source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    John Norris, Plaintiff, v. Edwin B. Crocker and Elisha Egbert.
    The fourth section of the act of Congress, approved on the 12th day of February, 1793, (1 Stat. at Large, 302,) entitled “An act respecting fugitives escaping from justice, and persons escaping from the service of their masters,” is repealed, so far . as relates to the penalty, by the act of Congress approved September 18th, 1850, (9 Stat. at Large, 462,) entitled “An act to amend, and supplementary to, the above act.” • 1
    Therefore, where an action for the recovery of the penalty prescribed in the act of 1793 was pending at the time of the repeal, such repeal is a bar to the action.
    This case came up from the Circuit Court of the United States for the District of Indiana, upon, a certificate of division in opinion between the judges thereof.
    The following certificate explains the. question:
    United States of America,

      District of Indiana.

    At a Circuit Court of the United States, begun and holden at Indianapolis, for the District of Indiana, on Monday, the nineteenth day of ..May, in the year one thousand eight hundred and fifty-one, and continued from day to day until Friday, the thirtieth day of May, one thousand eight hundred and fifty-one.

      John Norris, v. Edwin B. Crocker and Elisha Egbert.
    Present, honorable John McLean, and the honorable Elisha M. Huntington, judges.
    - This is an action of debt brought to recover the penalty of five hundred dollars, upon the fourth section of the act of Congress, approved February 12,1793, entitled “An act respecting fugitives from justice, and persons escaping from the service of their mastersdeclaration in the usual form, and demurrer and joinder thereto.
    The case coming On to be argued on demurrer, it occurred as a question, whether the aforesaid section of the aforesaid act of February 12, 1793, is repealed, so far as relates to the penalty given by said section, by the act of'Congress of September 18th, 1850, entitled “An act to amend and supplementary to the act entitled,’ ‘An act respecting fugitives from justice, and persons escaping from- the service of their masters,’ ” approved February 12th, <1793 ; and whether, if repealed, the same can affect this action, which was pending before the passage of the last-named act; on which questions the opinions' of the judges were opposed.
    Whereupon, on motion of the plaintiff, by his .counsel, that the,points on which the disagreements hath happened, may, during the term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court to be finally decided.
    It is ordered that the foregoing statement of the pleadings and the following questions involved, which are made under the direction of the. judges, be certified according to the request of .the plaintiff, by his counsel, and the law in that case made and provided, to wit:
    I. Is the fourth section of the act of Congress, approved on the 12th day of February, a. d. 1793, entitled An act respecting fugitives from justice, and persons escaping from the service of their masters,” repealed, so far as relates to the penalty, by the. act of Congress, approved .September 18th, 1850, entitled “ An act to amend, and supplementary to the act entitled ‘An act respecting fugitives from justice, and persons escaping from the service, of their masters,’ ” approved February 12th, 1793.
    •II. Whether, if the fourth section of the last-named act'of February 12th, 1793, is repealed, so far as relates to the penalty by. the act to amend and supplementary to the same, that repeal will, in law, bar the present action that was pending at the time of the repeal.

      Upon this certificate, the cause came up to this court, and was argued by Mr. O. H. Smith, for the plaintiff, and Mr.- Chase, for the defendants.

      Mr. Smith, for the plaintiff.
    On the part of the plaintiff, we contend that the act of 1850, does not repeal the fourth section of the act of. 1793, but is only cumulative; and we ask this court so to certify to the Circuit Court.
    The defendants maintain that the act of. 185Q does repeal, by implication, the fourth section of the. act of 1793, and every distinct offence created by that sectipn; therefore, if the court should even think, that part of the section is repealed by implication, which we submit they will not, still if the'whole of the section is not repealed, the certificate must be for the plaintiff, and the demurrer in the Circuit Court' must be overruled. • ■
    Before'we proceed to examine the two acts, and to compare them, we will direct the attention of the court to some, plain and familiar principles, for the construction (of statutes, by which we are willing to construe' these acts, as applicable to this case.
    1. “ Generally, statutes are to be construed to - operate in futuro, unless a retrospective effect be clearly Intended.” Prince v. United States, 2 Gallis. C. C. ft. 204.
    2. “ In doubtful eases, a court should compare all the parts of a statute, and different statutes in pa/ri materia, to- .ascertain the intention of the legislature.” Sloop Elizabeth, Paine’s C. C. R. 11.
    3. “ Where a statute is made in addition to another statute on the same subject, without repealing any part of'it, the. provisions of both must be construed together.” 13 Mass. 324, 344. ■ 4. “ Statutes can never be applied 'retrospectively, by mere construction.” 9 B. A. 221; 10 Mass. 437; 12 Mass. 383; 16 Mass. 215; 1 Blackf. R. 220.
    5. “ Subsequent statutes, which add accumulative penalties, and institute new methods of proceeding, do-not repeal former penalties and methods of proceeding, ordained by preceding statutes, without negative words.” 6 Price, 131; 9 B. A. 227.
    • 6. “ The law does not favor a repeal by implication, nor is it to be allowed unless the repugnancy be quite plain; for as such repeal carries with it a reflection upon the wisdom of the former parliament, it has ever been confined to. the repealing as little a¿ possible of the preceding statute.” 2 Wash. 297; 2 Barn. & Aid. 149.; 6 Maulé & Selwyn, 116; 15 -East, 372; 9 B. A. 228.
    7. “'Although two acts -.of parliament are seemingly repugnant, yet if there be, no clause of non obstante in the latter, they shall, if possible, have such construction that the latter may -not be a repeal of the former by implication.” Weston’s case, Dyer, 347; 11 Rep. 63; Hard. 344; 9 B. A. 228.
    With these general and fundamental principles before us,, we proceed to direct the mind of the court —
    1st. To the section of the act of Congress upon which this action was brought, and
    2d. To the section of the act of 1850, passed pending the action, which is relied upon as repealing the fourth section of the act of 1793.
    1. The section of the act of 1793, upon which this action is founded, reads as follows :
    “ That any person who shall,- knowingly and- willingly, obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent, or attorney, when so' arrested, pursuant to the authority herein given or declared, or shall harbor or conceal such person, after notice that he or she was a fugitive from, labor as aforesaid, shall for either of the said offences .forfeit and pay the sum of five hundred dollars ; which penalty may be recovered by and' for the benefit of such claimant, by action of debt in any court proper to try the same,” saving, &c.
    This section, the court will • see, gave several distinct causes of action for the penalty:
    1. Against any person who should knowingly and willingly “ obstruct” the claimant, his agent, or attornéy, from “ seizing or arresting the fugitive.”
    2. Against those who shall knowingly and willingly “hinder” the claimant, his agent, or attorney, in so- “ seizing or arresting the fugitive.”
    3. Any persons who shall knowingly and willingly “rescue” such fugitive from such claimant, his agent, or attorney, when so arrested, pursuant to the authority herein given or declared.”
    4. Against persons “ who shall ‘ harbor’ such fugitive” “ after notice that- he or she was a fugitive from labor.”
    5. Against persons “ who shall conceal such person, after notice that he or she was. a fugitive from labor.” •
    The section of the act of 1850, that is relied upon as repealing the fourth section of the act of 179.3, as to the penalty, by implication, we maintain is merely cumulative. We proceed to give the section ; and in order to show the additions that have been made to the section of the act of 1793, by the act of 1850, we give the section, and place the additions in brackets.
    “ That any person who shall knowingly and willingly obstruct [or prevent] such claimant, his agent, or attorney, [or any person or persons lawfully assisting him, her, or them,] from arresting such a fugitive from service or labor, [either with or Without process as aforesaid,] or shall rescue [or attempt to rescue] such fugitive from, service or labor from [the custody of] said claimant, his or her agent or attorney, [or other person or persons law* fully assisting as aforesaid,] when so arrested pursuant to the authority herein given and declared, [or shall aid, abet, or assist such person, so owing service or labor as aforesaid, directly or indirectly to escape from such claimant, his agent, or attorney, or other person or persons legally authorized as aforesaid,] or shall harbor or conceal such fugitive [so as to prevent the discovery and arresting of such person] after notice [or knowledge] of the fact that such person was a fugitive from service or labor as aforesaid.”
    It will be seen, by an examination of the above section, that it creates new offences, and punishes them differently, and is therefore cumulative,
    The section above does not make “ harboring ” or “ concealing ” a slave subject to a penalty, unless it is done “ so as to prevent the- discovery and arresting of such person after notice,” &c., while the section of the law of 1793, on which these actions are founded, makes the offence to “ harbor or conceal such person, after notice that he or she was a fugitive from labor,” subject to a penalty of $500. These offences are entirely different, and are visited with different penalties. The legislature (Congress) therefore did not rdpeal the offence of “ harboring ” or “ concealing ” slaves from their masters, either in express terms by implication. Both acts can well stand together, and the rule of law is to construe them as we have already stated.
    Let us now come to the act of Congress of 1850, and inquire whether it could have been the intention of the framers of that act to repeal the act of 1793. We maintain the negative of this proposition, as being clear and conclusive.
    1. Had such been the intention of. the legislature, the act would have contained an express repealing clause, which it does not.

