#### Thomas Pye and wife v. William Carr. *

Charleston,

April, 1848

~Where defendant, instead of hiring out a female slave who had been given to his infant daughter, retained posse&sion of her and treated her as his own; and after the daughtes~s marriage delivered to her and her husband five slaves, the issue of the said female-the Court allowed the expenses of supporting and rearing the young slaves customary in defendant's neighborhood, to be discounted against the value of the hire ~f all the slaves, for the time of his possession.

B€fore PUNKIN, Cu. ~t Walterborough, February ~S1itting~ 1847.

The bill states that complainant, Thomas Pye, intermar~ l~ied with Emeline M~ E. daughter of Dr. Wm Oarr, the de-feiidant, in the year 1844. That on the 10th of October, 1825, one Eliz. Dawson, by her bill of sale~ d~ily executed, gave, granted and anid to `complainant, Emeline M. E. Pye, then Emeline M. E. Oarr, a certain female slave, named Sue, With her isse and increase, to her the said Emeline M. .E. Carr, her heirs and assigns foreve; and referred to said bill of sale, a copy whereof was filed. The bill further states, that the said Emeline M. E. Pye, being, at that tune, an hi-fant of tender years, her father, the defendant, Wm. Oar; took the said slave, Sue, into his possession, and has kept posses-i sion of the sanie ever since, together with a large issue and increase thereof, a part of whom are named Molly, Sam, Phil~ us, Leah and infant, and used and worked the same as hi~ owli, and applied the proceeds of their labor to his individual use,-anct that complaix~ant, during all this time, being an in~ fant of tender years, remained, ignorant of her rights, and of the mode of asserting them, until her intermarriage with com~ ~lainant, Thomas Pye.

~Bi1lpays that def~endant, Williath Oar; may ~et forth the ~1ames of all the slaves aforesaid that he may be compelled to deliver up to complainants the same~ and tt account for the ~nnua1 hire of all the said slaves, from the time they came into his possession.

The defendant admits the marriage of complainants: admits the execution of the bill of sale of Sue: by EIiz. Dawson, as set forth in the bill, but denies that said Eliz. Dawson ever made a. gift or sale of said slave to cornplainant,-but that Eliz. Dawson, having consicterably overcirawn her portion of the estate of her deceased husband, ~1ohn Oarr, he, the defen~ dant, paid. the appraised value of Sue, and had the bill of sale executed by Eliz. Dawson to his daughter, in order to pro~ tect her from the heavy claims then preferred against him~ *106The defendant admits that he took possession of Sue in the (year 1825, and the following are her issue: *Molly,*born in 1826; *Sam,*bom two years and a half after Molly; and *Phillis,*born some time after; *Lea,*born in 1837, and Sue died in 1838 ; Molly also had an infant in 1844. These, defendant states, are all the issue of Sue, and he avers that he has delivered all of them to complainants. The answer further states, that he supported and educated the complainant up to the time of her marriage with Thomas Pye.

Defendant denies his liability to any account for the hire of Sue and her children, inasmuch as the entire income arising from their labor was not sufficient for the support and education oí complainant, after deducting expenses, and the bringing up of five negroes, in so short a *time;*and submits that the bill of sale of 10th October, 1825, should be regarded as a deed'of trust from Eliz. Dawson to this defendant, reserving the right to him to employ the clear income arising from the hire or labor of the slave Sue, to and for the sole benefit of complainant.

After hearing the case, his Honor, Chancellor Johnston, pronounced the following decree :

Johnston, Ch. On hearing the bill and answer in this case, and it being admitted ihat the slaves were delivered before bill filed, on motion of DeTreville <fc Perry, for complainants, it is ordered that it be referred to the Commissioner to inquire and report, what is the value of the hire of the ne-groes named in the bill and answer; for how much of it the defendant, Dr. Carr, ought to be made responsible; and how much money was expended by the defendant for the support and education of the complainant’s wife during her minority, and for the support and rearing of the young negroes, the issue of the negro Sue: and whether the said Dr. Carr was of sufficient substance and means to support and educate his said daughter, without employing, for that purpose, the wages and profits of the said negroes. It is further ordered, that all the equities of the case be reserved until the coming in of the report.

*Commissioner's Report.*

The Commissioner respectfully submits the *following*report of his investigations, under the decretal order of this honorahle Court.

First. As to what is the value of the hire of the negroes -named in the bill and answer: for how much of it the defendant, Dr. Carr, ought to be made responsible, and, how much money was expended by the defendant for the support and rearing of the young negroes, the issue of the negro Sue, he reports:

That he has been attended by the solicitors of the parties at references from time to time down to the 10th instant, and *107from the testimony before him, it appears the woman Sue came into the possession of Dr. Carr about Oct. 10th, 1825, and that she died in the summer of 1838. Her child Molly, was born early in 1826; Sam, the latter part of 1828, or beginning of 1829 ; in 1831 she had another child, that died in the month; her daughter Phillis was born about the year 1833; Leah inthe summer of 1837; and Sue’s daughter, Molly, had a child, Abram, born on the 30th of October, 1844. These negroes, with the exception of Sue, who died, were delivered by the defendant to the complainants, before the bill in this case was filed. The woman Sue, and her children, as they grew up,were employed generally about the farm.

