author: „Ir. Chief Justice WateiNS

text:
    McConnell vs. Hardeman.
    In an action of trespass to personal property, it is necessary that the plaintiff aver that the property, for the taking or injury to which the action is brought, is of some value.
    The statutory enactments in this State, in relation to the liability of the master for the tortious acts of his slaves, are modifications of the general law, which does not hold, the master liablo unless such acts were done by his orders, or with his privity, or were sanctioned by him: and, therefore, the liability of the master, for acts of his slaves, in which he did not participate, must be restricted to those trespasses which are indictable offences, or, not being so, are specified in the statute.

      Error to Johnson Oi/row/b Oov/rt.

    The lion. A. B. GkeeNWOOD, Circuit Judge..
    BatsoN, for tbe plaintiff.
    Bowler, for tbe defendant.
    Unless tbe master actually command or consent to tbe trespass committed by bis servant of slave, an action of trespass cannot be maintained tberefor against bim. 1 Oh. PI. {Ed. of 1809) 18% Johnson vs. Gastleman, 2 Pana B. 378/ Middleton vs. JBowler, 1 Salic. Pep. 182/ Puryear vs. Thompson, S JEDimph. Pep. 399/ Wright vs. Weatherby, 7 Yerg. 378/ Ohureh vs. Mansfield, 20 Corm. Pep. 287.
    Tbe second and third counts, each fail to allege that tbe horse was of any value; wbicb is a fatal defect. See 1 Esp, ED. P {N. York Ed. of 1811) p. 407/ 1 Oh. PI.- {El of 1808) 363/ Stephen on PI. 347.
   „Ir. Chief Justice WateiNS

delivered the opinion of tbe Court*

Tbe plaintiff in error sued tbe defendant in trespass, for tbe tortious act of bis slave in taking. the plaintiff’s horse. Tbe case went off in tbe Court below upon demurrer to the declaration, which was adjudged insufficient. The second count does not vary materially from the first in setting out the cause of action. The third charges the trespass to have been committed by the defendant in person. But these two counts are defective in failing to describe the property other than as the plaintiff’s horse, containing no averment that it was of any value, or any reference to such description in the first count. The substantial allegation in the good count is, that a certain slave, owned by the defendant and in his possession, seized, took, and rode off a certain horse belonging to the plaintiff. Considering the gravamen of the action to be for a trespass committed by the slave without the command or license of his master, a question of much interest in a slave-holding community, has to be determined.

It is quite apparent that there is but little similarity in the relation of master and slave, and that of master and servant, at the 'common law. The slave is property, and though, for some purposes, treated as a person, amenable to the law, and, at the same time, entitled to its protection for offences committed by or against him, the dominion of the master is absolute, except so far as it may be restrained or regulated loy statute. Hie duty of the slave is obedience. His services and his acquisitions belong to the master, and in return for this, the duty of the master is to support and provide for the wants of the slave in sickness or in health, and to protect him against all unlawful violence or injury. Negro slavery is a domestic institution, no further controlled by statutory enactments than has been thought necessary by the Legislature, to ameliorate the condition of the slave and preserve the peace and good order of society. It is not founded in any contract between the master and the slave; and while the status or condition of the slave continues, no valid contract can be made between them. If the slave be injured by third persons, the redress by action is in the master, nor can the slave become civilly liable for injuries done by him to the master or to third person#.

On the other hand, at the common law, the servant, though a menial, has civil, and may have political rights; his service begins, continues, and terminates in contract with the employe?. Though necessity may often be a powerful incentive to obedience, he owes no duty beyond the obligation of complying with his agreement for service. The acquisitions of the hireling are his own, and though a recovery against him at law might be fruitless, the theory is, that he is not otherwise responsible for the private injury resulting from his torts or breaches of contract. The Inaster is not responsible for the wilful or malicious trespass of the servant, to whom alone the injured party must look for redress. The liability of the master for the misconduct or negligence of the servant, while engaged in his employment, implies a corresponding liability on the part of the servant to the master for the consequences of his fault. The loss of service and character may also be checks upon persons of this class, ensuring their fidelity and good behavior.

On first impression of these broad distinctions, it would seem that the master ought to be liable toynalce reparation'in damages to the person injured by the trespass of his slave. It was so according to the civil law, to which the institution of slavery as it exists in-some of the American States, is very nearly assimilated. And yet, with the exception of Louisiana, such has not been the course of decisions in this country. It may be that the earlier decisions on this subject, where the common law system of pleading had been adopted, were influenced more by the form than the substance of the remedy, following a rule of law founded on reasons which have but little application to cases of this description. Of course, where the master commands or approves the trespass of his slave, it becomes his own act, and he may be sued for it, as if committed by himself. But the question is concerning those acts of the slave, which are done or omitted without the authority of the master, or even against his orders. In Snee vs. Trice, (2 Bay, 345), decided in South Carolina, in 1802, the extreme ground was taken that a master was not liable for the unauthorized acts of his negroes, though engaged in his service- or employment at the time, or for any act of tbeirs injurious to others, if done without his knowledge or approbation, though it was admitted that in all eases, i-n the way of trade or any public-employment, or where- a confidence is held out to the-public, the master--would be liable in damages to the party injured by the negligence or misconduct of the slave. As may be-supposed for example, a negro black-smith who shoes sc horse so1 negligently as to lame him, the master would be liable to the customer for his slave’s want of skill. So a slave ferryman, ^ or can-ier, when allowed by the master to act in that capacity, (3 McCord 400.) The Court, in Snee vs. Trice, argued that slaves-in Carolina being in general a.headstrong, stubborn race of people, who had a volition of their own, and the physical power of doing great injury to- neighbors and others, without the possibility of their masters having any control over them, especially when absent from them, it would be almost dangerous thing- to make-their masters liable for their unauthorized acts to the extent of the common law, where masters are liable for the neglects of their servants. In other words, as the counsel argued, such a doctrine would place every master in Carolina iu the power of his slaves* who might, by their misconduct, ruin him, whenever they pleased to combine- together for that purpose. The Court said: “ Other salutary checks-have been found by experience, more efficacious than that of recovering damages from the master.’.’ We are not told what those checks were, but they must have consisted in corporal punishments, which could not well be more severe or efficacious, if inflicted in pursuance of some- sentence of law, than if adininistei-ed by the master himself in the way of'correction. Tbe difficulty is, that the punishment of the slave in either mode, and the master might be indifferent to the mode, produced no compensation to the person injured by the trespass of the slave. The more recent case of Parham vs. Blackwelder, (8 Iredell 446,) is the best reasoned one we have-met with, in support of the rule established in South Carolina. There, a slave of the defendant went with his master’s wagon- and team to the land of tbe plaintiff, and cut and hauled away a load of wood, and carried it to tbe defendant’s yard, for wbicb tbe plaintiff brought trespass. BmmN, C. J., took tbe broad ground that, although tbe slave was in bis master’s employment, tbe master would not be liable if tbe- servant wilfully committed tbe act; that is, without the direction of tbe master. That, be says, is tbe true criterion of tbe master’s responsibility; whether he was or was not tbe cause of tbe trespass by expressly ordering it, or subsequently sanctioning it; and not whether the person injured can or cannot have an action against the servant. If it turned on tbe latter ground, tbe owner would be liable, • though be were present forbidding tbe servant, and doing all be could to prevent him from doing tbe wrong. In fine, it would bind the master to answer in damages for all tbe acts of a bad negro, upon tbe presumption of an authority to commit them; a presumption, which, as it seems to us, cannot be drawn from tbe relation of master and servant, in reference to one kind of servant more than to another. It is tbe misfortune of one, who is injured in his person or property by another, that be cannot obtain adequate pecuniary satisfaction; but the misfortune is not greater when the wrong-doer is a slave, than when be is any one else who has no property. That be is not able, in either case, to have such redress against tbe perpetrator of tbe wrong, affords no reason why be should recover from one,who is as innocent as himself.” Such is tbe conclusion of tbe Court in that case, and though we might suppose it to be based upon a fundamental error in regard to tbe nature of negro slavery, there are two considerations urged in support of it, one of which is certainly entitled to much weight. The Couid say, that for tbe very reason that slaves are not liable for damages, our law renders them summarily punishable corporeally, in many instances in which free persons are not indictable; though that might be to some extent a consequence of tbe rule, rather than a reason for its adoption. But it was urged that the liability of tbe master, for any trespasses of bis slaves not sanctioned by him, would render it necessary to his own preservation from ruin,” to keep tbem up, as be does bis beasts, to prevent tbeir going on tbe premises of another; “a doctrine,” Judge Ruffot said, “ as abhorrent to tbe feelings as it is contrary to tbe usages of tbe country,”

