#### The City Council of Charleston vs. Alexander England.

Tried before the City Court of Charleston, April Term, 1835.

This was a suit for four penalties, each for twenty dollars, for hiring out negroes, within the city, without the necessary badges, and contrary to the ordinance, City Laws 185.

Solomon Moses, the marshal, was called up as a witness. Defendant’s counsel had him sworn on his *voire dire,*and he said he had no interest, and could never have any, by an ordinance, when called to give testimony, as he was thereby deprived of all share in the penalty recovered.

To avoid all difficulty on this score, the city attorney drew up a release from the witness to the plaintiffs, which the witness signed and handed in.

Defendant’s attorney then objected to the release, unless it were made to the *defendant,*but the court, on the case of Executrix Christie vs. Executor u»v. Furman, November term, 1827, overruled the objection ; and the witness, though still contended to be interested, was sworn in chief. He testified, that he knew the defendant, who resided in town ; that he knew his four negroes, named John, William, Abraham, and Boston ; that the first three were hired by defendant in town, to one Mr. Marshall, and the last to Mr. Dottereau. The witness found these negroes working out without badges, on the 3d February, and called on and informed defendant of the fact; that the defendant admitted they were his negroes, that he had no badges, and he promised the witness that he would petition council to be relieved from the penalties incurred, and witness then, said he would not seize them, as he could wait till defendant had applied. This was on the 3d of February, and the defendant, instead of performing his promise, immediately went and took out badges. The ne-, groes were at that time working in the bake-house. On his cross-examination, he said the bake-house was hired out by defendant, together with the said four negroes, to Marshall and Dottereau, the year before; that badges had been taken out the year before, but they expired on the end of December, and had not been renewed till after witness discovered that the negroes had, been working out *51without badges; that the bake-house is in defendant’s yard, and is not divided off by any fence from his house, as witness believes.

Here the evidence closed, and the city attorney contended that he had proved his case, and was entitled to a verdict of eighty dollars, being twenty dollars for each negro ; for it was clearly shewn, that the negroes were working out from the 1st January to the 3d February, without badges, contrary to the ordinance.

The defendant’s attorney, on the other hand, urged that the law had not been complied with so as to entitle the plaintiffs to a verdict. The defendant had taken out badges the year before, to endure till the last day of December, and was thereafter at liberty to renew the same at the beginning of every ensuing year, on payment of the usual fees ; that these badges were accordingly renewed on the 3d February, which was sufficiently near the beginning of the year, and this was done before the negroes were seized; that in fact they had never been seized, and if any agreement had existed between defendant and the marshal on the subject, by which the latter was aggrieved, he had his remedy in another form. That the badge law related, besides, only to such slaves as were employed for hire out of their owners’ houses or families ; whereas, these negroes were employed in the defendant’s bake-house, in his yard, which, though hired to Mar. shall, was still regarded as his premises.

I charged the jury, that the first question was, whether the bakehouse was a place out of the house or family of the defendant ? That defendant had admitted it was leased to Mr. Marshall, and the only pretence for this claim of ownership now, was, that the bakehouse was not divided off from defendant’s yard. I thought a partition fence would not alter the rights of any of the parties ; that the bake-house was Marshall’s, and not defendant’s, who had parted with it and the negroes to Marshall, whose they were against all the world, during the existence of the contract of hiring; that the defendant’s four negroes, were, in my opinion, proved to have worked out without badges, from the 1st January to the 3d February ; that, therefore, they were either liable to seizure, or the defendant might be sued for the penalties ; that the defendant avoided their seizure by a promise to the city marshal, which he had not performed; but this trick could not exonerate him from the penalties: that the city council alone could do this: that if the officers of the city allowed the owners of hired negroes the month of January in which to renew their badges, as the city attorney had admitted, still the defendant had transgressed this indulgence, and infringed the law on the 1st and 2d of February, and his obtaining his badges on the 3d, would not relieve him from the violation of which he had been guilty. I left the case, however, to the jury, and they found for the plaintiffs. The defendant appeals on the following grounds annexed.

SAMUEL PRIOLEAU.