There was no evidence of what the defendant actually made by their services, such as accounts of proceeds of crops; nor sufficient evidence on which to base a calculation of what he made, by comparing the amount of property he had when he took them in charge, and that which he had when he delivered them to complainants. Nor does it appear that there were any lands of complainant on which these slaves could be employed in making crops.

It appears that the defendant treated these negroes as if they were his own property ; that he was a prudent and humane master, and attended well to his business.

It appears further, that it is the custom, in the defendant’s neighborhood, of persons who have the management of estates consisting of negroes only, to hire them out (near to defendant’s residence) to the highest bidder; or, if no offer be made for their services on account of the condition of the ne-groes themselves, then, to him who will maintain them at the lowest rate — the owners paying taxes and doctor’s bills.

If this plan were adopted, as the rule by which to charge in this case, it would appear from the testimony of Daniel Ut-sey, Dr. William Murray, William Warner, and Rhode, that the defendant would not owe any thing to the complainants for the services of the negroes in question.

Another class of witnesses, Jacob Whetsell, David Apple-by, Alfred Appleby, and Dr. M. T. Appleby, who lived in the neighborhood, and knew the negroes, but most of whom were neither in the habit of hiring out, or paying hire for negroes themselves, gave their opinions as to what the services of the negroes is worth; The result of'a calculation based on this testimony would be,

For Sue’s wages, 11 years at $54, - - $594

Molly “ per schedule, - - 131J

Sam “ do. - - 44

- $7694

From which take estimate of taxes, - - $60 07 food for small negroes, - 360 75 clothing of do. - 74 00

*108Dr. Carr’s medical attendance, as estimated by Dr. Murray, - - 360 00 - §854|

Would leave due defendant §85

But should it be considered that Dr, Carr, acting in this case as a trustee, is not entitled to any thing for his personal services, — then after deducting the §360 above allowed, a balance of two hundred and seventy-five dollars would be found due the complainants.

Evidence was given as to the amount expended for clothing and educating the defendant, Mrs. Pye; but, as the Commissioner considers the evidence of Dr. Carr’s ability, being sufficient to shew that he could support and educate his daughter without resorting to the income of the slave in question for that purpose, he does not think it necessary tq report the amount.

AU of which is respectfully submitted,

A. CAMPBELL, *Corner, in Equity.*February 16th, 1847.

The complainants excepted to the Commissioner’s report on the following grounds :

1st. Because the Commissioner has taken the lowest estimate for the hire of the negroes, or the testimony of a single tviiness agaipst the unimpeaohed evidence of three witnesses,

2d. Because the Commissioner should have allowed the coipplainants interest on the hire of the negroes frond the end of each year until they were surrendered, *!*

3d, Because the Commissioner has allowed the defendant the sum of §360 for medical services, said to have been rendered by him to the negroes while in his possession, though there was no evidence that the negroes required his services, or that .he rendered any to them if they did.

4th, Because the Commissioner has charged for the expense of feeding and clothing the negroes, Sam and Phillis, until they were ten years of age, and has refused to allow the complainants any thing for their hire, until the one was 12, and the other 13 years of age.

5th. Because the sum of §9 per annum allowed by the Commissioner for feeding the young negroes, is extravagant and not founded upon testimony taken on the reference, February 16th, 1847.

DeTreviRRe & Perry, complainants solicitors.,

Upon the exceptions to the Commissioner’s report, his Hon- or, Chancellor Dunkin', decreed as follows :

Dunkin, Ch. The complainant, Mrs. Pye, is the daughter pf the defendant, In November, 1825, when she was an ip-*109fant, about eight months old, a negro woman, by name Sue, was given to her. She was between thirty and thirty-five years of age. She died in the summer of 1838, having, in the interval, given birth to five children, all of whom, except one who died soon after its birth, were raised by the defendant, and together with another infant, the child of Sue’s eldest daughter, were delivered over to the complainants some time after their marriage, which took place in November, 1844; this bill was filed for the delivery of Sue, with her issue, to the complaiuants, and for an account of the hire. It was proved that Sue was dead, and it was admitted that before the bill was filed, all her issue, consisting of five negroes, had been delivered to complainants.

In February, 1846, a reference of inquiry was directed to the Commissioner, reserving all the equities of the parties.— Among other things, the Commissioner was directed to inquire (f what was the value of the hire of the negroes, and for how much of it the defendant ought to be made responsibleand also, “ how much was expended for the support and rearing of the young negroes, the issue of the negro Sue,” (fee. A very minute and satisfactory statement has been submitted by the Commissioner, as the result of his investigation. Several exceptions were filed on the part of complaiuants, which it may not, perhaps, be necessary to consider in detail. The general inquiry is, whether the defendant has or has not discharged his duty; and, if not, to what extent, and in what manner should he be held responsible?

