
    John O. Sanders vs. Alex. J. Anderson.
    
      Jurisdiction — Specific Delivery of Slaves — Compensation— Damages.
    
    The question, whether the Court has jurisdiction to decree the specific delivery of slaves to any one but the absolute owner, reserved.
    In decreeing compensation for the loss or injury arising from a trespass, as the • unlawful taking and detention of slaves, the Court confines itself to giving compensation for the actual loss or injury j it cannot give vindictive, speculative or possible damages. »
    BEFORE WARDLA'W', CH.S AT COLLETON,
    FEBRUARY, 1857.
    Wardlaw, Ch. On November 26, 1855, plaintiff'and defendant entered into articles of agreement, whereby the defendant, Anderson, covenanted to sell and convey to the plaintiff, Sanders, a plantation on Ashepoo, named Auckland, and some stock thereon, in consideration of $6,000, payable in a special mode on January 1, 1856 ; and if the purchase of the plantation were completed, to hire to the plaintiff, for the term of five years, beginning January 1, 1856, and in consideration of $1,000 a jqar, payable annually, the slaves, Andrew, Elcy, John, Tom, Quash, Daphny, Molly, Daphny and infant, Cato, Handy, Clarista, David, William, Israel, Sally, Louiza, Letty, Eliza, Billy, January, Monday, and Toby; and the plaintiff, Sanders, covenanted to pay the purchase money, and hire aforesaid, to the defendant, and “ that he will feed, clothe, and otherwise treat the said negro slaves in a kind, humane? and proper manner; and should the said John 0. Sanders, at any time during the said five years, depart this life, or treat or manage the said slaves, or any of them, cruelly, or neglect to furnish them, or any of them, with proper clothing, food, houses, bedding, or medical aid in sickness, then and in such case, at the end of the year the said A. J. Anderson, his executors or administrators, shall have the right to end this agreement, so far as the hiring of the slaves forms a part of it, and take possession of the same.” It was further agreed, that the agreement to hire should end on the failure of the plaintiff to pay the hire annually.
    In pursuance of the agreement, the plaintiff paid the $6,000, and defendant conveyed to plaintiff the plantation, and delivered to him the slaves so hired. On January 1, 1857, plaintiff paid to the defendant $1,000 for the previous year’s hire; and afterwards, on the same day, the defendant retook the slaves from the plaintiff’s plantation, and he still retains the possession of them.
    The plaintiff, by his bill, filed January 6, 1857, claims specific restitution of the hired slaves, and compensation for the loss sustained by him from defendant’s detention of them.
    The defendant, in his answer, insists that the plaintiff broke, and consequently ended, the covenants concerning the hiring of the slaves, by denying defendant’s right to go upon the plantation to ascertain the good or ill-treatment of the slaves, and by ill-treatment of the slaves, especially in the matter of clothing.
    A preliminary question arises concerning the jurisdiction of this Court in the premises, not suggested by the pleadings, nor urged by defendant’s counsel, (for he expressed desire that the Court should entertain jurisdiction,) but necessarily involved in the allegations and proofs. Will the Court decree specific .delivery of slaves to one who is not the absolute owner, and claims merely an interest for years in the slaves? The case is novel, if not in principle, in the application of the remedy by this Court. Since the case of Young vs. Burton, McMul. Eq. 255, the doctrine has been firmly established, and approved by the profession and the people, that a bill may be maintained in this Court for the specific delivery of slaves withheld from the possession of the rightful owner. The hirer of slaves for five years, or any other term, is as much the owner of the slaves for the term as the absolute owner is for an unlimited time; and he may have as strong reasons for claiming restitution from a wrong doer, as an absolute proprietor can present. The absence of precedent on the particular point is sufficiently explained by the notorious fact, that hiring of slaves is generally for a single year; and that from the infrequent sittings of the Court, and its course of procedure, it is commonly impracticable to obtain the remedy of specific delivery within a year. In the present case, the hired slaves had heen trained by long employment to the cultivation of the particular plantation of plaintiff; the plantation could not he cultivated to the same extent, nor with proportionate profit, by fewer or other slaves; and the plaintiff was not able to supply the requisite number of workers, by hiring elsewhere, without great loss and inconvenience. I adjudge that the plaintiff may prosecute his remedy in this tribunal, and I proceed to consider the defences.
