This was an action of trover to recover $2,190 in notes of the Huntsville Bank. The parties proceeded to trial on the general issue. The trial was wrested from the jury by a demurrer to evidence on the part of the defandants ; which demurrer the Circuit Court sustained, the plaintiffs having refused to join in it until required by the Court to do so,
It is assigned for error, 1st. That the Court compelled the plaintiffs to join in the demurrer to evidence. 2nd. That the Court sustained the demurrer, and gave judgement for the defendants.
Evidence was introduced only on the part of the plaintiffs, and which, though of the grade of parol, ivas not of a circumstantial, but positive nature. Under such circumstances, l am of opinion that according to well established principles of common law practice, the defendants had a right to demur to the evidence. Had the evidence been of an uncertain or indeterminate nature, leaving the facts to be inferred from circumstances, the propriety of compelling the party to join in demurrer would have been more questionable. But the authority to demur to evidence, is founded on the supposition, that no injury can result to the adverse party; that the consequence of withdrawing the issue of facts from the jury, and referring the entire case to the Court, is an admission by the party demurring, of all facts which the evidence offered conduces to prove, or which the jury could be authorized to infer from it.a
*338But it is contended, that the statute which denies to either party the benefit of more than two new trials in any case^ }lave the effect to vary the common law pracfjce jn this respect. The practice of demurring to evidence in proper cases, often tends to promote convenience and dispatch in the administration of justice, and to preserve more distinctly the boundaries of right from prejudice, or the influence of extraneous circumstances. For should we presume the Courts ar.e no less liable to prepossessions than juries, yet the decisions of the Courts are subject to revision in the appellate jurisdictions, which cannot be had on jury determinations. Before so material a right should be abolished, I think we should require express legislation to that effect, and that it cannot be done by implication from the statute alluded to. That statute* can only have the effect to preclude decisions by the Court, in cases of conflicting or doubtful, and indeterminate evidence. In such cases, where the chief difficulty rests on the ascertainment o$ facts, there is great propriety in leaving the determination as the law has done, with the jury, under the instruction of the Court as to the law.
On the second point respecting the decision of the Court on the demurrer, the substance of the evidence is found to be, that a negro boy, the property of the plaintiffs, found the money, consisting of notes on the Huntsville Bank, to the amount mentioned, shewed the same to persons near him at the time, one of whom received the money, carried the same and deposited it in the said Bank as money found in the way mentioned, and took from the Cashier a list of the amounts and denominations of the notes; that on the next day the same person demanded the money of the Cashier, who refused to deliver it to him; that at the time the money was found and placed in Bank, both the plaintiffs were absent from the State; and further, that after the return of one of the plaintiffs to the State, and before the institution of the suit, he demanded said money of the Cashier during banking hours, as having been found by said negro boy, which the Cashier refused to deliver to him. These facts were positively stated by several witnesses, without any conflicting testimony. Upon which, the question arises, whether the owner of a slave, who has found money, is entitled by law to sue for and recover the same, *339‘in the absence of any evidence respecting the loser or proper owner, without having reduced it to actual possession, and alter it has passed into the possession ol another person as lost treasure.
This is believed to be a novel question in the United States, and one involving some intrinsic difficulty; and that the condition of slaves in the United States has no exact parallel in the history of any other country of. which we have reports of the judicial decisions. Nor have the researches of the eminent counsel who have been engaged in the investigation of the case, or the subsequent examination of the Court, discovered any American adjudication directly in point. We are, therefore, left to decide according to the general analogies of the law, and the peculiar policy of this government.
If the principles of the civil law. can be regarded as a safe rule for our conduct, they appear quite decisive of this controversy. In Cooper’s Justinian a it is said whatever your slave has at any time acquired, whether by delivery, donation, stipulation, bequest or any other means, is acquired by you, although you may be ignorant of it, or were adverse to the acquisition ; for he who is a slave can have no property. And if a slave be made heir, he cannot otherwise take upon himself the inheritance than at the command of his master; but if commanded so to do, the inheritance is as fully acquired by the master, as if he had himself been made heir; and consequently a legacy left to a slave is acquired by the master.
It is contended on the part of the defendants, that the condition of slaves in the United States may be assimilated to the feudal villeinage of England, and it is shewn from 1 Coke on Littleton,b “that if a villein purchase land and alien the same to another before the lord enter, then the lord cannot enter '; for it shall be adjudged his folly that he did not enter when the land was in the hands of the villein; and so it is of goods. If the villein buy goods and sell, or give them to another, before the lord seizeth them, then the lord may not seize them.”
Hence it is insisted that though the master here may entitle himself to money or goods found by his slave, provided he seize them while in the hands of the latter, yet if they in any way pass out of the hands (f the slave before the master reduce them to actual possession, he can never afterwards assert his claim.
