
    John Harrison, v. Jefferson Berkley.
    For proximate and natural consequences, not controlled by the unforseen agen-'j cy of a moral being, capable of discretion and left free to choose, or by some unconnected cause of greater influence, a wrong-doer must generally answer, however small was the probability of their occurrence.
    Where the connexion is not immediate between the injurious act and the consequence, such nearness in the order of events and closeness in the relation of cause and effect must subsist, that the influence of the injurious act may predominate over that of other causes, and shall concur to produce the consequence, or may be traced in those causes.
    The consequence of an injurious act, for which legal redress is sought, should be natural as well as immediate, or proximate; and in proportion as one quality is strong, the other may be dispensed with; that which is immediate, cannot be considered unnatural; that which is reasonably to be expected, must be regarded, though it be considerably removed.
    Where a party, by his own injurious act, has brought into operation an agent, : >which concurred to produce the consequence, he is no less liable because it was / not immediate on his act.
    Although no express prohibition is contained in either of our Statutes, against dealing with slaves without license, the penalties imposed necessarily imply a prohibition, and make the act prohibited unlawful. For injury to the public, the remedy is indictment, but if a person has suffered a particular damage, he may maintain an action in respect thereof.
    Independent of any express statutory prohibition, the selling or giving of spirituous liquor to a slave, is so contrary to the rights of the master, and to the duties imposed upon oilier persons in a slave-holding community, that the person who does it without special matter of excuse, subjects himself to liability for all the legal damage that may thence ensue.
    If one sell spirituous liquor to another, knowing him to be employed to buy for a slave, he is as liable for all the injurious consequences arising from the abuse of that liquor by the slave, as if he had sold to the slave himself.
    Tried before Mr. Justice Wardlaw, at Kershaw, Spring Term, 1847.
    The following is the Report of the presiding Judge:
    This was an action of trespass on the case, in which the plaintiffsought to recover damages, for that the defendant, being a shop-keeper, in violation of the Statute on the subject, and to the wrong of the plaintiff, sold and delivered ardent spirits to Bob, a slave of the plaintiff, by means whereof the said slave became intoxicated, and died.
    It appeared that on the 24th day of December, 1845, Bob, being patroon of one of the plaintiff’s boats, on his way from Charleston, went into the shop of defendant in Camden, and there received a gallon jag and a quart bottle of whiskey, and started with them in the afternoon, to convey to his master in Fairfield, across the Wateree, intelligence of the boat’s arrival. Bob drank none at the shop, but drank repeatedly from the bottle before he reached the river, at the ferry, and afterwards; fell down in the road repeatedly; fell into a creek, in which he would have been drowned, but for the aid of some white men then in his company; and soon afterwards, at the fork of the roads, proceeded alone, staggering. He was clad in homespun, and had a bundle, besides the jug, on his back. The night was misty, and somewhat cold. He called at a house and got fire, returned and went again. Next morning he was found dead near the house where he had called; the jug of whiskey full and corked near him, the bottle not to be seen; and upon movement of his body, a fluid smelling like whiskey flowed from his mouth. A physician examined his body upon the inquest, but could discover no external injury; and from the want of rigidity in the muscles and other appearances, had no doubt that he died of drunkenness and exposure.
    A witness for the plaintiff swore positively that he was present in the defendant’s shop, and saw Bob hand his jug and bottle empty to the defendant, and receive them from the defendant full of whiskey, this conversation passing; defendant to Bob, when he handed back Iho jug, ‘Now, mind, old fellow, don’t hurt yourself or me either.” Bob, “No, sir, I wont hurt you or myself either. How much do I owe you?” Defendant, “two dollars.” Bob, “I’ll pay you to-morrow when I come to unload the boat.”
    A brother of the defendant (as to whom eight witnesses testified against his credit, and four in favor of it,) and one Shegog, who was acting as occasional assistant in the shop, testified that Bob applied to the defendant for liquor, but the defendant refused to let him have it. Eli Bass, a free negro, (who was chief patroon of the fleet to which Bob’s boat belonged,) then took the jug and handed it to the defendant, who filled it and handed it back to Bass, who delivered it to Bob, there being no bottle then seen.
    I submitted to the jury the question of fact, whether the defendant sold or delivered the liquor to Bob, saying, upon a proposition urged by the plaintiff, that if the sale was really made to Bass, the defendant was not answerable, although he may have suspected that Bass would deliver the liquor to Bob; but that if the defendant knew that Bass was employed as a mere instrument to enable Bob to make the purchase, such an artifice would place the defendant in no better situation than if the delivery had been direct to Bob.
    The question mainly argued, was, as to the liability of the defendant for the death of the negro, said to be a consequence of his wrongful act.
    I held, that for truly proximate consequences, which, in the ordinary course of nature, do actually result from a wrongful act, even where there is no wicked intention, recovery to the extent of the actual loss may be had, although the consequences may be such as are neither necessary nor easy to be foreseen.
    That where there was fraud, malice, gross negligence, or active evil intention, consequences less truly proximate may be regarded, and damages be carried beyond the actual loss.
    That in a case where no aggravation from evil motive arose, (and such I thought this case,) natural consequences, not immediately proximate, would be considered, if they were probable; but either those consequences called remote, or those less pi'oximate consequences which were improbable, would be disregarded.
    Assuming then, that there was in this case, no aggravation from evil motive, and that the injurious consequences were not immediately proximate, I left it to the jury (if they should find that the defendant had been guilty of the wrongful act of selling or delivering liquor to a slave,) to decide whether the drinking, intoxication, exposure and death of the slave, were the natural and probable consequences of that wrongful act—holding that if so, the defendant was answerable for the value of the slave.
    I endeavored by various instances to illustrate the meaning of the terms I used, and to explain the difference between damages actual and speculative, proximate and remote, probable and contingent, natural and extraordinary; and difficult as it was, by instances, to show these diversities, I find it much more difficult by any general terms, to give precision to the propositions I laid down.
    The jury found for the plaintiff six hundred and fifty dollars; and the defendant appeals on the grounds annexed.
    The defendant gives notice that he will move the Court of Appeals for a non-suit in this case, on the ground that the declaration and proof made no sufficient cause of action in law-That the injury was too remote. Failing in this,then for a new trial.
    1. Because his Honor charged the jury, that if the defendant knew that the whiskey was intended for Bob, when he delivered it to Bass, he is as liable as if he had delivered it to Bob.
    2. Because his Honor charged the jury, that if the natural and probable consequence of giving the liquor to Bob, was that he would drink, the defendant is liable for his value, if he died.
    3. Because Bob did not die from the effect of the liquor alone, but from the combined effect of the liquor and exposure* for the latter of which the defendant is not liable, and therefore not liable at all.
    4. Because the damage was too remote from the injury, and not a necessary, natural or probable consequence of the wrong.
    5. Because the verdict is clearly against the evidence.
    J. M. DeSaussurc, for the motion.
    It has been taken for granted, that the violation of a penal statute gives a remedy for private injury. The statute may, but does not give any private remedy. The Statute of 1817 first prohibited sales to negroes; the declaration is deficient, being based on this Statute, and thence we claim a non-suit; Sedgwick on the Measure of Damages, 31. There must not only be loss, but there must be legal loss to the plaintiff. This case differs from that wherein a man meddles with another’s slave, not in his employment, and he is injured or killed. A second agent (exposure) was to be resorted to, to account sufficiently tor the death, Abnor v. Har-gos, 5 Hill’s N. Y. Rep., 473; Broom’s Legal Max., 105; Sedg-wick, 63; the direct pecuniary damage is the measure of reliel; Greenleaf Ev., 210. The injury must also be the natural and proximate consequence of the act complained of. The Court should decide what is natural or proximate, and not the jury; they are to find the facts, and the Court define their legal effect. A negro is a free agent, and could have bought a knife and murdered himself or another; a third cause, his will, has acted. The direct effect creates the liability of the party; Wright v. Gray, 2 Bay, 264; Loper v. Damon, 17 Pick., 284. If the consequences might have been prevented, they shall not be referred to the act complained of. The defendant had a right to sell to the free negro, although he knew it was for the slave.
    Smart, contra.
    
