De Fonclear v. Shottenkirk

3 Johns. 170

• Court: New York Supreme Court
• Decided: May 15, 1808
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. Notwithstanding several points were made on the argument, there is really but one ; was the property of the negro, at the time he ran away or subsequently, in the plaintiff or defendant ?

We need not go to the civil law to learn when a chattel is sold, and fortunately for mankind, it is not a subject of very deep learning in our own law,

Independently of the statute, any words importing a bargain,, whereby the owner of a chattel signifies his willingness and consent to sell, and whereby another person shall signify his willingness and consent to buy it, in presentí, for a specified price, would be a sale and transfer of the right to the chattel. To avoid frauds and perjuries, the statute requires either that the possession shall pass, or that something shall be given in earnest to bind the bargain, or that some note or memorandum, in writing, of the bargain be signed by the parties or their agents, where' the price of the goods and merchandize shall be of the value or exceed 10/.

The negro was in the possession of the defendant, but whether as being sold to him, or put into his possession until he should signify his assent to buy, or return him, will depend on the facts in the case. It is not necessary to go minutely into the evidence; there is no positive testimony that the sale was completed. The plaintiff rests on circumstances from which to. infer the fact; these the defendant has rebutted by circumstances and by positive proof of the acknowledgment of the plaintiff, that the negro was. his when he ran away. I cannot see that the jury have, decided against the weight o.f evidence, by finding for the defendant; and I am, therefore, unwilling to. disturb the verdict.

It has been contended that the defendant, as. bailee of the negro, is responsible for the running away, by permitting him to go a half a mile from his house in the evening. I cannot consider this position as law. It is unreasonable to suppose that a person would be inclined to buy a negro,-or to have any concern with one for his own use, who was to be kept constantly under his eye. There is no negligence in suffering the slave to go out on an errand. The charge of the judge has been complained of, but in my judgment, he submitted the cause on its true merits. The affidavit which has been submitted, to show the discovery of new evidence, does not entitle the plaintiff to a new trial, because, had it been before the jury, there is no reason to believe that the result would have been different.

We are, therefore, of opinion, that the plaintiff ought to take nothing by his motion.

Rule refused.