
    Harris v. Nicholas.
    
    Decided March 12th, 1817.
    «. Writing under Seal — Construction—Case at Bar-Quaere. — A writing under seal, being in these words; "for the hire of four negro fellows the present year, who are to be returned, well cloathed, on or before the 25th of December, I promise to pay, &c.quaere, whether such writing contains a Covenant to return the Negroes, as well as to pay the money?
    2.Covenant — To Return Slave — Effect. —A Covenant, by a.person hiring a Slave, to return him at the end of the year, is not to be considered as a Covenant to insure such return in the event of his death in the mean time, although it be occasioned by a cruel and excessive beating, perpetrated by the Overseer, under whose superintendance he is put._
    3. Contracts — Construction—General Usage — Effect.— The general usage and understanding of the people of this country, in relation to the subject, is an important circumstance to be considered in the construction of a Contract.
    4. Haster and Servant — Wilful Trespass of Servant— Liability of flaster.  — An Employer or Master is in general not responsible for a wilful and unauthorized trespass, committed by his Agent, Overseer or Servant.
    5. Same — Same—Same—Case at Bar. — Quaere, whether an-Employer, who continues in his service an Overseer, noted for cruelty may not be made liable, by an action upon the case, for the value of a hired Negro, whipped to death by such Overseer, though without any direction from him?
    The Appellee Wilson C. Nicholas, by a Covenant under seal agreed with the Appellant as follows: “For the hire of four Negro fellows the present 'year, who are to be returned well cloathed on or before the 25th of December, I promise to pay Frederick Harris at that time the sum of two hundred and eighty dollars; witness my hand and seal the 6th of January, 1812.”
    On this Covenant Harris brought his action, and for breach alleged, “that one of the said negro fellows, to wit, one named Joe, alias Roger, was not returned, well cloathed, on or before the 25th day of December next ensuing the date of the said Covenant, nor at any time since; and also that *the defendant did not return the said negro fellow on or before the said 25th of December, nor at any time since. ”
    The defendant pleaded, “that after the date of the Covenant, and before the 25th day of December next ensuing the said slave Joe departed this life;’’ and for farther plei, that, “after the date of the said Covenant, and before the 25th day of December in the same year, to wit, on the day of 1812, the said slave Joe, in the declaration mentioned, without the fault, agency, privity or consent of the defendant, and by an event, over which the said defendant had no control, to wit, by a mortal wound received from a certain Thomas Thilman, died, so that the said slave could not be returned to the plaintiff on the said 25th of December, 1812; and this he is ready to verify-, wherefore he prays Judgment, &c.”
    To the first plea, the plaintiff replied, “that after the day of the date of the Covenant, to wit, on at the County of Al-bemarle, and before the 25th of December 1812, the defendant delivered the negro fellow Joe, alias Roger, in the Declaration and Plea mentioned, into the possession of a certain John Patterson, to labour upon his plantation; on whose plantation the said negro continued to work, with the defendant’s knowledge and consent, as one of the labouring hands oí the said John Patterson until a certain Thomas Thilman, on the day of at the County aforesaid, who was then and there acting as the Overseer of the said John Patterson, and in his employment, and whilst superintending and managing the labouring hands of the said John Patterson engaged upon the Farm in doing his work, and whilst managing and superintending the said slave Joe alias Roger, who was then and there, with the knowledge and consent of the defendant, working upon the Farm and doing the business of the said John Patterson, under the care and superintendance of the said Thomas Thilman, so unlawfully, cruelly, and excessively beat and whipped the said slave Joe alias Roger, that, by reason of such unlawful, cruel and excessive beating and whipping the said slave after-wards died at the time in the defendants’ plea set forth; and this he is ready to verify,” &c. To this replication the defendant demurred generally; and joinder in demurrer.
    ‘"'The plaintiff replied to the second plea, “that the said Thomas Thil-man in the said defendant’s second plea mentioned, and who it is alleged inflicted the said mortal wound upon the said negro Joe alias Roger in the Declaration and Plea mentioned, was, at the time, when it is alleged in and by the said Plea that the said mortal wound was inflicted, the Overseer and Manager of a certain John Patterson, to whose possession and custody the said defendant had delivered the said negro Joe alias Roger, to be used and employed by him the said John Patterson on his, the said John Patterson’s estate, and who then and there, with the knowledge and consent of the said defendant, placed the said negro Joe, alias Roger, under the management and superintendance of the said Thomas Thilman, as his, the said John Patterson’s Overseer; and, whilst so acting, as Overseer as aforesaid, he the said Thomas Thilman, so unlawfully, inhumanly and without any justifiable cause, beat and whipped the said negro Joe alias Roger, that he died; and so the said death was by the default of the defendant, and therefore is no sufficient excuse to the said defendant for not performing his said Covenant; and this he is, ready to verify,” &c.
