
    Matilda vs. Crenshaw.
    A person held in slavery, but who has recovered her freedom, may maintain an action of trespass for her labor and services, whilst she was so held in slavery.
    The judgment in which her right to freedom was tried and established, estops the defendant from controverting her right to wages from the commencement of that suit.
    When the defendant seeks to recover hire further back than the com, mencement of the suit in which her right to freedom is established, the defendant may again contest her right to freedom.
    A plaintiff whó has been held in slavery, is “imprisoned” within the exception of the act of limitations of 1715, ch. 27, sec. 9.
    Money which the plaintiff has necessarily expended in establishing her right to freedom, as attorneys fees, &e. are recoverable as part of the damages she has sustained.
    Tins was an action of trespass, brought by the plain-tiffin error, Matilda, against the defendant. Pleas — Not guilty, and not guilty of the trespass, See. within one year next before the commencement of this suit.
    The following facts were agreed: That on the 15th June, 1825, and long before, the defendant held the plaintiff to labor as his slave; on that day she sued out her writ in trespass against the defendant, returnable to the succeeding term of the circuit court of Sumner county, at which term, she declared against the defendant for an assault and battery and false imprisonment, to which the defendant pleaded-that she was his slave. Upon the trial of the issue, the jury found a verdict in favor of the plaintiff in error, and judgment was rendered in her favor, from which judgment an appeal in error to the Supreme Court was prayed and granted. That on the-day of April, 1827, final judgment was rendered in favor of the plaintiff. That from said 15th of June, 1825,- until said-day of April, 1827', the day on which the judgment was rendered in the Supreme Court, the defendant continued to hold the plaintiff to labor as his slave, but permitted her during that time to collect evidence, attend court, consult her lawyers, &c. It was also agreed, that her labor was of the annual value of $20, and that the said plaintiff, in prosecuting her said suit for freedom, was necessarily compelled to expend about fifty dollars. It was also agreed, that the pláintiff was received by the defendant from his father; that at her birth and afterwards she was reputed to be a slave for, life, and the property of his said father; that the defendant had no knowledge or information to the contrary, until the day said writ was sued out; that the plaintiff prosecuted said suit in forma pauperis, and that after she had recovered, she stated she was satisfied to live with defendant as she had done before. It was further agreed, that if upon the said facts the court should be of opinion that the plaintiff should be entitled to recover, judgment should be entered for her for the sum of $20 per annum, for so long time as the court should be of opinion the defendant was liable, and also for the further sum of fifty dollars, the amount expended by the plaintiff in prosecuting her said suit, or that the court should render judgment for such part of said sums or either of them, as may to the court appear lawful. But if the court should be of opinion, that the plaintiff is not entitled to recover either or any of said sums, then judgment to be rendered for the defendant.
    The circuit court pronounced judgment against the plaintiff, and the cause is brought to this court by an appeal m the nature ox a writ of error.
    
      D. Craighead, for plaintiff in error,
    assumed the following positions, and commented upon them.
    1st. That the first suit, in which nominal damages were recovered, was no bar or estoppel to a second recovery: the first was merely a mode to try the question of sMve or no slave; and if the plaintiff succeeded, a second' suit could be brought to recover damages or hire: that this case was analagous to the action of ejectment, and the action for mesne profits after it: the first was merely to try the right, the second to recover damages after the establishment of the right.
    2d. That the act of limitations could not he a bar to the plaintiff’s action, as she was held in slavery, and consequently imprisoned within the meaning of the exception contained in the act of 1715. And
    3d. That the fifty dollars, spent by Matilda in prosecuting her action, for counsel fees, &c. were a part of the damages sustained by her, and recoverable in this action. Staats vs. Executors of Ten Eyck, 3 Caine’s Rep. Ill: Pilcher vs. Livingston, 4 John. Rep. 1: Bennet vs. Jackson, 13 John. Rep. 50.
    