    The original illegal act will make the party liable, no matter how remote the effect. In Strawbridge v. Turner, 9 Louisiana Rep., 213, the slave jumped over-board and was drowned, to get from his master attempting to recover him from one who had hired him to work on a Steam-boat.
    Gregg, same side.
    The question is, whether the injury or damage done by the defendant to the plaintiff is too speculative, contingent, and remote, to sustain the action? It is not correct to say that the action cannot be maintained, because the injury or damage is consequential, as has been argued by defendant’s counsel. For, the principal circumstance which distinguishes the action of trespass on the case from trespass vi et armis, is, that the former lies for consequential damages. It may so happen, that some consequential damages may be too speculative, contingent and remote, to support an action, whilst others are not. And although it may not be practicable to draw, with exactness, the line of demarcation, which separates the one class from the other; although an exact definition cannot be given; yet a due consideration of the subject, and a reference to the decided cases, will show that the injury or damage complained of in this case was not too speculative, contingent and remote. A similar difficulty in relation to the jurisdiction of equity. The injurious act, complained of, was the selling of the whiskey to the slave; and the injurious consequence was the death of the slave; and we are to inquire whether his death was the direct, natural, and certain consequence of the selling of the whiskey ? or whether it was too contingent, remote and uncertain? It may assist in this inquiry to advert to the principle, upon which such actions are maintained. The principle is this, that whenever one illegally interferes with the property of another without his consent, he is answerable for the consequences of such interference, whether he intended any injury to the owner or not. In Wright v. Cray, 2 Bay Rep., 464, Gray, being concerned in a horse race, had, without Wright’s permission, persuaded his negro boy to ride his horse, which, in the race, threw the boy against a tree and killed him. The jury having found a verdict for the plaintiff for the value of the boy, a motion was made for a new trial, which the Judges unanimously refused, upon the ground, as set forth in the report, “that a man, who officiously presumes to interfere with, or make use of, the property of another without his permission, is liable for all the consequences of such interference, whether he intended any injury to the owner or not.” Upon the hearing of that case in the Constitutional Court, there were, besides Judges Grimke and Bay, Judges Waties, Johnson, Trezevant, and Brevard; a very able bench.
    In M’Daniel, v. Emanuel, 2 Rich. Rep., 455, the plaintiff’s negro, Jack, had been employed by the defendant’s agent on his boat, without the consent of his owner, according to the weight of the evidence, and fell overboard, and was drowned; though there was some evidence to show that Jack was employed with the consent of the owner; and there was also some evidence to show that Jack was drowned by the negligence of the defendant’s agent, the Captain of the boat. His Honor Judge Butler, who tried the cause, states in his report, as his instruction to the jury: “Taking this view of the facts, (that is, that Jack was employed without tiie consent of his owner,) I was of opinion, that the Company was liable for the loss of Jack, even if it should appear that his death resulted from one of the ordinary perils incident to the navigation of the boat, and without any actual fault on the part of the Captain at the time the catastrophe occurred, upon the ground that Jack had been used by the agent of the Company, in a way different from the understanding of Waterman, and in opposition to the instructions of his master, (that is, without the consent of his master.”) And below the Judge proceeds: “I said, however, that a different view might be taken of the case. If Waterman had not effectually discharged Jack from the service of the boat, so as to bring that fact home to the knowledge of the Captain, the latter might well regard him as one of the boat’s crew; and as such the negro was to be regarded in the service of the Company from the time he left Georgetown. If this view of the case was to prevail, I charged the jury the Company could not be held liable for the loss of Jack, unless it resulted from some wilful misconduct of the Captain, or such as should be regarded in the light of cressee negligentia.” His Honor, Judge Richardson, who delivered the opinion of the Court of Appeals, says : “Either Jack was on board the boat as a hired boat hand, or ho had been discharged; but was still retained by the Captain, and used as a boat hand, against the will and consent of his owner, the plaintiff. The law, as applicable to the former or latter position of Jack in the boat, was fully laid down by the Judge. If the jury should find that he was still a hired boat hand, then he had to run the usual risk of a boatman, and nothing but the wilful misconduct or culpable negligence of the Captain would render the owners liable for the loss of Jack. The other part of the charge is equally plain. The jury were to decide, first, if Jack had been discharged as a hired boat hand; if so, secondly, whether the Captain did not again retain and use Jack as a boat hand, without the consent of his owner, and when Jack had become a passenger. If he was so again retained and used, then the defendant was liable for the loss of Jack, even without wilful misconduct or culpable negligence on the part of the Captain. Such unqualified liability for the consequence of interfering with, and using the property of another, without his consent, was decided in the case of Wright v. Gray, 2 Bay, 464. Other cases of the like kind have occurred, and this rule of strict accountability applies emphatically to the unauthorized use of slaves.”
    In Duncan, v. The Rail-Road Company, 2 Rich. Rep., 613, the plaintiff’s negro, Wesley, was carried on the rail-road car without the consent of his owner, and in jumping off was killed. His Honor, Judge O’Neall, in delivering the opinion of the Court, says: “In such a case, (that is, carrying the slave on the rail-road car without the consent of his owner,) it is in vain to say that the slave was a moral agent, capable of wrong, as well as of right action, and that he killed himself by jumping off when he ought not.” Referring with approbation to Straw-bridge v. Turner, 9 Louis. Rep., 213, where the Captain of a steam-boat took into service the slave of the plaintiff, and without his consent; and the slave having been drowned by jumping or falling over-board, the defendant was held liable» upon the ground of illegal employment. So, if Mr. Myer’s slave should, without his permission, get on the rail-road car at Columbia, to go down to his plantation, a dozen miles below, and should be killed in jumping off opposite the plantation, the Company would be held liable, upon the same ground, that they had illegally interfered with the slave without the consent of his owner. It will appear from all these cases, that che liability of the defendant does not depend so much upon the probability of the injurious consequence at the time the injurious act is committed. Much less does it depend upon the question, whether the injurious consequence must necessarily follow the injurious act. When Wright’s boy was employed to ride the race, who could then say that his death must necessarily follow from it? or that his death was ever probable? When M’Daniel’s Jack was employed on the boat, who could then say that his death must necessarily follow from it? or that his death was even probable? When Duncan’s Wesley wp,s allowed to go on the rail-road car, who could then say that his death must necessarily follow? or that his death was at all probable? When Berkley sold the whiskey to Bob, his death from it was certainly as probable, as the death of Wesley from going on the rail-road car.
