
    *Williams v. Moore.
    Monday, Nov. 23d, 1812.
    i. Slaves — Sale Subject to Approval of Purchaser- Right to Return for Disabilities Not Existing at Time of Sale. — If a slave be sold, upon condition that the buyer, not liking, may return him in a given time; and, while in the buyer’s possession, but not thro’ his neglect, he be disabled by cold, so as to be of little value; the buyer may refuse to keep him, and Is not responsible for the loss, unless he expressly agreed to be so liable. But the buyer is responsible, without such agreement, for ordinary neglect; that is, if he failed to take such care of the slave as any man of common prudence and capable of governing a family, takes oi his own concerns.
    This was an action on the case, by the appellant against the appellee, in the Superior Court of law for Harrison County. The declaration contained two counts. The first was ‘‘that, whereas, upon the 6th day of February, 1807, at the aforesaid county, the defendant entered into a verbal agreement with the plaintiff for the purchase, by the defendant of the plaintiff, of a negro woman slave, named Peg, at the price of 300 dollars, on condition that, if the defendant did not like the said slave, he was to return her to the plaintiff in the space of two or three weeks; and, thereupon, the said defendant, on the day, year, and place aforesaid, received of the plaintiff the said slave, Peg, under the agreement aforesaid; and while the said slave was in possession of the defendant, to wit, upon the 6th day of February, 1807, by being exposed to the severity of the weather, her hands were so frozen that she lost several of her fingers, and is otherwise disabled, so that she is of little value: and thereupon the defendant refused to keep the said negro, or to compensate the plaintiff for her in any manner whatever, although so to do the defendant, afterwards, to wit, the 1st day of April, 1807, and often since, in the year last aforesaid, by the plaintiff, hath been requested ; by which the plaintiff, during the whole time aforesaid, lost, not only the service of the said negro slave, and the future use and value of her so long as she may live, but also hath been at great expense and trouble in the maintenance and cure of the said negro slave.” The second count resembled the first, except that it contained averments that the slave was ‘‘sound and in good health” when delivered to the defendant, and that the injury she sustained was by “his negligence.” The defendant pleaded “not guilty.” Andón the trial of the cause, the counsel for the plaintiff moved the “Court to instruct the jury, “that if they were of opinion that the negro mentioned in the declaration was purchased by the defendant, of the plaintiff, on condition that if, after keeping her two or three weeks, he did not like her, he was to be at liberty to return her, that, in such event, the defendant, to entitle him to the benefit of the contract, was bound to return her in the same condition he received her; even although the injury she sustained was not imputable to the neglect of the defendant. ” But the Court refused to give the jury such instruction, and instructed them, “that no bailee is responsible for accident, unless it be expressly agreed between the parties to the contract that he shall be so liable; that, when the bailee alone is benefited by his contract, he is bound for slight neglect ; and that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels,” To which opinion of the Court, “refusing the instruction asked,” the plaintiff filed a bill of exceptions.
    Verdict and judgment for the defendant. The plaintiff appealed.
    The Attorney General, for the appellant,
    insisted, in the first place, that the appellee was not released from his bargain. The clear intention of the parties was, that the negro was to belong to him from the time of the sale, unless he made his election to return her in two or three weeks; during which time he took her upon trial. An accident happening in that time could not defeat the bargain. Nothing could have this effect, but his returning her within the time, and saying he did not like her qualities.
    2. The Court’s instruction to the jury, that no bailee is responsible for accident, without an express agreement to that effect, was plainly erroneous; for the law is otherwise in relation to common carriers ; and to innkeepers.
    
    *It may be said that this was not the point in controversy; that the instruction given was a mere opinion upon an abstract question; but, however irrelevant in itself, it might have had the effect of improperly influencing the minds of the jury. No evidence of illegal character ought to be confided to the jury ; and the principle equally applies to instructions from the Court.
    Wickham, contra.
    There is no question that- a bailee is not liable for accidental injury to a negro, unless it appear to have been occasioned by his own fault. According to the bargain, the defendant had a right to return the negro,, if he disliked her for any cause. His liking was to continue during the whole time allowed him to make his election ; and her becoming frost-bitten was a sufficient reason for his disliking her. At any rate, it could not deprive him of his right of election : that right was absolute in him; so that he was not bound to assign his reason for dislike.
    2. A bill of exceptions is to receive a reasonable construction, and to be taken, by intendment, to support the judge’s opinion, unless the contrary appear. When the Court says, in general terms, “no bailee,” it ought to be taken with reference to the subject matter, as intending “no such bailee as that described in the declaration.” The word ‘‘bailee” may be understood in a general or restricted sense: in its general sense it does not apply to carriers and innkeepers, who are responsible by custom of the realm: taken in a general sense, a bailee is not liable without negligence.
    The Attorney General, in reply.
    The purchaser’s liking the slave, must be understood with reference to her qualities at the time of the contract; not to any change, by accident, afterwards.
    Where it does not appear that a point is. relevant, the judge is not compelled to give the instruction; or, if he gives a correct instruction upon such point, it is not error. *But the present question is, whether an erroneous instruction upon an abstract question be not sufficient error to set aside the verdict. This instruction was clearly erroneous. The broad proposition, “no bailee,” &c., cannot be understood as pointing to any particular bailee; but must comprehend bailees of every description.
    
      
       Jones on Bailments, 119,104; 1 Bac. 379, and 5 Term Rep. 389, Hyde, &c. v. The Navigation Company from the Trent to the Mersey.
    
    
      
      b) 3 Bac. 664.
    
    
      
      c) 2 Wash 281, Lee v. Tapscott.
    
   Saturday, December 12th, the President pronounced the Court’s opinion, that the judgment be reversed, the verdict set aside, and the cause remanded to the Superior Court of law, with directions to that Court to instruct the jury that, ‘ ‘if the injury to the slave complained of was not imputable to the neglect of the appellee, he would not be responsible therefor, unless he expressly agreed to be so liable; and that, as no such agreement is charged to have been made, he is only bound (according to the present declaration) for ordinary care of the slave in question; that is, such care as any man of common prudence, and capable of governing a family, takes of his own concerns; and that he is therefore answerable for ordinary neglect only.”  