
    
      The City Council of Charleston vs. Solomon Cohen, Jr.
    
    1. Where an action of covenant-was brought on a bill of sale executed under seal, warranting negroes sotfnd, and there was a verdict for the plaintiff finding damages, the recovery does not rescind the sale, and revest the property in the vendor.
    2. A tender of the slaves to the vendor, made before the suit was brought, was no recision of the sale, nor was it affected by a second offer to return them after the verdict.
    3. It seems that the offer to return the slaves might form the predicate of a legal recision by the proper tribunal, after the facts assumed to justify the desired recision had been verified by a jury:
    2. The vendee of the slaves gave notice to the plaintiff, of his intention to decline' all responsibility for the support of one of them, under their care, from the time of the verdict, but being the owner, and having abandoned the slave, he was held liable upon an implied contract, for the expenses of maintenance, as well before as after the notice, to be assessed by a jury under the circumstances.
    
      Before Richardson, J. at Charleston, October Term, 1843.
    This was an action brought to recover three hundred and eighty dollars, on an open account, from the defendant, for the meat, board, lodging, necessaries, care and attendance, found and provided in behalf of the plaintiffs, by the commissioners of the poor house, for a female slave named Bella, alleged to belong to the defendant, in the maniac department of the poor-house, in the City of Charleston, from 31st of May 1839, to June 30th 1841, at 50 cents per day.
    It appeared in evidence, that the slave Bella was committed to the poor-house by the Honorable Henry. L. Pinckney, Mayor, on 1st March, 1838. Mr. Pinckney testified, that she was brought to the guard-house at that time as a maniac, dangerous to the neighborhood, by a habit she had of throwing pieces of fire about her room, and that she was a public nuisance, whom he thought the good of’ the community required should be committed for safety to the maniac department of the poor-house. The warrant of commitment was produced, in which Mr. Pinckney directed that the master of the poor-house should have her treated as a maniac, subject to the order of the board of commissioners.
    The master of the poor-house proved, that the slave Bella continued in the poor-house from 1st of March, 1838, to the present time, as a maniac; that she was fed, clothed, and provided with all needful attendance ; that the price of 50 cents per day was, he thought, a reasonable charge, and the charge usually made by the commissioners of the institution.
    To prove ownership in the defendant, a bill of sale was offered in evidence from Mrs. Harriet Pinckney Rutledge, to Solomon Cohen, trustee of Henrietta Y. Cohen, dated 19th September, 1837, for two slaves, viz : Bella and her son James — consideration $675 — no declaration of any trust, in any part of the bill of sale. The conveyance was made “to Solomon Cohen, trustee, as aforesaid.” The bill of sale contained these words “warranted sound,” and it was executed under seal.
    The record of a judgment was offered in evidence, from which it appeared that an action of covenant was brought in the name of Solomon Cohen, Jun., trustee of Henrietta Cohen, against Mrs. Harriet Pinckney Rutledge, in the Court of Common Pleas at Charleston, founded on the warranty of soundness contained in the bill of sale.
    The breach alleged in the declaration was, that at the time of the sale the slave Bella was subject to insanity and unsound. The case was tried at May Term, 1839, before Judge Earle, at Charleston, when the jury found a verdict, which, as it is material to the issue, is here copied.
    Value of Purchase, ■- - - $675 00
    Interest, - - - - 82 56
    Damages, - 370 95
    $1128 51
    Value of Boy deducted, - 250 00
    $878 51
    We find for the plaintiff eight hundred and seventy-eight dollars, fiffty-one cents.” This judgment has been satisfied.
    
      Mr. Jacob C. Levy deposed, that the slaves Bella and James had been purchased for his daughter Henrietta, who married Mr. Octavius Cohen, and the bill of sale was made out to Solomon Cohen, her trustee. That before the action of covenant was brought, he had tendered both slaves, Bella and her son James, to Mrs. Rutledge, who had refused to accept them back, whereupon the action was commenced. That after a notice of appeal from the verdict had been withdrawn by Mrs. Rutledge, witness, on behalf of Mr, Solomon Cohen, trustee, to-wit, on 13th of March, 1840, addressed a letter to the master and commissioners of the poor-house, which being highly material to this cause, is here copied.
    “CHARLESTON, 13th MARCH, 1840.
    
      To the Master and Commissioners of the Poor-House.
    
