
    NOVEMBER TERM, 1844.
    Lydia Dowell v. Samuel S. Boyd.
    Upon the general allegation of conviction (of a penal offence), the intendment is, that it was as principal, the person charged was convicted.
    The act confiding the trial of slaves, for stealing money or goods, &c., in order to fix the liability of the master for the value of the property stolen, to Justices of the Peace, is not unconstitutional. , ,
    The master is liable for the value of the property stolen, whether it is in his or the slave’s possession or not. And the statute applies as well to grand as petit larceny.
    If the property stolen by a slave be money, it may be recovered from the master in an action of debt. Miter ; if it be bank notes.
    If the declaration against the master, for prope'rty stolen by his slave, be in debt, and contain two counts, one charging money to have been stolen, and the other bank ncjtes, a general demurrer to the whole declaration will not lie, ■ and if put in should be sustained as to the second, and overruled as to the first count.
    This was an action of debt brought by Lydia Dowell against Samuel S. Boyd in the Circuit Court of Adams county. The declaration contained two counts. The first alleged that on the 4th day of March, 1840, the defendant was the owner and master, and had in his employ a slave named Jim, which slave had on that day feloniously taken, stolen, and carried from the plaintiff $5390 in money, of her goods and chattels, of greater value than twenty dollars, contrary to the form of the statute, and that said slave was thereby guilty of the crime of grand larceny; that afterwards, on the 7th day of March, 1840, said slave was lawfully proceeded against, by a warrant lawfully issued by Louis Robetaille, a Justice of the Peace of Adams county, on the charge of grand larceny, and was thereof convicted before said Justice ; of which conviction, the said defendant had due notice, &c. The second count is like the first, except that the larceny is alleged to have been of $>5385 in the notes of the Mississippi Railroad Company, and $5 in a note of the Railroad Bank of Vicksburg, and makes proferí of the record of conviction before the Justice, &c. The defendant demurred to the declaration, and assigned the following causes of demurrer.
    “ 1st. That the things stolen are not sufficiently identified.
    “ 2d. The conviction set forth does not show whether it was as principal or accessory.
    “ 3d. No legal conviction is shown.
    “ 4th. The action should have been in case.
    “ 5th. The declaration purports to be on a statute, when no statute authorizes the remedy.
    “ 6th. The declaration is vague, informal, and insufficient.”
    The Court sustained the demurrer, and gave judgment for the defendant; and the plaintiff brought the case to this Court by writ of error.
    
