Jelks v. McRae

G-OLDTHWAITE, J. —

There was nothing in the first charge that was objectionable, as the confession made by the slave involved no charge against the defendant, and called for no reply from him. He was not, therefore, called upon to speak, and his silence furnished no ground .to suppose he admitted any of the facts to which the confession related.— Spencer v. The State, 20 Ala. 24.

The second charge was, in effect, that if the slave had received from another slave the money lost by the plaintiff, and defendant had no knowledge of it unless from the confession,— had not received it, and had no means of obtaining it, — the promise on Ms part to pay was without consideration ; and this was nothing more than the assertion of the principle, that an owner is not bound to answer for the illegal and unauthorized acts of his slave. The promise, in such case, makes no difference, as there is no consideration to sustain it. — Cawthorn v. Deas, 2 Port. 276; Blackburn v. Baker, 1 Ala. 173; Kenan v. Holloway, 16 ib. 53.

Neither can either of the charges requested be sustained. The first asserts, as a legal proposition, that if the defendant promised to pay the money received by his slave, and by reason of'this promise the plaintiff was induced to take no measures for its recovery, which he otherwise would have taken, then he was entitled to recover. We think there was no error in refusing to give this charge, for the reason, that no evidence whatever appears on the record that the plaintiff was induced by the promise not to take any steps for the recovery of his money; and although this was a negative, if the plaintiff based any right upon it, there should have been some evidence of it before the jury. For aught we know, the plaintiff may have done all that he could, as the record does not show the contrary, the bill of exceptions not purporting to set out all the testimony. But it was properly refused for another reason: the charge assumes, that, although the promise may have been void for want of a consideration, it was good if acted on by the other party. We have found no case, which carries the doctrine of admissions or estoppels en pais to this extent. Suppose a verbal promise was made to pay the debt of another, and thereby the creditor was induced to take no steps to recover it of the principal debtor until he became insolvent; would the promisor be concluded ? We think no case has ever gone that far. The plaintiff must be presumed to know the law, and he should not have trusted to a promise which created no legal obligation.

The last charge was properly refused, because there was no evidence tending to show that, at the time the promise was made, the defendant knew that the slave had the money of the plaintiff in his possession. The confession was no evidence of the fact as against his master, and, as we have seen, no inference could be drawn from his silence.

Judgment affirmed.