
    
      William Davis v. Dr. J. W. Whitridge.
    
    If one unlawfully attempt to dispossess another of his property, he may be repelled ■with such force as is necessary to maintain possession.
    If the possession of one’s property be in another, the owner may take possession, if he can do so without tumult or riot, or breach of the peace.
    The owner of slaves may lawfully employ them to assist him in maintaining his legal rights.
    A planter is entitled to have the possession of his property whenever he chooses to demand it of his overseer, and the overseer is bound in law to surrender it when demanded, and if he refuse, after reasonable notice, to quit, he may be put out with such force as is necessa/ry, and the planter’s slaves may be called to assist in doing so.
    Even where there was a right to use force to retain or regain one’s legal rights, the plea of nwlliler nanm imposuit cannot be sustained, if more force was employed than the exigency of the case required.
    On a question of damages merely, the verdict of a jury is, in general, final and conclusive.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    This was an action of trespass for an assault and battery. The pleas were not guilty, and molliter manus imposuit, to Remove the plaintiff, and to recapture the defendant’s keys.
    
      The case made was as follows: The plaintiff had been in the employment of the defendant in 1844, and possibly before, as an overseer, under a contract for an indefinite period; the plaintiff was to receive 6 per cent, on the cotton to be raised from 150 acres of cotton land on Wadmalaw. He had commenced the year 1845. About the first of January, the plaintiff asked the defendant what would induce him to turn him off? He said, nothing but drunkenness or neglect. Soon, however, some misunderstanding sprung up between them.
    The defendant, on the 27th January, 1845, employed a Mr. Addison, to take the place of the plaintiff; on the 28th he reached the plantation, bearing a letter to the plaintiff, informing him of Addison’s employment, and directing him to furnish accommodations for him, deliver him the keys, and to leave by the 31st. The plaintiff read the letter, said he would not give the keys to him, nor to Whitridge himself: he refused to give Addison house room. The reason he gave for this refusal was, that he had not had a settlement for the crop of the last year, and this seemed to be true in fact, for after the 3d of June, 1845, the defendant settled with Col. •Seymour, the plaintiff’s attorney, and paid him a balance. The evening of the 29th, the defendant came to his plantation : the plaintiff received the cotton picked by the negroes, locked the door, and put the key in his pocket. Defendant was present; demanded his keys; the plaintiff refused to give them up; he referred the defendant to his attorney, Col. Seymour. The corn-house was locked also ; the defendant had to borrow corn from some of his own negroes to feed his horses. Both plaintiff and defendant were proved to be peaceable, prudent men — the defendant especially so, and remarkable for his kind disposition.
    On the morning of the 30th, about sunrise, or a little after, five or six of the defendant’s slaves, by his directions, and in his presente, seized and tied the plaintiff1’s hands, with a strong, small cord. The defendant again asked for his keys; ,the plaintiff refused to give them up; the defendant ordered his negroes to search his pockets, which was done, and one key taken out. At this time the plaintiff called the defendant a d-d yankee, or a d-d yankee son of a b — h, and made an attempt to kick him. Five negroes guarded him (the plaintiff); the defendant ordered him to be taken into the yard, saying it was not worth while to talk to a man out of his senses. The plaintiff’s furniture was taken out of the house he occupied, and placed in a boat of the defendant’s; a box containing the keys was broken open by the defendant, and the keys taken out The plaintiff’s hands were so closely tied at first, as to swell; on the plaintiff complaining, they were so loosened and tied in a different way as to render him comfortable. As soon as the tide suited he and his wife were placed in the boat and rowed across Bohiket river, to the landing of Dr. Jenkins. There they, with their furniture, were disembarked. The plaintiff was there untied, after having been tied for about an hour and a half. The defendant offered to the plaintiff money, or an order to buy provisions, which was declined. The wife of the plaintiff was sick for a few days after. There was a bruise on the plaintiff’s hand, and the mark of the cord, where tied, for some days — perhaps a week.
    This case was tried on Monday of the third week (the country week) of the term. On calling the panel, twenty-four did not answer; out of those answering, one jury was drawn, impanneied, and sworn; and this is what is meant by the last ground of appeal. No objection was made at the trial; both parties examined the jury, and one, if not both, challenged a juror.