      2. Congress was composed of good lawyers and wise legislators, who would never have left to construction and implication that which they intended to have enacted.
    3. The object of the act of Congress of 1850, was evidently to give greater.facilities to the master of the slave, in securing the fugitive; and can it be for a moment supposed that Congress intended to repeal the act of' 1793, wipe out all liabilities incurred under that act, and deprive the master of the rights that had accrued to him, of action in suits pending, or otherwise ? Most certainly not.
    4. It is clear that the act of 1850 cannot, under any construetion, have a retrospective operation, and therefore could in no event operate on the rights of the plaintiff which had accrued before the passage óf the act, unless it was by way of repeal of the previous act by implication.
    5. The title of the act is conclusive as to the object and intention of the legislature in its passage. It was, as it expressly declares, amendatory to, and supplementary of, the act of 1793. Not a repeal of the act, but amendatory and supplementary to that act; “ additional,” “ adding what is wanting.” See-Webster’s Dictionary as to the words “ supplementary ” and “ to amend.”. ,
    6. The act of 1850, in the language of Judge Nelson, in his able ,charge_ to the grand jury, “ was passed for the purpose of carrying, more effectually into execution á provision of the Constitution of the. United States.” “The supplementary act is obviously frárned with gréat skill and care, and bears upon its face the deep conviction of the body that enacted it that the constitutional-provisions had not only been.disregarded, but that a settled purpose, á ' fixed determination existed in some portions of the country to set its obligations at.naught.. The act meets this condition of things, real or supposed, and clothed the public authorities with power adequate to the exigency.” . This view of the object and effect of the act is certainly very erroneous if the act was á repeal of the penal part of the act of 1793, as is contended. If it enacted impunity and absolution to all offenders under the act of 1793, dismissed all actions pending for violations of its provisions with costs, and, being retroactive in its operation, left no cause of action for any penalty incurred prior to its passage, though not within' the offences named by the act of 1850, we submit that this court should not, give to the act of 1850 such a construction, but should construe it to be what its title declares it to be, — an act to amendj and supplementary to, the -act of 1793. This construction will accord with the object and intention of the legislature, will enforce the rights of the plaintiff, and maintain the majesty of the laws and the integrity of the Union¿

      Mr. Chase, for defendant, contrasted the two laws, and then proceeded with his argument.
    It was evident, from this comparison, th&t the design of, the act of 1850 was to enlarge the act of 1793 and make it more efficient arid stringent, by extending the definitions, of the prohibited offences, and by substituting for. the penalty of five hundred dollars for the benefit of the claimant, the public punish-. ment of á fine of one thousand dollars and imprisonment, and for mere liability to an action for the injury, the definite award of ope thousand dollars as civil damages for each servant lost. No offence is described in the act of 1793 which is not expressly mentioned and prohibited in the act of 1850; while the penalties and sanctions of,the latter act are entirely, distinct, both in nature and magnitude, from those of the forlner.
    The rules of law applicable to this law are, I apprehend, too well settled to admit of much diversity of opinion. The first is this.:
    Acts of the legislature prohibiting the same offences and injuries as former acts, but imposing different penalties or. giving different remedies, repeal, so far, such former acts. Rex v. Ca-tor, 4 Burr. 2026; Nichols qui tarn v. Squire, 5 Pick. 168; Commonwealth v. Kimball, 21 Pick. 373; Adams v. Ashby, 2 Bibb. 96; 2 Dana, 330; Hickman v. Littlepage, 2 lb. 334; Milne v. Huber, 3 McLean, 212; The State v. Whitworth, 8 Porter, (Ala.) 434; McQuifidn v. Doe ex dem. Stoddard, 8 Black. 581; Leighton v. Walker, 9 N. H. 59.
    The leading case is Rex v. Cator, 4 Burr. 2026. The defendant had been convicted upon 5 Geo. 1, c. 27 and 23 Geo. 2, c. 13, for enticing and seducing artificers in the manufactures of the United Kingdom into foreign service. Both acts were upon the same subject. The offence was within each. The first imposed a penalty of ¿6100 and three months’ imprisonment for the first offence, and for the next a fine at discretion and twelve months’ imprisonment. The second act imposed a penalty of ¿6500 and twelve months’ imprisonment for the first offence; and for the next ¿61000 and two years’ imprisonment. Lord Mansfield held, “ The latter act seems to have been a repeal of ,the former: it was made to supply the deficiencies of the former.”
    The language of the Supreme Court of Massachusetts, in Nichols qui tarn v. Squire, 5 Pick. 168, is very clear: !t We think the statute of 1785, c. ,24, upon which the qui tarn action is founded, is repealed, if not by Stat. 1800, c. 57, (which seems to have had a different object in view,) yet certainly by Stat. 1817, c. 191, which appears to cover the whole subject-matter of the statute of 1785. By the statute of '1817 the selling of tickets in any lottery not granted or permitted by the Commonwealth is prohibited under a new penalty; and where the legislature impose a second penalty for an offence, whether smaller or larger than the former one, a party cannot be allowed to sue on one or the other, at his option. This point of repeal by implication is supported by authority. In the cáse of Bartlett v. King, (12 Mass. 537,) an exceedingly useful statute, passed in 1754, concerning bequests and donations to pious and charitable uses, was held not to be in force, the legislature having in 1785 legislated upon the same subject, and omitted to reenact the provisions of that statute.”
    The opinion of the Supreme Court of Alabama, in The State v. Whitworth, (8 Porter’s Ala. Rep. 434,) is equally decided: “ The act of 1829, inhibiting gaming, covers the whole ground of the previous statute; so far as the keeping, exhibiting, carrying on, or being in any manner interested in, any gaming-table or bank whatever is concerned, and includes every, offence connected with the subject-matter; and as it provides a different, and in some respects a milder, punishment for these offencés than the previous ' statutps, it repeals them so far as the same offences arp provided to be punished by it.”
    It seems nqediess to .quote from the other cases cited. These authorities are sufficient to establish the proposition, that the act of 1850, so far as it imposes new.and different penalties and punishments for the same offences prohibited by the act of 1793, repeals that act.
    The second rule of law laid down by the defendants is this:
    No judgment can be rendered in any suit for a penalty after the .repeal of the act by which it was imposed. The repeal of a statute puts an end to all suits founded upon it. Rex v. Justices off the Peace for the City of-London, 3 Burr. 1456; Yea-ton ,v. The United States,- 5 . Cranch, 281; Schooner Rachel v. The United States, 6 Cranch, 329; The Irresistible, 7 Wheat. 551; The United States v.> Preston, 3 Peters, 57; Commonwealth v. Marshall, 11 Pick. 350; Commonwealth v. Kimball, 21 Pick. 373; Commonwealth v. Leftwich, 5 Rand. 657; People V. Livingston, 6 Wend. 526; Commonwealth v. Welch, 2 Dana,* 330; Lewis v. Foster, 1 N. H. Rep. 61; Stevenson v. ¡Doe, 8 •Black. 508; Pope v. Lewis, 4 Ala. 487; Road in Hatfield Township; 4 Yeates, 392; Maryland v. Baltimore and Ohio Railroad Company, 3 How. U. S. Rep. 534; 18 Maine Rep. 109; 25. Maine, 452; Miller’s case, 1 Wm. Black. 451.
    The leading case is Rex v. Justices of London, 3 Burr. 1456. It was a motion for a mmdarms requiring the justices-to proceed in a matter depending before them after the act. Regulating the proceeding had been repealed. The matter had been by them adjourned unto a day after the repealing clatise took effect, and they then refused to .proceed further. “Lord Mansfield was very , clear, and the rest of the court concurred with him, that no jurisdiction now remained in the Sessions.”
    In the case of Yeaton v. The United. States, 5 Cranch, 281; this court said, upon appeal from a sentence of condemnation, where the law under which the sentence liad been pronounced had been repealed after the sentence; “ The cause is tó be considered as if no sentence had been pronounced; and if no sentence had been pronounced, it has been long settled, on general principles, that after the expiration or repeal of a law no penalty can be enforced or punishment inflicted for violations of the law, committed while it was in force, unless some special provision be made for that purpose by statute.”
    And it makes no difference whether the penalty goes to the public, or in part or in whole to an individual.
    In Lewis v. Foster, (1 N. H. 61,) a judgment had been rendered in an action of debt for a penalty under a statute which gave the whole penalty to the plaintiff. Before execution the statute was repealed. The defendant, by a proceeding in review, brought the case before the Supreme Court, where it stood as if no judgment had been rendered. The court said: “ The plaintiff’s right of action was taken away by the repeal of the law on which it was founded. - -Every right he acquired by a judgment was subject to be lost on review of the cause. We must try tifie cause in the same manner as if there never had been a judgment, but we now find no act which will warrant a judgment in favor of the plaintiff.”
    So in Pope v. Lewis, (4 Ala. Rep. 489,) the court said: “ The principal question in this cause is whether any judgment can be rendered in an action founded on a penal statute after, its repeal. The counsel for the defendant in error maintain, that by the commencement of the suit for the penalty prescribed by the statute for selling rope and bagging without inspection, the defendant acquired a vested right in the penalty, which the subsequent repeal of the statute by the legislature cannot deprive him of. The foundation of a claim to a penalty prescribed by law is derived entirely from the statute authorizing a judgment to be rendered in favor of any one who will sue for it.” “ This claim is imperfect until a judgment be rendered for it......It follows, necessarily, that as the right to the penalty is inchoate until judgment, if from any cause no judgment can be rendered for the penalty, the absolute or vested right to it can never exist. It cannot admit of doubt that the legislature may at pleasure repeal any penal law; and it is equally well settled that after such repeal no judgment can be rendered, either of corporal punishment or pecuniary fine. Nor is it easy to perceive how,, upon principle, any other decision could be made.”
    The whole matter is summed up in an expression of Mr. Chief Justice Taney, in Maryland v. The Baltimore and Ohio Railroad Company, (3 How. 534): “ The repeal of the law imposing a penalty is itself a remission.”
    These principles and authorities seem to leave no doubt upon either question certified from the Circuit Court; It appears to be quite clear, both that the provisions of the 4th section of the act of 1793, giving a penalty for the offences therein described, are repealed by the operation of the 7th section of the act of 1850, giving different penalties for the same offences; and'that this repeal bar's actions for penalties pending at the taking'effect of the last act.
   Mr. Justice CATRON

