
    William Bell vs. B. V. Lakin.
    In an action on the case, for employing a slave that is a runaway, to entitle the plaintiff to recover damages, where he has alleged the defendant’s acts to have been done with a scienter of the fact that the negro was the runaway slave of the plaintiff', he must prove the scienter, unless, from the circumstances, the law would presume it.
    Where a declaration contains an averment that is foreign to the issue, and which may he rejected as surplusage, it need not he proved. But every material averment must he proved.
    Before O’Neall, J., at Fairfax, July Extra Term, 1840.
    This was an action on the case, in which the plaintiff declared against the defendant in six counts; 1st, for enticing away his slave, knowing him to be so; 2d, for harboring him while he was a runaway, knowing him to be so runaway, and to be the slave of the plaintiff; 3d, for enticing away the slave with the same scienter, and with some variations from the first count; 4th, for receiving the said slave, knowing him to be a runaway, and to be the slave of plaintiff; 5th, for giving the said slave a certificate that he was free and entitled to the ^proceeds of his labor, knowing him to be a runaway, and the slave of the plaintiff; and laying special damage, the amount of the gaoler’s bill in Columbia, for the detention of the said slave in gaol; 6th, the same as the 5th, except, that further special damage to the amount of the physician’s bill for attendance on the said slave is laid.
    It appeared that Robert, a slave of the plaintiff, a bricklayer by trade, escaped from him, in 1833, and remained out of his possession until after May, 1838, when he was taken up in Columbia, by Joshua Sowden, who lodged him in gaol, where he remained until claimed by the plaintiff, who paid the gaoler’s bill, $74, and the physician’s bill for attendance on him while in gaol. He had in his possession a certificate, signed by the defendant, as his guardian, in which he was called Thomas Oree, and was stated to be a free man, and entitled to receive, as such, the proceeds of his labor. The defendant, on the 12th June, 1838, wrote to Sowden, stating his knowledge of Thomas Oree to be, that he had passed for some time as a free man; that he had been three years before in his employment ; that he then had in his possession papers showing his freedom, which he did not critically examine. The value of the slave’s services while absent from his master’s service, was shown to be one dollar per day.
    The defendant clearly and abundantly showed, from most respectable testimony, that the negro man calling himself Thomas Oree, came into Lexington District in ’32 or ’33, as a free man; that he was from that time until he went to Columbia, in May, 1838, treated and considered by all who knew him in Lexington, Newberry and Fairfield, as a free man; that he was during that time, and before the defendant was appointed his guardian, employed by such men as David Montgomery, of Monticello, Maj. Charles Montgomery, of Fairfield, Capt. John Counts, of Lexington, and Col. William Counts, of Newberry, as a bricklayer and a free man. In ’35, while the defendant, with his family, was at the Pacolett Springs, his nephew, Parr, employed the man (Thomas IToree, as he was then called, afterwards ascertained to be Robert, the slave of the plaintiff,) for one month, to work on the defendant’s mill dam, and for which ho paid the negro. This was the only work he ever did for the defendant. On the 5th of June, 1837, the defendant was appointed, by the *clerk of Fairfield, (in which the negro then resided,) his guardian, and he thereupon gave the certificate of freedom before spoken of.
    The jury were instructed that the plaintiff must recover on the case made by his pleading, or fail. That as to the three first counts, there was no proof to sustain them, and that the cause turned upon the three remaining ones. As to which they were told, that in them, the plaintiff, having laid the defendant’s acts to have been done with a scienter of the fact, that the negro was the runaway slave of the plaintiff, lie could not recover without proof thereof, unless the law presumed the scienter. There was no proof that the defendant had any information or knowledge which would lead him to believe the negro was a slave.
    Generally speaking, the law of master and servant, as existing in England, applied to master and slave in this State. There are here, however, two exceptions, arising from color and property.
    The first of these makes the distinction, that slavery is presumed to be the condition of the negro, until the contrary appear. I gave it to the jury as my opinion, that reputation, and passing as free, would be priiwi facie evidence of freedom, until the fact of slavery was shown. They were told it would admit of a grave question, whether, if a slave, with the knowledge of his master, acted as a free man, and passed as such, for four years, it would not establish the fact of freedom, as against the master, so as to make the slave liable to seizure, as being emancipated contrary to law. This was illustrated : 1st, by showing that the right of property in a slave might be lost by four years adverse possession ; and 2d, that after twenty years of acknowledged exercise of the rights of a free man, a deed of manumission regularly and properly executed, would be presumed.
    The next distinction arises out of the status of the negro, as property in this State. In England, to make one liable for the employment of a hired servant, a knowledge of the fact of the servant being previously employed, must be brought home to the defendant. But here, the employment of the slave of another, with or without the knowledge of the fact, would make the person so employing liable for the wages of the slave, to the master. If, therefore, the plaintiff here had ^counted for the mere employment of his slave, without a scienter, or in trover, I should have said to the jury that he was entitled to recover for the month which the slave worked on the defendant’s mill-dam, in 1835. But there was no such count, and the plaintiff could not, therefore, recover on this ground.
    The jury were directed to inquire, 1st. Can the plaintiff recover on the fourth count, for receiving the plaintiff’s slave ? This, I told them, depended on the fact, whether the defendant received the negro, knowing him to be a slave. For, I said to the jury, that to make the defendant liable, it was not necessary that he should know the negro to be the slave of the plaintiff. It was sufficient if, in law or fact, he had enough to create the knowledge that he was a slave. On this part of the case, I told the jury that the fact that the defendant found the negro in an admitted and acknowledged state of freedom, which he had exercised for years, rebutted the legal presumption of slavery arising from color, so far as the defendant was concerned, and therefore left the scienter unproved; and hence, on this count, the plaintiff could not recover, unless they should think the defendant in fact knew the negro to be a slave.
    They were then told to inquire whether the defendant was liable for giving the negro the paper certifying that he was a free man, and entitled to the proceeds of his labor.
    The jury were told, that in many cases of injury to property, the intention with which the act was done, had nothing to do with the question, whether the plaintiff was entitled to recover. Here, however, I thought the plaintiff’s right to recover depended very much on the defendant’s intention. If the paper had been given by any one not a guardian in fact of the negro, I should have thought it such a reckless interference as might have made him liable to the master, in some form of action. But here the act was done by one supposing himself to have the legal right. The Act of ’22, requires every free male negro to have a guardian, to be appointed by the clerk of the district in which he may reside. The clerk appointed the defendant guardian, and his act in that character, in giving the negro the certificate of freedom, and that he was entitled to receive the proceeds of his labor, would not make *him liable, unless he knew the negro to he a slave. 
      If, however, he knew the negro was a slave, then he would be liable for all the damages claimed.
    The jury found for the defendant, and the plaintiff appeals, on the annexed grounds.
    GROUNDS OF APPEAL.
    1. Because the plaintiff, having proved that his runaway slave who labored as a mechanic, was worth a dollar per day, was in the employment of defendant upwards of a month, and that the defendant became the guardian of the negro, and gave him a permit, in writing, to contract and trade for himself, and to receive payment for his work, about a year before he was apprehended, the verdict of the jury is contrary both to the evidence in these particulars, and to the law applicable thereto.
    2. Because his Honor, the presiding Judge, erred in charging the jury :
    1st. That if the defendant had reason to believe that the negro was free, he was not answerable for becoming the guardian of the negro, and for giving him the ticket.
    2d. That if one of the jury would have become the guardian of the negro, the plaintiff was not entitled to recover.
    3d. That the plaintiff could not recover without proving that the defendant know the negro was a slave.
    4th. That it might be a question whether a slave passing as a free man for four years, might not be entitled to his freedom.
    5th. That the plaintiff could not recover for the month’s work in this case.
    3. Because the defendant, having employed plaintiff’s runaway slave, and having given him a ticket to contract and trade for himself, and to receive payment therefor, was liable in law.
    