1. That Mr. Moses was an incompetent witness.

2. That the case was not proved as laid.

3. That his Honor instructed the jury, that the circumstance of *52Marshall’s earying on the baking business in defendant’s residence^ was immaterial.

PETIGRU & LESESNE, *Pro Appellants.*

The opinion of the court was delivered by

Mr. Justice Earle.

The ordinance of the City Council provides, that no owner or other person, having the care or management of negroes, or other slaves, shall permit any such slave, whether male or female, to be employed on hire, out of their respective houses or families, without first informing the city treasurer of the specific trade or employment, 'which he or she is to pursue, when working on hire ; and without obtaining from him a ticket or badge, expressing the same, and numbered, under a penalty of forfeiting twenty dollars, with costs, for each and every such offence. And after specifying the sums which shall be paid for badges for slaves of different trades and employments, concludes thus ! “ Which said ticket or badge, shall continue until the last day of December in every year, and no longer, and shall be renewed at the beginning of every year, on payment oi the fees aforesaid.” The slaves in question, had been employed on hire, during the year 1834, with lawful badges, which expired on the last day of December. On the 3d February, 1835, they were found working, on hire, without badges. They were not seized and carried to the work-house, as they might have been, under another section of the ordinance; for in that case, they might have been detained until the fine and costs were paid. They were not so seized, because the defendant promised the marshal, that he would petition council to be relieved from the penalties incurred. Instead of this, he went immediately and procured badges. The case was proved by the city marshal, Solomon Moses ; and it is set down as an exception to the verdict for the plaintiffs, that he was an incompetent witness, from interest; and that the release of his interest to the plaintiffs, did not restore his competency. Supposing the witness interested, it has been held and ruled, Heirs of Waiter vs. Executors Waiter, 2 Hill, that such an assignment or release, as that executed by the witness here, was effectual to divest his interest and restore his competency. In the case referred to, the assignment, it is true, was made to an indifferent person, a stranger to the suit. Here it is said to be made to the plaintiffs. There does not appear to us to be any sensible difference, on principle, between a release generally, and an assignment without value, and without warranty, if the effect of both be to divest the witness of that pecuniary interest in the result @f the action, or the event of the suit, which rendered him an in*53■competent witness, without subjecting him to any future liability, which might leave a bias on his mind. The precise question now made, was much discussed here in the case of Baker *et. al.*vs. Drayton’s Administrators, several years ago ; and a majority of the court then held, as we do now, that an assignment to the party plaintiff was effectual to restore competency. The point, however,'! think, was not ruled in that case expressly, as it turned mainly on other questions. In fact, however, the marshal was not, in the.opinion of tho .court, incompetent at first. The ordinance provides, that the marshal shall be entitled to receive one half of every fine paid for any offence or offences against any of the city ordinances, provided he prosecutes such offence or offences, and proves the same by other evidence than his own. The moment his own testimony became necessary, and he was sworn, he was no longer entitled to half the fine ; he ceased to be interested, and was therefore competent. Upon the facts proved, was the defendant liable under the ordinance ? This inquiry will involve a consideration of all the exceptions taken, and views presented, by the counsel for the motion. And this court is of opinion, that the charge of his honor the recorder, was entirely correct. The penalty is for permitting slaves to be employed, on hire, out of the respective houses or families of the owners. These slaves were employed in a bake-house owned by the defendant, but leased to Marshall, and occupied by him, to whom the slaves were also hired. They were clearly, therefore, not employed in the house or family of defendant; not in a house under his control or supervision, but in a house, for the time, of another, who had the control of the household, and was responsible for their conduct; and such is the meaning of the ordinance. It is supposed, that the penalty has not been incurred, because the negroes were not seized. But that section of the ordinance was not intended to provide the mode of collecting the penalty, at least, not the only mode. Its object was mainly to arrest and confine slaves employed on hire, without badges, until their owners were ascertained ; and until badges were obtained ; when so arrested and lodged in the work-house, they could not be discharged except on payment of the fine. And thus far it pro. vides a summary mode of collecting the fine. Its main purpose seems to have been, that already stated, to secure the compliance of owners with the provision