CASES AT LAW

ARGUED AND DETERMINED IN THE

SUPREME COURT OF N. CAROLINA,

AT RALEIGH.

DECEMBER TERM, 1855.

WILSON MADRE et al vs. ROBERT J. SAUNDERS.

A stipulation in a contract of hiring a slave, that he was not to be employed on water, is not broken by sending the slave to water horses at a shallow part of a deep stream, with instructions not to ride into deep water, although he did ride into deep water, and was thereby drowned.

ASSUMPSIT, tried before his Honor Judge SAUNDERS, at the Fall Term, 1855, of Perquimons Superior Court.

The plaintiff declared for a breach of a contract of hiring, wherein it was agreed between the parties that the defendant was to have the boy Davy for one year, from the 2nd January, 1852, and to return him to the guardian of plaintiff, Madre, at Bethel store, on the 3rd of January, 1853; that he was to furnish certain specified clothing, and that the boy was not to be employed on water, nor at any fishery, and not to be carried out of the county. The following facts were agreed by the parties and submitted for the judgment of his Honor, viz: The slave, Davy, during the term for which defendant

Madre v. Saunders.

hired him, was drowned in Perquimons River, near the town of Hertford, where the defendant lived. He had gone to the river with defendant's horse, with his knowledge, but was directed by him not to ride into deep water. When first seen, the horse he had ridden had got away from him in some way not explained, and was wading in shallow water near the shore, and the boy himself was sitting on the shore. The boy then proposed to one Lewis Richardson, to let him ride his horse into the stream and wash him until the boys should come down and help him catch Saunders' horse; this Mr. Richardson permitted him to do, but cautioned him not to ride into deep water, as his horse was blind. He did, however, ride into the deep water, and was in consequence thereof drowned. The boy was obedient, and at the time he was drowned (June, 1852) was worth $850. Perquimons river is a deep navigable stream at the town of Hertford, but at this point, was shallow for a considerable distance from the shore. The boy's employment was to work about the lot of defendant and take care of the horses, (the defendant being the keeper of a Hotel in the town) and it was his practice to ride into water sometimes so as to wet the horses sides, at other times merely to wet their legs; this was with the knowledge and approbation of the defendant, but the boy at the same time had his general instruction not to ride into deep water.

Upon this state of facts, his Honor being of opinion with the defendant, gave judgment accordingly, from which plaintiff appealed.

Smith, for plaintiff.

Hines and Jordan, for defendant.

BATTLE, J. We are unable to discover any ground upon which the action can be sustained. It is not pretended that the boy Davy was carried out of the county, or employed at any fishery. It seems to us to be equally clear that he was not employed on water. Whatever extent of signification may be given to the words, "employed on water," we cannot see how they can embrace a case like the present, where the