#### David S. Henry, et al., *vs.*Cornelius Graham, Administrator, et al.

An administrator who hired slaves to the Wilmington and Manchester Railroad Company to be employed npon their road in North Carolina, as track *hands:*— Held, not to be liable for the slaves — they having been killed without fault on the part either of the Company or the administrator.

BEFORE DARGAN, CH., AT MARION, FEBRUARY, 1857.

-'This case came before the Court on exceptions to the report of the Commissioner, under an order of reference as to the accounts of the defendant, administrator of B>. J. Scarborough. So much of the report as relates to the only question which was taken to the Court of Appeals, is as follows.

“ It was proposed to charge the administrator with the value of two slaves, viz: Guinea Jack, appraised at six hundred dollars, and Tinker Jack, appraised at eight hundred dollars, under the following circumstances: In 1855 the administrator hired these negroes to the Wilmington and Manchester Railroad as track hands, and during the course of the year they were both killed. Guinea Jack, it is supposed, placed himself in the rear of the mail car, without the knowledge of the conductor, and in jumping off, while the train was in motion, fractured his skull; he was found near shanties shortly after the passing of the train in such position as would indicate that it occurred by his jumping off the train while in full speed. Tinker Jack was probably run over while asleep on the track; of the manner of his death there is no evidence, but the fact of his being killed seemed to be conceded. *347When tbe negroes were hired out they were located by the Company in that portion of tbe road that lies in North Carolina. The road is divided into sections of eight to twelve miles, and on each of these sections there are employed from six to ten hands, as track hands, under the charge of an overseer. Tinker Jack was assigned to section No. 1, near Wilmington, extending to eight or ten miles. Guinea Jack was assigned to Section No. *5,*extending west from Whitesville to Grice’s station. The usual employment of track hands is to remove obstructions, raise up the cross ties, straighten track, spike down track, and clear out the ditches. They do not go upon the train, except upon some exigency, such as an accident or collision, &c., when they are transported to the scene of the disaster under the care of an overseer. They are also, when allowed to visit their wives, carried on the train, but on such occasions a ticket is required from the overseer.

“ There were two points relied upon by the complainants to charge the administrator with a breach of trust.

*“*1. That by hiring these negroes to the railroad they were removed out of the limits of the State, and loss having occurred to the estate by this unlawful act, he should pay the loss. *Ex parte Smith,*1 Hill Oh. 140. The cases relied upon to support this doctrine: *Ex parte Copeland,*Pice Eq. 69 ; and *ex parte Heard,*2 lb. 55, may be distinguished from this. These were applications by trustees, residing out of the limits of the State, to remove trust funds out of the jurisdiction, Chancellor Dunkin, in *ex parte Copeland,*says: ' The presumption should be always against the removal of funds beyond the jurisdiction of the Court.’ In this case no permanent removal was contemplated, and the Court was not ousted of its jurisdiction. The trustee was within the jurisdiction of the Court, and it is said by Mr. Justice Story, sec. 1291, ‘If the proper parties are within reach of the process *348of tbe Court, it will be sufficient to justify tbe assertion of full jurisdiction over tbe subject matter in controversy.’

“ Tbe second point made by tbe complainants was, that there was greater risk in biring negroes to tbe railroad than on a plantation, and that prudent and cautious trustees should not endanger tbe property of the estate by subjecting it" to such risk.

*“*Many of tbe witnesses on tbe reference were of tbe opinion that there was greater risk in hiring negroes to the railroad than on a plantation, and one of them, E. H. Eeeves, a prudent and cantious trustee, testified that in bis hirings out, be bad excepted tbe railroad. On tbe other band, one or two owners of slaves, and Mr. Cameron, who sustains tbe character of a diligent and faithful trustee, expressed a preference for tbe railroad, and thought tbe negroes better treated, and tbe danger equal. It was not asserted by any that there was danger or risk in tbe peculiar employment of a track band, but tbe principal danger lay in tbe proximity to tbe railroad. It was testified to also by several of tbe witnesses, who bad been employed on tbe railroad, that of tbe one hundred and thirty track bands that are employed by tbe Company, these were tbe only instances that they bad beard of any being killed.

“ Assuming that it is tbe practice of the Court of Equity not to deal hardly with a trustee, it might be conceded that tbe danger was greater on a railroad than on a plantation, and yet it would not be made a case of *crassa negligantia.*Tbe administrator only did what a number of owners, considered prudent, did with their own slaves, and with tbe honest intent to make a large income for bis testator’s estate. My conviction is that be has not stepped out of tbe rule laid down by Mr. Justice Story, sec. 1272, ‘"When a trustee has acted with good faith, in the exercise of a fair discretion, and in the same manner as be would ordinarily do *349in regard to Ms own property, be ought not to be held responsible for any losses accruing in the management of the trust property.’ I have, therefore, refused to charge the administrator with the price of Guinea Jack and Tinker Jack.”

