Macon & Western R. R. Co. vs. Holt. forth the time allowed for their absence, and distinctly designate the place or places where such slaves or free persons of color desire to visit." Hotchkiss, 815. The testimony of the witness in this case is, that the slave, Jacob, had an ordinary pass, and the presiding Judge, in his charge, speaks of a general pass. We infer that the Judge referred to such a permit as is required by the Act of 1829. No permit, more general than that Statute requires, would be a lawful pass-one in conformity with it, would be a general pass. An owner, overseer, trustee, guardian or other person, having control of slaves, can unquestionably authorize them, in writing, to do or not to do, any thing not forbid. den by the laws. They may thus permit them to travel from placo to place on the rail roads; and such a liscense would protect both the slave and the company. A general pass, however, such as I have defined it to be, was held by Judge Floyd, to be no protection to a rail road company against damages for injury to a slaye, taken on board the cars without the knowledge and consent of the owner; and, in our judgment, correctly held. It conveys no authority to the slave to place himself on the cars-it clothes him with no contracting power, for and on account of the owner-it confers upon others no right of control over him whatever, much less a right to convert him to their uses for profit-it is not evidence of the assent of the owner, except according to its terms-it proves the master's consent that the slave may, for a time specified, leave his home, and this includes the privilege of enjoying that time in such way as he may choose to occupy it, in conformity with the laws of the State, and it also proves his consent that he shall visit the place or places specified-it proves nothing more. It is made the duty of the owner, by law, not to permit his slave to leave his plantation without a ticket-it is the right of the slave, founded in his character as a sentient buman creature, and in the obligations of humanity, when leaving his master's protection, with his consent, to have the protection which the permit affords against punishment. The permit originates in the necessity of a vigilant police-its object is, primarily, protection against the penalties of the patrol laws; which laws, however necessarily stringent, operate humanely and beneficially for the slave, as well as the master, and the whole body, of the community. Such, and no more, are the offices of a general pass. In this case, and in no analagous case, does it shield the company, or Macon & Western R. R. Co. vs. Holt. any other person or persons, occupying their position relatively to the slave, from liability, if injury accrues to him. I dismiss, therefore, so much of the instruction as relates to the general pass, with this remark, that it will be seen, from the whole drift of this decision, that neither rail road companies, nor any other person, will be safe in the transportation of slaves, without a specific written authority from the owner, or his consent, so in some other way manifested, as that it will be susceptible of proof. [2.] Disencumbered, then, of all considerations which grow out of the pass in this case, the legal proposition asserted by the learned Judge, presiding on the Circuit Bench, is this, to wit: "If a company take the slave of another on board their cars, without the knowledge and consent of the owner, and he be injured, by negligence or otherwise, the company will be liable to respond in damages for the injury." The instruction given must be understood in the light of the facts of the case made in the record. It is in evidence, that this company received this slave, to transport him, for a compensation taken from him. This fact is an important one in this case. When, therefore, the Judge speaks of a company taking a negro on their cars, he means taking him, as the company did in this case, to be transported for their benefit, in the receipt of the customary fare for such transportation, Again, the taking, by the charge, must be not alone without the knowledge of the owner, but also without the consent of the If he had ruled, that the company would be liable if they took the negro singly without the knowledge of the owner, the inference would be a fair one that, with his knowledge, they would not be liable, and that is not necessarily always true in law. We understand the Judge to say, that in order that the company shall be protected, the owner must both know and consent to the taking. He could not consent without knowledge, but he might know without consenting. In the case put, as thus understood, the Court holds that the company is liable, whether the injury result from the negligence of the company, or otherwise; that is to say, they are liable, wholly irrespective of the question of negligence, and thus we arrive at the true status of the point for review. owner. I do not consider that the decision of this question depends upon any new principles. We have determined it upon principles of the Common Law, long settled and familiar to the juris Macon & Western R. R. Co. vs. Holt. prudence of Great Britain and of our own States. The interest of the question springs out of the application of those principles to a class of statutory persons, to wit: rail road corporations, unknown to the Courts of either country until within a very recent period, and to a class of subjects (negro slaves) not recognised as property in England, and peculiar here, in this, that whilst they are in fact property, under our laws, they are sentient, reasoning human agents. In its practical consequences, the judgment we now render is an important one. The effort of the able counsel for the plaintiffs in error, (Mr. Poe,) was, first to establish that this is a case of bailment, and thus make the plaintiffs in error liable only for negligence; and particularly, that it belongs to the class designated as mandates ; and more particularly still, that it falls within that class of mandates which arises under what is called the quasi contract of negotiorum gestor-where, for example, "a party spontaneously, and without the knowledge or consent of the owner, intermeddles with his property, as to do work on it, or to carry it to another place." Story on Bailment, §189. If this be a bailment at all, it must belong to this class. By the evidence, there was no contract