    The jury were instructed, by the Presiding Judge, that as to the fact of the assault and battery, it was fully proved. The only questions were, whether the plea of molliter manus invposuit could be sustained, and if not, then what damages the plaintiff ought to recover ?
    The jury were told that, beyond all doubt, the owner of every plantation had the right, with or without cause, to dismiss and send off his overseer. If the owner is wrong in so doing, the overseer must have redress by action. If, however, the overseer does not go, or undertakes to retain the keys, the owner may peaceably remove him, without force,. and in the same way repossess himself of his keys. That the master had the right to use his slaves in any measure of defence, or in any other act which was lawful for him to do, and which required more physical force to accomplish than he could bring to it himself. That the plea of the defendant could not be sustained; for here his whole course had been characterized by force and circumstances which seemed, in law, could not be excused.
    That the plea of molliter manus imposuit applied where one intrudes upon another, or having entered for a lawful purpose, insists on remaining after that purpose is ended, then the other party; after warning him to leave, may lay his hands gently upon him to remove him, and if he resists,’ may use such force as will overcome his resistance. But ivhere one is in possession with an interest, as a tenant, there is no such right. The jury were told, too, that where one is deprived of his goods by force or fraud, the right of recaption peaceably, and without riot, was unquestionable; but where one places his goods voluntarily in the hands of another, he cannot recapture-them against the will of the one in possession. That in this case, tying a man in the very outset, seemed any thing else than a molliter manus imposuit; and that taking one key out of his pocket when he was tied, surrounded by five or six negroes and the defendant, and breaking open a box locked, to obtain the others, was any thing else than a legal repossession. Still, notwithstanding his opinion was decided against the defendant’s, plea, as a legal defence, yét he told the jury the conduct of the plaintiff was a great, a very great excuse. They were told that he had not the right to remain a day longer than the defendant pleased; he had no right to retain the keys. That the facts that the defendant owed him on the former year’s contract, and that another year’s service had been begun, were no legal reason why he should remain, or keep the keys. This refusal to remove and to give up the keys, accompanied by contumelious expressions, was a gross insult, and a great excuse for what was done. Still, he said to the jury the defendant had no right to tie the plaintiff. It was, beyond all doubt, a gross outrage on a free white man, never to be legally excused, unless necessary in a legal point of view. He . said to the jury, if the trespass proved had. been without excuse, any damages within the amount laid in the declaration would not be a dollar too much; but if it be that the trespass proved was caused and induced by the obstinacy and improper conduct of the plaintiff, then damages beyond the actual injury sustained should not be found.
    The jury found for the plaintiff $2,500 damages. The defendant appealed, because his Honor charged the jury,
    1. That the second plea did not amount to an excuse or justification.
    2. That the defendant had no right to lay his hands on the plaintiff to remove him from his plantation, but should have sued him for remaining against his will.
    3. That the defendant had no right to lay his hands on the plaintiff to recover his keys, but should have sued him, to recover them by an action; and
    4. That no man could have a right to tie a freeman, unless by the sentence or authority of the law.
    In all which particulars, it is contended that his Honor should have laid down the law otherwise, and to the contrary;’ and particularly, that he should have charged that the possession of the keys by the plaintiff was the defendant’s possession, and that he had a right, in order to prevent the plaintiff from depriving him of his possession, to lay his hands upon him, and to apply such a degree of force, without violent injury to the person of the plaintiff, as might be necessary to retain his property.
    And the defendant will also submit, as a ground for a new trial, that the damages are vindictive and excessive, and out of all proportion to the injury complained of in the circumstances of the case.
    And lastly, that the jury was improperly organized, and the verdict against law and evidence.
    YeadoN, for the motion.
    The overseer is the mere servant of the planter. He is no tenant. He has no possession of the plantation independent of that of the planter. Dr. Whitridge had a right to put an end to the relations between himself and his overseer. The conduct of the overseer rendered their further connection impossible. — Sanders v. Anderson, 2 Hill, 486, and Bird v. Boyd, 4 McC. 246. The conduct of the overseer was insolent and even threatening. The planter’s possession was perfect. The overseer had become a trespasser. A trespasser may be removed with just such force as is necessary; and none other was used in this case. There surely can be no claim for special damage in this case; nor for excessive damage. (It is not a case for vindictive damages.) The only feature in the case on which the verdict can be accounted for is, that the force was applied by the agency of slaves, aided by the notice taken of that fact in the charge of the Circuit Judge. They are but the instruments in the master’s hands.
