Burgess v. Carpenter.

Burgess was wounded about 7th June, 1866, by a gunshot, and that he took him to his house and nursed him for several weeks, and supported him while he was unable to work; that Henry Burgess was unable, in consequence of his wound, to do any work until some time in August. It was worth two or three dollars per month to furnish food for him. Henry Burgess was a ploughman, and, in consequence of his being unable to work, the crop was seriously damaged, and cut short at least $400, the plow being stopped during his sickness. Plaintiff did not hire, or try to hire, any one in his place. Scarcely a living was made that year. Henry Burgess was hired for what was known as a share in the crop ; one-third of the crop being divisible amongst the laborers as their pay-plaintiff furnishing stock and provisions, and receiving two-thirds of the crop, and the laborers one-third amongst them.

The horse used by Henry Burgess was not worked in the crop while he was sick and disabled, and was fed by plaintiff.

At this stage of the trial, his honor held that it was useless to go on and connect the defendant with the shooting, because the contract to pay Henry Burgess a share in the crop made him a copartner, and not a servant; and that plaintiff had no right of action against defendant; and he ordered a nonsuit.

Plaintiff assigned the following grounds of objection to the ruling of his honor :

1. Because, it is respectfully submitted, his honor erred in ordering a nonsuit upon the ground that the plaintiff had no right of action against defendant, because plaintiff's servant was to receive a portion of the crop for his services.

2. Because his honor erred in holding that the plaintiff and the servant, for the loss of whose services the action was brought, were copartners, it not having been clearly established what were the terms of the contract under which the said servant was employed.

3. Because his honor erred in ordering a nonsuit, when plaintiff had examined but one witness, and before he had been permitted to go to trial.

4. Because his honor ordered a nonsuit when, it is respectfully submitted, he had no right to do so for any cause.

Fraser. for plaintiff in error.

Galluchat, contra.

Burgess v. Carpenter.

WRIGHT, J. This was an action brought to recover damages which plaintiff claimed to have sustained by reason of a gunshot wound, charged to have been inflicted by defendant upon one Henry Burgess, who was a contractor with plaintiff, in common with other persons, for a share of the crop, which all parties to the contract were laboring to raise at the time the gunshot wound was said to have been inflicted upon the said Henry Burgess.

It was claimed, by plaintiff, that the said Henry Burgess was his servant, inasmuch as he had contracted with him to raise a crop. The relation of master and servant, as it existed in England, was wholly different from the relation of employer and employed as it exists in this country. At common law, in England, the master might bring an action for damages against a third party for any loss he might have sustained by reason of such party unlawfully injuring or interfering with his servant or servants; but this power, given the master, was only to be exercised toward menial servants domestics infra mænia. It was a relation which the common law classed with the relation of " parent and child." The master was held to stand in loco parentis. No such relation existed between plaintiff and Henry Burgess. In Pennsylvania, in a case under the intestate law of April, 1794, in which a preference is given to the wages of servants, the courts have restricted the term "servant" used in the act to "persons employed in the house and about the intestate's person," in order that, when disease had rendered the master helpless, there might be an additional reason to attention on the part of the domestic or menial. A case arose in which a bar-keeper brought suit for his wages, and Chief Justice GIBSON and Justice DUNCAN, of the Supreme Court, decided that he had preference, under the law, because his position as bar-keeper brought him within the term "servant," as his duties as such made him a domestic. Boniface v. Scott, 3 S. & R. 352.

Chief Justice GIBSON says, in Pennsylvania none are called " servants whose persons are not subjected to the coercion of the master, whether the business in which they are employed be servile or not. No person to whom wages could be due for his services would endure the name, as it would be considered offensive, and a term of reproach. I take all who are employed for hire in the domestic concerns of the family, in whatever station they may be, to be servants, entitled to a preference under the act. Neither do I apprehend it to e

Burgess v. Carpenter.

necessary that the occupation of such persons should be exclusively confined to the family.

"The clerk in a counting house, etc., is exclusively concerned with the occupation or trade by which his employer gets his living; and there being nothing of a domestic cast in the nature of his services, he would not fall within the act. If, in this country, a tavern were a separate establishment, unconnected with the domestic scene, I should suppose the plaintiff not entitled to a preference; but the contrary is the fact; with, perhaps, the exception of one or two large establishments in Philadelphia, the concerns of the family are so blended that it is impossible to separate them," etc., etc.

In the same case, Justice DUNCAN says: "The term 'servants,' whose wages, under the act of 1794, are ranked with physic and funeral expenses, to be paid out of the intestate's estate, has received a judicial construction in Ex parte Measan, 5 Binn. 167. It has been held to embrace those only who, in common parlance, are called servants; that is, as I understand the opinion of the court, hirelings, who make a part of a man's family, employed for money, to assist in the economy of the family, or in matters connected with it."