      Lewis Sanders, Jr., for plaintiff in error.
    The statute giving this remedy is embraced in the fortieth section of the statute concerning slaves &c., printed in Howard and Hutch. Digest, 164, 165, which is as follows. “ If any slave or slaves shall feloniously take, steal and carry away any goods or chattels, under the value of twenty dollars, he, she or they, so offending, and being thereof legally convicted before any Justice of the Peace, shall be deemed guilty of petit larceny, and the master, employer or overseer of such slave, shall restore goods and chattels so stolen to the owner or owners thereof, or pay the value thereof to such owner or owners ; and any slave so offending, or who shall be accessory thereto before the fact, shall receive any number- of lashes, not exceeding thirty-nine, on his or her bare back, well laid on, by order of said Justice; and also the master, employer or overseer of such slave shall stand charged with the costs of prosecution.
    “Any slave or slaves, who shall feloniously take steal and carry away any goods or chattels, above the value of twenty dollars, shall be deemed guilty of grand larceny, and the goods and chattels so stolen shall be restored in like manner, and the same punishment inflicted both on principal and accessory, as is provided in the case of petit larceny.”
    The demurrer admits all the allegations of the plaintiff’s declaration.
    The first count charges the stealing of so many dollars in money, which is a sufficient description ; the second count .describes the bank notes, and banks by which they were issued, which is equally so.
    The objection taken, “ that it doth not appear whether the slave Jim was convicted as principal oras accessory,” cannot be sustained upon any principle known to me. The charge is a substantive charge against the slave Jim ; and the intendment that he acted as any other than such, is thereby repudiated ; had he been charged as accessory, necessary allegations of the commission of the offence by another, would have been required or made necessary.
    The statute points out the proceedings against slaves, how arrested, tried, and the mode of punishment. “He, or she, or they, so offending, and being thereof legally convicted before any Justice of the Peace,” as provided for in the case of petit larceny. If a subsequent section of the act aforesaid, which requires the proceeding before a Justice of the Peace with the aid of two slaveholders, in the trial of such offences, exist, still the Justice has cognizance of the case, the slaveholders being mere adjuncts ; and in declaring upon a judgment of conviction before a Circuit Court, it would be as reasonable to require that the pleader should name the Judge, as to require a' more explicit description of the proceeding than here given ; the allegation of “ lawfully convicted before Justice,” &c. is all that is required.
    To the fourth cause of demurrer, that u the'action ought to have been trespass on the case,” I answer, that I believe that such action might be maintained ; but I understand that wherever a statute gives a remedy for the recovery of money, or other thing of particular identity, where the amount of the one is certain or the other capable of particular identity, and no particular form of action or remedy is given, that debt will lie. Chitty says, Debt will lie “ on statutes, by a party grieved or by a common informer, whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty.” See Chitty’s Pleading, Vol. 1, page 123, and notes (c) and (3), and the English and American authorities there cited; also, “ Debt is frequently the remedy on statutes either at the suit of the party grieved or a common informer.” Ibid, page 127. u Where a penal statute expressly gives the whole or a part of a penalty to a common informer, and enables him generally to sue for the same, debt is sustainable.” Ibid, page 128;, and authorities cited. The creation of a right, necessarily gives a remedy.
    What more simple, or more consistent with the rules of pleading in a case like this, than debt; the thing, the amount, and description of the thing sued for, is rendered certain to every intent.
    The fifth objection or ground of demurrer is answered by the section of the statute before quoted.
    The sixth, is answered by reference to the declaration; it contains every material averment of *the Court, the terra, the time and place of the larceny, the slave who committed it, the owner and employer of the slave, the thing and description of the thing stolen, of his trial and conviction, and the notice thereof to the defendant.
    The civil law recognizes the responsibility of the master for the offences of his slave. The Civil Code of Louisiana does the same, article 180.
    The act of the legislature is but declaratory of the principles of justice. A slave is subject to the absolute control of his master, he is not responsible in his person for contracts, breaches of the peace, trespass, or any infringement of the rights of property of others. Who should be held responsible for such acts ? Reason, and law which is its offspring, alike declare that the owner or employer should be ; if it were otherwise, a wide door to fraud, injustice and plunder, would be opened to the unprincipled owner by the use of a wily slave. The defendant in this case, a gentleman of acknowledged character, cannot be made the subject of such an imputation. But every slaveholder takes and holds them subject to all legal accountabilities, and the law will not inquire into the virtues of the owner, but must hold him responsible for the vices of his slave. The owner of a slave has a remedy at law for an injury done to him ; rights should be co-relative, and the master made responsible for the act of his slave.
    The Court is familiar with the principles of the Common Law, which makes the master responsible for many of the acts of the servant, where the relation was vastly different than between master and slave. Also the established principle, that the owner is. bound for the acts of animals of vicious propensities, or roving dispositions. The policy of the law, being that the owner of an animal must hold him subject to all liabilities which may follow the indulgence of any of his known propensities, he is bound to confine and restrain him, or be accountable for his acts. The slave has no volition or rights independent of his master, and whatever he does affecting the rights of others, makes the master responsible. Wherefore I contend that the judgment of the Circuit Court was erroneous, and that it be reversed, and remanded for further proceedings.
    
