
    Carney, &c. vs. Walden, &c.
    APEGA L PROM TRIGG CIRCUIT.
    3. Tboagh the hirer of a slave will sot be responsible for tfie value of a slave which he has bound himself to return at the expiration; of the term of hiring, when he is prevented from1 doing so by the act of Sod, the slave, or the owner, yet he is responsible when hio inability to return the Slave arises from his own illegal and wrongful act.
    
      2. The liability of tíre sarety and the principal is the same? when the principal is bound the surety is also bound; the wrongful act of the principal will not exonerate the surety.
    3. Where the object Of a suit in chancery is to restrain' the fraudulent disposition of property to avoid the payment of a legal liability, which is inevitable, (as for inability to return a slave hired, arising from the act of the hirer,) the chancellor has jurisdiction to settle and adjust the whole controversy. And two persons having separate right to sue at law may unite in a petition in equity in such suit, for the benefit of one party.
    The facia of the case are stated in the opinion of the court. Rep.
    
    
      Tho. C: Dabney for appellants—
    Argued; 1. That the circuit court erred in overruling the demurrer to the petition. 1. Because there is an improper joinder of plaintiffs. If Carney is responsible tor failing to deliver the slave hired by Coates, it is upon the covenant which was executed to Payne alone, and to which Thompson and Waiden were not parties ; and the action should be in form ex contractu. 2. 'The 30Z/t and 34th sections of the Code, requiring that the suit shall be in the name of the party in interest, is understood to apply to suits by ordinary petition, to cases where the party has a legal interest, and in suits by petition in equity to cases where the party has an equitable interest, and not to authorize the union of parties where the interests are legal of equitable, without discrimination. The jurisdictions of the courts are to be kept distinct. The Code is not understood to intend a blending of the legal and equitable jurisdictions of courts, but that they be kept distinct as before. (See Gode, sections 4, 5,6, 7, page 3.)
    2. The seeond paragraph is for an injury to personal property, and arising ex delictG, and coming within the 6th class as specified. Coates might have been responsible to Mrs. Walden as bailee, or subbailee, of her negro. Carney does not occupy that attitude; he never had the possession of the slave, nor the right to the possession There is no privity between Mrs. Walden and Carney. Carney is in no way responsible but upon the written contract, which was not executed to Mrs. Walden.
    3. The judgment is erroneous and not authorized by the allegations and proof in the case. The case of Adams vs. Gardner, 13 B. Monroe, 197, is relied on. That case is not like this. In that Gardner sued the Adams’ as sub-bailees of the slave Kitty, to recover her value, she having died as was alledged for want ■of medical attention. Upon the facts and the well settled laws of bailment, the defendants were held responsible, they having acquired the possession of the slave from the intermediate, for a limited time only, upon hire, with a full knowledge of Gardner’s ■ownership and reversionary interest in the slave, and bound, without any express contract, to use ordinary care, and restore the property at the expiration of the period of hire. These principles would apply, under an ordinary state of pleading and proof, to the defendant Coates, but cannot apply to Carney, who was not the bailee. Carney is alone responsible on his covenant as surety, and in no other way. The law implies no obligation beyond a written contract when one exists on the subject. The wrong was by Coates, not by Carney. The note and covenant was not to Mrs. Walden, and it was error to render any judgment in her behalf upon it against Carney, upon either cause of action set out in the petition.
    
      If Carney is responsible to any person on his covenant, it is to Payne, the obligee therein, and not to Mrs. Walden. Tt is from the instrument the intention of the parties is to be collected. (See Wheaton's Selioyn, 5th Am. from Qth Lnnd. ed., Tit. Cov.,p. 447 ; Young vs. Bruces, 5 Litt., 323 ; .Singleton vs. Carrol, 6 J. J. Marshall, 527.) The covenant was intended to secure the return of the slave to Payne on the 25th December, 1853. She was hired by Payne to Coates, and to secure the hire and the profit of ten dollars above the price he was to pay Mrs. Walden, it was not the intention of the parties to insure the life of the girl, nor against a criminal act affecting the life of the girl. Thompson or Walden are not parties to the covenant, and can derive no right of action from it. (Singleton vs. Carroll, fyc., 6 J. J. Marshall, 527.)
    By hiring the slave to Payne & Thompson, Mrs. Walden reposed a special trust and confidence in them; they had no right to hire to Coates without her consent, and as bailees they rendered themselves responsible to her, and did not transfer their liability to Coates, or Carney, his surety.
    
