
    Matthew Atchison vs. Lyman Potter et al.
    
    Where a slave has been prosecuted before a justice of the peace for larceny, under the statute (H. & H. 164, § 40,) and the justice has adjudged the costs of the prosecution against the owner of the slave, the circuit court has jurisdiction of a certiorari at the instance of the owner, to determine whether, so far as the judgment for costs extended, the decision of the justice had been according to the law and facts.
    The statute which subjects the master, employer or overseer of a slave convicted of larceny to the costs of prosecution, designed to render the person who had the slave in charge at the time of the commission of the offence, liable for the costs, whether he were the master, employer or overseer.
    It would seem, therefore, that a judgment for costs in such case, against a master who had not the slave in his employ at the time of the offence, would be erroneous.
    In error from the circuit court of Adams county; Hon. O. C. Cage, presiding judge.
    On the 28th day of June, A. D. 1842, Lympn Potter made oath before a justice of the peace, W. P. Mellon, of Adams county, that Emma, the slave of Matthew Atchison, feloniously did steal, take and carry away one gold ring, of the value of $25, besides other articles of the further aggregate value of $62 25, the property of Potter; upon which, the justice issued his warrant for the apprehension of the slave, to appear before him on the day following, to answer the state of Mississippi on the charge of grand larceny, and to be dealt with according to law; the warrant being returned executed, the plaintiff appeared before the justice, and asked for and obtained a continuance of the trial, until the following day; on that day, the slave Emma appeared and plead not guilty ; whereupon, George Pulling and Henry Patterson, previously summoned for the purpose, were sworn as jurors to try with the justice the issue; who, upon hearing the cause, returned the following verdict, and rendered the following judgment, to wit;
    
      “We the jury, find the prisoner guilty of petit larceny, adjudging the value of the ring proven to have been stolen, at $15 ; and order that the.prisoner receive fifteen lashes, well laid on, upon the bare back, at the common whipping-post.
    (Signed.) George Pulling,
    H. Patterson,
    W. P. Mellon, J. P.”
    Whereupon the following judgment was entered of record:
    
      “ It is considered that Matthew Atchison, the master of said slave Emma, be taxed with costs of prosecution.
    (Signed.) W. P. Mellon, J. P.”
    The judgment of whipping was executed on the 29th June, 1842; on the 1st July, the justice issued an execution directed to any constable of said county, reciting as follows :
    “ Judgment being had before the undersigned justice of the peace, in and for said county, on the 29th day of June, 1842, for the sum of twenty-two dollars and eighty-seven cents costs, in the suit of the State of Mississippi against Emma, a slave, and Matthew Atchison, master of said slave, having become liable for the payment of the said judgment, you are therefore hereby commanded to make of the personal estate of the said defendant according to law, sufficient to satisfy the said judgment and costs, with lawful interest from the date of said judgment.” Made returnable within twenty days.
    Afterwards, on the 8th day of July, 1842, Atchison gave notice to all the parties interested, that he would on Saturday, the 9th day of July, 1842, at the office of said Mellon, move to quash this execution on the following grounds, t'o wit: “ 1st. There is no such record of judgment as recited in said execution. 2d. The said Matthew Atchison was no party lo°said judgment or suit in which it was rendered. 3d. The fees ' therein charged are severally illegal and void. 4th. Said Atchison, was not, at the time of the commission of the supposed felony or larceny, for which said slave Avas arrested and tried in said case, the employer or overseer of said slave, but she was in the possession of, and employment of one Lyman Potter, Esq., the prosecutor in said suit. 5th. Because the said Lyman Potter, and not the said Atchison, is responsible and chargeable for all legal costs in the prosecution of said case.” The parties appeared, and the defendants in error opposed the motion; on the trial of which, it was admitted by Potter, that he was the employer of the slave Emma, at the time of the commission of the offence charged. Whereupon the motion was overruled by the justice.
    On the 14th July, ’42, Judge Turner, one of the judges of the high court of errors and appeals, on petition of Atchison, granted a writ of certiorari with supersedeas, to remove the case to the circuit court.
    The cause having been thus removed upon the motion to quash the execution, the defendants at the November term, 1842, moved the court to dismiss the certiorari, but the motion was overruled. At the May term, 1843, the defendants moved the court to strike the cause from the docket, and thereupon it was ordered by the court, that said cause be stricken from the docket, and that judgment final be entered against Atchison and security for all costs, on the ground that the court had no jurisdiction of the case;
    From this judgment this writ of error is prosecuted.
    