Henry Burgess being exclusively concerned in the cultivation of the soil and the proceeds arising therefrom, and there being no domestic cast within the nature of his services, he does not fall within the class to which the term "servant" can, in any sense, be applied. He was a party to the contract, and liable for any breach of good faith on his part to comply with the terms of that contract; and plaintiff, being also a party to the same contract, sustained the same relation to Henry Burgess that Henry Burgess did to him; therefore, each was sui juris, and neither the servant of the other.

Henry Burgess being a free man, and competent to make a contract, is responsible for his own actions, and has the legal right of action against defendant for any private injury he has sustained at his hands. As each of the parties to the contract contributed his special portion of the means necessary to the production of the crop, and each was to receive his special portion after an equitable division, if there was a loss it was a common loss; and if the defendant committed an unlawful act which was the cause of such loss, then the parties to the contract, severally, have the legal right of action against the defendant for damages.

The State ex rel. The Attorney General v. Platt.

This court, holding that on the statement of the plaintiff he had no cause of action, it made no difference at what stage of the case the judge below ordered the nonsuit, and his interposition, stated in the brief, did not prejudice the plaintiff.

The motion is dismissed.

MOSES, O. J., and WILLARD, J., concurred.

THE STATE ex rel. THE ATTORNEY-GENERAL V. PLATT, Circuit

Judge.

(2 8. C. 150.)

Statute-official copy not conclusive evidence of the terms of statute.

On March 1, 1870, the general assembly of the State passed an “Act to revise simplify and abridge the rules, practice, pleadings and forms of courts in this State." The 19th section of the enrolled act, to which the great seal of the State was affixed, and which was signed, in the senate chamber, by the president of the senate and the speaker of the house of representatives, and received the approval of the governor, provided that the courts for the county of Barnwell should be held at Barnwell; but it appeared by the journals of the two houses of the general assembly, that the same section of the bill, as it finally passed both houses, provided that the courts for that county should be held at Blackville. By the law, as it stood at the passage of the act, the place last named was the county seat of Barnwell county. Held, that the 19th section of the act was void, and, consequently, that Blackville remained the county seat of Barnwell county.

The enrolled act, duly authenticated as the constitution prescribes, and approved and signed by the governor, is not conclusive evidence of the terms of the bill, as it passed the houses of the general assembly, but the journals of the houses, or other appropriate evidence, may be received, to show what those terms were; and, whenever it appears that the enrolled act differs from the bill as it passed, in a substantial matter, the judiciary department of the State may declare the whole act, or the part affected by the change, unconstitutional and void.

Every substantial part of a proposed enactment is a "bill," within the consti tutional sense of the term, and must pass through all the constitutional stages of enactment before it becomes law.

PETI

ETITIONS to the Supreme Court for writs of mandamus: in the case first stated, to command the Hon. Zephaniah Platt, circuit judge of the second circuit, to hold the Courts of General

The State ex rel. The Attorney General v. Platt.

Sessions and Common Pleas for the county of Barnwell, at the town of Blackville, in said county; and, in the second case, to command N. G. W. Walker, sheriff of said county, to keep his office, as sheriff, with its books, records and papers, and office furniture, at the same place.

Under the provisions of two acts of assembly, one passed 2d March, 1869 (14 Stat. 202), and the other approved 26th March, 1869 (14 Stat. 250), the county seat of Barnwell county had been removed from the town of Barnwell to the town of Blackville, in that county, previous to the 1st of March, 1870.

On the day last mentioned, an act entitled "An act to revise, simplify and abridge the rules, practice, pleadings and forms of courts in this State," was passed by the general assembly of the State. It was duly enrolled, had the great seal of the State affixed to it, was signed in the senate chamber, by the president of the senate, and the speaker of the house of representatives, and was approved and signed by the governor. It was divided into parts, titles, chapters and sections, and it contained 475 sections. Part I, embracing the sections from 9 to 91 both inclusive, related to "courts of justice and their jurisdiction." Part II, embracing the other sections, except the first eight, related to "civil actions."

Part I, Title III, relating to "Circuit Courts," contained section 19 of the act, and this section of the enrolled act directed, inter alia, that the Circuit Courts for Barnwell county should be held at Barnwell, and this was the condition of the act when it was filed in the office of the secretary of State. In that office the word "Barnwell" was erased and "Blackville" inserted in its place, and with this alteration the act was printed by the State printer. "Blackville," therefore, appears in the printed copy of the act as the place designated by law for holding the Circuit Courts at Barnweil county.

From the journals of the two houses of the general assembly, it appeared that the 19th section of the bill, as it passed both houses, designated "Blackville "as the place for holding the Circuit Courts for Barnwell county.

Upon the foregoing state of facts being brought to the notice of his honor Judge PLATT, judge of the second circuit, to which the county of Barnwell was attached, he held that the question was concluded, by the terms of the enrolled act; that "Barnwell" was the place fixed by law for holding the Circuit Courts for that county,