In Tennessee, tbe master is not liable for tbe trespass of bis slave, unless be was privy to, or participated in, tbe act, and this, whether tbe slave be regarded as property only, or as a servant at tbe common law, (Wright vs. Weatherly, 7 Yerg. 367.) Upon tbe authority of this case, and that of Snee vs. Trice, tbe Court of Errors in Mississippi, in Leggett vs. Simmons, (7 Smedes & Marsh. 348,) held, though in a very doubtful and hesitating manner, that tbe civil liability of tbe master for tbe felonious killing, by bis slave, of tbe slave of another, depended upon tbe criminal knowledge or agency of tbe master in tbe transaction. In tbe interesting case of Brandon vs. The Huntsville Bank, (1 Stew. 320,) where tbe plaintiff’s slave found a roll of bank notes, which a stranger took from him and deposited in a bank for safe keeping, and tbe true owner not appearing, tbe plaintiff brought trover against tbe bank for tbe notes, Judge Saffold was of opinion that because tbe money, when found by tbe slave, became tbe acquisition of tbe master, and be was entitled to recover it against all tbe world but tbe true owner, it did not follow that tbe master would have been liable to tbe owner, in case tbe slave, after finding tbe money, bad wasted, concealed, or wantonly destroyed it, without bis master’s consent or privity. He thought that, in this country, in order to create responsibility on tbe master, tbe slave must, at tbe time, be in bis immediate employment, or from bis vicious habits and general liberty, some degree of culpability must attach to tbe master to make him responsible.” See also Cauthon vs. Deas, (2 Port. 276.) 'Without pursuing this examination further, it may be said that, at every turn, we find these questions complicated in tbe frame-work of society, by peculiar considerations, not referable to tbe common law, or governed by its analogies. Eor instances of this, may be cited Scuddar vs. Woodbridge, (1 Kelly 195,) and Neal vs. Farmer, 9 Georgia 555.

Our statutory provisions, affecting masters’ liability, are in imitation of the civil law, though essentially differing from it, Under the title, Gri/mi/ndl 'Law, a variety of trespasses are made indictable, such as killing, maiming, or administering poison to domestic animals ; and, in like manner, many kinds of trespasses on real estate are specified. In the same title, under the head of Simes, the statute provides that masters of slaves in this State shall be held responsible for the full amount of single damages and costs of the trespass of his slaves, and any person injured by the trespass of any slave shall have his action against the master for the damage -he may have sustained by such slave.” And ip all trespasses cmd offences less than felony, committed by any slave, on the person or property of another, the master may com? pound with the injured person and punish his own slave, without the intervention of any legal trial or proceeding; but if he refuse to compound, the slave may be tried and punished, and the damages recovered by suit against the master. Under the head of Trespasses, where civil remedies are provided for specified injuries to land, fences, growing crops, and the iike, the person trespassing is made liable to pay double, and, in some instances, treble damages. Section 5 enacts that, “ if a slave commit any of the trespasses mentioned in the first two sections of this act, the party injured may bring his action against the master, owner (or hirer for the time being) of such slave, for the recovery of single damages,” &c. But if such trespass be committed under the direction of the master or owner, he is responsible for the same as if committed by himself. So by the act of January, 18th, 1843, the trespass of a slave or apprentice on the school lands, is made the act of the master.

These statutory provisions give color to the idea that masters are unqualifiedly liable for all trespasses committed by their slaves, though done wilfully and without the consent of knowledge of the master. But we must be content to take the general law to be as settled the other way, and from an early period in our sister States, according to tbe decisions before referred to. Though not .satisfactory, it would be unsafe to depart from them. By the civil law, the master is answerable for all the damages occasioned by an offence or quasi offence committed by his slave, but if done without his order, he may exonerate himself by surrendering the .slave to be sold. (Gurrier vs. Lambeth, 9 Louisiana Rep. 339.) As laid down in the Institutes, (Coop. Justinian 355,) “ It is reasonably permitted to the master to deliver up the offending slave, for it would be unjust to make the master liable beyond the body of the slave himself.” But our statute prescribes no such reasonable limitation to the responsibility of the master, who would •thereby be prompted to vigilance, without being exposed’ to utter ruin by the misconduct of his slaves. "We consider that the statutory enactments in this State are modifications of the generallaw, ,and, therefore, the master’s liability for acts of his slaves in which he did not participate, must be restricted to those trespasses which are indictable offences, or not being so, are specified in the statute. The case of Jenning vs. Kavanaugh, 5 Missouri 26, and that of Ewing vs. Thompson, 13 Ib., are direct authorities for 'guch construction. The common law being inapplicable to domestic slavery, the idea is to be repudiated that the master’s liability is to depend, as for injuries done by his beasts, upon his knowledge of the vicious propensities of his slave, and the consequent negligence of permitting him to go at large. The common law doctrine relating to master and servant, though equally .inapplicable, having been adopted, any extension of the master’s liability is the creature of the statute. In any future expression ,of the legislative will, it will be for that department to consider, yvhethpr the true interests of slave-holders would not be promoted by making them liable for all trespass committed by their slaves^ -thus removing many causes of jealousy and ill-feeling against the .owners of that species of property, and at the same time protect them by limiting their liability, as at the civil law, to the value of the offending slaves.

