
    William H. Wigg vs. Charles H. Simonton.
    
      Attorney at law — Case.
    The plaintiff lodged his two slaves in the work-house, and proceedings being about to be instituted to determine their right to freedom, the defendant, as attorney at law, wrote to the master of the work-house that plaintiff’s authority was disputed, and warned him not to deliver the slaves to the plaintiff. Held: that plaintiff had no right of action against defendant for the loss occasioned by the subsequent detention of the slaves by the master of the work-house.
    An action on the case will not lie against an attorney at law for acts done bona fide in the prosecution of his client’s* rights — to sustain such an action it must be shown that the acts of the attorney were malicious and without foundation.
    BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ Action on the case for damages, for the detention of the plaintiff’s slaves in the work-house, on the allegation that they were free, which the highest Court had overruled. Such was the statement of the case; but I have no copy of the count of tbe declaration, which had better be attached to this report.
    “ It appeared in evidence, that a couple of tbe slaves of tbe plaintiff, John and Archer, bad been employed, under Captain Peck, on hire, on the steamboat be commanded, and they bad set up some claim to freedom, whereupon the plaintiff had engaged the services of A. H. Brown, Esq., of the firm of Brown & Porter, to canse them to be arrested and committed to tbe work-bouse, tbe 21st December, 1855. In a few days thereafter, they were transferred to tbe order of T. Savage Heyward, as tbe plaintiff’s agent. March 26tb, 1856, tbe defendant addressed a letter to the master of the workhouse, which was read, (let a copy accompany this report,) the purport of which, as I have it, was, that the master of the work-house, was notified that the plaintiff’s right to. the persons of color there confined, to wit: John and Archy Wigg, was disputed, and he was warned not to deliver them to the plaintiff. The master of the work-house said, that a case was instituted in Court, and he withheld the negroes, refusing to take orders about them from Wigg or Heyward, until the Court decided the case. Yet he said he wrote to Wigg, after he received the defendant’s letter, to come and take his negroes and relieve him, to which he received no other answer, except a reference to Mr. Hayne. He had. no recollection that Wigg or Heyward ever demanded the negroes. Hey-ward, he said, and himself conversed about the matter, and Heyward knew he could not get the negroes in the existing state of affairs. Soon after the case pending was decided, early in 1858, executions against Wigg were levied on John and Archy, and they were sold by the sheriff. Heyward paid some of the fees, and Simonton or Dukes paid some.
    “The testimony of'Captain Peck and T. Savage Heyward, was read from a brief of the case, and is copied with the grounds of appeal.
    
    
      “ It was not made known in evidence, what case it was that was brought and tried in relation to John and Archy, but it was assumed in tbe argument, and the declaration was appealed to as warranting the assumption, that it was a case brought by defendant, in nature of ravishment of ward to try the right of the negroes to freedom. Thereupon the statute was invoked to show (upon a motion for nonsuit,) that Simon-ton was fully justified in bringing the proceedings, that Wigg had nothing to do but to give bond for the forthcoming of the negroes, to answer the decision of the cause, and that chastisement of the negroes was the penalty provided, if the suit failed in behalf of the negroes, and therefore, Simonton was liable to no responsibility for damages. Mala, fides on the part of Simonton, who signed his note as 1 attorney at law,’ was not averred in the declaration, and was disavowed in the argument. I was convinced, that in general, there being no mala fides, the bringing of an action, though on insufficient foundation, was no ground of action on the case, even against the party plaintiff, much less an attorney at law— that the costs were the legal punishment Observing, also, that the defendant had merely notified the master of the work-house that Wigg’s right to the negroes was disputed, and warning him to take notice thereof at his peril, (which was, I conceived, all established against the defendant,) was no legal injury to the plaintiff. That the master of the workhouse might or not, as he might please or be advised, regard such notice or warning. That if given bona fide, it was no injury in law to any one, though the result proved it to be founded in mistake, and if it proved the reverse it would be a kindness to the custodian of property and a proper act of vigilance.
    “ Concluding, that if from the declaration and the evidence, it was to be assumed that Simonton, in good faith, took, in the act complained of, a step in pursuance of the purpose to try the right of the negroes to freedom, according to the regulations of the Statute, in that behalf, he derived from that Statute much to justify him, perhaps enough for that purpose; and if that were excluded, and yet Simonton, in good faith, (and the contrary was not alleged in pleading or advanced in argument,) gave notice of a counter claim to the plaintiff’s right, and notice only, and a corresponding warning to regard it, and if, notwithstanding, it turned out the ground he took was taken by mistake, and the master of the work-house chose to regard it, it was rather a remote injury to be referred to Simonton at all, but if referred to him, it was damnum absque injuria. I granted the motion for nonsuit.”
    The defendant appealed on the grounds:
    1. Because the evidence of Withers, master of the workhouse, and of T. Savage Eeyward, established the fact that at the instance of defendant, negroes, the property of plaintiff, were withheld from him against his wishes, and without legal warrant, and thus gave, prima facie at least, a cause of action to plaintiff against defendant.
    2. Because, if the above fact was not established, there was evidence tending to prove it, which should have been left to the jury.
    8. Because his Honor erred in holding that upon a detainer of the property of another, against the'wishes of the owner, upon a claim of right set up by the party detaining, or a denial on his part of right in the owner, malice, or evil intention in the detainer must be proved, to give a right of action to the party damaged; and that in' the absence of malice the loss of the owner in such a case, was damnum absque injuria.
    
