Mark Manning against Zachariah Norwood.
a per-on nho from anothe/fo? a limited time or purpose: a wamnty'to’rethépu^mefeanswered: and the whomeihensof™e“ ceived the negro, oove^tbffnegra" set1 úp asdtdcfc,ice caseljeing^anaiofan'uoni ancf' tonant, the latter to dlpufeatbeWüant im lessor.
This was an action of assumpsit for a breach of warranty in not returning a negro, (Ned,) hired ky defendant of plaintiff, and for damages sustained by loss of labour, &c. J The facts proven that defendant hired the negro of Mrs. Manning, upon condition that her husband, the ° A plaintiff, agreed to the bargain. The plaintiff did agree to it, and defendant took the negro to Chester, but never returned him. The price agreed on was five dollars for the trip to Charles-A t°n- The five dollars were paid by the defendwjtness who proved the demand of the negro, after the defendant returned from Charleston, in 1806, also proved that the defendant said, “ what a damn fool he must be, who would not take such a negro to Chester for half his value.” It also appeared in evidence, that the plaintiff had possession of the negro for sixteen years. The witness understood the negro was to be returned on the return of the defendant from Charleston, and that he was worth about 500 dollars. The action was brought in 1814. The defendant then offered to prove that the person who was Mrs. Manning was not the plaintiff’s wife, but the wife of one William Heron, and that the negro was the property of Mark Williams, of North Carolina. But this -was not permitted by the presiding Judge, on the ground that the evi*375denee was irrelevant to the point in issue. The Jury found a verdict for the plaintiff for seven hundred and seventy-four dollars and seventy cents. The defendant now moves for a new trial, on the following grounds:
1st. That the Judge mistook the law in rejecting the testimony, which went to show that the woman with whom the defendant contracted was not the wife of the plaintiff
2d. In rejecting the testimony which went to prove that the negro was the property of Mark Williams.
3d. In stating to the Jury that although they could not give the plaintiff a verdict for the wages of the negro, but in this form of action they could give damages over and above the value of the negro, commensurate to the injury sustained by the plaintiff by the loss of labour. And,
4th. That he mistook the evidence, in saying that the contract was proven to have been made before the action brought.
It was contended on the part of the defendant, that if he had been permitted to prove that the woman, with whom the contract was made, was not the wife of the plaintiff, that that would have destroyed all privity of contract between the plaintiff and defendant, and, of course, have defeated the action; and that by proving that the property of the negro was in Mark Williams, the contract would have enured to his benefit; that damages ought not to be recovered in this action for the loss of labour, for the defendant *376might again be liable for the wages of the negr© in another action brought to recover them, to wjjich action this verdict could not be pleaded a bar.
The opinion of the Court was delivered by
Mr. Justice Colcock.
On the first ground, I held it immaterial whether the person with whom the contract was made was the wife of the plaintiff or not; because the contract was afterwards confirmed by the plaintiff himself, and the money actually paid to him. It then became his contract: and there is such a privity between the plaintiff and defendant as will support the action.
