
    *S. Percival ads. A. Herbemont, adm’r.
    
    The plaintiff and defendant entered into a special written agreement to submit the matters in dispute between them to counsel: but no particular counsel was named, or time when the matter was to be submitted — defendant agreeing to pay according to the instructions of the counsel; and in default of their getting a decision, then the plaintiff was to file a bill in the Court of Equity, and the decree of that Court was to be conformed to by the defendant. This was held to be an agreement to arbitrate.
    An agreement to arbitrate, or a bond to submit to arbitration, may be the subject of a suit, when the damages stipulated, or the penalty, will authorize a recovery ; but such an agreement or bond would not deprive either party of his remedy in the Courts, or oust them of their jurisdiction in regard to the matter in dispute.
    A vineyard, though not annually planted, requires great preparatory attention, as well as much agricultural labor and cultivation to bring the fruit to perfection, and the products arising therefrom may be denominated a crop ; and hands employed in agricultural pursuits, whether in a vineyard or a cornfield, are liable to be retained by the administrator of an estate, after the first of March, until the crop is gathered, or at farthest until the last of December, should the crop not be gathered before that time.
    
      Before Evans, J., at Richland, Fall Term, 1840.
    The late Mr. Nicholas Herbemont was entitled to the slaves, hereinafter named, for life. He died in June. Among the negroes, some were employed about the vineyard, some were house-servants, some worked on the farm, one was a ditcher, and one a cooper and job carpenter. After the death of Mr. Herbemont, a difference of opinion arose between the plaintiff, the administrator, and the defendant, Dr. Percival, who represented the remainder-men, as to which and how many of the negroes the plaintiff was entitled to retain under the Act of Assembly, which provides that if one entitled to a life-estate in negroes, die after the first of March, the negroes shall remain on the plantation until the crop is finished. For the purpose of settling this controversy amicably, a written agreement was entered into, by which it was agreed the negroes should be delivered to Dr. Percival, except two ; and he agreed to pay hire for such of them as the counsel of the parties should decide the plaintiff was entitled to ; and on default of such decision, the plaintiff was to file a bill in Equity, which was to include all the matters in controversy between *them, and the defendant agreed to pay for such as equity should decide the plaintiff was entitled to, and such hire as that Court should decree. Without regard to this agreement, the plaintiff brought this action for negro hire. The defendant pleaded the general issue, and a special plea in bar, setting out the agreement, The plaintiff took issue on the first plea, and demurred to the second.
    If this plea and the demurrer had been brought to my view at the opening of the case, I should, I think, have sustained the plea, because, where there is a binding contract still subsisting between the parties, the action should be special on the contract. But I was not informed of this until all the evidence had been given. I thought it best, at that stage of the case, to sustain the demurrer, and send the case to the jury on the facts.
    I thought and so charged the jury, that the word crop was to be taken in its popular sense, and meant any annual product which was the result of culture : and in this sense, wine was included in the term ; and that the plaintiff was entitled to keep the negroes employed about the vineyard, so long as was necessary to convert the grapes into wine.
    It appears, from a memorandum made by the jury, and returned with their verdict, that they allowed hire for Glasgow, William, George, Yo-rick and Moses, and that hire was allowed from the time they went into the defendant’s possession, to the 1st of December. The evidence in relation to these negroes was this :
