
    Woodfolk vs. Sweeper.
    X, When an action is brought to recover freedom, none but nominal damages can be recovered in such suit.
    2. A second action is necessary to recover damages for tbe wrongful imprisonment of a freeman as a slave, and for the necessary expenses incurred in tbe recovery of his freedom.
    3, Where the circuit judge charged the jury, that P. S. was cnlilled to recover as damages, the value of his services during the time he was wrongfully imprisoned, necessary witness and attorney’s fees, &c: field that this was erroneous, in leaving the jury no discretion as to the amount of damages; these were legitimate matters to be considered of by the jury in forming their verdict, but the plaintiff was not as a matter of legal right entitled to them. ■
    Peter Sweeper instituted an action of .trespass, vi et armis, on the 24th day of January, 1839, in the circuit court of Jackson county, against William Woodfolk. At the March term, 1839, plaintiff filed his declaration, in which he averred that the defendant on the --- day of December, 1832, in the' county of Jackson, did commit an assault and battery on the body of the plaintiff, imprisoned him, reduced him to the condition óf-a slave and compelled him. to labor for the plain tiff after the manner of a slave, from the said-day of December, 1832, until the —— day of February, 1835; that he, the said defendant, appropriated the entire proceeds of the labor of the plaintiff, to his own use and benefit, contrary to the will of the plaintiff, and that such services were reasonably worth the sum of seven hundred dollai’s. The plaintiff further averred, that by reason of his being so detained in prison and slavery, he was compelled to expend large sums in prosecuting suits for the recovery of his freedom, to wit, attorney’s fees, witness-fees, and other necessary expenses, amounting in the whole, to the sum of $500, which said several sums the defendant had refused to pay to the plaintiff to his damage-dollars. The defendant pleaded not guilty, and- other pleas not necessary here to be set forth. Issue was joined on the plea of not guilty.
    The cause was continued till the January term, 1840, at which time it was submitted to a jury of Jackson county, upon the following facts: It appeared that Peter Sweeper was black, that he was born of a free black woman, in Baltimore county, in the State of Maryland, and that he was indicted and convicted, in the year 1826, in the said State and county aforesaid, of persuading a nd conveying slaves out of the State of Maryland into the State of Pennsylvania, and sentenced according to the laws of that State, to be “banished by sale and transportation for the term of seven years;” that he was accordingly sold by the Sheriff of Baltimore county to the highest bidder; that he was in the same year, 1826, purchased by Joseph Woodfolk, and by him conveyed to the State of Tennessee, and deposited with the defendant in 1827; that the term for which plaintiff was sold, expired about the close of the year, 1832. Woodfolk held him as a slave till the year 1835, and it does not appear that he had any knowledge of the plaintiff’s being a freeman further than he might have derived such knowledge from the occasional assertion of such claim by the plaintiff. It also appeared, that on the 7th day of September, 1835, Sweeper instituted an action of trespass, vi et armis, in the circuit court of Jackson county, against W. Woodfolk for the recovery of his freedom; that the plaintiff employed Hubbard and Mc-Lain, attornies, to prosecute his rights; that the suit was laborious and expensive; that the depositions were procured at much trouble and cost from the State of Maryland; that a witness was brought from said State to the State of Tennessee, the distance being eight hundred miles, to testify in the cause in regal'd to identity of plaintiff; that the plaintiff filed his bill in the chancery court at Carthage to enjoin the defendant from removing him from the State during the pendency of the suit at law; that he recovered a judgment for his freedom in the suit instituted on the 7th September, 1835, as aforesaid; that there was an appeal from this judgment to the supreme court, where it was reversed and remanded for a new trial; that the plaintiff again recovered a judgment, from which the defendant again appealed to the supreme court, where the said judgment ivas on the 6th day of December, 1838, finally affirmed. It appeared from the proof that the services of the attor-nies were estimated at $150 for the suit at law, and $25 for the suit in chancery. The other items of charge were submitted specifically to the jury.
    The presiding Judge, A. B. Caruthers, amongst other things charged the jury that the plaintiff was entitled to recover as damages; 1, the value of his services for the time that defendant wrongfully held him in bondage; 2, the expenses he necessarily incurred in recovering his freedom; that a reasonable allowance should be made for the plaintiff’s attornies fees; that the item for the witness who travelled from the State of Maryland to identify him as the same person who had been punished for crime and sold to Joseph Woodfolk for six years, was not allowable unless it should clearly appear from all the circumstances that surrounded the plaintiff, that it was necessary to procure that testimony in that way; but that if the jury should be of opinion that it was necessary to incur that expense, that it was allowable.
    The jury rendered a verdict for the plaintiff, for the sum of $743 30, in damages. The defendant moved the court to award him a new trial, which motion was overruled, and defendant appealed in error to the supreme court.
    
