
    John M. James, Trustee, vs. The W. & M. Railroad Company.
    The borrower of a slave, who had had him in possession ten years, using him as his own, let Kim to hire for his own benefit, wibhout the owner’s knowledge, to the defendants, and the slave was killed while in defendants’ service i — Held, that ^f the owner permitted the borrower so to deal with the slave as to mduceobhers to believe that he had authority to let him to hire, the defendants, if misled by subh show of authority, were not liable.
    BEFORE WARDLAW, Jv AT SUMTER, SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows:
    “Action on the case to recover damages for a slave killed in the employ .of the defendants.
    “ There were three counts : 1. That the defendants wrongfully employed the slave without the consent of the plaintiff, his owner. 2. That they hired the slave for one purpose and employed him for another. 3. In trover.
    “ The only witnesses in the case were Tyre J. Dinkins and John J. Evans, both adduced by the plaintiff. Their testimony made the following case : - :
    “ In 1836, R. Bradford, by deed conveyed Sophy and her children to the plaintiff, in trust for the sole and separate use of Elizabeth, then the wife of -Singleton, during her life and after her death for her issue living at her death. Shortly afterwards, Edmupd, the slave now in question, was born of Sophy. After the death of -- Singleton, his widow intermarried with Isaac Lenoir, whose wife she now is, a marriage settlement between them, dated in 1848, having confirmed the deed above-mentioned. Mrs. Lenoir is a sister of the wife of Dinkins, the witness. When Edmund was about five or six years old, a son of Dinkins, a few years younger, was left for a month in charge of his aunt, then a widow, and -when she brought him home to Dinkins, she brought with him Edmund, as a nurse and playmate, and returned, leaving both Dinkins’ son and Edmund. Ever afterwards, till his death, Edmund remained at Dinkins’, under his -control, used and employed by him at his pleasure. The intermarriage with Lenoir made no difference. On her visits to her sister, Mrs. Lenoir would direct Edmund about his business, but not more than an intimate friend would have done if -Edmund had been known ■ to belong absolutely to Dinkins. A negro girl of Mrs., Lenoir’s was also 'at Dinkins’, assisting his family. ■ Dinkins'paid no' hire,- and had no contract for any stipulated time. He would, he- said, have given up either or both of the slaves to Mrs. Lenoir whenever required, but in all respects he treated them as .his own.
    “In 1854, Dinkins was stationary agent of the defendants at the Sumter depot» and-having in-the summer been directed to hire for the defendants four firemen, he, without consulting the plaintiff or Mr. or Mrs. Lenoir, put Edmund on the'road^ as one of the firemen, taking the wages to himself.
    “In November, 1854, a train of five cars -being about to return empty to Wilmington, Dinkins advised Evans, the conductor, to take a load of cotton in it. Evans was willing if hands to load could be had. . He and Dinkins applied to other agents of the Railroad Company, and hands were sent, among which was Edmund : Dinkins saw Edmund employed in loadIrig the cotton which was at Sumter, and knew that he, with the other hands that had been sent, was to go on the train to Wilmington. .No objection was made, for no danger was .apprehended.. At Florence, Edmund and another hand were safe on a flat car, loaded with cotton, upon which they had been put to watch against sparks. Shortly afterwards, •Edmund was on the track, and was run over so that he died next day. How he fell no white person could testify. The road was smooth, and the speed was not great. :
    “The plaintiff urged his right to recover under each of the three counts.- . -
    
      “ I submitted all the facts to the jury, and especially the question concerning Dinkins’ authority to let Edmund to hire, and to consent to a change of his employment. I did not speak of presumptions, but said that if the plaintiff and those for whose use he had the title, had permitted Dinkins so to deal with Edmund as to induce others to believe that he had authority to let him' to hire, it was as to persons misled by the show of authority, the same as if authority had been actually given.
    “ The jury found for the defendants.”
    The plaintiff appealed, and now moved this Court for a new trial on the grounds: •
    1. That Dinkins had possession of the negro Edmund as a mere gratuitous bailee, and had no authority, as he himself testified, to let Edmund to hire, and therefore the defendants are liable to plaintiff.
    2. That his Honor erred, it is respctfully submitted, in directing the jury to enquire whether defendants had the right to presume from the possession of Dinkins and the circumstances attending it, that he, Dinkins, had the right to let the negro to hire, whereas the true and only enquiry was, whether Dinkins in fact had such authority.
    3. That an authority to let to hire for the benefit of the bailee, especially in so dangerous a business as that of a firemen or train hand upon a railroad, cannot be presumed where the bailment is entirely gratuitous, as it was in this case.
    • 4. It was not pretended that the agents of the Railroad Company, except Dinkins himself, who testified that he had no authority to let the negro to hire, had any knowledge, or made any inquiry before the hiring, as to Dinkins’ title to Edmund, his possession, the length of his possession, or the circumstances attending it, and a verdict for the defendants upon the ground that they, the defendants, had the, right to presume that Dinkins had authority to let the negro to hire for his own benefit, is not warranted by any fact testified to in the case.
    5. Because upon the facts proved, and which were all unquestioned, the plaintiff was in law entitled to a verdict for the value of the negro.
    