    Gentlemen. — I beg leave to hand you the enclosed copy of a notice to Mrs. Rutledge, in relation to the woman Bella, now in your institution, which I must request you to consider as a notice to yourselves of my intention in declining any further responsibility for the future expenses of Bella, or for her expenses since the verdict, unless compelled by law.
    I have the honor to be,
    Gentlemen, your obedient,
    SOLOMON COHEN, Trustee.
    
    Per J. C. LEVY, Agent.
    
    “I have paid the amount of $236 50 to the time of verdict, being from the 19th January, to the 3d of February, 1838, when she was taken out; and from the 1st of March, 1838, when placed with you by the Mayor, to 31st of May, 1839.”
    “Mrs'. Harriet P. Rutledge.
    
      'Madam, — The appeal in the case of Cohen vs. Rutledge, having been abandoned, leaving the verdict in full force, and it being settled by the verdict, that the contract for the sale of Bella is rescinded, so that she is now legally your property, I do not any longer feel under any obligation from the laws of humanity or otherwise, to be charged with her care.
    “I therefore beg leave respectfully to notify you, that Bella is at the poor-house, subject to your order, and must either remain there at your expense, or be disposed of as the master and commissioners may think proper, as I will not be responsible for her future expenses, nor any expense incurred since the verdict, unless compelled by law.
    I am respectfully,
    Your obedient servant,
    SOLOMON COHEN, Trustee.
    
    Per J. C. LEVY, Agent A
    
    “Charleston, March 13, 1840.
    It further appeared, that a copy of Mr. Levy’s letter to the commissioners, was transmitted by them to Mrs. Rutledge,'to which she replied, “that she disclaims all property in the woman Bella — that Mrs. Rutledge never placed her in the institution, nor had she in any manner signified her assent to such a course — that whatever expenses may have been incurred, must be paid by those who placed her there — that Mrs. Rutledge desired to be understood as denying distinctly any past, present, or future liability to the institution, for the expenses of Bella.”
    It was further proved by R. W. Seymour, Esq., who was an alderman in 1838, that he had committed Bella to the poor-house, on 19th of January, when the expenses were to be charged to Mr. Octavius Cohen; that she was discharged by the chairman of the commissioners, on 20th February, 1838 ; the expenses of her maintenance during that time had been paid by J. C. Levy, Esq. for S. Cohen, trustee, as stated by Mr. Levy in his evidence.
    A. H. Brown, Esq. proved that the slave James was purchased by the late C. C. Strohecker, who owned James at the time of his death in 1841.
    Here the plaintiff closed.
    A motion was made by the defendant’s counsel for a non-suit, on the grounds set forth in his notice of appeal; which was refused.
    The defendants then gave in evidence a letter written by Messrs. Bailey and Brewster, the Attorneys of Mr. S. Cohen, Jr. trustee, to Messrs. Walker and King, the agents .of Mrs. Harriet P. Rutledge, dated July 5, 1839, offering to return the slaves Bella and James. In this letter it was alleged, that the court in the case of Cohen vs. Hut-ledge, had held that the plaintiff would have the right of suing from time to time, for further damages on the breach of warranty.
    It was admitted, that Mrs. Rutledge had refused to accept the tender as offered in this letter.
    The presiding Judge charged the jury, that the defendant was the owner of the slave Bella, at the time the verdict against Mrs. Harriet P. Rutledge was rendered. That the effect of the tender proved by J. C. Levy, before that suit, did not rescind the sale. It merely gave S. Cohen the right to bring an action of assumpsit, as if the negroes had been received by Mrs. Rutledge. That as to the effect of the verdict against her, it did not rescind the contract. It leaves one negro to Cohen — this is no rescisión, but affirms the contract, and gives damages. That as to the tender of S. Cohen, after the verdict, in the letter of Bailey and Brewster, it offers a compromise only, and leaves the parties where they were. Then, the defendant Cohen was the owner of the slave Bella. That the next question presented was, is S. Cohen, as the owner, liable to plaintiff'?
    On this point the jury were instructed by the court that if the defendant had abandoned the negro, he was liable upon a quantum meruit. — That it was a question of fact to be determined by the jury, whether he had abandoned the slave Bella, but as to the extent of the defendant’s liability it should be for mere support only, confining the charge to the lowest possible sum for a bare sustenance ; and that such liability only arose by implication. That the remaining question was, whether the defendant Cohen, was liable to plaintiffs for the maintenance of the slave Bella, after his letter of March 13th, 1840.
    On this point the jury were charged, that up to this time, the defendant may be liable by implication, but after his express notice, the defendant was no longer liable— there could be no implied contract with him by the party who had been so notified ; and that after the date of that letter, no implication of law will authorize the poor-house to maintain Bella.
    The jury found a verdict for plaintiffs, of thirty-five dollars and eighty-eight cents.
    
