#### The State *ads.*Berhman & Peters.

Tried before his Honor Judge Butler, Charleston, January Tern?, 1836.

Trading with a Negro.

The defendants were indicted under the act of 1834, for buying-rice from a slave. The evidence was as follows : Solomon Moses said that he suspected the store of Berhman ; that he and others sent a negro belonging to Lucas & Bennett to the shop of defendants. The shop was owned by Berhman.. The boy carried' 3 or 4 quarts of rice, and two bottles of lamp oil. He left the rice in the shop, but brought out the oil. The witness and others were not far off, look, ing on with the purpose of detecting the defendants. As soon as a-warrant was made out, the witness and others went into the store. *93He saw the rice in the binn, and some was sticking to the paper in which it was carried. Peters was in the store at the time, and upon being accused, he denied that he had bought the rice. Berhman was not in at the time, and was probably not in at the time the boy left the rice. After witness went in with the warrant, Berhman came in and said he knew nothing about the negro trading. When Peters was about to be apprehended, he run off and was knocked down.

Alexander Brown, Lieut, of the Guard, was sworn. He said he went in and saw the paper in which rice was put, lying on the binn ; he took the paper out of the binn ; he did not think Berhman was in at the time the negro entered the shop. In the cross examination, the witness stated he saw no money paid — saw no trading in the store. The negro was examined after he came out.

This was all the testimony offered in the case. Peters was the clerk of Berhman, and probably received the rice from the negro. Berhman was not present at the time. The clerk received the rice and the question was, whether he alone was liable, or both. The jury found both guilty, on the above facts fairly submitted to them.

A. P. BUTLER.

A motion in arrest of judgment, is made upon the following grounds:

1st. There was no evidence of any dealing with the privity and consent of Berhman, but, oh the contrary, the evidence was conclusive that he knew nothing of it.

2d. When the acts of the clerk are visited upon the employer, the offence in the statute relates to trading and trafficking, and there was no evidence of such trading, &c. by the clerk..

WILSON, *for Defendants.*

Mr. Justice Richakdson

delivered the opinion of the court.

The essential fact is, that Peters, the clerk, received the rice of the negro, in the absence of Berhman, who was a shopkeeper; and the question submitted is, does such a receiving by the clerk, implicate fhe owner of the shop, and render him guilty, as well as his clerk, by yirtue of the act of 1834.

After a general prohibition of purchasing rice, &c. from a slave, the ■act by the 2d sec. enacts, “ that if any shop-keeper shall receive rice, &c. from a slave, he shall be presumed to have purchased the same.” And the 3d sec. enacts, that “ In all cases of buying and selling any rice,” &c. <$sc. “contemplated and included in the preceding sections,” &c. 5‘ the act of the clerk,” &c. shall be considered the act of the shopkeeper, &c. and done by his authority.

The argument is, that the simple receiving of the rice by the clerk, does not prove a buying of rice by the master of the shop, although it may prove a buying by the clerk,

*94Filed 20th May, 1836.

Wilson, for the motion.

Smith, Attorney General, contra.

But the 2d section makes the *receiving*by the master, *prima facie*proof of buying. And the 3d section makes the act of the clerk the act of the master, in all cases of buying rice, &c. contemplated by the preceding sections. If, then, the clerk received the rice, *pri-ma facie,*the rice was bought; and as his act is considered the act of the shop-keeper, he, the shop-keeper, received the rice, and *prima facie*bought it. Both sections are very explicit. To receive is to buy, unless the contrary be proven; and the act of the clerk is the act of the master of the shop, unless the contrary be proven. If there be any doubt, it is, whether the clerk should have been convicted under the act of 1834, inasmuch as his act is made the act of the master, who thus father’s his clerk’s act, by the letter of the law ; and because he may not have been either a shop’keeper or trader, which the act of 1834 requires. But I do not perceive, why both clerk and ' master might not have been convicted under the act of 1817, which is not confined to shop-keepers, but includes them ; and receiving, is evidence of buying, under either act; and both acts equally prohibit buying from a slave, by, or through a clerk, or other person. The motion is dismissed.

J. S. RICHARDSON.

We concur,

WM. HARPER,

JO SI AH J. EVANS,

B. J. EARLE,

J. JOHNSTON,

JNO. B. O’NEALL,

HENRY W. DESAUSSURE.