    To this Replication the defendant rejoined, “that the slave Joe, in the said Plea and Replication mentioned, was hired from the plaintiff by the defendant, for the use and benefit of the said John Patterson, in the Replication mentioned, to be employed and used by the said John Patterson in labouring upon the plantation of him, the said Patterson, under the super-intendance, management and sole direction of him the said John Patterson, his lawful Agents and Overseers; of which fact, the said plaintiff at the time of the hiring aforesaid, had due notice, and to which he fully assented; and that the said slave Joe, afterwards, to wit, on the day of January in the said year 1812, being so hired, was, with the consent and knowledge of him, the said plaintiff, and in pursuance of the terms, on which he had been hired as aforesaid, delivered by the defendant to the said John Patterson to be employed in labouring on the plantation aforesaid of the said Patterson, over which plantation, and over the hands labouring thereon, the defendant had no control, and in which he had no interest; after which said time of deliverj' *of the said slave to the said Patterson, the defendant had no control over the said slave, and no interest in the labour or profits thereof: and that the said Thomas. Thilman in the said Replication mentioned, at the time of the delivery of said slave to the said Patterson, was not the Overseer or Agent, or otherwise in the employment of the said Patterson, but afterwards, to wit, on the day ot in the year aforesaid, before the giving of the mortal wound in the Replication aforesaid mentioned, and without the agency, privity or consent of the defendant, was employed by the said Patterson, and placed as Overseer on his plantation aforesaid, and entrusted, as Overseer, with the control and management of the said slave as one of the labouring hands on the plantation aforesaid; and this he is ready to verify; wherefore he prays Judgment,” &c.
    The plaintiff demurred generally to this Rejoinder; and the defendant filed a joinder in demurrer.
    The Superior Court of Daw sustained the defendant’s demurrer to the plaintiff’s. Replication to the first Plea, and over-ruled the plaintiff’s demurrer to the defendant’s Rejoinder. Judgment was therefore entered for the defendant, from which the plaintiff appealed to this Court.
    Green for the Appellant.
    I can find no case shewing that a Contract is merged in a felony; though a trespass is. The felony, committed by Thilman, therefore, did not excuse Nicholas from the obligation to return the Negro according to his Covenant. But, indeed, the question of felony did not properly arise in the case; for the killing of the Slave is not charged in the pleadings, as having been done feloniously.
    Chapman Johnson for the Appellee.
    This is an action of Covenant on a Bond for the hire of a Slave, who was to be returned at the end of the year well cloathed. The first question is whether, in fact, there is in the Bond any Covenant for the return of the slave? Upon inspecting that instrument, we find in it merely a recital of the time when the negro was to be returned. It certainly is not an express Covenant. There was no necessity of such a Covenant; for, when the term of service expired, the Daw itself raised the obligation *'to return. Detinue or trover would then lie for the Slave or his value. The Court therefore will not raise an implied Covenant.
    But if there was a Covenant, it ceased to bind, upon the death of the Slave.
    Is Wilson C. Nicholas liable for the death of this Slave, in any form of action? The person, who killed him, was not his A gent; and if he were, it was not such an act as the principal was liable for.  It does not appear that, when the beating was m-flicted, it was in the line of the Overseer’s authority. He was not controlling the Slave as an Overseer, but treating hint as a Murderer. The beating is stated to have been severe and inhuman, and the cause of his death. If public policy requires the Master to be responsible for the acts of the Overseer, why not make him responsible criminaliter, as well as civiliter? But public policy is not to make our laws in this Court, but elsewhere.
    Wickham on the same side.
    Covenant would not lie in this case, even if the Overseer had acted by his employer’s direction. No hirer of a Negro understands himself, as bound to deliver him at all events. In this case the Covenant is not, that the Slave shall be returned, but that he shall be well cloathed when returned.
    It is a rule, in the construction of Covenants, that words, forming one, cannot be split into two distinct and independent Covenants.
    