      The plaintiffs appealed from the verdict in this case on the following grounds.
    1. That the defendant being the owner of the maniac slave Bella, and having abandoned her, and refused to maintain her, whereby the duty was cast upon the city authorities to support her, he became liable to the plaintiffs for the expenses of her maintenance, upon the principles of quantum meruit, from 1st June, 1841, to the date of the commencement of this action, to wit, 13th of June, 1841, at the rate of 50 cents per diem, as proved to be reasonable.
    2. That, it is respectfully submitted, his Honor erred in charging the jury, that the defendant was only liable from 1st June, 1839, to 13th of March, 1840, when notice wras given to plaintiffs that the defendant would no longer be liable for the expenses of the maniac.
    3. That his Honor erred in charging the jury, that the master, for about the period of six months only, was responsible to the plaintiffs, for the expence of the maniac’s sustenance, to be computed at the lowest possible rate, to-wit, bread and water.
    4. That the obligation which the law imposes upon the owner, to maintain his slave, is a legal duty, and an obligation of justice, from which the defendant cannot exonerate himself, by giving notice of his intention not to hold himself liable.
    5. That under the circumstances of the case, the plaintiffs, from inevitable necessity, became the agents of the defendant, to support the slave in question.
    6. That the verdict was contrary to law and evidence.
    The defendant also appealed from the verdict, arid moved that the same be set aside, and a non-suit ordered, conformably to his motion at the trial; or should that motion fail, then for anew trial; and in support of his said several motions, relied on the following grounds:
    1. That supposing the slave to have been the property of the defendant, there was no evidence, or pretence of any express contract by him to be answerable to the plaintiffs for her expenses, nor of any request, on his part, or any assent by him, to their interference with her ; nor any evidence of any benefit to him, or to the slave, or any necessity for their interposition for the support or maintenance of the slave, nor of any other ground of legal obligation, from which an assumpsit could be implied in law, but on the contrary, it was distinctly proved by the plaintiffs’s witnesses, that the slave was taken up and confined by the public authorities, for the public benefit, and because it was supposed to be dangerous to the public to permit her to go at large; and there was no evidence whatever, that all which was necessary for her support, and eve,n comfort, was not supplied by the person in whose possession she had been left by the defendant.
    2. That his Honor erred in charging the jury, that if they were satisfied the defendant had abandoned the slave, the plaintiffs were entitled to be reimbursed by him for the expenses of her support, although they could not claim more than was necessary for her mere support; whereas it is submitted, that to entitle the plaintiffs even to this, they should have gone further and proved a necessity for their interference for her mere support; and of this there was neither evidence nor pretence.
    3. That the verdict rendered in the action by the defendant against Mrs. Rutledge, ascertained his right to rescind the contract of the slave in question; and therefore the tender made by him before that action was brought, and his immediate abandonment of the slave, when the tender was refused, was a valid rescisión of the contract, and divested the defendant’s title to the slave; and that his Honor erred in charging to the contrary.
    4. That his Honor further erred in charging, that the defendant had no right to rescind the contract of sale, as to one of the slaves, whilst he retained possession of the other; and therefore, neither the tender, nor the verdict, nor both together, amounted to a rescission ; whereas it is submited, that even if Mrs. Rutledge had a right to insist that both slaves should be returned, yet as both of them had been tendered to, and both of them refused by her, the defendant had the right, which is ascertained and settled by the verdict against her, to retain the one slave for what he was worth, and consider the contract rescinded as to the other.
    
      5. That his Honor erred in charging the jury, that the contract of sale had never been rescinded, but that the defendant was still the owner of the slave, and liable to the plaintiffs for her support, if he had abandoned her; and the verdict conforming , to the charging is contrary to law and the evidence.
    Eckhard, for the City Council.
    