    jyVhen theparties met on January 1,1857, defendant asserted the absolute right to visit the plaintiff’s plantation, to ascertain by personal inspection whether the slaves were well treated as to clothing, houses, &c., arid avowed his resolution, if the negroes stayed, to visit them on the plantation once a month, or once a week, if he thought proper; the plaintiff denied the right of defendant at his pleasure to break the plaintiff’s close, and threatened an action of trespass if it were attempted, but expressed his willingness to give the defendant license to visit the plantation. There was a difference of opinion between them then, still manifested by their respective counsel, on the question whether the agreement contained an implied license to defendant to visit when he saw fit the plantation of plaintiff, for the purpose of ascertaining if the terms of the agreement as to the treatment of the slaves were carried out. If I supposed the plaintiff was wrong in his law, I should still be disinclined to hold this error as amounting to an infraction of his covenant, involving a dissolution of the agreement, especially while he said he was willing to permit the defendant to visit the plantation; in fact, however, I think the plaintiff’s legal views were sound, and that by the stipulations of the agreement, the defendant had no right, independently of the plaintiff’s permission, in particular instances, to invade the homestead or inclosure of the plaintiff. The peace of society, and the protection of proprietary rights in realty, require that the dominion of the owner should be paramount and exclusive. In mortgages of personalty, it is considered necessary to incorporate a covenant of the mortgagor, that the mortgagee may enter on the close of the mortgagor, to seize the chattels, when the conditions are broken. If, in a case like the present, the owner of the soil, who had hired slaves, and covenanted for their humane treatment, should perversely refuse a particular application of their owner to visit them at the place of their employment, this' would justify Courts in drawing conclusions, unfavorably to the hirer, concerning the treatment of thé slaves; but it would be a great heresy, leading to communism, to hold generally that the owner could break at discretion the close of the hirer. There is nothing in the stipulations of this agreement which extends the rights at common law of the defendant on the soil of the plaintiff; and I do not regard the plaintiff’s challenge of the defendant’s claim in this respect as any infraction of his agreement. '
    Concerning the treatment of the slaves hired by the plaintiff, the proof generally is, that he is a kind, even indulgent master; that he furnished sufficient food for these slaves; that he improved their habitations by building new houses, and repairing the old; and that the slaves continued in good health. The only point upon which his humane treatment has been assailed, is in respect to the clothing of the slaves. Some of the witnesses said, that the Georgia kerseys in which he clad the slaves, were too thin for workers on a rice plantation, and perhaps on a cotton plantation. It seems that Auckland is high up on the Ashepoo, and is a mixed plantation of rice and cotton,'where it is practicable in severe weather to remove the hands from the rice ditches to other employment. Most of the witnesses testified that the plaintiff clothed these slaves snugly — that he did as much in this respect as his neighbors did to theirs, and fully as much as the defendant had been in the habit of doing towards these same slaves on the same place. . This portion of the defence is further discredited by proof, that in July or August, 1856, defendant avowed his purpose to press his pecuniary demands on plaintiff, with the view of procuring possession of the slaves, and without reference to their treatment. I am of opinion that the weight of the evidence as to treatment of these slaves, even as to their clothing, is in the scale of the plaintiff. Something was brought out in the evidence which hardly deserves serious consideration, about the refusal of the plaintiff to receive the negroes back. The negroes were never tendered back to plaintiff, although on some offer to resume possession of them made on January 2nd, he seemed to decline, sa3dng that defendant had interfered with his business, and would do so again; but in a few hours afterwards, he offered to defendant, through the son of the latter, to receive the negroes again, upon certain conditions not very unreasonable; and on January 6th, he filed this bill. I conclude that the plaintiff is entitled to reliéf. /
    It is ordered and decreed that the defendant forthwith restore and deliver to the plaintiff, the slaves enumerated in the agreement; and that the Commissioner inquire and report as to the extent of loss sustained by the plaintiff, on account of the capture and detention of said slaves by the defendant.
    The Commissioner submitted the following report:
    The order of this case requires the Commissioner to ascertain “the extent of loss sustained by plaintiff, on account of the capture and detention of said slaves by the defendant.” On the investigation of this subject, the opinion seemed to be entertained by the defendant’s solicitor, that the opinions of the witnesses as to the loss was not sufficient, and some other evidence less conjectural was required. This is true only so far as rests upon the supposition, that such other evidence is possible to 'be had. That evidence is the best in any case, which is all the evidence possible under the circumstances; and if from it a rational conclusion can be drawn of the subject investigated, it is germain. Any other view in this particular case would result to cutting off all redress for a manifest injury. For if the damages now under inquiry must be shown by proof positive, and not by what competent witnesses might suppose would be the natural and proximate result of the act complained of, then the plaintiff suffers without, redress. Positive evidence of the actual loss in this instance is out oí the question, since there are too many accidental circumstances intervening that preclude all conclusions, other than those drawn from probabilities. And if such conclusions, though reasonable, are worthless, the plaintiff, who has already been adjudged, wronged and injured, is without substantive relief, and thus it was idle to have referred the matter. The Chancellor who heard the cause, understood the nature of it, knowing what evidence only was likely to be had, and referred it to be investigated with just testimony, necessarily. Under this apprehension, the Commissioner has gone on to a conclusion, and submits the following as the result:
