Hall v. Cockrell. v. Wymansold, Hardres, 205; Furnivall v. Coombes, 5 Mann. & G. 736-752; Gill v. Brown, 12 Johns. Rep. 385. The instrument executed by them, as the same is set forth in the complaint in the case at bar, is under seal, and to it their names and seals are affixed. It does not purport on its face to be the deed of the corporation, nor to have been executed in its name and behalf. It does not contain any covenant on behalf of the corporation, that it will pay or do any thing. The seal of the corporation is not affixed to it. But, after setting forth in its commencement that the agreement contained in it was made and entered into "by and between Joseph W. Hall, of the first part, and the intendant and council of the town of Eutaw, of the second part", and then setting forth the covenants of "the party of the first part"; the instrument proceeds as follows-to-wit: "In consideration of which said services, the parties of the second part agree to pay the said Hall the sum of three hundred dollars ***"The on the first day of January, 1855," &c., &c. * * * street horse and cart are hereby reserved by the parties of the second part, to be disposed of as they may deem expedient and proper. In testimony whereof, the said parties have hereunto set their hands, and affixed their seals," &c. Conceding that the corporation may be liable in some mode and in some form of action, yet it is clear it cannot be sued on the instrument, as its deed, it not being in the name, nor under the seal, of the corporation.-Story on Agency, §§ 147, 148, 149, and cases cited in note 2 to section 149; Dawson v. Cotton, 26 Ala. 591. As the instrument cannot be deemed the deed of the corporation, it will be utterly without any legal effect, in favor of "the party of the first part", unless it be construed to be the deed of "the parties of the second part." The law will not impute to them the intention to do a void act; but, ut res magis valeat, quam pereat, it will rather be presumed that it was their intention, as agents, to be bound for their principal. They have, in the commencement of the instrument, described themselves as "the intendant and council of the town of Eutaw"; which may fairly be construed as a description of themselves as agents. But the covenants in favor of Hall, contained in the instrument, appear on its face to be the Hall v. Cockrell. covenants of the individuals who, as individuals, and as "the parties of the second part," entered into them, and who as individuals "set their hands and affixed their seals" to them. In the instrument, there are apt words to charge them personally, when construed in connection with their individual names and seals which they affixed to it, and with the act incorporating the town of Eutaw. The words, "the intendant and council of the town of Eutaw", as used in the instrument, may well be treated as a mere descriptio personarum; as a mere designation of the corporation, by whose authority and for whose benefit they were acting, and not as intended to exclude a personal responsibility.-Story on Agency, §§ 273, 278, 280, 281; Lazarus v. Shearer, 2 Ala. 724; Simonds v. Heard, 23 Pick. R. 120; Rossiter v. Rossiter, 8 Wend. 494; Arfridson v. Ladd, 12 Mass. 173. Without saying more, we sanction, as applicable to the case as now presented, the following doctrine: that where the instrument is under seal, and the agent is a direct party to it, and the principal is not, so that the latter is not, ex directo, suable thereon, there the agent, although he describes himself as agent, is suable upon the covenants and agreements contained therein, as his own personal contract. We admit, that this doctrine is not applicable to a case where the instrument does not contain any apt words to charge the agent personally, as illustrated in Hopkins v. Mehaffey, 11 Serg. & Rawle, 126; Story on Agency, §§ 278, 291, 270; Tippetts v. Walker, 4 Mass. R. 595. See also the authorities cited supra; Whiteside v. Jennings, 19 Ala. 784; Walker v. Swartwout, 12 Johns. R. 444; Aven v. Beckom, 11 Georgia R. 1, and authorities therein cited; Steele v. McElroy, 1 Sneed, 341. The action of the court below, in sustaining the demurrer to the complaint, was in conflict with the law as hereinabove declared, and was erroneous. Its judgment is therefore reversed, and the cause remanded. Stanley v. Nelson. STANLEY vs. NELSON. [ACTION ON NOTE UNDER SEAL GIVEN FOR HIRE OF SLAVE.] 1. Slave may be agent.-A slave may act as the agent of his owner or hirer. 2. Contract founded on illegal consideration.-A contract founded directly on an illegal consideration, whether the illegal act is in terms prohibited, or is only punished with a penalty,-is void. 3. Contract made with slave while suffered to go at large. If a slave, while permitted by his owner or hirer, contrary to the provisions of the act of 1805 (Clay's Digest, 541, § 12), to go at large, and to act as a freeman, makes a contract for the hire of another slave to work with him, and a white man gives his note under seal for the hire, the note is void. 4. Charge upon evidence, when erroneous.-A charge upon the effect of evidence, which is susceptible of a different construction from that placed on it by the court, is an invasion of the province of the jury, and therefore errone ous. 5. Appropriation by slave, while suffered to go at large, of proceeds of his labor.