J. W. Ellis vs. S. M. Welsh.
The degree of care and vigilance, in ascertaining thdt a negro, representing himself to be free, is not a slave, which the law exacts of carriers dealing with negroes as passengers, is increased in proportion to the facilities of escape, which the carrying or transportation affords; for instance, the law does not exact the same high degree of care and vigilance from a Rail Road Company 'conveying a negro as a passenger from one place to another within this State, which it exacts from the master of a vessel transporting .one from a port in this State to a free State.
In an action on the case by the owner of a slave against the master of a vessel for a negligent transportation of the slave, who -represented himself to be free, from Charleston to Philadelphia, whereby the slave escaped and was lost to the plaintiff, it was held, that the Circuit Judge was correct in charging the jury, that if the defendant knew that the consequence of the escape of a slave to one of the free States, was practically the same as that of an ’ escape to England, where a slave coming within the realm is ipso fado free, the law exacted from the defendant ‘ the utmost care and vigilance that he should not give passage to a slave into a free State.’
And it -vvas further held that the jury, having found .for the plaintiff, adopted a proper measure of damages, when they found a sum. equal to the value of the slave, and the value of his hire from the time of the loss.
Before Frost, J., at Charleston, October Term, 1850.
The report of his Honor, the presiding Judge, is as follows :
“ This was an action on the case, with many counts in that form of action, and one in trover.
“ The plaintiff, residing in Salisbury, North Carolina, was the owner of a slave, Morris,, whom he hired to F. A. Hoke, keeper of the American Hotel in Charleston, at $150 per annum. Morris was intelligent and capable as a servant, and worth at least one thousand dollars; He had been employed by Hoke for six months, when he disappeared on the 13th July, 1848. It was proved that, on that day, he took passage in the steamer Columbus, and set off from Charleston to Philadelphia, where- he arrived. The defendant was master of the Columbus for that trip. The suit was brought to recover damages for the loss of Morris.
*469“ William Kelly had been at Hoke’s, and knew Morris. They were fellow passengers in the Columbus. Kelly did. not recognize Morris aboard the vessel, though he conversed with him every day. Morris was on deck all the time ; four or five other colored persons were passengers, named Houston, and said to be free. Morris was noticed by Kelly to be the first to go ashore. The steamer arrived at Philadelphia, Sunday. Kelly went into the country. ’ Tuesday after, he heard a fugitive slave had arrived in the Columbus, and his recollection of Morris was immediately revived. He went to the city and requested a relative to recommend to him a police officer. They went to one, who said nothing could be done without proof of property, and a power of attorney from the owner. Kelly saw the defendant, and told him that he (K.) knew the fellow very well. The defendant asked Kelly what was the penalty for bringing away Morris. Kelly said a severe one. Defendant said he would not come back. Kelly told him not to do that; being convinced that Welsh was innocent of any wrong in taking Morris. Welsh cursed the telegraph office; and said, if it had forwarded the dispatch in time, he could have put Morris in jail in Delaware ; said that, as soon as the steamer reached the wharf, enquiry was made from the crowd on the wharf, if the captain was aboard. Welsh asked “ if any news.” He was answered, “ yes, there is a telegraphic dispatch of a fugitive slave aboard.” He said the case then was hopeless. Welsh said Morris came down to the vessel, in Charleston, with free papers, and he told Morris to go to the office, and Baker (the agent,) and Morris came back, and Baker said “ it was all right.” Kelly said the telegraphic dispatch sent on by Baker was not received until Monday. He did not see Welsh make any exertion for the capture of Morris. It would have been unavailing, since Welsh had not the requisite proof and authority. When Kelly went to the steamer on Tuesday, he found Baker there.
