
    Spencer v. Pilcher.
    July, 1887,
    Lewisburg.
    Bailments — Action against Bailee — Counts In Tort— What Constitutes — Case at Bar. — In action by owner against bailee of a slave, to recover damages for his loss, declaration contains three counts: the first is a common count in trover: the second alleges, that plaintiff being an infant, and known by defendant to be such, one J. S. agreed with defendant to hire plaintiff’s slave to him for a year, to be employed on his farm, according to the usage of the country concerning similar bail-ments, defendant agreeing to return the slave at the end of the year, and the amount of the hire being fixed with reference to the employment of the slave in agricultural labour in the county; that the slave was delivered to defendant, and employed on his farm, until &c. when defendant, contrary to his agreement, and to the usage of the country in like cases, and without the knowledge or consent of J. S. or the plaintiff, put the slave on board a flat boat in Ohio river, to aid in navigating the same to New Orleans, and carried 'him beyond the limits of the county, whereby defendant failed to redeliver the slave, as he was bound to do by his agreement, and the slave was wholly lost to the plaintiff: the third count does not allege that the slave hired was to be employed in agricultural labour in the county, nor that the amount of the hire had reference to such employment, but in other respects is substantially like the second: defendant demurs generally to the whole declaration, and also to the second and third counts: Held, 1. the second and third counts are not counts in assumpsit, but in tort, and
    are’"well enough joined with the countin trover á. The second and third counts are sufficient on general demurrer.
    Bill of Exceptions — References to Another Bill — Sufficiency. — Bill of exceptions by defendant states, that he objected to the admission of certain evidence, “on the grounds and reasons set out in the third instruction asked by defendant;” the instruction so referred to is contained in another bill of exceptions: in appellate court, defendant objects that such reference made in one bill of exceptions to the other is irregular: Held, there is nothing in the objection.
    Bailments — Hire of Slaves — Action against Bailee-Ev-idence — Admissions of Bailee. — Subsequently to a bailment of a slave for hire, the bailee, being about to carry the slave with him on a vo3rage down the Ohio and Mississippi rivers, acknowledges to third persons, that he has no authority to do so, and that he will be liable in case the slave be lost: Held, such admissions of the bailee are competent evidence against him, in an action brought by the owner to recover damages for the loss of the slave, who was drowned in the course of the voyage.
    Same — Same—Same—Evidence Showing Purpose for Which Slaves Hired. — in action to recover damages for the loss of a slave hired, who was drowned in the course of a voyage clown the Ohio and Mississippi rivers, on which he had been carried by the bailee, plaintiff, with a view to shew that the slave was hired for the purpose of being employed in agricultural labour in the county of the bailment, offers evidence that the amount of the hire reserved was the usual rate for slaves hired to that employment; that slaves employed in voyages down the Ohio and Mississippi, and slaves taken from the county of the bailment to a neigh-bouring county, and there hired for the purpose of being employed in manufacturing salt and digging coal (which were regarded as occupations of greatdanger) broughtmuchhigher ratesof wages than those hired in the county of the bailment, for agricultural and domestic purposes; and that so far as the witnesses had hired slaves to be employed in the neighbouring county, and so far as they had hired slaves to be employed in the county of the bailment for agricultural purposes, they had stipulated for the place of employment, as well as for the amount of wages: Held, the evidence is relevant and admissible.
    Same — Same—Liability of Bailee. — If a slave be hired with the understanding that he is to be employed in agricultural labour, and the bailee employs him as a boatman, in which occupation he is drowned, the bailee will be liable to the owner for his value.
    Same — Same—No Stipulation as to Nature of Employment-Rights of Bailee. — A general bailment of a slave for hire, without express stipulation or restriction as to the nature or place of employment, does not invest the bailee with all the rights of the master for the period of bailment: he has no right to send or carry the slave upon a dangerous voyage to another state; and if he does so, and the *slave is accidentally drowned in the course of the voyage, though within the limits of this state, and though no immediate negligence appear on the part of the bailee, he will he liable for the value to the owner.
    Same — Same—Loss of Slave — Trover  — The accidental loss of a slave hired, occurring in an employment of the slave which the bailee had no right to make, amounts to such a wrongful conversion by the bailee, as will sustain an action of trover by the owner.
    Action on the case, in the circuit supe-riour court of law and chancery for Wood county, by Alexander H. Pilcher against William Spencer. The declaration, as at first filed, consisted of a single count, in the name of the said A. H. Pilcher by Stephen 0. Pilcher his next friend, alleging that on the 1st day of January 1830, at the county aforesaid, the said Alexander was lawfully possessed of a certain male slave named Monroe, of great value &c. as of his own property, and being so possessed thereof, the said Alexander, afterwards to wit, on &c. at &c. casually lost the said male slave out of his possession and the same afterwards came to the possession of the said defendant by finding, to wit, on &c. Yet the said defendant, well knowing the said slave to be the property of the said Alexander, and of right to belong io him, had not delivered the said slave to the said Alexander, but had wholly refused so to do, although often requested, and after-wards, on &c. converted and disposed of the said slave to his own use.
    After various proceedings in the cause, which it is unnecessary to state here, the •court made an order on the 4th of April 1833, permitting the plaintiff (who it appeared had attained lawful age) to prosecute the suit on his own behalf. At the next terra, the court gave him leave to amend his declaration; and he accordingly amended the same, by adding two new counts thereto.