    4. Because the question whether Withers did or did not withhold the negroes of plaintiff against his wishes, was a question of fact, and should, upon the evidence, have gone to the jury.
    5. Because the question whether defendant did or did not cause Withers thus to withhold said negroes was a question of fact, and should, upon the evidence, have gone to the jury.
    6. Because the question as to the capacity in which defendant acted, whether as attorney at law, party to a suit, general philanthropist, guardian, or one pecuniarily interested, was matter of fact, and if it bore on the right of action at all, should have been submitted to the jury.
    7. Because, even if “ want of probable cause” in proceedings at law, and “ malice” were necessary to give a cause of action to a party deprived of the use of his property, “ want of probable1 cause” and “malice” are matters of inference from facts as they may appear to the jury. The motion for a non-suit did not present the question of the sufficiency of the declaration, and to grant such motion assumed that such was the inference to be made from the evidence.
    
    
      Hayne, Miles, for appellant.
    1. The question raised does not involve sufficiency of the declaration. There was no demurrer, and the informality of the pleadings on loth sides, if not a waiver of all irregularity, would at least afford ground for allowing such an amendment of the declaration to be made, on motion, as would present the case on its merits. The motion for a nonsuit was based upon the insufficiency of the evidence, and the allegation of the defendant to sustain his motion was, that the case, as presented by the evidence, did not entitle the plaintiff to go to the jury. The true issue intended to be decided was, “whether the plaintiff, upon the facts, had a cause ofaction.” To dispose of the case on any other ground would be a surprise.
    2. The “bringing of an action” by defendant against the _ plaintiff to test the question of freedom “ on insufficient foundation,” formed no part of plaintiff’s alleged “ ground of action” in the present case. Plaintiff’s alleged ground of action in the present case, was the detention of the negroes in the workhouse, which detention, plaintiff insists, was not excused, by the fact that the party causing the detention brought a suit at the same time. 1
    3. The case relied on by plaintiff was not supposed to resemble an action for “ malicious prosecution,” or a claim of damages for vexatious litigation. His right of action was not placed upon any such ground. It was considered similar to an action of detinue or trover. The gist of complaint was the detention without warrant of law, and it was urged that it differed from trover only in the fact that the party withholding the property of another, did so, not with a view' to convert the same to his own use, but upon a claim of freedom. In the latter case the true owner is as much deprived'of the use of his property as in the former, and in neither case does the right of action, on the part of the true owner, depend upon the good or bad motive of the party withholding the property. Suppose that (the circumstances being otherwise the same,) Simonton had claimed the negroes as his own property, and on that account ordered their detention, would his good faith have saved him from liability? Does our law allow more to one who, in mistake, asserts the freedom of a negro, than to one who, in mistake, claims the negro as his property ? So far as bringing suit is concerned in either case, if the proceedings are bona fide, “costs” constitute the measure of legal damage in the event of failure. But in either case, a forcible detention of the property until the suit is decided, would subject to damages the party losing, to be measured by the amount of loss sustained by the owner.
    4. It is submitted that, neither in the evidence or the pleadings, did it appear that there was any proceeding at all under the Act of 1740 or 1799; still less did it appear how long after the detainer these proceedings were instituted, or to what extent 
      the provisions of the statute were followed. There was no ground, therefore, “for invoking the statute,” in the motion for .a nonsuit. If the statute could be relied on as affecting the case, its application should have been made to appear by evidence. It was matter of defence. But in fact the second section of the Act of 1740 does not provide for a privilege of the defendant. It gives a right to the plaintiff which may or may not be claimed. If claimed, it should be enforced in conformity with the statute. Judge O’Neall, in his "Negro Law,” sec. 24, p. 9, says that plaintiff may enforce this provision by filing a petition, setting forth the facts, and obtaining an order of Court, or the Sheriff may perhaps be called on to arrest and hold defendant until the recognizance is given. Mr. Simon-ton pursued no such course. He, voluntarily, assumed the responsibility of detaining, in the work-house, the negroes in dispute, and in so doing took the risk upon himself to pay for the detention in case of failure. Actual process, was, in point of fact, not instituted until months afterwards.
    5. It did appear from the title of the case, from the “brief” of which the evidence was read, that in the suit instituted in reference to these negroes, C. H. Simonton was himself the party plaintiff., and his signing the note addressed to the master of the work-house as Attorney at Law, could not vary his responsibility.
    6. It is submitted that the agency of Simonton in producing the detention, was direct and immediate, and the injury not “ remote.” The master of the work-house acted at Simonton’s instance; that he did so voluntarily, and not on compulsion, though it may render him liable, likewise, cannot excuse Simonton. The letter is’ more than a notice that Wigg’s right was disputed, the master of the work-house was instructed — “ warned" is the word used — “ not to deliver the negroes to Wigg, or his order, or any person acting under his authority.” This letter withdrawn, the negroes would have been delivered, — on account of this letter, and solely on this account, they were detained.
    