“ H. F. Baker — Has lived in Charleston four years, and was the agent of the Columbus in 1848, and as long as it remained a regular packet between Charleston and Philadelphia. The *470carrying of passengers was the chief business ; many free ne-groes went. The day before the Columbus sailed, a man came to his office, in company with Welsh ; and Welsh said he would have nothing to do with negroes. He, Baker, looked at Morris’s papers; they appeared to be genuine, as he supposed. They purported to have been made out by a magistrate in North Carolina, named Chambers. He sent Morris away, and told Morris he would not be taken as a passenger, unless he produced a white man to certify that the papers were genuine, and he, Morris, the person named. Baker read the papers; a seal was attached ; and they certified that Thomas Chambers had been born free, in North Carolina. The next day Morris brought a person, genteelly dressed, who said he had known Morris from his early youth, and knew him to be free ; and that they both were from the same place. Baker saw nothing to excite suspicion. This occurred between 10 and 12 o’clock. After he had received from Morris his passage money, he gave Morris an order, by the name of Thomas Chambers, to Welsh, for his passage. Baker saw the passengers go aboard ; there were 50 or 60, and a concourse of friends to see them off. Morris went aboard without concealment. The next morning, Baker heard from Hoke that Morris was missed from the Hotel, and it was believed had gone in the Columbus. Between 9 and 10 o’clock, Baker sent by telegraph, a description of Morris, and in the afternoon he took passage in the Wilmington boat for Philadelphia. He arrived there-Monday, at three o’clock in the morning, and went to Lincoln & Co., agents of the Columbus. He ascertained that the dispatch arrived Saturday, but was not received by Collins till ten o'clock on Monday. Baker had stopped at the telegraph office in Baltimore, in his way on, but could not learn if the dispatch had been forwarded. As soon as Baker arrived in Philadelphia, he informed Capt. Peck, one of the owners. They offered a police officer a reward to take Morris; but he declined the undertaking. Baker also went to an attorney, who advised him that proof of property and a power of *471attorney were necessary for the arrest of Morris. On his return to Charleston, he wrote to the plaintiff.
“ On his cross-examination, Baker said he likes to submit free papers to the inspection of another person. He has inspected many free papers. Those of Morris were shewn to Enston, who was in his office at the time. He did not ask any person, that he knew, if Morris was free. He never saw Hackey (the man who vouched for Morris, as a free man,) before. He had no knowledge of Hackey. He judged of Hackey only by his appearance. He was a witness on Hackey’s trial, (who was acquitted,) and Welsh also. After his return from Philadelphia, he took no steps for the recovery of Morris, except to write to the plaintiff. He knows that Dennison went to Philadelphia, with papers, to capture Morris.
“ The deposition of Welsh, on Hackey’s trial, was read. It stated that, while he was acting as captain of the Columbus, a white man came to engage a passage for his servant. He sent them to Baker, The man was Hackey. The day after, Morris came on board, and asked if a white man had been there and engaged a passage for him; that he wanted a passage. He referred Morris to Baker, and Morris returned with Baker’s order. Morris called himself Thomas Chambers. Morris was well dressed, had a watch, &c. Three attempts by other negroes had been made to escape, and thwarted. He saw Morris’s free papers. A colored family were passengers the same trip.
“At the commencement of my charge, I told the jury I should not vex them with a question of pleading; but would direct what I had to say to the attorneys, that they might understand the grounds I took. Directing myself to the counsel, I said that I had not supposed the case of Nelson vs. Whetmore
had gone as far as it did to affirm that there can be no conversion without appropriation. Since I thought a conversion might be established by proof of deprivation of his chattels to the owner, though not appropriated to the use of the wrong doer ; but that I should decide, in conformity to that case, that the *472plaintiff could not maintain the count in trover, and read from the opinion of the Court the last three sentences of the first paragraph. Neither the law nor the evidence, applicable to a count in trover, were, in the remotest way, again adverted to in the course of my charge. Then turning to the jury, I told them that the plaintiff could not recover on the count in trover, but that it was not material, since there were other counts in the de-clartion on which the plaintiff might maintain the action, if the evidence supported them. I had reference particularly to the sixth count, in case, for carelessly taking the plaintiff’s runaway slave under the defendant’s protection, and carrying him away ; and the seventh count, for aiding and abetting the plaintiff’s runaway slave to continue absent from and out of his possession ; and the fourth count, for aiding and assisting the plaintiff’s runaway slave to continue absent.