    The first additional count stated that the plaintiff, on &c. was possessed, as of his own property, of a certain *other male slave named Monroe, of great value &c. and the said plaintiff being then and there an infant under the age of 21 years, and he the defendant, with a full knowledge that the said plaintiff was under the age of 21 years, to wit, on &c. being the owner, occupier and manager of a large farm in said county, extensively engaged in the cultivation of the same, and desirous to hire hands to assist in the cultivation of the same, entered into an agreement, with one John Stephenson of said county, whereby the said Stephens on and the said Spencer mutually agreed that the said Spencer should take on hire the said slave Monroe the properly "of the plaintiff as aforesaid, to be employed bj' him tile said Spencer on his farm and in and about his business as a farmer, according to the usage and custom of the country concerning similar bailments, from the sa.id 1st day of January 1830 until the 25lh day of December next ensuing, for the sum of IS dollars hire, and he the said Spencer then and there further agreed that he would return the said slave to the possession of the plaintiff on the said 2oth day of December, and in all things connected with the bailment of said slave it was agreed and understood that said hiring was to be governed by the usage and custom of the country in like cases. And the plaintiff avers that the price stipulated to be paid for the hire of said slave was the moderate value of said slave with reference to his employment in the cultivation and tillage of a farm in the county of Wood, and had direct reference to and was regulated and governed by such employment of said slave on the farm of said Spencer. And the plaintiff farther avers that after the making of the said agreement, to wit, on &c. the said slave Monroe was placed in the possession and employment of the defendant, and worked on the farm of the said defendant, in performing the ordinary duties of a labour-ing hand on a farm, according to the custom among fatmers in said county, from
    the said 1st day of s'January 1830 until the 17th of December following, when the defendant, contrary to the true intent and meaning of the agreement entered into between him and the said Stephenson, and contrary to the usage and custom of the country in like cases, and without the knowledge and against the consent of the'said Stephenson or the plaintiff, put and placed the said slave upon and aboard a flat boat destined for New Orleans, as a hand to aid in navigating the boat to her said destination, and then and there caused the said slave to be carried and removed beyond the limits of the said county of Wood, exposed to the dangers incident to the navigation of the river at that season of the year, whereby the defendant utterly failed to redeliver the said slave to the plaintiff on the 25th of December 1830, as he was bound to do by the agreement made with Stephenson as aforesaid, nor has he delivered the said slave to the plaintiff since, nor to the said Stephenson, but on the conirary the said slave has been and is wholly lost to the plaintiff, without the knowledge and against the consent of the said plaintiff.
    The second additional count stated (in substance) that the plaintiff being an infant, and the defendant knowing him tobe such, Stephenson agreed to hire to the defendant a slave named Monroe, the property of the plaintiff, to serve the said defendant according to the custom and usage of the country concerning similar bailments, from the 1st day of January 1830 until the 25th day of December 1830, for the sum of 15 dollars, and the defendant stipulated and agreed to return the said slave to the possession of the plaintiff on the last mentioned day, and in all things connected with the bailment of the said slave, to be governed by the custom and usage of the country in like cases. It then alleged the employment of the slave by the defendant in the ordinary duties of agriculture, until &c. when the defendant, contrary to his agree-merit with Stephenson, *and contrary to the custom and usage of the country in like cases, put the said slave on board a fiat bottomed boat, as a hand to aid in navigating the same to New Orleans, and caused him to be carried and removed beyond the limits of Wood county, and did not return him to the plaintiff on the 25th of December 1830 or at anjr time since, but on the contrary the said slave was wholly lost to the plaintiff, without his knowledge and against his consent. The only material difference between this count and the last appears to be, that this count does not allege that the slave was hired to be employed by the defendant on his farm and about his business as a farmer, nor that the amount of the hire had reference to such' employment.
    The defendant demurred generally to the whole declaration as amended, and also to each of the two additional counts; and the plaintiff joined in the demurrers. The defendant likewise put in the plea of not guilty, on which issue was joined. On argument of the demurrers, the court overruled them: and a jury being impaneled to try the issue in fact, found a verdict for the plaintiff, and assessed his damages to 317 dollars.
    At the trial, the defendant filed four several bills of exception to opinions of the court given against him.
    I. The first bill stated, That on the trial of the cause, the plaintiff, to maintain the issue on his part, gave evidence proving, or tending to prove, that he .was the proper owner of the slave Monroe in the declaration mentioned. That being himself an infant under the age of 21 years, his brother Stephen C. Pilcher, acting for him, but without any official appointment authorizing him so to do, hired the said slave to the defendant for the year 1828, at 15 dollars per annum; but it did not appear in evidence that there was any special agreement other than as above set out. That near the close of the year last aforesaid, John Stephenson the stepfather of the plaintiff, acting on his behalf, he being still an infant and *a part of the familj» of the said John, had an interview with the defendant, when a conversation took place respecting the hiring of the slave Monroe for another year, in which the defendant remarked that Monroe was very awkward in farming business when he hired him, but that he had improved him in ploughing and other farming work, and he thought, if he kept him another year, he could improve him considerably more; but as he considered the wages high for the first year, he was unwilling to give more for the ensuing year. »This conversation resulted in an agreement between Stephenson, on the part of the plaintiff, and the defendant, that the latter should keep the slave Monroe for another year on hire, at 15 dollars per annum; but no particular stipulations were entered into, or agreement made, as to where the slave was to be employed, or the nature of his employment, otherwise than as the same may be implied from the circumstances already detailed, and those which follow. It -appeared satisfactorily that the plaintiff, after he came of age, sanctioned the hiring aforesaid by Stephenson his stepfather. It further appeared in evidence that the defendant was a permanent inhabitant and extensive cultivator of the soil in Wood county; that