      Pressley, Barker, contra,
    cited Hargrave vs. LeBret, 4 Bur. 2423; Smith vs. Spooner, 4 Taunt. 246; Brook vs. Bawl, 4 Excheq. 521; Brown vs. Shaiv, 3 Hill, 324; Ferguson vs. DeHay, 2 McC. 229; Gooper vs. Halbert, 2 McM. 423; 1 Chit. PI. 386, 389; 1 Cox, 101.
    
      
      
         Copies of tbe evidence, the letter and declaration :
      
        Evidence read before the jury, from Brief in the case of Charles II. Simonton vs. W. H. Wigg. Evidence given at the trial in November, 1857.
      
        Capt. PecJc is master of steamboat, and has known W. H. Wigg since 1848. In 1851, he hired from W. H. W., Archy and John; the first was steward and the latter pilot. From 1848 to 1850, they were in the employment of Brooks & Barden part of the time. He gave W. H. W., fifteen dollars per month for each, and gave them each five dollars or more, as was his habit. For about two years they behaved well, but afterwards the idea of freedom made a difference. He doubts if John’s father was a white man from his appearance. Archy is lighter. He became very insolent towards the last three years he had him. Witness paid W. H. W., except once, when he paid his draft. In 1854, Archy was dissatisfied, and brought a ticket to hire himself and receive his wages. Witness paid two months, when W. H. W., informed him that the ticket was not intended to receive wages. May 4, 1855, they quit him. Witness got a note from Archy, saying he had permission to go where he pleased, and next place he found him was in Orangeburg jail. John also left and witness got him, and after two months they quit and were put in the work-hou.se by W. H. W. His agreement was for the year, with leave to either to quit on notice. John is oldest; is quiet, and will sometimes drink. Witness thinks Archy is like W. H. W. Three years ago Archy wanted three dollars, and said he wanted to see Colonel De Lyon about his freedom, and said the Colonel told him he had better go back to his work. W. H. W. wanted to sell them, which alarmed them; and they wished witness to buy them. This was after they had seen Colonel De Lyon. What he gave them was Sunday money. Common hands get two dollars per month.
      
        Edward Lafitte, — Has been and is agent of the Savannah and Charleston steamboats. He paid wages to W. H. W., Or order, from May, 1850, to September, 1851. John is a dark mulatto. About two years or more since there was a change in their conduct.
      
        T. Savage Heyward. — Knew W. H. W. from early childhood, and recollects John and Archy from 1832, who were then young. John was on board W. H. W.’s sail boat, and Archy was about the house. He has known them ever since, and W. H. W. has always exercised control over them.. When they ran away from Pede, W. H. W. ordered them to be put in the work-house. They were placed there subject to W. H. W.’s order, and Capers & Hey-ward had control of them. About two years ago they went into the workhouse ; W. H. W. ordered them to be shipped out of the State for sale. The master of the work-house said he had a detainer placed on them, and refused to deliver them up, and they are now in the work-house. John is darker than Archy, and looks darker now than when put in the workhouse. About two years ago is the first he heard of their freedom, and up to that time W. H. W. always exercised control over them as slaves. Soon after W. H. W. took possession of his property he saw them there. Two of the girls were sent to Savannah. When on plantation they were house servants.
      
        Letter of O. H. Simonton to Master of Work House.
      
      The master of the Charleston work-house will please take notice, that the authority of William H. Wigg to place in said work-house and there to detain Archy Wigg and John Wigg, two persons of color is disputed. And tlie said master of said work-house, is hereby warned not to deliver said Areliy Wigg and John Wigg to him, the said William II. Wigg, or to his order, or to any person or persons acting under his authority.
      Very resioectfully,
      CHARLES H. SIMONTON,
      
        Attorney at Law.
      