      J. Gregg, for the motion
    ; on the first ground, contended, that having failed to prove that the defendant knew the slave *to be a runaway, plaintiff could only recover for the month’s labor with the defendant, and in his employ during the year 1835.
    It is said that if the plaintiff had alleged and proved that the defendant knew the negro to be a runaway, then the plaintiff might recover for the month’s work ; but it is not necessary to prove every immaterial averment. There are some immaterial averments that should be proved, and others that should not.
    Cited Bristoe vs. Wright, 2 Dougl. 665. Immaterial averments, 6 Term Rep. 496. Pippin vs. Solomon. Upon defendant’s scienter. Williamson vs. Allison, 2 East, 446.
    If the plaintiff had been able to prove the scienter in the defendant, he might have recovered the amount of the whole time the negro was run away.
    In what cases must the scienter be alleged and proved ?
    When the act itself is illegal, the scienter need not be alleged or proved.
    The intention with which a party commits an act in criminal cases, is always inquired into ; but in civil cases the reverse is the case. The inquiry is, what damage has the plaintiff sustained ?
    Wherein does the difference exist, between giving the negro a free pass and employing him for one month ?
    The ground of action is not the benefit that the defendant received, but the injury that the plaintiff received, and the injurious effect produced by this act.
    
      J. A. Woodward, contra,
    contended there was a striking difference between the position of the plaintiff and the defendant.
    If the defendant be guilty of no fault, no tort, or gross negligence, then the party is free from any damage.
    The defendant was not proved to have any knowledge of the negro being a slave. Cited Esp. Dig. 599, fourth paragraph ; id. 619, second paragraph.
    The negro’s having possession of himself for four years, was a strong presumption that he was free, and the defendant could consequently have committed no wrong.
    
      Defendant, if liable at all, is liable for the month’s work, in action of debt, by sum. pro. and not in the form of the action ^ brought. But he contended that he was not liable at all, for he was presumed free, and defendant had, under that view, the right to hire him. The negro was free to hire himself and receive compensation for his labor. Defendant paid the negro for his hire, and was free from any blame.
    A party may become the guardian of a slave, even pending the question of freedom.
    Cited, on Guardians, 2 Brev. 160.
    For giving a permit to a slave, no action lies; but if one presumes to give a permit to a slave against the will of the master, the party shall suffer by indictment, and also by civil process.
    