he had been accustomed, for many years before, to carry the produce of his own farm, and sometimes of those of his neighbours, to New Orleans and the other markets on the Mississippi; but that he had not been so engaged for the two years immediately preceding the voyage hereafter mentioned, nor had made a trip of that kind since the said voyage. That the said slave Monroe, during the first year for which he was hired to the defendant, was employed on his farm in the county of Wood, without having been sent or carried to any distant place, so-far as the evidence disclosed the facts. That the said slave continued in the service of the defendant on his plantation; until the 15th of December in the last year of his hiring (1829) which *was within 10 or 15 days of the expiration of the time for which he was hired, when defendant set out from his farm in Wood county, with two large fiat bottom boats, pretty well loaded, and principally, if not altogether, with flour made from the wheat produced on his farm, and other of his agricultural products. That defendant commenced his voyage with the said boats, with but two hands on board besides himself and the slave Monroe. That the defendant with the boats aforesaid was destined for Cincinnati, and thence to the markets on the Mississippi, if satisfactory sales were not made at the firstnamed place. That on the evening of the first day of the voyage, the defendant landed his boats on the Virginia side of the Ohio, a short distance above Buffington’s island-, and not far below the line then dividing the counties of Wood and Mason. That in landing the boats, which had been previously attached to each other by ropes, the boats became separated, and in consequence thereof one was moored at the first point of landing, and the other a few hundred yards below. That as it was becoming dark, the two hands were sent from the lower to the upper boat, for the purpose of taking care thereof, and were shortly afterwards followed by the slave Monroe. That on his leaving the lower boat, where the defendant was, the latter remarked to him that he had better remain with him; but no other command or restraint, to induce him to do so, was given in evidence. That on the arrival of the slave Monroe at the upper boat, where the two other hands already were, he went on board, and walked back to the stern of the boat, where he either went over or fell over into the Ohio river, and was drowned. That at the time, there was a light in a lantern on the deck of the boat. That after the slave fell into the water, every reasonable exertion was made in vain to save him. That at the time of the death of said slave, he was about 13 years of age. That after *the loss of the said slave, the defendant proceeded with his boats to Cincinnati, where he procured some additional hands, and continued his voyage to the markets on the Mississippi and to the city of New Orleans, whence he returned to the county of Wood in the spring of the following year. The plaintiff, further to maintain the issue on his part, produced a witness, Henry Dils, who stated that a few days before the defendant commenced his voyage in the course of which Monroe was lost, defendant met the witness (who is a brother in law of the plaintiff) at Parkersburg in Wood county, and enquired of the witness whether he had any interest in the boy Monroe, by which defendant could be authorized to carry him down the river with him; to which the witness answered that he had no such interest, and could therefore give no such permission, but that the plaintiff and his stepfather resided but a few miles distant, and could be consulted on the subject. Defendant replied that he did not expect to be able to see them, but that he would take Monroe with him at all events, and if lost, he would pay for him; that he would serve as a cook, and save him 50 dollars expense. The plaintiff also offered in evidence the testimony of another witness, Thomas Neale, who stated that he went on board defendant’s boat, and in the cabin of the boat some conversation took place between the witness and defendant respecting the boy Monroe, in the course of which defendant said, he had been down to see about the boy, but could see no person that would give him leave; and that if he took the boy and lost him, he should have to pay for him. To the introduction of the testimony of Dils and Neal, the defendant objected, “on the grounds and reasons set out in the third instruction asked by the defendant in this cause, and made part of the record, and for all other legal and proper reasons;” but the court, regarding this evidence as admissible for the purpose of enabling the jury to ascertain and decide what %as the true interpretation of the contract of hiring for the last year of the service of Monroe, as understood and regarded by the parties at the time of making the contract, overruled the said objections, and permitted the evidence to go to the jury, with instructions that they were only to consider the same as evidence for the purpose aforesaid, and not as founding any new contract between the parties, or creating any new obligation on the part of the defendant, different from the obligations resulting from the original contract of hiring. To which opinion the defendant excepted.
    II. The second bill of exceptions stated, that on the trial of the cause, the plaintiff, further to support the issue on his part, after the introduction of the testimony set out in the first bill of exceptions, offered evidence tending to prove that slaves taken from the county of Wood to the neighbour-ing county of Kanawha, and there hired for the purpose of being engaged in the manufacture of salt and the digging of coal, annually bring from 25 to 30 per cent, higher wages than slaves hired in the county of Wood for agricultural and household purposes: that this is partly owing to the great risque and danger which are considered to attend the emplo3rment in salt-making and coaldigging, and partly to there being a greater demand for slave la-bour in the county of Kanawha than in the county of Wood: and that so far as the witnesses had hired slaves to be employed in Kanawha, and so far as they had hired slaves to be employed in Wood for agricultural purposes, they had stipulated for the place of employment, as well as for the amount of wages. The plaintiff also offered evidence to prove, that slaves employed in voyages down the Ohio and Mississippi rivers brought much higher rates of wages to their owners, than slaves hired to be employed in the county of Wood, on the farm and for domestic purposes: that the slave Monroe was hired to the defendant at about the rate for which boys of his *age and capacity Were commonly hired for agricultural and domestic purposes in the county of Wood: and that the plaintiff could probably have gotten 30 dollars per annum for the said slave in the county of Kanawha. To the introduction of which evidence the defendant objected, on the ground that the same neither formed part of nor explained the original contract of hiring, nor could alter or vary the effect of that contract, and on any other ground which rendered such testimony illegal; but the court, being of opinion that the said evidence tended to shew what were the original terms and conditions of the contract for the hiring of the boy Monroe for the last year, as understood and intended bjT the parties at the time of making that contract, overruled the objection and permitted the evidence to go to the jury, to have such weight (if any) as they might think it deserved, in determining what were the terms, of the said contract. To which opinion the defendant excepted.