      Quitman and McMurran, for defendant in error.
    We rely upon the following grounds, among others which might be stated, for an affirmance of the judgment of the Court below.
    1st. The plaintiff has misconceived her form of action. If any action could be maintained at all, it would be sustained on trover, in our opinion. The language of the statute, is that upon conviction of the slave, the master, employer, or owner, shall restore the goods stolen, or pay their value. The law implies that the master, employer, or overseer, has the possession or control of the stolen property, or it never could subject him to the restoration of the property. It never could be. construed to enact that a man should restore that which he never had and never controlled. That would be absurd. And as the master is to restore the goods or pay their value, as he can do either, the form of action must be such as to correspond with the remedy. In the present form of action he could not tender back the specific property, upon an execution after judgment ; he could not do so in this action of debt, if a judgment were recovered against him. ’ •
    Where a penalty is given by statute fixing the sum, debt would lie. But the statute upon which this action is founded provides simply for the restoration of the goods, or their alternate value. Rev. Code, 381, 382, sec. 56, 57; How. & Hutch. 164 ; 4 Bl. Com. 363, 450.
    The form of the action too, would, in our opinion, test the plaintiff’s right to recover against the defendant. For to sustain the action it would be necessary to show possession or control of the goods in the defendant, which the statute clearly contemplates as the foundation of a recovery against the master, employer, or overseer. If such were not the intention of the statute, it would merely have given an action of damages generally against those persons ; and then an action of trespass would have been the remedy. 6 Bac. Ab. title Trespass, E. 2 ; 12 East, 409, 412, Crosby v. Leng.
    
    2d. Independently of the misconception of the form of action, the declaration is otherwise radically defective.
    The declaration does not aver that the slave was either principal or accessory before the fact, an essential allegation under the statute ; for upon the conviction of the slave as accessory before the fact, the master, employer or overseer, is liable only for the costs.
    Besides, the goods or chattels alleged to be stolen are not described with sufficient certainty. The description would apply equally to any notes of the Railroad Bank, as those alleged to be stolen.
    Again, a legal conviction must be averred and shown by the record. It is set out in the declaration that the conviction of the slave Jim was by and before a Justice of the Peace. This conviction is a nullity. Justices of the Peace have no jurisdiction in criminal cases whatever,, and in civil cases, only to the amount of fifty dollars, under our present Constitution. See Art. 4, sec. 23, of Constitution.
    Original jurisdiction in criminal cases is confined in the Circuit Court alone. Art. 4, sec. 14.
    Under the old constitution they had, by the terms of that constitution, in reference to their jurisdiction, criminal as well as civil jurisdiction. Old Constitution, Art. 5, sec. 8.
    But further, a slave may be convicted on negro testimony (and such is the fact in this case), and at the same time no colored person can be a witness against a white person. But in this instance it would be otherwise, even without the benefit of .cross-examination. Surely this would not be adjudicating upon a citizen’s rights by due course of law.
    We understand that the Court in its opinion decided the record to be a nullity, but seemed to think that the guilt of the slave might in this action be established by matter in pais. This position is certainly at war with the plain language of the statute, as well as every principle of law applicable to the case ; a conviction of record is a prerequisite to a recovery in the civil suit. The statute is too plain. It is upon conviction, that the master, employer, or overseer is liable, and not before. That conviction can be shown by the record of it alone, and it must be upon competent proof that the conviction is had. s