      G. S. Yerger, for defendant in error.
    Two questions present themselves for decision in this case: first, can the action be sustained by the plaintiff? second, if it can, is she entitled to more than nominal damages ? I contend that the action cannot be maintained for any damage sustained since the commencement of the original suit, and prior to its determination: ,t
    In settling this question, (if in truth it is not already settled,) the court is not to be governed, I apprehend, exclusively by common law principles: it is true, our ancestors brought with them the common law,' but a number of its well settled rules were wholly inapplicable to their then condition; such parts of it, as from the nature 0f 0ur institutions and form of government, could not be applicable, were never adopted, bee act of 1778.
    Slavery was introduced into North Carolina at an early period, and the judicial history of that state does not furnish a solitary instance of a suit of this kind having been ever attempted to be sustained, where the defendant had reasonable grounds to believe that the plaintiff was his slave.
    The North Carolina Reports furnish cases, where persons detained in slavery have sued for and recovered their freedom, but they furnish no case of a suit brought by the plaintiff after a judgment for him to recover damages, for the detention during the pendency of the suit. The absence of any attempt to sustain a suit of this kind in a state where suits for freedom are daily brought, is surely a strong argument against it.
    The case would be very different, were the plaintiff detained with full knowledge on the part of the defendant that she was free: in such case, the action would not only be sustainable, but exemplary damages ought to be given. -
    The rights of our citizens would be much jeopardized, if they are obliged, the moment a suit is brought by a presumed slave in their émployment, to turn him loose upon the world, to let him be his own master, to go to Canada or Nova Scotia or any where else, where he could never be heard of; or to detain him at the peril and risk of heavy damages, in case the slave should eventually succeed.
    The policy and reason of the law, as I contend it is, is evident; and it seems to me the Legislature have explicitly recognized it to be the law, by the act of 1817, ch. 103, by which the master is permitted to detain the person of the plaintiff in his custody, upon giving bond and security not to run him off, &c. In Virginia and Maryland, this is considered to be the law. Call’s Rep. 3 Harris and M’Henry, 439. No argument can be grounded upon the 17th section and 1st article of the bill of rights, “every man, for an miury done him m his lands, goods or person, shall have remedy by due course ot law.” This clause still leaves it to the Legislature and the courts to say, what is such an injury as will afford the party a remedy by due course of law. We must still resort to the law, to know whether for the injury complained of, it affords a remedy; if it does not, it is not such an injury as can be remedied by law. If the action can be sustained at all, nominal damages can only be recovered. The same reason, which established the rule that nominal damages could only be recovered in the original suit, will apply to this; in both cases, the defendant is presumed not to know that the plaintiff is free, and it is not until judgment is 'pronounced, that the fact is made certain. 1 Bibb’s Rep. 422.
   Catron, Ch. J.

delivered the opinion of the court.

Can a person holden in slavery, but who by a suit has established her right to freedom, bring a second suit to recover for profits, produced by her labor, to him who held her as a slave ?

Is the first suit in winch nominal damages were recovered, an estoppel to a second recovery? Both the actions are in trespass vi et armis. But the first for freedom tries the title, as aneject ment in cases of land; slave or no slave, is the issue, which has never been holden in this State to involve the question of hire. We borrowed the form of action from our sister States, especially Virginia, where the same rule of practice prevails. Pleasants vs. Pleasants, 2 Call’s Rep. 277, 293, 299. That the slave cannot sue the master, is a general rule; a suit for freedom tries the fact whether the plaintiff is a slave. This established by a verdict and judgment, concludes the defendant to the suit for freedom, from controverting the right, as in cases of ejectment, where trespass quare clausum fregit is brought to recover mesne profits. Bull. N. P. 87. But 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 because of previous abuse, are claimed, the controversy will again result in one of title. This is in analogy to the rent for mesne profits of land, in which case the recovery in ejectment is conclusive evidence of title from and after the commencement of the action; before, the right has not been adjudged. B. N. P. 87: Adams, 333-4-5. The defendant, Crenshaw, being estopped to controvert the freedom of Matilda, or to say he rightfully held her to service from and after the commencement of the suit for title, -and her capacity to sue having been established; the next question is, howmuch can she recover? The defendant has pleaded not guilty, and not guilty one year before the commencement of this action. On these pleas, a case agreed is made up, which submits the right of the parties, with the whole law of the case, to court.

By the statute of limitations of 1715, actions of trespass on the person, and of false imprisonment, must be brought within one year next after the cause of action accrued. But the 9th section saves the right to sue, to persons imprisoned, until one year after they are at large. The act of North Carolina is a substantial copy from the 21 Jac. I, which had no reference to a state of domestic slavery; yet a person held as a slave, is controlled and compelled to act by the will of another, and is in fact and law, imprisoned, although not within the four walls of a jail. That Matilda was imprisoned, and falsely, the defendant is estopped of record to deny. Co. Litt. 253: Bull. N. P. 22. Until he ceased to hold and control her as a slave, she was imprisoned, and the statute did not run. Before the expiration of one year after she was set at liberty, she brought the present action. Prom the 15th of June, 1825, to the day of April, 1827, she is entitled to recover at the rate of $20 per annum.

Matilda spent fifty dollars in prosecuting, her suit for freedom. It is admitted the expense was necessary. Can this be recovered in the present action? Nothing is better settled than that things may be laid in aggravation of damages, and that the whole damage sustained by the tort, may be recovered in actions of trespass vi et armis, or trespass quare clausum fregit. Bull. N. P. 21, 89: Adams, 332-3. The fifty dollars will be added to the wages; the judgment below be reversed, and judgment entered for plaintiff.

Judgment reversed.  