
    John F. Muldrow vs. The Wilmington and Manchester Railroad Company.
    
      Bailment — Hiring—Slave—Apportionment of hire.
    
    If a slave hired for a term die during the term, the hire must be apportioned, even though his death was caused by the negligence of the hirer.
    BEFORE WITHERS, J., AT SUMTER, SPRING TERM, I860.
    The report of his Honor, the presiding Judge, is as follows:
    “Action in debt on bond for the hire of two negroes — one of them, Bill, who died while in the service of the company, to wit, April 20th, 1857, by such negligence of the company as made them liable for his value in an action heretofore brought and decided against them by a verdict for fourteen hundred dollars. The ground taken for the defence was, that the said action entitled the plaintiff to recover for the value of Bill’s services from the time of his death, must be presumed to have afforded such remuneration, and, therefore, that the verdict rendered was a good defence for so much of the present claim for hire of Bill from the 20th April, 1857, to the end of that year. I was of that opinion, in the absence of all evidence as to the question of fact, whether the jury, in the former verdict, did in fact take into account the plaintiff’s loss of the service of Bill from and after his death.
    “ The verdict in this case conformed to my opinion, in that particular.”
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. That the defendants could only be relieved from their liability to pay tbe whole amount of the bond sued on by proof that the negro Bill had died during the term without fault on the part of defendants.
    2. That the negro. Bill having died during the term, through the carelessness, default and negligence of defendants, they are liable for the whole amount they agreed to pay for his hire.
    3. That the recovery by plaintiff in his action on the case for the loss of the negro Bill did not relieve the defendants from their liability to pay the whole amount of the hire.
    
      Richardson, for appellant,
    cited Bacot vs. Parnell, 2 Bail. 424. If the chattel be destroyed by default of the hirer, he is responsible not only for damages, but it would seem also for the hire during the term. Edw. on Bail. 338; 2,Steph. N. P. 1058.
    
      Moses, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

Iir this case we approve of the instructions of the presiding Judge. The case of Bacot vs. Parnell, 2 Bail. 424, which has never been questioned, explicitly decides that where a slave hired for a year dies during the term, the owner is entitled to receive, and the hiree is bound to pay, so much of the hire only as accrued before the contract was determined by the act of God. The same point had been determined previously, in Riply vs. Wightman, 4 McC. 447, where the subject was a house leased, rendered untenantable by a storm. The death, of a being is always the act of God, even when it may be caused proximately by the negligence or misconduct of a human agent. When a slave hir.ed dies during the term, the hire must be apportioned, although the contract has the incidents of an entire contract, on the maxim that the act of Grod shall work injury to no man. If the death be occasioned by defective care or by violence on the part of the bailee, notwithstanding the hire should be apportioned, the bailee is responsible for the value of the bailment, and all the loss resulting proximately from his misconduct. In this case the plaintiff had recovered from the defendant in a previous action on the case, for the loss of the slave, while in the service and through the negligence of defendant; and there is no proof that in their estimate of damages, the jury did not consider, as they certainly might, the loss of the hire. It is very questionable whether we have any right to inquire whether in actual truth this jury did look to the hire in their ascertainment of damages; for the doctrine of res judicata estops parties and privies from bringing again into controversy not only matters which were really determined, but all matters as to which the opportunity of determination was fairly presented in the former litigation.

Ordered that the appeal be dismissed.

O’Neall, O. J., and Johnstone, J., concurred.

Motion refused.  