Moore v. Love

• Decision Date: 31 December 1855
• Citation: 48 N.C. 215,3 Jones 215
• Court: North Carolina Supreme Court
• Parties: CHARLES MOORE v. JAMES R. LOVE.

3 Jones (NC) 215

48 N.C. 215

CHARLES MOORE

v.JAMES R. LOVE.

Supreme Court of North Carolina.

December Term, 1855.

In an action for enticing away an apprentice, where there has not been an entire loss of the apprentice, (as by removing him to a distant country,) it is erroneous for a jury to give damages for the loss of services for a period elapsing after the commencement of the suit.

ACTION on the case for enticing away apprentices, tried before BAILEY, Judge, at the Special Term of Buncombe Superior Court, July, 1855.

The plaintiff declared for the loss of the services of three children of color, that had been bound to him by the County Court of Buncombe. These persons left the employment of their master, the plaintiff, and went into that of the defendant, who resided about twenty-five miles off, in an adjoining county. They remained with the defendant until about the time of bringing this suit in June, 1849, when they left him for a while, but shortly afterwards returned, and, with intervals, continued in his service until the trial in 1855. The negroes were not concealed, and no allegation was made of an effort to remove them further than defendant's residence. After the writ issued, it was proved that defendant disclaimed any right to them, and sent word to plaintiff that he could get them. It was proved that some of them, after this, returned for a while to Buncombe, near the residence of the plaintiff, and several times passed from defendant's neighborhood to that of plaintiff.

Defendant's counsel insisted that if his client was liable at all, he was not liable in this suit, for the detention and employment of the apprentices after the suit was commenced, and asked his Honor so to charge.

But his Honor instructed the jury, that if they found that the defendant had, by himself, or through another, enticed the plaintiff's apprentices from his service, as alleged, he was entitled to recover some damages; and that in estimating the damages, they ought to include the value of the services of the several apprentices while in the defendant's service, either before, or after, the commencement of this suit, till they arrived at majority; subject to such deduction as they thought ought to be made for the chances which the plaintiff had to reclaim the possession of them. To this charge of his Honor, defendant's counsel excepted.

Gaither, N. W. Woodfin and H. C. Jones, for plaintiff .

Baxter, for defendant .

BATTLE, J.

This cause was argued before us at the last Morganton term, by counsel on both sides, and we then gave to it all the consideration which the limited library there enabled us to do. For the purpose of further research into the authorities upon the interesting question which the case involves, we adjourned it to the present term, and the investigation which we have here been able to make, has satisfied us, that the rule of damages laid down by the presiding Judge in the Court below, cannot be sustained upon principle, and is opposed by the most approved adjudications.

That eminent lawyer, Lord Chief Baron Comyn, in his great work, the Digest of the laws of England, says, “the general rule in personal actions is, that damages are allowed only to the time of the action commenced.” 3. Com. Dig. Tit. Damages D. p. 348. Thus, in Hambleton v. Veere, 2 Saund. Rep. 169, which was an action on the case where the plaintiff declared against the defendant for procuring his apprentice to depart from his service, and for the loss of his service for the whole residue of the term of his apprenticeship, and the jury assessed damages generally, judgment was arrested; because it appeared that the term was not expired at the commencement of the suit; and the Court said expressly, “he ought to have recovered damages for the loss of services until the exhibiting the bill, and no more.” So, in Ward v. Rich, Vent. Rep. 103, (to be found also in 7 Vin. Abr. 298, pl. 25,) Ward brought an action de uxore abducta, and keeping her from him until such a day, which was some time after the exhibiting the bill. After verdict for the plaintiff, judgment was arrested; because the jury may have given damages for the whole time laid in the declaration. Again, in Walter v. Warren, 10 Modern Rep. 273, an action was brought by a husband for taking his wife away and ravishing her, per quod consortium amisit for one year; and after a verdict and general damages, inasmuch as the year had not expired at the time of the verdict, and as the jury might have given damages to the time of the verdict, the Court would not render a judgment for the plaintiff. The rule of damages adopted in these cases, only followed what had been laid down long before in Robert Pitfold's case, 10 Coke's Rep. 115, to wit: that the plaintiff in all personal actions, except perhaps the action of account, is entitled to recover damages only for the wrong done before the writ was brought, and shall not recover for any done pending the writ. In accordance with this, is the well-known doctrine, that in an action on the case for nuisance in erecting a mill-dam, and thereby overflowing the plaintiff's land, he can recover damages only up to the time of issuing his writ; but that he may sue from time to time for the continuance of the nuisance. Caruthers v. Tilman, 1 Hayw. Rep. 501; Bradley v. Amis, 2 Hayw. Rep. 399. This, being very oppressive upon mill-owners in this State, caused the passage of the Act of 1809, (Rev. Code, ch. 71, sec. 8, et seq.,) which made very material alterations in their favor. See Mumford v. Terry, 2 Car. Law Repos. 425. But the necessity for the alteration shows the strength of the original rule. Indeed, so rigidly was it adhered to in England, as to the time to which damages should be carried down, that, until the case of Robinson v. Bland, 2 Burr. Rep. 1077, interest on money in the action of assumpsit, was not computed beyond the commencement of the action.

There is another class of cases, some of which were cited by the plaintiff's counsel, and upon which they rely with much confidence for the support of their action. An examination of these cases will show under what circumstances, prospective damages, as they have been called, may be given, and will serve to mark out the true line of distinction between them and those to which we have already adverted. Fetter v. Beale, reported in 1 Ld. Raym. 339, 692, and also 1 Salk. 11, was an action of trespass, in which plaintiff declared for a battery, alleging that he had previously brought an action for it against the defendant, and recovered £11, and no more; and that afterwards part of his scull, by reason of said battery, came out of his head, and for this subsequent damage, the suit was brought. The defendant pleaded the former recovery in bar, to which plaintiff demurred, and his counsel argued “that if a consequence will take away an action, for the same reason it will give an action.” But judgment was given for the defendant, the whole Court being of opinion, “that the jury in the former action considered...