As has been elsewhere said, every case of this character, must, from necessity, depend on its own circumstances, — - The defendant was a physician, practising in St. George’s, Dorchester. When this negro woman was given to his daughter, what was his duty ? On the part of the complainants, it was insisted in the argument that it was his duty to have hired her- out, each year, to the highest bidder, and not having done so, he must account for the hire, with annual interest. What would have been the result in Nov. 1844, if this course had been adopted, must necessarily be a matter of speculation. The Court gathers from the testimony that Sue was the gift of Mrs. Pye’s grandmother; without some special direction to that effect, it could hardly be supposed that the donor intended this course to be adopted. In the absence of testimony it would rather be presumed, that it was left to the discretion of the father, to pursue such plan as might be deemed most for the interest of his child. Has the result approved the judicious exercise of this discretion? In November, 1825, Dr. Carr received one negro woman, who died in 1838. In 1844 he delivered to his daughter five negroes, one of whom had just given birth to her first child. According to the testimony, Dr. Carr “ is a prudent and hu*110mane master, and (hese negroes were treated as if they were his own property.” The Commissioner adds, “ it appears further, that it is the custom, in the defendant’s neighborhood, of persons who have the management of estates consisting of negroes only, to hire them out (near the defendant’s residence) to the highest bidder; or, if no offer be made for their services, on account of the condition of the negroes themselves, then to him who will maintain them at the lowest rate, the owner paying taxes and doctor’s bills.”

This seems to come up to the serverest rule of duty on which the complainants insisted. “ If this plan were adopted (proceeds the report) as the rule, by which to charge in this case, it would appear, from the testimony of Daniel Ut-sey, Dr. William Murray, Wm. Warner and-Rhode, that the defendant would not owe any thing to the complainants for the services of the negroes in question.” It is true, that another class of witnesses thought their services worth more ; but, says the Commissioner, “ most of these witnesses were neither in the habit of hiring out or paying hire for negroes themselves.” On examination of the evidence, the conclusions of the Commissioner seem well warranted; many circumstances must be taken into consideration; something depends on the custom of the country ; it seems it is the habit in St. George’s to treat with much indulgence a woman like Sue, giving birth to a child every two years. The witness, Wm. Warner, who was trustee for an estate, consisting of negroes; said, that for a woman having five children, he had, in a succession of 5 or 6 years, paid from $ 18 to $40 per an-num, besides their services, for their rearing, &c.; that he paid doctor’s bills and taxes, and furnished blankets every two years. Dr. Wm. Murray said he had paid thirty-six dollars per year for the support of a negro woman and three children, and this at public outcry to the lowest bidder; other witnesses of respectability and experience who lived in the vicinity, concurred with these witnesses, that taking the series of years together, the defendant .ought not to pay any thing for hire. In addition to his character for prudence and humanity, the defendant was a physician in excellent repute. The Court is of opinion that the interest of his child was best promoted by the course which he adopted, arid that his stewardship was faithfully and fully discharged, when he delivered over the five negroes, after the marriage of his daughter.

The bill must be dismissed ; each party to pay his own costs.

Complainants appealed on the following grounds :

1st. Because the Chancellor sustained the report of the Commissioner, who took the lowest estimate for the hire of *111the negroes, on the testimony of a single witness, against the unimpeached evidence of three witnesses.

2d. Because the Chancellor sustained the report of the Commissioner, allowing the defendant the sum of three hundred and sixty dollars for medical services, said to have been rendered by him to the negroes, while in his possession, although there was no evidence that the negroes required his services, or that he rendered any to them if they did.

3d. Because his Honor erred in deciding that defendant was not liable for the hire of the slaves of complainant; whereas complainants submit, that he was not only liable for hire, but also for interest on the hire from the end of each year.

4th. Because his Honor, in making up his decree, has relied on the testimony of Wm. Warner, Dr. Wm. Murray and other witnesses (who stated that they did not know the ne-groes) against the testimony of Jacob Whetsell, Dr. Apple-by, Alfred Appleby and others, who knew the negroes, and testified from their knowledge of the same.

5th. Because his Honor has overruled the decree of Chancellor JohNstoN, which sustained the bill and ordered a reference.

6th. Because the decree of his Honor is, in other respects, contrary to law, equity and the evidence.

DeTreville & Perry, tor complainants.

J. D. Edwards, for defendant.

*

 This case was decided ~.t the january Term, but the Brief was not obtained in time to put it in itt proper place.

Johnston, Ch.

delivered the opinion of the Court.

This Court perceives no error in the decree of the Chancellor, and it is ordered that the same be affirmed for the reasons therein contained, and the appeal dismissed.

The whole Court concurred.

*Decree affirmed.*