delivered the opinion of the court.

The following questions are certified to us c ,- a ‘division of opinion from the Circuit Court for the District Indiana. .

1; 'Whether the 4th section of the act of 1793, respecting persons escaping from service • of their masters is repealed, so far as relates to the penalty, by the act of 1850, on the same subject, .

2. Whether, if the act of 1793 is repealed as to the penalty, the repeal will bar an action that was pending at the time of the repeal. .

The fugitive slave law of 1850 does not repeal the 4th. section'of the act of 1793 in terms; and if it is repealed, it mnst be by implication. As a general rule it is not open to controversy, that where a new statute covers the whole .subject-matter of an old one, adds offences, and prescribes different penalties for those enumerated in the old law, that then the former statute is repealed by implication; as the provisions .of both cannot stand together.

To ascertain whether there be repugnance, the two enactments must be compared.

The 4th section of the act of 1793 provides: 1st. That any-person who shall, knowingly and willingly, obstruct or hinder a; claimant, his . agent or attorney, in arresting a fugitive from-labor:

Or, 2d. Shall rescue the fugitive from thé claimant, his agent or attorney, after he has been arrested :■

Or, 3d. Shall, knowingly and willingly, harbor, or.conceal the fugitive,"knowing he is such: That for committing either of

said offences such person shall forfeit and pay the sum of five hundred dollars: which penalty may be recovered by the claimant for his own benefit; and reserving also to the claimant his right of action in damages for the actual injuries he may have sustained, be they more or less.

The act of 1850, section 7, declares: .

1st. That any person who shall, knowingly and willingly, obstruct, hinder or prevent, such claimant, his agent or attorney — > or any person, or persons, lawfully assisting him, her or them, from arresting such fugitive — either with or without process:

Or, 2d. Shall rescue, or attempt to rescue, such fugitive, when arrested, from the custody of the claimant, his agent or attorney, or'from the custody of any other person, or'persons, lawfully assisting:

Or, 3d. Shall aid, abet, or asist the person owing service, directly, or indirectly, to escape from such claimaAt, his agent or attorney, or other person or persons legally assisting:

Or; 4th. Shall harbor or conceal such fugitive, so as to prevent his discovery and arrest, after notice or knowledge of the fact, that such person was a fugitive: The person so. offending; in either of the cases specified, shall be subject to a fine not ex-, ceeding one thousand dollars, and imprisonment not exceeding six months, on conviction by indictment. Secondly, That the .person thus offending, shall forfeit and pay, by way. of civil damages, to the party-injured by such illegal conduct, the sum of one thousand dollars for each fugitive lost, by reason of such conduct, to be recovered by action of debt.

And the question is, whether the foregoing provisions of the act of 1850 fire repugnant to those contained in the act of 1793, so far as the penalty of five hundred dollars is concerned.

The former statute gives this penalty to the owner in three cases: for obstructing an arrest; for a rescue; and for harboring the fugitive. It. was given, regardless of the fact, whether the owner had or had not recovered his slave; and in addition, by the act of 1793 he -might sue for, and recover, the value, if the slave was lost by the illegal conduct of the defendant; or he might recover inferior damages, if the slave was obtained.

By the act of 1850,. ¶ penalty is inflicted, by way of fine, on conviction; and imprisonment is added. The prosecution is at the instance of the United States, with which the owner of the slave is-not necessarily connected, the government taking the penalty recovered: nor is it of any consequence, under this mode of proceeding, whether the owner has or has not recovered his slave; the offender being equally liable to prosecution for' committing any one of the offences enumerated in the statute, including the old ones, found -in the act of 1793,. and the .additional ones, superadded in that of 1850, and which are indicated by the words in italics. The recent statute covers every offence found in the former act, which subjects the offender to a penalty of 500 dollars, and prescribes a new, and different' penalty, recoverable by indictment; and is plainly repugnant to the act of 1793.,

A seeming difficulty exists, in the concluding part of the séventh section of the new act, Which awards civil compensation to the owner for the loss of each slave, if that loss was occasioned by any one of the illegal acts that are made indictable: but no recovery under, and by force of the statute, can be had, unless the owner has lost the slave. The policy of the law is obvious. On trials, illegal conduct, and loss, might, be fully established; but then, the wide range of proof, as to value, could still, in effect, defeat the suit by a verdict for low damages: and therefore Congress fixed the value alike in every case of loss, and took the assessment of damages from the jury. This provision is new, and inconsistent with the 4th section of the act of 179?, in this: The former act imposes a penalty of five hundred dollars, in the enumerated cases, regardless of any actual loss on the part of the owner: whereas, for the same offences, the act of 1850 allows civil damages of one thousand dollars for each slave lost.; but nothing when he is regained — loss being the ground of action: nevertheless, the party injured is left to his common-law remedy for any damage he may have sustained short of actual loss of the slave by the illegal conduct of the offending party: and for actual loss also, if he prefers and elects that remedy to .an action for. civil damages under the statute —■ but both modes cannot be pursued.