    The liability of a defendant depends much more upon the illegal interference with the property of another, together with the certainty that the injurious consequence complained of, has resulted from the illegal act. The interference with Wright’s boy, and with McDaniel’s Jack, and with Duncan’s Wesley, was illegal upon the general principles of the Common Law. The interference with Bob was illegal, not only upon the same general principles of law, but especially so, by virtue of the penal act against selling liquor to slaves ; although when Wright’s boy was employed to ride the race, his death from it was not then probable; yet, after he was killed, none would doubt that his death resulted from that employment; it was the direct and natural consequence of it. When McDaniel’s Jack was employed on the boat, although his death from it was not probable; yet, after he was drowned, no one could doubt that his death resulted from that employment; it was the direct and natural consequence of it. And so when Duncan’s Wesley was allowed to go on the rail-road car, although his death from it was not probable; yet, after he was killed, no one could doubt that his death resulted from his being allowed to go on the rail road car; it was the direct and natural consequence of it. And although when the defendant sold the whiskey to the plaintiff’s Bob, his death from it was not probable; yet after hearing the evidence in the case, and after the verdict of the jury, no one can doubt that his death resulted from the selling of the whiskey to him; it was the direct and natural consequence of it. In the language of Judge O’Neall, in Duncan v. The Rail Road Company, it is in vain to say that the slave was a moral agent, capable of wrong, as well as oí' right, action; capable of drinking the whiskey, as well as of refraining from drinking; capable of drinking immoderately, as well as of drinking moderately; and that he killed himself by drinking too much. The whiskey was purchased by Bob, for the express purpose of drinking it; that was the express object of the purchase, and that was the only use to which it was to be applied; both the object and the use were fully known to Berkley. The immoderate use of the whiskey, to which Bob was naturally liable, might not only be injurious to him, but might occasion his exposure to the inclemency of the weather, as well as his death. That was the direct and natural, and, in some degree, probable, consequence of the immoderate use of the whiskey. Suppose Bob had drunk the whiskey in the shop, and become very drunk, and had fallen upon a bar of iron lying on the floor, and had cracked his scull; would any one say that his death in that case was not the direct and natural consequence of buying and drinking the whiskey? Suppose, after getting very drunk in the shop, he had attempted to go out, and had fallen from the door and broken his neck; could any one doubt, in that case, that his death was the direct and natural consequence of buying and drinking the whiskey? Suppose, after getting very drunk, and crawling out of the door, he had staggered about and fallen into a well close by. and had broken his neck, who would doubt that his death, in that case, was the direct and natural consequence of buying and drinking the whiskey? It cannot, therefore, make any difference whether the injurious consequence took place in the shop, or at the door, or in the yard, or five miles off. In the cases of Wright’s boy, and McDaniel’s Jack, and Duncan’s Wesley, the injurious consequence could not, from the nature of the cases, take place any where else than with the horse, at the boat, and at the rail road car; but the injurious consequence to Bob could as directly and naturally take place a mile or four miles from the shop, as in the shop, and in the very act of drinking. Suppose, instead of being killed on the spot, Duncan’s Wesley had received a very bad hurt, from which he died a month afterwards, and ten miles from the place; could that make any difference? The true question is, not whether the injurious consequence took place at the same moment with the illegal act of interference; but whether it resulted directly and naturally from such act of interference. Suppose Bob had gone to Berkley to buy a dose of salts, and Berkley had sold him saltpetre, which Bob did not swallow until he reached home, and it had killed him; could Berkley escape liability upon the ground that the injurious consequence did not take place in the shop, and while in the act of his illegal interference? The true question in that case would be, whether the injurious consequence complained of, to wit: the death of Bob, resulted from the illegal act of interference in selling the salt-petre? Or, suppose Berkley had sold Bob the salts, but for his own sport had put a small portion of cantharides in it, which Bob took after going home, and which killed him; would the defence be listened to, that the injurious consequence had not taken place in the shop, and at the time of the illegal act of interference? Suppose Bob had purchased laudanum? Nor will it answer to say, as in the third ground of appeal, that Bob did not die from the effect of the liquor alone, but from the combined effort of the liquor and exposure. Because the direct, and natural, and probable, and I might almost add> necessary consequence of the intoxication, was the exposure to the inclemency of the weather. And it might with as much reoson be said, in the cases I have already put, that Bob did not die from the effect of the liquor alone, but from the combined effect of the liquor and the bar of iron; or from the combined effect of the liquor and the fall from the door; or from the combined effect of the liquor and the tumble in the well. And it might with as much reason have been said in Duncan v■ The Rail Road Company, that Wesley did not die from the effect of riding on the car alone, but from the combined effect of riding on the car and the soft sand; for it appears from the report of that case, that if the ground on which Wesley jumped had been hard, instead of being soft sand, he might not have been killed; but the jumping on the soft sand was the direct and natural, though not the probable consequence, of riding on the car. It seems that Bob was the plaintiff’s patroon of his boat, which had just arrived at Camden from Charleston. Now if, instead of the boat’s having just arrived, it had been just loaded with cotton of another person, which the plaintiff, under a heavy penalty, had agreed to deliver in Charleston by a certain day; but the delivery of which was delayed ten days in consequence of the deatli of Bob, when cotton had fallen in price two cents a pound, which the plaintiff had been obliged to pay; and this action had been brought to recover that damage; then it might be said with some semblance of reason and authority, that such consequential damage was too contingent and remote.
    In Lightner v. Martin, 2 McCord’s Rep., 214; the negro purchased by Lightner had communicated the disease under which she labored to his other negroes, whereby he incurred great loss and expense; and that injurious consequence was held to be too remote, as it would seem; but if the seller of the negro had known of her unsoundness, then it would not have been considered too remote.
    
