#### THOMAS H. LANE v. ETHELDRED PHILLIPS.

It was Held to be a good ground for discharging an overseer that lie assumed lo control the slaves in his charge against the known wishes and positive commands of the owner.

Where an overseer acts so badly as to compel Ms employer to dismiss him before the time is out, for which he contracted to serve, he is not entitled to recover anything for the services rendered previous to such discharge. Where an overseer was discharged for sufficient cause, and the employer offered to pay him pro rata for the time he had served, which he refused to take, it forms no reason why he should recover the same afterwards.

Action of assumrsit, tried before Dick, J., at the last Spring Term of Edgecombe Superior Court.

The declaration was upon a special contract for wages due the plaintiff as an overseer, and upon the common counts.

The plaintiff agreed to serve the defendant as an overseer on his farm in Edgecombe county, during the year 1856, and ■was to receive for his wages, for the year, $250. He continued in service, until some time in June, when he was discharged by the defendant. The defendant offered to pay the plaintiff pro rata wages, up to the time of his discharge. The plaintiff refused to receive the money, and at the end of the year brought suit for the entire sum. The cause of the plaintiff’s discharge was, that he, the plaintiff, on a certain day, just before his discharge, directed several of the men slaves *456to go to the farm of a neighbor and assist him about his wheat. While on their way they were seen by the defendant, who, on learning their business, ordered them back to their work, saying his crop was too much in the grass to allow it. The plaintiff commanded the slaves to go on as he had directed, and swore he would shoot them if they did not. The slaves did go on, and after they had been gone awhile, the defendant pursued and turned them back. After their return the plaintiff sent one or more of them to the neighbor, without the knowledge or consent of the owner.

The Judge charged the jury, that if they believed the evidence, the plaintiff was rightfully discharged, and could not recover on the special contract; but that he was entitled to recover upon the common count, for the services rendered prior to his discharge, provided such services had been valuable to the defendant. The defendant excepted to the latter instruction.

Verdict for the plaintiff. Judgment and appeal.

Dortch, for the plaintiff.

B. F. Moore, for the defendant.

Battle, J>

We fully concur with his Honor in the opinion, that the conduct of the plaintiff was a justification to the defendant in dismissing him from his service. It cannot, for a moment, be admitted that an overseer has a right to control the slaves, under his charge, against the known wishes, much less the positive commands, of the owner. This is the first instance of such an assumption of authority, which has, so far as we are aware, come before the courts, and we approve the rebuke so promptly given to it by his Honor, in the Court below.

Upon the other question we differ with his Honor. Had the plaintiff wilfully and without excuse left the defendant’s service, he would, undoubtedly, both according to the principles of the common law, and by force of our statute, have forfeited his wages; White v. Brown, 2 Jones’ Rep. 443; Revised Code, ch. 80. Is it reasonable that he should be in *457any better condition by acting so badly as to compel Ins employer to dismiss him ? It would seem that upon principle, be ought not to be allowed to take advantage of his own wrong. "We find that the authorities are to that effect. In, Smith on Master and Servant, 75, Law Lib. 104, (m. p. 113,) it is said that “ where a servant, whose wages are due periodically, refuses to perform his part of the contract, and serve his master in the manner contracted for, or so conducts himself that the master is justified in discharging him without notice, he is not entitled to be paid any wages for that portion of time, during which he has served since the last periodcal payment of wages ; that is to say, if a servant, whose wages are only due yearly, is rightfully discharged before the expiration of the year, he could recover nothing for services rendered previous to such discharge.” See also 2 Kent’s Com. 258— 261 in the notes.

But it is contended by the plaintiff’s counsel, that the defendant waived his right to take advantage of the forfeiture, by his offer to pay the plaintiff for the time he had served. That might be so, if the plaintiff had not refused to accept the sum tendered. The defendant was willing to buy his peace, and when the plaintiff declined to accept the terms, the parties were remitted to their original rights. The plaintiff himself so understood it, for he waited until the end of the year, and then sued upon the special contract for the whole year’s salary. It would be very hard and unjust to permit the plaintiff, after failing to show his right to recover upon the special count, to mulct the defendant in the costs of the suit by a recovery on the common count. If he should be allowed, under any circumstances, to succeed in a claim for the services actually rendered, it ought not to be until after a distinct notice to the defendant, that he was willing to accept the sum which the latter had formerly tendered him. Upon that question, however, we neither give, nor intimate any opinion. For the error in the latter part of his Honor’s charge, the judgment must be reversed, and a venire da novo awarded.

PeR Oueiam, Judgment reversed.