    If there had been a Covenant, to restore the negro in good health, the Covenantor would have been an Insurer: but this is not such a Covenant. IS ven if the Negro runs away without the fault of the hirer, he is not bound to deliver him at the time appointed.
    In language of law no authority can be given to do an unlawful act. The person, who dircets it to be done, is a principal in treason or trespass, and in other cases an accessary before the fact. If an Employer had continued in his service an Overseer, noted for cruelty, I am not prepared to say that he might not have been made liable by a proper form of action. But that question has no application to the present *case. Harris knew that the Negro was to go into the hands of Patterson, and Nicholas had nothing to do with the choice of the Overseer.
    But if Thilman had been the Overseer of Nicholas, and employed by him, Nicholas would not have been responsible; for the act committed was not only out of the limits of an Overseer’s authority, but contrary to it; and for such acts of a servant, the master is not liable. The Overseer, whenever he steps out of the limits of his authority, becomes as a stranger. There can be no question, that the act, described in the pleadings, was a felony, though the word “feloniously” is not used; for felony may be inferred from facts found in a special verdict; and the facts pleaded bring it within the definition of murder in the first degree, 2 R. C. p. IS.
    Wirt in reply. There is, I insist, an express Covenant to return the negro at the end of the year.
    The distinction between express and implied Covenants is laid down in 2 Selwyn’s N. P. 384; from which it appears that this is an express Covenan; for there is no need of the word Covenant, nor of any particular form of words, to constitute a Covenant in deed,; but any thing, under the hand and seal of the parties, importing an agreement, is sufficient. Had the instrument been signed by Harris, it would, according to the case of Pordage v. Cole, have amounted to a Covenant on his part that Nicholas should have the service of the slave during the year. But the words used are the words of Wilson C. Nicholas; and, if there were a doubt of their import, must be taken most strongly against him. Unless intended to create a Covenant, the words are useless.
    It is said that the Covenant was not to return the Slave, but only that, when returned, he should be well cloathed. To this I answer that the time of the return is expressly specified: the Slaves were to be returned, well cloathed, on or before the 25th of December ensuing. This argument, that the Covenant applies to the cloathing only, is a legal curiosity. It is that, although the defendant has not delivered the negro at all, there is no breach; but if he had delivered him, not well cloathed, there would have been a breach; that is, there could be no breach until he delivered him not well cloathed.
    *It is contended that this is a mere recital. Of what is it a recital? A recital is always of something extrinsic. But if it were a recital, it is not the less a foundation of Covenant,  Mr. Wickham says there cannot be two Covenants in one, or that you cannot make two breaches out of the same Covenant: but a Covenant to pay rent, and leave the premises in repair, is a familiar example of a two-fold Covenant, as to which there might be a breach, of the whole, or of either part. So, here, the Covenant was broken by failing to return the negro at all, or by returning him not well cloathed.
    That it is a Covenant is admitted by the defendant’s pleas, and therefore he is es-topped to deny it. If it be a Covenant, and an express Covenant, the failure -to perform it cannot be excused but by the act of God. His own act, disabling him from performing, is no excuse.
    