    III. The third bill of exceptions stated, that on the trial of the cause, after the argument thereof, the plaintiff moved the court to instruct the jury, that if they should believe, from the evidence in the cause, that at the time of the contract entered into, it was the understanding of both parties that the slave in question was hired to labour on the farm of the defendant, as a hand on said farm, and that the defendant took said slave to assist in navigating a boat to New Orleans, and the slave was drowned whilst in that employment, — then the defendant was liable for the value of the slave: which instruction the court gave, adding thereto the following explanation and limitation — “provided the jury shall be satisfied that the taking the boy Monroe on such voyage, as described by the witnesses, was a violation of the contract above supposed, and an abuse of the temporary right acquired by the defendant by the hiring of the slave.” To which opinion as given to the jury, the defendant excepted.
    *IV. The fourth bill of exceptions stated, that on the trial of the cause, after the arguments to the jury were closed, the defendant moved the court to give to the jury the several instructions following.
    1. That a general bailment of a slave for hire places the bailee, as to the services and use of the slave, in the condition of the master for the period of the bailment agreed upon, and that the law does not annex to such a bailment any restriction upon the bailee, as to the place or nature of the use and employment of the slave during the period of the hiring, which does not attach to the master of the slave, as such. hich instruction the court refused to give.
    2. That the defendant cannot be charged for the slave in this case, upon the ground' of anjr supposed custom or usage not set forth and recited in the plaintiff’s declaration, nor unless such custom or usage were expressly made a part of the contract of letting between the parties, and so stated and recited in the pleadings, and found by the jury accordingly upon the evidence. Which instruction the court gave in the words in which it was asked.
    3. That the defendant can only be chargeable in this case, upon the contract actually agreed and mutually made between the plaintiff and himself, for the hire of the slave in question, and not upon any declarations of the defendant made to other persons, of what he may have supposed the legal effect of the contract to be; and that no such declarations to third persons, not assented and agreed to by the plaintiff, can constitute any new or substantive ground on which to charge the defendant with the loss of the slave. Which instruction the court gave, with the following explanation: “But the declarations of the defendant to third persons may be resorted to and considered by the jury, in ascertaining and satisfying themselves what were the terms and conditions of the contract of hiring, as mutually understood *by the parties at the time it was entered into; for which purpose the jury will give to these declarations such weight as they may think they deserve.”
    4. That if the jury find upon the evidence, that the slave in question was let or bailed generally for hire, and was lost by accident before the expiration of the term of bailment, the plaintiff cannot recover for the loss in an action of trover, and to entitle him to recover for the slave in trover, there must be, and appear upon the evidence, an injurious or wrongful conversion. Which instruction the court gave, with the following addition: “But if the jury are satisfied from the evidence, that sending the' slave Xvlonroe on the voyage described by the witnesses was a manifest abuse of the rights temporarily acquired by the hiring, and that he was lost to the plaintiff in consequence thereof, such abuse is equivalent to a wrongful or injurious conversion, and may sustain the count for trover.”
    5. That if a slave or chattel bailed for hire be lost, with the exertion of ordinary diligence by the bailee, he is not liable for the loss; and the ordinary diligence is that degree of care which every man of common prudence, capable of governing a family, takes of his own affairs. Which instruction the court gave, with the following addition: “This is the general rule under ordinary circumstances; but if a person hiring a slave sends or carries him on distant or hazardous voyages, against the expressed or implied terms of the hiring, and he is lost thereby, ordinary care and diligence during such voyage will not excuse his liability.”
    6. That if the jury were satisfied, from the evidence of the contract produced before them, that the hiring was a general hiring, then the bailee had a right to use the slave hired to him, at any and every place, and in any proper business, wherein a man of ordinary prudence would use his own like kind of property, and if the slave thus hired were lost without negligence or *cruelty, the loss must be borne by the bailor. Which instruction the court refused to give.
    7. That a slave let to hire, especially for farming purposes, cannot in point of law be considered as being employed wrongfully, by being put to aid in conveying the produce of the farm to market, whether by land or water. Which instruction the court gave, with the following addition : “Provided the distance and nature of the journey do not amount to an abuse and endangering of the safety of the slave. ’ ’
    To which several opinions and decisions of the court, refusing to give the first and sixth instructions asked, and annexing to the third, fourth, fifth and seventh instructions asked, additional instructions which were not asked, the defendant excepted, and his bill of exceptions was sealed and reserved to him, to have the same effect as if each of the said opinions and decisions had been separately excepted to.
    After the verdict was rendered, the defendant moved the court to arrest the judgment, “because of the improper joinder of causes of action.” The court, after argument, overruled the motion, and rendered judgment for the plaintiff for the damages assessed and costs. To that judgment a supersedeas was allowed, on the petition of Spencer.
    Fisher, for plaintiff in error.
    Summers, for defendant in error.
    