“ The jury were then instructed that if, by the negligent conduct of a person in the course of his employment, injury resulted to another, he would be liable for the damage; and that if one interferes with the property of another, and an injury result to the owner, he would be liable, though his motive were innocent and lawful. This instruction was directed to the course of argument of the defendant’s counsel, who spoke of the declaration as an indictment, and urged on the jury that the defendant had no criminal intention to deprive the plaintiff of his property. The jury were further instructed that, if the plaintiff’s slave was lost to him, by the failure of the defendant to use proper vigilance, care and caution, to ascertain that Morris was not a slave before he gave Morris a passage in the Columbus, that the defendant was liable to the plaintiff for the value of Morris, who, by the act of the defendant, might be as completely lost to the owner as if he were dead, or carried to England, where it is law that a slave, coming within the realms, is, ipso facto, emancipated.
“ It was submitted to the jury, whether practically, though not legally, the same consequence did not follow the escape of a slave into one of the free States ; and they were told, if such *473were the consequence, that it exacted the utmost care and vigilance from the master of a vessel that he should not give passage to a slave into a free State.
“ They were further instructed that the conveyance of Morris, on board of the Columbus, was the act of the defendant; there being no evidence that, in taking passengers, he was subject ¡to the order and control of the agent of the vessel; and that he could not protect himself from liability by the mere ad of having referred Morris to the agent, and devolving on the agent the investigation of Morris’s claim to be a free man. But they were told that the defendant should have the benefit of the degree of vigilance and care which Baker, the agent, had used. It was then submitted to them whether Baker had used the necessary precaution to avoid taking away a slave.
“ They were instructed that, by the law of this State, all ne-groes and mulattoes are presumed to be slaves ; and one of that class who claims to be free, must prove himself to be an exception. It was suggested to them that a fugitive from servitude would not acknowledge himself to be a slave. It would be necessary, to his escape, to represent himself to be free, and he would resort to such devices as might confirm that statement. The procurement of free papers was an obvious expedient. They were directed to consider whether Baker was not negligent in not requiring, from some person acquainted' with the subject, and on whom Baker, from his personal acquaintance, might rely, the assurance that the proffered free papers' were g'enuine; and that Morris was the person named Thomas Chambers. The person on whose information Baker was satisfied to give Morris a passage, was a stranger to Baker, and brought by Morris himself, to vouch for him as a free man. The evidence on this subject was the principal topic of comment to the jury.
“ On the subject of damages, the attorney for the defendant having suggested a distinction between trover and case, the jury were instructed that, if the plaintiff was wronged and injured by the act of the defendant, in giving passage to his slave to a free State, and the slave was thereby lost to his owner, the meas*474ure of damages should be, compensation for the slave, and interest from the time he was carried away. They found a verdict for the plaintiff for $1,140.”
The plaintiff appealed, and now moved for a nonsuit, on the ground:
The plaintiff declared against the defendant in trover for a slave called Morris, and in other counts charged him with inveigling away his slave, with knowingly carrying him off, with taking him into his employment, and carrying him away, and with unlawfully, negligently and carelessly taking him under his protection, and carrying him away. And at the trial proved that the slave took passage in the Columbus, of which the defendant was master, as a freeman, and was landed in Philadelphia, and proved neither conversion nor notice nor negligence against the defendant, but the reverse appeared upon the plaintiff’s own evidence, whereupon defendant moved for a nonsuit, which was refused.
And, failing in that motion, then he moved for a new trial, on the grounds:
1. His Honor charged the jury, that any act, however innocent, which caused damage to another, was a good cause of action. That in his opinion it was a conversion, but in deference to the reported decision of Nelson vs. Wheimore, the count for trover would be given up, but that it made no difference on which count the verdict should be founded, as the measure of damages was the value of the slave and his hire. That the defendant, if imposed on by the representations made to him of the freedom of Morris, was liable, unless he had exerted the highest degree of vigilance to prevent the imposition. And that it was not enough to refer the application of Morris for a passage to the agent of the boat, to see if he was really free, and act upon the agent’s order to receive him.
