
    
      Sims White vs. Richard Arnold.
    
    Defendant, a blacksmith, hired from plaintiff two negroes at a very low rate per annum, and agreed to instruct them in his business : the negroes were to be subject to defendant during the term: he was to feed, clothe them, <&c., and send them to plaintiff only in case of sickness: the negroes ran away and were lodged in the work-house: defendant, though informed by plaintiff that they were in the workhouse, refused to take them out, on account of the expenses: plaintiff took them out, paid the expenses, and re-delivered them to defendant: — Held, that defendant was liable to plaintiff for the expenses thus paid.
    The hirer of a slave for a term, is regarded as the owner for such term, and, as a general rule, must pay such ordinary current expenses, incident to the right of ownership, and incurred during the term, as the absolute owner, if there had been no bailment, would have been liable to pay.
    
      In the City Court of Charleston, October Term, 1852.
    The report of his Honor, the Recorder, is as follows :
    “ This was a summary process to recover the sum of f 41 87, •as for money alleged to have been paid, laid out, and expended by the plaintiff for the defendant, as expenses of Quash and Frederick in the workhouse. The following statement in writing was agreed on, and submitted by the counsel:
    “ 1st. That defendant hired, from the plaintiff, the two slaves, Quash and Frederick, according to the terms of the agreement of the 11th of May, 1852, (herewith submitted.) See copy annexed at end of report, note A.
    “ 2d. That the negroes ran away from the defendant in last; that plaintiff notified the defendant that they were lodged in the workhouse, and that defendant refused to take them out.
    
      “ 3d. That plaintiff paid the expenses of the negroes in the workhouse, and returned them to the defendant’s possession, and now brings this suit for the amount (by consent of the defendant, as of last term,)
    “ In addition to the above, the following testimony was offered on the part of the plaintiff:
    “ Mr. Wm. White, (son of plaintiff,) sworn. — Knew the boys hired to Arnold; heard from defendant that one of the boys had run away, — he was taken and returned ; the other boy also ran away, but returned. The boys, afterward ran away again from defendant, and were captured and lodged in the workhouse. Witness informed defendant, that the boys were in the workhouse and he could take them out. This, he declined— but said, if plaintiff would take them out and return them to him, he would receive them. Witness, on the part of the plaintiff, took out the negroes to-day and returned them to the defendant, who received them. The workhouse bill was produced, amounting to ¡$41 87.
    “ Cross-Examined. — As soon as the plaintiff knew the negroes were in the workhouse, witness informed defendant they were there. The negroes had been taken up by a constable as runaways. They had passed (as it appeared) under false names, and as the property of a Mr. Gaillard.
    “ Mr. Daggett, sworn. — Was once Master of the workhouse; these negroes were lodged 24th September, 1852, as supposed runaways, by a Mr. Curtis ; it turned out they belonged to Mr. White, (the plaintiff.) The general custom is, to deliver negroes only to the owner or his order. Sometimes, they deliver to agents or others, claiming to represent the owner, if responsible persons. Often deliver negroes to factors, for planters living in the country. Witness don’t know the defendant personally; has seen him occasionally; don’t know that any written order was left by Mr. White to deliver the negroes to the defendant. Thinks, if this agreement had been presented by defendant, claiming possession, he would have hesitated in giving them up to defendant; — probably would have consulted the City Attorney.
    
    
      “ Upon the evidence above submitted, under the contract, I did not feel my judgment satisfied to decree for the plaintiff. It rvould be, perhaps, sufficient to say this for myself in a process case, submitted to my opinion; but as it might be desired I should give some reasons for my conclusion, I will state some of the considerations upon which my judgment was founded. 1st. This was not an action for wages. It is true, that according to our well-known decisions, the hirer of a slave for a year, 
      or any definite term, is considered, to the extent of the time stipulated, the owner, as it were, and takes upon himself all the risks and contingencies incident to the use of that sort of property ; and if the slave should run away or absent himself, the hirer is nevertheless liable to the owner for his wages. Among these contingencies, sickness is reckoned, and it is well settled that no deduction is to be made on that account; see Stinson vs. Wren, Rice’s Digest, vol. 2d, p. 94; Perry vs. Dunlap, 1 Hill, 461; Wilder vs. Richardson, Dud. Rep., 322.
    “ But the case submitted, had nothing to do with a claim for wages. This liability was not a subject of dispute or difference between the parties under the contract. I cannot perceive in the evidence, any ground upon which the plaintiff can recover from the defendant the amount paid for the keeping of the slaves in the workhouse.
    
