Nelson v. Bondurant

GOLDTII WAITE, J. —The demurrers to the several counts in the declaration were properly overruled. The aver’-ments in the first count, that the defendants below were duly prosecuted before a justice of the peace of the county for the killing of the slave, and entered into a recognizance for their appearance at the next Circuit Court to answer the supposed felony; and that at such term they were duly prosecuted therefor before the grand jury, who diligently inquired into the charge, and found no bill against the defendants, or either of them, we regard as a sufficient averment of the prosecution. It is not necessary to aver with particularity everything that was done, or to state what witnesses appeared, or what testimony was offered. If there was, in fact, no prosecution, or it was not carried on in good faith, or was not successful by reason of collusion between the parties, the defendants could obtain the benefit of these matters by proving the facts. The allegation that they were duly prosecuted before a tribunal having jurisdiction, is sufficient. What we have said in relation to the first count, applies equally to the second, which charges in the same language the prosecution of the appellants before the grand jury. In relation to the demurrer to the second plea, it is only necessary to observe, that we are satisfied that the facts alleged in that plea constituted a full defence to the action ; yet, as the record shows that the defendants had the full benefit of this plea by the evidence offered to the jury under the other pleas, the sustaining of the demurrer is not, under such circumstances, a reversible error.—Goodwin v. McCoy, 13 Ala. 271. The statement in the record to the effect that a demurrer was filed and sustained to the fifth plea, we presume must be a clerical mistake, as there is no such plea ; and being left entirely in the dark as to what plea the demurrer applied to, we are unable to pronounce upon the judgment of the court in sustaining the demurrer, to any other than the plea we have already noticed* [351] As to the charge of the court, which, when taken in connection with the evidence on which it was based, may be regarded as asserting the proposition, that trespass could be maintained by the owner of a slave, for an injury causing his death, done by a person in possession under a contract of hiring, we think there was no error. It is true that the gist of the action of trespass, for injuries to real or personal property, is the damage done to the possession ; but a constructive possession is all that the law requires, and it is deemed constructive, when the party who brings the action is the owner at the time the injury is committed, and has as such the right to the possession at that time; as in case of the destruction of property by a common bailee, or cutting down trees by the tenant at will, (Co. Litt. 57 a; ib. 200 b,) in which cases, says Mr. Grecnleaf, the interest of the wrongdoer is thereby determined, and the possession immediately reverts to the owner.—2 Greenl. Ev. § 615. Where, however, the plaintiff’s right to the property exists only in remainder, or reversion, the action must be case (1 Ch. Pl. 167); for the reason, that until the event happens, or the period arrives, which invests him with the actual right of enjoyment, he cannot, under his title as remainder-man or reversioner, be entitled to the possession. But if he occupy a position which gives him the right to resume the possession of his property upon the commission of the wrongful act, then, the instant this right accrues, he is regarded, upon the principle we have already adverted to, as having the constructive possession, so as to authorize him to maintain trespass for the act. The application of this doctrine to the particular case before us, is readily perceived. In every contract of hiring, the owner transfers no greater rights in relation to the slave than he himself possesses ; and in every bailment of this character, a reservation is implied, requiring the bailee to treat Mm with humanity, and to discharge those duties which the law regulating the relation of master and slave requires from him. If he fails to do this, the contract is broken, and the owner can resume the possession.—Rasco v. Willis, 5 Ala. 38; Hogan v. Carr, 6 Ala. 471. And if the act is forcible, as well as unlawful, the owner can maintain trespass ; the bailee not being entitled, as a right, to the possession for the [352] remainder of the term.— Gillian v. Senter, 9 Ala. 395; Hilton v. Caxton, 2 Bail. 95. It appears from the bill of exceptions, that the court instructed the jury, in effect, that if the slave belonging to the plaintiffs, being first so secured as to be unable to resist, was whipped in that state by the defendants, and the whipping thus inflicted was one of the causes of his death, they were liable for his value. This was clearly erroneous. In all this class of cases, the question of liability must be referred to the character of the act. If lawful, there can be no liability ; while, if unlawful, the actor is always liable to the injured party, at least to the extent of the injury actually sustained. The owner of the slave has the right of punishment and correction, being responsible to the law for its abuse; and in hiring to another person, in the absence of any express stipulation, he delegates to such person the same rights in this respect which he himself possesses; and the master by hire is only liable when he exceeds or abuses the authority which the owner and the law concede to him. He has the right to correct, but he has no right to be barbarous or cruel; and if the punishment inflicted, when considered with a just regard to all the circumstances which surround it — the character of the offence, and the offender ; the necessity of maintaining discipline and enforcing obedience — is either the one or the other, it is denounced by our penal code (Clay's Dig. 431, § 1), and being unlawful, he is a trespasser ab initio, and subject to damages at the suit of the owner. The charge seems to lay some stress upon the fact of the slave being secured, so as to be unable to resist at the time of the whipping ; but this cannot in any way affect the rights in respect to correction. If it is administered so as not to be obnoxious to the law — so the punishment is not cruel or barbarous — there is no liability-even should death ensue. The charge of the court was erroneous, as it held the appellants responsible for the result of the act alone, without making their liability depend upon the illegality of the act. As the views we have expressed will probably be decisive of the case on another trial, we consider it unnecessary to pass upon the other questions raised upon the present record. Judgment reversed, and cause remanded.