Whereas it is submitted, that liability in trover depends on very different principles from liability in case. That in trover the question turns on the property, and in case on the wrong, and that the damages in case are proportioned to the wrong, and *475not to the consequences ; and that the liability of the defendant, all pretence of conversion, collusion or notice being abandoned, depended entirely on the want of due caution, such as a person of ordinary prudence would exert in his own affairs ; and that the highest degree of vigilance is an impracticable test, and not warranted by law as the rule for the line of social duty.
2. That the verdict is contrary to evidence, in finding the defendant guilty without proof.
Petigru, for the motion,
cited Stoiy on Bailm. § 122; Sill vs. The So. Ca. Rail Road Comp, (ante, p. 154); 7 Stat. 412, § 40 ; 11 Stat. 150.
Brewster, contra,
contended that the taking and carrying away the slave was tortious, and amounted to a conversion; and therefore, that the defendant was liable on the count in trover. On this point he cited Nelson vs. Whetmore, (1 Rich. 318); Bell vs. Lakin, 1 McM. 364; 1 Chit. PI. 153, et seq.; Bac. Abr. Trover, B.; Bristol vs. Burt, 7 Johns. R. 254; 5 Cowen, 323 ; 10 Johns. R. 172; 1 N. & McC. 592 ; 1 Wilson, 328.
Upon the question whether the defendant was liable on the counts in case, he cited Willes’s R. 577; McDaniel vs. Emanuel, 2 Rich. 455 ; Eaton vs. Vaughn, 9 Miss. R. 743 ; Johnson vs. Bryan, 1 B. Munro, 292; Harrison vs. Berkley, 1 Strob. 525; 2 Steph. N. P. 1004, et seq. ; Rex vs. Phillips, 6 East, 464.
Curia, per
Withers, J.
Two questions, argued or alluded to, we shall lay out of this case : one in relation to the count in trover, for no matter what may be the true doctrine as to what will amount to a conversion, the trial did not turn on any thing but the counts in case. The other was suggested by the counsel for plaintiff, to wit: that defendant was liable with or without negligence, and, therefore, independent of any standard of caution or diligence. That need not be considered on the present occasion.
We shall regard the case as resting upon the general doctrine that renders a party liable, in case, who, in the course of a lawful avocation or business, has, through negligence, but not wil-*476fully, -entailed an injury upon the personal property of another not in- default, even to the loss of that property. It has been argued', to be sure, that the owner of the slave was himself in default, since he should have kept him at home: and further, that he had so educated him in port and manners, as to give him the arts of deception, and the semblance of a freeman. The facts shew no more than that he had hired his slave to the keeper of a hotel in Charleston, and in this we see nothing-blameworthy in law : that his slave was, in fact, artful enough to delude the defendant on the occasion ; but there is no evidence that, the plaintiff had designedly contributed to the deceptive qualities of the negro, for the purpose of misleading the defendant or any body else. That there was negligence, in some degree, on the part o'f the defendant or his representative, Baker, we do not doubt: the question is, were the jury misled by any thing said to them by the presiding Judge, as to the standard of care and caution which the law exacted on the occasion 1
General definitions, on this subject, are as mere skeletons, unless the whole circumstances, to which they are made to apply, are considered; for, otherwise, neither he who utters them can be understood, nor the sense in which the jury perceived them be appreciated. The argument at the bar has illustrated the remark. It was directed to the words “utmost care and vigilance and we have heard that, in a critical sense, this may mean all that possibly could have been ascertained in relation to the slave, Morris. It is thence argued (assuming such to have been the sense intended by the presiding Judge, and the apprehension adopted by the jury,) that the defendant could, by possible diligence, actuated by an unsocial and impracticable distrust, have stripped Morris of his disguises by discrediting the man, who, with genteel appearance, became sponsor for him, and the genuineness of his free papers, and pursuing the inquiry up to the point of requiring the personal assurance of the Magistrate in North Carolina that the evidence of freedom was bona fide. Now if we concede that the law does not require such strictness, such painful investigation, was any such rule exacted from the *477Bench, or so understood