      
      Bill of Exceptions. — On this subject, see generally, monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
      Bailments — Loss of Thing Bailed — Trover.— If the bailee use the thing bailed for a purpose or in a manner not authorized by toe terms of the bailment, and such misuser be the cause or occasion of its loss, he will be liable in trover for its value. Harvey v. Epes, 12 Gratt. 167, citing the principal case as its authority. And in this same case (Harvey v. Epes), Judge Daniel (p. 187) said: “Ido not think there can be any doubt of the truth of the proposition stated as a general rule, that where the hirer of property uses it for a purpose or in a manner different from that provided for in the contract of hiring, and the property is lost in such user, the hirer is at once answerable for the loss: that the letter to him may treat such misuser and loss as a conversion of his property, and have immediate resort to his action of trover, even before the term for which the property was hired, has expired by efflux of time: And that no care or diligence on the part of the hirer to save the property from loss during such illegal use or employment, can be set up as a bar to the recovery of the full value of the property. See Story on Bailment, § 413: Spencer v. Pilcher, 8 Leigh 565; Homer v. Thwing, 3 Pick. R. 492; Wheelock v. Wheelwright, 5 Mass. R. 104; Rotch v. Hawes, 12 Pick. R. 136; Angus v. Dickerson, 1 Meigs’ R. 459; Mayor, etc., of Columbus v. Howard, 6 Ga. R. 213; McLauchlin v. Lomas, 3 Strobh. R. 85; De Tollemere v. Fuller, 1 Const. Court S. Car. 117.”
      See generally, monographic note on “Trover and Conversion” appended to Eastern Lunatic Asylum v, Garrett, 27 Gratt. 163.
    