We therefore answer, to the first question certified, that the act of 1850 has repealed, so far as relates to the pen»l+v. the fourth section of the act of 1793.

The next question referred +o us for decision, presents no difficulty.

The suit was pending below when the act of September 18,'. 1850, was passed, and was for the penalty of 500 dollars, secured by the 4th section of the act of 1793. As the plaintiff’s right t'o recover depended entirely on the statute, its repeal deprived the court of jurisdiction over the subject-matter. And in the next place, as the plaintiff had no vested right in the penalty, the legislature might discharge the defendant by repealing the law. We therefore answer, to the second question certified, that the repeal of the 4th section of the act of 1793 does bar this action, although pending at the time of the-repeal.

Order.

This cause carrie on to be heard on the transcript of the record from the Circuit Court of the United . States for the District of Indiana, and on the points or questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to ■the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court: —

1st. That the fourüfi section of the act of Congress, approved On the 2th day of February, a. d. 1793, entitled “ An act respecting .fugitives from justice .and persons escaping from the service of their masters,” is repealed, so far as relates to the penalty, by the act of Congress approved September 18th, 1850, entitled, “ An act to amend, and supplementary to, the act entitled ‘ An act respecting fugitives from justice and persons' escaping from the service of their masters,’ ” approved February 12th, 1793.

2d. That the repeal of the said fourth section will in law bar the present action that was pending at the time of the repeal. "Whereupon, it is now here ordered and adjudged by this court that it be so certified to the said Circuit Court.


author: Mr. Justice NELSON

text:
    Lewis Rogers, Appellant, v. Joseph G. Lindsey, Henry S. Atwood, and John S. Bennett.
    The following paper, viz.
    “The Piesident or Cashier of the Planters and .Merchants Bank will please jiold, subject to the order of Mr. J. G. Lindsey, all the debts referred^ to in the inclosed letter from Mr. McEarlin, except the two drafts of McCollierMinge, upon the Messrs. Ellicotts, of Baltimore, which, when collected, please place to my credit ” — imports an authority to Lindsey to control the settlement and collection of these several demands; but not necessarily a transfer of the title to or interest in them. The circumstances of the case favor this construction. Lindsey had become personally responsible for a sum of money, which these debts were intended in part to ' . meet. As an honest transaction, it would answer all purposes, if he had only a‘ power to collect the debts.
    Where Lindsey, under this power, assigned an interest in one of these judgments, and the bill charged that the assignee knew of the interest of the original creditor, which the assignee, in his answer, did. not deny, he failed to bring himself within the rules which protect a purchaser for a valuable consideration without notice, and his claim must be set aside.
    Lindsey’s having assigned this judgment to a third person, and then taken a reassignment of it, does not vary the case. He stands then in his original position.
    This was an. appeal from the Circuit Court of the United States for the Southern District of Alabama.
    The bill was filed by Rogers against Lindsey, Atwood, and Bennett, under the circumstances mentioned in the .opinion of the court, and which it is not necessary to repeat. ■
    The 'cause was heard upon the bill, answers, exhibits,- and proofs, in the said District Court, on the 17th of April, 1850, and the court being of opinion that the plaintiff, Rogers, by his contract with the defendant, Lindsey, had assigned and. transferred the judgment in the said court, in favor of Rogers & Gray against John S.' Bennett, to said -Lindsey, and that he, Lindsey, and the assignees under him, were entitled to the money made thereon, ordered- and decreed that the plaintiff’s bill be dismissed, with costs.
    Rogers, the complainant,’appealed to this court.

      It was argued by Mr. Crittenden (Attorney-General) and Mr. Chilton, for the appellant, and Mr. J. A. Campbell, for the appellee.
    The arguments of the respective counsel were so much connected with the facts and circumstances of the case, that it is impossible to narrate them without protracting this report to an inconvenient length.
   Mr. Justice NELSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the Southern District of Alabama.

Lewis Rogers, the appellant, and complainant below, was one of the firm "of Rogers & Gray, doing business in the city of Richmond in 1836, and. in the course'of their business purchased of Joseph G. Lindsey, one of the defendants, a large amount of bills of exchange on. the-.house of Goodman, Miller & Co., of the city of Mobile, of which about the sum of $20,000 was unpaid, and the bills protested. Subsequently, in 1837, a settlement was effected with the firm at Mobile, and payment received in several promissory notes, all of which were indorsed by Lindsey. Among these notes was one made by Bissell & Carville, a business firm in Alabama, dated 20th April, 1837, and indorsed by John S. Bennett, payable 1st January, 1838, for $3,297.27,. and which was also indorsed by Goodman, Miller & Co., and Lindsey. This note, and a large amount of the paper thus received in discharge of the debt of $20,000, was dishonored at maturity, and. duly protested, and judgments recovered against the several parties liable, in the Circuit Court of the'United States in the Southern District of Alabama. The judgment recovered March, 1840, against Bennett, on the note.of Bissell &■ Carville, amounted to $3,875. About this time the partnership of Rogers & Gray was dissolved, and the effects assigned to Rogers, the complainant.

In June, 1840,. while the securities, taken in payment of the balance of $20,000'due to the firm of Rogers & Gray, stood in this condition, Lindsey came to the city of. Richmond, and made a proposition for the settlement of his liabilities as indorser upon them. They had been left with the Planters and Merchants Bank of Mobile, for collection, and judgments recovered upon them as stated. Lindsey represented that all, or nearly all the parties except himself upon the paper were insolvent, and that little, if any-thing, could be realized on the judgments. And he proposed to take them and give a note for $20,000, made by himself, and indorsed by four other persons, citizens of Alabama, who he represented were responsible, and would pay the note at maturity, if Rogers would maké a new advance to him of $10,000 on the note of one Hudgings, a citizen of Virginia.

Upon the faith of these representations, and after some inquiries into the responsibility of the parties, Rogers agreed to the proposition, and took the note of $20,000, which was payable the first, of January thereafter, and advanced the $10,000 on the Hudgings note; and at the same time gave to Lindsey the following writing': —

“ The President or Cashier of the Planters and Merchants Bank will please hold, subject to the order of Mr. J. Gr. Lindsey all the debts referred to in the inclosed letter from Mr. McFarlin, except the two drafts of Me Collier Minge upon the Messrs. Ellicotts, of Baltimore, which, when collected, please place to my credit.” 13th June, 1840.

The list of debts referred to in the letter of McFarlin were the securities that had been left with the bank at Mobile by Rogers for collection, and which had passed into judgments, as already stated.

"When this note qf $20,000 fell due, on the 1st. ol January, 1840, it was dishonored, and the paper duly protested. This note has never been paid.

Lindsey, after receiving the authority tó control the securities and judgments in the bank at Mobile, returned, and made collections out of them to the amount of - between $3,000 and $4,000.

Besides this amount, he has collected the judgment against Bennett to the. amount of $6,292.66, principal and interest, that being the amount due at the date of the collection by the marshal, on the execution, June 5th, 1848. The judgment had been recovered March, 184Ó, and execution issued returnable November term following. An alias .was issued 31st January, 1842, ■returnable March term following; and apluries 24th December, 1842.; a second and third, January and March, 1844; and'a fourth, and fifth, March, 1845, and April, 1848, on the last of which the sale took place of the property of Bennett.