      Bailey dp Brewster, for the defendant.
   Curia, per

Richardson, J.

Was Cohen the owner of the slave 1 or had Mrs. Rutledge again become her owner, by reason of the tender of both the slaves, made by Cohen, or of his abandonment of Bella, or his recovery of damages % is the first question. If after his offer to return the slaves, Cohen had brought the action of indebitatus assumpsit, predicated upon a supposed legal right to rescind the purchase, and had recovered the money paid to Mrs. Rutledge, as so much money transferred to her, the consideration of which had totally failed, and thus, the reason of the offer to rescind, had become verified by a verdict, there might- then, perhaps; be strength in the argument, that Mrs. Rutledge had again become the legal owner of the slaves. See 1 Leigh’s N. P. 1504 ; 2 M’Cord, 75, 432 ; N. and M’Cord, 432.

But such an action, bottomed upon the vendor’s right to rescind, after the tender, was substituted by the action upon the covenant itself.

This action presupposes an existing and binding contract, under seal, and is brought upon it; Leigh’s N. P. 557.

If the contract had been rescinded by the parties, there could be no such action, i. e. there could be no allegation that it had been kept by the plaintiff and broken by the defendant. Such allegation could not be predicated of a non-existing contract. The very action, then, assumes Cohen to be the owner, and goes for damages, because he had been made the owner of such a slave.

Accordingly, the verdict found damages, and left Cohen as his action assumed, i. e. innocent of any breach of the covenant, and still owner of the slaves.

There can be no doubt upon this first question of the case ; nor is the argument improved by a second offer to give up the slaves. The purchaser cannot rescind a sale, Chitty’s Con. 443, (fee. (fee. by his individual act alone. He cannot resell in invitum, in this way ; altho’, as before intimated, his offer may, very possibly, form the predicate of a legal rescisión by the proper tribunal, after the facts assumed to justify the desired rescisión shall have been verified by a jury.

Mr. Cohen, therefore, in the case before us stands as the owner of the slave Bella, with both the rights and responsibilities of a master, according to the laws of the State.

The second question then follows. Is he liable to the plaintiffs for her support and maintenance, under all the circumstances of the case 1 He had abandoned her as far as an owner could abandon his slave. But he had not, as he seems to have supposed, provided another owner. In this he was mistaken, which shields him from the charge of inhumanity; he supposed Mrs. Rutledge the owner; but Mr. Cohen is clearly liable for her support and maintenance.

This point was settled by a unanimous decision, in the case of Fairchild vs. Bell, 2 Brevard, 120, in the Constitutional Court, in 1807. In that case, the defendant had driven off the slave, and had forbidden the plaintiff to receive or assist her. The dissent of the owner to the maintenance of his unfortunate slave by the plaintiff, was full and express, yet it was unanimously adjudged that Dr. Fairchild’s action was well brought, notwithstanding such dissent, for medicine, and attendance, and sustenance, during illness.

Judge Wilds, in his charge, said, “as the master is bound by the most solemn obligation, to protect his slave from suffering, he is bound, by the same obligation, to defray the expenses of another, to preserve the life of his slave, or the slave from pain, and danger,” (fee. “In a case so circumstanced,” he concludes, “the law will imply a contract, from the reason, justice, and necessity of the case.”

The second point in the charge of the presiding Judge is, then, entirely affirmed by the former unanimous decision in Fairchild vs. Bell. Mr. Cohen, being the owner, is liable therefor, notwithstanding his abandonment of his slave, his repudiation of ownership, and his notice to the plaintiffs. But the case of Fairchild vs. Bell goes further, and clears up the only doubt in the mind of the presiding Judge upon the strict law of the extent of the recovery against Cohen. I held the law to be, that he was liable to the plaintiffs on the implied contract to maintain his slave after the abandonment. But only up to the time when he gave express notice to the plaintiffs that he would not be further liable, after which the mere legal implication of a contract, it was supposed, could not be recognized by the court. But, I am satisfied that both the authority and reasoning of that case, render the defendant liable, even after such notice.

And as the jury was restricted, in this particular, to the time of the notice of Mr. Cohen, and as he must be held further liable, as well after as before the notice, for her reasonable support, to be assessed by ajury, under attending circumstances, a new trial is unanimously ordered.

O’Neall, Evans, Butler, Wardlaw and Frost, JJ, concurred.  