S. 457
Bank of Manchester in the nature of a
quo warranto was
offered by the plaintiff in evidence to show that the bank was
enjoined from proceeding to collect debts. This proceeding was had
in the Circuit Court of Yazoo county. An injunction was issued as
stated. And at November term, 1846, the court decided on the
demurrers filed in favor of the bank, from which decision an appeal
was taken to the high court of errors and appeals of the state. The
court admitted the evidence, overruling the objections made to
it.
These proceedings, it is presumed, were pending in the court of
appeals at the time the trespass was committed, as the contrary
does not appear; but it is not perceived that the evidence could
have had any other effect than to rebut the mitigating
circumstances relied on by the defendants. In this view, the
evidence was admissible.
The loss of the services of the slaves by the trespass,
necessarily resulting from the abduction of a part of them, and
driving off the others, is clearly within the rule of damages in
trespass, and we think the loss of the cordwood, as proved, and the
injury to the corn crop were also within it.
It is argued that unless the enclosure for the protection of the
crop was such as the law required, no damages could be allowed for
the trespasses charged, and that the owners of the trespassing
animals were liable, and consequently the plaintiffs in error were
not liable.
Whether there was at the time a law in Arkansas regulating
enclosures we have not examined, as it is a matter which can have
no influence in the case. The question was fairly submitted to the
jury whether, under the facts and circumstances proved, the injury
to the corn crop resulted from the loss of the hands. This was a
matter of fact for the jury, whether the fence of the plaintiff was
good or bad; if, by reason of the loss of the slaves, the breaches
in the enclosure could not be repaired or the plaintiff was unable
to guard his field as was his custom was an inquiry for the jury,
and in making up its verdict, it must have considered the facts and
circumstances connected with this branch of the case.
The same remarks apply to the cordwood. Had the plaintiff not
been deprived of his hands, he might have removed, sold, or in some
other manner secured the wood from being floated off by the flood.
In regard to the corn and the wood, if the damage was a consequence
which necessarily followed the loss of the hands, the plaintiffs in
error were liable. The instructions of the court were general and
correct. 5 Phil.Ev. 188, 189;
Barnum v. Vanduson, 16 Conn.
200;
Carrington v. Taylor,
Page 54 U. S. 458
11 East 571; 2 Greenleaf Co. sec. 253, 254, 268 and 270, 272,
635
a.
The trespass was of an aggravated nature; notwithstanding the
mitigating facts set up by the defendants, it was lawless and
wholly inexcusable. It was a resort to physical force in defiance
of law, and under such circumstances as to endanger life and
property. Such a procedure should be reprehended by every good
citizen. It gives a high claim to the injured party for exemplary
damages. We think there was no error in the proceedings;
consequently the judgment of the district court is
Affirmed with costs.
"
Order"
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi, and was argued by counsel. On
consideration whereof, it is now here ordered and adjudged by this
Court that the judgment of the said district court in this cause be
and the same is hereby affirmed with costs and damages at the rate
of six percentum per annum.
