
    O’Neall & Chambers vs. The South Carolina Railroad Company.
    An action on the case for negligence occasioning loss of plaintiff's slave, is properly brought in the name of the owner at the time, although after the accrual of the right of action, but before action commenced, he had assigned his whole estate for the benefit of creditors.
    After the jury have found for plaintiff, very slight evidence will be sufficient to prevent a nonsuit.
    In an action on the case against a Railroad Company for negligence in transporting plaintiff's slave, whereby he escaped from his master’s service, the jury are not bound, as in cases where property has been destroyed, to give damages to the full value of the slave.
    BEFORE WARDLAW, J., AT RICHLAND, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “ Action on the case to recover damages for the loss said to have been occasioned by the improper transportation of three slaves of the plaintiffs. There were counts for negligence, for violation of duty, and in trover.
    “ A summary statement of the evidence will be found below:
    “The three slaves were all children of the same mulatto mother by white fathers. The oldest, Andrew, was darkest and had black eyes; he was a bricklayer and plasterer; the other two, George and James, reputed to be the children of a former owner, had blue eyes, and were very light coloured, although in them the African taint was plainly visible. George was a barber, and James a house painter. All were musicians, young, very likely and smart, and either of them. might have been sold for one thousand five hundred dollars.
    “ After the death of W., the former owner, who had bought the mother and her first child, his executors, in February, 1851, sold the mother and her three sons to P., for three thousand dollars, on condition that they should not be sent out of the State, and if practicable should be kept together.
    “In December, 1852, P. not finding them profitable, conveyed them, on like conditions, to the plaintiffs for three thousand six hundred dollars, of which the slaves themselves paid six hundred dollars. The plaintiff O’Neall, (who seemed to have been most active in this affair, and was spoken of as the owner,) let the three boys hire their own time, and control their own motions and contracts. In 1853, he exacted no wages from them. In 1854, they paid him about four hundred dollars under an arrangement between him and them that they should pay to him a fixed sum, keeping for themselves the surplus of their earnings.
    “In the latter part of 1854, O’Neall failed in his business as a factor and commission merchant. One of the boys conversed with him on this subject. About the last of December, 1854, or the first of January, 1855, the three boys disappeared from Columbia, and have never been seen here since. Tawley, who lived at Kingsville, saw them about two o’clock in the day, standing on the platform at Kingsville near the track of the South Carolina Railroad, shortly after a train had arrived from Columbia, and shortly before a train went towards Wilmington, on the Wilmington and Manchester Railroad. He had not seen them before on that day, (the date of which he could not precisely fix,) and never saw them afterwards. He knew them, but supposed that they were free, having never heard them spoken of as the slaves of anybody.
    “About two o’clock in the morning, January 12th, 1855, a gentleman who had come over the Wilmington and Manchester road from Kingsville, saw them in the boat which carries the railroad passengers across the Cape Fear River. After the ordinary delay of an hour or two at Wilmington, this gentleman went on to Weldon: but he did not think of their being runaways, and does not know whether they had come in the train with him, or whether they went on with him.
    