The execution had been delayed by proceedings in the courts to. stay the sale.

This bill was filed in the court below to arrest this $6,292.66, in the, hands, of the marshal, Rogers claiming that the money belongs to him. It has been brought into court, and awaits the final decree in the cause.

On the 24th December, 1842, Lindsey petitioned for the benefit of the Bankrupt Act, passed August 19th, 1841, ánd obtained his discharge on- the 2d May, 1843.

None of the securities or judgments that he received from Rogers in June, 1840, at the time he gave him the note of $20,000,"is found ih the list of his assets. The only allusion to them is an obscure reference in his list of creditors to the note of BisselL& Carville, which he says was given to. C. D. Hunter as security for a debt due him.

The ground upon which Rogers claims that he is entitled' to the money collected on the judgment against Bennett, is: 1. That according to the agreement with Lindsey, at the time he took the note of $20,000, it was not intended to vest in the latter any interest in the securities and judgments that had been left in'the Planters and Merchants Bank at • Mobile, for collection, but only to confer an authority upon him to take charge of the settlement and collection of the same, so that the proceeds might be applied to the payment of the note. In other words, that there was no assignment, of these judgments in» tended, but a power to settle and convert them into money for the purpose stated, as Lindsey’s residence in Alabama enabled him tq give his personal attention to the business; and as he was deeply interested in realizing the payment of them, as -he was oh all the securities.

2. That admitting there had been an absolute assignment to .Lindsey, and that it was so intended, still the complainant is entitled to arrest the money in the hands of the marshal, and have it applied to his debt, on the ground that it was obtained by false representations, both in respect to the value of these judgments, Lindsey representing that they were worthless, and also' in respect to the solvency and responsibility of the sureties upon the note of $20,000.

On the part of Lindsey, it is insisted, that this note was given on the express condition that the judgments in the bank at Mobile were to be assigned absolutely to him for his own benefit; and that no fraudulent representations, as alleged, were made by him at the time.

The first question must depend upon the effect of the written 'instrument that passed between the parties as the result of the negotiation between them, as we have no other evidence on this branch of the case, except the allegations in the bill and answer. And, on looking at that instrument, we are satisfied that, upon a fair construction, it imports an authority to Lindsey to control the settlement and collection of these several demands ; but not necessarily a transfer of the title to, or interest in, them.

This interpretation satisfies the words of the instrument; and there is nothing in the transaction itself, or in the relation in which the parties stood to each other, that should induce the court to give it a strained construction in favor of this defendant.

If a transfer of the interest had been contemplated, as the instrument was drawn for the purpose of carrying into effect the agreement and understanding of the parties, it is surprising that words importing an assignment are altogether omitted, and those importing only an authority over the list of judgments, used. It would have been most natural to have drawn an assignment in terms. Nor do we perceive that it could have been of any material importance to ‘Lindsey to have stipulated fpr a transfer. The debt of $20,000 was his, and it. would fall due in six months, and the purpose of -giving this note as set up at the time, was to get some delay, so as to be able to realize something out of the securities in the bank at Mobile.. And whether he, therefore, took a transfer of them, or a full authority to settle and collect them, would seem, in view of any honest purpose, a matter more of form than substance.

Our conclusion, therefore.is, that Lindsey took no interest in these judgments, as assignee, by operation of the written directions given to the Planters and Merchants Bank, by Rogers, on the 13th June, 1840 ; nor is there any evidence in the case leading to that conclusion.

Having arrived at this result,' it is unimportant to inquire into the question of fraud relied on as vitiating the assignment upon the assumption' that one had been established. There is certainly very strong grounds for doubting as to the bona Jides of ' the transaction on the part of Lindsey.

The bill states that he represented the sureties upon the note of $20,000 as men- of undoubted means, and who would not allow their paper to be dishonored, and that, if he did not take it up at maturity, they would.

This Lindsey substantially admits in his answer.. And yet, the note was dishonored, and no portion of it paid by these sureties, and, as is apparent from the evidence, the demand could not have been collected by force of law. It is Unimportant, however, to pursue this branch of the case.

The next and only remaining question in the case is, in respect to an interest set up by the defendant, Atwo.od, in this judgment against Bennett. He. claims an interest to the amount of $2500, by an assignment from Lindsey, since his discharge Under the Bankrupt Act, some time in the year 1843 or 1844, by way of securing the payment of an old debt due before the proceedings under that act.

The bill charges, that Atwood knew Lindsey had ■ obtained the control of the judgmént against Bennett by false representations ; and that he conspired with him to consummate the fraud thus committed upon the complainant.

' This allegation is not met and denied in. the answer. Nor is there any dénial of knowledge that Lindsey had obtained no intérest in, or title to, the .judgment from the plaintiffs in the same, or from Rogers the complainant. He says he does not remember that he 'ever saw.any evidence of title to the judgment in Lindsey from Rogers & Gray, the plaintiffs, or from either of them, but avers, that he knew he had a title to the same from one Hunter. Neither does Atwood set up in his answer that he obtained the assignment of the interest he claims in the judgment bond fide, and without notice of the title of the complainant.

■ Under these circumstances, and in view of the nature of the defence set up by Atwood, it is quite clear he does not bring himself within the rule in equity which protects the title of a purchaser without notice. The bill virtually charged him with notice of the complainant’s interest in the judgment, for the purpose (of invalidating any claim that he might set up to the same under the assignment; and in order to protect himself, and to show that he was not in privity -with Lindsey, he was bound to. aver in his answer, that the purchase was made for a valuable consideration without notice.

Neither can he protect himself under the averment in the answer, that Lindsey obtained a title to the judgment from Hunter.

The facts are, that Hunter,in the Fall of 1841, took an assignment of this judgment from Lindsey, in consideration' óf a lot of land in Wilcox county, Alabama; and that in the Spring of 1844 he reassigned the same, and took Lindsey’s note for the demand. Lindsey, being the original party to the fraud, is disabled from setting up this title of Hunter, conceding it to be. a good one against the complainant. The reassignment clothes him with no better title than he possessed when he assigned the judgment to Hunter.

A purchaser with notice may protect himself by obtaining the title of a purchaser for a valuable consideration without notice, unless he be the original party to the fraud. - The bond fide purchase purges away the equity from the title in the hands of all persons who may obtain a derivative title, except it'be that of the original party, whose conscience'stands bound by the violation of the trust, and a meditated fraud. 1 Story, Eq. Jur. 397, 398, and cases. Atwood, therefore, can. derive no benefit from the purchase of Hunter, even if that had purged the equity of Rogers, as that equity immediately attached on the reassignment of the judgment to Lindsey, and bound it in his hands; and any one coming in under him chargeable with.noticé stands in no better situation.

