Poyner v. McRae, 50 N.C. 276, 5 Jones 276 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 276, 5 Jones 276

LANCELOT POYNER v. S. H. McRAE.

A covenant, containing the terms of hiring a slave, and providing that the slave is not to go out of this State, does not mean that the party is to prohibit the slave from going out of the State at all events and under all circumstances, but to forbid him from taking the slave out of the State to work, and to bind him to the use of all proper care and reasonable diligence in preventing him from escaping beyond its limits.

ActioN of covenant, tried before Dice, Judge, at the last Spring Term of Currituck Superior Court.

The action was brought to recover the value of a slave, Ouse, who had runaway and finally escaped from service, on the following deed : “ State of North Carolina, Currituck county. $720. Twelve months after date, for value received, we, or either of us, do promise to pay Lancelot Poyner, or order, the sum of seven hundred and twentj^ dollars, as the hire of four boys by the name of Jack, Dick, Cuse and Bill, during- the year 1855; said negroes to have good winter and summer clothing, boots and socks, and said boys to be at my risk in going to and from my swamp up Roanoke, and not to go out of this State. Witness our bands and seals, January 1st, 1855.” Signed and sealed by the defendant, and two others his sureties.

The breaches assigned were :

1st. That the slave was to be at the defendant’s risk in going to and from his swamp up Eoanoke.

2nd. That he was not to go out of the State.

The slave Ouse, at the time of hiring, belonged to one James "Woodhouse, then an infant, the ward of the plaintiff; and the hiring took place at Currituck, where they resided. The defendant resided at Plymouth, in Washington county, about eighty miles from Currituck. The distance between the two places is usually travelled by passing over Albemarle Sound, from Edenton to Plymouth. The slave Ouse, with the others, mentioned, in the deed of covenant declared on, ■were hired by the defendant to work in a shingle swamp, on the Eoanoke river, in Martin county, about five miles above Plymouth, whither they were carried, and remained employed until the month of June, when Cuse applied to the defendant for permission to visit Currituck, representing that his young master was sick, and he wished to see him. The defendant gave him leave to go. The slave left Plymouth, but did not go to Currituck. Mery shortly after leaving Plymouth, he was seen and recognised in the streets of Norfolk, Va., under the control of no one. Tie has not been since heard of, and is considered as having finally escaped from his condition as a slave.

On the trial, by consent of counsel, a verdict was rendered for the plaintiff for the value of the slave, with leave to set it aside and enter a nonsuit, if the Court, on consideration, should be of opinion against the plaintiff’s right to recover.

TIis Honor decided against the plaintiff, whereupon the verdict was set aside, and a nonsuit ordered to be entered, from which the plaintiff appealed.

Smith, for the plaintiff.

Heath and II. A. Gilliam, for the defendant.

Battle, J.

A literal construction of that clause in the covenant alleged to be broken, to wit, that the slaves which the defendant had hired were “ not to go out of this State,” would make him liable to the plaintiff’s recovery in this action. But there is an ancient and well-established maxim, “ gui Tmret in Utero, Timet in corUee,” which makes it the duty of the exjjounder of a written instrument to pay more regard to the intention, as apparent from its whole scope and design, than to the strict grammatical import of any particular word or phrase. An apt illustration of this maxim may be found in the case of Clancy v. Overman, 1 Dev. and Bat. Rep. 402, in which the defendant had entered into a covenant, that he would “ teach and instruct, or cause to be taught and instructed,” a negro boy belonging to the plaintiff, “ the art and mystery of the coachmaking business.” The action being for an alleged breach of that covenant, and it appearing from the testimony, that the slave had not capacity sufficient to enable him to learn the business, the Court held that the covenant was not an absolute engagement, that he should at all events learn that trade, but only that the defendant should give, or cause to be given, faithful, diligent, and skillful instruction. So, in the present case, the meaning of the parties was not to prohibit the slaves, by the clause in question, from going out of the State at all events and under all circumstances, but to forbid the defendant from taking them to work out of the State, and to bind him to use all proper care and reasonable diligence in preventing them from escaping beyond its limits. “ It is not pretended that he took the slave in question out of the State himself, and the case of Woodhouse v. McRae, ante 1, which was an action on the case for negligence in permitting the escape of the same slave, shows that there was not a want of ordinary care to prevent the escape.

It is our opinion that the proper construction was put upon the covenant in the Court below, and the consequence is, that the judgment there rendered, must be affirmed.

Pee Cueiam, Judgment affirmed.