Mr. Holt, the agent of the North-Carolina Rail-Road Company at Salisbury, a witness for the plaintiff, testified that the week before Christmas, 1856, the defendant McDaniel, came to the station at Salisbury with a wagon, and that the slave Henry, the property of the plaintiff, was with him. In unloading the wagon, he was assisted by Henry. After getting through with it, McDaniel said to Henry, "now, we will fix your business." The defendant then said to witness, "Henry belongs to Mrs. Young, and is going to South Carolina to see his wife; she put him in my charge; here is his pass, (holding a paper in his hand;) it is all right." Mr. Holt, without looking at the pass, gave the negro a ticket to Charlotte, for which he paid seventy-five cents. The defendant then said to Henry, "now, we will go to the livery stable and camp, and have some supper and hot coffee before you start," and asked the witness whether there would be time to do so before the train started. Henry had his clothes in a pair of saddlebags.
Mr. Bell, the owner of the livery stable, stated that the defendant came to his yard that evening, with the boy, and said he belonged to Mr. Young, and was going to South Carolina to see his wife.
Mr. Carter, for the defendant, stated that he heard a conversation, in January, between the plaintiff and defendant, in which the latter stated, that Henry came to his camp, at night, about three miles from Mocksville, and told him he was going to South Carolina to see his wife; that he had a pass, and he had taken him to Salisbury; that there he had handed the *Page 104 pass to the conductor and got a ticket for him, and that he went on towards South Carolina.
It was further proved, that the slave, in question, was gone until the middle of the ensuing March. Also, that McDaniel was unable to read writing.
The plaintiff's counsel requested the Court to instruct the jury, that if they should be satisfied that Henry was the property of the plaintiff, and that the defendant, knowing him to be a runaway, fraudulently did the act proved by Mr. Holt, the plaintiff was entitled to recover damages.
The Court refused the instruction as prayed, and told the jury they must be satisfied that the acts charged were done secretly as well as fraudulently. Plaintiff's counsel excepted.
Verdict for defendant. Judgment and appeal. The action is in case, brought under the act of 1856, Rev. Code, ch. 34, sec. 81, for harboring a slave, the property of the plaintiff. It is settled, by several cases in this Court, that to support such an action, it must be proved that the act was done secretly. The first case is that ofDark v. Marsh, 2 Car. Law. Repos. 249; this was followed by that of Thomas v. Alexander, 2 Dev. and Bat. Rep. 385; State v. Hathaway, 3 Dev. and Bat. Rep. 125, and finally by State v. Burk, 4 Jones' Rep. 7. This decision was made at December Term, 1856.
His Honor instructed the jury, that they must be satisfied the act of the defendant was done secretly, as well as fraudulently. To this, the plaintiff excepts. We see no error. The act of 1856, does not contain the word "secret," but the construction put upon it by our courts in defining the word "harboring," is founded on correct reasoning, and cannot now be departed from. The opinion of his Honor is in exact conformity with the opinion of the Court in Dark v. Marsh, ubi supra. *Page 105
His Honor has set forth in the case the evidence given on the trial. The defendant carried the slave Henry to one of the most public places in the western part of the State, the Salisbury depot of the rail-road, and told Mr. Holt, the agent of the company, that Henry was the property of the plaintiff; was on his way to South Carolina to see his wife, and that he had a pass, and handed to the agent a paper as such pass. The defendant could not read writing. After he had purchased a ticket for the negro, he said, "we will now go to the livery stable and camp." To Mr. Bell, the keeper of the livery stable, he told to whom Henry belonged, and where he was going. Subsequently, he told the plaintiff fully what he had done. It is impossible for this evidence, under the decisions of our Court, to bring McDaniel within the operation of the statute. There is no error.
PER CURIAM, Judgment affirmed.