    
      
      The pleading's uniformly state the hiring of the slave to have been for the year 1830: the evidence shews it to have been for the year 1829. — Note in Original Edition.
    
   PARKER, J.

This case has been submitted upon the notes of counsel, and I will consider briefly the several objections made to the judgment, omitting one or two which seem to me to have nothing in them; such as that the plaintiff did not set out the usages and customs alluded to in his declaration, and that in the first bill of exceptions the court says, that certain evidence was objected to by the defendant “on the grounds and reasons *set out in t’he third instruction asked,” — without repeating them.

The case itself is one of no little interest to the hirers, and to the letters to hire, of slaves. The evidence proved that the defendant hired the plaintiff's slave from the 1st of January 1829 to the 25th of December of that year. There was no special agreement made at the time, how or where he was to be employed; but many circumstances rendered it probable that he was to be employed that year, as he had been the 3Tear before, on the defendant’s plantation, in the ordinary agricultural and domestic business of a farm, without being subjected to extraordinary risks. The hire to be paid for him in 1829 was the same that had been paid the year before, when the boy was smaller, and was no more than was usually paid for boys of his age and size, kept on farms in Wood county, if as much. The slave belonged to an infant, and was hired to the defendant by John Stephenson, the plaintiff’s stepfather, who was not his guardian de jure or de facto, and had no legal authority to contract for him, although after he came of age (which was subsequent to the bringing of this action) he sanctioned the contract of hiring. On the 15th of December, only ten days before the expiration of the term of hiring, the defendant set out with two boats loaded with produce, bound for Cincinnati in Ohio, and thence to markets on the Mississippi, taking the boy with him, and only two others to manage the two boats. On their voyage down the Ohio, and soon after they passed below the line of Wood county, the slave was accidentally drowned. The defendant pursued his voyage to Cincinnati, went thence to New Orleans, and did not return to Wood until the spring of 1830.

On this state of facts, connected with certain declarations of the defendant before he set out, admitting his responsibility in case of the loss of the slave, the jury found a verdict for the plaintiff, and the court gave judgment.

*The first objection to the judgment is, that there was a misjoinder of counts in the declaration, and that the court ought to have sustained the defendant’s demurrer. The first count is in trover, and it is contended that the two last are in assumpsit. The two last counts do state an agreement for the hire of the slave, and for his redelivery on the 25th of December ; but that agreement is not slated as one made by the plaintiff, or for him or on his account, but by one John Stephenson, whose authority is no where recognized. It seems to have been staled, to shew that the slave came into the defendant’s possession without a trespass, and that he was bound to redeliver him at Christmas. The failure to return him is averred, and the injury is alleged in carrying him out of the county, and placing him in a boat destined for New Orleans, whereby he was wholly lost to the plaintiff. These are, I think, substantially good counts in case, and were not improperly joined to that in trover.

The first bill of exceptions is to the reception of the evidence of the two witnesses Dils and Neale. It is to be recollected that the plaintiff, after coming of age, had recognized the contract as made by Stephenson, — a circumstance which does not affect the pleadings in the cause, but may affect the evidence: and it is for the benefit of the defendant to consider it in this light; for otherwise, having hired the slave from a person having no authority to contract for the infant, and having lost him in his employment, in the manner and under the circumstances proved, he would be left without a shadow of defence. The court admitted the evidence of these witnesses, for the purpose of enabling the jury to ascertain the true interpretation of the contract of hiring, and the defendant’s own understanding of it; and I think their evidence was not only admissible for this purpose, but to prove the defendant’s possession of the boy, and the fact that he was taking him on a distant *and perilous voyage, without express authority, and that he did contemplate the possibility, if not probability of losing him.