      W. A. Cook, for plaintiff in error.
    Can this action be sustained? The defendant in error relies upon the case of Matilda vs. Crenshaw, and if that case be correctly determined, it settles this point in the affirmative. This question being one of great importance in the slave-holding States, and of very frequent occurrence, and that decision leading to much litigation and to the great injury of innocent holders of supposed slaves, a dispassionate reconsideration of the question is respectfully asked.
    That decision cannot be sustained either upon principle or authority; most clearly it cannot he sustained on principle. This action and the action for freedom are both actions of trespass, vi et armis, and for false imprisonment. Two successive actions cannot be sustained for the same thing. But is said that in the action for freedom nominal damages can alone be recovered and that this is to be assimilated ¿to an action of ejectment. No authority is cited and no reason given, going to show, that if entitled to recover damages at all, the claimants could not recover them in the first action. It is said we borrowed the form of action from our sister States, especially Virginia, where the same practice prevails. The case of Pleasants vs. Pleasants, 2 Call, 319, is referred to as supporting the position assumed. That case, when looked into will be found to sustain exactly the opposite doctrine. Judge Roane, in delivering his opinion, with which the whole court concurred, uses this strong language: “I believe no instance can be produced, of profits being adjudged to a person held in slavery on recovering his liberty. Among a thousand cases of palpable violation of freedom, no jury has been found to award, and no court has yet sanctioned a recovery of the profits of labor during the time of detention.” See page 343.
    In the case of Samuel Scottfs. Joseph Williams, 1 Devereaux’s Reps. 376, trespass and false imprisonment for freedom, the court charged the jury that they might give more than nominal damages and a verdict was rendered with substantial damages, and upon appeal to the supreme court, the judgment was affirmed. This case was not brought to the mind of the court in Matilda vs. Cren-shaw. This is a distinct authority, that whatever damages the plaintiff is entitled to receive, he can recover in the first action.
    The only question in that case was, whether the plaintiff was entitled to recover any damages at all, the defendant being a bona fide possessor, and Pleasants vs. Pleasants, was referred to, to sustain the defence. The court say, there were circumstances in the case, going to show a wilful holding in bondage, and the jury having a discretion in that case to give damages, they would not set the verdict aside. This case establishes the converse proposition to that assumed in Matilda vs. Crenshaw, that nominal damages, only, can be recovered in the action for freedom.
    
