Williams v. Moore

1. If a slave be sold, upon condition that the buyer, not liking, may return him in a given time" and, while in the buyers possession, but not thro' his neglect, he be as value; the buyer may suse to keep Jiim, and is able for the loss, unless he expressly agreed to be so liable. But «he buyer is responsible, without such i'or ^ordinary fsfitheMed to take such care of the slave as ¡my mo" prudence ofd governing foaeems.

THIS was an action on the case, by the appellant against - the appellee, m the Superior Court of. law ior Harrison County. The declaration contained two counts. The first was “ t^at> whereas, upon the 6th day of February, 1807, aj; the' aforesaid county, the defendant entered into a J 7 verbal agreement with the plaintiff for the purchase, by the defendant of the plaintiff, of a negro woman slave, named Peg, at the price of 300 dollars, on condition that, ^le defendant did not like the said slave, he was to her to the plaintiff in the space of two or three 1 1 weeks; and, thereupon, the said defendant, on the day, year, and place aforesaid, received of the plaintiff the said slave, Peg, under the agreement aforesaid; and w^e lhe said slave was in possession of the defendant, to wit, upon the 6th day of February, 1807, by being . exposed to the severity of the weather, her hands were so frozen that she lost several of her fingers, and is otherwise disabled,-so that she is of little value: and. thereupon the defendant refused to keep the said negro, r r 0 0r to compensate the plaintiff for her in any manner whatever, although so to do the defendant, afterwards, to wit, the 1st day of April, 1807, and often since, in year , last aforesaid, by the plaintiff, hath been re» quested ; by which the plaintiff, during the whole time aforesaid, lost, not only the service of the said negro slave, and the future use and value of her so long as she may live, but also hath been at great expense and trouble in the maintenance and cure of the said negro slave.” The second count resembled the first, except • that it contained averments that the slave was “ sound and in good health” when delivered to the defendant, and that the injury she sustained was by “ his negligence.” The defendant pleaded “ not guilty,” And on the trial of the cause, the counsel fpr the plaintiff moved the Court to instruct the jury, “ that if they were of opinion that the negro mentioned in the declaration was purchased by the defendant, of the plaintiff, on condition that if, after keeping her two or three weeks, he did not like her, lie was to be at liberty to return her, that, in such event, the defendant, to entitle him to the benefit of the contract, was bound to return her in the same condition he received her; even although the injury she sustained was not impu - table to the neglect of the defendant. ” But the Court refused to give the jury such instruction, and instructed them, ££ that no bailee is responsible for accident, unless it be expressly agreed between the parties to the contract that he shall be so liable ; that, when the bailee alone is benefited by his contract, he is bound for slight neglect; and that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.” To which opinion of the Í kmrt, “ refusing the instruction askedf the plaintiff filed a hill of exceptions. Verdict and judgment for the defendant. The plain» tiff appealed. The Attorneyf. General, for the appellant, insisted, in the first place, that the appellee was not released from his bargain. The clear intention of the parties was, that the negro was to belong to him from the time of the sale, unless he made his election to return her in two or three weeks; during which time he took her upon trial. An accident happening in that time could not defeat the bargain. Nothing could have this effect, but his returning her within the time, and saying he did not like her qualities. 2. The Court’s instruction to the jury, that no bailee is responsible for accident, without an express agreement to that effect, was plainly erroneous; for the law is otherwise in relation to common carriers /(a) and to innkeep¿rs.(a) It may be said that this was not the puiut iri controversy; that the instruction given was a mere opinion upon an abstract question; but, however irrelevant in itself, it might have had the effect of improperly influencing the minds of the iury. No evidence of illegal, ' J . 1 character ought to be confided to the jury;(b) and the principle equally applies to instructions from the Court* There is no question that a bailee is not liable for accidental injury to a negro, unless it appear to have been occasioned by his own fault. According to the bargain, the defendant had a right to return the negro, if he disliked her for any cause. His liking was to continue during the whole time allowed him to make his election; and her becoming frost-bitten was a sufficient reason for his disliking her. At any rate, it could not deprive him of his right of election: that right was absolute in him; so that he was not bound to assign his reason for dislike. 2. A bill of exceptions is to receive a reasonable construction, and to be taken, by intendment, to support the judge’s opinion, unless the contrary appear. When the Court says, in general terms, “ no bailee,” it ought to bo taken with reference to the subject matter, as intending “ no such bailee as that described in the declaration.” The word “ bailee” may be understood in a general or restricted sense : in its general sense it does not apply to carriers and innkeepers, who are responsible by custom of the realm : taken in a general sense, a bailee is nut liable without negligence. The purchaser’s liking the slave, must be understood with reference' to her qualities at the tinte of the contract; not to any change, by accident, afterwards. Where it does not appear that a point is relevant, the judge is not compelled to give the instruction; or, if he gives a correct instruction upon such point, it is not error,. But the present question is, whether an erroneous instruction upon an abstract question be not sufficient error to set aside the verdict. This instruction was clearly erroneous. The broad proposition, “ no bailee,” &c., cannot be understood as pointing to any particular bailee; but must comprehend bailees of every description,