The testimony set out in the second bill of exceptions I also think was admissible and relevant. Before offering it, it had been proved that the plaintiff had elected to consider the contract of hiring as valid. The amount of the hire had been ascertained, and that it was no more than reasonable, when ordinary risks in farming business in Wood county were in the contemplation of the parties. To strengthen this presumption, and as tending to shew that no extraordinary risk was contemplated, the plaintiff offered evidence that slaves hired for the purpose of being employed in the manufacture of salt, the digging of coal, or in voyages down the Ohio and Mississippi rivers, brought much higher wages than those employed in the county, for agricultural or domestic purposes, and that when they were to be engaged in those other avocations, there was generally a stipulation to that effect. This evidence I consider relevant to the point of enquiry. The great and general rule in admitting testimony is, that all facts and circumstances upon which any reasonable presumption or inference can be founded are admissible evidence, however small the weight the court may attach to them. Presumptions may be derived from the artificial course and order of human affairs, and the customs of a particular class of people, because a probability arises that the customary course of dealing has been adopted, and that the particular act done was in the usual routine of business, and with its ordinary concomitants. 1 Starkie’s Evid. 17, 35, 36. The object in this case was to ascertain whether, at the time of hiring, the parlies contemplated any extraordinary risks; and the fact that a difference in the amount of the hire was generally made when slaves were to be employed out of the county, in certain purposes attended with greater hazards, seems to me to be relevant if not very strong testimony.

*The instructions excepted to and stated in the third bill of exceptions were in my opinion entirely correct.

The defendant then asked the court to give seven instructions to the jury, explanatory of the law of the case; which were given absolutely, or under certain modifications, or refused. To those which were given, the defendant cannot object. The propriety of the refusal to give others, or of giving them only under certain modifications, depends on the nature of this particular species of bailment, and the rights and duties growing out of it. My opinion on that point will sufficiently indicate my agreement or disagreement with the court below, without referring to the instructions in detail: prefacing my remarks however with the observation, that if it appears from all the instructions taken together, that the law was stated correctly to the jury, I will not cavil at particular isolated expressions, which taken by themselves might be considered erroneous.

The object of the defendant was to induce the court to instruct the jury,, that a general bailment of a slave for hire places the bailee in the condition of a master for the period of bailment agreed on, and entitles him to use or employ him in any way, or at any place, where or in which the master or owner could lawfully use or employ him. His further object was to induce the court to say to the jury, that if the bailment was not restricted by special agreement at the time of making it, no declarations of the defendant, or evidence of facts and circumstances, could be resorted to for the purpose of explaining the real nature of the bailment, in derogation of the right of the bailee to carry the slave where he pleased, and to employ him in any business however hazardous, provided a man of ordinary prudence could or would use his own absolute property in the same manner. I am of opinion that the court was right in resisting these efforts.

*It cannot be maintained that the bailee of a slave for hire has all the rights of a master during the period of bailment. He must not only observe the covenants of hiring, but is bound to perform what has been omitted to be inserted, but ought reasonably to be done. Cooper’s Justinian, lib. 3, tit. 25, § 5. Such a bailee must take care to use the property according to the fair understanding when he hired it; and if, from his own declaration, or any facts or circumstances, it appears that it was hired for one purpose, and has been used for another attended with greater danger of loss or detriment, he is responsible to the owner, in the event of such detriment or loss. The hirer gains only a transient qualified property in the thing hired, and must use it prudently and reasonably. 1 Tucker’s Comm. 372; Jones on Bailments 85, and passim. If this is the law of the locatio-conductio rei, it is emphatically the law of hiring persons? Our law in many instances recognizes a distinction between property in things and persons. “A slave,” says chief justice Marshall, “has volition and feelings, which cannot be disregarded or overlooked in conveying him from place to place.” Boyce v. Anderson, 2 Peters 154. “Slaves,” says judge Brooke in Allen v. Freeland, 3 Rand. 178, “are not only property, but rational beings,'entitled to the humanity of the court when it can be exercised without invading the right of property.” These observations, though applied to other cases, are not foreign from this. The master or owner of. a slave is bound to treat him as an intelligent, sentient being, and will not be presumed, without proof, to place him under the dominion of a temporary bailee, to be used how and where he pleases. If he hires him with a reasonable expectation that he will be employed in a business comparatively healthy and free from danger to life, it ought not to be permitted to the bailee to immure him in an unhealthy mine, or to subject him to the hazards of distant voyages, and the perils of a business *he has never followed. Humanity to the slave requires this, and the security of the rights of property imposes other restrictions on the bailee, for the sake of the owners. A slave hired in a state recognizing the rights of the owner, cannot be taken in England, where the moment he touches the soil he is disenthralled, or to one of the non-slaveholding states, where the dangers of seduction and loss are probable and imminent. If the bailee encounters this risk, and the slave is lost, the loss must fall on him who braves the consequences. In the case at bar, the jury might reasonably have inferred that the fair understanding of the contract was to employ the boy in agricultural or domestic purposes, in the county of Wood or its vicinity. The commencement of a voyage to Cincinnati and New Orleans was a violation of that understanding, subjecting him to risks and dangers not contemplated or estimated when the hiring took place. He was lost to the owner in the prosecution of that unauthorized use of him, and I am of opinion that the bailee is responsible for the loss, and that there is no error in the instructions or the judgment of the court.

