
    
      Maria Horlbeck vs. C. Erickson.
    
    Case, with a count in trover, for the value of a negro hired by plaintiff to defendant as a carpenter, and lost during the torrn of hiring: proof — that the negro was lost while trying, in a boat, to collect and save floating pieces of timber belonging to defendant: the jury, by their verdict for defendant, having found that the act of the negro, in attempting to collect and save the pieces of timber, was without the knowledge or consent of the defendant and during his absence, the Court refused to disturb their verdict.
    
      Before- Withers, J., at Charleston, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The action was in case, and I suppose there was a count in trover, for the value of a negro, Andrew, a carpenter, who had been hired from the plaintiff by the defendant.
    “ By admissions and witnesses, it appeared for the plaintiff, that the defendant had hired the negro at $15 per month, that he was a good carpenter, worth from $900 to $1000, that he had never been returned to the plaintiff, and was lost.
    “ For the defence, it appeared, that on a certain evening, in the absence of the defendant, an old negro man of his was seen in the neighborhood of Smith’s wharf, engaged in trying to get together and save pieces of a broken raft of timber, which belonged to defendant. Two boys, not known to the witness, blacks, were seen to come down from the house (a house, as I concluded, occupied by defendant,) and went out in boats, with oars, to assist the old man. They had been engaged for some two hours in trying to get the pieces of timber, floating at ebb tide, together, and to save them, when the defendant appeared in the yard, and, shouting at the top of his voice, directed the negroes to come back, saying, it was not worth while to go after some floating pieces, which they were pursuing. The old negro came back, but the other two, continuing the pursuit, got into the current. Near the boats of these two, some negroes were returning to Christ Church in a boat, one or more, and they took away from these two boys their oars. Thus each lost the control of his boat, and each drifted out with the ebb tide. The defendant, when he returned, could not have gotten to either of the boats to compel the negroes to return. One of the negroes, of the two who drifted out, returned the next morning; the other the witness has not since seen.
    • <! I charged the jury that the defendant was bound to return the negro to his owner, or pay for his value, if he had been lost to her by blameable negligence on the part of defendant. That if the defendant employed the negro, whom he had hired as a carpenter, in a different business, he was quoad hoc an insurer; that he was bound to such care and diligence in his management generally, both as to restraint and otherwise, as a prudent man would exercise in regard to his own. But a wayward act of the negro, in the absence of the defendant, if that caused his loss in fact, ought not to cast the responsibility on the defendant.
    “ The rules suggested to the jury were derived from our leading cases, which were cited at the bar, and remarked on by the
    
      Court, in order that they might have our own illustrations. Among them were Danner’s case, McLauchlin and Lomas, 3 Strob. 85, and at the instance of defendant’s counsel, Barber and Anderson, 1 Bail. 358. Verdict for defendant.
    “ The grounds of appeal are annexed, and seem to impute error, rather for omission than commission. I thought the jury were very fully instructed, and not unfavorably for the case the plaintiff presented, as to every phase it could assume.”
    The plaintiff appealed, and now moved for a new trial, on the grounds:
    That his Honor ought to have charged the jury, that as the negro was employed in the breaking up of a raft and collecting the timber, it was incumbent on the defendent to prove that this employment was from the beginning against the will of the defendant.
    That it was shown by the plaintiff that the negro was hired as a carpenter, and his employment in the service of defendant, for a different purpose, was a misuser.
    That under the count in trover, the defendant was responsible, unless he could prove that the loss of the negro was by an inevitable accident, or the wilful conduct of the negro.
    That the verdict is contrary to law and evidence.
    
      J M. Walker, for the motion.
    The negro was a carpenter and was hired as such. If he was used for a different purpose it was a misuser, and defendant is liable for his loss. But on whom is the onus to show how the negro was lost ? Cited and commented on Story on Bailm. § 410, 411; McLauchlin vs. Lomas, 3 Strob. 85. Contended that the evidence was sufficient to show that the negro was assisting in collecting the timber by defendant’s orders. But the negro was certainly engaged in the service of defendant, in a business in which he had no right to employ him. This proof raises the prima facie presumption that the defendant so employed him. Now if the act of the ■negro was wilful, and defendant would exonerate himself on that ground, he must show it.
    
      
      W. G. DeSaussure, contra,
    cited Slaler vs. Swann, 2 Stra. • 872; Barker-vs. Dixon, 1 Wils. 45; 2 Esp. N. P. 653; Jennings vs. Funderburg, 4 McC. 161; 29 Eng. C. L. R. 82; 3 Camp. 5 ; McKane vs. Bonner, 1 Bail. 113; Faber vs. Bald-rick, 1 Tread. 374; Sill vs. R. R. Company, 4 Rich. 154.
   The opinion of the Court was delivered by

Whitner, J.

It has been conceded, as well on circuit, as here, that the employment of the slave, in such an enterprise as that in which he lost his life, by the defendant, would have made him responsible, because in violation of his implied obligation. The care and diligence enjoined, and the negligence condemned by the law of bailments in the use and management of the slave, it is admitted, were correctly laid down on circuit.

The argument submitted to this Court invites a consideration of the question, upon whom lies the'burthen of proof, and whether, from the facts in evidence, a presumption of law does not arise fatal to the defence. Questions of care or negligence may become pure matter of law, but ordinarily they are mixed of law and fact. To prescribe a general rule applicable to all cases, defining what is for the Court and what for the jury, would be found impracticable. There could probably be no better illustration than the present case. It certainly presents such a state of facts, that the Court could not take cognizance and decide on a just view of the attendant circumstances. The leading fact which constituted the turning point of the case, and which was not shewn by direct proof, was to be arrived at. Thence the more perplexing question, on whom was the onus, and whether an omission by a Circuit Judge so to declare to the jury, constitutes such error as demands a re-hearing.

The inherent difficulty of a rule here likewise is apparent,, from the discrepancies in the authorities, many of which may be found cited in Story on Bailments, sec. 410, and elsewhere* in same work touching this point. In this class of cases, the* loss must be without default on the part of the hirer: hence the-loss being established, it would seem the excuse remains- to be? made: but again, every one is supposed to do his duty and fulfil his contract, at least till the contrary appears, — hence he who alleges a violation, to wit, negligence, or want of proper care, must establish it before liability attaches.

Much depends on the different sorts of bailments, the form of action, as well as the posture of the evidence, when the point arises at the trial. Here we have a special action on the case, including a count in trover. On the one branch negligence, and on the other conversion, constitutes the very gist of the action : these averments are essential and he who alleges must prove. Ordinarily the prima facie is of little consequence except in determining whether a party shall be put to answer. But of what avail these subtleties in such a case as this? Here there is no dispute as to property. Here the jury were charged with ascertaining the fact, on which depends defendant’s liability. Their conclusion, in our judgment, was fully warranted by the proof offered. The slave being a moral agent, and having volition, adventured from the impulses of his nature in an effort to protect his master’s interest, during his absence and without his knowledge or consent.

The motion for new trial is refused.'

O’Neall, Frost, Withers and Glover, JJ., concurred.

Wardlaw, J., absent at the hearing.

Motion dismissed.  