      Sanders and Price, for plaintiffs in error.
    This contest involves a highly important principle to the owners of slaves, whether a party hiring a slave, shall be allowed, after the term expires, to prosecute such slave for an alleged larceny committed on his own property whilst he is the hirer and employer; and that the owner shall be charged with the costs of the prosecution, and the value of the thing stolen ; for in the case referred to, the master would have been required to have restored the ring, had it not appeared in evidence that it had been restored to the prosecutor long before the commencement of the prosecution; and whether a magistrate has the power in the case even of a criminal prosecution, to enter judgments against the owner of slaves to any extent, without a legal right to correct his errors.
    We regard the jurisdiction of the circuit court in such case as unquestionably given in the following section of the statute: “ All cases which may hereafter be decided by any justice of the peace in this state, may be upon good cause shown by petition, supported by affidavit, removed into any court having jurisdiction thereof, by writ of certiorari and supersedeas, which writ or writs, as necessity may require, shall be granted by the chief justice of the county court, or any judges of the superior courts of law in this state; and it may be lawful for any party seeking such writ or writs, to apply for the same at any time within twelve months after any such cause may have been determined ; the party in all cases giving bond with approved security, as in cases of appeal from justices of the peace, and any cause so carried up by certiorari, shall be tried de novo on its merits.” H. & H. 436, § 45.
    The section under which the proceeding was had against the slave, as we presume, is as follows :
    “ If any slave or slaves shall feloniously take, steal and carry away, any goods or chattels under the value of twenty dollars, he, she or they so offending, and being thereof legally convicted before any justice of the peace, shall be deemed guilty of petit larceny, and the master, employer or overseer of such slave shall restore the goods and chattels so stolen, to the owner or owners thereof, or pay the value thereof to such owner or owners ; and any slave so offending, or who shall be accessory thereto before the fact, shall receive any number of lashes, not exceeding thirty-nine, on his or her bare back, well laid on by order of said justice; and also the master, employer orj overseer of such slave shall stand charged with the costs of prosecution. H. & H. 164, § 40.
    The intention of the act is manifest that the person having the control over the person of the slave at the time of the commission of the offence, whether master, employer or overseer, is the person intended to be made liable for costs, and not all three, or any that the caprice of the justice or the prosecutor may select, but only the one having the control and management of the slave at the time; a different construction would lead to infinite frauds between master and hirer, and would lead to a fruitful source of litigation between those relations. If the slave in the employ of a hirer should steal bread or meal, or any trivial commodity, he could, if excited against the master, reek his malice by flimsy prosecutions, tax the master for his cost, claim his and his wife’s attendance as witnesses. Besides magistrates would likely be tempted to tax the costs against that relation of those parties who was best able to pay them. "We therefore contend that the court erred in striking said cause from the docket, and that this court render judgment sustaining plaintiff’s motion to quash said execution, or that the cause be remanded to the circuit court, with directions that it be reinstated upon the docket and be tried upon its merits.
    