      Accordingly, if one, knowing that his negro had been a few days before exposed fully to the small pox, should sell him to another, without communicating that fact, and the purchaser should put this negro on his plantation with his Other negroes, and the small pox should break out, and be communicated to two other negroes, who died from it, the seller would be held answerable for their value, and that injurious consequence would not be held too remote.
    In Jeffrey v. Bigelow, 13 Wend. Rep., 518, the defendant’s agent sold a flock of sheep that had a contagious disease, knowing that they had such disease, to the plaintiff. The sheep purchased communicated the disease to the plaintiff’s other sheep, many of which died, and the value of which he recovered, the Court not considering this injurious consequence too remote.
    In Nurse v. Barnes, Sir Thomas Raymonds’Rep., 77, plaintiff had rented from defendant his iron mills, worth twenty pounds a year, for six months, at ten pounds. Plaintiff laid in a stock worth five hundred pounds, and defendant refused to let him have the mills. Damages were given for five hundred pounds, and this injurious consequence was not held too remote.
    In Dcrvent v. Wiltre, 9 Wend. Rep., 335, the plaintiff had rented a ferry across the Hudson, at Newburgh, to defendant, who agreed to keep the ferry in order; instead of keeping the ferry in good order, he discontinued it. and kept the ferry at another wharf, his own; in consequence of the removal of the ferry, the plaintiff lost the rent of his Inn by the ferry; and this injurious consequence was held by the Court to be legal and natural, and not too remote, and for that the plaintiff recovered two hundred and twenty-five dollars.
    In Borradaile v. Brunton, 8 Term Rep., 535, (4 Com. Law Rep., 202,) a cable sold by defendant to plaintiff was warranted for two years; within the time it broke, and the anchor attached to it was lost; and it was hold, that this consequential damage was not too remote, and the plaintiff recovered for the value of the anchor as well as of the cable.
    In Carrington v. Taylor, 11 East Ilep., 571, the injurious act of defendant complained of, was firing guns near the plaintiff's decoy pond; the injurious consequence sued for, was that the wild fowls were frightened away; and this was not held too remote.
    In Tarleíon v. McGawley, Peake’s Cas., 205, the injurious act complained of was firing at the negroes on the coast of Africa; and the injurious consequence complained off that the negroes were thereby deterred from trading with the plaintiff, so that he lost their trade; was held not to be too remote.
    In Lincoln v. The Saratoga Rail Road Company, 23 Wend. Rep., 425, the injurious act complained of was, that defendant’s agent had broken plaintiff’s leg; and it was held that the present and probable future condition of the limb were proper matters for inquiry; but that the consequences of a possible second fracture were too remote.
    In Ford v. Monroe, 20 Wend. Rep., 210, the injury complained of was, that defendant had driven his gig over plaintiff’s child, of about ten years of age, and killed it; and the injurious consequences complained of were, the loss of the child’s services for eleven years, and the expense of curing the mother of the child, rendered ill by the occurrence; and neither was held to be too remote.
    In Gunter v. Astor, et al,, 4 Moore’s Rep., 12; (16 Eng. Com. Law Rep., 357) the injury complained of was, that defendants had invited plaintiff’s servants to dinner, and induced them to leave him; the injurious consequences complained of was, that plaintiff had lost the profits of the sales of pianos for two years; and this was held not to te too remote, and a verdict wTas given for that amount, although the servants were not hired by the plaintiff’ for any definite period, but worked by the piece.
    In that case, Mr. J. Richardson remarks:—-“The measure of damages he is entitled to receive from the defendants, is not necessarily to be confined to those servants he might have in his employ at the time they were so enticed, or for the part of the day on which they absented themselves from his service; but he is entitled to recover damages for the loss he sustained by their leaving him at that critical period.”
    In Davis v. Garrett, 6 Bing. Rep., 716; (19 Eng. C. L. Rep., 212,) the defendant undertook to carry a quantity of plaintiff ⅛ lime in his barge from Medway to London, and in going to London, deviated from the usual course, and during the deviation, a tempest wet the lime, whereby it set fire to the barge, and the whole was destroyed; it was held that the cause of plaintiff’s loss, to wit: the deviation from the usual course, was sufficiently proximate to entitle the plaintiff to recover, although the immediate cause of the loss was the wetting of the lime by the tempest. In that case, the wrongful act was the deviation from the usual course, and the injurious consequence was the loss of the lime by first getting wet in the tempest; and secondly, from its natural quality, setting fire to the barge; and it was held not to be too remote, although it was contended that there was no natural connection between the wrongful act, to wit: the deviation and the loss of the lime, as the same accident might have happened in the usual course: and in Tindall, C. J. says,—“no wrongdoer can be allowed to apportion or qualify his own wrong; and that as a loss has actually happened whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action, the bare possibility of a loss, if his wrongful act had never been done.”