      “ Nothing further appeared concerning them.
    “ In a Columbia newspaper of January 25, 1855, the plaintiffs advertised them as runaways and offered a reward of three hundred dollars for their apprehension, describing them as of light complexion and straight hair. On the ninth of February, 1855, the plaintiff, B. O’Neall, made an assignment to Sondley and Lyons, in trust for his creditors, reciting his failure. The schedule annexed includes ‘ Sarah, George, James and Andrew — these three have run away. The assignment is in the largest terms, of all estate real and personal, bonds, notes and assets, of whatsoever kind and wheresoever situate or found. This suit was commenced February 17, 1855.
    “ A motion for nonsuit, grounded on this assignment, was refused.
    “In defence it appeared that W., the former, owner, had treated these boys with great indulgence, perhaps never deriving any profit from them, but sometimes placing them, or Andrew particularly, under the supervision of a marshal, who had once or twice flogged him for making no wages; that they had always lived in houses hired by themselves; that P. whilst he owned them had given to each a monthly pass for the town, but prohibited their going out of town without his special permission, and had never superintended their labor further than to require from each the payment of a fixed sum per month ; that the plaintiff O’Neall, treating them as before-mentioned, kept with them an account in his books — (whether he gave any passes or imposed any restrictions did not appear) — that they dressed well, except Andrew, when at work; that they belonged to the bands of volunteer companies, and wore on parade the uniforms of those companies ; that Andrew went with a troop of cavalry to Camden, and all of them, whilst P. owned them, frequently went into the country as musicians, by his permission ; that two of them were seen on the Charlotte Bailroad, going, as was said, to Chester or York; that some persons did not know that they were slaves, and some of the witnesses, who knew that they were, would, if not otherwise informed, have inferred from appearances that they were free; and that tome other slaves in Columbia were permitted to enjoy as large liberties as they did.
    “The defendant contended that-no agency of the South Carolina Railroad in the matter had been shown; and even if transportation from Columbia to Kingsville might be inferred, that the conduct of the plaintiffs had been such as to induce the agents of the road to believe either that the boys were free, or that the plaintiffs allowed them to be carried to Kings-ville.
    “I submitted to the jury all the questions of fact, and directed that if they found the defendant liable, they should find damages commensurate with the loss, which had proceeded from the defendant’s wrongful act not induced by the plaintiff’s conduct. In determining the extent of this loss, I thought that all the natural and probable consequences of an act, not itself directly injurious, might be considered, but not consequences remote, nor those which depended upon the will of a third person, whose agency was the immediate cause of the loss, and was not influenced by the act of the defendant. Under these principles I directed, attention to the difference, which, in certain views of the fact, might be between transporting the slaves to Kingsville, and transporting them to a place from which escape would be more certain and easy. If through the wrongful act of the defendant the slaves were lost, the defendant should pay their full value. If the wrongful act was likely to lead to the interference of other persons, by which it would be consummated in the escape of the slaves, then the whole consequences might be ascribed to this act; but a blameable interference with property, in itself harmless, did not, I thought, make a defendant answerable for a subsequent unconnected interference with the property by a third person, where the defendant had left it before any loss occurred, and at most had only given opportunity for the third person to perpetrate a wrong, not in any way incited by the defendant, nor reasonably to be expected by him. As for instance, if the slaves had been taken to Kingsville in the belief that they were in that neighborhood to act as musicians on a holiday, and then a passenger on the Wilmington and Manchester Railroad had afforded them facilities for escaping, it could not be said that the loss was ascribable to the South Carolina Railroad, much more fairly than it might be imputed to the owner of an omnibus which may have taken them to the depot in Columbia.
    “ The jury found for the plaintiff one thousand five hundred dollars, which I suppose was meant as the value of Andrew only, under the view which discharged the defendant from accountability for the other two because of the efficient contribution which plaintiff’s own conduct had made to the loss of them.”
    Plaintiffs appealed and now moved this Court for a new trial upon the grounds:
    1. Because it is respectfully submitted that his Honor, the presiding Judge, erred in law in instructing the jury, that iriasmuch as the defendants only transported the slaves, Andrew, George and James, on their cars to Kingsville, which is within the limits of the District of Richland, and the point of junction of the “ South Carolina Railroad,” and Wilmington and Manchester Railroad, they might well find for the plaintiffs a less sum than the full value of the slaves they thus lost.
    2. Because it is respectfully submitted that his Honor, the presiding Judge, should have instructed the jury, that if they were satisfied that the slaves in question had been wrongfully or blameably transported by the defendants on their railroad cars to Kingsville, or to any other point, so that they were enabled to make their escape and were lost to the plaintiffs, the defendants were liable to the plaintiffs for their full value as proved.
    
      3. Because the verdict of the jury was contrary to the law applicable to the case, and in its amount wholly against the evidence as to the value of the slaves lost.
    The defendants also appealed and now renewed in this Court, their motion for a nonsuit upon the grounds in the report stated, and want of proof of unlawful interference by defendants with plaintiffs’ property.
    
      Arthur, Tradewell, for plaintiffs.
    
      Desassure, contra.
   The opinion of the Court was deliyered by

Whitner, J.

Both parties appeal in this case, and in delivering the judgment of this Court, I will first dispose of the motion submitted by the defendants.

Their ground of appeal involves a question of law and one of fact. An assignment “in the largest terms including all his estate, real and personal,” it is said in the brief, was made by one of the plaintiffs for the benefit of his creditors. This assignment it is insisted, interposes an obstacle fatal to the maintenance' of the present suit. Though previous to the institution of the suit it was subsequent to the injury complained of. As present title was in no way drawn in controversy, or necessary to the cause of action, the mere change of property in the slaves could make no difference.