      Spain, Richardson, for appellant.
    Dinkins paid no hire for Edmund; he held him as a loan, and in no other way. n There is no proof that he had ever hired him out before; and, although it would perhaps be fair to presume that he had the right to use Edmund for all the purposes for which a domestic servant might be used, it would seem clear from the law applicable to such a bailment, that he could not rightfully use him in any other way, much less hire him to another for his own benefit. Speaking of loans, Mr. J. Story says, “ The loan is to be considered as strictly personal, unless from other circumstances a different intention may be presumed.” Story on Bailm. § 234. “ The borrower cannot apply the thing borrowed to any other than the very purpose for which it was borrowed, nor permit any other person to use the thing borrowed, for such a gratuitous loan is strictly a personal favor.” 2 Kent, 574 ; Edwd. on Bailm., ch. 4, p. 137, et seq. If, therefore, the defendants had been entire strangers, they would have been liable, because the hiring was wrongful. But this case is much stronger; for here Dinkins was himself the agent of the defendants to hire. His act was their act, and his knowledge, their knowledge. There was no room therefore for saying that they were misled by any show of authority in Dinkins. They, the principals, are as much liable as he, the agent, is; and no one would question his liability. The plaintiff is therefore entitled to a verdict upon the first count. Wright vs. Gray, 2' Bay, 464; McDaniel vs. Bmanuel, 2 Rich. 455. And also upon the third count. Loton vs. Gross, 2 Camp. 464; Root vs. Chandler, 10 Wend. ;110 ; Belune vs.- Wallace, 2 Rich. 80.
    
      Haynsworth, Moses, contra.
   The opinion of the Court was delivered by

Glover, J.

The presumption of a gift arising from the '■possession of a slave does not arise unless the parties stand in 1 the relation of parent and child. (Willis vs. Snelling, 6 Rich. 282.) Nor can we, with cpnfidence, presume a gift in this ■ case from Dinkins’ long possession. He admits that in all 'respects he treated Edmund as his own; but he qualifies this ' admission by adding that he would have given him up when'ever required by Mrs. Lenoir.

“ From the possession of it, the public may presume a right •to personal property; and the employment of slaves by per- ' sons rightfully in possession, unless specially restricted by contract with the owner, ordinarily, depends upon their ' capacity vand fitness for service, -or upon the wants and •necessities of him who controls their labor. Edmund had been ■ about ten years in Dinkins’ possession; was under his control; used and employed by him at his pleasure, and in all respects •was treated as'his own. It is possible that when Mrs. Lenoir 'left him he was in no other way useful than as a nurse and ■playmate for Dinkins’ son; but as each advanced in life, such ■an appropriation of his services was not required, and 'Edmund’s labor cpuld bé more profitably diverted into' other 'channels. He was actually hired to the defendant as a fireman by Dinkins; was employed by him at pleasure, and treated as his own in all respects, without consulting the plaintiff, or Mr. or Mrs. Lenoir, or accounting with them for wages; and although Mrs. Lenoir was a connexion and a visitor at his house, and could hardly have been ignorant of these acts of authority, she never remonstrated with-Dinkins., for a departure from any alleged agreement between them in respect to a change of service; nor did she or her trustee, for that or for any other reason, ever resume the possession of Edmund. All this seems to be inconsistent with the allegation that it was a bailment strictly personal.

But, conceding that this was a gratuitous loan for the use, of the bailee, — which was the ground taken in the argument — ( is the defendant liable ? The general principles governing bailments strictly personal are well settled, especially in their, application to questions between the bailor and bailee; but how far third persons may be affected by a secret understanding between the bailor and bailee must depend upon the. circumstances of each case.

The defendant having hired Edmund of one who was in possession, controlling his labor, and exercising all those acts of dominion which are prima facie the evidence of the right of, property, it does not follow that he was bound to inquire what-limitations had been imposed on his authority. Dinkins’ acts and declarations were not calculated to induce any inquiry by the defendant as to his title; and where a party stands by and permits another to use and employ his slave at pleasure, and in all respects to treat him as his own, he should not be, permitted afterwards to recover damages for the loss of the slave while in the employment of a third person, on hire,,expressly on the ground that between him and his bailee there was a secret understanding limiting and restricting the bailment.

Even regarding this as a case where one of two innocent persons must suffer, the defendant might protect himself under the principle applicable to such a case. Mr. Story says, that “ he ought to suffer who has misled the other into a false confidence in his agent, by clothing him with apparent authority to act and speak in the premises, and who, otherwise,” might receive an injury for which he might have no adequate redress.” (Story on Agency, § 139.)

If the defendant may protect himself against the claim for damages alleged in the first count of the declaration, he may equally avail himself of the same defence to the second and third counts. Dinkins knew that Edmund was to go in the train to Wilmington, and interposed no objection, for no danger was apprehended., He was fully advised of the nature of the employment, and the danger that attended it, and the defendant was not required, under the circumstances of this case, to communicate that information to any person, except Dinkins, who alone was held out as the owner of Edmund, or was authorised to contract for his hire. Failing to recover for the wrongful employment of .the slave without the consent of the plaintiff, he cannot recover in the count for trover, to which the defence to the first count is conclusive.

It may be necessary to add, that a recovery is not sought on the ground of negligence by the defendant, or for a defect in the road or machinery, or for want of skill and care in the agents, it having been admitted in the argument that in these respects no fault is imputed.

The circuit Judge having submitted, with proper instructions, all questions to the jury which were necessary for their consideration, this Court is satisfied with the conclusion which they have attained, and the plaintiff can take nothing by his motion.

Motion dismissed.

Ward law, Withers and Whitner, JJ., concurred.

Munro, J., dissented.

O’Neall, J., absent at the argument.

Motion dismissed.  