In every view, therefore, that we have been able to take of the case, we think, the decree of the court below" erroneous, and should be reversed, and the proceedings remitted; with directions to enter a decree that the complainant is entitled to the fund in court collected upon the judgment against Bennett, together with costs of suit in this court and in the court below.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court" of the United. States for the Southern District of 'Alabama, a nd was argued by cpunsel. On consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to that court to enter a decree in favor of the complainant for the fund in court collected upon the judgment against Bennett, together with the costs of this suit in this court and in the said Circuit Court.


author: Mr. Justice McLEAN

text:
    Morgan McAfee, Madison McAfee, and James Alford, Plaintiffs in error, v. James T. Crofford.
    In an action of trespass, for forcibly invading a plantation, carrying off "some slaves, and frightening others away, it was proper for the plaintiff to give in evidence the consequential damages which resulted to his wood and corn.
    It was proper, also, to allow the defendant to give in evidence a judgment against the ownlV of the plantation, as principal, and himself as surety, and his own payment of that judgment. It was allowable, both as an explanation of his motives, and to show how much" he had paid; both reasons Concurring to mitigate the damages. .
    Evidence was also allowable to show that arrangements had been entered into between the principal and surety, whereby time would be given for the payment of the debt. This was allowable, as a palliation of the conduct of the principal in removing his slaves without the State.
    Evidence was also admissible to show that the surety had not been compelled to pay the debt, by showing that the creditor had been enjoined from collecting it. This was admissible, in order to rebut the evidence previously offered on the other side.
    It was proper for the court to-charge the jury that, in assessing damages, they had a right to take into consideration all the 'circumstances.
    This case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
    It was an. action of trespass brought by Crofford, who described himself as a citizen of Tennessee, but who • had a plantation in Arkansas. The suit was broúght against the McAfees and Alford, for acts which are described by the testimony stated in the first exception.. In the course of the trial there was but one bill of exceptions taken, which included the whole case. It will be better understood by dividing the rulings of the .court below, which is rendered necessary by the great 'length of the exception.
    There were three exceptions to the admission of evidence, and one to the charge of the court to the jury. The declaration contained four counts to the following effect:
    1st. For entering upon the defendant’s plantation, in the State of Arkansas, and forcibly carrying off and converting to the use of plaintiffs in error, a number of slaves of the value of $15,000.
    2d. For entering, and by threats and violence, chasing and frightening away from said plantation, other slaves of the value of $40,000, whereby said slaves were greatly damaged and lessened in value.
    3d. For the injury done to the defendant’s business of planting, and cutting ánd selling cord-wood,'by thus forcibly carrying off some of the slaves and frightening aw£y others.
    4th, For the value of the services of the slaves during the time they were gone from the defendant’s plantation, and wood-yard.
    •The plea was the general issue with an agreement, entered of record, that any matter constituting'a good plea in bar might be given in evidence upon'reasonable notice.

      First Exception. Upon the trial, Crofford, the plaintiff,’-offered to read the depositions of three of his neighbors, Parker, Driver, and Kafkemeyer, who testified in substance to the -following facts: —• About the last of October, of 1st of November, 184$, the McAfees and Alford, assisted by several other persons, all armed, crossed the Mississippi River in skids, and forcibly carried off twenty-one slaves from Crofford’s plantation. Crofford was absent. His overseer remonstrated, but the assailants replied that they intended to take all the negroes, and would kill any one who interfered. There were forty-two negroes, men, women, and children, on the plantation; but, as the assailants were engaged for several days in catching and transporting them to the opposite bank of the river, four, women and seventeen men were so frightened that they ran off into the swamps, and remained out five or six weeks. Crofford had some 1,800 or 2,000 cords of wood cut at' the time of these occurrences, which, on account of, the absence of the slaves, was either floated off or greatly injured by a subsequent rise in the river. In addition to this, the neighbor’s hogs, cattle, horses, and mules broke into the plantation, and" nearly destroyed 120 acres of growing corn; all, of which was the consequence of the absence of the hands.

      These witnesses testify, that the slaves carried over the riverf being twenty-one-in number, were worth $12,580; wood worth $2.50 per cord, and corn 50 cents per bushel.
    To all this testimony the plaintiffs in error objected, but the court overruled the objection, and the depositions were read.
    The counsel for the defendants below excepted.
    Crofford then proved that his plantation was in Crittenden county, Arkansas, and then closed his case.

      Second Exception. The defendants below, on their part, offered in evidence the record of a judgment, rendered in one of the courts of Mississippi, in favor of the Commercial Bank of Manchester against James T. Crofford and Morgan McAfee, for the sum of $4,143.93, together with divers writs of fi. fa. issued thereon, levied upon' Crofford’s property, delivery-bond given and forfeited, and fieri facias issued upon this. By virtue of this last fi. fa. the slaves forcibly carried away from the plantation, in Arkansas, were levied upon and most of them sold, producing the sum of $6,132, which fully satisfied the said execution.
    The McAfees also provedithat Morgan McAfee was only security for Crofford in the aforesaid judgment, and that at the time of executing the. delivery-bond mentioned .above, Crofford promised not to remove his negroes from Tallahatchie county, until said debts should be paid.
    The Me Afees then introduced a witness whose evidence, drawn out upon cross-examination, constituted the subject of this exception. The witness was introduced to prove various admissions made by Crofford in reference to the amount of his com crop and his cord-wood; which witness, upon cross-examination, stated, that in the same conversations Crofford said that Morgan McAfee had agreed with him to obtain from the said Bank of Manchestér an extension of one, two, and three years, in which to pay the said debt, and also to credit thereon a judgment of Crofford against Morgan McAfee, in the.United States District Court at Pontotoc, for about $l,500"or .$2,000. -To this evidence, elicited on cross-examination, the McAfees excepted.