    The case of Flower a. Adam, 2 Taun. Rep., 314; (cited by defendant’s counsel,) can have no application to the case before the Court, unless the plaintiff had been along with Bob on his way home, and had allowed him to drink, and lie out all night. Similar to Miller v. Mariner’s Church, 7 Grunl. 51, and Loker v. Damon, 17 Pick. 234. Nor can the case of Boyce v. Brandon, 13 Mee. and Weis. 738, (cited by defendant’s counsel,) have any application to the case before the Court. In that case, the illegal act was the illicit connection with the daughter; and the injurious consequence complained of was loss of service» arising from the illness of the daughter; and a question made on the Circuit was, whether the illness was occasioned by the illegal act, to wit: the illicit connection, or the discontinuance of it; and Pollock, C. B., who tried the case, thought it was occasioned by the discontinuance of the illicit connection; and no doubt he was correct, because if the defendant had continued the connection, it appeared from the evidence that the girl would have remained as hearty as ever. However, as there was some doubt on the point upon the hearing before all the Barons, the case was sent back for a new trial upon that point, unless the plaintiff would consent that the defendant should have a nominal verdict upon the plea of the general issue; to which the plaintiff’s counsel consented. There was also a plea of payment in that case, and the following (copy) receipt was offered in evidence, to-wit: “Received of W. Brandon, by the hand of his friend, the sum of £10, in addition to the various moneys received of him at different times, in full satisfaction and discharge of any favors conferred or services rendered to him by either of us, at any time during our acquaintance, and which sum we hereby acknowledge to be ample remuneration, and we beg to return him our best thanks for the same;” and no doubt this receipt had weight with both the Chief Baron and the Jury, on the other question.
    In Carey v. Brooks, 1 Hill Rep., 365, (cited also by defendant’s counsel,) the defendant Brooks had not interfered with any person’s property; he merely abated a nuisance upon his own land, by cutting a dam which Marsh had erected, and caused the water to overBow his land; though the consequence of cutting the dam was the obstruction of the navigable creek. The injurious consequence complained of, was the expense of removing the obstruction, and the delay of plaintiff’s lumber to market. Judge Harper, who delivered the opinion of the Court, seemed to think there was something peculiar in this respect to the action of nuisance, and that the action could not be maintained if the damage was consequential; and after citing the following paragraph from Bac. Abrid., to wit: “But if a highway is stopped, that a man is delayed in his journey a little while, and by reason thereof, he is damnified, or some important affair neglected, this is not such special damage for which an action on the case will lie; but a particular damage to maintaining this action ought to be direct and not consequential; as for instance, the loss of his horse, or some corporal hurt in falling into a trench on the highway, &c.” The Judge adds, “ this seems to be the settled law, founded on the convenience of allowing a separate action to every individual who suffers an inconvenience common to many. The motion for a new trial is therefore granted.” And in some other elementary books, besides Bacon, it is stated, “ that the particular damage in the case of nuisance, must be direct and not consequential.” But this is all very loose and incorrect, and using the word consequential in a very erroneous sense; because, in every case of nuisance, the damage is consequential.
    In Chichester v. Lethbridge, Willis’ Rep., 71, the action was held to lie for obstructing the wall by a ditch and gate, so that the plaintiff was delayed, and was thereby obliged to go a longer and more difficult way.
    In Hughes v. Heiser, 1 Bin. Rep., 463, the defendant had erected a dam across a navigable river, so that plaintiff’s raft of timber was stopped from going down, and it was held that an action would lie, the river being a public highway, and the stopping of the raft, a special damage. In that case, the damage or injury was clearly conseqential, just like the stopping of Carey’s lumber.
    In Shaw v. Cummiskey, 7 Pick. Rep.. 76; impure water from the defendant’s brewery had been discharged into plaintiff’s clay pits, by drains dug by defendant from his premises to plaintiff’s; the water became stagnant and offensive, and was declared to be a nuisance, and plaintiff was compelled to remove it; and it was held that the defendant was liable for the expense of removing the nuisance, or filling up the pits; and in the same manner, or upon the same principles, Brooks was liable for the expense of removing the obstruction in the creek which Carey had been put to.
    In The King, v. The Inhabitants of Taunton, 3 M. & S., 465, it wras held, that if a party living in the neighborhood, and who has been in the habit of passing to and fro on the highway, be obliged by a nuisance thereto, to take a more circuitous route in his transit to and from the nearest market town to his house, it is a private injury, for which he may sue as well as indict. But in that case, the injury or damage is clearly consequential.
    