      L. Lindsay for appellant Pettit—
    As the counsel for appellant Pettit, a few suggestions will be made:
    1. There is a misjoinder of plaintiff. The right of action of Mrs. Walden is in tort. The right of action of Payne & Thompson is upon contract arising out of the covenantto pay hire and return the slave. These causes of action cannot be joined accruing to different parties. 2. They cannot be joined in a single paragraph in the petition. (See Code of Practice, Title 6, sec. 111.)
    This case is not embraced by the provisions of the Code, Title 3, sec. 34, which provides “that all persons having an interest In the subject of an action, and in the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in the Code.” There are two subjects of action in this case. The one a wrong or injury to property in the rightful possession of the wrong doer. The other a violation of a covenant in regard to the same property. The proceeding is in conflict with Titte 6, sec. Ill, of the Code, which was designed to prevent confusion of parties.
    The subject of the action does not always authorize parties claiming an interest therein to unite. The hirer of a slave for one year may sub-hire to another for a shorter period, and stipulate for the return of the slave before the end of the year ; for a breach of this last contract, the owner could not unite with the first hirer. The principle is the same in this case.
    2. The right of action of Payne arises out of the contract to which Haney and Coates & Payne are the only parties. When sued for failing to return the slave, Haney, as the surety of Coates, may say that the slave is dead and cannot be returned, which is a valid defence. (See Young vs. Bruces, 5 Ldtt. 324 ; Singleton vs. Carrol, ¿¡-c., 6 J.J. Marshall, 527.) The death of the slave is not within the purview of the covenant. If the slave came to her death by the act of Coates, he alone is responsible for the wrong, not Carney, the surety under the contract. The action must be in form ex delicto, according to'our former as well as our present system of pleading.
    The case of Adams vs. Gardner is not analagous to this. That was an action against two sub-bailees, by the owner of a slave, for negligence in regard to the property, by which it was lost to the owner.
    If this view of the case be correct, it follows that Pettit is discharged from liability in this suit. But if Carney should be regarded as responsible, still it is insisted Pettit is not liable. He denies that at or after the service of process he had anything in his hands belonging to Carney, by an affidavit filed in court. The plaintiff undertook to prove that he had, but the evidence does not showr that he had. (See Code Prac., Title 8, sec. 245 — 8.)
    
      3. The chancellor had not jurisdiction of the case. The matters should all have been referred to a jury ^ Up0n ordinary petition.
    
      B. Sf J. Monroe for appellants—
    Little remains to be said on the part of the appellants. I. It is difficult to come to the conclusion that the Code of Practice will warrant the uniting of two parties, having two distinct causes of action — the one on contract, the other in tort — in the same suit for redress of their respective injuries. The Code does use the term “That every suit shall be prosecuted in the name of the real party in interest,” but the application of that provision of the Code to this case is denied. Here the interest of Payne, who hired the negro to Coates, is one thing and the recovery of the price of the negro killed by Coates, which belonged to Walden, is another thing, each distinct causes of action in favor of different individuals, who have united in the same petition in equity. It is not sanctioned by the Code, (chap. 1, sec. 30,) nor is it perceived how section 3, of the same article, can be made to apply, which provides “that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiff, except, &.c.” Walden had no interest in recovering the hire in this case; Thompson and Payne were bound for that. She might sue Coates for the value of the negro, which was her property. Thompson & Payne had no interest in this recovery except so far as it might incidentally exonerate them from responsibility for that value.
    2. Can the judgment in this case be sustained. There are two distinct judgments — one on behalf of Thompson & Payne for $65 and interest, for the hire of the slave, and another in behalf of Walden for the value of the slave. If these parties had an identity of interest should not the judgments have been in behalf of all ? If they had not does not that show the impropriety of joining the parties and the causes of action ?
    
