#### *Ephraim S. Mikell*vs. *J. Jenkins Mikell.*

Defendant, an administrator, employed slaves of Ms intestato, for a temporary purpose, on Ms own plantation: the slaves left the plantation of defendant to roturn to that of the intestate, and were never seen alive afterwards: the Court, concluding, on the evidence, that the slaves were destroyed in prosecution of a wilful act on their part, *221after they had left the employment of defendant, and after proper precaution on his part, held, that defendant was not liable for the loss.

The act of an administrator in employing the slaves of his intestate in his own service, is not illegal. ' ,

The care and diligence which a prudent man bestows oil his own affairs, is the test by which the responsibility of trustees is determined: they are not insurers against losses from casualties and misfortunes, which ordinary sagacity and diligence could not prevent.

■ *Before*Wardlaw, Ch. *at*Charleston, February, 1851.

This case was heard on. exceptions, by the plaintiff, to the report of the Master. The decree of the Chancellor, which contains every thing necessary to a full understanding of the case, is as follows:

Wardlaw, Ch. The plaintiff in this case claims an account from defendant of his transactions as administrator of the estate of plaintiff’s father, Ephraim Mikell, jr., deceased, and as guardian of plaintiff’s estate. The defendant made regular returns of his transactions as administrator, to the Ordinary of the District, until May, 1839, when he was appointed by this Court, guardian of plaintiff’s estate; and afterwards the defendant made regular returns as guardian, to one of the Masters of this Court, until October, 1848, when the plaintiff having attained full age, the defendant put him in possession of the plantation, and delivered to ^ him the slaves and other chattels, and the bonds, moneys and other assets, remaining of the estates committed to the defendant. Master Gray, to whom it was referred to take testimony in the cause, and to report generally as to the matters in controversy between the parties, reports that all the accounts of defendant have been verified by proper vouchers, and that no objection had been submitted to him respecting-them; and that the only controversy in the cause, as to which alone evidence had been offered, was as to the liability of defendant as administrator for three negroes which had belonged to the estate of his intestate, and which were lost in the fall of 1837; and as to this matter the Master decides against the claim of the plaintiff. The case comes before me on exceptions to the report rejecting this claim.

*222It appears, by the evidence, that the defendant in the fall of 1837, was managing as administrator of his intestate, a plantation called the Blue House plantation, in the interior of Edisto Island, and about seven miles from Peter’s Point; and that he was then owner, and managing in his own right, a plantation on Bailey’s Island, which is separated from Edisto Island by a creek about one hundred yards wide, but the landing on Bailey’s Island is distant from Peter’s Point, the opposite landing on Edisto Island, about four hundred yards. That the defendant having an unusually large blow of cotton on his plantation on Bailey’s Island, which might suffer from exposure, ordered four of the slaves, Jemmy, Class, Amy and Ket, under his control as administrator on the Blue House plantation, to proceed to Bailey’s Island and aid in picking out his cotton; and these slaves proceeded accordingly, and remained on defendant’s plantation for three days, from Tuesday morning until Thursday evening. On Thursday evening, in calm weather, the overseer of defendant, under his order, provided a large and safe boat for the transportation of the four slaves from Bailey’s Island to Peter’s Point, and saw the boatmen on board, and the four slaves proceeding towards the boat, but did not see them aboard the boat. Except the risk of being driven out to sea in boisterous weather, the passage across the creek is regarded as safe as transportation for equal distance orí land, allowing for the difference between water and land. The passage is frequently made by children going to school, and by negroes going to church. There is no cause of danger betwixt Peter’s Point and Blue House ; yet, the three slaves last named, after they passed from the ken of the overseer, were never again seen in life by a competent witness, and the corpse of one of them is the only evidence of their fate. A few days afterwards, the dead body of Class was found on South Edisto beach, and at the same time and place were found the dead body of George, a slave of Ephraim Mikell, sen., the owner of Peter’s Point, and a small paddle boat upturned, belonging to Sampson, another slave of E. Mikell, sen. Early in the morning- of Friday, the next day after the four slaves had been ordered to be sent back *223to Edisto, the overseer found the boat in which they were directed to be transported, at the landing in Bailey’s Island, and the boatmen at their proper employment. Jemmy, one of the four slaves, returned to the Blue House plantation in proper time, and he is still alive. From all the circumstances of the case, I conclude that the four slaves were safely transported from Bailey’s Island to Peter’s Point, on Thursday evening, and that in an attempt, moved by their own will, to return in the night to Bailey’s Island in a small boat, three of them were drowned.

Much testimony was offered before the Master as to the usage upon Edisto Island and the neighboring Islands as to the removal of slaves from one plantation to another, and the interchange of work upon emergencies. The testimony itself was vague and conflicting. It was not contended that any local usage on this subject, however fully proved, could change the general law; and the evidénce was only urged upon the Court, as exhibiting the mode in which masters practically exercised their dominion over slaves and discharged the duty of neighbors. In this point of view, it was unnesessary or inadequate. Judges, who are members of a slave-holding community, either know without the testimony of witnesses how masters should exercise their rights over slaves, or they are not to be controlled by proof of provincial practices. The first exception of plaintiff which objects to this testimony is sustained.