    B. F. Hunt, contra.
    
    The two only grounds on which a new trial can be claimed, are either that no trespass was proved, or that the illegal acts of the plaintiff, if not a justification, were a great mitigation of the trespass. I contend that all the wrong and oppression which preceded the assault was on the side of the defendant. First, the contract is very tight, and drawn up by J. B. Whitridge, M. D. and William Davis, overseer. He gauged his and his family’s stomachs very closely. A peck of corn for each white person — just a negro’s allowance — thus he deluded him by an engagement for an “indefinite time,” — thus luring him by holding out a permanent situation, yet he discharged him without any adequate cause, and really from some insignificant difficulty among the females of the two families. The contract necessarily referred to a yearly business, and it was unjust to the overseer, who in December looks out for next year’s business. This is the common understanding. In violation of this general understanding, on 18th January, and after, he turns him adrift, without any business, and what is worse, without his pay. When this was done, Davis took advice of a lawyer, and when Dr. W. came on the plantation and claimed the keys of the cotton house, Davis refused, referring him to his attorney, as he was unpaid. This was on 29th January, and next morning, at early dawn, Davis was seized at his door, tied like a runaway, and kept several hours ■ — not “ an hour and a half,” as stated in the report, but three or four hours, as testified by Anderson, who fixed the time “three or four hours” waiting for a tide; and this important element in the wrong done, must be corrected. To ■ be tied three or four hours must have been painful as well as disgraceful. He was removed to the house-yard, and five ne-groes placed as sentinels over him. His house was entered, his goods turned out, his daughter fled for succor to a neighbor. When the tide suited, his guards took him to the boat, where his furniture was placed — his wife, too much agitated and alarmed to help herself, was assisted into the boat, her husband still pinioned on the water, a public highway, unable to assist her. On arriving at the plantation of a neighbor, he, his family and goods, were turned ashore, and there the negroes untied him — and then, to add insult to injury, Whitridge offered him money to pay his way to shelter. But it was Davis’s own money; Whitridge was his debtor. The tying at all was outrageous, but the use of ne-groes was disgraceful. I do not deny that when attacked an owner may use the services of his negroes — but to usé them to initiate an attack on a white man, is adding insult to injury. It is highly impolitic to accustom negroes to tie white men. If the Court intends to encourage men to seek redress for outraged feelings at the tribunals of justice, they must not dole out verdicts that only add to the injury, by rendering the plaintiff ridiculous. Sound verdicts, where a man’s spirit is wounded, is the only way to prevent a resort to one’s own right arm. The people of this country bear too high a spirit to submit to insult without satisfaction, and unless afforded redress by a resort to law, bloodshed will be the result. The whole law is found in 1st Hawk. P. C. 259, and Bacon Abr., title, Assault and Battery. The plea of “molli-ter manus imposuit” only applies to one who resists a wrong» doer. If Davis had violently resisted an attempt to put him off, and Dr. Whitridge only used so much force as was necessary to overcome such resistance, then the plea applies. But the principal fact is, that without even ordering him off, ne-groes were directed to lay in wait for Davis, and as he rose he was seized, tied, and kept a prisoner for hours. This was a clear trespass. This leads to the enquiry — was the measure of damages excessive 1 A jury of the vicinage was the proper judge. There is no general rule which judges can lay down with all proper modifications to suit every case. The judgment of a jury acquainted with the parties affords the only adequate tribunal. The whole charge and ruling of the Judge was in favor of the defendant. “Actual damages ” applies only to injuries to property — but the value of reputation, the pride of character of a freeman, the value of domestic honor — how can their price be reduced to dollars by any known rule ? The sympathy of an intelligent jury alone affords a rule of estimation. The relative position of the parties, the degree of oppression on one side, the helplessness of the victim — all such-like moral considerations, are varied in every case; and hence the reliance on verdicts in such cases. The verdict was fit reproof, and ought to stand.
    Bailey, same side.