DargAN, Ch. On hearing the report of the Commissioner upon the accounts of the administrator, Cornelius Graham, the exceptions of the complainants thereto, the evidence and argument of counsel,

It is ordered that the exceptions be overruled, and the report of the Commissioner be confirmed, and stand as the judgment of this Court in the premises.

The complainants appealed, and moved this Court to reverse the circuit decree on the grounds,

1. That C. Graham having hired the slaves to the "Wilmington and Manchester Eailroad Company, and allowed them to be carried beyond the State, committed a breach of trust, and is responsible for the loss of the slaves.

2. That hiring slaves by a trustee to be worked on a railroad puts them in an extra hazardous situation, and he is responsible if loss ensues.

*Miller,*for appellants, referred to *Mihell*vs. Mihell, 5 Eich. Eq. 224, as to liability of administrator to account for loss of slaves.

Suppose it to be said that the administrator hired the negroes to the railroad in good faith to make higher wages; then it might be said that an administrator would be justified for high wages, in hiring a negro of the estate, to one who cultivated a malarious swamp; or who wanted a servant to attend him in war; or who might have a fancy to give extraordinary wages for a slave to ascend with him in a balloon.

*350Suppose a Court of Chancery were asked by the petition of the administrator to allow him to make large profits from such risks, would the Court grant an order that he should hire the slaves for such purposes? Would not the Court rather say to the administrator, “No, you had better be content with smaller profits and more safety.”

If the administrator would risk the slaves on the railroad, he should have insured them. But suppose the administrator should say that’ the insurers of life could not be induced to insure at a reasonable rate on a railroad. This would show that the administrator had exceeded the bounds of prudence, and had placed the property in reckless jeopardy.

Where an executor or administrator departs from a course sanctioned and adopted by the Court he will be liable for loss. In 2 Wm’s on Ex. 1288, the rule is thus illustrated. “The rule is that if an executor lays out the testator’s money in three per cents (3 per cent, consuls being the fund adopted by the Court) he is not liable for the fall of stocks,” (citing in note f, *Peat*vs. Crane, 2 Dick. 499, note; *Franlclin*vs. *Frith*3 Bro. Ch. Cas. 434; *Howe*vs. *Lord*Dartmouth,, 7 Yes. 150, 4 Madd. 306,) “ but if -he invests it in any other fund which afterwards sinks in value, the loss will be thrown on him, although there be no *mala fides*on his part.” (Citing in note ff, *Hancom & Allen,*2 Dick. 498 ; *Howe*vs. *Lord*Darmouth, 7 Yes. 150.) See also *Gordon*vs. *Boiuden,*Madd. and Greld. 342.

“And it seems that if the testator dies, having stock in other funds than the three per cents, it is the duty of the executor to transfer such stocks into the latter fund.” Ib. 1289, (7 Yes. 151 and 152; 16 Yes. 114, cited in note *h.)*

So even if the intestate, B. J. Scarborough, and his father, had been in the habit of hiring their slaves in hazardous situations (which was not the case) the administrator ought to have taken them away as soon as possible, consistently with the contracts, and have followed the course sanctioned by the Court of Equity. “The principle in general (2 Wm’s. on *351Ex’rs, 1309, citing in note *g, Piety*vs. Stace, 4 Yes. 622,) that an executor, if be will take upon bimself to act witb regard to tbe testator’s property in any other manner than his trust requires, puts himself in this situation; that if there be any loss he must replace it; but he cannot be a gainer; any gain must be for the benefit of the *cestui que trust."*

Proved the value of the negroes, by Elly G-odbold, and also that the railroad is a situation of risk. *Ex parte Copeland,*Eice Eq. 70, decides that a trustee will not be allowed to carry trust property out of the State, without the order of the Court, and if the trustee should violate this rule, and damage or loss should result, “he .will be liable for his misconduct.” Graham was a wrong doer in hiring the slaves, so that they should go out of the State. See to this effect the cases cited in *Ex parte Copeland.*See *Morrison*vs. *Toomer*cited therein.

The case of *Boggs*vs. *Adger,*in 4 Eich. Eq. 408, a late case, defines the duty and liability of a guardian. *JEEext*vs. *Porcher*in 1 Strob. Eq. 170. Every case stands upon its own circumstances. Eule of *Cooper*vs. *Day,X*Eich. Eq. 26. Prudence is the test.

It is cruelty to slave and violation of prudence to expose him to risk of life for gain. *Hughson*vs. Wallace, 1 Eich. Eq. 1.

“ If the hirer of a slave uses him in a way different from that for which he was hired, and a loss occurs, although by the voluntary act of the slave, the hirer will be liable therefor.” *Dwncan*vs. *S. C. Railroad*Company, 2 Eich. 613.