      “ 1st. Had the slaves been directly captured by the owner, and placed in the workhouse by him, or retained there by his orders, it would seem to have been an unauthorized interference on his part with the rights and dominion of the hirer.
    “ 2d. In this case, it appears, that as soon as the slaves were found to be the property of the plaintiff, they were left by him in the workhouse, and subject (of course) to his order.
    “ 3d. That although they being in the workhouse, were offered to be given up to defendant in a way which involved his paying the expense of their capture and the fees up to thattime, the defendant refused to do this, hut expressed his willingness to receive them, if they were brought to him.
    “ 4th. That from this time, the slaves must be considered as, and indeed actually were, detained in the workhouse under the plaintiff’s orders as owner; and it does not appear that he gave any instructions at the workhouse, (none certainly in writing,) to deliver the slaves to Arnold should he call for them, and even offer to pay the fees incurred.
    “ 5th. I see nothing in this case, to justify any interference with the right of the hirer, who had by the contract, the entire dominion over the slaves; and, if he pleased, by way of pun-
    
      ishment or otherwise, to retain them in the workhouse until he pleased to take them out.
    “ 6th. That, if under such, or any other supposable circumstances of the case, the hirer may, or would have been liable to the workhouse for the fees of keeping and feeding, the plaintiff could not by a mere voluntary payment of the bill, render the defendant against his will a debtor to himself for the amount.”
    NOTE A.
    Memokandum op an Agreement entered into this, 11th day of May, 1852, between Mr. Arnold, Blacksmith and Wheelwright' of Church street, on one part, and Sims White of Beau-fain street, on the other part, Witnesseth — the said Mr. Arnold on his part agrees to hire from Sims White his two negro hoys, Quash and Frederick; Quash for five years from this date, and Frederick for seven years, and both of them to be thoroughly instructed in the Blacksmith’s business, and while in his employ, to he completely subject to him, and he, Mr. Arnold, further agrees to feed, clothe and to shoe them, and to take such care of them as’would be proper under the circumstances. And it is further agreed by the parties, that in consideration of Mr. Arnold fulfilling his agreement, the said Sims White agrees to receive for both boys, but three dollars per month during the whole time they are under his instruction ; and Mr. Arnold further agrees, in case of the sickness of either boy, to send him to the said Sims White only at such times.
    In Witness whereof, the parties hereunto affix their hands and seals, this 11th day of May, 1852.
    SIMS WHITE, of Beaufain-st., [Seal.] Witness. R. ARNOLD, [Seal.]
    John Walcott.
    The plaintiff appealed and now moved for a new trial on the grounds
    1. Because, by the terms of agreement, the defendant was hound to pay all expenses incurred by the slaves except for medical attendance, which the plaintiff stipulated to furnish.
    
      2. Because, his Honor erred in deciding that the cases cited, applied only to the wages, and not to the other expenses incident to the running away of a slave.
    3. That his Honor erred in deciding that the plaintiff detained the negroes from defendant, for the defendant could have obtained possession of them at any time.
    4. Because, his Honor erred in deciding, that the plaintiff’s taking the negroes out of the Work House was an unauthorised interference with the rights and dominion of the hirer.
    5. Because, it was the duty of the defendant under the agreement, to take out the negroes and continue'their instruction, and upon his failure to do so, the plaintiff had a right as well as an interest to release them from their confinement, and to have their instruction continued.
    6. Because, the decree was otherwise contrary to the law and to the evidence.
    
      Miles, for appellant, referred to the cases cited by the Recorder, and also to 4 McC. 123 and Story on Bailm. § 394, 396.
    
      Kunhardt, contra.
   The opinion of the Court was delivered by

Withers, J.

This is not precisely a case of master and apprentice. The defendant, Arnold, received two slaves of the plaintiff, White, on a contract of hire, at the very low rate of $36 a year for both, and the consideration moving from Arnold was, that he was thoroughly to instruct the negroes in the business of a Blacksmith, during the term of five years as to one and seven years as to the other : that during those terms they were to be completely subject to him : that he was to feed, clothe and shoe them, and to take such care of them as would be proper, under the circumstances: that in case of the sickness of either, he was to be sent, on such occasion and such only, to White, the owner and the plaintiff.

The negroes ran away and were' lodged in the workhouse as runaways. Arnold was informed of the fact as soon as it was known by the plaintiff, (or his son, in his behalf,) but he would not take them out, on account of the expenses to be paid, though he was willing to receive them again, if White would pay the expenses, release and re-deliver them. The contest was, in reality, as to who should pay the expenses — White in fact paid the bill of the workhouse, returned the negroes — they were received by Arnold, and the question arises, Was Arnold bound in law, to refund such expenses to the plaintiff, White ?

The Recorder thought not, and so decreed, and we have the question on appeal.

If it turned upon the construction of evidence, we would, as usual, hold the decree below quite equivalent to a jury’s verdict. But it is'a point of law, and we must resolve it as best we may.

The case is not free from difficulty, let it be decided as it may. It probably would be, if it appeared, (though it does not,) that the negroes ran away through the default or misfeasance of Arnold, or, on the contrary, of White. We must assume they eloped by reason of their contumacious perversity.

