
    
      David Hamilton vs. Edward Feemster.
    
    Case is a proper remedy for maliciously arresting, and causing to be committed to jail, the plaintiff’s slave, as a runaway, when the defendant knew that he was not a runaway.
    Plaintiff offered written evidence, which was necessaiy and competent to sustain a material allegation in his declaration, and, at the instance of defendant, it was ruled out as incompetent; after verdict for plaintiff, defendant moved for a new trial, on the ground that the allegation was not proved, but the Court refused the motion, holding that defendant could not avail himself of the objection, after procuring the exclusion of the evidence.
    In the course of plaintiff’s testimony, defendant offered, and read irffevidence, (the hand-writing being admitted,) a letter from plaintiff to defendant; held that defendant had thus offered evidence, and was, therefore, deprived of the reply in argument.
    In an action on the case alleging special damages, the jury may give vindictive damages.
    
      Before Withers, J., at York, Extra Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    “ The action was in case. The declaration, as I could gather it from the bar, substantially complained that the defendant had arrested, and caused one Hood, a magistrate, to commit to jail, as a runaway, Frank, the slave of plaintiff, when Feemster knew that he was not a runaway, whereby the plaintiff had suffered special damage, or the loss of the labor of the slave and the fees which he had been required to pay.
    
      “ I refused the motion for non-suit, based upon the ground that trespass was the proper and exclusive legal form of remedy.
    
      “ In the course of the plaintiff’s testimony, the defendant offered and read in evidence (the hand-writing being admitted,) a paper, to-wit: the answer of Hamilton to a note of Feemster, in relation to the capture of the negro. I held that the defendant had thus offered evidence, and was, therefore, deprived of the reply.
    “ I held that the jury, if the evidence satisfied them that Feemster had taken up, and caused to be committed to jail, as a runaway, the plaintiff’s negro, knowing: he was not a runaway, and had done this act malevolently, with a view to harrass, vex and insult the plaintiff, might give an amount of damages beyond that specially set forth in the declaration.
    “ A paper, executed by Hood, a magistrate, was offered in evidence by the plaintiff. So much of it as purported to be a commitment of Frank, as a runaway, was excluded, at the instance of defendant, on the ground that the magistrate had no authority to make such a commitment, but only to certify the distance from jail at which the defendant had captured the runaway. So much only was read in evidence. It may be that I ought to have admitted the whole, but the ruling was in conformity to the defendant’s views, and, if wrong, the plaintiff’s case ought not to suffer for such error. Whether such exclusion left the plaintiff’s declaration unsupported, and, if so, whether defendant may avail himself of it, is the point of the 4th ground of appeal.
    “ The general features of the case made, were as follows: The parties lived in two miles of each other. Plaintiff had a field within 1-4 of a mile of defendant’s ; in that field, a negro, supposed to be Frank, was ploughing on the 27th of July, 1849. At sundown he sent the horse he was using home by another negro. He was captured in the defendant’s watermelon patch ; captured by him and confined. A note was despatched by defendant and his son to plaintiff, saying: “ We have caught your boy Frank where he had no business, and have him in custody. We wish you to come and attend to the matter immediately, or let the law take its course. We wish you to examine whether all the rest of your boys are at home.” Answer by plaintiff: “ Sir, you can use the law, or do as you please. I am not very well, and can’t come, to night.” Soon after this answer was received, Feemster and a neighbor, whom he had sent for, went to Hood, a magistrate, having the captive tied, under custody of defendant’s son. After Hood had finished the paper he wrote, (and which seemed to have been copied from James’s Digest,) the defendant seemed inquisitive as to how much of it he was to swear to. Hood told him he had to swear to the time he caught the boy, and the distance; and he swore accordingly. He told his neighbor and companion that if Frank was not a runaway, he was mocking the thing. Frank was in the habit of running away, but the witness would not say he thought he was then. He interrogated the boy at defendant’s house, who said he had left home at night when the rest quit ploughing, and intended to walk a piece. When he first went to defendant’s he heard no talk of the boy being a runaway. Defendant told Hood he had caught him in a place he ought not to have been, and wanted a commitment to take him to jail as a runaway. Before this time, Feemster had said he' did not know whether Frank was a runaway. Having procured a paper from the magistrate, he carried Frank to jail, delivered him as a runaway, received the fees provided by law in such cases, and, on the second day thereafter, the plaintiff released him from jail, on the payment of the fees to the sheriff. Another witness had spoken to the defendant’s son for an adjustment, before action brought, and said the proceeding was delayed for that purpose; that Hamilton was aware of the design to make application, but did not authorize it. No adjustment was made.
    “ The jury returned a verdict of one hundred dollars for plaintiff.”
    The defendant appealed, and now moved for a non-suit, on the ground that the action should have been trespass, and not case; and, failing in that motion, then he moved for a new trial, on the grounds:
    1st. Because his Honor, the presiding Judge, erred, it is respectfully submitted, in holding that the plaintiff’s counsel was entitled to the reply in argument.
    2d. Because his Honor instructed the jury that they were at liberty to render a verdict for vindictive damages, when it is submitted that, in an action on the case for consequential damages, arising from tort, and for injuries to the personal property of another, the jury cannot find damages beyond those actually sustained.
    