This is on the principle of the law of bailment. In this case a slave was hired to work on the railroad, and the slave, with the knowledge of the conductor, being on the train, and being carried beyond his destination, jumped off the car while in motion and was killed. Eailroad held liable for his loss. *Jones*vs. *Cole,*2 Bail. 330; *Youmans*vs. *Beckner,*8 Hill, 218.

A trustee of personal property is a mere bailee. Administrator is a bailee for hire, as he is allowed commissions, and *352is bound to exercise the highest care and diligence. To same effect is *Strawbridge*vs. Turner, 9 Louis. Pep. 218, (Wheeler’s Law of Slavery, 447.) See *Butler*vs. Wallcer, Pice, 782.

In *McDaniel*vs. Emanuel, 2 Pich. 455, held, “ When the captain of a boat uses a slave as a boat hand without the consent of the master, the *owners*of the boat will be liable for his loss, even though it happen without any misconduct or negligence on the part of the captain.”

“ Strict accountability applies to unathorized use of slaves.” Ib. 459, citing *Wright*vs. *Gray,*2 Bay, 464.

All these cases are on the principle that loss of property, arising from misconduct in a bailee* or trustee, makes him liable therefor, even without negligence on his part.

Trustees will be responsible for any *accidental loss*their *negligence*may occasion, though without any *corrupt motive*on their part, although it is an established rule that the *laches*of a trustee will not prejudice the trust. Willis on Trustees, 8 Law Lib. 184, citing in note page 125, supra; see also *Caffrey*vs. Darby, 6 Yes. 488, and 1 Sand, on Uses and Trusts, 305, as to laches, See 1 Hovenden on Eraud, 486. How much more reason for liability where accidental loss ensues for wilful violation of the trust in allowing trust property to be removed out of the State.

When doubts or difficulties arise as to the proper execution of the trust, the trustee should apply to the Court of Equity by bill for directions. 2 Eonb. Eq. 172, note c. That he may file his bill, see Ld. Pedesdale’s Ch. Prac., p. 108, and see chap. 6 of Willis on Trustees, above referred to.

Would the Court have granted Graham the right to hire negroes out of the State, and on the railroad ?

A too tender regard for the errors of trustees may involve the beneficiary in disaster, and bring hopeless ruin and destitution to the cradle of infancy.

*Inglis,*contra.

*353The opinion of the Court was delivered by

"WaRDLAW, Oh.

The reasoning of the Commissioner adopted by the Chancellor, is satisfactory to this Court, and few observations will be added.

The first ground of appeal assumes that the act of the trustee in permitting the slaves to be removed temporarily from the State, is such a violation of the rules of equity, and breach of trust as to make him liable for the loss of the slaves. The trustee living near the line which divides North Carolina and South Carolina, hired the slaves for a year to a company which owned a railroad running through parts of both these States, and although it does not distinctly appear that he hired them with a view to their employment for the term without this State, it may be conceded that he contemplated the probability of their being so employed at least occasionally. The procedure of the Court discourages the permanent amotion of trust funds beyond its custody and control, especially if it created the trust or appointed the trustee; but the reason of the rule is inapplicable to a temporary bailment, where security for the fulfilment of the contract is retained within the jurisdiction. It would hardly be pretended that an executor or administrator, who is legal owner under trust, became insurer against all risks of the life of a slave that he hired to a planter to be employed as a wagoner in transporting crops to a market beyond the State. A trustee cannot be regarded as unfaithful to his duty in such case, if he has adequate security here that the bailee will perform the duties on his part, and if the slave be exposed to no extraordinary peril from the policy and sentiments of the foreign State, or from the nature of the employment.

It is stated, however, in the second ground of appeal, that work on a railroad is extra hazardous to the laborers, and that a trustee becomes responsible for the loss of slaves under his charge, exposed with his assent to such hazard. Possibly *354the situation of hands worked about the steam engines may be extra hazardous, but the employment of the slaves in question as track hands to remove obstructions from the road, clear out ditches &c., is little, if at all, more dangerous than that of laborers in any field through which the road runs, and their treatment likely to be better. Unfortunately in this instance the slaves happened to be killed, but this sad result was owing probably to their own wilful incautiousness, and not naturally connected with any act of the trustee. Slaves are not only chattels, but headstrong and improvident persons, who sometimes by their recklessness defeat the highest degree of care on the part of those who superintend them. *Mihell*vs. *Mihell,*5 Rich. Eq. 226. The administrator here has managed the estate entrusted to him as a prudent man might manage his own, and to measure his responsibility by a stricter rule would tend to deter the fittest men from assuming the necessary, but often thankless and unprofitable, office of trustees.

It is ordered and decreed, that the appeal be dismissed.

Johnston, Dnnkin, and Daegan, 00., concurred.

*Motion dismissed.*