    That to remove one-half the force from a plantation in the month of January, and return them three months and a half after, must eventuate in a very serious loss. The time they are absent is the season set apart for the preparation of the soil, and planting, and is beyond question the most laborious, and the most important portion of the year. Much depends on the order the land is in, and more in getting the seed in at a proper time; and this lost, can rarely be recovered. Every planter is aware, that skill in the culture must fail to compensate for imperfect, or no preparation of the glebe, and being behind time in planting. One man may do better under such circumstances than another, still no man can lose better than one-fourth the year’s work, and hope good results. The Commissioner, therefore, is inclined to follow the conclusions of most the witnesses, that a half crop, and no more, should be fairly calculated upon. The proof is, that the plaintiff could not, nor did not, attempt to plant full to the hand, having cultivated not more than 28 acres of cotton in addition to the rice crop, while he could as easily have attended 70 or 80 acres more. This being so, and it further appearing that the “rice portion of the crop was an average one, both as to the number of acres planted, and the yield, plaintiff’s loss results.primafacie from the loss of the cotton crop. For though there is some evidence that the plaintiff was engaged in re-building his dam to the rice Iánds, and his work was interrupted by the removal of the hands, still no evil result is the consequence of it. The rice alone could have suffered from the incompleteness of the dam, but it did not, if we may judge from the yield. Admitting, however, that this was so, the unfinished dam was not the result of the removal of the force, because it is satisfactorily established, the dam in any event could not have been finished under two years. So, too, as regards the proof, that plaintiff was delayed in sending his crop to market; no loss has been attempted to be shown, and. none flows necessarily from it. The delay, indeed, seems to have benefitted the rice at least, since the market for rice steadily improved as the season advanced. As to the cotton, the evidence is, that it was housed, but in preparing for market, untouched at the date of the removal of the hands. It certainly could not have been got ready under the most favorable circumstances till some, time after, had all the force been present, and at what probable time is not shown. Neither is there any proof, that haa it been shipped when the price was ruling high, what was the usual rule observed by the plaintiff in the sale of his crop, whether he advised a sale so soon as it reached a mart, or held on for still higher rates. All we know, is, that the crop of 1856 is still unsold, and the season was the most extraordinary in the history of the long cotton market. Whether the plaintiff attempted a sale, and was unable t.o do so, or whether, had he sold, the loss on sales of his cotton would have been greater than the advanced price realized on sales of rice, is without any evidence whatsoever. This being so, the Commissioner submits, ’tis in vain to push the inquiry as to loss any further in this direction. What then is the extent of plaintiff’s loss as to the cotton crop of the past year ? Mr. Burrell Sanders, a long cotton planter, and the most successful planter in the district, estimates the loss in this wise: that the price he would ask for the force removed at the time, and for the time, away, would be just the half he expected to make by the whole force for the year, estimating this sum by the amount realized from previous year’s crops. In other words, as the Commissioner understood, he would require half the amount of an average crop as the equivalent of what he conceives would be his loss under the circumstances. Mr. Joel Larisey, another long cotton planter, the plaintiff’s immediate neighbor, and well acquainted with his place, says that the rice lands on the same were heretofore cultivated with half the number of plaintiff’s force, and therefore plaintiff could have attended some eighty acres of cotton, in addition to the rice; which eighty acres could have made the past season sixteen bags of long cotton. The Rev. P. G. Bowman, a long cotton planter, of some five or six years experience, also acquainted with the lands, is of the opinion the lands could not have been prepared after the return of the hands in the middle of April, consequently as for cropping purposes, they were valueless for the remainder of the season. Mr. H. Ferguson, a rice planter of some experience, says, that the rice lands