      Third Exception. - The McAfees then proved that before the trespass complained of, Morgan McAfee' had paid the debt to the Bank of Manchester, which had assigned the judgment to Madison McAfee.
    As rebutting' testimony, Crofford offered to introduce the record of a proceeding by quo warranto in one of the courts in Mississippi, by which it appeared that at the time of the sale of the negroes upon said execution, the’ said bank, its agents, and 'its assignées, were enjoined from collecting any of its demands, though the levy upon a part of the, negroes was made before the execution of the writ of injunction. Crofford also offered to introduce records showing that he had existing unsatisfied judgments to the amount of $2,847 against Morgan McAfee. The defendants below objected to the admission of this rebutting testimony, but the court overruled the objection and admitted it, whereupon the McAfees excepted.
    The charge of the court was as follows: The court instructed the jury that a trespass had been committed by the defendants, “if the jury believe from the testimony that the defendant had a judgment in Mississippi against the plaintiff, the defendant would not be authorized to collect- said judgment by forcibly removing the property-of the plaintiff from the State of Arkansas to the State'of Mississippi.”
    • “ That in assessing damages the jury had a right to take into consideration all the circumstances to which said first charge the counsel for the defendants at the time excepted, before the. jury returned from the. bar of the court; and to which several matters and things the said defendants, by their said counsel, excepted, and tendered their said bill of exceptions as herein-before stated, and before the jury retired from the court, and prayed that the same might be signed and sealed by the court and made part of the record herein ; all which is done accordingly.” S. J. Gholson. [seal.]
    The jury found a verdict for the plaintiff and assessed the damages at. $10,613.72.
    ' The cause was argued in this court by Mr. Brooke and Mr. Volney E. Howard, for the plaintiffs in error, and Mr. Snethen, and Mr. F. Pi Stanton for the defendant in error.
    The counsel for the plaintiffs in error contended, that the Nerdict is .manifestly against, the testimony. The principle upon which damages are given in an action of trespass is to indemnify the plaintiff for what he has actually suffered, taking into consideration all the circumstances of the case. Bateman u. Goodwyn, 12. Conn. 575. In this case Crofford in reality sustained no damage, as the property taken was disposed of in discharge- of his own debt. “ In an action of trover, when the property converted has been sold and the proceeds applied to the payment of the plaintiff’s debt; or otherwise to his use, it-goes in mitigation of damages.” Pierce n, Benjamin, 14 Pick. 356; Prescott v. Wright, 6 Mass. 20; Caldwell v. Eaton, 5. Mass. 399; 14 Shep. 126.
    Whatever damages Crofford sustained, if any, were the consequences of his own wrong in removing this property beyond the limits of the State of Mississippi, in violation of his agreement with his surety, McAfee. If this verdict is permitted, to stand, Crofford will be suffered to take advantage of his own wrong in having his debt paid, amounting, at that time, to over six thousand dollars, and in addition receive, as a bounty for his dishonesty, the large amount assessed by the jury.
    The estimate put upon the negroes by the witness, Parker, is proven to be’ too great by the result of the sale, they only bringing, at said sale, about half of said estimate. There is no proof,, or pretence that the sale was not fair. It was made by the sheriff, and is to be presumed to have been made' in a legal manner, after due notice given.
    'The evidence as to the consequential damages to the corn and wood is too loose and indefinite to have received the consideration of the jury. It should have been ruled out by1 the court.
    “ Consequential damages are not recoverable in an action of trespass vi et a-rmis, for taking away goods.” , Alston v. Huggins, 2 Const. Rep. 688.
    “ Opinions of witnesses as to the amount of loss inadmissible.” 28 Wend, 425.
    McAfee may not have acted strictly within legal bounds in going to Arkansas, and taking the negroes by force; but when it-is reeolleetéd that he was Crofford’s surety, that Crofford had deceived and defrauded him by taking the negroes out of the ' State, thus leaving his surety to suffer, and this, too, in violation of an express agreement, surely Croffprd, the original wrongdoer, whose criminal acts superinduced the necessity of McAfee’s proceedings, cannot be heard to complain.
    ... Crofford recognized the payment and satisfaction of the bank judgment by endeavoring to take advantage of. it in defence to a .suit brought against him in equity, wherein the lien of this judgment was complained of. The deposition of J. J. Hughes, the cashier of the bank, proves the suretyship of McAfee.
    The record of the proceedings against the bank is wholly irrelevant, and the court erred in admitting it. At the time of the transfer of the judgment to Madison McAfee, the proceeding had not been commenced. No judgment of forfeiture was ever rendered. The other judgments introduced are also irrelevant, and have no bearing whatever on the case. At most they offset one another, and, as far as they are concerned, show but little indebtedness either way.
    In cases of this sort, appealing to principles of natural justice, more than to strict rules of law, it is conceived that the equity maxim, that the complaining party should come into court with clean hands, applies here as well as in a court of chancery.
    It may be said that the bank judgment was satisfied. by the payment by McAfee, and that the transfer to his brother was thereupon inoperative. Be this as it may, the moral obligation on Crofford remained the same. The attempt to evade the pay-m.ent of a just debt, and suffer the burden of it to fall on his surety, is the wrong complained of on our part — the wrong that gave occasion to the trespass and its consequences.
    The charge of. the court is manifestly incorrect. It assumes the fact that a trespass had been committed, and leaves nothing for the jury to determine in this, particular. .The remainder of the charge, — that “if the .jury believe, from the testimony, that the defendant had a judgment in Mississippi against the plaintiff, the defendant would not be authorized to collect said judgnfent by forcibly removing the property of'the plaintiff from the State of Arkansas to the State of Mississippi,” may be, and doubtless is, a correct proposition of law; but it does not necessarily follow that the existence of the judgment might not have been properly adduced to show that no actual damage had accrued. The manner in which the charge was given was well calculated to impress the jury with the idea that, although they “ had a right to take into consideration all the circumstances,” yet that the judgment was no circumstance at all worthy of their consideration.
    The counsel for the defendant in error contendéd that the only questions arising upon this record are: first, upon the charge to the jury; and, second,' as to the several items of proof maue by the defendant in error, and excepted to by the 'plaintiffs.
    As to the first, of these questions, no authorities can be necessary. There is obviously no erro,r in the instructions of the qourt to the jury. No bad faith on the part of Crofford, nor any breach of contract, could have justified the plaintiffs in error in going with an armed band into the State of Arkansas, and taking property by force, in order to subject it to an execution in Mississippi. This was a trespass, and if the .judge said so to the jury, he was fully sustained by the proof. p But this court has said, “ it will not examine the charge of the inferior court to the jury upon mere matters of fact and its'commentaries upon the weight of evidence. • Observations of that nature are understood to be addressed to the jury merely for their consideration as the ultimate judges of the matters of fact.” Carver, v. Jackson ex dern. Astor et al., 4 Peters, 80, 81;, Evans v. Eaton, 7 Wheaton, 426;. Garrard v. Lessee of Reynolds et-al., 4 How. 123; Games et al. v. Stiles, 14 Pet. 322; Hyde & Gleis.es v. Boraem & Co. 16 Pet.. 169.
    The exceptions to the testimony of the witnesses who proved the trespass, and the damages resulting to the crops and cord-wood, were evidently not well taken. All thfe direct and necessary consequences of á tfespass may be given in evidence, to enable the jury to estimate the full amount of damages incurred. Dickinson v. Boyle,T7 Pick. 78. In this case the court say:' “ Where the act complained of is admitted to have been doné with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the plaintiff, of which such injurious act was the efficient cause, and for. which the plaintiff’ is entitled to recover in any form, may be recovered*', in such action, although in point of time such damage did hot occur till some time after the act done.” Johnson v. Courts, Harris & McH. 510; Ogden v.- Gibbons, 2 South. 536; Duncan v. Stalcup, 1 Dev. & Bat. 440; Hardin et' al. v, Kennedy, 2 McCord, 277; Damron v. Koache, 4 Humph. 134; Wilcox v. Plummer, 4 Pet. .172, 182; Barnum v. Vandusen, 16 Conn. R. 200: All the circumstances of aggravation may be proved without minute averment. Warfield v. Walter, 11 G. & J. 80; Hammatt v. Russ, 4 Shepl. 171; Carrington v. Taylor, 11 East, 571; Keeble v. Hickeringill, Id. 574,m.; Id. 11 Mod. 74, 130; Id. 3 Salk. 9; 2 Greenl. Ev. § 268, a,' 254, 270, 272, 635, a. See note, 2 Greenl. § 243,' and the authorities there quoted.
    The exception to the statements of Crofford, drawn out upon cross-examination, is equally untenable. ‘They were parts of the same conversations which the witness detailed in his examination in chief. But the testimony was not material in any point of view, and could not have influenced the verdict of the jury. 1 Greenl. Ev., § 201, and the authorities quoted in the note thereto: ■
    As to latitude of cross-examination, see 1 Greenl. 449, 450, and notes.
    As to immateriality of testimony, Turner v. Fendall, 1 Cranch, 131.
    Erroneous instructions, if immaterial, not cause of reversal. United States v. Wright, 1 M’Lean, C. C. R. 509;. Forsyth v. Baxter, 2 Scam: 9.
    Exceptions taken to the records introduced as rebutting testimony— the proceeding by quo warranto, and the-judgments in favor of Crofford v. McAfee. As to the first of these, it is certain the Bank of Manchester, at the time of the execution sale of Crofford’s negroes, was enjoined by a competent tribunal from making that sale. It was competent to show this fact, riot to invalidate the sale, but to show the reckless disposition of the parties, and their contempt of lawful authority. It does not appear what effect this testimony had upon the case, or what instructions the judge gave in regard to it. The jury seem to have deducted the debt of $6,000, which was paid by the sale of the slaves, from the whole amount of damages, and given. their verdict for the balance.. This appears from the fact that the amount of the verdict is not equal to the value of the slaves actually taken away and sold, as that value was proved by three imcontradicted witnesses, besides the damage to the crop, the wood, and the slaves'who took refuge in the swamps.- The proof of the injunction could not have operated to prevént this mode of adjustment by the jury; it was admissible evidence only to show the animus of the plaintiffs in error; their disregard of the laws of their-own State as well as those of Arkansas, throughout the whole of these violent proceedings.
    . The judgments of Crofford v. Morgan McAfee were wholly .immaterial to the case, except po far as they tended to pslliate the bad faith of Crofford in leaving his security to pay. his debt. In' this point of view they were, admissible as rebutting testimony ; feeble and unimportant it may be, but still admissible. Havis v. Taylor, 13 Ala. 324; Gilpins v. Consequa, Pet. C. C. P. 85; Pettibone u. Deringer, 4 Wash. C. C. ft. 215. Even if th? admission of this testimony was erroneous, the court will not reverse, when it is plainly immaterial and inoperative in the case. .Zacharie & wife v, Franklin, 12 Pet. 151.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case is before us on a writ of error, to the District Court for the Northern District of Mississippi.