Tbe act of tbe defendant’s slave, as charged in tbe declaration,not being one of those trespasses enumerated in tbe statute, for which tbe master could be made liable, whether in form of tress-pass or case, the judgment of the Court below is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice WateiNS

license: Public Domain

text:
    Ridge vs. Featherston.
    la art action against the mastef for a trespass committed by his’ slavb in Killing an5 animal belonging to the plaintiff, the- declaration should ayer that the killing- wa^-wilful and malicious.-
    The act of killing a horse, done wilfully and maliciously, is one of those indictable" offences enumerated in the statute; and, ■ for which, if committed by a slave, the" master is-made responsible in damages to the party injured.
    The action may be in case or trespass, according as the one or the other is the moré' appropriate remedy with reference to the comnlon law distinctions between these-forms of action.
    In a civil suit against the master to recover damages for an unauthorized act of the" slave, proof of his admissions or statements — certainly those not accompanying oN explanatory of the act done — cannot be admitted-against the master.

      Error to Benton Cireuit Gowrt,

    Before'Hon. B. H. Neelt, Circuit Judge:-
    "Walker & GreEN, for the plaintiff,
    made the following-pointsÍ 1st.- That the action should have been in case and not in tres^ pass: (Gomyn’s Big., rol. 7, Title Trespass, [B. 5,]p. 513/ 1 Ch* PI. 80/ Bo/rns vs. Bud, 11 Mass. 57/. 2 Oh.- PI. 867).." Where' a-statute prohibits fin injury, and enacts that the party injured shall recover a penalty or damages for tbe injury, and is silent as to tbe form of action, case is tbe proper remedy. 1 Oh. PI. 142.
    2d. Tbat if trespass was tbe proper remedy, tbe declaration is defective.
    3d. Tbat tbe Court erred in admitting, as evidence, tbe declara^ tions of tbe slave.
   Mr. Chief Justice WateiNS

delivered tbe opinion of tbe Court;

Tbis was an action of trespass by Featberston, tbe plaintiff, in tbe Court below, in wbicli tbe cause of complaint, set forth in tbe declaration, is, tbat "Wagoola, a slave of tbe defendant, shot and killed a certain mare, belonging to tbe plaintiff. Tbe only objection tbat can be taken to tbe declaration, in other respects Sufficiently formal, is, tbat in stating the cause of action it is not averred tbat tbe killing of tbe animal was wilful and malicious, Which we apprehend should have been 'done, or at least some words of a corresponding import used in conformity with the language of a penal statute. Tbe proof at tbe trial was, tbat tbe defendant bad three negro men, all of whom frequently carried guns; tbat used by Wagoola, being a large rifle. A few days before tbe mare was shot,, a witness beard "Wagoola tell tbe plaintiff, tbat if be did not keep her away from tbe defendant’s plantation, be, Wagoola, would kill her. Tbe mare was found shot, in defendant’s field, tbe wound having tbe appearance of a large bullet bole. Tbe field Was neax* tbe defendant’s bouse, tbe gap to it being open, and tbe fence down in several places. It was winter, and tbe frozen state of tbe ground indicated tbat tbe fence bad been down for some days previous.

Tbe Court, against tbe objection of tbe defendant, admitted evidence of what tbe witness beard "Wagoola say, and also instructed tbe jury that tbe threat made by him “was evidence conclusive to prove tbe plaintiff’s case, and should be taken into consideration by them.”

Tbe defendant moved for a new trial; and also in arrest of judgment, because the plaintiff’s remedy could only have been in case.

The act of killing a horse, done wilfully and maliciously, is one of those indictable offences enumerated in the statute, and for which, if committed by a slave, the master is made responsible in .damages to the party injured. (McConnell vs. Hardeman, decided at the present term.) The remedy here was not misconceived ; but though the statute used the word trespass as descriptive of the act, no reason is perceived why the form of the remedy may not be in case or trespass according as the one. or the other is the more appropriate remedy, with -reference to the .common law distinctions between those forms of action.

Looking to the context of the instruction, the expression used in the charge, that the threat made by Wagoola was conclusive, must have been inadvertently given. But it was clearly not evidence, against the defendant, not shown to have been present, or to have authorized the slave to make it. No doubt there may be cases where the master recognizes or holds out his slave ashis agent, so as to become bound by the acts and declarations of the slave connected with his agency. And it may be supposed, that after a conspiracy has been established, by competent testimony, between a white person and a negro, the declarations of either in furtherance of the common design, would be admissible against the other. But nothing of the kind is shown here. In an indictment against the slave for the offence of killing the animal, evidence of his previous threat would be admissible, and, in connection with other circumstances, might go far to satisfy the jury of his guilt. But, in a civil suit against the master, to recover damages for an unauthorized act of the slave, proof of his statements or admissions, certainly those not accompanying and explanatory of the act done, cannot be admitted against the master without indirectly making a negro a competent witness against a white man. The judgment will be reversed, and the cause remanded, with instructions to grant a new trial, and with leave to the plaintiff, if desired, to amend his declaration.


author: Mr. Chief Justice WatKINs

text:
    Hervy vs. Armstrong.
    The patrol system is a police regulation for the several townships in. a county ¡ and the authority of each company of patrol is limited i;o the township for which it is appointed.
    In an action by an inhabitant of one township against members of the patrol company of another, for whipping his slave, evidence that such company was invited by some inhabitants of the former township to attend therein and disperse an unlawful assemblage of slayes, is not admissible upder the plea of justification.
    Although the battery of a slave, without excuse or provocation, by one not having authority to correct him, is an indictable offence, the master cannot recover in a civil action for whipping his slave, unless he proyes special damage or injury to the slave resulting in a loss of service.

      Appeal from Ouachita Gvremt Cou/rt.

    Hon. Shelton ’Watson, Circuit Judge,
    Curran, for tbe appellant,
    Tbe statute {Rig. 769, seo. 1) provides that a company of patrol shall be appointed in (not for) eacb township : and, though they are not bound to patrol out of their township, tbey are not confined to their particular township; as is tbe case witb justices of tbe peace, wbq may act out of tbeir respective townships, Humplvries vs, MoCraw, 5 Ark. Hep.

