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tiffs' right of action. In the case of Payne v. Rodden, 4 Bibb's Rep. 304., it was held by this court, that the declaration against the vendor of a chattel upon his implied undertaking that he had title, was sufficient without an averment of a recovery by the right
We are of opinion, that the plaintiffs' cause of action accrued on the sale and delivery of the slave, and that the circuit court correctly instructed the jury, that the statute of limitationsbegan to run from that time. Judgment affirmed.
4. Mockbec's ADM'R. V. GARDNER et al. June T. 1828. 2 Har.
& Gill's Rep. 176. There ex Trover for a slave. The plaintiff offered to prove by one Duists in every sale of vall, that the plaintiff's intestate purchased of the witness, as the personal property
administrator of William Warfield, the negro, and that at the time an implied of the death of the intestate, was his property, and at the time of warranty of title-the the sale was part of the assets of the said intestate. The defendare trustees ant objected, that the witness was incompetent to prove that the
negro at the time of the death of Warfield, was his property and at the time of sale was part of the assets of the intestate's estate. The objection was sustained by the court. Dorsey, Ch. J. And the plaintiff excepted.
Per Cur. Archer, J. It is a general and familiar principle, that there exists in every sale of personal property an implied warranty of title, and that the vendor cannot be a witness to sustain the title of the vendee. But here the witness was a mere trustee; and in that capacity sold the property. Executors, administrators, and other trustees, are exceptions to the rule; and a sale by them does not imply a warranty of title, unless there be fraud or an express warranty and eviction. Judgment reversed.
5. FORSYTH v. ELLIS. July T. 1830. 4 J. J. Marshall's Rep.
298.; M.GEE v. Ellis & BROWNING, 4 Little's Rep. 244. ; PEPPER v. THORNTON, 6 Monroe's Rep. 27.; HEAD v.
M.DONALD, 7 Monroe's Rep. 206.
M'Gee obtained judgment against Browning, and delivered a fi. haps: any fa. to Forsyth for levy, which was executed upon two negroes in
the possession of Browning, and sold them to Ellis, he being the highest bidder. Browning sued Ellis in detinue, and recovered the
negroes. Ellis, not having paid off the sale bond, filed a bill to enjoin the payment, and the circuit court perpetuated the injunction. The court of appeals reversed the decree, and suggested that either Browning or the sheriff was liable; but that M'Gee, notwitstanding the foregoing facts, was entitled to the amount for which the negro sold. Ellis then sued Forsyth, and recovered judgment for the price of the negro, and the sheriff brought this writ of error.
Per Cur. Robertson, Ch. J. The question is, whether the sheriff is responsible to the purchaser for any defect of title. When, an individual sells personal property as his own, the law implies a warranty of title. But this rule does not apply to sales by an agent, whether he be a public or private agent. He does not sell the property as his own, and, generally, can be made responsible only for actual frand, or gross negligence. In sales under execution, it seems to us, that it cannot be, nor has ever been understood, that the officer, either personally or officially, guarrantees the title. And the fact, that no case is reported in which the sheriff was ever sued for an implied warranty, ought to have persuasive, if not de. cisive influence.
KETTLETAS V. FLEET. Feb. T. 1811. 7 John's. Rep. 324.
The owner of a slave gave a written promise to manumit him in Selling a 8 years,
and delivered it to a third person. The court held, that lutely, where the master sold the slave absolutely for his full value, after who is at a giving such a written covenant to a third person, and did not state entitled to to hinı the fact of there being a written covenant, and the vendee a violation
of the imbeing ignorant of its existence, the concealment was a fraud, and plied warvacated the contract.
ranty of ti
chaser of a
7. CROMWELL V. CLAY. Fall T. 1833. 1 Dana's Rep. 578.
Cromwell sued Clay in detinue, for a slave which one Orear The pursold to Cromwell at a time when Piper and Waugh bad suits slave while against Orear, for the purpose of subjecting the slaves to the pay- a suit is
pending to ment of his debts. Clay took the slaves into his possession as subject it to deputy sheriff, on an order by the chancellor. And the question dor's debts,
takes the was, whether the deed of a purchaser pendente lite is void
dent on the event of the
Per Cur. Underwood, J. The bill of sale from Orear to Cromwell was not absolutely void, as the circuit court supposed. As the chancery suits had not yet been decided, it could not be affirmed that the complainants would certainly obtain decrees subjecting the slave to the payment of their demands. If the bills shall be dismissed, tehn the bill of sale is unquestionably good. Nor does it lose its efficacy until the decree is pronounced in favor of the complainants. In the mean time, the title of the slave will vest under it in Cromwell.
If a decree is rendered subjecting the slave to the payment of Orear's debts, such decree will avoid the bill of sale, to the extent of the debts. If a surplus is left on the sale of a slave, after paying the debts, such surplus might be claimed by Cromwell. The bill of sale is liable to be avoided by the decree, but it is not void. If the suit had been against Orear, the result would have been different. He could not protect himself by averring the pendency of a suit against him for the slave. Here the possession of the sheriff is under the authority of law, and the owner, having been devested of the possession, by an order of the chancellor, cannot reclaim it but by leave of the court.
