
    Jenkins vs. Brown.
    A slave can make no contract obligatory upon him or upon others, and money acquired by him by the permission of his master enures to the benefit ,of the master.
    Money earned by a slave by the permission of his master, and loaned out by a third person may be recovered by such third person, and is a deposit in his hands for the benefit of the master.
    John, the property of Allen Brown, and Tom the property of Benjamin Hodge, were barbers in the town of Columbia acting for themselves with the permission of their masters. They earned a large sum of money which was placed in the hands of Alexander Brown to be by him loaned out, and he loaned the money to Jenkins, and took his promissory note for the money payable to himself. When the notes became due he instituted suit on them and the suit was dismissed upon an agreement that Jenkins should have three years time, and should give security. The agreement was executed and notes taken accordingly.
    Suit was instituted on the notes when they became due, and thereupon this bill was filed in the chancery court at Columbia, to restrain the collection of said notes.
    This case was heard by Chancellor Cahal on bill, answer, replication and proof, at the September term, 1845. He was of opinion that there was no equity in the bill, and dismissed it. The complainants appealed.
    
      M. Frierson, for complainants.
    1. Slaves in this country are wholly incapable of contracting for themselves, and cannot acquire property either by purchase or descent; and it follows as a necessary inference that if they cannot acquire title they cannot communicate title; and this proposition is supported by authority. — See Reeves’ Domestic Relations, 344; Wheeler on Slavery, 6, 190, 197, 263, 264; 4 Dess. S. 2665; 5 Har. & John. 190; 5 Cow-en. R. 397; 1 Stewart R. 230; 1 Bancroft’s History, 187; Grigg vs. Thompson, Mills’ Constitutional Rep. S. C. 394; Cam. & Nor. N. C. Rep. 353.
    
      2. But suppose the owners of the slaves recognize the money due upon these notes as the property of their slaves, and» gave them authority to loan' the same to said Barton: yet the slaves could not coerce payment of the same from him by suit; and being incapable themselves of suing, they would be equally incapable of appointing an agent to do that for them which they could not themselves do. — Wheeler on Slavery, 263; Grigg vs. Thompson, Mills’ Oon. Rep. 394; Cam. & Nor. Rep. 353; Story on Contracts, § 277, 278; Story’s Agency, § 3 to 6.
    3. But if the court should regard this, not as a contract between said Barton and said slaves, but as a contract between him and the defendant as principal or individually, still he could not enforce the collection of said notes; because his answer shows that said notes were given to him without consideration, and the notes for which the last were given in renewal were without any consideration as between said Barton and said defendant individually; and any suit which might have been instituted on said first notes would have been unfounded; and the -dismission of an unfounded suit would be no consideration to support a contract. — Story’s Contracts, § 120, 140.
    4. Again: all the authorities which treat of this subject recognize the doctrine that the master of a slave is the person to whose benefit all his contracts enure, and he alone can enforce them; and they hold the doctrine, that the slave has no will of his own, but the will of the master is the will of the slave, — Cooper’s Just. Lib. 3, tit. 29; Lib. 2, tit. 9, § 3; Lib. 3, tit. 18, § 1, 3,; Wheeler on slavery, 163, 264; 8 Martin Lou. Rep. 162; Reeves’ Dom. Rel. 344.
    5. If this be true, and the defendant should collect these notes, it would not preclude the owners from suing for and recovering the same in a suit by them against complainant.— Wheeler on Slavery, 263, 266; 9 Johnson, 67.
    6. If, then, all a slave acquires is acquired for the use of his master, and the master has a legal right to the same, then surely it would be a fraud upon the master’s rights, for a stranger to assume the control and disposal of the slave’s acquisitions so as to defeat the master’s right to the enjoyment thereof. — 1 Story’s Eq. § 328, 333.
    7. Our acts of 1803, ch. 13, § 4, and 1813, ch. 135, impose a penalty upon those who trade, &c., with slaves without permission from the owners; and,we take it, that, wherever a statute imposes a penalty for the performance of an act, or the execution of a contract, if the act be done or the contract be made, it is wholly void. The act of Virginia of 1713, is the same substantially with our acts of 1803 and 1813, and the courts of that State declare that contracts analogous to this are void. — Wheeler on Slavery, 10. Upon the first part of this point, see, 1 B. & A. 272; 14 John. 290; 5 B. & Aid. 355; 14 Mass. R. 322; Chitty’s Contracts, 233; Story’s Contracts, § 160, 219,220; Grigg vs. Thompson, Mills’ Con. Rep. S. C. 394.
    8. The only remaining question in this case is, will the court grant the relief prayed for by complainant, he being particeps criminis? We insist here, that, in cases where the agreement or other transaction is repudiated on the ground of contravening public policy, the circumstance that the relief is asked by a party who is particeps criminis, is not material in equity. The reason is, that the public interest requires that relief should be given, and it is given to the public through the party applying for it. — 1 Story’s Equity, §298; 2 Kent, 467, (top) and 483, (note;) 11 Vesey, 526 to 535; 9 lb. 298; 3 P. Wms. 64, 74; 2 Stoi'y’s Equity, § 693, 695; 3 Mylne & Craig 18 and 24.
    9. These notes being merely void, the party complainant has a right to come into this court to have them delivered up for the purpose of having them cancelled. — 2 Story’s Eq. 698-9, 700 — 700, (a) 701. And this even after verdict. 3 Brown’s Ch. Rep. 15, 16, 17, and Mr. Belt’s notes; 1 Johns. Ch. Rep. 520 to 524; 10 Yer. 59. 83.
    
      Nicholson and Houston, for plaintiff,
   Tukley, J.

delivered the opinion of the court.

Barton W. Jenkins executed his note with the complainant as his surety to Alexander H. Brown, the defendant, for the sum of $2424 37; upon which a judgment at law having been rendered, this bill of injunction is filed, asking relief upon the ground, that the money which formed the consideration of the notes, and which was lent Barton W. Jenkins, was not the money of the defendant, Alexander H. Brown, but of two slaves named John and Tom, who advanced the money to Brown to loan to Jenkins.

There is no .dispute but that the fact- is as thus stated;- that the money did belong to the two negroes, who were permitted by their owners to employ their own time, and acquire money for their own use, and that it was loaned by the defendant for their benefit. And it is now argued that in as much as a negro cannot by our laws acquire property for himself, or make contracts, that the note upon which the judgment at law was rendered against the complainant is void, and cannot be the subject matter of a suit at law.

It is unquestionably true, that a slave has no right to acquire and hold property or money; that he and every thing of his earning belongs to his master; and that he can make no contract which is obligatory upon himself, or the person contracted with. And if that were this case, we should find no difficulty in holding the doctrine contended for on the part of the complainant. But such is not this case. The proposition, that the negroes and their earnings belonged to their masters being granted, it necessarily follows that the money loaned belonged to them, and this money coming into the hands of Alexander H. Brown, was money had and received 'by him for them, and to whom he was and is responsible for the payment of the same. This being so, he is clearly entitled to recover it back from those to whom he loaned it, and in the absence of objection on the part of the masters, it does not lie in the mouths of the borrowers to object to the refunding the sum borrowed upon the ground that it was not the money of the lender, but of third persons.

We therefore affirm the decree of the Chancellor dismissing the bill.  