    McDaniel was overseer at Palmyra, where there were twenty acres of vines ; besides these, he cultivated eight and a half acres of corn, and one acre and a half of potatoes He said Yorick was a vine dresser, and did nothing but attend to the vineyard ; Glasgow split rails about a month ; and at the time of Mr. Herbemont’s death, in June, he was ditching at the farm, near Columbia; after that he, as well as the rest, worked in the field until they were delivered to the defendant. William was a cooper and jobbing carpenter; George was a small boy, thirteen years old, and employed as a house-servant. Moses did not work in the field. At the season of making wine, all the negroes were usually employed at that business; but that year, the grapes nearly all rotted. Besides the farm at Palmyra, there was another of small extent, fifteen or twenty acres, near Columbia,* where one Miller was employed as a laborer. His account of the employment of the negroes, above named, as well as that of Mrs. Marshall, was substantially the same as McDaniel’s.
    Mr. Goiguard bought the grapes from the plaintiff, in August. The grapes were very much rotted ; twenty hands, in two or three days, gathered them; they might have been gathered by from two to four hands, but for the rot. The vintage usually over by the 1st September. Gave $50 for the grapes, and made one hundred gallons of wine. There were casks enough on hand for ten times the quantity of wine made. A cooper would be needed only two or three days to tighten the casks. A good deal of work necessary on a vineyard. The notice of appeal, with a copy of the plea in bar, is annexed to the report.
    SPECIAL PLEA.
    And for further plea in this behalf, the said Samuel, by leave of the Court, for this purpose, first had and obtained, says that the said Alexander ought not to have or maintain his aforesaid action thereof against him, because he says that heretofore, to wit, on the twenty fifth day of July, eighteen hundred and thirty-eight, at Columbia, aforesaid, there being then and there a difference of opinion between the said Alexander and the said Samuel, one of the executors of the last will and testament of Mrs. Caroline Herbemont, deceased, amongst other things, respecting the right to the possession and service, during the remainder of the year aforesaid, of some of the slaves bequeathed by the said Mrs. Caroline Herbemont to the said Nicholas Herbemont, during life, and after his death to other legatees, to wit, the said slaves, named in the said bill of particulars annexed to the declaration aforesaid of the said Alexander, for the purpose of adjusting the same in the most amicable manner, the said Alexander and the said Samuel agreed, in writing, amongst other things, that all of said slaves should forthwith be delivered up to the said Samuel, as executor as aforesaid, except Moses and Yorick, and that said Moses and Yorick should be retained by said Alexander, as administrator, as aforesaid, until the wine from said year’s grapes should be made, when they should also be delivered up to said Samuel, as executor as aforesaid; and that the said *Samucl, as executor as aforesaid, should pay to said Alexander, administrator as aforesaid, for the service and labor of such of said slaves as he, the said Alexander, as administrator, as aforesaid, was entitled by law to keep, after the death of said Nicholas, and for the length of time he, the said Alexander, was entitled to keep the same, whatever amount their counsel should agree upon ; and in case the counsel of said Alexander and Samuel should not agree, then that the said Samuel would pay the said Alexander whatever the Court of Equity would determine, in lieu of such service and labor; and that the said Alexander should file a bill in the Court of Equity for that, amongst other purposes. And the said Samuel avers that under and by virtue of said agreement, so made as aforesaid, he had the possession, service and labor of said slaves, and that the counsel aforesaid have not settled the amount which the said Samuel should pay the said Alexander therefor, and that the said Alexander has not yet filed his bill in the said Court of Equity for that purpose, nor has the same been determined by the said Court of Equity ; all which the said Samuel is ready to verify; wherefore he prays judgment, if the said Alexander ought to have or maintain his aforesaid action thereof against him, &c.
    