      The case of Phillips vs. Green, 9 Louisiana Rep. 208, Wheeled on Slavery, 409, establishes the same point as Scott vs. Williams f and Queen vs Ashton, 3 Harris and McHenry’s Maryland Rep. 440, is ad idem. The only controverted point in all the authorities is# whether any but nominal damages can be recovered in any case; some holding that nothing more can be recovered in any case, and others that where the detention was wilful and knowingly wrongful, substantial damages might be given, if the jury thought proper to do so, ■
    No case of a second action has ever been sustained or contended for before Matilda vs. Crenshaw: it stands isolated and alone. It is attempted in Matilda vs. Crenshaw, to liken trespass vi et armis to recover freedom, to the action of ejectment; but it is admitted that no similarity exists between the two upon the modem system of ejectment, that action being a mere fiction, shaped with the sole view of trying the title and not applicable to the recovery of the meilse profits. The declaration is not framed with that view; the lease entry and ouster are all confessed, and it is agreed that title alone is to be put in issue. Before the modern fiction the rents and mense profits were recovered in the ejectment suit, Tillinghast’s Adams, 328. In the action for freedom there is no fiction, there is ' no confession or agreement to insist on title alone. It is like the action for trespass, on land which, tries the title as well as the ejectment, and yet it is a bar to the action for all menso profits anterior to the verdict. Adams id. 328,1 McCord’s Rep. 264.
    2. If the action can be sustained, can hire for time before the commencement of the action be recovered. The case of Matilda vs. Crenshaw, decides it correctly. The court say the judgment in the freedom suit will only relate to its commencement, and estop the defendant to that time; if wages and damages for previous time and for previous abuses are claimed, the controversy will again result in one of title, in which case he had just determined the court could decide nothing but the question of freedom, and accordingly decided she was only entitled to recover hire from the commencement of the freedom suit. The court was necessarily driven to this conclusion, by the position assumed, that the question of damages could not be tried with the question of title. For it is admitted that the recovery of freedom is no evidence of the freedom before the bringing of the suit. In the case before the court Sweeper was taken out of Woodfolk’s possession at the commencement of the freedom suit, and according to Matilda vs. Crenshaw, he can recover no hire in this suit. The Gharge of the Judge below, that he was entitled to recover the previous hire, should be reversed.
    3. Can counsel fees and other monies expended, he recovered in the suit? The case of Matilda vs. Crenshaw, sustains this claim, but it is contended that there is no case, English or American, warranting such a decision. Adams, on Eject. 332, is referred to as supporting this decision. That author simply states that the costs in the ejectment suit may be staled in the declaration for mense profits and recovered. And why is that the case? Simply because in the ejectment case the lessor of the plaintiff does not recover his costs so as to have an execution therefor. But by our law, even in an ejectment, the lessor recovers his costs; they are taxed and he has his execution for the same. So in the freedom suit, Sweeper recovered his costs, and they have been paid to the Sheriff; he does not ask for them, but for counsel fees and monies paid a witness for travelling expenses. Has such a claim ever been sustained even in a court for mense profits? No case can be found in which it is so held. Adams on Eject. 301,1 Lof. Rep. 358, Doe vs. Davis. A decision of this case, in favor of the plaintiff, will lead to most serious, and in many cases, ruinous consequences. If hire can be recovered before suit and in a separate action, it ’may be recovered for fifty years, for no limitation will be on it. Two sets of costs must in every case be paid, witnesses may be sent for from different States and at distant points, and they will be proven to be necessary in the freedom suit, and it will be impossible to show that they were not necessary. Then attorney’s fees will be added and the damage suit will be far more important and destructive than the suit for freedom.
    If you confine them to one action, all this inconvenience will be cut off. Why should they recover attorney’s fees and travelling expenses of witnesses in this suit, when other men cannot recover them? Why place the free negro on higher grounds than the citizens of the country? Why should not a man in the case of debt, assumpsit and covenant, assault and battery, &c. recover counsel fees and the money paid witnesses for attending from distant States and Governments. As to vindictive or increased damages they can be recovered in the freedom suit as in every other case of trespass: why allow them in this case to bring a second action?
    
      J. Campbell, for defendant in error,
    contended that the questions involved in this case were fully and directly decided by the adjudications of this State; that they had been adopted -by the. profession with entire satisfaction, and had worked no inconvenience in practice. He saw no reason why they should be disturbed. The facts in the record fully sustained the verdict of the jury.
   Turley, J.

delivered the opinion of the court.

This is an action of trespass brought by Peter Sweeper, a free man of color, to recover damages against William Woodfolk for having wrongfully detained him in slavery. Peter Sweeper brought his action of trespass to recover his freedom, against said Woodfolk, on the 7th day of September, 1835, and finally succeeded in gaining it on the 6th day of December, 1838. After thus establishing his right to freedom, the present action was brought, and prosecuted to a judgment for the sum $743 30, at the November term, 1839, of the circuit court of Jackson, to reverse which, this writ of error was brought. In the charge, the court say to the jury, “that the plaintiff is entitled to recover as damages, 1st the value of his services for the time the defendant wrongfully held him in bondage; 2ndly, the expenses necessarily incurred in reepyering his freedom; a reasonable allowance is to be made for his attorney’s fees,” and it is insisted by the counsel for the plaintiff in error, 1st, that none but nominal, damages can be given in the case of a suit for freedom; 2ndly, that if more can be given, it ought to have been done by the jury in the suit brought to establish the right to freedom, and that no second suit can be brought therefor, and 3dly, that the charge of the judge is erroneous. Upon the first point the counsel cites and relies, upon the case of Pleasants vs. Pleasants, 2 Call. Rep. 219. That was a case of proceeding by bill in chancery, by a man of color, to establish a right to freedom; a decree for profits was asked on the part of the complainant, upon which judge Roane said: “The decree for profits, is, I think, new and unprecedented; besides the account, when the reduction for the trouble and expense of taking care of the aged and infirm, and for raising the children' is' made, would probably yield very little; under every point of view, therefore, I‘am against the account.”

