#### WILSON MADRE et al vs. ROBERT J. SAUNDERS.

A stipulation in a contract of hiring a slave, that he ivas not to be employed on water, is not broken by sending the slave to water horses at a shallow part of a deep stream, with instructions not to ride into deep water, although lie did ride into deep water, and was thereby drowned.

Assumpsit, tried before his Honor Judge Saunders, at the Eall Term, 1855, of Perquimons Superior Court.

The plaintiff declared for a breach of a contract of hiring, wherein it was agreed between the parties that the defendant was to have the hoy Damy for one year, from the 2nd January, 1852, and to return him to the guardian of plain tiff, Madre, at Bethel store, on the 3rd of January, 1853; that he was to furnish certain specified clothing, and that the boy was not to be employed on water, nor at any fishery, and not to be earned out of the county. The following facts were agreed by the parties and submitted for the judgment of his Honor, viz: The slave, Davy, during the term for which defendant *2hired him, was di-owned irx Perquixnons River, near the town of Hertford, where the defexidaxxt lived. He had goxxe to the river with defendaxxt’s horse, with his knowledge, but was directed by him not to ride into deep water. When first seen, the horse he had ridden had got away from him in some way not explained, and was wadixxg in shallow water near the shore, axxd the boy himself was sitting on the shore. The boy then proposed to one Lewis Richardson, to let him ride his horse into the stream axxd wash him uxxtil the boys shoxxld come down and help him catch Saundex’s’ horse; this Mr. Richardson permitted him to do, but cautioned hinx not to ride into deep water, as his horse was blixid. Ho did, however’, ride into the deep water-, and was in coxxsequence thereof drowned- The boy was obedient, and at the time he was drowned (June, 1852) was worth $850. Perqxximons river is a deep navigable stream at the town of Hertford, but at this point, was shallow for a considerable distance from the shore. The boy’s employment was to work about the lot of defendant axxd take care of the horses, (the defendant being the keeper of a Hotel in the town) and it was his practice to ride into water sometimes so as to wet the horses sides, at other-times merely to wet their legs ; this was with the knowledge axxd approbation of the defendant, but the boy at the same time had Ms general instruction not to ride into deep water.

Upon this state of facts, his Honor being of opinion with the defendant, gave judgment accordingly, from which plaintiff appealed.

Smith, fox- plaintiff.

Himes and Jordam, for defendant.

Battle, J.

We are unable to discover any ground upon which the action can be sustained. It is xxot pretended that the boy Dmy was carried out of the coxxxxty, or employed at any fishery. It seems to us to be equally clear that he was xxot employed on water. Whatever extent of signification may be given to the words, “ employed on water-,” we cannot see how they can embrace a case like the present, where the *3boy’s only business in connection with water, was to carry horses to drink where the river was shallow some distance from the shore, with express instructions from the hirer not to ride them into deep water. The boy’s life was lost by his own folly or imprudence while he was, at his own request, and without the knowledge or consent of the hirer, engaged in the service of another person.

The engagement to return the boy to the guardian at the ■end of the year, cannot be brought to the aidof the plaintiff. The defendant did not, upon any fair construction of his contract, become the insurer of the boy’s life. ITis obligation was nothing more or less than that of every bailee, to return the article at the expiration of the bailment, should it not be lost or destroyed without any default on his part. We hold that the hirer was not guilty of any default in this case, and consequently that the judgment of the Court below in his favor, must be affirmed.

Per Curiam.

Judgment affirmed.