      COPY OF MEMORANDUM.
    We find for the plaintiff, as follows :
    
      
    
    GROUNDS OF APPEAL.
    The defendant in the above case gives notice that he will move the Court of Appeals to reverse the decision of his Honor, the presiding Judge, sustaining the demurrer to defendant’s plea, upon the ground that said plea was sufficient *in law to bar the plaintiff’s action, and that the demurrer should have been overruled.
    And failing in that motion, the defendant will move the Court of Appeals for a new trial, upon the following grounds :
    1. Because the agreement between the parties, offered in the evidence, was a bar to plaintiff’s recovery.
    2. Because the verdict of the jury, finding hire for a greater number of slaves than were employed in the crop, and for a longer time than they were thus employed, to wit, for the hire of the slaves, Glasgow, William and George, who were not employed in the crop at all, and for the slaves Yorick and Moses, who were not employed in the crop, but in the vineyard, and after the vintage was finished, was totally contrary to the testimony, as well as the law in relation thereto.
    3. Because his Honor, the presiding Judge, erred in instructing the jury that grapes constituted a crop within the meaning of the Act of 1789, and that the common law of emblements does not apply to said act.
   Curia, per

Butler.

The first thing in this ease is to ascertain the character and decide on the effect of the special plea in bar filed by the defendant. The plea sets out a special agreement, by which it appears that the plaintiff had delivered up to the defendant certain slaves which came into his possession at the death of his intestate, and had retained for a specific purpose two others ; and that defendant was to pay such a sum for the hire of those he took as should be determined on by the counsel of the parties, or by the Court of Equity ; and the plea alleges that no sum had been agreed on by the counsel, nor liad the plaintiff filed his bill in the Court of Equity. But it does not aver that defendant had applied to counsel to have the matter adjusted himself. The agreement does not indicate the time of adjustment, or specify the names of the counsel who were to act as referees, nor does the plea aver any matter of the kind. It seems to have been the object of the parties to submit the matter in controversy to arbitration ; and this is the true character of their agreement. An agreement to arbitrate, or a bond to submit to arbitration, may be the subject of a suit, where the damages stipulated, or the penalty, will authorize a recovery. But such an agreement* or bond would not deprive either party of his remedy in the Courts, or oust them of their jurisdiction in regard to the matter in dispute. This agreement is indefinite and uncertain in its terms and provisions, and whether either party could have recovered any thing in an action brought upon it, it is now unnecessary to determine. But we are all of the opinion that it does not operate as a bar to this action. Since the case of Thompson vs. Charnock, (8 T. R. 139,) it has never been questioned that an agreement to refer all matters in difference to arbitration is not sufficient to oust the Courts of their jurisdiction. This decision has been frequently referred to and approved by the English Judges, both of Law and Equity. (2 Ves. 129; 6 Ves. 815; 2 Atkins. 569.) To determine the other grounds of appeal, we must look at the situation and rights of the parties as they stood at the death of Nicholas Herbemont. At that time it is conceded that the defendant, who represents the remainder men, had a right to take into his immediate possession all the slaves held by the tenant for life, that were not employed in making a crop — such as house servants, artizaus not connected with the farm, &c. ; and that plaintiff had a right to retain till the crop was gathered (or the last day of December,) all the hands that were employed in making a crop. And I take it that all hands that were necessary to, or fairly connected with, the farm, might be retained by him ; no matter what might have been their particular employment at different times. For on a farm, hands must sometimes be engaged at one thing and then at another. The first part of the 23d clause of the Act of 1789, (5 Stat. 111, § 3,) is as follows : “ That if any person shall die after the first day of March in any year, the slaves of which he or she was possessed, whether held for life or absolutely, and who were employed in making a crop, shall be continued on the lands which were in the occupation of the deceased, until the crop is finished, and then be delivered to those who have a right to them.” It was contended by the counsel for the defendant, who argued the case with much learning, that the meaning of crop should be restricted to the cultivation of such things as would have been regarded as emble-ments at common law ; that the fruit of the grape vine, like other fruit growing on trees, could not be regarded as emblements ; *and therefore that those hands that were employed about the vineyard were not engaged in making a crop within the meaning of the law. The ancient notion of emblements was, that he should reap all that he had sown ; and in England it applied particularly to corn and other annual vegetable productions that depended on planting and cultivation. The construction of the Act of ’89, cannot be restricted to such a meaning when it uses the word crop. For in South Carolina the usual crop at the time the Act was passed consisted of tobacco, indigo, rice and Indian corn, which were to be put into the ground after the first of March, when the right of the administrator of a tenant for life attached The slaves were not to be retained to reap and gather a crop which had been planted by the deceased, but which was to be planted and cultivated by his administrator or executor.

Before March, hands are usually employed in clearing, repairing fences, breaking up land, and preparing for a crop ; and it is hands thus employed that are to be retained by the executor — hands employed in the business of agriculture. A vineyard, though not annually planted, requires great preparatory attention as well as much cultivation to bring the fruit to perfection. The product depends on labor and industry in the cultivation of the soil; and I cannot well perceive why there may not be a crop of grapes, as well as any vegetable production depending on cultivation. In England, emblements may be confined to such vegetables as require labor and attention, and may not extend to fruit either growing on trees or vines ; but our Act contemplates such crop as require agricultural labor to bring them to perfection ; and all hands being employed in such labor, whether about a vineyard or a corn field, are liable to be retained by the administrator, after the first of March till the crop is gathered, (or at farthest till the last of December, should the crop not be gathered before that time.) This brings me to the question, has not the plaintiff recovered for more hands than were employed about any crop, and for time beyond the period when the crop was actually gathered? And it appears evident to me he has.; for he has recovered for the hire of Yorick and Moses after the vintage was over, and for George, who was a house servant, and never employed in the crop. The sums allowed for these amount to sixty-eight dollars. Unless the plaintiff will release *this sum, a new trial is ordered; but should he think proper to release that amount, the verdict will stand good, and is affirmed for the balance.

Gregg and Gregg, for the motion. Cheves, contra.

The whole court concurred.  