      3d. Because, as the only damages claimed by the plaintiff in his declaration, were for the fees paid by him to the jailor, and the loss of the service and labor of the negro boy Frank, the jury were not at liberty to render a verdict for any other damages.
    4th. Because, as the case made in the plaintiff’s declaration was, that the defendant had maliciously procured one J. P. Hood, a magistrate, to issue a warrant to the jailor of York district to receive and keep Frank as a runaway, when in point of fact no such warrant was ever issued, and it was only proved the defendant himself brought the boy to jail — it is submitted the plaintiff failed altogether to prove his case, and the verdict in his favor should be set aside.
    
      Gf, W Williams, for the motion,
    contended that the plaintiff’s remedy was trespass, and not case, and, on that ground, cited 2 Smith’s Lead. Cases, {Scott vs. Shepherd,) 210; Savignac vs. JRoome, 6 T. R. 125 ; Day vs. Edwards, 5 T. R. 648; Leame vs. Bray, 3 East, 593; 20 Law Lib. 260 ; 7 Stat. 430; Harp. 113 ; 2 T. R. 225; 2 Stark. Év. 810-209. On the first ground for a new trial, he cited The Queen's Case, 6 Eng. C.L. R. 116, and, on the second and third grounds, 1 Tidd, 399; Stallings vs. Corbett, 2 Sp. 673.
    
      Witherspoon, contra,
    on the ground for non-suit, cited 1 Chit. PI. 133-139, (10 Amer. Ed.) McHugh vs. Pundt, 1 Bail. 441; 1 Bail. 457; James’s Dig. 632 ; 2 Wils. R. 302; 8 N. Hamp. R. 404 , 2 Nev. & M. 355. On the first ground for new trial, he cited Rice, 262; on the second ground, 1 Saund. PI. & Ev. 466 ; 1 Bay, 6; 10 Conn. R. 384; 3 Johns. R. 56; and, on the third ground, 2 Green. Ev. 250-251-285; 1 Chit. PI. 396 ; 1 Green. Ev. 209.
   Curia, per

Whitner, J.

From the divisions which exist amongst my brethren as to the proper grounds on which to rest our judgment, I presume I am expected in this case to do little else than announce the result,

The very full report, of the presiding Judge, of the facts, and the precise ruling on the Circuit, as to each point now made in the grounds of appeal, obviate a recurrence by way of re-stater ment.

There has certainly been no want of adroitness in conducting this defence, and counsel has succeeded in securing the consideration of every circumstance connected with the case. His client, upon the merits, has not been hardly dealt with by the verdict, in the opinion, perhaps, of each member of this Court.

Hence, his objections being as to form, it may not constitute any cause of discontent, even if, under the lead of able jurists of other times, we should not be disposed to look with eagle’s eyes in applying the evidence, but rather acquiesce in a verdict for damages so well deserved.

The motion for non-suit, is founded on objection taken to the' form of action,, whether it should be trespass vi et armis, or trespass on the.case. Although these actions are as well distinguished in principle as most others, it is equally true they are often concurrent remedies, and the line of separation is not un-frequently nice and wire-drawn.

The solid distinctions recognized in every law book on the subject, lead to inquiries, as to whether there was force, and force directly applied, and whether the injury was immediate, or mediate and consequential.

Again, where a trespass has been committed, it is clear .that, if consequential damages have resulted, the trespass may be waived, and case brought; and so, too, if the damages are consequential only, then case must be brought. Reynolds vs. Clark, (Ld. Raym. 1399); Howard vs. Banks, (2 Burr. 1114).

It is conceded, that whenever an injury to a person is occasioned by regular process of a Court having competent jurisdiction, if maliciously adopted, the remedy is in case. Some of us are well satisfied the form of action here pursued may be sustained on this principle — that notwithstanding the criticism of the Act of 1788, found in 7th Stat. 430, the magistrate might issue his warrant, and authorize the detention of the slave as a runaway, on the information of another; that this has been the construction long given, appears from the almost universal usage of the country, certainly extending back to the publication of James’s Digest, and, it may be inferred, to a far more distant point, by his adoption of a form for the use of magistrates in such cases.