between the owner, Mr. Holt, and the rail road company. All bailments, except mandates of the negotiorum gestor class, are founded in contract, express or implied. As, then, there was in this case confessedly no contract, but a taking of the slave, spontaneously, without the knowledge or consent of the owner, it must belong to that class or none. In cases of this sort, (of the negotiorum gestor sort,) as the mandatory acts wholly without authority, there can be, strictly speaking, no contract. Story on Bailment, §189, A quasi mandate is raised by implication, and that for the benefit, not of the mandatory, but of the owner. The intermeddler is left to all the liabilities of his act, whatever the circumstances of the case may make them, whilst the owner of the property is allowed, at his election, to treat the transaction as a contract of mandate or otherwise, according as his interest may require or suggest. This appears to be the footing upon which the Roman law places this species of mandate. Pothier's Appendice du Quasi Contrat. Negot. Gest. Appendice Contrat de Mandat, n. 167. Story on Bailm. §189. It does not seem to be fully recognized by the Common Law. The English Courts appear only to have invoked the principle of implication, for the VOL. VII 21 Macon & Western R. R. Co. vs. Holt. benefit of the owner, in a few instances: As, where there has been a subsequent ratification of the acts of the gestor by the owner; and sometimes where unauthorized acts are done, positive presumptions are made, by law, for the benefit of particular parties. Thus, if a stranger enters upon the lands of an infant and takes the profits, the law will, in many cases, oblige him to account to the minor for the profits, as his bailiff; for it will be presumed, that he entered to take them in trust for the infant. 1 Dane's Ab. ch. 8, art. 2, §10. 1 Bac. Ab. Account. Coke Litt. 89 b. 90 a. Story on Bailment, p. 205. Actions on mandates are very uncommon in our Courts, for the reason, not flattering to human nature, given by Sir Wm. Jones, that it is very uncommon for men to undertake any office of trouble without compensation. Jones on Bailment, 57. The rule of liability of the negotiorum gestor, varies according to his character and employment, and the circumstances attending the transaction. Suffice it to say, that he is not, in general, liable, without negligence, and if so, the case before us being held to belong to the class of the negotiorum gestor, the instruction of the Court below would be erroneous. In Louisiana, it has been held, that if one spontaneously and gratuitously take the slave of another, without his knowledge or consent, and the slave escape and is lost to the owner, such an one will not be liable, unless there was gross negligence on his part. Bayon vs. Prevot, 4 Martin's R. 65. Code of Louisiana, articles 2274, 2275. Story on Bailment, §§217, 577. See, also, De Fonclair vs. Shottenkirk, 3 Johns. R. 170. Beverly vs. Brooke, 2 Wheat. R. 100. The question remains, Is the case at this bar a mandate of this class? Demonstrably it is not, and for one obvious and satisfactory reason: A necessary element in every mandate, and particularly in this, is that the taking of the property be gratuitous. If the receiving of Mr. Holt's slave on their cars, by the plaintiffs in error, had been by his consent and authority, then it would have been a familiar and very intelligible bailment, subject to the government of settled legal principles. But that is not this case. If they had taken him gratuitously, without the knowledge or consent of Mr. Holt-in that event, under certain circumstances, the case would belong to the class of mandates I have been considering. But they did not so take him; but, on the contrary, they received him to transport to the eight mile post, above Ma Macon & Western R. R. Co. vs. Holt. con, for their profit and advantage. One of the witnesses testifies, that they received from the negro twenty-five cents, to carry him. to that point. The transportation of the slave was not a charity— it was not gratuitous-it was not for the mutual benefit of themselves and the owner; for he neither assented to nor knew of the transportation. It is true, that it was an accommodation to the slave, and it was done at his instance; but I need scarcely remark, that the slave could make no contract to bind his master, or in any way make him a party to the transaction, without his consent. The slave must be considered in the light of property, and in no other. There are cases where the intellectual and moral character of the slave does modify the general law of bailments, as we shall see, but this is not one of them. All mandates are gratuitous. "The contract (says Mr. Story) must be gratuitous, and this is of the very essence of the contract; for if any compensation is to be paid, it passes into another contract; that is to say, the contract of hire." Mandatum, nisi gratuitum, nullum est. Story on Bailment, §153. Dig. Lib. 17, tit. 1, 1, 1, §4. Pothier's Pand. lib. 17, tit. 1, n. 15. Pothier's Contrat de Mandat, n. 22. It does not vary the matter, that the mandate of the negotiorum gestor is without a contract. In that case, as in other mandates, the law goes upon the idea of the mandatory acting without profit to himself; but I trust I shall show, aside from all these views, that the law gives to this transaction a definite character, and that that character is wholly inconsistent with the idea of a bailment of any kind. The opinion of Lord Ellenborough, in a case supposed by him, in Drake vs. Shorter, (4 Esp. R. 165,) was strongly relied upon by counsel for the plaintiffs in error, The case supposed was this: A chattel, as a boat, belonging to another person, is taken to do an act of kindness to the owner, as to save other property belonging to him from the flames, and an unintentional injury happens to the boat, in the use of it for that purpose. In that case, Lord Ellenborough's opinion was, that the person taking the boat would not be, in any manner, responsible for it to the owner. It was insisted, that this case is analogous to the case put by his Lordship, in this; that the taking of the slave Jacob, to carry him home, was an act of kindness to his masterit facilitated his return, and promoted the interest of the owner. The result was very different; for in fact, as a consequence of the slave going on board the cars, he lost his limb, and his value |