      In Wilkes v. Hungcrford Market Company, 2 Bing. N. C., 281, (29 Eng. C. L. Rep., 336,) the plaintiff was a book-seller, whose shop was by a public highway, and the persons passing in that highway had been in the habit of trading with him, and thereby he had made great profits. The defendants obstructed the highway, and thus prevented passengers from trading with plaintiff; and the action was brought for the damage resulting from the loss of that trade, and was held well to lie. Here the damage was not only consequential, but tolerably remote; certainly more so than the damage Harrison sustained.
    In Rose v. Miles,4M. and S., 1101,it was held, that a nuisance preventing plaintiff from navigating bis barges on a public navigable creek, and compelling him to convey his goods out of the same over a great distance of land, was actionable. Here was the same sort of damages complained of in Carey & Brooks.
    In Greasly v. Codling, 2 Bing. Rep., 2G3, (9 Eng. C. L. Rep., 407,) it was held, that being delayed four hours by an obstruction in a highway, and being thereby prevented from performing the same journey as many times in a day, as if the obstruction had not existed, is a sufficient injury to entitle a party to sue for the nuisance.
    Enough has been said and shown to satisfy the Court that the case of Carey and Brooks can be no authority whatever in an analogous case. Besides, in that case, there is the opinion of his Honor, Judge Richardson, and Judge O’Neall, against the opinion of Judges Harper and Johnson; and the cases I have cited show clearly that the former opinion is correct.
    In Johnson v. Courts, 3 liar. <& MTIcn. Rep., 510, the injurious act complained of, was, that defendant had driven away plaintiff's negroes, and the injurious consequence complained of, to wit, loss of crop, was held not to be too remote.
    In Lynch v. Nurdin, 1 Adol. & Ellis Rep., N. S., 29, (41 Eng. C. L. Rep., 422.) the defendant’s servant had left his horse and cart in the public street, where children might be playing; the plaintiff, who was a child between six and seven years of age, and several other children, played about the cart and the plaintiff got into it, and another boy led the horse out; and as the plaintiff was getting out he tell, and the cart wheel run over his leg and broke it. It was contended, that the mischief was not produced by the unlawful act of the servant alone, but by that combined with two other active causes, namely, the advance of the horse caused by the other boy, and the plaintiff’s improper conduct and trespass in mounting the cart. Lord Denman says: “Certainly he was a co-operating cause of his own misfortune, by doing an unlawful act; and the question arises, whether that fact alone must deprive the child of his remedy?” And after making several observations, and citing several authorities, the Chief Justice goes on to remark: “But the question remains, can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in fault? The answer is, that supposing that fact ascertained by the jury, but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to the temptation. He has been the real and only cause of the mischief.” And the verdict of the jury for the plaintiff was sustained. In that case, when Nurdin’s servant left his horse and cart in the street, no one could say that the breaking of Lynch’s leg was probable; and certainly that was a more remote consequence than the death of Bob from the whiskey; and most certainly not aprox-ímate consequence.
    In Burnett v. Lockwood & Carter, 20 Wend. Rep., 223, Burnett had taken a horse and wagon of Lockwood & Carter, from their bailee, Crippen. Lockwood & Carter spent four days in searching for the horse and wagon, and incurred other expenses in the search. A verdict was given for the time spent, and expenses incurred in the pursuit. It was objected that the damages were too remote. But the verdict was sustained by the Supreme Court, and in the opinion delivered by Nelson, Chief Justice, considerable stress was laid on the circumstance that the damages were occasioned by the wrongful act of Burnett. And certainly the time spent and expense incurred were not the proximate consequence of the wrongful act, though the direct, natural and certain consequence of it.
    It will be seen, by the foregoing cases, how difficult it is to draw the line which separates injurious consequences too remote, from those that are not too remote; to give a definition, or even description, that will embrace all injurious consequences too remote, and one that will embrace all injurious consequences not too remote. This difficulty has led some elementary writers, as well as some Judges, in delivering their judicial opinions, to remark that, “no settled rule or line of distinction can be marked out when a possibility of damages shall be accounted too remote to entitle a party to claim recompense; each case must be ruled by its own circumstances.” I Bouvier’s Law Die., 403, Damages; Ham. Ni. Prius, 40.
    Whether the damages or injurious consequences will be considered too remote or not, depends somewhat upon the nature of the action, whether upon contract, or for tort. In some cases it may depend in some measure upon the knowledge of the offending party, as to the probable effect of his injurious act. Various expressions used. Dr. Greenleaf. in his Law of Evidence, 2 vol., page 210, does say: “The damage to be recovered must always be the natural and proximate consequence of the act complained of;” citing Ashley v. Harrison, Armstrong v. Percy, and Vickers v. Wilcox. But Mr. Sedgwick, in his valuable treatise on the measure of damages, after referring to the above passage from Greenleaf, says: “But it is far easier to lay down a general proposition than to apply it to a particular case. When we come to analyze causes and effects, and undertake to decide what is the natural result of a given act, and what is to be regarded as unnatural, what is proximate and what remote, we shall find ourselves involved in serious difficulty. Many things are perfectly natural, and yet very remote consequences of a particular act; many other results are proximate, nay, immediate, and yet so little to be expected that they can scarcely be pronounced natural. Nor does the requirement that the damage be, both natural and proximate, relieve us from the difficulty.” Page 75. The expressions used in the great majority of cases on the subject, are not “natural and proximate,” but “natural and direct.”
    And in Armstrong v. Percy, 5 Wend. Rep., 538, which was on a contract, Marcy J. says: “If the damages claimed do not naturally arise from the fací, (the injury complained of,) they can not be recovered, unless they arc particularly stated in the declaration, and not then, if they are not proximate. Consequential damages may naturally arise from the mere breach of a contract, but they often depend on the peculiar circumstances of the case. Such are allowed without being stated in the pleadings, as are the fair, legal, and natural result of the breach of the defendant’s agreement. If they do not thus result, the jury cannot allow them, unless they are stated in the declaration, and established by proof.” And Dr. Grcenleaf says, at the same page, 210: “But where the special damage is properly alleged, and is the natural consequence of the wrongful act, the jury may infer it from the principal tact.” And that comes nearer the true and correct principle which I have been endeavoring to establish by the foregoing cases, to wit, that where the act of the defendant complained of is wrongful and illegal, as is admitted in this case, the true question for the determination of the jury, (without; being trammelled by technical rules, not fully understood by lawyers or Judges, and utterly incomprehensible by the jury.) is, whether the injurious consequence complained of did naturally and certainly result from the injurious act? Whether, in this case, the death of Bob did naturally and certainly result from the selling of the whiskey to him ? This was a mixed question oí law and fact, proper for the jury, and was fully and fairly submitted by his Honor to the jury, who have found that the death of Bob did certainly result from the selling of the whiskey to him; and this Court will say in substance, what was said in all the foregoing cases, that the verdict of the jury will not be disturbed. There are many cases of slander that might seem to have a bearing upon the subject, but would not throw much light upon it.
    In Kelly v. Partington, 5 Barn. & Adol, G45, (27 Eng. C. L. Rep., 147,) Patterson J. says, “I have always understood that the special damage must be the natural result of the thing done.” And a little below, “But if the matter was not in its nature defamatory, the rejection of the plaintiff can not be considered the natural result of the speaking of the words.”
    In Ashley v. Harrison, 1 Esp. Rep., 48, Lord Kenyon said, “The injury was too remote, and impossible to be connected with the cause assigned for it.” Here Lord Kenyon shows what he, meant by saying the injury was too remote, and that is, that the injurious consequence did not in reality, result from the act, or words spoken by the defendant.
    In Knight v. Gibbs, 1 Adol. & Ellis, 43, (28 Eng. C. L. Rep., 30,) the injury complained of, to wit, the dismissal of the plaintiff from the service of Enoch, was the remote consequence of the speaking of the words, and was the proximate consequence of the fear of offending the defendant, the landlord of Enoch. It is true, that the dismissal of the plaintiff from the service of Enoch resulted from the speaking of the words, but in a very remote and round-about way; and according to the evidence in that case, the proximate cause of the dismissal of the plaintiff was the fear of offending the defendant, Gibbs. Verdict for plaintiff sustained. For instances in which the argument, that the damage assigned was too remote, has been held unavailable. See the cases cited in the Note to Vicars v. Wilcocks, 2 Smith’s Leading Cases, 303, in margin, 327, at top, and in 2d column; 34 Law Lib.
    In Knight v. Gibbs, Lord Denman says: “The proper question is, whether the injury was sustained in consequence of slanderous words having been used by the defendant.”
    In 1 Saund, PI. and Ev., 344, (margin,) it is laid down: “The special damage must also be proved to be the natural consequence of the tort.”
    It will, therefore, be seen from many of the cases, that in order to maintain the action, the injurious consequence complained of, need not necessarily be cither probable, or direct or legal, or proximate; but that it is sufficient if it is the natural and certain consequence of the injurious act; of which the jury are to judge and decide.
   Warólaw J.