      Broad Street, March 26, 1856.
      Pleadings.
      THE STATE OP SOUTH CAROLINA, ) To wit-Charleston District. )
      Charles H. Simonton was attached to answer to William H. Wigg, of a plea of trespass on the case, &c. Whereupon the said William H. Wigg, by Hayne & Miles, his attorneys, complains, for that whereas William H. Wigg, the said plaintiff heretofore, to wit: on the day of November, in the year of our Lord, one thousand eight hundred and fifty-five, at Charleston, in the District of Charleston and State aforesaid, was possessed of two mulatto slaves named John and Archer, being then and there lodged for safe keeping in the work-house of the said City, under the charge and custody of one William Withers, master of said work-house, one Charles H. Simonton, of the District and State aforesaid, wrongfully contriving and intending to injure the said William H. Wigg, afterwards, to wit: on the day ant|. year aforesaid, in Charleston aforesaid, caused the said slaves John and Archer, to be detained in the said work-house, by the said William Withers, Master as aforesaid, the said Simonton alleging that said slaves were not the property of the said William H. Wigg, but were free, and therefore not subject to the order of the said William H. Wigg ; and that the said Charles H. Simonton, with others, was about to institute proceedings to establish the claim of the said John and Archer to their freedom, by means whereof the said William H. Wigg was deprived of the services of his said slaves for a long space of time, to wit: for the space of three years, and was put to great cost and expense for the maintenance of said slaves during the long time they were thus detained, and to further great charges and expense in again obtaining the possession of said slaves, and in defending and establishing his right to the property in and possession of the said slaves. Wherefore the said William H. Wigg saith he is worse, and hath sustained damage to the sum of three thousand dollars, and therefore he brings suit, &c.
      HAYNE & MILES,
      
        Plaintiffs attorneys.
      
    
   The opinion of the Court was delivered by

O’Njeall, C. J.

In this case, it is contended, for various reasons, that the case should have gone to the jury. The most prominent of these are:

1. That the defendant is chargeable for the detention of the slaves. The answer to that is, that whatever he did was ' as attorney at law. His written notice to the keeper of the work-house is in that character, and was a mere warning to him to abstain from delivering to the plaintiff, who had placed the slaves in the work-house. If this be true, there is ■ no doubt that an attorney for an act done, bona fide, as a professional man, is not responsible. There is nothing to produce doubt about this fact. The plaintiff has corroborated the bona fides of the notice, by showing that a suit in reference to these slaves, and probably for their freedom, was afterwards in progress and finally tried. Looking to the notice, and the other facts proved, there was nothing to go to the jury. For it was plain the defendant acted as attorney.

2. It is supposed, however, that this was substantially an action of trover, and that the defendant was therefore liable on the notice not to deliver. The plaintiff’s attorney denies this, and insists that this is an action on the case. He is, it seems to me, perfectly right in disclaiming this as an action of trover. His record has in it no semblance to that. The plaintiff’s action of trover, if he had thought proper to bring one, would have been against the keeper of the work-house. He had the possession; he had received it from the plaintiff; the defendant thereby gave him a notice not to deliver the possession to the plaintiff. This was neither possession of the slaves nor a conversion of them to his own use.

3. It is insisted that this is a special action on the case, and that, looked at in that point of view, the facts proved ought to have sent the ease to the jury. It seems to me that no cause of action is stated or proved. The defendant; an attorney at law, is sued for an act done as such; but which the plaintiff insists on ascribing to him in his individual capacity. He cannot do this of his own head. The only act which the defendant has done outside of the case, was his notice to the master of the work-house, in which he describes himself as attorney-at-law. Was this character improperly or falsely assumed. If it were, then, bn showing the facts, the defendant might be liable. There is no pretence of that. An attorney at law is not liable to such a_ suit as this. He must be shown to have assumed this character falsely, or unnecessarily.

'It might be, if his notice was false, and the scienter was brought home to him, he might be liable. I have no doubt the defendant is liable to no action, unless he has acted maliciously. To sustain such a case as the present, it must be alleged and proved that the case set on foot was without foundation, and that the defendant did what he did from malice. Then, and not till then, could this action be maintained.

4. It is supposed the defendant detained the property of another, and for that this action can be sustained. But he did no such thing. He, as an attorney at law, gave notice to the master of the work-house not to deliver. This cannot be looked at as a detainer, it was mere advice to the master of the work-house, and if he had wrongfully delivered up the slaves, it might have constituted against him a circumstance of importance in some proceeding, which, might have been instituted against him.

There is nothing in the whole case which ought to have been submitted to a jury. It is a naked attempt to make an attorney at law liable for that which he did honestly .in vindication of his client’s rights. Such a suit maintained, would abolish every principle of protection which has hitherto surrounded and protected the profession of the law.

The motion is dismissed.

Johnstone, J., concurred.

Motion dismissed.  