Governor v. Daily

GHILTON, J.' This was an action of debt, on a constable’s bond, brought by the plaintiff in error against the de [471] fendant. The declaration sets out the bond and condition, and assigns several breaches, among which is one breach a-verriugthat the defendant, Daily, as constable, by virtue ef a writ of seizure, issued by a justice of the peace, upon a complaint in the nature of. a libel against a flat boat called the Creole, did sieze upon and take said boat into his possession. That the libel was afterwards dismissed, and the said Daily refused to surrender and deliver up the said bóat t® Feny, the person for whose use this suit was brought. It» appears by a bill of exceptions, that prior to the seizure, the* boat had been in the actual possession of a slave of Feny. called Jim, and that at the time it was seized, the boat was-in possession of said slave anda white man employed by the. owner. That Daily had intrusted the custody of the boatt®. the libellant, as his bailiff, who, after the discharge of the boat, meeting the slave Jim in sight of the boat, said to him, “Jim, there is your beat.” The court charged the jury, that if the boat had been under the management of said slave, and was in his possession at the time of the seizure, a delivery t® him was a'sufficient delivery to his owner. Further, that - if the expression above used was made to the slave by the . person in possession of the boat, and was designed by him as a delivery, and an authority to said slave to take .possession of the beat, then the expression amounted to a delivery. I. It is insisted by the plaintiff in error, that this charge is erroneous as an abstract proposition; that it was not pertinent, and was calculated t® mislead the jury. The position taken by the plaintiff’s counsel, that a slave cannot be an agent, cannot be maintained. In Chastain v. Bohman, 1 Hill’s S. C. Rep. 270, it is held, the master may constitute his slave his agent, and that there is no condition, however degraded, which deprives one of the right to act as a private agent — the master is liable even for the act of his dog, done in obedience to his command. Perhaps there are no persons capable of comprehending an authority, or acting in pursuance thereto, who may not be constituted agents. Thus it is said infants, married women, persons attainted, outlawed, excommunicated, aliens, &c., may be constituted [472] attornies. 1 Livermore on Ag. 32, 33; Co. Lit. 52, a. Neither is it necessary, in order to prove the agency, to show an express delegation of authority, but the agency may be inferred from the nature of the employment. So in the present case, if the slave Jim had, as the agent of his owner, control of the boat, and was in the actual possession at the time of the seizure, his agency is presumed to continue, and a return -of the boat might well have been made to him. If, in the •mean time, his owner had assigned him another occupation, this would be evidence of a revocation of his authority. But the charge, although correct in this respect, is clearly wrong when it assumes the equivocal expression, “ Jim, there’s your boat,” if designed by the bailiff as an authority to the servant to take the boat, amounted to a delivery, whether so understood by the servant or not. The expressions used, amount to a mere pointing out, or designation of the boat, and disconnected from all other facts, confer no warrant on the slave to take possession. The question whether there was a delivery, was one of fact, and the jury could alone judge whether-the evidence sufficiently proved it. As-the intention or design of the bailiff to make a delivery of the boat was not apparent from the language used, it follows no delivery was made, unless the servant was apprized of the design and intention to make it, by the terms employed. 2. It appears, that upon the trial below, the defendant offered a witness, who was interested, by reason of his being liable over to the defendant, in the event of a recovery against him. Thereupon the defendant executed and delivered to the witness a writing, not under seal, purportinftyto release him from such liability. The witness was still objected to, but was allowed to testify, the court holding the release good. In Sigourney v. Sibley, 21 Pick. 101, it is held, a parol release, without payment or satisfaction, is no extinguishment of the debt. So an agreement to accept a less, in payment of a greater sum, is not binding, as wanting a consideration. Fitch v. Sutton, 5 East, 230 ; Heathcote v. Crookshanks, 2 T. Rep. 24. See also, Shaw v. Pratt, 22 [473] Pick. 305; Smith v. Bartholomew, 1 Metcalfe, 276; Bender v. Sampson, 11 Mass. 42. In Pennsylvania, it is held, that a mortgage may be released by an instrument not under seal. See Wentz v. Dehaven, 1 Serg. & R. 312. This decision is rested upon the authority of Martin v. Mowlin, in 2 Burr. 969, where Ld. Mansfield observes, “ whatever will give the money will carry the land along with it. It will pass by a will not executed with the solemnities required by the statute of frauds. The assignment of the debt, or forgiving it, will draw the land after it as a consequence, though it be forgiven by parol.” Whether such forgiving of the debt, would not be incomplete without a delivery of the land, and subject to the future revocation of the creditor, (3 Eq. Ab. 617,) or, whether this forms an exception to the rule of the common law, “ eodem modo quo oritur, eodem modo dissoluitur,” 5 Bac. Ab. 682, Release, A,) it is unnecessary for us in the present case to inquire. All that we need say in this case is, that a technical release must be under seal. Ball v. The Bank of the State of Alabama, 8 Ala. Rep. 590; Kennon v. McRae, 2 Porter’s Rep. 389; Dillingham v. Estill, 3 Dana’s Rep. 21. That it is an executed contract, and if not under seal, nor founded upon a sufficient consideration, so as to operate as a discharge of the demand, it does not extinguish it, and consequently the interest of the witness still subsisting, he was incompetent to testify. The record no where shows, that the court overruled the demurrer to the third plea, and hence this assignment of error is not sustained. We must intend that the demurrer to said plea was abandoned. Judgment reversed and cause remanded.