    It is notan offence for a white man to assault a slave, unless it is done “ without cause, lawful excuse, or without sufficient provocation,” (State vs. Hale, 2 Ha/whs. Rep. 582): and may be justified where a slave is at an unlawful assembly. Smith vs. Ham-cock, 4 JBihb. R. 222.
    Trespass will not lie by a master for a trespass on bis slave, unless it be attended with g, loss qf service, Cornfute vs, Rale, 1 Haw, & John. 4,
    Gallagher, contra,
    argued, 1st. That a patrol has no juris die? tion, as sucb, out of the township in which and for which he is appointed; and cited 1 JET. jila. 15/ 1 Bar. c& Gres-. 288/ 1 Bla. Com.,j>. 356, n. 42, to show how cautious the law is in circumscribing the powers of public officers; and contended that good policy and the peace of society required that patrols should be restricted to their own townships, and be permitted to visit only their neighbors and friends in the unceremonious manner allowed by law»
    2d. That trespass can be maintained for an assault and battery on a slave where no actual damage accrues» Walter vs. Brown, 2 Bay’s Hep-. 75/ 2 Hailey’s Ii&p. 98»
   Mr. Chief Justice WatKINs

delivered the opinion of the Court.

Armstrong, the appellee, sued the appellant, together with several other defendants, in trespass, for whipping certain slaves of his, it being averred, in the declaration, that the slaves in question we?e so bruised and hurt by the beating, as to be unable to perform labor and service for the plaintiff, their owner and master, for a long space of time thereafter, to wit; for the space, &c. The defendants pleaded not guilty, and also a special plea of justification, setting forth their appointment, by the county court of Ouachita county, as patrols in and for the township of Jefferson, in that County, and that, being in discharge of their duties as patrols, visiting all negro quarters, and other places, suspected of unlawful assemblages of slaves, on the said day, &c., being in'discharge of their duties, they, the defendants, as a portion of said company of patrol, under the command of'their captain, found the said slaves df the plaintiff strolling about, from one house to another, without a pass from their master or overseer, and thereupon they, the said defendants, as a portion of said company of patrol, tinder the command of their captain, and in pursuance and by virtue of said order of appointment, and in the lawful discharge of their duties, imposed on them by law, caused the said slaves to receive a number of lashes, not exceeding twenty, as was their duty and right to do, &o¡

On the trial, tbe jury found, that the entire trespass, as alleged,was committed in the township of Marion, by the defendants, who composed a majority of the patrol, who had been duly appointed and sworn for Jefferson township. Upon the question . made, whether the defendants had a right to act as a patrol for Marion, by virtue of their appointment for another township, but little doubt can be entertained. It does not appear that the defendants were called by the patrol of Marion township to their1 assistance, or acted under their direction. The provisions of the statute, as well, as the policy of it, seem to require that the authority of each company of patrol should be limited to the township for which it was appointed. The extraordinary powers conferred upon them, being in their nature partly judicial as well as executive, to be summarily exercised, and involving a right of entry and search,' without special warrant, which, to the extent that it can be constitutionally enforced, is fruitful in causes of irritation, and requiring the utmost firmness and-prudence on-the part- of the patrol, in the discharge of their duty without aggression, furnish strong reasons to our minds why the act should not be so construed as to extend the lawful authority of patrol companies beyond the limits of their respective townships.

Whenever slaves are arrested, for any cause, by a sheriff, constable, or citizen, the law makes it his duty to. carry them before some justice of the peace; whereby, though the hearing and punishment may be summary, as compared with other judicial proceedings, some time is afforded for deliberation, and" an opportunity for the. master to interpose. The patrol system is a police regulation, which, being kept alive upon the statute book, is a slumbering power, ready to be aroused and called into action, whenever there is an apparent necessity for it. The presumption is, that the people of each township, are able to quell all ordinary disturbances occurring in it,.by or among, their slaves, and this can be. better and more appropriately done by those who are neighbors and friends, having a common interest to protect,’ and a common danger to guard against, than by strangers, whose interference bas not been invited. Counsel supposed, and it is to be conceded, that extreme cases may arise, which would excuse an act, not strictly lawful, by .patrols out of their district, or by any citizen, done from good motives, or hasty impulse, in order to maintain the due ascendency of masters over their slaves. Such excuse would go in mitigation of the damages awarded in a civil suit or assessed upon conviction, and, if mitigating circumstances are shown, juries of the vicinage would rarely disregard them. . But as a defense of strict right, it is not a legal justification of a trespass, that it was committed by a company of patrol in one township, by virtue of their appointment by the County Court, to act, as we understand the statute, in another township. If the company can cross the line between two townships, they can go anywhere in the county. It was proved that there was a patrol in Marion township, but they had never been on duty; and though there had been none, the law provided the means of having one. The defendants proposed to prove that they had been-invited over the line, by some of the inhabitants of Marion township, to attend and disperse what was reputed to be an unlawful-assemblage of slaves. The Court below refused to admit such testimony, and properly so, when offered under the plea of justification. ■ The patrol in Marion township was the proper authority to be called in requisition. If the defendants had a right to act there officially, it would follow that they could do so independently of the patrol of Marion township, and in opposition or hostility to them.