    Besides the express and clear language of the statute, reason and authority sustain our view of this subject. If the civil remedy can be prosecuted regardless of any conviction, the anomaly might be presented of the' master, owner, or employer, having a verdict against hini for the stolen goods, as alleged, or' their value, by one jury, and the slave acquitted by another. The slave is presumed to be innocent until convicted, and that conviction must be a matter of record, provable by the record alone. Without this, the issue would not be whether the defendant was indebted to the plaintiff, but whether the defendant slave had been guilty of a felony or not. See 1 Chitty’s Crim. Law, 818-820; 12 East’s Rep. 409, 412, Crosby v. Leng; 4 Blac. Com. 363, 450.
    3d. Let us now take a more comprehensive view of the defendant’s liability in this case, regardless of the form and requisites of the proceedings against the master, employer, or overseer.
    We have already noticed the language of our statute. Rev. Code, 381, 382, sec. 56, 57. The first section regards petit larceny, and upon conviction of the slave, the master, employer, or overseer of such slave shall restore the stolen property, or pay the value thereof. The second section, that upon the slave’s conviction of grand larceny, the goods shall be restored in like manner; but no provision is'made for the payment of their value, — and penal ■statutes are construed strictly. -Besides, the, statute applies only to the case’ of the principal.
    The word “restore” presupposes that the master, employer, or overseer, has the possession or control of the stolen property. Any dictionary giving the definition of the, word “ restore” will show this.
    The statute too, placing the master, employer, and overseer of the slave in the same situation, under the same liability for the restoration of the stolen property, shows the evident intent of the legislature, that either of them who had or could control the stolen property, from tbeir situation in regard to the slave, should return them. It is simply providing for an .ordinary occurrence in regard to the thieving of the slaves. Surely no one can seriously believe that if a man employed a negro for a day, or were engaged as an overseer upon a plantation, and the negroes, in the one case or the other, stole a large sum of money, which never was heard of afterward, he would be liable for the amount. And the master istno further liable.
    Again, all the legislation of this State upon the subject of our slave population brings us to the same conclusion. A negro slave commits an assault and battery, mayhem, arson, burglary, and other felonies; but no compensation is recoverable from the master, employer or overseer. Rev. Code, 381, sec. 52, 55, &c.
    We will find too that on general principles, as far as we can derive any lights from the history and jurisprudence of other countries, the result must be the same.
    According to the English law, a master is liable for the acts of his servant only when done in discharge of his master’s business, or in pursuance of his authority. He must be a participant in some way, or he is not liable.
    So no man is liable for a damage done by a domestic animal of his, such as a dog or horse, unless the vicious propensities or habits of the animal be brought home to the knowledge of the owner.
    So, under the Roman law, regarding slavery, the master was not responsible for the acts of the slave, though by the Justinian Code it was provided that the master should relinquish the slave to the person injured..
    And in Louisiana, the Civil Code of that Státe expressly provides the extent of the remedy. Civil Code, pages 27, 28, Art. 172, 181. See also Wright v. Wetherly, 7 Yerger’s Rep. 367 ; Wright v. Smith, 3 McCord’s Rep. 400.
    We might, in conclusion, invoke another principle, which we think is clearly admissible from the laws and jurisprudence of this country and England; and that is, that when the criminal laws step in and take the slave from the master, holding the slave amenable for his crimes and offences, such slave becomes, a person in the eye of the law. He is no longer a slave, no longer property, but a person in the commission of the offence, punishable as such ; and the master, as to such acts of the slave, is no longer master, and will not be held liable for such acts, unless by the most clear and positive legislation. And we have shown, in this case, that the legislation of this State does not extend or embrace such a case as the one now under consideration.
    
