Chase v. Maberry , 3 Del. 266 ( 1840 )

CASE. This was an action on the case for negligence in not securing a runaway slave, who had been arrested and committed to defendant's custody for safe keeping.

The defendant was a constable of Kent county, and had, together with plaintiff, arrested a runaway slave from Maryland, for which a reward of $60, was offered. Having obtained from a justice of the peace a permit to take the slave home, Chase left him with Ma-berry until he should visit the master and negotiate an increased reward, which he effected, the master agreeing to pay $100, on his delivery in Maryland. Chase expressed his fears to Maberry that the boy would escape, and wished him lodged in jail; but Maberry said he would take care of him and be responsible for him. He placed him in the garret of his house, from which the boy escaped during Chase's absence and was not again retaken.

Mr. Cullen, for defendant, contended that this was a bailment without compensation, and that the bailee was not chargeable, except for fraud or gross negligence. (2 Blac. Com. 451-2; 1 Bac.Ah. Bailment, 378; Story on Bailment 50; 3 Johns. Rep. 169.)

Ridgely, contra, contended that here was such negligence as would charge the defendant without any special interest or engagement; but that he was certainty liable on his express undertaking. This is an action on the case for compensation to plaintiff for an injury in suffering the escape of a runaway slave. The slave was arrested by Chase and Maberry on a warrant from a justice of the peace of Kent county. After the arrest and authority given by the justice to Chase to take him to Maryland, these captors had to secure him until the owner could be sent for, and for this purpose they entered into some arrangement between themselves.

If Chase and Maberry were jointly interested in the reward and Chase delivered the negro into Maberry's hands to keep safely, it was a bailment; and Maberry was responsible only for ordinary diligence; that is, for such care as a prudent man would use in reference to his own slave under similar circumstances; but if Chase was induced by any special undertaking or promise of Maberry that he would be responsible for the safe keeping of the negro, to rely upon that undertaking, and to forego any other mode of custody, such as lodging him in the jail, then Maberry would be responsible to the extent of the same kind of security as that furnished by a jail.

Seasonable diligence is that which a prudent man would use in respect of his own property, and depends on the subject of the bailment; a runaway slave for instance requiring closer watch and other means of security than other kinds of property.

As to the extent of the damages; the interest which Chase had in the negro at the time of the bailment, and in respect to which any obligation of safe keeping on the part of Maberry was incurred, was the amount of the published reward, to wit: $60; and if these captors were jointly and equally interested in that reward; the plaintiff is entitled to recover, even on the idea of a special undertaking, only the half of that sum.

The plaintiff had a verdict for $40 00.