
    *Frederick Wesner ads. Guardian of Tom Brister.
    Under the Act of 1740, any negro claiming to he free, has the right, by guardian, to bring an action of trespass ill the nature of ravishment of ward; not only against any one claiming property in, but against any one having the possession of such negro.
    In the City Court, Charleston, before his Honor J. Axson, Recorder, April Term, 1840.
    This was a case of ravishment of ward, to try the freedom of Tom Brister. The evidence is all in writing. I ruled that the master of the workhouse was liable to this form of proceeding. The jury established the freedom of Tom, and the City Attorney served me with the annexed grounds of appeal.
    The written testimony presented the following case :
    Tom Brister was a free person of color, resident in Florida, who executed an instrument of writing to Mr. John Yeomans, of which the following is a copy :
    
      Territory of Florida, Duval County :
    
    Knoiv all men by these presents, that I, Thomas Brister, colored man, for and in consideration of Mr. John Yeomans having paid certain sums of money for me, viz.: $200 to Mr. James Stevens: $30 to Mr. William Colson, and divers other sums for different purposes, all for my interest, happiness and welfare, I do hereby bind myself to serve Mr. Yeomans as a laborer for the term of five years from the date of these presents ; and do hereby further promise that if he, said John Yeo-mans, bargains or sells my said time for five years, to any other person or persons, then I will well and truly serve them as a laborer, to the best of my abilities, until said time is out.
    Given under my hand and seal, in the town of Jacksonville, this 11th day of August, A. D. 1839.
    
      
    
    Signed, sealed and delivered in the presence of
    Stephen D. Fernandez,
    Chester Bisbee.
    *Mr. Yeomans sent Tom Brister to Mr. Thomas N. Gadsden, the broker, for sale, when Mr. Gadsden committed him to the workhouse for safe keeping. From statements made by Tom Brister, of his freedom the present action was commenced.
    GROUNDS OP APPEAL.
    1. That the master of the work house is not liable to an action to try the freedom, or for the delivery, of a negro lodged there, by any other person than the parties who lodged him in the work house.
    2. 'That the negro had been properly received and detained by the master of the workhouse, under the circumstances in testimony by the defendant.
    3. That the defendant is not liable to the costs — he is a public officer under a State Law.
    
      Mr. Eclchard, City Attorney, for the motion.
    Is the master of the workliopse liable to any person lodging a slave in the workhouse, but the person lodging him ?
    Mr. E. cited P. L. (by Grimke,) 169, 195 and 332, and contended that the workhouse was a public institution, and established by authority. That it was analogous to the pounds in England. Cited 2 Cowp. 478 ; and said trespass would not lie against a pound keeper. He then cited City Laws, head Workhouse. It was further argued by Mr. E. that the defendant was authorized to detain Tom Brister, under the circumstances. He also said that it was competent for a free person of color to make a contract, depriving himself of his freedom for a term of years ; and the person so owning him for the time being, had a right to sell him in South Carolina, as much so as in Florida.
    
      Mr. J. B. Thompson, contra
    offered no argument, hut submitted the case to the judgment of the Court, under all the circumstances attending it.
   Curia, per

Butleu, J.

In connection with the facts stated in the report of the Recorder, the following facts were stated and admitted on the hearing of this cause : That John Yeomans, residing in Florida, assuming to be the absolute owner *of Brister, sent him to Thomas N. Gadsden, a broker, to be sold as a slave. Under the impression that Brister was a slave, Gadsden committed him to the workhouse of Charleston, of which defendant was keeper, for safe keeping until he could effect a sale. Yeomans’ instructions were that Gadsden should sell Brister to some one who would carry him to Yew Orleans, stating that Brister would endeavor to make such statements as to procure his discharge, but that Gadsden must not believe him, &c. After Brister was committed, he made such communications as to induce the keeper of the workhouse to write to one Archibald Clark, residing in Georgia, to know if Brister was a free man, as stated by himself. Clark returned an answer, saying that he was, and that he (Clark) was his guardian; and also sent an affidavit of the same purport; upon which, the attorney of plaintiff made a demand that Brister should be released. In the mean time, Gadsden wrote to Yeomans of what had passed. Yeomans then sent the contract, noticed by the Recorder, showing the true relation between himself and Brister, to wit: a personal obligation for the services of Brister for a limited term. From this, Gadsden became satisfied that Brister was not liable to be sold as a slave, and called and paid the fees of the workhouse, and at the same time discontinued any further agency or control over Brister. Under this state of facts, the plaintiff was put to his action of ravishment of ward, allowed by the Act of Assembly of 1140, by which it is provided that the Court, &c., may appoint a guardian for any person of color claiming to be free, and that such guardian may bring an action in the nature of ravishment of ward against any person who shall claim property in, or who shall be in the possession of, any such negro, &c.; and it is further provided, that such defendant shall and may plead the general issue on such action brought, and the special matter may and shall be given in evidence, &c. Such was the state of pleadings in this case, the true issue of which was to try Blister’s right to freedom. From the evidence on the trial, it was unquestionable that his liberty had been put in jeopardy, and that he was entitled to be discharged from custody, as a free man of color. Gadsden committed and Wesner received the plaintiff into custody, without any wilful participation in the infamous fraud attempted to be committed by Yeomans; and perhaps it would not be ⅜⅛ to hold the latter ^liable for damages, as for a trespass in the wrongful taking and imprisonment of the plaintiff. In general, I should think that he ought not to be held liable to any action by a third person for negroes committed to his custody, until after demand made and a wrongful detention and conversion on his part against the rights of the true owner; as by the City laws, sec. 5th, page 356, it is made the duty of the keeper of the workhouse to admit and coniine all slaves delivered into his charge or custody by the order or in behalf of their respective owners, or committed by the intendant, &c. The defendant was therefore justified in receiving Brister into his custody, from his ostensible owner. But this justification ceased after Gadsden paid the fees and discontinued his control over Brister. From that time the defendant held him on his own responsibility, or by the direction of the commissioners of the workhouse, and had no further right to claim exemption from liability to this action. Indeed, without the defendant had been liable, the plaintiff would have been without remedy, so far as his actual imprisonment was concerned. A suit against Gadsden, if any action would have lain against him, after he had discontinued his agency in the matter, would have afforded no relief; and Yeomans was beyond the jurisdiction or reach of legal process. The necessity of his situation gave him a remedy afforded by this action. The Act, however, under which this action is brought, is explicit and peremptory in its provisions, that any negro claiming to be free, has a right, by guardian, to bring an action of trespass, in the nature of ravishment of ward, against not only any one claiming property in, but against any one having the possession of, such negro. The defendant, who had the actual possession of the man claiming his freedom, was therefore liable to this action, and can take nothing by his motion. Motion dismissed.

See Huger vs. Barnwell, 5 Rich. 275. An.

The whole Court concurred. 
      
       7 Stat. 397, § 1. An.
      
     