(VIII.) HIRING OF SLAVES.*
GEORGE v. ELLIOTT, December 1806. 2 Hen. & Munf. Rep. 6. If a slave Elliott sued George on his bond for the hire of a negro slave for hired by
one year,and recovered judgment. George filed a bill, and obtained become
an injunction, alleging, that the slave in a few days after the hiring sick, or runs away, became sick, and soon after died. the hirer must pay the hire ; but it is otherwise
* Slaves are considered personal property, and subject to the rules and regulations of if the slave the use and possession, and also the sale and transfer of this kind of property. The owner die without
can, of course, sell, mortgage, or hire out the property as he pleases, subject only to
those rules which society has established for the regulation and government of personal the hirer ; for in such estate. But however unlimited the owner may be in the use of the thing, the slave case the
himself cannot hire himself out in any of the states. The statutes of the states contain must lose
a prohibition, with a penalty against the slave going at large, or hiring himself out. By the hire the digest of the laws of Alabama, 1836. p. 393. Ø 14. it is declared, that if any perfrom the
son shall permit his or her slave to go at large, or hire him or herself out, every perdeath.
son or persons so offending shall forfeit and pay $50; and the slave may be committed, and the owner prosecuted. And, by the Rev. Code of Virginia, vol. 1. p. 442.,
any fault of
Per Cur. The only question in the case is, whether the plaintiff should be allowed a credit on his bond from the time of the negro's death to the end of the year, for so much as the hire for that time would amount to. The court understands the rule to be, where one hires a slave for a year, that if the slave be sick, or run away, the tenant must pay the hire ; but if the slave die without any fault in the tenant, the owner, and not the tenant, should lose the hire from the death of the slave, unless otherwise agreed upon. By pursuing this rule, the act of God falls on the owner, on whom it must have fallen if the slave had not been hired ; from which time it would be unreasonable to allow the owner hire. Hire ! for what? for a dead negro! It would be rigid enough in the case of a special agreement; but where there is no such special agreement, to insist upon the hire appears to this court unjust in the extreme. See 1 Ruth. Inst. 250, 251 ; 1 Fonbl. Eq. 376.; Powell on Contracts, 446.
2. Young v. Bruce et al. Spring T. 1824. 5 Little's Rep. 324. ;
S. P. HARRIS v. NICHOLAS, 5 Munf. Rep. 483. Covenant upon the following instrument:
hirer of a On or before the 25th of December, 1819, we promise to pay slave coveAaron H. Young $120, for the hire of a negro man named Dick, return him
at the end from this time till the 25th of December, 1819, to be returned well
of the year, clothed at the time. As witness our hands and seals this 29th of he is' dis
charged December, 1818.
from the John & HORATIO BRUCE.
if the slave The declaration averred, that the defendants had not paid the dies before money, or returned the slave. The defendants pleaded, that by inevitable accident the slave Dick was drowned in the Ohio river, whereby they were prevented from returning the said slave on the day, &c.
To this plea the plaintiff demurred. The court gave judgment overruling the demurrer,
$ 81, it is declared, that a slave going at large, or hiring himself out, may be committed by a magistrate, and may fine the owner, or may order the slave to be sold. And also by the Rev. Code of Mississippi, 374. Ø 25, 26., the owner is prohibited from licensing his slave to go at large and trade as a freeman, or hiring himself out. Provision is made whereby the slave may be seized, the owner fined, and, in certain cases, the slave may be sold. And by 0 20. any citizen may seize a slave offering articles for sale, and take him before a justice of the peace, and the justice shall order the slave to be whipped, and forfeit the article to the person apprehending the slave. Similar provisions are to be found in the statute books of those states where this species of property is recognized.
Per Cur. Owsley, J. We do not construe the instrument to insure a return of the slave in case of his death. It was no doubt competent for the parties to contract upon terms most acceptable to themselves, and it is incumbent upon the court, to effectuate the contract according to what may be their supposed intention ; but it is not inferrable from any thing contained in the writing upon which the action is founded, that the contracting parties intended to insure a return of the slave in case of his death. The writing contains no express stipulation to that effect, and there is not such an inadequacy between what may be supposed the value of a year's service of the slave, and the price agreed to be paid by the Bruces, as to afford any rational inducement from them, in addition to the hire which they were to pay, to insure the life of the slave.
3. KEAs v. YEWELL. Fall T. 1834. 2 Dana's Rep. 348. S. P. SIN
GLETON V. CARROLL, 6 J. J. Marshall's Rep. 528.
Yewell filed a bill against Keas to foreclose a mortgage on two Or where, by a bond slaves, and upon an order of the court, Keas gave bond to have of the na: the slaves forthcoming to answer the decree. Upon the final de
cree, one of the slaves not being forthcoming, according to the the slave bond, Yewell sued Keas and his sureties on the bond. The defendon the condition of a
ants pleaded that the slave ran away between the execution of the decree, and bond and the rendition of the decree, and that they could not reaway. claim her. Verdict and judgment for plaintiff, and the defendants
Per Cur. Nicholas, J. In our estimation, the plea constitutes a valid defence to the action. The casualty by which the slave was lost is a peril incident to the very nature of such property ; and therefore in contracts and covenants concerning such property, that peril should never be presumed to have been intended to be guarded against, unless so expressly stipulated. It has accordingly been held by the court of appeals in Virginia, and by this court, that the hirer of a slave vas excused, by the fact of the slave having run away without his fault, from his covenant to return the slave at the end of the year. In Singleton v. Carroll, the covenant of the hirer was as express, unambiguous, and unconditional, as that of the parties here. The same principle which exempted the hirer from responsibility there, must relieve the obligors in this bond also. The principle is laid down in that case, that the loss is not to be considered as provided against by a general covenant,