It was argued on the part of defendant, that any liability of the defendant for the slaves lost was extinguished by compensation for the loss made in the will of Ephraim Mikell, sen., grandfather of plaintiff. This will, after a devise to the plaintiff of the Blue House plantation, (previously given by parol to plaintiff’s father) and of negroes upon certain limitations, which it is unnecessary to consider, declares as follows; “ I gave to the father of my grandson during his lifetime as much of my property as I could afford to give to any one of my children; a part of which property he has already inherited, which in addition to the above named negroes and land, is all that I can leave him in justice to my other children.” If there be any *224reference in this declaration to the loss of the three negroes, it is too indistinct for the basis of a legal conclusion; but if the intention of the testator in this devise were palpably manifest to make satisfaction to his grandson for the loss, the defence would not be much stronger. No case would then be presented to the legatee of election between inconsistent provisions of the same instrument, or of implied satisfaction of any demand of the legatee against the estate of the testator. No hinderance would be interposed to the prosecution of his claim against a third person for the unlawful or negligent use of his property. Of course, extrinsic evidence of the intention of the testator in this respect, if at all competent, would be feebler in its influence. It is unnecessary, however, to pursue this discussion, as the testimony does not extend to any declaration of the testator, as to his motive or purpose in the devise; and does not proceed beyond some indefinite understanding in the family of testator after his death; which understanding was as likely to be produced by the defendant as any one else. The second exception of plaintiff objecting to the proof of compensation, is sustained.

The third exception is merely formal, objecting to the'omission of testimony which was supplied.

The question still remains as to the liability of the defendant for the loss of the three slaves.

The plaintiff, in his fourth exception, puts defendant’s liability on the ground, that it was an “illegal act in him to employ these slaves for his own benefit without an equivalent to plaintiff, and at a risk not necessary for plaintiff’s interest.” The bill contains no express suggestion of this claim, which turns out to be the only matter of dispute between the parties. If the plaintiff had proceeded, frankly, according to the truth of the case, to charge the defendant for this injury exclusively, and the doctrine of the exception be well founded, the case would not have been within the jurisdiction of this Court. If the loss resulted from the illegal act of the defendant, the proper remedy of the plaintiff would be trespass ; and if the loss resulted from the negligence of defendant, then the case would be *225the remedy. This Court, to avoid multiplicity of suits, may legitimately investigate and decide such matters, when they are incidental to a general account or other topic of equitable cognizance ; but when they stand alone, it is not the province of Equity to give damages. It is a mistake, however, to treat the act of the defendant in employing these slaves in his own service as an illegal act. The cases quoted in argument of *Wright*vs. *Gray,*2 Bay 464, and *McDaniel*vs. *Emanuel, 2*Rich. 455, where persons were held to strict accountability for unauthorized use of the property of others, have no application. The defendant, as administrator, was the legal owner of the slaves in question, and he might, in his discretion, have employed the slaves altogether in his own service; incurring'of course liability to the creditors and distributees for the full value of the hire of the slaves while so employed. If an administrator or other trustee should remove slaves belonging to the trust from their proper employment, for the sake of lucre, this would be a proper case for charging him with hire at the highest estimate of witnesses, and for measuring his responsibility in every respect with strictness; still we could not denounce the act as illegal, however contrary to a nice sense of honor. In thé present case, there is no complaint that hire for three days of the four slaves is not charged against the administrator; and it is but just to him to remark, that he swears in his answer, and there is some evidence of the fact, that be had several times allowed his own slaves to work on the trust estate without compensation. It is to his credit too, that his management generally was diligent and successful.

The defendant, if liable at all, is liable for a breach of his trust, in not managing the estate entrusted to him with the care and diligence which a prudent rnan bestows on his own affairs. A more stringent rule as to the responsibility of trustees would defeat itself by detering thoughtful, honest, and prudent men from engaging in the discharge of duties, so hazardous as well as onerous. Where one has faithfully endea-voured to execute a trust, it would be neither reasonable nor *226equitable to make him an insurer against losses from casualties and misfortunes which ordinary sagacity and diligence could not prevent. The Court cannot expect trustees to take more care of trust estates than of their own. *Taveau*vs. Ball, 1 McC. 463; *Massey*vs. Banner, 1 Jac and W. 249 ; *Jones*vs. *Lewis,*2 Yes. Sen. 240.

.In this case, the property lost consisted of slaves — chattels that have intelligence and will, who are capable by their own acts of defeating a high degree of care and circumspection on the part of others. Ferrymen are held by our law to the strict responsibility of common carriers ; yet if a slave, on his passage in a ferry boat, should elude the common care of the ferryman, jump overboard and drown himself, the owner of the ferry would not be liable. *Clark*ads. *McDonald,*4 McC. 223. So here, as I conclude that the slaves were destroyed in prosecution of a wilful act on their part, after they had left the employment of the defendant, and after proper caution on his part, I concur with the Master, that no liability on this account attaches to the defendant. The exception is overruled. It is ordered and decreed, that the bill be dismissed.

The plaintiff appealed on the grounds

1. That his Honor should have sustained the fourth exception to the Master’s report, and decreed the defendant liable for the value of the three negroes of the minor, viz., Class, Ket and Amey ; and their wages or interest; the said negroes having been removed from the minor’s plantation, and used at a distance therefrom, by the said defendant for his own benefit, and having been lost in or by reason of such improper use.

2. That the decree, so far as it overruled the fourth exception and dismissed the bill, is contrary to equity, and ought to be reversed.

*Yeadon*& *Macbeth,*for appellant.

*Magrath,*contra.

*227Per *Curiam.*

The Court concur in the judgment of the Chancellor. The decree is affirmed.

Dunkin, Dargan and .Wardlaw, CC., concurring.

Johnston, Ch., absent at the hearing.

*Decree affirmed.*