#### J. and M. Littleton, Appellants, v. Moses, a man of color, Appellee.

APPEAL FROM UNION.

A judgment will not be reversed, if the court give instructions to the jury, substantially as asked for. (1)

It is not error in the court below to refuse a new trial.

This was an action brought in the Union circuit court by Moses, a man of color, for a trespass, assault and battery, and false imprisonment; to which the defendants pleaded not guilty. The jury found a verdict for the plaintiff for forty dollars in damages. On the trial, the defendants moved the court to instruct the jury, that there must be proof of actual restraint at the time of action brought, or a claim to restrain plaintiff, before the plaintiff can recover in this form of action.

*394 Second. That there is nothing in the pleadings in this case different from a common action of assault and battery and false imprisonment, and the question of freedom or slavery is not involved in the pleadings.

Third. That by virtue of our constitution, the plaintiff was a free man, and had a right, by virtue of the laws, to hire himself to whom he pleased.

Fourth. That for the services rendered by the plaintiff, he can recover in an action of assumpsit, but not in this action.

Fifth. That the fact of seeing plaintiff working for defendants is not sxxfficient in law to establish an illegal restraint.

The court instrxxcted the jury that the mere fact of the plaintiff’s woi’king for the defendants, and under their control, was not of itself sufficient (unconnected with other circumstances) evidence of his being restrained of his liberty ; and further, tlie coxxrt instructed the jury that in this form of action, the plaintiff could not recover for services rendered, unless the jury should be satisfied from the evidence that there was restraint or force used to compel him to work, or to abridge him of his liberty. The court further instructed the jxxry, that if they should be satisfied from the evidence, that the defendants had exercised restraint or force over the person of the plaintiff, that they should find for the plaintiff a verdict. The coxxrt also instructed the jury, that from the state of the pleadings it was not different from the common action of assault and battery and false impi’isonment. The defendants moved for a new trial, which the coxxrt overruled, and excepted to the opinion of the court in refxxsing to give the instructions asked for, and in refxxsing anew trial, and brought the case, by appeal, to the supreme court.

Brcese, for appellants,

assigned for error, that the court did not give the instructions as asked for by the defendants below; 7 Cranch, 506. That the count erred in giving the instructions they did give; and also erred in giving judgment in this action, if brought to try the plaintiff’s right to freedom, for more than nominal damages. 2 Call, 343.

Baker, contra.

(1)

See note 2, to the case of Humphries v. Collier et al., ante, p, 297.

Browne, J.,

delivered the opinion of the court. This was an action of trespass and false imprisonment, in the circuit court of Union county, and brought here by appeal. The defendants, by their counsel in the court below, pleaded not guilty. Tlie counsel for the defendants moved the coxxrt to instruct the jury on certain points of law, which was substan*395tially given by the court as asked, so far as they had any relation to the points before the court. The jury returned a verdict for the plaintiff below for forty dollars in damages. The counsel for the defendants then moved the court for a new trial, which was overruled, to reverse which opinion this appeal was brought.

It is a principle well settled, that the refusing to grant a new trial is no cause of appeal, and it has been so decided, frequently, in this court. Clemson v. Kruper, ante, 210, and the cases there referred to. This court is, therefore, of the opinion that the judgment of the court below be affirmed. (1)

Judgment affirmed.

(1)

See pote to the case of Sawyer v. Stevenson, ante, p. 24,