
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Thompson v. Rogers.
    A recovery in trover for the conversion of certain slaves, was held to be a bar to an action of trespass for the forcible taking away the same negro slaves from the plaintiff's plantation; it having been proved on the trial of the action of trespass vi et armis, that on the trial of the action of trover, evidence was given of entering the plaintiff's plantation, and taking away the slaves by force; and it appeared that tbe damages were increased on account of the circumstances of aggravation attending the conversion of the property.
    Motion for a new trial. Trespass for entering tbe plantation of the plaintiff, with force and arms, and taking away sundry negro slaves. The defendant pleaded a recovery of damages by plaintiff in a former action, in trover, for the same cause. Replication, that .the former action and recovery was not for the same cause and issue thereon.
    The cause was tried in Chesterfield district, before Smith, J., who, reported, that on the trial of the action of trover the same evidence was given as was given in the action of trespass. The plaintiff was taken by a pretended writ of ca. sa., and afterwards discharged ; but while he was in custody his plantation was broken into in the night time, and the negroes in question taken off. It was not proved that the defendant was present at the taking, but he was the principal contriver of the plan, which was executed for his benefit.
    Smith, J., charged the jury in favor of the defendant. 1. On the ground, that he was not answerable for a trespass committed where he was not present. 2. On the ground, that the former recovery was a complete bar to this action.
    The motion for a new trial was argued on the last of April, 1810, by Blanding, for the plaintiff, and Witherspoon, for the defendant.
    For the plaintiff it was contended, the former recovery was not for the same cause of action, except as to part. The recovery in trover was..for the conversion of the negroes, i. e., for the value of the negroes, and not for the unlawful entry into the plantation of the defendant, and the violent manner of taking them off. The rule of law is, that if the same evidence was given on the former action, it will be a bar; but not if the same sort of evidence is given. Cited 4 Bac. Abr. 117. 3 Wils. 304.
    
      
      Note. See page 349. Cook v. Cook. 5 Bos. and P. 476, Woodward v. Waton. 3 Wils. 18. 1 Ld Raym.274.
    For the defendant, it was urged, that the finding of the jury ought to be held conclusive. The question, whether the damages in the action of trover, were given for the same' injury, the same cause of action, was a question of fact for their determination, and which they had rightly decided according to evidence. That those damages covered the trespass in question; for in trover the jury have a right to consider, and award damages for attendant aggravating circumstances, in the tortious taking of properly. The presumption is they did so in this case. Cited 3 Wils. Dyer. 4 Bac. Abr. 117. 2 Ventr. 169. 1 Com. Dig. 154. Cro. Car. Cro. Eliz. 667. Show. 126. 2 Mod. 100, 319.
   Bay, J.,

delivered the opinion of the court, May 4th, 1810, in substance agreeing with the argument of the defendant’s counsel.

Motion rejected.  