McClees v. Sikes, 46 N.C. 310, 1 Jones 310 (1854)

June 1854 · Supreme Court of North Carolina

46 N.C. 310, 1 Jones 310

JOHN AND WILLIAM McCLEES v. TRUXTON SIKES.

A count for trespass vi et amis to slaves, may be joined, with a count for trespass quak-e clausum fkegit to land, in the same declaration.

Trespass is the proper action for driving off slaves, though the defendant did not touch them.

This was an action of TRESPASS, tried before his Honor Judge Bailey, at Spring Term, 1854, of Tyrrell Superior Court.

The plaintiffs declared in two counts: first, for a trespass, for entering upon land; and, secondly, for a trespass, in forcibly driving away certain negro slaves. The plaintiffs had placed the negroes in question to work at the business of getting shingles upon a tract of land which belonged neither to the plaintiffs nor defendant, hut to one Blount, and the defendant entered upon the land, and drove the negroes off. The plaintiffs, after going through with the evidence, abandoned their claim for damages on the first count, and therefore no instructions were given upon that count. Upon the second count, the Court charged the jury, that if the defendant went upon the land and drove the plaintiffs’ hands away, they were entitled to recover. A verdict was rendered for the plaintiffs on the second count.

Exception was taken to the joinder of the two counts, which was over-ruled.

Motion for a venire de novo upon exception to the instruction of his Honor to the jury. Motion over-ruled, and appeal to this Court.

No counsel appeared for the plaintiffs.

Heath, for the defendant.

Battle, J,

The objection to the joinder of the count for trespass vi et armis to slaves, with that for trespass quare clausum fregit to land, is clearly untenable. The form of action is the Same, requiring the same plea and judgment. The question is too plain to require any reference to authority.

We think there is very little more force in the other objection. The defendant’s conduct was certainly an unlawful interference with the plaintiffs’ slaves. He did not touch them, it is true, but his driving them off was a direct injury with force, similar to that of an assault, for which trespass vi et armis is the proper remedy. In the case of Sample v. Bell, Bus. Rep. 338, where the action was trespass on the case, there was no force, either actual or implied. The present is a much stronger case than that of Loubz v. Hafner, 1 Dev. Rep. 185, in which it was held that, where the defendant beat a drum near the highway, which caused a team of horses to run away with, and damage a wagon, trespass vi et armis was the proper action. The judgment must be afiirmed.

Per Curiam. Judgment affirmed.