      M. Mayes for appellees—
    The appellees insist that the judgment is substantially correct, at least there is no error of which the appellants can complain. It is clearly proved that the negro woman came to her death by violence from the hands of J. T. Coates; that she was the property of Lucy Walden; that Coates hired her for the year 1853 at the price of $65, and bound himself to pay the hire and return the slave, and thatB. Carney was his surety for the hire and return of the' slave. Carney contends that he is not bound for the value of the slave, as she was killed by Coates. The covenant is positive, and it cannot be that he is exonerated from the delivery of the slave, unless it is made to appear that the slave came to her death without any fault on the part of either Coates or the surety. “A bailee of a slave is bound to ordinary dilligence in regard to the health, safety, &c., of the slave, and is responsible for ordinary negligence, as in all cases of bailment for hire.” (7 B. Monroe, 662.) Carney was bound by the covenant to the same extent as Coates, his principal. Surety was demanded because Coates was not regarded as sufficiently responsible, and Carney was received.
    But it is contended that Carney is not responsible to Lucy Walden, but to Thompson & Payne alone. Lucy Walden was the owner of the slave, and directly interested. Thompson & Payne hired the slave from her, and then hired to Coates and Carney. “A bailee for hire is bound to ordinary care and dilligence in the preservation of the thing hired. If he transfer the possession, still being bound to the owner, the transferee may be responsible.” (13 B. Monroe, 199.) “He who assumes the possession of another’s property is bound by a general principle of law to use reasonable care for its preservation while in his possession, and is liable to the party injured for the Want of such care,” — same case — which is a case in point, showing the right of Lucy Walden to maintain the suit. And by the provisions of the Code of Practice, secs. 34, 38, “may be joined with others having an interest in the subject of the action.”
    Carney being liable in this action, is there any error in the judgment against Pettit? This suit was instituted on the 16th February, 1853. Pettit was served with process on the 31st of March, 1853 ; his answer filed on the first day of September, 1853, in which he says that at the time the process was served on him he had not, nor had he at the time of answering, any property or money in his hands belonging to B. Carney, and that he is not indebted to B. Carney, and was not indebted to Carney at the commencement of this suit. There is a manifest intent to answer truthfully, but evasively. It was after the bringing of the suit and suing out of the attachment that Pettit bought the negro man. He may not have owed Carney when the suit was brought, nor when he filed his answer, and been indebted to him in March when the amendment was filed. He does not deny being indebted to Carney after the suit was brought and before the answer was filed, nor when the process was served, but that he had no money or property in his hands of Barnaby Carney when the process was served. Pie does not deny the purchase of the negro at $1,000, and his owing the money, and his knowledge of the pendency of the suit, with the attachment when he made the purchase, wdth a promise not to pay over the money until this controversy should be settled. lie wholly fails to make any answer to the amended petition, in which these and other charges of fraud are made. The judgment against Pettit is clearly right.
    The decree to subject the land is clearly right.— The proof shows a clear intent on the part of Carney to put his property out of the reach of any liability which might arise against him from his suretyship for Coates.
    
      December 19
   Judge Simpson

delivered the opinion of the Court.

The principal question in this case arises upon the writing executed by Coates, and Carney his surety, for the hire of a female slave, during the year 1853, which writing contains a covenant for the return of the slave at the end of the year.

It appears that during the year, Coates caused the death of the slave by inhuman treatment, and having immediately thereafter absconded, this action was instituted for the purpose of attaching the property of Carney, the surety, who, as alleged in the petition, was about to dispose of his property with the fraudulent intention of evading his liability for the value of the slave, and the hire.

The slave belonged to Lucy Walden, and had been hired by her to W. C. Thompson and R. W. Payne, for the year 1853, and they hired her to Coates, taking from him the writing referred to, with Carney as his surety, which writing was executed to Payne alone. The action' was brought by a petition in equity, in the names of Walden, Thompson and Payne as plaintiffs.

On the part of Carney it has been argued, that it was not contemplated by the parties, when the contract for hiring was entered into, that he should be liable for the value of the slave in the event that his principal failed to return her according to the stipulation in the contract; and if he be held responsible, that it will in effect convert the writing into a contract of insurance, which was not intended by the parties to it when it was executed ; and the cases of Young vs. Bruce, 5 Litt., 324, and Singleton vs. Carroll, &c., 6 J. J. Marsh., 527, have been referred to, as sustaining the doctrine contended for.

But these cases only decide the principle, that such a covenant does not impose upon the covenantor an obligation to return the slave at the end of the term of hiring, in every possible state of case; but that if he, without any fault on his part, be rendered unable to comply with the covenant, by the death of the slave, or by the fact that the slave ran away and could not be recaptured, although reasonable diligence had been used to effect that object,u then he will not be responsible for a failure to comply with it.

1. Though the hirer of a slave will not be responsible for the value of a slave which he has bound himself to return at the expiration of the term of hiring, when he is prevented from doing so by the act of God, the slave, or the owner, yet he is responsible when his inability to return the slave arises from his own illegal and wrong ful act.