      
      а) 7 Stat. 462, § 7. An.
      
    
    
      
      б) In illustrating this part of the subject, the jury were told, if, on retiring to their room, they should be satisfied that they, with the information which the defendant had, would have acted as he did, then I thought it would furnish a pretty good test of his good faith, and that he ought not to be liable.
    
   Curia, per

O’Neall, J.

In this case, this Court is satisfied with the instructions of the Judge below to the jury.

The only point on which it is proposed to make any additional remarks, is that assumed by the defendant’s counsel here, that the scienter laid in the declaration, was an immaterial averment, and need not be proved.

There is no doubt that where a declaration contains an averment which is foreign to the cause, and which may be rejected as surplusage, that it need not be proved. Bristow vs. Wright, (Doug. 667.) The application of this rule will be seen, by referring to Pappin vs. Solomon, (5 T. R. 496.) The action there was on a policy of insurance on a ship “at and from London to -, and thence back again to London.”

The declaration averred, that after making the policy, to wit: — on the 10th of August, 1792, the ship was in safety at London. She sailed before the policy was executed, and was lost on her return voyage: it was held that the averment was immaterial. For it was in no wise connected with the right of the plaintiff to recover, or the liability of the defendant. So, too, in Williamson vs. Allison, (2 E. 446,) the action was a warranty, and it was held, that the averment of the scienter was immaterial.

That proceeded upon the ground, that the gist of the action was the breach of the warranty.

In it, I think Laurence, J., stated the true rule when he said, “if the whole of an averment may be struck out without destroying the plaintiff’s right of action, it is not necessary to *prove it. But otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot recover.”

In the case before us, is the scienter a material or immaterial averment ? I think there can be no doubt that it is a material one. The three last counts are the only ones upon which the plaintiff’s proof raises a question to be met by the defendant. The charge in the fourth count, without the scienter, would be, that the defendant received the slave of the plaintiff. It cannot be intended, that standing thus, the plaintiff could recover; for there is nothing unlawful or prejudicial to the plaintiff, in barely receiving his slave. A man may lawfully retain the possession of another’s goods, which he finds, until the owner demands them. So, too, if one is in the possession of the goods of another, and makes no use of them, and sets up no claim to them, it could not be pretended that an action could be maintained. Stripped of the scienter, there is nothing in that count which could maintain it. Take the fifth and sixth counts, in connection with the proof, and take away the scienter, and the defendant has merely, (in the discharge of a legal duty, arising out of facts then supposed to be true, and which afterwards turned out to be false,) done an act which did not prejudice the plaintiff. For at the time the certificate of freedom was given, the negro had been, for nearly four years, out of his master’s possession, and more than one hundred and fifty miles from him. The most that can be said is, that the defendant’s certificate was founded in a mistake of facts. If he acted bona fide, he could not be liable, This makes the scienter the gist of the action. — ■ These views, it seems to me, sufficiently dispose of the argument that the averment was immaterial. But I am disposed to look a little further into the case. I have no doubt, as I said on the circuit, if the plaintiff had added a count to his declaration, in Trover, he might have recovered for the month’s work done for the defendant, by the slave, in ’35. For that might have been a conversion by the use of the slave for that time. But in the absence of such a count, the plaintiff had no pretence to recover in this case. So far as this action was concerned, the defendant was chargeable exactly upon the *principles which would charge a man in England for the employment of the servant of another, or for continuing such employment after notice. In both cases, the scienter must be alleged and proved. Blake vs. Langon, (6 T. Rep. 221.) The reason why this is so in this action, is because the action does not so much rest upon the right of property, as it does upon the relation of master and servant. For the violation of that relation, no action, in general, lies, unless knowledge is brought home to the defendant. Looking to the injury done to the right of property, it would be redressed by an action of Trover, or by an action of Assumpsit for the wages of the slave, while working for the defendant. To neither of these actions, would the payment of the wages to the slave, be any defence. For in law, he had no right to receive them. But the action before us claims a higher consideration; it is, that the defendant, knowing the relation of master and slave, chose to violate it in the manner pointed out in the declaration. This makes an entirely distinct case, and if the proof does not support it, the plaintiff cannot recover. The case of Quay vs. McNinch, (2 Con. R., by Mill, 78,) goes much further than I go in this case. For it holds, that where a defendant hired a negro reputed to be free, and found in a state of freedom, that trover would not lie for his use. That case, however, makes this position undeniable. That to entitle the plaintiff, here, to recover, it was essential to show that the defendant knew the negro to be a slave.

Cited 4 Rich. 475; 1 Rich. 324; see as to surplusage—4 Rich. 297; 2 Strob. 273, 278. An.

The motion for a new trial is dismissed.

The whole Court concurred.  