which requires the badge. And although it accumulates the means of recovery, it does not exclude the council from sueing, under the general enactment on that subject. The slaves had been hired out the preceding year with badges, which expired the last day of December. And it is argued, that in this case, *54they had been renewed at the beginning of the succeeding year, within the meaning of the ordinance. But so it does not seem to a majority of the court. The month of January is said to be allowed by the city officers for this purpose; but this is an indulgence extended by their own liberality. A strict construction would confine the owners within a much shorter period ; and perhaps limit them to the first days of the month. The third day of February is clearly not the beginning of the year, within the meaning of the ordinance, or the practice of the city officers, which may properly be allowed to control the interpretation of the ordinance. It is assumed, that the slaves continued to be employed, on hire, from the last day of December, 1834, up to 3d February, 1835. Of this, there is no evidence. On the latter day they were found so employed, without badges. And we are of opinion, that it was a violation of the ordinance, and that the penalty was incurred. This seems to have been the opinion of the defendant himself; and to have been expressly acknowledged, for he promised to petition council to be released from the penalties. He immediately Avent to the city treasurer, paid the fees, and procured badges. And it is noAV urged, in his behalf, that by receiving the fees, and granting the badges, the plaintiffs have released the penalty. In support of this view, the case of the City Council vs. Corleis, 2d Bailey, is cited. That was an action to recover a penalty for retailing without a license. The ordinance on that subject provides, that application shall be made ten days before the first day of April and October, by every one desirous of obtaining a license for the ensuing year. The defendant, Corléis, having been tor several years a licensed retailer, applied previous to the first of October; and his application tvas granted, but he omitted to take out his license, although warned by the city police to do so, and pay his fees. He Avas detected on the 30th of December, in an act of retailing, and information lodged against him. On the 4th of January he paid the city treasurer, and procured his receipt for sixty dollars, for a license to retail for one year, from October, 1829. And it was held, that the council, through their treasurer, having received the fee, and granted the license for the whole year, to take effect from the previous October, could only mean to legalize any intermediate retailing ; and to release their claim for any penalty incurred by such retailing, It was competent for them to do so. The penalty was for their benefit, recoverable only by them. They had made an order to grant a license to the defendant, on his application, from October — And after notice of his retailing, the treasurer gave him a license to have effect from the date of the application, for one year. *55We think the case before us, distinguishable from that. The ordinance concerning badges for slaves hired out, does not prescribe the time when they shall be applied for, in the first instance, nor at what time they shall commence. An original application for a badge may be made at any time, and whenever paid for, is granted, to take effect immediately. It is from that time evidence, that.the slave has the permission of council to be hired out, whenever the owner chooses, until the end of the December following. It is not a license from such a day to such a day. If, therefore, the application of the defendant on the 3d February, had been his first application for badges* it is very clear that the badges then granted could have had no retrospective operation, so as to legalize any hiring before that time. But it is argued, as he had the badges for the preceding year, and procured badges again on the 3d February, which would be good for the remainder of 1835, therefore the intermediate employment, on hire, is sanctioned by the badges granted on the 3d February, on the authority of Corléis’ case ; we do not think so. The defendant gave no notice on the first of January, of his intention to continue his slaves on hire, or to renew his badges. He may have, resolved not to hire them out again, and they may have been out of employment until the 3d of February ■; and in that case, there could be no ground to say, that the new badges were only a continuation of the former permission. The plaintiffs here did not know of the act complained of, as' a violation of the ordinance. And the city treasurer had no option when the application was made, but to grant the badges from that time, which he was obliged to do, without reference to the beginning of the year. And there is nothing to indicate the intention of the treasurer, or the plaintiffs, to give them a past operation, as in the case of the receipt for the license to retail from October, 1829. We think, therefore, that the plaintiffs were entitled to recover, and the motion is refused.

B. J. EARLE,

We concur,

HENRY W. DESAÜSSURE,

DAVID JOHNSON,

RICHARD GANTT,

J. JOHNSTON,

A. P. BUTLER,

J. S. RICHARDSON.