Opinion of the Court by
Scott, Judge.Bird Posey was employed by Dabney Garth, as overseer, for one year, at the price of one hundred and seventy-five dollars; his term of service commenced on the 1st January, 1838, and he continued industriously employed for Garth until sometime in April following, when Garth told Posey that he must leave his service, that he had been negligent, and had maltreated and injured his negroes : Thereupon Posey left Garth’s employment. It appears that Posey, the *96dav before he was ordered to leave Garth’s service, for some fault supposed to have been committed by one of Garth’s negroes under his control, attempted to punish the negro by whipping; the negro, the bill of exceptions states, resisted by refusing to obey Posey’s order. Posey thereupon struck the negro with a handspike and knocked him down, and then beat him with the handspike in such a manner that in four days thereafter he died from the effect of the blows. Posey afterwards instituted an action against Garth for his year’s wages, claiming the whole amount, and recovered sixty-one dollars, the costs being adjudged against him. A new trial was asked for by Posey, and refused, and he brings this cause here by appeal. Under this state of facts is he aggrieved by the judgment of the court below 1
If a person vantnfor a™" yearat wages, anee ^fthe precedent8 to the payment theWsefvantld can thÉ reb°" fore he has theyear’s^er-to vice. If he is hi^employer from fulfilling his contract, and is wan-whhmit'suífi-cient cause before period11 for'16 which he was ontitledtotiie wages for the h^°wasI>to0d serve: but if there is any fault or mis-bhif'towards emp]oyer sufficient to discharge,and of he°is dn>-the person by hired, he is ”ot entitled to any wages,*96If a person retain a servant for a year at wages, the per-f°rmance of the service is a condition precedent to the payment of wages, and the servant cannot recover them before he has performed the year’s service. If he is prevented by employer from fulfiling his contract,and is wantonly and without sufficient cause discharged before the expiration of the period for which he was hired, he is entitled to the wages ^°r w^°^e Period he was to serve: but if there is any fault or misconduct in him towards his employer sufficient warrant his discharge, and in consequence thereof he is driven from the service of the person by whom he is hired, he is not entitled tó any wages. Reciprocal justice requires such should be the law of contracts, of this character; . ' if it were otherwise, then while the employer is bound by ids contract to retain the servant, although it may be against his inclination, for the whole period of his service, or pay the whole wages, the servant by his misconduct may comPe^ empJ°yer f°r his own security to discharge him, and then recover wages for the term he has served. So, while the contract is binding on the employer, the servant is bound or not, at his option. Such a construction of the contract would encourage fraud and wickedness in servants, and induce them, whenever their inclination prompts, to be , , guilty of such enormities as will compel their discharge,
Justice Laurence remarked, in the case of Cutter v. Pos*97ver, 6 Term. R. 327, that a servant,'although hired in agen-eral way, is considered to be hired with reference to the general understanding on the subject, that the servant shall be entitled to his wages for the time, though he does not continue in the service during the whole year. This remark the learned- judge, torn from its context and placed in'some elementary works, has been made to give countenance to the idea, that if there is a termination of the service by the fault of the servant before the time agreed on, the servant is entitled to wages for the time he served, when it is obvious the judge was speaking of the termination of the contract without the fault of the servant, for it is observable that this principle was stated in a case which the court unanimously , held, that if a sailor hired for a voyage, take a promissory note from his employer for a certain sum provided he proceed, continue and do his duty on board for the voyage, and before the arrival of the ship, he dies, no wages can be claimed either on the contract or on a quantum, meruit. This case however was decided on the peculiar nature of the contract, and is not to be regarded as an authority in support of the doctrine, that if a servant who is hired for a year die in the middle of it, his executor cannot recover part of his wages in proportion to the time of service. This was the old law, it is otherwise now.
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Was the conduct of Posey such as to warrant his discharge'?. Have mercy and humanity left this earth, that this question should be asked 1 Could Garth as a master owing protection to his slaves, any longer retain such a man in his service, he not only had a right to discharge him, but it was his duty to do it. A mere disobedience of orders seems to have been the fault of the negro; for although the record states that the negro resisted, yet it appears that his resistance consisted in disobeying orders, and that too when he was about to be whipped. Should one retain in his employment another, who for such a provocation would with a handspike knock down his slave, and then continue his blows until they caused his death ?
As it regards the question of costs, inasmuch as the plain*98tiff was not entitled to recover any thing, he cannot complain that they were adjudged againsthim, and as the defendant does not seek to reverse the judgment,let it be affirmed.