of the plaintiff were in fine condition in the Spring of 1857, the cotton lands on the contrary in awful bad order; and that sixteen hands, (or half plaintiff’s forces,) are unequal to the task of attending both. This is the evidence, on which the extent of loss is to be predicated. In scrutinizing the opinion of these gentlemen, it appears to the Commissioner, that their estimates of the loss are the same, differing only in the manner of arriving at their several conclusions. They each are under the conviction, that plaintiff can only be compensated by giving him such a sum as, added to the crop of the past season, will foot it up to an average one. That an average crop could have been made, had there been no molestation on the part of defendant, and all less' than an average one is the extent of plaintiff’s loss. Nothing in this is very extravagant; nor such conclusions counter-evidenced by the predicate of the fact that a full rice crop has been made. Because half plaintiff’s force was adequate to the culture of the rice, as shown by the evidence, and as certain that their labor had been directed to this end, since the rice land was in fine condition, and the cotton land shamefully neglected in the Spring of the past year. While Mr. Burrell Sanders estimates the loss by the expression, that he would ask just the half of an average crop for the time the hands were away, Mr. Larisey expresses in saying, that the force removed was capable of preparing and attending SO acres, or half the crop ; and Mr. Bowman, that the hands, after their return, were valueless as for planting purposes. All tending to the very same conclusion, that a crop from their labor was out of the question. Compare their conclusions thus variously expressed with actual results, and it appears they are greatly at fault. For instance, the plaintiff did make the attempt to plant with these hands, and late as it was, succeeded in getting in twenty-eight acres of cotton, a fraction over a third of what he could have attended, and from which he made three scant bags, against eleven bags the year previous, and nineteen in 1855. The consequence is, that the crop of 1857 is twelve bales short, when their opinions are that it should be set down'at fifteen, the average, taking the crops of 1855 and 1856 as a guide. No injustice will result to defendant in taking these years from which to average, since though it be true that in 1855 plaintiff’s force was larger by two hands than in 1856, still it is equally true that only fifty acres were in cotton that year. So, too, as to the year 1856, when but eleven bales were made, the evidence is, that that season was a most disastrous one for . cotton in plaintiff’s vicinity, which the small yield' confirms. Twelve bales of three hundred pounds, which is the amount of a long cotton bale, is what is the extent of plaintiff’s loss in this particular, so far as the Commissioner can judge. What this is presently worth, presents a new difficulty. The proof is, that such cotton as plaintiff plants was worth the past season fifty cents per pound, and early this season twenty-seven to thirty if-properly piepared. Taking it for granted that as the plaintiff had the necessary fixtures, as was proved, for preparing the cotton, and as a prudent man that he did so, he is entitled to receive the highest stated price for it. The Commissioner, therefore, sets down the loss at twelve bales of cotton, at thirty cents per pound, equal to $1,080, and to which should be added any reasonable amount paid to his solicitors, which is a loss very necessarily incurred in redressing himself. Some evidence was introduced, going to show that, from first of May, and some three months thereafter, the plaintiff had employed some four or five men splitting staves, as also that the provision crop was as large as usual. If this be intended as a set-off to the present damages, the Commissioner does not see the force of it. For though it be true the hands were so employed, it does not appear whether there had been a sale of the staves, and if there had, whether the profits of sale exceeded the value of the timber destroyed. So, too, as to the provision crop, the defendant can have no interest in it, other than to show it did not fall below an average one.
    The Commissioner afterwards amended his report by stating that three hundred dollars would be a reasonable counsel fee for complainant’s solicitor.
    The defendant also excepted to the report of the commissioner, on the grounds:
    1. Because the extent of loss ascertained by the commissioner as sustained by plaintiff, is speculative merely, and as such should not be sanctioned by the Court.
    2. Because', if the loss of $1,080 by plaintiff, as the value of the twelve bales of cotton, is a legitimate conclusion from legal evidence, the expenses attendant on the preparation, forwarding to market, and sale of twelve bales of such cotton, should be deducted therefrom, to arrive at plaintiff’s actual loss.
    3. Because, the commissioner should have taken into his calculation of loss, (if such calculation 'was legitimate,) the fact in evidence, that for three months and longer, all the male slaves hired from defendant, were employed in getting out staves; and if defendant was charged with the entire loss of twelve bales, he should have been credited with the profits made by these slaves in this time, or with the general value of their services for this period.
    