      George S. Yerger-, on the same side.
    1st. The first question arises on the construction of the act of 1822. How. & Hutch. 164, 165, s. 40. Is the master, owner, employer, or overseer of a slave, liable for goods stolen by him, unless he have the goods in his possession, or under his control ? It is believed he is not so liable.
    There is no question, that by the Common Law, independent of this statute, 'the master was not liable for the goods or the value of the goods stolen by the slave. Wright v. Wetherly, 7 Yerg. Rep. 367 ; Wright v. Smith, 3 McCord, 400.
    In all cases, therefore, where the master is liable, it must be in consequence of a statutory provision, as in Louisiana. Civil Code of that State, p. 27, 28, Art. L73, 181, where he is made liable to the value of the slave.
    Statutes imposing penalties or forfeitures on the master, are strictly penal in their character, and must receive such construction only as the literal terms or words import. They cannot, nor ought not to be extended by implication.
    Indeed,, the words of a statute ought to be strong and imperative in their character, to induce the Court to inflict perhaps ruin, not only on the owner of the slave, but on the unfortunate hirer or overseer, who at the time of the theft had the control of the slave.
    If such be the true construction and meaning of the law, it will be dangerous in the extreme to either own, hire, or oversee slaves in Mississippi. This case illustrates it; upwards of $5000 is said to have been stolen by the slave ; it might have be'en ten, twenty, or more. The consequence of such construction would be ruin to many honest and correct men, without any default on their part.
    The first part of section 40, applies to petit larceny. It says, if any slave shall steal under the value of twenty dollars, and being legally convicted, shall be deemed guilty of petit larceny, and “ the master, employer, or overseer of such slave, shall restore the goods stolen to the owner, or pay the value thereof.”
    Does this mean that the person who has the slave in possession shall at all events, without regard to the fact whether he has got the goods into- possession or not, pay the money, if he cannot get the goods to deliver ? Could the legislature have meant, that not only the owner, but an innocent hirer for a week, or a month, or a mere overseer, should pay the value ?
    The words of the statute are — the owner, employer, or overseer shall restore, Sic.., or pay the value. They all cannot be required to do it. Which of them, then, is to do it ? If a negro is hired, must the master be compelled to pay, or must the hirer ? Or hag the party a right to elect which he will sue ? And if he elects to sue the hirer or overseer, can they recover from the master ? These considerations prove that the construction contended for by the plaintiff in error cannot prevail. But construe it as we contend, and all harmonizes. Making the master, or the hirer, or the overseer restore the goods, means, if it means anything, that whichever, the master, the hirer, or overseer, shall have the custody, or 'possession, or control of the goods stolen, shall restore them, and if not, pay their value'. The word restore, implies possession, it means to give back. ' They cannot give it back unless they have it to give back.
    But the latter part of the section, in relation to grand larceny, makes this more plain. It says, “ the goods and chattels shall be restored in like manner,” that is, shall be restored by the master, the overseer, or employer. It does not say, “ or shall pay their value.” If construction ig doubtful, consequences of it one way may be looked to'. Dwarris, p. 756.
    2d. But if we are mistaken in this, it is clear, before proceeding against the master or owner, a legal conviction of the slave is necessary. The statute says, “ And being thereof legally convicted, &c., the master, owner, &c., shall restore, &c.” The conviction is in the nature of a condition precedent to the right to sue the master for the goods. To make the master liable, the goods must have been stolen by his slave. The only legal proof in a collateral proceeding, that the slave stole them, is his conviction.
    At Common Law, restitution of the goods stolen, in trover, would not lie until the thief was prosecuted, and either convicted or acquitted, because the policy of the law required that felonies should not be healed. 1 Hale, P. C. 546; 12 East, 413.
    In construing a statute, it must be construed by the rules of the Pommon Law. By the Common Law, an accessory cannot be proceeded against, or at least convicted, until principal is convicted. 1 Hale, 623 ; 2 Dev. R. 49 ; State v. Goode, 1 Hawks, 463; 1 Murphy, 278. And the reason given is, that there can be no accessory to a theft, unless the theft is established, which can only be done by conviction of the principal felon. Ibid. And the acquittal of the person charged as principal, is conclusive evidence that no larceny was committed, and may be pleaded by the accessory. 2 Hale, 253.
    So here, the statute says, if a slave steal, &c. goods over the value of twenty dollars, the master shall restore them — that is, the stolen goods. Now there can be no stolen goods without a'thief to steal them, and the theft as to third persons cannot be established until conviction.
    The analogies of the law applies to other cases. If- a statute inflicts a severer penalty for a second offence than the first, he cannot be punished for a second offence, unless convicted of the first. 1 Hale, 705. But although a conviction is necessary, it is conclusive evidence alone of the fact of conviction, and is, perhaps, prima facie evidence against the accessory ; or may our statute possibly be prima facie against the owner. 2 Dev. R. 49. This prima facie evidence is done away with, if negro testimony was received upon the' conviction of the thief. Ibid. ; 1 Stark. 245. If receivers of stolen goods cannot, at Common Law, be convicted until the thief is convicted, because he cannot be a receiver of stolen goods until the theft is legally established against the principal, his guilt is dependent on that of the thief. So here, the liability of the master is dependent on the fact whether a felony has been perpetrated. This can in a collateral proceeding only be hown bv the record of conviction. And an acquittal would be conclusive evidence for the master. Bull. Nisi Prius, 244 ; 12 East, 411, 413.
    It may be said that the slave may run off, and may never be convicted on that account. True, but what right has the party to complain. Before the statute, he had no right at all; the statute confers a privilege, and says, upon conviction you may sue the master for your property. The effect of his complaint is, that the legislature have not done enough for him.
    The conclusion I come to in this case is, 1st. That in all cases where the liability of a third person depends upon a felony, committed by another, in a collateral proceeding to enforce the liability, the felony must be established. 2d. That in such proceedings the record of conviction is the only legal evidence of the felony. It is like statutes authorizing creditors to avoid fraudulent conveyances ; the party can only prove himself a creditor, by evidence which, as between himself and his debtor, is conclusive, to wit, a judgment. 3d. That this conviction is as to the principal conclusive evidence of his guilt ; and as to third persons, whose liability is dependent on it, it is prima facie evidence. 4th. That this prima facie liability is rebutted when the guilt of the principal is disproved ; or when the principal was convicted on slave testimony.
   Mr. Justice Clayton