On the second ground, I am of opinion that defendant having hired the negro of the plaintiff, he thereby acknowledged his right of property, and that he cannot now be permitted to question it. There is a strong analogy between this case and the case of a landlord and tenant: it is a universal rule, that a tenant shall not be permitted to set up an objection to the title of his landlord under whom he holds, This is not a mere technical rule, hut one founded in public convenience and policy, Strange, 818; 1 Modern, 411; Lord Raymond, 1550: and in my mind, the principle of policy and convenience applies ae strongly, (if not more so,) to personal as to real property; possession is prima fads evidence of a right. In this case, the long possession war* *377more than prima facie evidence; for, except as to minors, it was such as would have established a complete title in the plaintiff. Possession being so important, such an artifice cannot be ted to divest one of it. Again, as a rule of public convenience and policy, it should apply; for otherwise no degree of human prudence or foresight would be sufficient to protect the rights of our citizens. In fact, to permit the defendant to question the right of the plaintiff, would be to permit him to take advantage of his own wrong, in the fullest extent; but I conceive it might be admitted, without prejudice to the case, that the negro was not the plaintiff’s, for the action is for a breach of warranty in not returning him. The negro, however, was the plaintiff’s. On the third ground, I am of opinion that the charge of the Judge was correct; the Jury were bound to take into consideration the loss of the labour of the negro. It constituted as just and legal a ground for damages as the value of the negro, and is inseparably connected with it. The action is assumpsit for a breach of warranty, and the immediate injury resulting from this breach was to be compensated; for the loss of the negro involved the loss of labour. I take it for granted,* that the Jury were satisfied with the testimony of the witness, who said, he understood the negro was to be returned; but if that evidence had not been given, I, am of opinion that the hiring for a particular purpose, implied *378a warranty to return the negro, when the purpose was answered, or in a reasonable time, rj-^ ¿jeman(j was made after the defendant returned from town, and no reason assigned why the return was not made. On the last ground, I think the testimony conclusive. The demand was proven to have been made in 1806. The hiring was then acknowledged, and the money paid; the action was not brought until 1814. It is, therefore, clear that the cause of action did exist before the action brought. Upon the whole, I think the plaintiff entitled to recover. It is obvious, that the defendant had entered into a combination with the pretended owner of the negro, to gain the possession of him: he resorts to a most dishonourable mean of accomplishing his object; and his own expression, “ That he would be a d — n fool, who would not carry a negro to Chester for half his worth,” leaves no room to doubt that he was remunerated for the fraud. I am, therefore, against the motion.
Grimké, Bay, JYott, and Johnson, J. concurred.
Cheves, J.
dissenting, delivered the following opinion:
In this case I do not concur with my brethren. The pleadings have not been before us, but I understand one of the averments in the declaration to be, that the negro was the property of the *379plaintiff; because, from the report of the presiding Judge, it appears the plaintiff went into evidence of long possession to establish his title, and the Judge charged the Jury in estimating their damages, that they should find his value as a part thereof — and the Jury found accordingly. But if the pleadings did not contain this averment; if the plaintiff gave evidence of his title, and the Court charged the Jury that they should give damages as if the title were in the plaintiff, by giving damages for his value, and the Jury actually gave his value; as it regards the present question, the .case must be the same. The defendant offered to give evidence, that the negro did not belong to the plaintiff, but to another person, which was rejected by the Court; and this is a motion for a new trial, on the ground that this testimony should have been received. There are other grounds relied upon, but 1 will only consider whether the defendant ought not, under the circumstances of this case, to have been permitted to prove the title to the negro to be out of the plaintiff? If the plaintiff averred in his declaration that the negro was his property, in an action in which damages was the object, this was a material averment, and ought to have been proved by him; evidence was, in fact, given by him to support it: and can it be possible, that, on a point which it is essential the plaintiff should prove, and on which he ac*380tually srives evidence, the defendant shall not be J B permitted to give evidence in reply ? Can the vei7 same damages, all other circumstances be-equal, be justifiable where the article is, and where it is hot, the property of the plaintiff? Can it be so'immaterial, that it ought not to be submitted to \he Jury for their consideration? Can it be possible for the Court to charge, that the J ury should give damages for the value of the property, which can be founded only on the plaintiff’s being the owner of the negro, and yet the defendant be denied the right of giving evidence to show that the plaintiff was not the owner of the negro? Can it be equitable or legal that the plaintiff should recover in this action the value of the negro, as the value of the negro, to which in no form of action, and under no circumstances that I can imagine, can he be entitled, but on the ground that he is really the owner; and yet the defendant be denied the opportunity of controverting the fact? Yet the affirmative of all these questions must be admitted to be right, if this verdict be permitted to stand. It appears to be a necessary presumption, that the declaration contained an averment, that the negro was the property of the plaintiff; because he could not otherwise have claimed damages for the value of the negro. It is certain, the presiding Judge did charge the Jury to give damages for his value; *381it is certain, the Jury did give damages speeifically for his value; and it is certain, the defendant was precluded from giving evidence that the plaintiff was not the owner of the negro. think, then, it is very clear, the evidence ought to have been received; and, therefore, that a new trial ought to be granted.