      4. Because commissioner recommends that the plaintiff be allowed the reasonable amount paid his solicitor. •
    Wardlaw, Ch. On 'hearing the Commissioner’s report in this case, and the argument of counsel on the exceptions filed by plaintiff and defendant: It is ordered, that the exceptions taken by plaintiff be overruled, and those taken by defendant be sustained; and that it be referred to the commissioner to report the actual loss sustained by plaintiff, from the capture and detention of the slaves mentioned in the pleadings.
    The complainant appealed on the grounds:
    1. Because, it is respectfully submitted, that the loss of complainant, as assessed-by the commissioner, is compensatory and remunerative, within the rule laid down by this Court in such cases, and well warranted by the evidence submitted to the commissioner; and not vindictive, as held by the Chancellor.
    
      2. Because the matters referred by the decree to the commissioner, are questions of fact; and he having ascertained the same, his report is in the nature and place of a verdict of a jury, and if warranted by the testimony submitted to him, should be confirmed by this Court.
    3. Because the order of the Chancellor is, in other respects, contrary to law and evidence.
    
      Gam, for appellant
    
      Tracy, contra.
   The opinion of the Court was delivered by

Ward raw, Ch.

In this case, the defendant’s counsel so far from contesting the authority of the Court to decree specific restitution of slaves to the owner of them for a term of years only, expressed desire that the Court should entertain jurisdiction of the cause. The consent of the parties to a litigation simply will not confer jurisdiction on any tribunal, where the matters in controversy are foreign to its general course of adjudication; but if, as in this case, the general subject be within the authority of the Court, as commonly exercised, and the question be merely whether or not a particular case be exceptional, the Court may well proceed to judgment on the concurring desire of the parties, without being astute to find reasons for evading the labor of trial and decision. The circuit decree exhibits the opinion of the Chancellor uninstructed by argument on the jurisdiction of the Court in the special case, but this Court, anxious to avoid even the appearance of usurpation, reserves its opinion whether any but the absolute proprietor of slaves be entitled to the peculiar remedy of equity of specific delivery or execution, refused generally as to personalty, and not hitherto applied as to slaves except in behalf of the complete owner, nor as to him where damages assessed by a jury would afford ample redress. Certainly there is difficulty in distinguishing the case of the owner of slaves for life or for years from that of the absolute owner, as affording grounds for refusing our peculiar remedy to partial proprietors and extending it to absolute proprietors. But a portion of us here would have preferred that the bill had been dismissed by the Chancellor for lack of jurisdiction, although we do not feel obliged to dismiss it in this appellate tribunal when no party proposes such course. We decide to decide nothing, or in other words, to exclude conclusion as to the jurisdiction of equity in this case.