by the jury ? . They had been told, before the words in question were used, that the defendant must be held to “ proper vigilance, care and caution,” and afterwards to “ necessary precaution,” and the several phrases were used in reference to various supposed aspects of the case. One of those aspects supposed that the defendant knew, if he transported the slave to Philadelphia, he would place him as iar beyond the reach of recovery as if he had been taken to Great Britain. Supposing the defendant knew this, the jury were told that the master of a vessel should use the utmost care and vigilance to see that, while he was contracting to carry a negro, he should not thus transport a slave beyond the chance of recovery. From the connection in which this language was used, the imminent hazard of irreparable injury to some slave owner, which the circumstances supposed created, should not the caution, the diligent inquiry, be increased in proportion to the danger ? It is tantamount to saying that the same line of conduct that, in certain circumstances, might import ordinary negligence, or even none at all, would, in others, import the grossest. To borrow the illustration of the counsel: if he hired a slave, professing to be free, and without some inquiry, to labor in his garden, there would be a certain degree of circumspection wanting ; but if he conducted him to New York, how gross would be the negligence? In the inverse ratio ought to be the vigilance required in the respective cases. If a man takes the cars at Columbia for Charleston, in the bustle which attends the eve of departure, and directs on board the slave of another, but claiming him as his own, (which occurred as a leading characteristic in Sill’s case,) the incident would be little calculated to awaken suspicion in the mind of the most cautious: the danger of loss to the owner, whoever he might be, would be little likely. But if the same man were to take passage for himself and his slave for New York or England, the fact that he claimed him as a slave would rouse the most lively suspicion of trick or crime, of deception of some description. If no reference could be made to some one, *478known and to be confided in, suspicion would be strengthened. As the plot thickened, so should the interest and attention become intense. One circumstance unexplained, in a case where the hazard of perpetrating injury is always great, one question answered untruly, should beget a vigilance increasing at every step of the investigation: and in the circumstances of this case, we do think that nothing said by the Circuit Judge was too strong, when taken with the context. So considered, as every portion of every charge ought to be, neither the law nor the very right of the case was violated when the jury were told, if you view the case thus, the “ utmost care and vigilance” were due from defendant; that is, the utmost which, in like circumstances, you would exact from a prudent man engaged in a business very hazardous to other people’s rights of property. We think such instruction warranted, when we observe that a negro presented himself as a passenger on the Columbus, the day before she sailed, bound from Charleston to Philadelphia; no one came to vouch his pretension to freedom ; he was thereupon rejected ; he produced papers, of North Carolina origin apparently, certifying his freedom; this was unsatisfactory; a white man was required to support the papers and the negro’s identity; one was produced ; his name was neither registered nor demanded, but both he and the papers, if they told the truth, shewed the applicant to be here in violation of law, since he was represented as a free negro from another State, and, therefore, inhibited ingress here; and yet there was no further reference demanded, nor en-quiry made. We cannot but think that such a case, under a charge of mildness and favor towards the defendant, must have produced a verdict against him.
The remaining point is founded on the amount of damages. On that score we cannot perceive just objection to the verdict. If a plaintiif’s legal right has been violated, the law infers some damage, and he is entitled to the verdict. Ellis has shewn, in evidence, that his slave has been lost to him; that his value and the value of his hire, are equal to the amount found by the jury. *479Having connected this damage with the act of the defendant, legally tortious, his right to his verdict is vindicated.
The motion is consequently refused.
O’Neall, EvaNs, Waedlav, Frost and Whitner, JJ., concurred.
Motion refused.