delivered the opinion of the Court.

This action is novel in the instance, but that is no objection to it, if it be not new in principle. The law endures no injury, from which damage has ensued, without some remedy; but directs the application of principles already established, to every new combination of circumstances that may be presented for decision.

it has however, been urged hero again, as it was on the circuit, that admitting every thing which the plaintiff has alleged, he has presented either a case of damage without legal injury, or a case of injury without legal damage.

First. Damage without injury. It is said, that the act of selling or giving whiskey to the slave, Bob, was not in itself a wrong to the plaintiff, but was only a violation of a penal statute, which has imposed upon such acts penalties, to be recovered by indictment; and that, therefore, no action by the plaintiff lies, nor any remedy buttheindictment prescribed by the statute.

The wrong, for which an action of trespass on the case lies, may be either an unlawful act, or a lawful act done under circumstances which render it wrongful—any act done or omitted, contrary to the general obligation of the law, or the particular rights and duties of the parties. It might not bo difficult to distinguish between the selling, or giving of spirituous liquor to a slave, and the fair selling to a slave of an article, which could not be expected to produce harm; and to show that, independent of any express statutory prohibition, the former act is so contrary to the rights of the master, and to the duties imposed upon other persons in a slave-holding community, that the person who does it without special matter of excuse, subjects himself to liability for all the legal damage, that may thence ensue; in like manner, as if he had carelessly or wantonly placed noxious food within the reach of domestic animals. But this case may be rested where the plaintiff left it. Our statutes, time after time, have subjected him, who sells to a slave any article without license, to fine and imprisonment upon his conviction after indictment; and the last statute on the subject provides especially, for the punishment, upon conviction after indictment, of him, who sells or gives spirituous liquor to a slave. No express prohibition is contained in either of the statutes, but the penalties necessarily imply a prohibition, and make the thing prohibited, unlawful; (10 Co., 75.) For the injury to the public, the only remedy is that provided by the statute—indictment; but as in case of a nuisance to the whole community, if any person has suffered a particular damage beyond that suffered by the public, he may maintain an action in respect thereof, (2 Ld. Ray, 085); so in case of a misdemeanor punishable by statute, a party grieved is entitled to his action, for the particular damage done to him by reason of the unlawful act.

Second. We come then to the main ground assumed in the defence—that no legal damage followed the injury, but that which was shown was too remote—not such a consequence of the injury as the law will notice.

It would be vain to attempt to define w'ith precision, the terms which have been used on this subject, or to lay down any general rules, by which consequences that shall be answered for, and those which arc too remote for consideration, may be always distinguished. But we will endeavor, without dwelling on particulur cases, to deduce from the general course of decision on this point, so much as may show that the instructions given, were sufficiently favorable for the defendant, and that verdict is conformable to law.

We are troubled here with no distinctions between loss sustained and gain prevented; nor with any between cases, which have been aggravated by evil motive, and those which have not been: for the plahitiff here has claimed only compensation for his actual loss; and the defendant may be regard^ as the jury were instructed to regard him—that is, as one who, with no particular evil purpose, or ill-will towards master or slave, has violated the law only for his own gain.

A distinction, however, is to be observed between cases where the damage ensues, whilst the injurious act is continued in operation and force, and those where the damage follows, after the act has ceased. In the former class, were the cases of Wright & Gray, (2 Bay. 464,) and all the cases which have been cited, or supposed, of slaves put without permission of the owners on racc-horscs, in steam-boats, or on rail-roads—those of property injured during a deviation from the course which was prescribed concerning it, (6 Bing., 716;) and in general all, where unexpected damage was done, whilst an unauthorized interference with another’s rights lasted. Here it is usually of small moment to inquire, whether the damage was the natural consequence of the injury, because the immediate connexion between the wrongful act, and the damage sustained, shows that the damage, however extraordinary, has actually resulted directly from the injury. But in the latter class, to which the case before us must be assigned, the connexion is not immediate between the injury and the consequences; and it becomes indispensable to discriminate in some way, between the various consequences that in some sense, may be said to proceed from the act, for all of them cannot constitute legal damage.