delivered the opinion of the Court.

The plaintiff in error brought an action against the defendant, to recover a large sum, alleged to have been stolen by his slave. The declaration contained two counts ; thev first charged, that the sum stolen was five thousand three hundred and ninety dollars in money; the second charged it to have consisted of certain banknotes. The form of action was 'debt. To the declaration a demurrer was filed, stating various causes. 1st. That the money and goods, charged to have been stolen, are not sufficiently described. 2d. That the allegation of the conviction does not state whether it was as principal or as accessory. 3d. That no legal conviction of the slave is set out. 4th. That the action should have been case ; and 5th. That there is no statute which authorizes the action. The Court below sustained the demurrer, and gave judgment for the defendant.

The first cause of demurred assigned, is without any weight. Neither do we attach any importance to the second. Upon the general allegation of conviction, the intendment is, that it was as principal, without farther words, — and if the fact were not so, the defendant might show it. The objection to the legality of the conviction, urged as the third cause, is, that the trial of the slave was had before a Justice of the Peace, which it insisted was unauthorized under our present Constitution. Were there no clause in that instrument touching the subject, but the one cited in argument, the question might not be free from difficulty. But among its general provisions, this clause occurs in regard to slaves. “ In the prosecution of slaves for crimes, of which the punishment is not Capital, no inquest of a grand jury shall be necessary ; but the proceedings in such cases shall be regulated by law.” The legislature has thought proper to confide the trial of slaves for this offence to a Justice of the Peace, and as the punishment is not capital, we think it was competent for them to do so.

We shall next consider the last cause assigned, that there is no statute which authorizes the action. If this point be sustainable, it was useless to have considered any other. It is contended that the statute (How. & Hutch. 164, 165), on which the suit is brought, does not embrace this case, but only gives a remedy, where the master or slave is in possession of the property stolen. If this is its extent, legislation was unnecessary if it stopped at this point, for certainly upon Common Law principles, if one man has property in possession which, belonged to and was stolen from another, it might be recovered from him. We cannot give.to the statute so restricted a construction, especially as its terms are broad enough to comprehend this case. Nor can we yield our assent to the position of counsel, that the statute applies to cases of petit, and not of grand larceny. Its words might perhaps have been more explicit, but in our view they contemplate the liability of the master in either instance.

The remaining objection relates to the form of action. It is often a difficult task to discriminate between the different kinds of action, and it not unfrequently happens, that either of two forms might be adopted with equal propriety. Yet in some instances a particular form is so peculiarly appropriate, that no other could be adopted without violating the settled rules of pleading, If it were money which was stolen in this case, then no doubt the action of debt might be sustained, upon the statute. That action lies when the claim is for a sum certain, or for a pecuniary demand which can be readily reduced to a certainty ; and this is the rule in regard to actions upon statutes as.well as others. 1 Ch. PI. 112. But if it were, not money, but bank-notes which were stolen, then the 'action of debt will not lie, because in the fluctuation and changes to which they are liable, it is often no easy matter to ascertain their value. If a promissory note or sealed instrument, were given to pay a certain amount in bank notes, or other specific articles, debt could not be sustained upon it. Hicklin v. Tucker, 2 Yerg. 448; Gamble v. Hutchins, Peck’s R. 130; Campbell v. Weister, 1 Litt. 30.

The same rule must be applicable to this case, and if bank notes form the subject of this action, then debt would not lie. As there are two counts in the declaration, one charging the property stolen to be money, and the other bank-notes, the;Court upon the demurrer cannot judicially know which of the two counts is intended to be relied on at the trial. The demurrer cannot be sustained as to the first count, but may be as to the second. The judgment of the Court below is therefore reversed ; and proceeding to give the judgment which that Court should have given, we direct the demurrer to be overruled as to the first count in the declaration, and sustained as to the other.

Judgment reversed, and cause remanded.  