    One cannot justify under the plea of molliter manus imposuit, unless he has first ordered the intruder to leave, and he has refused. It has not been shown that the overseer in this case was either ordered off, or refused to go. Again, only necessary force must be used. — 2 Phil. Ev. 205; State v. Lazarus, 1 Mills’ Con. Rep. 34; 1 Rice’s Dig. 48 and 49, title, Assault and Battery, and the cases there cited. Recaption must not be attended by a breach of the peace. The objection to the jury should have been made on the trial below, and not here. — 2 Rice’s Dig. title, Jury. The whole charge of the Judge was to the disadvantage of the overseer. Neither party had a right to put an end to the contract; the usage and custom of the place is to be regarded. The construction should be on the whole contract. Such a contract is from year to year.— Vide Chit, on Con. 73, 83, 90, and 320. The overseer was not to be paid by the day or month, but by a part of the crop, which it takes a year to make. The custom is to engage by the year, and any exception should be definitely stated on the face of the agreement. The rates are per annum for all things specified in the contract between these parties, inclusive of the wages; and the year had been commenced. The overseer had a right to the fulfilment of this contract, and hence could not have been a trespasser on the plantation of Dr. Whitridge. Besides, the time had not elapsed at which he had been required to leave. Whether the overseer had a right to the keys or not, Dr. W. had no right to break the peace in regaining them. What ground is there for a new trial ? The injury to the man, beyond his feelings, is great —loss of one year’s work, injury to his reputation as an overseer, &c. &c.
    Petighu, for the motion.
    A man is entitled to use force for the recaption of that which is detained from him, as well as for that which is snatched from him — otherwise freedom is a very questionable blessing, allowing every man to take and keep what he can, regardless of the rights of others. The right was retained by Dr. W. to discharge his overseer, and he had intimated his intention to do so very early in January. There was no evidence that Dr. W. kept back the crop to injure the overseer. He could not pay him until it was sold. Until then, the overseer had no right to complain. The overseer should have remained until the crop was prepared for market; and this had not yet been done on •the first of February. The overseer was no lessee of the plantation- The planter can, at any time, discharge his overseer. If he breaks the agreement in doing so, the law affords a remedy. Now had not Dr. W. a right to use such force as was necessary to regain his keys, which his overseer also refused to give up ? Are there no wrongs for which redress may be obtained by the mere act of the party ? See 3d Blackstone. In taking them peaceably, he had a right to use such force as was necessary: it was used here, even for the purpose of preventing a breach of the peace, or riot. In Blackstone the recaption of goods is put in the same category with that of wife or child; and can it be doubted what the parent’s right would be? Not making a riot does not mean no force, or that the person of the wrong doer shall not be touched. You must do it without the risk of any greater injury, but that does not mean without force. Force may peaceably be used. Are you to recapture with the consent of the delinquent? — or stealthily, or behind his back? Again, the question here is, whether a party can take his goods from his own •servant? The possession of the servant, was the Doctor’s possession. — 2 East’s Pleas of the Crown, 564 and 681, title, Larceny, sec, 14. The servant had the mere charge of the goods, and could be guilty of larceny or trespass, as he might convert'or injure them feloniously. The overseer, Davis, had no property special, no interest. It was as the delivery of a key to a butler or a coachman. By refusing to deliver them; he attempted to deprive Dr. W. of his lawful possession, and his retaking them was resisting wrong, violence. — 9th Went-worth, 362; Oliver v. Oliver, 1 Haggard, 373. Any law denying such a right, would run beyond every principle of Christian forbearance and natural justice. Where would be the subordination of servants? Where the master’s liberty in his own house? Is it possible that a planter must bring trespass and trover to recover his possession and his property? Not tie a white man! Suppose him insane ! — And who is to know whether he is so or not, until a jury have passed on the case? Was not this man acting as a crazy man ? In the case cited from 8th Term Reports the attempt was to justify a beating. If this man could not or would not yield the keys but by the process adopted, the jury should have been told that Whitridge had a right to resort to it. The damage was excessive. Davis is rendered rich by his own wrong! and no man shall take advantage of, his own wrong. In McConnell v. Hampton, 12 John. Rep. 234, new trials are recognized as proper in some cases of excessive damage.
   Evans, J.

delivered the opinion of the Court.