      Hewett, for defendants in error.
    In 3 S. & M. 592, this court decide'" expressly, that the “master is liable for the property stolen” by his slave, and that he is so liable, whether the thing stolen is in his possession or not. Here it is alleged that the slave was not in the possession of her master at the time of the theft, and therefore the employer, the hirer, and not the owner, should be liable for the costs, the only liability in this case sought to be enforced.
    In the absence of any statement of the legislative intention in any enactment, we must look to its operation to ascertain it with certainty.
    We cannot suppose the legislature cared to discourage the hiring of dishonest slaves, or the becoming an overseer of such ; but we may well suppose a desire, on their part, to discourage the importation into, and owning such property, in this state. At the date of the passage of the act, imposing the payment of the costs here in question, on the master, employer, or owner, there was, and for years continued to be, a great influx of slaves into this state, and often in the charge of a mere overseer, the owner residing abroad. In such case, he who had charge of the slave who had violated the law, would with propriety be charged with payment of the costs taxed, not because he was in charge as “ employer, or overseer,” but because he had the opportunity of securing the repayment to himself, or surrendering the slave which had offended, in execution.
    To suppose that an employer, by the hire of a slave for a few days, who had no agency in bringing the vicious slave into the state, and could exercise no control over his removal, should be charged with the consequences of such slaves’ vices, in preference to the owner, is too preposterous to be discussed further.
    As to the dismissal of the certiorari by the court below, we conceive it also was properly done.
    The costs of a suit are incident to, and partake of the nature of the judgment.
    In this case it was a criminal proceeding, and the payment of the costs by the master, &c., was as much a part of the judgment of the court, as the infliction of the punishment on the slave. It will not be pretended, we presume, that an appeal to the circuit court would lie for the latter; in this case, the reversal of the judgment would not operate greatly to her advantage. The appeal given by statute, from the decision of the justice to the circuit court, certainly contemplates only civil causes. All the provisions of the statute show this. See H. & H. 429, 436.
    The act of 1830, (H. & H. 436, sec. 45,) evidently contemplates, equally with the preceding statutes, as to appeals, only civil cases. It provides that “all cases” decided, maybe removed in the manner prescribed. And that when so removed, to wit, on petition to the proper officer, the party shall “in all cases give a bond as in cases of appeal from justices of the peace ; and any cause, so carried up by certiorari, shall be tried de novo, on its merits.”
    Here a cause was not removed, that could be “ tried on its merits,” but a motion made to quash an execution for costs due officers and others, in a criminal proceeding. We think the dismissal in the court below must be affirmed.
   Mr. Justice Thacher

delivered the opinion of the court.

A slave, alleged to be the property of the plaintiff in error, was convicted of the offence of larceny, which was charged to have been committed while the slave was under the control of Potter, one of the defendants in error. Judgment for the costs of prosecution was entered up by the justice of the peace against the plaintiff in error, as the owner of the slave, and- execution issued thereon. The plaintiff in error sued out writs of certiorari and supersedeas, upon this judgment and execution, from the circuit court of Adams county, in which court the cause was stricken from the docket, on the ground of want of jurisdiction.

It is competent for the circuit court to take cognizance of a matter of this kind so far as the judgment for costs is concerned, and a case of the kind may be carried into the circuit court, from the judgment of' a justice of the peace, in any of the modes provided by statute. Although the stalute does not provide that an appeal shall lie to the circuit court from the judgment of a justice of the peace, and a jury of two slave-holders, upon a slave convicted of an offence punishable with stripes, and although the circuit court cannot inquire into the propriety of such judgment, it may, nevertheless, look at the facts for the purpose of ascertaining whether the costs of such a prosecution have been taxed against the proper party.

The statute, (H. & H. 164, sec. 40,)' provides that, upon the committal of a slave of the offence of larceny, the master, employer, or overseer, shall stand charged with the costs of the prosecution. The act evidently designs to annex the liability for costs to the master, employer or overseer, accordingly as either has the care of a slave at the time of his commission of the offence. The object of the law is to render the immediate controller of the slave watchful over his conduct, and thus prevent, to some extent, the consequences which may arise from the slave’s ignorance of moral obligation. This view of the law is manifest from the provisions of another statute. H. & H. 171, sec. 58.

The judgment of the circuit court is therefore reversed, and the cause directed to be there reinstated for further proceedings!  