X Every incident will, when carefully examined, be found to be the result of combined causes, and to be itself one of various causes which produce other events. Accident or design may disturb the ordinary action of causes, and produce unlooked for results. It is easy to imagine some act of trivial misconduct or slight negligence, which shall do no direct harm, but set in motion some second agent that shall move a third, and so on, until the most diastrous consequences shall ensue. The ijrst wrongdoer, unfortunate rather than seriously blamcable, cannot X be made answerable for all of these consequences. He shall, *" “not answer for those, which the party grieved has contributed by his own blameable negligence or wrong, to produce, or for any which such party, by proper diligence, might have pre-ventedJJ (Com. Dig. action on the case, 134; 11 East., 60; 2 Taunt., 314; 7 Pick., 284.) But this is a very insufficient restriction; outside of it would often be found a long chain of consequence upon consequence. Only the proximate consequence shall be answered for. (2 Greenleaf Ev., 210, and cases there cited.) The difficulty is to determine what shall come within this designation. The next consequence only is not meant, whether we intend thereby the direct and immediate result of the injurious act, or the first consequence of that result. What either of these would be pronounced to be, would often depend upon the power of the microscope, with which we should regard the affair. Various cases shew that in search of the proximate consequences, the chain has been followed for a considerable distance, but not without limit, or to a remote point. (8 Taunt., 535; Peak’s cases, 205.) { Such X nearness in the order of events, and closeness in the relation of cause and effect, must subsist, that the influence of the injurious act, may predominate over that of other causes, and shall concur to produce the consequence, or may be traced in those causes. To a sound judgment must be left each particular X case. The connexion is usually enfeebled, and the influence of the injurious act controlled, where the wrongful act of a third person intervenes, and where any new agent, introduced by accident or design, becomes more powerful in producing the consequence, than the first injurious act. (8 East., 1; 1 Esp., 48.) It is, therefore, required that the consequences to be answered 1 for, should be natural as well as proximate. (7 Bing., 211; 5 B. & Ad., 645.) By this, I understand, not that they should be such, as upon a calculation of chances, would be found likely to occur, nor such as extreme prudence might anticipate, but only, that they should be such, as have actually ensued one from another, without the occurrence of any such extraordinary conjuncture of circumstances, or the intervention of any such extraordinary result, as that the usual course of nature should seem to have been departed from. In requiring concurring consequences, that they should be proximate and natural to constitute legal damage, it seems that in proportion as one quality is strong, may the other be dispensed with: that which is immediate( cannot be considered unnatural; that which is reasonably to be expected, will be regarded, although it may be considerably removed. (20 Wend., 223.)

It has been supposed, in argument, that without any of these distinctions, it is always sufficient, to inquire only, whether the consequences have certainly proceeded from the injurious act: but it will be seen, that in settling what have certainly proceeded from the act, we will be obliged to determine what are natural and proximate, unless we mean to run to absurd extremes.

In the case before us, the defendant has insisted, that the damage resulted, not so much from his act, as from the acts of the slave, who was a moral being, and a free agent. (4 M’Cord, 223.) In cases where damage has been done, during the continuance of a wrongful interference with a slave, it was considered of no consequence, that the slave was a free agent: (2 Rich., 613.; Id., 455; 9 La. Rep., 213;) for there the consent of the slave could not justify the interference, and even the wilful act of the slave producing the damage, was like any other improbable misfortune, which might have occurred, whilst the wrongful act was in operation. But in cases like this, the will of a slave may well interrupt the natural consequences of a wrongdoer's act, and produce consequences, for which he should not answer. Selling whiskey to a slave is no more unlawful, than selling to a slave any other article, without license. And if a rope, sold to a slave, without license and without suspicion of mischief, should be employed by the slave to hang himself the prominent ground of distinction between that case and the present one, would depend upon the will of the slave. If it should be said that the slave would have got a rope elsewhere, or would have taken some other means of self-destruction, it might be answered that if this defendant had not sold the whiskey, Bob would have got it, or some other means of intoxication, elsewhere. But where the mischievous purpose of a slave is manifest, or should be foreseen by ordinary prudence, the injurious act embraces the will of the slave, as one of its ingredients;—the wrong consists, in part, in ministering to the purpose, and natural consequences of that purpose, (although the purpose may have been carried to an extent not anticipated, or the consequences may have been altogether undesigned and unusual.) are the legal consequences of the injurious act. Therefore, it was well left to the jury, to decide whether the drinking and intoxication of Bob, were the natural and probable consequences of selling liquor to him. If fault be found with the instructions given on this head, it is that they were too favorable to the defendant, in requiring, that the consequences should be found to be probable as well as natural. For proximate and natural consequences, not controlled by the unforsecn agency of a moral being, capable of discretion, and left free to choose, or by some unconnected cause of greater influence, a wrongdoer must generally answer, however small was the probability of their occurrence. In many instances, the will of a slave, as a controlling cause, would be found as feeble as was the will of a child, that received damage from a cart left carelessly in the street, which he unlawfully attempted to drive. (1 Adol. & El., N. S., 28.) Often the intervention of a third person’s will, influenced by the injurious act, has no effect in rendering consequences too remote. (1 Ad. & El., 43; 2 C. Mer. & Rose., 707.)

The defendant, however, has further insisted, that if the drinking and intoxication were the proximate and natural consequences of his act, the exposure and death were not: but that the death resulted mainly from the exposure, and not from the intoxication only. It may well be said, (speaking in the language of every day life, which attempls no philosophical analysis,) that the exposure was the immediate effect of the intoxication, and that the two produced the death. Thus, without any unconnected influence to be perceived, the death has come from the intoxication, which the defendant’s act occasioned. The defendant cannot complain that an agent, which his own act naturally brought into operation, has occurred to produce the result. The proximity in order of events, and intimacy of relation as cause and effect, between the injurious act and the damage, are as great here as in various cases which have been cited. (17 Pick. 78; 3 Scott New R., 386; 17 Wend. 71; 9 Wend. 325; 11 East, 571; find the cases before cited.)

The jury have decided the facts, and this Court is of opinion that under the inferences, which must be drawn from the finding, the verdict is free from the objection, that the damages were too remote.

The instructions concerning a delivery to Bass, as an instrument of Bob, are approved.

The motion is dismissed.

Withers J. having been of Counsel in this cause, gave no opinion.  