The common law does not attempt to enforce that principle of Christian forbearance which enjoins that we should overcome evil by good; yet, as a general rule, it allows no exertion of. force which endangers the peace of society in the enforcement of our most undisputed rights of person and property. If one unlawfully attempt to dispossess another of his property, he may be repelled with such force as is necessary to maintain possession. This is the law of self de-fence whi'ch is recognized only in those cases where, if one were compelled to resort to the slow process of the law, the injury would be irreparable. Where the possession is in another, the owner may take possession, if he can do so without tumult or riot, or breach of the peace. If this cannot be done, he must resort to the law. Any other doctrine would resolve every disputed right into a question of power: the strong would, always prevail over the weak. In this case, the sufficiency of the defendant’s plea depends, upon this: Did he have possession, and did he do no more than was necessary to maintain that possession ? I incline to the opinion that an overseer is but the servant (I do not mean the slave) of the employer, and that his possession is the possession of the owner. This is certainly true, for many purposes — if the defendant had seized the keys, and wrested them from the plaintiff’s hand, using only such degree of force as was necessary, this I should suppose would not be trespass, and yet it would be technically an assault and battery, if they had been in the possession of a stranger. .The argument is, that the refusal of the servant to deliver the keys, is a disturbance of the master’s possession, and that he may lawfully use force to regain it. There is-something at least of plausibility in this argument. But perhaps it is too refined to be laid down as a rule of practical operation. And in the view we take of this case, it is not intended to express any opinion upon it. We are all of opinion the defendant’s plea was not sustained by the evidence, and that the Circuit Court was right in so charging the jury. Admitting the right to use force to regain the possession of his keys, the law allows of only so much as is necessary to accomplish this object. That which was employed by the defendant greatly exceeded this measure. Without demanding the keys the next morning^ after the refusal, he in a violent manner had the plaintiff seized and tied like a slave, and kept him tied for hours after the keys were obtained. But it is said this was necessary in order to_ regain possession of his plantation. In any view of the case, I am satisfied that, although the planter may be liable for a breach of the contract, yet he is entitled to have the possession of his property whenever he chooses to demand it — and that his overseer is bound in law to surrender it when demanded, and if he refuses, after reasonable notice, to quit, he may be put out, and I see no reason why the planter’s negroes may not be called to assist. But in such case the overseer is entitled to reasonable notice, that he may seek another habitation, and no more force must be used than is necessary. If the defendant had waited until the time when he had given the plaintiff notice to surrender the possession to his successor, and had then required him to depart, and upon his refusal had put him out of the possession as gently as the exigency of the case required, his case would be very different from what it is. It appears, from the evidence, that on the refusal of the plaintiff to leave the place the second day before the one on which he had been notified to quit, the defendant concerted his scheme, and the next morning, when the plaintiff came out of the house, he was forcibly seized, tied, and kept tied for several hours, before the tide served to carry him to the opposite bank of the river. This conduct was not justifiable. It was not the use of such force as was necesrary to remove -one who invades the owner’s possession of his property, and will not depart when requested to do so. We are therefore all of opinion that the plea of the defendant was not sustained. The plaintiff’s conduct was not by any means free from blame; and we should have been better satisfied if the verdict had been for a less sum. There is no case like this in which a new trial has been granted on the sole ground of excessive damages. I do not mean to say that no such can occur, but the fact that it never has been done, proves that the case must be a very extraordinary one in which it is .to be done for the first time. We do not think this such a case; there was much in the defendant’s conduct to incur the disapprobation of the jury. The owner of slaves may lawfully employ them to assist him in maintaining his legal rights; but to use them as the sole instruments of executing his will, is offensive to all ideas of propriety in a slave-holding community. The violation of the person of a freeman by a slave is prohibited by the severest penalty of law, which in this respect is but the exponent of public opinion. It can only be excused when done by the command or in defence of the master, in a clear case of necessity. This the defendant has not made out. To employ slaves in binding with cords the person of a freeman, who but the day before were bound to obey him, was calculated to degrade him — to produce those feelings of abasement and mortified pride which almost necessarily lead 'to those acts of violence and revenge which the láw so much endeavors to repress. The defendant is represented as a quiet and peaceable .man, but he does not seem to have'undetstood that relation which exists in popular sentiment between the white man and the negro., the freeman and the slave; .which no man can violate'with impunity. We do not, therefore think his-case- one which -requires a departure''from that rule of the Court so often repeated, that in a question of damages merely, the verdict of the jury is, in general, final and conclusive. The motion must therefore be dismissed, and it is so ordered.

Rici-iabdsoN, J. Wardlaw, J. O’Neall, J. Frost, J. and Withers, J.. concurred.

Motion refused.  