The only matters presented to us by the appeal affect the extent of compensation to which the plaintiff is entitled for the tortious taking from his possession by defendant, and the unlawful detention for three months and a half, of certain slaves hired by plaintiff at the rate of one thousand dollars a year. The primary decree ordered the commissioner to in- , quire and report as to the extent of loss sustained by the plaintiff on account of the capture and detention of said slaves by the defendant.” The commissioner, on speculative considerations as to the diminution in the extent of crop which plaintiff might have made, allowed to the plaintiff $1,080, besides recommending that the plaintiff should have $300 more for fees paid to his counsel. Defendant’s exceptions as to this mode of ascertaining speculative or vindictive damages, presented in various forms, were sustained by the Chancellor, and the report was recommitted to the commissioner, with instructions to ascertain “the actual loss sustained by plaintiff from the capture and detention of the slaves mentioned in the pleadingsand from this judgment defendant appeals on several grounds, not necessary to be specified, asserting in substance that compensation to plaintiff consists in remuneration for'his possible losses. The substantial question is whether equity in such case should confine itself to compensation for loss, or pursue vagaries in the wilderness of damages through which juries wander. Damages are not commensurable by rule, and cannot be adjusted satisfactorily in a tribunal proceeding for compensation and not for revenge or punishment As to such matters, juries have a discretion undefinable by strict rules, but it is contrary to the great principles of right and liberty that discretion should be unnecessarily extended. The Chancellor acted'on the judgment in Bird vs. Rail Road Company, 8 Rich. Eq. 57, so obvious in principle to common sense and to freedom as to require no further illustration. There the Court perceiving that the defendant had derived no actual profit, and that plaintiff had suffered no loss except from the trespass and tort of the defendant, and that a jury is the fit means of ascertaining damages strictly, said : “ the object is to ascertain the amount of loss which the plaintiff has sustained by the wrongful acts of the defendant.' Th'e plaintiff, by applying to this Court, waives all claim for vindictive damages, and the actual injury and loss may probably be as well ascertained before the commissioner as by subjecting the parties to the delay and expense of a trial at law.” All the objections which overrule the allowance in this Court of vindictive damages apply with equal force to the allowance of damages which are speculative, and not proceeding proximately as consequences from the acts of a wrong doer. The organization of this Court is adequate for the ascertainment of actual loss, not for the assessment conjecturally of possible profits and damages. I suppose on the authority of Harrison vs. Berkley, 1 Strob. L. 525, which is a careful review of the cases on the subject, that the Court of law would not sustain a jury in finding damages remote and speculative, and not proceeding as proximate consequences from the acts of the wrong doer. I am more assured that if in this Court we allow under the name of compensation possible damages for an unplanted crop, we might as safely proceed to give damages for a gold mine which might have been found by a laborer, or for any other thing suggested in the visions of Eastern romance.

It is probable that the defendant, in this case, .acquiesced in the jurisdiction of the" Court, as to the specific delivery of the slaves, on the notion that if he were decreed to restitution of the slaves, he would be compelled only to compensation for his improper detention of them. He never meant to waive a doubtful question of jurisdiction here, and at the same time to subject himself to the highest damages for his wrong that could be awarded elsewhere. He says, practically, I submit to your authority to determine the question as to the rightful possession of the slaves, provided you pursue your procedure in compelling me to compensate for my wrong, and not to punish me in unfettered discretion for conjectural and unfor-seen damage to my adversary.

We find reasons for supporting the Chancellor’s judgment. He did not mean, and in his oral judgment expressed the contrary, nor do we mean that plaintiff should be restricted to an aliquot portion of the hire he agreed to pay for the year. Possibly, in connection with the purchase of the plantation, plaintiff obtained the negroes on hire at undervalue. His actual loss is the value of the hired slaves for the time they were out of his possession. It is suggested that “positive evidence of the actual loss in this instance is out of the question.” Why? It is the daily practice of the Court to obtain the value of hire of slaves in the possession of trustees, or of persons not entitled to possession, on estimates of witnesses of what the slaves would bring on the block at auction, or of their annual worth under all the circumstances of the case. There is no special difficulty in this case.

It is ordered and decreed that the appeal be dismissed, and the decree be affirmed.

\

Dunicin and Dargan, CC., concurred.

Appeal dismissed.  