—If a slave, while suffered by his owner or hirer to go at large and act as a freeman, appropriates the proceeds of his labor, with the consent of his owner or hirer, to the payment of a debt, the owner or hirer cannot afterwards reclaim them; and, a fortiori, a third person cannot afterwards claim to have them applied in payment of a liability incurred by him for the slave. APPEAL from the Circuit Court of Limestone. This action was founded on a promissory note, of which the following is a copy: "$140. Twelve months after date, I promise (to pay), to the order of Thomas A. Nelson, one hundred and forty dollars, for the hire of George for the year 1852. Witness my hand and seal, January 2, 1852." A credit was endorsed on the note, in these words: "Rec'd $65 85 on the within, for R. Donnell's note, June 1, '53, less the interest off, January 2, 1853." The only plea was the general issue, "with leave to give in evidence any defense which would be good if well pleaded." On the trial, as appears from the bill of exceptions, after the plaintiff had offered in evidence the note declared on, the defendant read in evidence certain interrogatories which he Stanley v. Nelson. had propounded to the plaintiff under the statute, together with the answers thereto, which were as follows: "The hire of a negro boy, named George [was the consideration of the note sued on.] The price for the hire of said negro was agreed on with the boy Spencer, provided he brought me a note, or bond, from some responsible white man, who should control said boy George during that year. The said boy Spencer [handed me the note.] I did not make any bargain with the defendant at the time of hiring him said boy, but afterwards spoke to him on the subject, and he acknowledged the transaction. I do not recollect the time [of this conversation:] it was after the maturity of the note given for the hire, and on the public square in Athens. I spoke to the defendant several times about the note, and he never objected to its payment, or intimated that he was not bound for the same. The boy Spencer was engaged in the business of painting. The business [in which the boy George was to be employed] was not particularly agreed on, but I supposed he would be kept at his trade, which was painting. I did not hire him specially to learn the art of painting; he was then a good painter. The boy Spencer belonged, I think, to Mr. Thompson, though he was that year under the control of Wm. E. Hoke. I think he was in the habit of making his own contracts, which were sanctioned and acknowledged by said Hoke as his own. He continued to do this, so far as I know, during the year for which George was with him. I received from said Spencer that year, with the understanding that they were to go to the credit of an account due me for the hire of George for the preceding year, the following amounts for painting my house, $13 50; J. H. Malone's note, due January 1, 1853, $67 10. I also received from said Spencer, with the agreement that the same was to be credited on defendant's note, Robert Donnell's note, for work, paints, &c., furnished, which netted, on the 2d January, 1853, $65 85, and which I took for the protection of said defendant. In this item ($65 85) I think the work done was worth $20, or $25; the balance being for paints, &c., furnished. I do not know [whether the boy George was in the possession of the defendant, or served him, during that year.] I exercised no control over him during that year, presuming Stanley v. Nelson. that his owner for the time being (to-wit, said Henry Stanley) would direct his movements; and whether he got the benefit of his services, or any portion of them, I do not know." "The defendant also introduced as a witness William E. Hoke, who testified that he knew the boy Spencer, and that he belonged to Madison Thompson; that he had hired Spencer from his owner for the year 1852; that he permitted said Spencer, who was a painter, to go at large during the term of his hiring, to make his own contracts for work and services, and to collect the money therefor; that witness paid Thompson the hire, and that the understanding was, that Spencer was to pay witness the amount of the hire, and was himself to have the balance of his earnings; that Spencer brought him notes and accounts against persons for whom he worked, sufficient to pay said hire; that witness claimed nothing over what said hire amounted to, and recognized the right of said Spencer to make collections for his said work, but, if any had refused to pay, witness then considered that he had a right to sue therefor; that Spencer did business in the same way in the year 1851, and for several years prior thereto; that plaintiff's said boy, George, was with said Spencer during the years 1851 and 1852, and worked with him." "This was all the evidence in the cause;" and thereupon the defendant requested the following charges to the jury: "1. That if they found that the note sued on was given upon the contract, and in the manner, stated in the plaintiff's answers, then the plaintiff could not recover thereon; which charge the court refused to give, but instructed the jury, that if the note was given as specified in said answers, the plaintiff was entitled to a verdict. To the refusal to charge, and to the charge given, the defendant excepted. "2. That if they found that the note sued on was given for the hire of the negro boy George for the year 1852; that plaintiff bargained and hired said boy to Spencer, who was himself a slave, but was permitted by his owner to go at large and contract for himself, and received the note sued on from said Spencer, and never had any interview with the defendant until after the maturity of the note; and that said George worked with said Spencer during the term of hiring, |