Did the claim for damages, being an action on the case, pass by the assignment, and render indispensable the introduction of another party not now before the Court ?

As a general principle a mere chose in action is not assignable at law. Com. Dig. Assignment, C.; 1 D. & E. 26; 3 D. & E. 174. It is a thing incorporeal, having no real existence or being, “ a bare right without occupation or enjoyment.”

Whatever be the reason on which the rule rests, as applicable to a case like the present, a suit for damages arising in tort, it is eminently proper. The right to recompense for such an injury in no way enures to creditors, and may be waived without just complaint on their part, and surely no one would entertain for a moment the idea that a debtor would forfeit his right to a discharge because of his waiver or release, or refusal to assign.

Assignments are creatures of legislation, and hence by statute rights are conferred and facilities afforded materially enlarging the common law doctrine.

In Smith vs. Cook, 2 McM. 58, it was held, that “in all cases where the assignee may sue in his own name, it is by virtue of some statutory regulation,” and a nonsuit was granted, suit being brought in name of one who was assignee of a bond given under the Trover Act of 1827, there being no provision conferring such authority. Again, in Coachman vs. Hunt, 2 Rich. 450, it was held, that where this authority was given, as under our Act of 1798, it was permissive only, and not compulsory, and therefore the assignee was permitted to elect, whether to sue in his own name or in that of the assignor. The Act of 1828, regulating the assignments of debtors, makes no such provision; hence, under it, the practice of using the name of the assignor. Such rules and usages are in conformity with the rule in reference to equitable assignments. The objection to plaintiff’s action in this point of view cannot-therefore avail the defendants.

The motion for a nonsuit is further pressed, because of the want of proof of any unlawful interference by defendants with the property of plaintiffs. The prerogative of withholding a case from the jury, for manifest reasons is to be exercised with great caution. These reasons press with still greater force when the jury have already spoken. Although the evidence was very slight, we cannot say the verdict was without proof. The jury are the proper judges of the sufficiency of circumstantial evidence to support the allegations made. Upson vs. Horn, 3 Strob. 110. As to the defendants, therefore, the verdict must stand.

Turning to the complaint made by the plaintiffs, it is evident that the first ground of appeal is founded in total misapprehension of the instructions to the jury on the point referred to. The correction is found in the Judge’s report.

This Court is wpll satisfied that a larger measure of redress is claimed in the second ground than can be accorded as matter of law. The true points of inquiry were carefully and correctly presented by the Judge on Circuit. The views submitted in the brief sufficiently indicate the principles involvéd and now approved by this Court. The assault made in argument, has failed to satisfy this tribunal of any inconsistency in the verdict of the jury, or that the sum found falls short of a full compensation for any wrong done to plaintiffs for which defendants should be held to answer. I do not propose, however, to go fully into these questions. The facts may have well warranted a distinction as amongst the slaves themselves in fixing a measure of damages. The jury may have reached the conclusion justly from the proof, that the appearance of two was well calculated to deceive the vigilant, and that negligence on the part of the Company could not be inferred. Again, a review of the facts shows an extensive margin as to the true value of just such property, as well as the quantum of damages to which these owners were entitled. The precise agency of defendants in bringing about the loss, the extent of that loss itself, not being an act amounting to destruction of the property, or as shown, even placing it beyond future reclamation; taking the whole case it was peculiarly for the-jury, and this Court w'ill only add its conviction that these plaintiffs have been liberally dealt with. In such a case it by no means follows, as has been contended, that the measure of damages was the full value of the property. Bailey vs. Jeffords, 2 Spear, 273, reaffirming Richardson vs. Dukes, 4 M’C. 156, well illustrates the distinction. In cases of tort where the property is destroyed, its value furnishes the measure of damages. In torts other than for the destruction of property, no specific measure of damages can he laid down. The cases cited certainly cannot help the plaintiffs in their present motion. In one of the cases already referred to, the slave had been killed by shooting, and the verdict of the jury was one dollar, and in the other a like verdict was rendered where a cow and hog had been killed. In Wise vs. Freshly and Veal, 3 McC. 547, a slave worth one thousand dollars was drowned through the guilty neglect of the defendants, and the verdict was for one cent. In these cases new trials were granted because the verdicts of the jury were manifestly capricious.

The motion of the defendants for nonsuit, as also the motion of the plaintiffs for a new trial, are each dismissed.

O’Neall, Wardlaw, Withers, Glover and Munro, JJ., concurred.

Motions dismissed.  