THOMAS J. LEA AND OTHERS against THOMAS J. BROWN, EX'R.

An executor is not chargeable With a sum. of money, which the testator had allowed his slave to acquire, and which had been loaned out to an individual, and a noté taken from him for the sum, by another individual, payable to such individual, for the benefit of the slave, because the executor had no remedy to collect it either in Law or Equity-.

it would seem to be against the policy of the law for a master to allow his slave freedom and privilege to work and traffic m this State, to the extent of acquiring so large á sum as §1500.

(The case of While v. Cline, 7 -Jones’ 174, commented on and distinguished from this.)

Cause removed from the Court of Equity of Caswell county.

The bill was filed by the residuary legatees against the executor of the will of Nathaniel Lea, for An account of the funds in his hands and for the payment of their legacies; and on the coming in of the answer, a reference was made to Mr. *380McQ-ehee, as commissioner, to- state an account of the funding the hands of the executor, distributable under the residuary-clause of the will, and having reported, an-exception was-taken to a charge of $1560, made against him, on account of money in the hands of T. D; Johnson, belonging to Milly, a slave of the testator, for which Dr. N. M. Roam held his note, payable to himself, which is thus explained in the deposition of Dr. Boane : “About the 1st of March, 1855, and during the-last illness of Mr. Nathaniel Lea, I was at his house on a professional visit, and he remarked that his servant, Milly, had some money, which, she had accumulated by selling, for years, with his permission, surplus articles from his premises, such as fowls, butter, ice-cream, &c., and by manufacturing and selling various articles of bed-clothing,, which he wished me to take charge of and loan out — seeing that she had the benefit of the proceeds thereof. At first I declined, but upon the request being repeated with more earnestness, I consented to do so. In reply to the question by her master, how much money she had, Milly stated that she had already several hundred dollars-in the hands of Mr. Thomas D. Johnson, and that she had been collecting some other debts amounting in all to eleven or twelve hundred, dollars. The money did not pass-through my hands, but was carried by her (I presume) to Mr. Thomas D; Johnson, a merchant to Yanceyville, who shortly thereafter handed me his individual note, payable to myself, for twelve hundred dollars, with interest,, from the 1st of January, 1855, bearing date 2nd day of March, 1855, which bond I still have in my possession.” The commissioner’s report-showed that, at the time of taking the account, the accumula.-ted interest was $360, making the-whole sum $1560.

To this charge, the executor excepted, and the cause -was heard at this term on the exception..

Morehead, for the plaintiffs.

B. F. Moore and Rill, for the defendant.

PeaRSON, O. J.

The exception for, that the comissioner *381Ras charged the defendant with' $1560, the snm placed by ■slave, Milly, in the hands of Thomas T). Johnson, is allowed. This is not a debt dne to the testator, and the executor had <no means of collecting it,-either at Law or in Equity. If the dealing of the slave was lawful, that, of course, ends the matter, so far as the executor of the former master is concerned. If it was unlawful, as against the policy of the law, neither a court of Equity or of Law will aid in the matter; so the executor could not have collected the fund which Milly had been permitted to accumulate.

Iiow the question will be as between the trustee, Roane, and Johnson, who has executed to him his bond for the amount, this Court is not now at liberty to decide. It differs from the case of White v. Cline, 7 Jones’ Rep. 174, in two important particulars: In that case, the dome earned the money in the State of California. In this, it was earned in North Carolina: So it may be a question, whether the dealing does not come within the mischief intended to be prevent-de by our statutes, forbidding slaves from hiring their own time, or being allowed to go about and work, or not work, as they see proper.

In that case, the money was under the control of the master, and the Court say “ as long as the -master keeps the actu■al, as well as the legal control of the fund, it can no more en'danger the public .safety, than any other portion of his property.” In this, the fund is in the hand of a stranger, and ■neither the former master, or his personal representative, or, ■as we presume, the present owner of the slave has any control over the fund.

This Court has, in several cases, not only recognized the •fight of a master, but treated it as commendable, to adopt a system of rewards, 'by which a slave is allowed a half, or a whole day, every time “ the crop is gone over,” to work a patch of cotton,-corn or watermelons and the like, and to sell the proceeds, -so as to make a little money with which to ■buy small amounts of luxuries — sugar, coffee, tobacco, &c., ..and to indulge.a fancy for “finery in dress,” for which the *382African race is remarkable; but when it comes to an accumulation of $1500, the question is a very different one, and other considerations are suggested.

The privileges allowed a slave, in order to enable him to acquire that amount of money, extra, must, necessarily, in some degree, run counter to the policy of the statutes by which slaves are not to be allowed to hire or to have the use of their own time. The evil effects of allowing them to own property, such as hogs, cattle, &c., which induced the statute, Rev. Code, chap. 87, sec. 20, by which the property is forfeited to the wardens of the poor, apply, in some degree, to so large a sum of money invested on interest, and is certainly calculated to make other slaves dissatisfied, because they are not allowed the same degree of freedom and privilege, and should such a thing often occur, it would give rise to a kind of trust, of which the courts of Equity cannot take notice and enforce; see Barker v. Swain, 4 Jones’ Eq. 220. So, it would depend on the honesty, of the particular individual in whose hands the funds were placed, either to let the slave have the fund or to dispose of it as he might direct, or according to his will or dying request, or appropriate it to himself. Transactions leading to such results, are certainly not calculated to promote good morals, and should the evil become one of common occurrence, may call for some legislative enactment.

Pee Oukiam, Exception allowed.