Wilder v. Creecy, 33 N.C. 421, 11 Ired. 421 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 421, 11 Ired. 421

THOMAS C. WILDER vs. RICHARD B. CREECY & AL.

Where a person hired a negro to another, and one of the stipulations at the hiring was, ‘‘that the negro should not go by water,” and the person, who hired the slave, permitted others to use him and by them he was employed on the water, in consequence of which he lost his life, Held, that these latter persons were not answerable in damages, for the loss of the slave to the original hirer; for the stipulation was merely personal, and in no way attached to the slave.

Appeal from the Superior Court of Law of Chowan County, at the Fall Term 1S50, his Honor Judge Caldwell presiding.

The action is trover for a negro slave, Alfred, with a special count in case on the following facts, which appeared at the trial on not guilty pleaded. One Fenill hired the slave from the plaintiff for the year 184t>, and one of the terms of the hiring was, that the negro “should not go by rvater.” Fenill placed this and other slaves for the year under the chaage of one Carter, his brother in law, at a place situated on Albemarle Sound, and, in the month of December of that year, the defendants, Creecy and Pool, hired Alfred and some other slavtes from Carter to assist in getting out and delivering some corn (which they had at, Carter’s, and had sold) on board a vessel lying at anchor, about three or four hundred yards from the shore. Those defendants put the hands under the other defendant, Gregory, and he, by the consent of Carter, sent Alfred on board the vessel to assist in stowing away the corn in the hold, and he worked there one day and went on shore at night. The next day he returned ■to the same employment, and worked at it until evening; when the Captain of the vessel, then being onshore, stated to Carter, that he thought there was about to be a storm, and said that he would go aboard, and send Alfred ashore, but Carter told him he need not send the boy ashore, as he might be of service in case a storm should come on. The Captain went aboard and did not send Alfred ashore,and a storm came on that night, and during its continuance the slave died from fright or cold, or their combined effects. On the part of the plaintiff objection was made to the admission of the conversation between the Captain and Carter, but the Court received it. The plaintiff gave evidence that the hiring by Fenill was as the highest bidder at a public hiring, and that the defendant, Pool, was at. the place of hiring, when the terms were made known, and hired another negro at that hiring.

The Counsel for the plaintiff moved the Court to instruct the jury, that, if they believed the defendants knew of the terms, upon which Penil! hired the boy Alfred, it was a wrongful act in them to send him aboard the vessel, for which the plaintiff was entitled to recover. But the Court refused to give the instructions payed for, and directed the jury that, upon the facts, as stated, the plaintiff was not entitled to recover. The plaintiff then submitted toa non-suit and appealed.

Heath, for the plaintiff.

A. Moore, for the defendant.

Ruffuv, C. J.

The opinion of the Court concurs with that given by his Honor. By the hiring the property vested for the term in the hirer, and the plaintiff had the reversion only. The stipulation, that the slave was not to go by water, was not a limitation to the estate of the hirer, whereby it wrould be determined and the property be revested in the plaintiff, nor even a condition, which would have authorised him to determine the hiring and resume the possession, but merely an engagment of the hirer not to expose the slave to the hazards of employments on the water. As the plaintiff had but the reversion at the time of the slave’s death, that by itself defeats the count for trover. For much the same reasons the other count must also fail. As a stipulation it was personal merely, and did not attach to the slave, in the nature of a covenant running with land. The knowledge or ignorance of its existence could not make it more or less binding upon one not a party to it, as the assignee of the property can in no degree be affected by it. It would expose third persons to great damage, and, indeed, prevent much of the traffic of life, if they were charged with the consequences of collateral engagements of this kind, between persons, who let or take on hire; and therefore their obligation is wisely restricted to the parties themselves. TheJ evidence objected to was competent to show, that the negro was on board the vessel by the direction, or account of Carter, the person in possession.

PER Cueiam, Judgment affirmed.