Stanley v. Nelson

WALKER, J. There are three questions, arising from the charges given and refused in this case, the decision of which is necessary and appropriate. Those questions may be thus stated: 1. Can a slave act as. the agent of his owner, or hirer? 2. If the owner or hirer of a slave, in 1852, suffered him to go at large, and to act for himself as a freeman; and if, while so going at large and acting, the slave made a contract for the hire of another slave, to work with him, for a stipulated sum, for which a white man gave his bond, is that bond a void instrument? . 3. If the slave, while going at large and acting for himself, by the owner or hirer’s consent, as above stated, appropriated debts in his favor for services rendered by him, to the payment of another debt, [518] which the slave owed the payee in said bond, has the maker of the bond a right to have the debts so appropriated credited upon his bond ? The first question we decide in the affirmative, on the authority of the case of the Governor v. Donly, 14 Ala. 471; see, also, Powell v. The State, 27 ib. 51. As the bond sued upon is dated 2d January, 1852, its validity is determinable by the law as it then existed. The statute law of this State, as it existed in 1852, which it is necessary to notice, may be found in Clay’s Digest, §§ 12-13, page 541. Section 12 is as follows: “If any master, or owner of a slave, shall license such slave to go at large and trade as a freeman, the master or owner shall forfeit and pay the sum of fifty dollars, one moiety to the use of the person suing for the same, and the other moiety to the use of the State; and if, after conviction, such slave shall be so .found going at large and trading, the master or overseer (?) shall again be liable to the like penalty, to be recovered as aforesaid; and so,as often after such conviction as such slave shall be found so going at large and trading.” The part of section 18 pertinent to the question to be decided, is as follows: “ If any person shall permit his or her slave to go at large, or hire him or herself out, every person or persons so offending shall forfeit and pay to the úse of the State the sum of fifty dollars.” These statutes had their origin in a wise and conservative legislative policy. Their purpose was, to prevent the demoralization and corruption of slaves, resulting from a withdrawal of discipline and restraint from them, and to prevent the pernicious effect upon the slave community of the anomalous condition of servitude without a master’s control. If the owner or hirer of a slave permits him to go at large, to make contracts,, and to carry on business as if he were a freeman, notwithstanding the slave may make compensation for this privilege, the law, as it existed in 1852, is not.only violated in its letter, but in its wise policy. The act of:the negro, in going at large and contracting for himself by the owner or hirer’s permission, must be deemed a violation of the same law, because it is that which subjects the master to a penalty. It can not be lawful in a negro to do that by the master’s [519] permission, which, it is unlawful in the master to permit him to do. The law condemns the going at large and trading of a slave, as a freeman, by the license of his owner; and the acts of the slave, done by such license, aro illegal, notwithstanding the penalty is visited upon the person giving the permission, and not upon the slave. Section 13, in addition to what is copied above from it, also provides, that any person may apprehend a slave, going at large, or hiring himself out, and carry him before a justice of the peace, who may commit him to jail. This is persuasive to show that the legislature designed to condemn as illegal the act of the slave, as well as the permission of the owner. A contract, made directly upon a consideration which is illegal, is void. — Chitty on Contracts, 571; Tennison v. Martin, 13 Ala. 21; Renfro v. Heard, 14 ib. 24; Branch Bank v. Crocheron, 5 ib. 250; Smith v. Ala. Life Ins. & T. Co., 4 ib. 558. The law is the same, although the law which is violated provides a penalty for the-act done, and does'not in terms prohibit it. — Parsons on Contracts, 380, 381, 382, and note a on page 382, which collates the American authorities. It can make no difference, that the license to go at large and contract as a freeman is given by the hirer instead of the owner of the slave, for the hirer is, for the term of the bailment, the owner of the negro for all the purposes of the statutes cited. By the principles which we have laid down, we are led to the conclusion, that the second question propounded in the outset of this opinion must be decided in the affirmative; or, in other words, if the bond sued on was given directly in consideration of a contract, made with a slave, to hire a negro to the slave, while the slave was by the permission of his owner or hirer going at large and contracting as a freeman, it is void. The court charged the jury, that if the bond sued upon was given as specified in the plaintiff’s answers to interrogatories, the plaintiff was entitled to a verdict. The effect of this charge was, that the contract, as set forth in the testimony elicited upon a discovery obtained from plaintiff, was one upon which a recovery might be had, and the jury must find for the plaintiff if the evidence, in the case showed that [520] the contract was as set forth in that particular testimony. All the evidence in the case is set out in the bill of exceptions. The charge given can only be maintained, as a correct exposition of the law, in the event it is found that the testimony obtained by discovery from the plaintiff did not warrant any inference fatal to his right 'of recovery in the suit. It is an invasion of the province of the jury for the court to instruct them, to the prejudice of a party, as to the effect of evidence susceptible of a construction different from that placed upon it by the court. — Hollingsworth v. Martin, 23 Ala. 591; Dill v. The State, 25 ib. 15. The court most probably gave the charge excepted to, upon the supposition, that the testimony afforded by plaintiff’s answers established the fact that the slave, in making the contract, acted as the agent of his hirer or owner. We do not intend to determine, what is the -proper construction of the testimony; but we do decide, that the court was not authorized to assume that no inference adverse to the plaintiff’s right of recovery could be drawn from it. The question should have been left to the jury, whether, in making the contract for hire, the slave was acting for and as the agent of his hirer or owner, or whether he was acting for himself, when he was going at large and contracting as a freeman by the license or permission of his owner or hirer. The second charge asked by the defendant was altogether consistent with the principles laid down in this opinion, and the court erred in refusing to give it. After a slave has, with his owner or hirer’s consent, made acquisitions by his labor, and, in the absence of a revocation of such consent, has absolutely disposed of them, it would not be competent for the master even to reclaim them. — Shanklin v. Jones, 9 Ala. 271. Still less could any third person reclaim such acquisitions, after they had been so disposed of by the slave, for the purpose of having them credited on a liability incurred by him for the benefit of the slave. The slave appropriated an account and note given for his services, while going at large, to the payment of a debt which the plaintiff held on the slave, aside from the bond sued on. The defendant insisted that the amount of the note and account so appropriated should* be credited on the bond sued on. We [521] think be was not entitled to a credit asked upon snob a state of facts, and that tbe court properly so ruled. In our opinion, tbe negative of tbe third question stated at tbe commencement of this opinion is tbe law, and tbe last charge asked by tbe defendant was properly refused. Tbe judgment of tbe court below is reversed, and tbe cause remanded.