There is but one remaining question of moment in this case; and it is not without solicitude that the Court undertake to determine it. The defendants arrested the plaintiff’s slaves on then? way home from- a religious meeting,, on Sunday, which they, with some other' negroes, had- attended. There were .white person® present at the meeting, and, so far as reported- by the witnesses"* it was orderly and well conducted. _ The negroes were tied and whipped, not exceeding ten lashes each, so that that the punish-ment, if deserved, or the defendants had authority to inflict could not be said to be either cruel or excessive, though their cries and the sound of the blows were heard by persons at a distance. From the whole scope and humane policy of our statutory regulations in regard to slaves, there is an implied license for them to attend religious meetings, when conducted in an orderly manner, on Sunday, and on that day it is an indictable offence for masters to coerce them to labor. Altogether, it may be supposed the circumstances were such as to exasperate the plaintiff in a high degree. But he did not prove or offer to prove any special damage or injury to the slaves, resüítingínaloss of their services, in consequence of the whipping they had received. The Court might have no hesitation iu holding the battery of a slave, without excuse oí provocation, by one' not having authority to correct him, to be an indictable offence; though, in a prosecution for heating a slave,- there may be circumstances of excuse of justification, which would not justify an acquittal if the battery had been committed upon a white person. But, for the purposes of the criminal code, the law regards the slave as a person capable of committing a crime, and against whom offences may be committed. The unprovoked battery of a slave is not only in itself a disturbance of tbe public peace, but it ought tobe an indictable offence, not only because it is an injury to tbe slave, but an insult to tbe master, calculated to rouse angry passions, and provoke' resentment, leading to- breaches of tbe peace. And it would seem, as the master is morally bound to protect bis slave, he ought to be allowed a right of action, which tbe slave cannot have, to the end that this may be done in a peaceable andlawful manner. At tbe common law, the servant, child, or apprentice, having a right of action, the only injury sustained by the master, and for which be can recover damages, is that resulting from a loss of service. Unless tbe master has an action, it follows that he can bave no civil redress for any wahton or malicious battery of bis slave, not attended witb special damage. In Cornfute vs. Dale, 1 Har. & Johns. 4, Chase, C. J., assigned, among other' reasons for his decision, that the action, there being no loss of service, did not lip ip. fayor of toe piaster, “ because there was not a reciprocity of action; no action being maintainable against a master for an assault and battery committed by his slave; and that the injury to the slave was not dispunishable, it being indictable as an .offence ; and that, without an injury or wrong to the master, no action could be sustained.” But, in this State, as recently decided in McConnell vs. Hardeman, the master may be made liable in a civil action to the person injured, for a bafri tory, and for a variety of enumerated trespasses, though wilfully committed by his slave; so that the reason there assigned can hardly be said to apply. This is stating the argument strongly in favor of the plaintiff below, and yet we have to conclude that the master cannot recover for a battery upon his slave without. proving special damage. Bor the breach of the peace, the offender may be punished by a public prosecution, which the master can set on foot. (The State vs. Hale, 2 Hawks. 582; The State vs. Booyer et al., 5 Strobart 22.) But for the cruel injury, treating slaves as property, the master can only recover damage^ upon the ground of compensation. "We have not seen thp case of Hilton vs. Caston, cited from 2 Bailey 98, but, on examination of every other case within our reach, bearing on this precise question, we do not find one, where the fact is not stated, in the report, or inferable from the expressions used by the Court, that the injury, for which the master sued, was so severe as to be attended by a loss of service; unless it be the case cited of Walker vs. Brown, (11 Humph. 180,) which turned on a statute of Tennessee, and there, though the extent of the injury does not appear, the Court say the action is maintainable, because “the master is interested in the service and labor of his slave.” In Wheat vs. Croom, (7 Ala. 349,) some strong expressions are used by the Court, and as the jury'were allowed tP measure the damages, not merely by the value of the slave, but to give smart money, it is tp be inferred, though not stated, that the services of the slave were wholly lost to the plaintiff, by some wanton or cruel act of the defendant, In South Carolina, the idea was favored that tlie master had a civil remedy, because, by statute, any one, offended by the insolence of a slave, could complain to the master, who refusing redress, application could be made to a civil magistrate; implying that the offended person ought not to take vengeance by his own arm; and it was not until the act of 1841, in that State, (The State vs. Booyer et al.,) that the mere battery of a slave, by any one other than the master, 'was made indictable or punishable as a public misdemeanor. Yet we find the earlier case of White vs. Chambers, (2 Bay 70,) so much relied on, was an action on the case, going for the special damage; and the fact appears that the defendant “beat the slave very •severely, which laid him up for several days before he was able to go about his master’s business again.” According to the civil law, in many respects applicable to the condition of negro slaves -in America, “an injury is never considered as done to a slave, 'but through him to the master; not, however, in the same manner as through a wife or child; as when some atrocious injury is done to the slave, manifestly in despite of the master; as if any one should cruelly beat the slave of another, in which case an action would lie; but, if a man should only give ill language to a slave, or strike him with, his fist, the master is entitled to no action against him.” ' Gooj?. Justmiwi, Bib. IV, Tit. IV, Be IrvjxvriAs, see. 3.

The difficulty is, that if the action lies without special damage, it must be the assertion of a distinct princij)le, so that it would' be maintainable in all cases of a mere battery, however trifling or inconsiderable, and might thus tend to consequences, which would hardly be tolerated in a community where slavery exists. We apprehend the reason why the master cannot have a civil action for the battery of Ms slave without special damage, is, that it would encourage slaves, of their own propensity, or by the sufferance of their masters, to be insolent by word or demeanoi-. The elevation of the white race, and the happiness of the slave, vitally depend upon maintaining the ascendancy of one and the submission of the other. The rights of individuals must yield to tbe necessity of preserving tbe distinction between races. If it were possible for actions of this nature to become frequent, without being humiliating to freemen, no code of rules could be framed by which to graduate the injury, or estimate the damages, involving such considerations as the insult intended for the master, the mental suffering of the slave, and the kind of provocation offered by him, which a white man would or not be excusable for resenting with blows.

The Court should have given the instruction asked for by the defendants, that the plaintiff could not recover without proving some actual damage by loss of- service, and erred in giving all those of a contrary import asked for by the plaintiff. As the cause will have to be remanded, with instructions to sustain the motion of the defendants for new trial, it is to be observed, that the first instruction, given for the plaintiff below, concerning the slaves of a third person, does not appear upon this record to have any connection with the suit, and was clearly erroneous, Be-versecL


author: Mr. Justice Soott

text:
    Moss vs. Ashbrooks.
    A final order, reciting that the cause was argued and subnutted; that the Court is of ■opinion that the complainant's bill be dismissed; that ’the injunction be continued until the further determination of this cause, is not a final decree.

      A prayer of appeal by the complainant, and -an order that he have thirty days to file his recognizance, and that the recognizance, when so filed, shall operate as a full and complete supersedeas, is not an express grant of appeal, nor effectually provides for it.

      Ajpjpeal from Pilco Oi/rcmt Gowrt m Ohmcery.

    Hon. SheltoN "Watson, Circuit Judge,
    CurbaN & Gallagher,
    for the motion to dismiss.
    Pike & Cummins, contra.
   Mr. Justice Soott

delivered the opinion of the Court.

The final order of the Court below, is in the following words, to wit:

This day came the parties, by their solicitors, and, after hearing the argument of counsel, respectively, this case was submitted. And the Court, upon inspection of bill, answers, exhibits, &c., herein, is of opinion that the complainant’s bill be dismissed. And, thereupon, came the said complainant, by his solicitor, and prayed an appeal, and thereupon, by agreement of counsel, the affidavit required by law was waived, and that the complainant have thirty days to file his recognizance herein. And, thereupon it is ordered, adjudged and decreed that the said recognizance, when so filed, shall operate as a full and complete supersedeas herein. And it is further adjudged and decreed that the injunction heretofore issued, be and the same shall remain in full force until the further determination of this cause.”

It is probable that this order was made during the February term, 1854, of the Pike Circuit Court, but so irregular is the transcript, that this is not entirely certain from its face. (Pule 16,1 ml. Arle. Pep.,%>. 7.) On the 18th of March, 1854, in the vacation of the Court, it appears that the complainant filed “his obligation” with Thomas Hubbard and ¥m. Moss, as his securities, reciting, among other things, that a decree had' been rendered against him in this cause, from which he had prayed an appeal to this Court, which had been accordingly granted, and was conditioned for its prosecution, &c. This, it appears, was approved ly the Olería, tide day it was filed in Ms office.

Upon this state of facts, the appellees move to dismiss the cause from this Court: 1st. Because no final decree has been rendered herein by the Bike Circuit Court; 2d. Because no appeal was granted.

It seems that, upon the hearing, the Court was of opinion that the complainant’s bill ought to be dismissed, but there is no express order or decree to that effect, and it is difficult to infer one, in the face of the express decree, in terms that the injunction heretofore issued, be and the same shall remain in full force until the farther determination of this cause.” If the bill had been dismissed, the injunction would have necessarily fallen with it. And, unless the opposite party had waived his right, the Court ought to have proceeded under the statute for the ascertainment of damages. Dig., ch. 86, p. 594, see. 21.