*340For plaintiffs it is urged, that American slaves may be better assimilated to those of the Greeks and Romans. jn ^ Dessaussures’ Reports, “ it is said, “ the condition Qf siaves }n this country is analogous to that of the slaves Qf the ancient Greeks and Roman?, and not that of the villeins of feudal times; they are generally speaking, not considered as persons, but as things; they can be sold or transferred as goods or personal estate ; they are held to be pro nullis pro mortuis. Almost all our statute regulations follow the principles of the civil law in relation to slaves, except in a few cases, wherein the manners of modern times, softened by the behign principles of Christianity, could not tolerate the severity of the Roman regulations.” In the same case, it is decided, that slaves cannot take property by descent or purchase •, that a legacy to a slave, failing from incapacity to take, sinks into the residuum of the estate, and is subject to the payment of debts. That slaves in the United States are incapable of contracting for, or in any way acquiring property in their own right, is the inevitable consequence of their degraded condition; which denies them the privilege of deposing against white persons, or of suing or being sued, either in law or equity. In the South Carolina decision alluded to, no opinion is intimated respecting title to property, which, by the proprietor, may be abandoned to a slave, or found by him; and to which there is no other claim except that of the master, and the one who may have first received it from the slave.
With other distinctions which exist between slavery in the United States and that of the Romans, it is shewn that with respect to the latter, the slave could own in his own right his peculium, and was responsible for his torts to the value thereof, or the injured party could seek his redress against the master and recover the damages sustained, or have the slave delivered up as an indemnity as far as his value would go. To the extent of the slave’s peculium, which is understood to be his individual savings from his daily earnings, he was permitted to trade and acquire property in his own right. Therefore, having some capacity to trade, it followed as a consequence that any thing which he acquired and disposed of before the master reduced it to his possession, was placed beyond his reach. In this country it is so far different, that to create responsibility on the piaster, the slave must-*341at the time be in bis immediate employment, or from bis vicious habits and general libetty, some degree of culpability must attach to the master to make him responsible. With respect to commerce, our slaves can do nothing in their own right, can hold no property, can neither buy, sell, barter or dispose of any thing without express per-mis- ion from the master or overseer; so that every thing they can possess or do, is in legal contemplation, on the authority of the master. But does it result that every thing they are found in possession of, is to be regarded as unappropriated and abandoned to the first occupant, unless it is necessarily so ? Policy would seem to forbid it. None ever denied but that slaves are rational intellectual beings; they have capacity to know that value attaches to property, and how to take care of it. Many things are necessary to their own comfort and support,' which the owner is bound to furnish, and the owner is absolutely entitled to all their earnings. If, in order to avoid contention and strife respecting treasure found by or abandoned to a slave, it is the policy of the law to designate some proprietor, there would appear to be great propriety in making the owner that person. It is also necessary on the principles of humanity to slaves, that they should be protected from the depredations and violence of persons who might discover them in the possession of articles which the master had not actually seized; and there can be no distinction in principle whether the article be of great or little value, or whether lost, abandoned or given by the proprietor.
An argument from the defendants’ counsel which appeared to give some plausibility to the defence, was, .that to authorize a recovery in trover, the plaintiffs must have a general property in the article, or have had actual possession of the special property ; and that if in cases like the present, it is held that the possession of the slave was the possession of the master, the rule would subject owners to dangerous responsibility for abuse or misuse of property, of which they had no knowledge or control. I admit if this would be a consequence of the doctrine, it would be fatal to it; but I think it cannot be considered that masters are in all cases responsible for the torts and crimes «1 their slaves, committed on special property while in their possession. In such case, if the master has bestowed all the care and diligence on the bailed property, that *342tbe law exacts of a bailee; and if his slave or any other per» son, in relation to which he is in no way censurable, com* a depredation on it, he is not responsible. If one as ^ajjee [-,as placed the property in a situation promising every reasonable security, and his slave or any other, by art or violence, which could not have been anticipated or resisted, take or destroy it, the bailee is not responsible. With respect to special property, the liability of the possessor depends much on the nature and terms of the contract, whether express or implied; and as respects lost goods, if little or no. security is offered the loser while they remain with a slave as-the finder, it must be viewed as his own fault or misfortune, that the property is not in responsible hands, and as respects the owner of the goods, his security is in no respect weakened by the rule that the master shall be preferred to all other claimants except himself.
But I think found property is to be viewed in a light something different from absolute general property, or. special property in the usual acceptation of the term. I am of opinion that the finder, and if a slave, the master^ is the apparent general owner of the property' under an uncertain or contingent title; one that' may be defeated by the discovery of the owner or loser, if he has not abandoned the same ; and that this is the true and safe rule, warranted by the analogies of our law, and directed by the same necessity that confers title by occupancy to property to which there is no owner. Special property in the general acceptation, and as referred to in the cases cited, presupposes an absolute title in some person known to the possessor, or who will doubtless be known. With respect to found treasure when the loser is unknown, it is doubtful whether the finder’s title can ever be defeated. -He cannot honestly conceal the finding, but he is the ostensible and legal owner of the articles, and may publicly retain them, except as to such things as the statutes have otherwise provided for, until the loser is discovered j which may never happen.
2 Esp. N. P. 584-5.
Page 109.
& lib, 2. § m.