2. The liability of the surety and the principal isthesame; when the principal is bound the surety is also bound; the wrongful act of the principal will not exonerate the surety.

Can any obligor, however, rely upon his own wrongful act as an excuse for failing to fulfill his undertaking? The intervention of the act of God, or of the slave, or of the owner, which prevents him from complying with it, will excuse a non-performance of the covenant. But he is not entitled to any such-exemption from liability, if he be rendered unable w comply with it by his own illegal and wrongful act.

The liability of the principal and the surety, upon the writing, is precisely the same. They are joint covenantors, equally bound for tbe performance of the covenant, and neither can exonerate himself from liability, on the ground that the wrongful act of the other has rendered a performance by him impossible. We entertain no doubt, therefore, of the liability of Carney upon the written contract, for the failure to return the slave.

An objection has been made to the proceedings in this ease, on the ground that there is a misjoinder of parties as well as of causes of action in the plaintiffs’ petition. It is contended in support of this objection, that so far as the action is founded on the written covenant, the owner of the slave is not a proper party ; and that her cause of action against Coates for the value of the slave, is in tort, and cannot be joined with the other causes of action set forth -in the petition, inasmuch as they are based upon contract.

This objection is founded on a misconception of the cause of action asserted by the petition. It sets forth a claim for the value and the hire of the slave on the written contract alone. The death of the slave, and that it resulted from the illegal conduct of one of the obligors, is alleged, to show their liability on their covenant for the value of the slave. The action was an equitable proceeding; it was commenced before the cause of action had accrued, and its object was to prevent the defendants from making a fraudulent disposition of their property, before a breach of their covenant would occur, by a failure to pay the hire and return the slave at the end of the year. And the death of the slave, and the cause of it, were alleged to show that a breach of the covenant was inevitable, and consequently that the obligors were liable for the value of the slave.

3. When thii object of a suit in chancery is to restrain the fraudulent disposition of property to avoid the payment of a legal liability which is inevi^je*(asformturn a slave the ™t'of *e hñfpr,) the chancellor has jurisdiction to the^ho^oontroversy. And having separate [á^may^nite in a petition in guit^fo™ Sth® benefit of one party.

The bailee for hire is bound for ordinary diligence and care in regard to the health and safety of the slave, and is under an implied obligation to return the slave when the time of hiring has ended. (Ewing & Conner vs. Gist, 2 B. Monroe, 465 ; Swigert, &c. vs. Graham,7 B. Monroe, 663.)

He cannot relieve himself from these obligations by hiring the slave to another person. Such hiring will be at his peril, and he will be responsible to the owner for any injury to the slave, or to the rights of the owner, which may result from the illegal conduct of the pérson to whom he has hired the slave.

In this case Thompson and Payne were liable to Lucy Walden for the value of the slave, inasmuch as Coates, to whom they had hired her, had caused her death by bad treatment. Thompson had a right to join in the suit as a plaintiff, because although the writing was executed to Payne alone, it was for their joint benefit. The action was brought by them to recover the value of the slave and the hire, for both of which the defendants were liable on their contract. The plaintiffs Thompson and Payne, being liable to Lucy Walden for the value of the slave, . , . she was made a piamtitt m the action with them, because to that extent the action was brought by them to obtain indemnity for their liability to her, and was intended by them to inure to her benefit. If, instead of making her a co-plaintiff with them, they had merely stated that the action, to the extent of the claim for the value of the slave, was prosecuted for her benefit, there would have been no cause for the present objection. And as the facts alleged evince the nature of her right, and the extent of the liability of the other plaintiffs to her, and the action is evidently founded on the written contract alone, she should be regarded as having been joined as one of the plaintiffs, only because it was brought by the other plaintiffs for her benefit, so far at least as the value of the slave was sought to be recovered in it.— Viewing- it in this light, it was an action by Thompson and Payne, on the written contract, for the hire and the value of the slave, and there was no misjoinder either of causes of action or of plaintiffs.

Pettit has no right to complain of the judgment against him. He bought the property of Carney alter the attachment had been issued, and no doubt had the price of it in his hands at the time the process was served upon him. His answer is evasive and unsatisfactory; and he failed to answer the amended petition, in which it was expressly alleged that he had admitted the purchase of the property with a knowledge that the attachment had issued, and stated that he had not paid for it, and would not do so until this suit was determined.

Wherefore the judgment is affirmed.  