There does not appear to be any error in the joinder of the different counts in this declaration. The true distinction does not rest on the sameness of the process, plea and judgment; but on this consideration, whether the action is founded on tort or contract; if the former, it may be joined with *any tort, and if the latter, with any contract. 2 Bl. Rep. 849. 2 Wils. 319. Sed vid. 1 Term Rep. 276. L 111
Nor does the statute of limitations seem to apply to this case. The bar only takes place from the time when the right accrues, and not from the time of making the promise. 3 Burr. 1281. The jury are trying a question either of active or constructive fraud. Wherever there is a fraud, the statute of limitations is no plea, unless the fraud be discovered within the time; 3 Wms. 143, nor even if the fraud be discovered within six years, unless the defendant were conscious of it. Doug. 655. 1 H. Black. 635.
While the slavery of the negro was un contested, the plaintiff had no ground to suppose he had been injured or deceived; but when he obtained his liberty in a due course of law, his right of action accrued against the defendants.
The true rule in assessing the damages seems to be, by fairly estimating the yearly services of the negro during the time he was held by the plaintiff, and deducting thereout his clothing, maintenance, and other necessary expenditures. As far as this balance exceeds the yearly interest of the consideration money, it should go towards the payment of the principal sum. For the residue, together with the 100 dollars damages, and 18 dollars and 59 cents costs and a reasonable sum for defending the action of replevin, and interest on the different sums, the plaintiff appears entitled to a verdict, as the fair measure of his damages.
Verdict pro quer. for $425 damages.