BROCKENBROUGH and BROOKE, J., concurred.

TUCKER, P.

At the threshold of this case we are met by a demurrer to the whole declaration for misjoinder, the first count being the ordinary count in trover, and the two others counts in assumpsit, as is alleged by the counsel for the plaintiff in error. If this be true, the declaration is bad on general demurrer, in arrest of judgment, or upon error. 1 Chitty’s Plead. 236. And I am free to say that the language of those counts is much calculated to lead to the conclusion that they are in assump-sit. There is one thing, however, decisive of the contrary. To make them counts in assumpsit, there must be an agreement laid between the parties, or a promise *from the defendant to the plaintiff for a consideration. In Coggs v. Bernard, 2 Ed. Raym. ,909, the declaration laid a promise and breach, but no consideration. Without consideration there was no agreement, though the delivery of the cask of brandy, with a promise safely to remove it, constituted a bailment, with the obligation to perform the act carefully, and the failure was a breach of duty. Accordingly, the plea was not guilty, and the action was treated as a tort. So in Corbett v. Packington, 6 Barn. & Cres. 268, justice Bayley, for the reasons just given, considers the count in Coggs v. Bernard as “rightly held to be a count in tort, one essential ingredient to a count in contract, viz. a consideration, not being stated.” Now in this case there is no shadow of agreement laid, between plaintiff and defendant. There is an agreement laid indeed between Stephenson and defendant, but there is not one syllable in the declaration connecting Stephenson with the plaintiff, or shewing any authority as guardian de jure or de facto, or any request from the infant, himself, or any ratification of the agreement after he came of age; nor is it even stated that the contract was made for the infant, so as to leave it to be inferred that by suing upon the agreement, he assented to and ratified it. There being no agreement therefore, the counts, whether good or bad, are not in assumpsit but in tort. Whether good or bad is unimportant, as there was one good count, viz. the count in trover, which is of itself sufficient to sustain the action.

We come next to the demurrers to the two additional counts. Considering them, as we have done, as counts in tort, are they good counts? They are certainly very informal, but I think they are in substance good. In the action for the tort, only two things are necessary: the allegation that the property came to the hands of the defendant (without a trespass) and the failure to redeliver it to the plaintiff. Now here the counts state *that the defendant received the slave from Stephenson; and whether Stephenson committed a trespass or not, the defendant was no trespasser. The first requisition, then, is satisfied. Secondlj', though the agreement stated between the defendant and Stephenson constituted no contract between the plaintiff and defendant, yet by that agreement it was the duty of the defendant to return the slave at Christmas. Indeed it was his duty to return him at any rate, and his failure to do so was a wrong to the plaintiff, for which he had a right of action ; and the allegation that the defendant “carried him out of the county, and placed him on board of a boat destined to New Orleans, whereby he failed to redeliver the slave, and that he never has delivered him, but that the slave is wholly lost to him,” is surely a sufficient allegation of injury. I consider the counts therefore as substantially good, though certainly very informal.

We come next to the exceptions. The first is to the introduction of the evidence of Dils and Neale. It is not stated for what purpose the testimony was offered; but putting the agreement out of the question, it was relevant testimony to prove Spencer’s possession of the boy, and the factJthat he was in the act of taking him off on the voyage, with a full knowledge of the wrong, and a perfect consciousness of his responsibility for him should he be lost.

The third exception was to a motion of the plaintiff to instruct the jury, that if they believed it was the understanding of both parties that the slave should labour on the farm, and that the defendant employed him as a boatman, whereby he was drowned, they must consider the defendant liable; which instruction was given with the qualification that they must be satisfied the employment of the slave as a boatman was in violation of the contract, and an abuse of the temporary right of the defendant. This instruction was not erroneous. The defendant himself having introduced, or the plaintiff ^having introduced without objection, evidence of this agreement, I am of opinion that the instruction was properly given.

The second exception I have more doubt about; but I yield my doubts to the convictions of my brethren, who all concur upon the point.

As to the fourth bill of exceptions, I am of opinion that the court properly refused to give the first and sixth instructions moved for. The second was given as asked. The rest of the instructions moved for were properly modified by the court; for I am of opinion that a farmer, resident even on the Ohio river, having hired a slave generally, without restriction upon his use, has no right to send him beyond the limits of the state, upon a hazardous voyage to another and distant state; and that if he does so, and the slave is accidentally drowned in the course of the voyage, though within the limits of this state, he is responsible for the value to the owner, even though no negligence or want of care should appear on his part.

Upon the whole, I am of opinion to affirm the judgment.

CABEUL, J., concurred. Judgment affirmed.  