What was the precise intention of the Court, in reference to the appeal applied for, cannot be readily seen from what is expressed in the record. It was certainly not expressly granted, or in any way .effectually provided for in future, if it was to operate as a stay of proceedings, since the recognizance, provided for by the statute, to have this effect, must be approved by the “ Court or judge granting the appeal.” (Dig., ch. 28,p. 244, see. 137.) We think the motion ought to be granted.

WatKINS, C. J., did not sit in this case.


author: Mr. Justice ’Walebe

text:
    Clark vs. Roop.
    In an action of assumpsit for work and labor, proof of work done by tlie plaintiff for a third person, may be given under the common indebitatus count for work and labor done for the defendant, where the work was done, at the request and upon the credit of the defendant.

      Error to Johnson Ovromt Oowrt.

    Hon. ¥h. H. Eeild, Circuit Judge, presiding.
    S. H. Hempstead, for the plaintiff.
    The instruction asked by Clark should have been given, because it would seem to be a plain proposition that under a count for work and labor done for one person, evidence is not admissible to show that work was done for another and different person, and, when so admitted, cannot' sustain the count. .
    The proof is clear that the work done by Hoop was on the mill of Edwards, and, furthermore, was'of no value, and a new trial should have been granted on that ground.
    Hike & CumMINS, contra.
    No exception was taken, as to the refusal of the instruction, at the time, and no question remains as to that. (6 Eng. 627/ 13 'Ark;. 354.) The Court cannot interfere to disturb the verdict' — as there is sufficient evidence to sustain it. 13 Ark. 236, 295, 306/ 6 Eng. 455, 630.
   Mr. Justice ’Walebe

delivered the opinion of the Court.

This was an action of assumpsit, brought by Hoop against Clark, for work and labor done at the instance and*request of Clark for him.

It seems that Clark, the owner of a mill, rented it td^one Edwards. Hie mill was out of repair, and whether, under the contract of rent with Edwards, Clark was to put tbe mill in repair, or keep it in repair, does not appear from tbe evidence. Be tbis as it may, Clark addressed to Boop tbe following note : “ Mr. Boop: I want yon to put in tbe new works in tbe water mill for Mr..Edwards.” There is evidence that Boop worked on tbe mill, that be was a mill-wright, and of tbe value of tbe work done.

Tbe. only material point to be considered arises upon tbe instruction asked by tbe defendant, and refused by tbe Circuit Court; which was, in effect, that proof of work done by tbe plaintiff for Edwards, at tbe request of Clark, would not support a count for work and labor done for Clark. Under tbe circumstances of tbe case, we think tbe instruction properly refused. It is true that, in Clark’s written request or engagement, (for, having been accepted by Boop, it became, in effect, such), be did request Boop to work-upon tbe mill for Edwards, and if Boop bad declared upon tbe special contract, there would have been stronger grounds for sustaining tbe instruction asked; but tbe defendant is charged in tbe common indebitatus count for work and labor. And, under such count, tbe question is,‘whether tbe plaintiff may not bold tbe defendant liable for work done at bis request for another, as for work done for himself. Tbe undertaking was certainly at tbe instance of Clark, and tbe credit given to him; at least tbe plaintiff might, if be thought proper, charge him with tbe value of tbe work. Such is tbe rule held in Scott vs. Messick, (4 Mon. 535.) In that case, tbe facts were, that Scott employed Messick to do tbe stone work on a building then being erected on tbe land of Mary Scott and for her. Tbe action brought was assumpsit, under tbe common counts, for work and labor done, and for Scott and at bis request. After tbe evidence was closed, tbe defendant moved tbe Court to instruct tbe jury as in case of a non-suit upon tbe samp ground urged in tbis case. Tbe Court held tbe doctrine to be well settled that, in respect to work and labor, or other personal service, however special the'contract, if not under seal, and tbe terms of it have been performed on tbe plaintiff’s part, and tbe remuneration was to be in money, it is not necessary to declare specially; and tbe common law indebita-tus count is sufficient. And in tbe same case, tbe Court, wben considering tbe question of variance between tbe allegation and proof, says: “If Messick bad declared specially upon tbe original contact with tbe appellant, for tbe work, it might, with great plausibility, at least, be said that, as respects tlie liability of tbe appellant, tlie wall wbicb was put up under tbe contract by Mes-sick, should bave been treated as tbe appellant’s wall, and, tbougb proved to be upon tbe land of Mary Scott, tbe variance between tbe proof and tbe declaration in such case, would be a variance in form only; but, be that as it may, there can, we apprehend, .be no reasonable doubt but that the variance is not such as to preclude a recovery under tbe indebitatus*count.”

Tbe other grounds relate solely to- tbe sufficiency of tbe evidence to sustain tbe verdict of tbe jury. There was proof that dhe defendant worked upon the mill by tbe day, that be was a -jnill-wrigbt, that two dollars per day were paid wages for bis .•services, and that others had given him that price. It is true ithat several of the witnesses depose that the work was of no value; One witness states that the new work was improperly put into the old work. Some of the witnesses are of opinion that tbe new work gave w;ay first, others that tbe old work first gave way; and, from the whole tenor of tbe evidence, we may fairly infer that the work was considered, by tbe witnesses, of no value, because it gave way, and not that the work was not in other respects done in a workman-like manner. Now, it is very evident, that, if the defendant caused tbe new work to be attached to old work, which gave way, and thereby the new work became of no value, that the plaintiff should not be held accountable for the consequent loss of value in the work. The jury may have given credit to the witness who thus deposed, or they may have considered it work done by the day, under the inspection of the defendant or his agent. Be-this as it may, the jury were the proper judges of the weight to be given to the statement-of the witnesses, and as there was no total lack of evidence to sustain the verdict of the jury although, it is far from satisfactory to our minds, we do not feel at liberty to set the verdict aside. Let the judgment be affirnfed.


author: Mr. Justice Wai/kbr

text:
    Byrd et al. vs. State, use of Ashley ad., &c.

    When several defendants reside in different counties, soparato writs of summons may he issued to the counties where they reside, or may be found, without any averment in the declaration as to their residence. 2 Ark. 449; 5 lb. 119.
    Where, upon settlement and adjustment of the accounts of an administrator, he is re-moved by the Probate Court, and ordered to pay over to his successor in administra-* tion, the amount so ascertained to be in his hands, no demand is necessary; and, if-in an action upon the administrator’s bond, a demand on a particular day be averred,, the plaintiff is not bound to prove it¿ anda plea denying such demand, tenders aar immaterial issue.
    A plea of general performance of covenant in an action upon an administrator’s bondj-is demurrable. Mairtin vs. Boyster, 3 Mig. 81,
    In an action of dobt upon a penal bond, the recovery of the plaintiff is not- limited to-* the amount of the damages laid in the declaration..