We think'this view' of judge Roane is correct; we agree with him; that'profits for the time a free man of color has been wrongful!^ held' in "slavery, is not the subject' matter of account; they arise oiit’of a tort;-sound in damages, and can only be recovered' by air appropriate'action. A man may' establish his right to freedom,-by bill in- equity, but mtisf recover damages for his false imprisonment' by' afction of trespass. In the case of Scott vs. Williams, 1 Dev. N. Carolina Rep. 376, the jury gave more than nominal damages, and the court of . errors and appeals refused a new trial, saying that the jury had a discretion to do so, under the circumstances of the casé.’ The’2nd point involves a mere question of practice, -and as'wé find’it, we will leave .it. The courts of different States may- fix'it differently, according to what is believed to be the best móde'of proceeding. In North Carolina, in the case just’referred'to,' damages other than nominal were' given by the jury, in the siiil' brought to establish the right to freedom, and judgment was given for'them. In‘Virginia, in the case of Coleman vs. Dick and Sal, 1 Wash. Rep. 233, the court of appeals held that different' persons' may unite as plaintiff’s in an action of trespass tp'try=a: right to feéedom, although, in common cases of personal tort they- cannot, for the court says, such actions are merely ficti-cious and aré 'very properly in this respect likened-to actions of ejectment, and if'many''persons may unite as plaintiff’s, to try a joint -right to land,;n'o good reason can be given why they may not unite to try a joint right to freedom. The same principle of practice ;is 'establisheds by the supreme court of Tennessee, in the case of Harris vs. Clarissa, 6 Yer. Rep. 227.

In the case of Matilda vs. Crenshaw, 4 Yer. 299, it is held that the consequence of considering a suit to try the right to freedom merely fictitious, and in the nature of an action of ejectment, is, that merely nominal damages are recovered, and that a second suit must be brought to recover the actual damages, to which the first cannot be plead in bar. We are satisfied with this case, we see no reason for changing the practice, but on the contrary, believe it to be greatly better, than to mingle up in one suit a contest for the right'of liberty, and damages for a violation of it.

On the 3d -and last point, wé are of opinion with the plaintiff in efror. We think the court erred, in saying to the jury that the plaintiff was entitled to recover as damages the value of his services' for the time he was wrongfully imprisoned, the necessary expenses incurred in recovering his freedom, and a reasonable allowance for his attornies fees. The error consists in the use of the word “entitled,’•’ which imports a legal right, and leaves the jury no discretion as to the amount of damages, but really makes it a matter of account, which we have just said, it cannot be. It must stand like all other cases of like kind, subject for the amount of damages to the discretion of the jury. It was proper in evidence to show the time plaintiff was falsely imprisoned, the value of his labor, the expenses he had been put to in obtaining his freedom, &c. And the Judge should have said to the jury, that these were legitimate things to be considered of by them in assessing the damages. •It is obvious, that in this point the court below was misled by the case of Matilda vs. Crenshaw. That was a case agreed, and by the agreement it appeared that the annual value of Matilda was $20, and that she had necessarily expended $50, in establishing her fredom, for which sum’s it was agreed judgment might be given, if the court thought she was entitled to recover. In as much as proof upon these points could have been heard in aggravation of damages, and the jury might have given the whole, the court determined it should be done, upon the case agreed, and judgment was given accordingly. But this is no determination that a jury is bound to make a full allowance. The defendant may introduce circumstances of mitigation, viz: His ignorance of the plaintiff’s right to freedom; his uniform kindness to him in sickness and in health, and many other things, which the jury would have the right to take into consideration, and would often prevent their giving, what might otherwise be considered the full measure of justice. The case will be reversed, and remanded for a new trial.  