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December 1, 1851


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 brought 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 and selling cord-wood, by thus forcibly carrying off some of the slaves and frightening away 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.

The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.

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, or 1st of November, 1846, the McAfees and Alford, assisted by several other persons, all armed, crossed the Mississippi River in skiffs, 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 river, 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 proved that 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 McAfees 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 corn 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 Manchester 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 $1,500 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 assignees, 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 hereinbefore 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.'


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. P. Stanton for the defendant in error.

The counsel for the plaintiffs in error contended, that the verdict 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 v. 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 v. 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 ...

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