If the proceeding be malicious and unfounded, though it were instituted by a Court not having jurisdiciion, case may be supported or trespass. (1 Chitty, 133; 2 Wils. 302.)

But on the other hand it is urged, that if the proceeding complained of was irregular, the remedy in general must be trespass. On this point, reference may be had to the authorities in 1 Chitty, 133, from which it will be seen, nothing very definite can be had as to this case.

The magistrate, it is insisted, had no authority; that, in fact, the law had dispensed with its exercise, by authorizing all persons to arrest runaway slaves, and although required to carry them before magistrates, it was in fact for a different purpose. Yet this was done. The requirement of the Act was substantially complied with, the certificate of the magistrate necessary to the consummation of the end,-defendant obtained; and to this extent, the perpetration of the injury was effected through this form of process, so far regular and authorized.

But if this entire view falls to the ground, other members of this Court are satisfied that this distinction cannot avail this defendant. If without warrant he was authorized to arrest the slave by law as a runaway, if this provision of law is perverted and abused by him, and his conduct has been malicious, in what is he better as to the objection raised ? The Act of the General Assembly investing him with a discretion but substituted that mode of proceeding for another, usual in ordinary cases where the right of capture and detention of the person is set up. The resort to process, in cases allowed, fraudulently and maliciously, will not shield the delinquent when pursued with this remedy. Analogous to it, may be regarded a like abuse of the Act of the Legislature.

At this point it may be proper to dispose of the objection made in the argument, to the defect of proof on the part of the plain-tiif, as to the proceedings by the magistrate. These were alleged, and as plaintiff was proceeding to adduce the warrant and commitment, objection was made by defendant. The former was received, but the objection was sustained as to the latter. Although we are all, including the presiding Judge, of opinion that the proof should have been permitted, and the paper received ; so, too, we are all of opinion at this stage the defendant can take nothing by this supposed chasm. His objection did not involve a denial of the fact, but the contrary. He sought shelter from its effect, and if, from over tenderness to him, at his instance, the fact was shut out, and the shield interposed, we cannot shut our eyes to the wrong that would now be perpetrated by permitting the defendant to convert this shield into an engine of injury. The plaintiff should not hence be turned out of Court, or even delayed in the enforcement of his verdict.

We are satisfied with the ruling of the Judge, as to the right of the party to the reply on the facts stated.

As to the instructions of the Judge respecting damages, it is proper to remark, that on the Circuit it would seem, as well by the report, as from the ground taken, being the 2d, the objection pointed rather to the “ liberty of the jury to render a verdict for vindictive damages ” “ in an action on the case for consequential damages,” &c.

We are all satisfied with the instructions on the general proposition made.

Before this Court, however, the certified copy of the declaration is laid, and the more specious ground taken, that, because of the form adopted, of alleging the injuries, the plaintiff should have been confined to the special damage laid and proved. On this point there is some slight division amongst us — a majority are entirely satisfied with the instructions, as applicable to the case made by the proof, and set out in plaintiff’s declaration. If in this form of action, and by any form of allegation, it be conceded that, on the proof, or for such an injury, vindictive damages could ever be recovered, any special pleader might find it difficult to amplify in any substantial or material point. The unjust and malicious purpose and conduct of defendant — its annoyance to his feelings — luis deprivation thereby of the general labor, service, &c. of his slave, connected with an allegation of special damage, because of certain expenses to which he was thereby subjected, stating a sum, wherefore he had sustained damage to a larger amount, are fully and quite sufficiently set forth, to authorize the liberty of covering, by a verdict, general and special damages. I refer to 1 Tidd, 399; 2 Green. Ev. 250-285; 1 Chitty, 396, and the forms of approved pleaders generally.

The views here attempted, are deemed sufficient vindication of the judgment of the Court for present purposes. The divisions, at first alluded to, as to the different grounds, may prevent much else being settled than the case itself; and hence, I have been content with a very general statement of conclusions, without any very special reference to authorities.

The motions for non-suit and new trial are dismissed.

Evans and Withers, JJ., concurred.

O’Neall, J.

I dissent, on the grounds, that the action should have been trespass, and not case, and that special damages being laid, vindictive damages could not be found.

Frost, J.

I dissent, because the action should have been trespass, and not case.

Motions dismissed.  