    Hiring is one species of bailment. If the property be destroyed by the misconduct of the person, to whom it is hired, or of his servant, the master is liable. Overseers and servants are considered, as acting under the master’s direction, express or implied, whenever their acts are done within the line of the business, they are employed in. Nicholas by transferring the slave to Patterson made himself responsible for the consequences. Harris, though he knew the Slave was to go into Patterson’s service, yet took Nicholas's Bond for the return of the Negro.
    In the cases cited on the other side, I believe it will be found, the decisions turned on the form of the action ; not on the substantial liability of the master. But our suit is not to make Nicholas answerable for the trespass committed by Thilman, but upon his express Covenant.
    
      
       For monographic note on Usages and Customs, see end of case.
    
    
      
       Covenant — Words Necessary to Make. — No particular words are required to make a covenant. Any words which import an agreement between the parties will be sufficient for that purpose. Supervisors of Jackson County v. Leonard, 16 W. Va. 491, citing principal case. See principal case also cited in Maggort v. Hansbarger, 8 Leigh 588.
      See further, monographic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167.
    
    
      
       Master and Servant — Wilful Trespass of Servant — Liability of Master. — To tbe effect, that, where an act of a servant or agent is neither authorized by his principal nor committed in the usual course of his duty, as such, but is a wilful and unauthorized trespass, the principal is not liable, the principal case is cited in Tracy v. Cloyd, 10 W. Va. 26. To the same effect, the principal case is cited in Gil-lingham v. Ohio R. R. Co., 35 W. Va. 592, 14 S. E. Rep. 244. But, in this case (Gillingham v. Ohio R. R. Co.) it was held that the master is liable for the acts of the servant, though wilful and malicious, if done in the course of his employment and within the scope of his authority. The test seems to be whether the act was within the scope of the servant’s employment. See further, monographic note on “Master and Servant” appended to Hewes v. Doddridge, 1 Rob. 143.
    
    
      
       Bailor’s N. P. 32.
    
    
      
       1 Chitty 68; 1 East. 106, M’Manus v. Cricket.
    
    
      
       1 Saund. 59, Gainsforth v. Griffith, and the case of Broughton v. Conway In Dyer there cited; also. Idem 60.
    
    
      
       Savignac v. Roome, 6 Term. Rep. 125: Morley v. Gainsford, 2 H. Bl. 442.
    
    
      
       Rex v. Oneby, 2 Bd. Raym. 1485.
    
    
      
       2 Sel. N. P. 391; 1 Saund. 819, Pordage v. Cole; 1 Esp. N. P. 266-7-8.
    
    
      
       Esp. N. P. 268.
    
    
      
       Paradine v. Jane, Alleyn 27; Beale v. Thompson 3 Bos. & Pull. 420; Chaplain v. Southgate, 10 Mod. 383; Monk v. Cooper, 1 Str. 762.
    
    
      
      
         1 Bac. 653.
    
    
      
       Jones on Bailm. 89.
    
   March 12th, 1817.

JUDGE! ROANU

pronounced the Court’s opinion.

The Court is of opinion that, if the Covenant stated in the Declaration can be considered, as a Covenant to return the Negro in question, as well as to secure the payment of the money due for his hire, it ought not to be considered as a Covenant to insure such return in the event, which has happened; especially under the usage and understanding of this country *in relation to the subject. And the Court is farther of opinion, that the Appellee would not be held liable under the facts disclosed in the pleadings, (admitting that Thomas Thilrnan therein mentioned were his Servant or Agent;) as the act of the said Thilrnan, which caused the death of the said Negro, was neither authorized by the Appellee, nor committed in the usual and proper course of his duty, as such; but was a wilful and unauthorized trespass.

On these grounds, the Court is of opinion to affirm the Judgment.  