      Error to PulasM Circuit Cou/rt..

    Hon. Vi. H. Feild, Circuit Judge.-
    Fowlee, for the plaintiffs.
    Under the order of the- Probate Court, a demand on Byrd was necessary in order for the plaintiff to maintain the action; and whenever a previous demand is necessary, it is also* necessary to allege it specially in the declaration, with certainty as to time, &c. Irwm vs. Wells,. 1 Mo. S&p. 13/ 1 Ch.-Pl. 322/ jlrch.. Civ.- PI.. 168.
    The damages in the declaration and writ were laid at one dollar, and it was error to render a judgment for more damages than claimed. [Arab,. Oiv. PI. 170; 2 Oh. PI. 15, in note 9; 7 Humph. P§p. 76; 4 Pitt. Pep. 266.) And debt, in this case, sounds in damages.
    Unless in cases where it is specially authorized by statute, the Circuit Courts cannot legally ran their original process beyond the limits of the county where the suit is instituted. {Auditor vs. Davis, 2 Ark.'Pep. 603; ISeam. Pep. 56, 404; 475. 303.) Anri our statute was never intended as a license to institute a suit in Pulaski county, and issue one writ to that county against one resident of that county and one resident of Jefferson county, and a separate writ to Jefferson against one resident of Jefferson: and the writs being so issued and served, ought to have been •abated. Pa/nh vs. Terry & Stone, 13 Ark. 390; 1 Arle. 463; 3 lb. 343,125.
    The writs were wholly unauthorized without an’averment in the declaration of the residences in different counties; and this objection could only be reached by plea in abatement. Key vs. Collins ad., 1 Seam. Pep. 403; II). 547; 1 Qilm. Pep. 35; 1 Ark. Pep. 463; 2 75. 190; 2 Texas Pep. 246; 11 Illinois Pep. 475:
    GukgAN, contra.
    That the pleas in abatement were insufficient, we refer to Dig., eh. 126, sees. 5 and 6; Dilla/rd vs. Koel, 2 Ark. 454; 3 Ark. 119; 4 Tb. 418.
    The statute does not require any special demand or request to •entitle an ad. d. b. n. to sue his predecessor in administration for the amount ascertained, to be due by the Probate Court and ordered to be paid over. The averment was not necessary — it will be treated as surplusage, -and cannot be traversed. Q-ouldlS’ PI, see. 171; .2 Past 333; Hob. 208.
    It'is well-settled that under a statute requiring the declaration to contain special breaches of the condition of a penal bond, a general plea of conditions performed, is no answer. Ma/rtin vs. Popster, 3 Kig. 74.
   Mr. Justice Wai/kbr

delivered tbe opinion of tbe Court.

Bichará C. Byrd was appointed administrator of tbe estate of James B. Gladish, deceased, and entered into bond witb bis co-defendants, bis securities, for tbe faithful performance of bis duties as sucb administrator. Subsequently, upon a settlement witb the Probate Court, be was found to be indebted to tbe «estate $1,118. And, thereupon, tbe Court revoked bis letters of administration, appointed Joseph O. Ashley administrator de bonis non of said estate, and made an order directing Byrd to pay tbe $1,118, so remaining in bis bands upon settlement, over to Ashley bis successor in administration. To recover this sum of money, Ashley lias brought this suit upon tbe official bond of Byrd against himself and securities. Tbe securities severally filed pleas in abatement. First: That separate writs of summons were issued to Pulaski and Jefferson counties-; that t-o Pulaski, con-taing tbe names of two of tbe defendants, who were ordered to be summoned, when, in fact, but one of them resided in that county. Tbe second plea was, in substance, thatsuithavingbeen commenced in Pulaski county, a separate writ, -issued to Jefferson county, against one of tbe defendants, who was a resident of that county, without averring in the declaration that sucb defendant resided in Jefferson county. There was also another plea, in abatement, filed by one of tbe securities, which, however, was intended to present substantially the same question.

Tbe objection to tbe writs in this case, is not that sustained by this Court to tbe writs in tbe case of Hartley vs. Tunstall et al., (3 Ark. 119.) In that case, each separate writ was issued, and liable to be served upon all of tbe defendants, if found by tbe sheriff to whom directed. This was held to be oppressive and vexatious, and imposing unnecessary costs upon tbe defendants. But there is no such objection to tbe writs in this case. Tbe objection here is, in effect, that a defendant, resident of Jefferson county, is not bable to be served witb process out of bis county, and seems to be predicated upon tbe ground, assumed in tbe second plea, tbat where there are two or more defendants in the same suit, who reside in different counties, in order to avail himself of the benefit of the act which authorizes separate writs to» issue to the several counties in which the defendants respectively reside, the plaintiff must aver truly the residence of each of the defendants; so that, where several writs issue, they may, in this respect, correspond with the declaration; and, should the plaintiff fail to make such averment in his declaration, should the writs be issued to several counties, there would-be a variance or non-conformity of the writs to the declaration, which would be matter of abatement. However plausible this may appear, the practice in this State" has been different, under the sanction of the repeated decisions of this Court. It was held in the case of Dillard vs. Noel, (2 Ark. Rep. 449,) that no averment in the declaration as to the residence of either party is necessary; and also that a resident of one county may be sued in another; and more recently this decision was cited with approbation in the case of Ford vs. Hundley (5 Ark. Rep. 179.) After setting forth the condition of the administrator’s bond, the plaintiff avered that, upon settlement there was found to be a balance in his hands of $1,118, which he was ordered to pay over to plaintiff, and also a demand, on several different days, and refusal to pay. Byrd, by plea, traversed this allegation, at the several times set forth. To which the plaintiff demurred, upon the ground that the plea tendered an immaterial issue, because although there was a demand, and refusal avered, yet as such demand was not essential to the plaintiff’s recovery, that he was not bound to prove it,- and that no material issue could be formed upon it. ■ .

In order to determine this question, it becomes necessary to consider the nature- of the defendant’s liability as administrator. He covenants to- do whatever might be required of him by law, or enjoined by the lawful order, sentence or decree of any court of competent jurisdiction. The Probate Courthad such jurisdiction, and, in the due exercise thereof, ordered him to pay the specific sum of money ascertained to be in his hands, and due upon settlement; whereby lie became liable to pay a specific sum, a debt due and payable to bis successor. No act, on the part of the plaintiff, was necessary to entitle bim to this money. He was as much entitled to sue for and recover it, as if it bad been a debt due directly to bis’ intestate; and if á demand was necessary, on bis part, to entitle bim to maintain an action against Byrd, upon the same principle, it would be necessary in all cases where administrators sue for debts due the estates of their intestates. It is the duty of the debtor to seek out bis creditor, and to make payment to bim; a readiness and willingness on bis part will not excuse bim. The debt being due, a right of action accrues to the plaintiff without any duty or act on bis part for its recovery, as well in the one case as in the other; and so well established is this doctrine that even if the Probate Court had directed Byrd to pay over the money upon the request of the plaintiff, the weight of authority is, that the action could well have been maintained without such request. Thus it has been held that, where a note or bond for the payment of money is made payable on demand, suit may be maintained upon it without demand. The commencement of the action is held to be a demand in law, and the only advantage to the defendant is that, in the absence of a demand before suit brought, he will be only chargeable with interest from the commencement of the suit.- Cotton vs. Revell, 2 Bibb. 101; Gore vs. Buck, 1 Mon. 209; Leather’s representatives vs. McGlasson, 3 Mon. 224.

