State v. Berhman

22 S.C.L. 92

• Court: Court of Appeals of South Carolina
• Decided: May 20, 1836
• Status: Published

Opinion

Mr. Justice Richakdson

delivered the opinion of the court.

The essential fact is, that Peters, the clerk, received the rice of the negro, in the absence of Berhman, who was a shopkeeper; and the question submitted is, does such a receiving by the clerk, implicate fhe owner of the shop, and render him guilty, as well as his clerk, by yirtue of the act of 1834.

After a general prohibition of purchasing rice, &c. from a slave, the ■act by the 2d sec. enacts, “ that if any shop-keeper shall receive rice, &c. from a slave, he shall be presumed to have purchased the same.” And the 3d sec. enacts, that “ In all cases of buying and selling any rice,” &c. <$sc. “contemplated and included in the preceding sections,” &c. 5‘ the act of the clerk,” &c. shall be considered the act of the shopkeeper, &c. and done by his authority.

The argument is, that the simple receiving of the rice by the clerk, does not prove a buying of rice by the master of the shop, although it may prove a buying by the clerk,

Filed 20th May, 1836.

Wilson, for the motion.

Smith, Attorney General, contra.

But the 2d section makes the receiving by the master, prima facie proof of buying. And the 3d section makes the act of the clerk the act of the master, in all cases of buying rice, &c. contemplated by the preceding sections. If, then, the clerk received the rice, pri-ma facie, the rice was bought; and as his act is considered the act of the shop-keeper, he, the shop-keeper, received the rice, and prima facie bought it. Both sections are very explicit. To receive is to buy, unless the contrary be proven; and the act of the clerk is the act of the master of the shop, unless the contrary be proven. If there be any doubt, it is, whether the clerk should have been convicted under the act of 1834, inasmuch as his act is made the act of the master, who thus father’s his clerk’s act, by the letter of the law ; and because he may not have been either a shop’keeper or trader, which the act of 1834 requires. But I do not perceive, why both clerk and ' master might not have been convicted under the act of 1817, which is not confined to shop-keepers, but includes them ; and receiving, is evidence of buying, under either act; and both acts equally prohibit buying from a slave, by, or through a clerk, or other person. The motion is dismissed.

J. S. RICHARDSON.

We concur,

WM. HARPER, JO SI AH J. EVANS, B. J. EARLE, J. JOHNSTON, JNO. B. O’NEALL, HENRY W. DESAUSSURE.