By the course of our decisions, he who hires a slave for a term, is regarded as the owner for such term. This is true very generally, if not universally as to third persons. In a great degree true likewise as to the master or real owner. The hirer must pay such current expenses as the master would be liable to pay; he must pay the stipulated compensation, or the quantum valebat, though the slave run away, or be disabled by sickness, originating during the term. The expense of relief to the slave, found in necessitous circumstances, would raise an assumpsit by the hirer, to re-imburse a third person, moved by humanity, and the emergency of the case, to minister relief, as medical assistance for example. It is not perceived how we can apply any other rule, or principle of law to the present case. Here was an incidental expense, not incurred by the default of the plaintiff any more than that of the defendant. The slaves were in the service of Arnold, at the time, who, as well by express contract, as by implication of law, was liable to the burthen of expenses, incident to the bailment, of whatever character, save only that specially excepted in the agreement between these parties. When they were arrested and secured, for whose benefit —to whom, did that service enure, immediately and directly 1 In general we must allow that such service would be rendered to the master. And in the ordinary case of the arrest of runaways, the master is liable. But the question recurs, who was the master, pro hac vice, in the present instance 1 The answer is, Arnold. It does not seem material, that indirectly, mediately, remotely, the absolute owner would also find an interest in the restoration of the negroes to their proper service, and, therefore, to the means and opportunity of instruction. He, the real owner, would have the same kind of, collateral, indirect benefit, if a doctor had administered physic in a case of casual necessity, or one had saved life or health by food and clothing, in like circumstances. It appears to us, however, that in these latter supposed cases, the assumpsit would be by the temporary owner, the hirer.

If some of the foregoing observations be well founded, it would follow, that Arnold could lawfully reclaim and ought to have reclaimed the negroes from the authorities of the workhouse. Upon exhibiting and authenticating his dominion oyer them, a refusal to re-deliver would be an invasion of his rights, capable of redress at law. It does not matter that, perhaps, the absolute owner might also be liable to the workhouse for fees, and competent to claim the delivery of the negroes to him. It is not unfamiliar, that cause of action, or of indictment, may arise, in favor of both owner and hirer, out of the same transaction : or a civil action maintainable by the one, and a prosecution by the other.

It is urged that the payment by White was voluntary : and that to maintain his right to reimbursement would authorise his improper interference with a clear right, on the part of Arnold, to leave the negroes in the workhouse, at pleasure, for the purpose of discipline.

It occurs to us to answer, that, by the agreement, the leading interest of White,, the main consideration of his contract, was the thorough instruction of his negroes in the .mystery of Arnold’s trade. Nothing could accomplish that end except the release and restoration of the negroes. We have suggested considerations to shew, that legally it was Arnold’s duty to do this. To rescind the contract, (if it he allowed that White was warranted so to do,) and resort to an action for damages, would he quite unsuited to such a purpose. And as to the matter of discipline, it is proper to say, that it no where appears Arnold was moved by any such purpose : the contest was wholly concerning the liability to pay the workhouse fees.

Touching the right of recision in this and such like cases, it is a fit occasion to observe, that when we encounter such a question, we may feel obliged to advert to the anomalous character of such relations as spring out of the letting to hire, or to a species of apprenticeship, of negro slaves — the duty of the master, or absolute owner, in whom centres the rights of the slave, such as they are, to vindicate the obligation of humanity and a great interest, although for a term and to a certain extent, he has transferred dominion to another — and we may be led to feel more strongly the force of all such considerations, if it should turn out that/in such cases, the Court of Equity may not see a proper field to apply its jurisdiction in the specific enforcement of contracts.

Extreme cases are suggested, on either hand; as, for example, the escape of a slave to a distant State, New-York, or elsewhere, where the expense of reclamation might be enormous, more or less so. Or the case of leaving a slave in jail, under pretence of discipline, but with an object very different, very unfaithful, and very unlawful, thus subjecting the slave to peril of life or otherwise, and the owner to great detriment. These suggestions do serve to shew the inherent difficulty of the case, and the still greater difficulty and danger of delivering, on the occasion, a dogmatical, rigid rule of universal application. But if the judgment of a Court, or the conduct of an individual, were made to wait on the removal of all possible difficulties, inconveniences, and dangers, that might lie in the way, there would be a degree of inertness and torpidity quite subversive of the duties of life.

Not denying the force of what has been said by the Judge below and at the Bar, on behalf of the defendant’s case, we are nevertheless of the opinion that, upon the case made, the better judgment is, the plaintiff is entitled to recover, and a new trial is, therefore, ordered.

O’Neall, Whitner and Glover, J J., concurred.

Wakdlaw, J., absent at the hearing.

Motion granted.  