A judgment was obtained in favor of, the Commercial Bank of Manchester against James T..Crofford and Morgan McAfee, in the State Court of Tallahatchie county, Mississippi, the 24th of November, 1840, for the sum-of ¡$4,143.93, on which an execution was issued, and levied,on sundry slaves of Crofford, who owed the debt; McAfee, the. other defendant, being his security, a delivery-bond for the property was executed, which was forfeited the 22d of November, 1841, by which forfeiture the bond had the effect of a judgment. On,this latter judgment an execution was issued, which was levied on- twelity-one negroes owned by Crofford, all’of’whom, except three, were , sold by the sheriff for $6,132.

Some time after the first levy, it appears that Crofford removed with' his slaves across the Mississippi, and settled on a plantation on that river, in .Arkansas, not far from his former residence in Mississippi.

A short time before the last levy, Morgan McAfee, with an armed force, in the absence of Crofford, crossed the river, seized, from day to day, twenty-one., of. the negroes on his plantation, and brought them into Mississippi. The’.other slaves of Crofford were alarme^ and absconded, and were not reclairned'before the lapse of from four to six weeks. The; overseer of Crofford remonstrated, and some steps were taken to arrest the proceedings of McAfee, but his force was too strong, and he threatened to kill any one who should interfere with him in taking off the negroes. For this trespass an action was brought against the plaintiffs in' error. In the declaration, it was alleged, that by reason of the trespass, the plaintiff lost the -services of thirty negro men and as many women, &c., which, through fear, absconded, besides the number taken by McAfee, and that he was subjected to great expense in reclaiming them; that by taking the slaves, chásing, and frightening the others from his farm and wood-yard and from and about the business of the plaintiff, he was greatly damaged, &c. The defendants pleaded not guilty, &c. ■ A verdict for $10,613 was rendered by the jury, on which a judgment was entered. To reverse that judgment the writ of error was brought.

The exceptions arise out of the rulings of the court and the charge to the jury.

The trespass,was proved as charged in the declaration. The party were several- days in searching for and arresting the negroes, and all on the plantation not taken were frightened and fled.

The male slaves-were employed in cutting cord-wood, and supplying Crofford’s wood-yard. He had, at the timé of the trespass, it was proved, from eighteen hundred to two thousand cords of wood cut on the low ground back from the' river, which was worth two dollars per cord, and sold at the yard for two dollars and fifty cents; the hauling cost fifty cents per cord; that the river became swollen by rain, and having no hands to remove the wood to the yard, much of it was carried oft' by the flood, and what remained, was so injured by being under water as to make it unsalable ; that having no hands to attend the crop, the horses, mules, and other stock of the neighborhood, broke into the cornfield and déstroyed a large part of it; that corn was worth fifty cents a bushel at that time. There were one hundred and twenty acres in corn, which, with proper attention and protection, would have yielded forty bushels to the acre.

The defendant offered in evidence the judgment of the Commercial Bank against Crofford, as principal, and himself as surety, and a receipt for the payment of the judgment, amounting to the sum of $6,233.38, in mitigation of the damages claimed on account of the trespass, which, though objected to by the plaintiff, was admitted.

The evidence was. admissible on two grounds. First, to. explain the motive of the plaintiffs in error in committing the trespass, and thereby, in some degree, to mitigate the damages ■claimed. Second, to reduce or abate from the damages the amount paid in discharge of the judgment, not as an offsét, but in -mitigation of the injury done. This right resulted from the relation between the parties. McAfee was a co-defendant with Crofford in the judgment, but he was security only, and he had a right to expect, from the forthcoming bond and the assurances of Crofford, that the negroes first levied on would be delivered up in satisfaction'of the second execution. In an answer in chaneery, he alleged that the bank judgment had been satisfied. A stranger could not take the property of his neighbor, have it sold under process, and apply the proceeds in discharging the debts of his neighbor, and then claim the right to have such payménts received as a set-off, or in mitigation of the damages' done by the trespass.

The plaintiff below then introduced the transcripts of two judgments'in. the District Court against Morgan McAfee, one in favor of Crofford, the other assigned to him, amounting to twenty-one hundred dollars and upwards, which, though objected to by the defendants, was admitted by the court. For what Sose-this evidence was introduced was not stated; and under circumstances, if the records of the-judgments were admissible for any purpose, the exception to the evidence cannot be sustained.

It was proved, that at New Orleans, before the trespass was committed, McAfee agreed with Crofford to return to Mississippi and make an arrangement with the bank to give one, two, and three years, for the payment of the judgment against Crofford and himself; and he agréed to credit on said judgment the a.bove judgments against himself.

We think that those judgments were properly admitted as evidence, because they conduced to show that Crofford, in removing with his slaves to Arkansas, was less blamable- than charged by the-defendant McAfee, us he had grounds to believe that a part of the bank judgment would be paid by McAfee, and that an indulgence of some years would be obtained, for the oayment of the balance.

The judgments being admissible on this ground, it-is unnecessary to inquire whether they were not evidence to reduce the bank judgment paid by McAfee, under his agreement. This point might have been made, if the court had. been requested to instruct the jury that this effect could not be given to the evidence by the jury.. The judgments being admissible for the purpose first stated, it is unnecessary to inquire, if it were practicable to do so, which it is not,- how the evidence was applied by the jury.

The record of certain proceedings against the Commercial Bank of Manchester, in the nature of a quo warranto, was offered by the plaintiff in evidence, to show that the bank was enjoined from proceeding to. collect debts. This proceeding was. had in the Circuit Court of Yazoo county. An injunction was issued as stated.- And at November term, 1846, the court decided on the demurrers filed in favor of the bank, from which decision an appeal was taken to the High Court of Errors and Appeals of the State. The court admitted the evidence, overruling the objections made to it.

These proceedings, it is presumed, were pending in the Court of Appeals at the time the trespass was committed, as the contrary does not appear; but it is not perceived that the evidence could have had any other effect than to rebut the mitigating circumstances relied on by the defendants. In this view the evidence was admissible.

The loss of the services of the slaves, by the trespass, necessarily resulting from the abduction of a part of them, and driving off the others, are clearly within the rule of damages in trespass; and we. think the loss of the cord-wood, as proved, and the injury to the corn-crop, were also within it.

It is argued, that unless the inclosure for the protection of the crop was such as the law required, no damages could be allowed for the trespasses charged, and that the owners of the trespassing animals were liable, and consequently the., plaintiffs in error were not liable, .

Whether there was, at the time, a law in Arkansas regulating inclosures, we • have not examined, as it is a matter which can have no influence in the case. The question was fairly submitted to the jury, whether, under the. facts and circumstances proved, the injury to the corn-crop resulted from the loss of the hands. This was a matter of fact for the jury, whether the fence of the plaintiff was good or badif, by reason of the loss of the slaves, the breaches in the inclosure could not be repaired, or the plaintiff was unable, to guard his field, as was his custom, was an inquiry for the jury;, and in-making up their verdict, they must have 'considered the facts and circumstances connected with this branch of the case.

The same remarks apply to the cord-wood. Had the plaintiff not been deprived of his hands, he might have removed, sold, or in some other manner secured, the wood from being floated off by the flood. In regard to the corn and the wood, if the damage was a consequence, which necessarily followed the loss of the hands, the plaintiffs in error were liable. The instructions of the court were general and correct. 5 Phil, Ev. 188, 189 ; Barnum v. Vanduson, 16 Conn. 200; Carrington v. Taylor, 11 East, 571; 2 Greenleaf, Co. sect. 253, 254, 268 and 270, 272, 635 a.

The trespass was of an aggavated nature; notwithstanding the mitigating facts set up by the defendants, it was lawless and wholly inexcusable. It was a resort to physical force in defiance of law, and under such circumstances as to endanger life and property. Such a procedure should be reprehended by every good citizen. It gives a high claim to the injured party fór exemplary damages. We think there was no error in the proceedings, consequently, the judgment of the District Court is affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered arid adjudged by this court, that the judgment of the said District Court in this cause be, and the same, is hereby, affirmed, with costs and damages, at the rate of six per centum per annum.