The demurrer was properly sustained to Byrd’s fourth plea. A plea of general performance of covenant has been repeatedly held by this Court demurrable. Martin vs. Royster et al., 3 Eng. 81.

The remaining grounds of error is, that the damages recovered exceed the amount laid in the declaration. This objection is doubtless good in actions ex delicto, or where the action sounds in damages. But this was an action of debt upon 'a penal bond, and although, under our statute, breaches ¿re assigned and damages assessed, still the judgment is rendered in debt for the penalty of thejiond. The verdict of the jury is entered of record with a further judgment for execution for tbe damages assessed. Thus it will be seen that although there is an ascertainment of damages and an order for execution to levy them, still the form of the action and the judgment are the common law forms in debt, and in such action the recovery of the plaintiff is not limited to the amount of damages laid in the declaration. (1 Ch. Pl. 114, 339 418.) Judgment affirmed.

Mr. Chief Justice WatKINS not sitting in this case.


author: Mr. Justice WalKBR

text:
    Tatum vs. Hines.
    At common law, and under the general law of this State, where personal property comes to the vafe by distribution, the title vests in the husband, and the property is liable for his debts; and if, in such case, the wife sets up a separate estate in the = property, under the statute of another State, such statute is a matter of fact to be established by competent evidence.
    Where a chancery cause is tried upon the pleadings and exhibits, this court will not presume, for the affirmance of the decree, that testimony was heard at the trial; as where the cause is so set down for hearing, no oral testimony can be given.

      Ajypeal from Union Ovrovñt Oov/rt m Ohancery.

    The Hon. SheltoN "WatsoN, Circuit Judge.
    Lyow & CaeletoN, for the appellant.
    Marr & Hardy, for appellee.
   Mr. Justice WalKBR

delivered tbe opinion of tbe Court.

This was a suit in chancery, commenced in tbe Union Circuit Court, by Hines and wife against Tatum, to enjoin tbe sale of a slave, levied upon to satisfy a judgment in favor of Tatum against Jobn H. Hines; the slave being claimed astheseparate property of tbe wife, and not subject to seizure and sale for tbe payment of tbe husband’s debts.

Tbe material facts upon which tbe claim of tbe wife rests, are these : Tbe complainants resided in tbe State of Mississippi about tbe year 1840. At what particular time they married, or bow long prior to that time they resided in that State, does not appear; nor is it important to Irnow, so far as their rights in this case may be affected. In that year, Yincent Glass, tbe father of tbe complainant, Khoda Hines, then a resident of Noxubee county, in that State, died intestate, being at tbe time of bis deatb.tbe owner of slaves and other property.-' Due administration was bad upon bis estate, and such proceedings bad, that, on tbe 1st of October,. 1841, distribution of said estate was made between tbe heirs ; • in ■ which Oatron, tbe slave now in dispute, and Jfóna, were allotted and set apart to tbe said Hhoda as her property; which was evidenced by tbe following instrument in writing:

Noxubee County,

State of Mississippi,

) j

Know all men by these presents, that we, Joel Glass and James Glass, administrators of tlxe estate of Yincent Glass, deceased, do certify that in the division of tbe negroes by tbe names of Maria and Catron were awarded to bis daughter, Khoda Hines, bis legal'heir, as her part of tbe negroes that was awarded between tbe heirs of tbe said Glass, deceased, and is her own property as such.

Given under our bands and seals, this tbe first day of October, 1841. •

JAMES GLASS, [l. s.]

JOEL GLASS. [l. s.]

This instrument purports to have been acknowledged and admitted to record in Noxubee county, Mississippi, on tbe 4th of April, 1842, and, afterwards, on the 3d of June, 1842, it was recorded in Bolivar county, in that'State, and on the 6th of May, 1848, said instrument, together with the certificates of acknowledgment and record in Mississippi, were recorded in Union county, in this State, to which the complainants removed, and where they continued to reside at the commencement of this suit, all the while being in the possession of the slave Catron, who was claimed by the wife as her property, and such was the general understanding in the neighborhood of their residence in Union county.

This may suffice to show the nature of the claim of the complainant, Bhoda, to the property. The answer admits the identity ■of the slave, that she came to the wife as stated in the bill, but denies that a separate estate, under the laws of Mississippi, vested in the wife, or that, if the statute of Mississippi has made provisions to that effect, that they have been complied with, so as to rest in the wife a separate estate. Indeed, the whold equity of the case turns upon this point.

The material allegation in the bill is, that by force of the statute law of Mississippi, the title to those slaves vested in the wife, a feme ¿overt., At the common law, we know that this would not be the case, nor even under the provisions of our own statute, for it is not pretended that there has, in this instance, been a compliance with them. And if there is such a statute in Mississippi, it is a matter of fact to be established by competent evidence. The courts of this State have no judicial knowledge of the local laws of Mississippi. (Newton ex. vs. Cocke ex., 5 Eng. 169.) And it certainly devolves upon the complainants to show what the law of Mississippi was. This, it appears, they have failed to do. By reference to the record, it will be seen that the case was tried upon bill, answer, replication, and exhibits, which necessarily excludes the introduction of evidence. We must therefore presume that the Court below rendered its decree, in favor of complainants, upon tbe state of case made by tbe pleadings and exhibits, without evidence of tbe statute law of Mississippi, and in this there was manifest error, because it is by force of that statute, that tbe complainant must, if at all, recover. Having failed to set tbe cause for bearing-upon evidence as well as tbe pleadings and exhibits, so that tbe complainants, might have introduced evidence to sustain tbe most important allegation in tbe bill, tbe decree was rendered without evidence, nor, as tbe case was set for bearing, can any evidence be introduced. Let tbe decree be reversed, and the cause be remanded, with instructions to dismiss tbe bill, dissolve tbe injunction, and decree to tbe defendant damages according to tbe statute.


text:
    Crease, Treasurer, vs. Danley, Collector.

      Appeal from PulasM QvrcuAt Gowrt,
    S. H. Hempstead, Special Judge.
   Tbe question involved in this case, having been determined by tbe case of Pike vs. Danley, decided at tbe present term, on tbe authority of Woodruff vs. Trapnall, (10 How. 203,) this judgment must be affirmed.