
    Jennings vs. Fundeburg.
    'To excuse a trespass on the ground of accident, it must appear to have occurred without the least fault on the part of the defendant.
    Where defendant was in pursuit of runaway negroes who ran from him, and he fired his gun towards them, intending to shoot over their heads, to induce them to stop, and one of the negroes was killed by a random shot, the court held the owner of the slave was entitled to recover his value, as the accident (lid not occur without fault on the part of the defendant.
    This was an action of trespass for killing the plaintiff’s slave, tried at Orangeburgh. The defendant in this case was one of a party who went in search of some runaway negroes who had been very mischievous in the neighborhood. They were surprised in their camp, and as they fled the defendant fired towards them, and soon after, one of them who belonged to the plaintiff, was found, dead. As the firing by the defendant was proved only by his own acknowledgements, his whole statement was received in evidence, and he declared he had no design to hit any of the negroes, but had fired his gun only to intimidate and induce them to surrender. That he was at first so near that he might have killed any of them if he wished it, but had deferred firing until they had fled some distance, when his view of them was intercepted by trees, and that he had then directed his gun considerably above them. This last fact was confirmed by one of the witnesses who saw where the load had struck in the boughs of the trees, and was of opinion that the negro m.ust have been killed by .a random shot which had been turned out of its direction. There .was only one wound found on him, and this was on the back of his head and appeared to be given by a single buck shot.
    Waties, J. who tried the cause thought, under these circumstances, (if they were true,) that the killing was accidental, and that the defendant ought not to be made answerable as a trespasser. Such a killing would on a criminal prosecution, be.regarded as an excusable homicide; and although an act which is not criminal, may if injurious to property, entitle the owner of it .to compensation, yet the injury must ensue from some unauthorised intermedling with the,.property; ,as in the case of Wright vs. Gray, 2 Bay 214, where the defendant prevailed on a negro boy without the consent of his master to ride a race and the boy was thrown from the horse and killed. But when one is lawfully interfering with the property of another and accidentally injures or destroys it, he is no trespasser and ought not to be answerable for the value of the property:, In this case the defendant was engaged in. a lawful and\meritorious service, and if he really fired his gun in the manner and for the purpose stated by him it was an allowablé'.act.; but his honor left it to the jury to judge whether it was such an act;.and they .were, told that if .they took a different view of it, and -could see any thing in it which showed an intention to kill or injure the negro, they were bound to find a verdict for the plaintiff.
    
    The jury found for the defendant, and the plaintiff appealed.
    Felder, for the. motion.
    
      Preston and Butler contra.
    
   Curia, per

Johnson-, J.

The fact that the defendant killed the plaintiff’s slave is not. controverted., and prima facie an action lies against him. He has not justified, but attempted to excuse it as the result of an accident, and the question is whether that excuse is made out according to the rules of law? To excuse a trespass on the ground that the injury done was the consequence of an accident, it is not enough that the party did not intend it, but it must appear that it was unavoidable and without any the least fault on his part; and the books go .so far as to say that if by an extraordinary degree of circumspection, even greater than is ordinarily practised in the affairs of life, he might have guarded against it, he shall be liable: which is illustrated by a case where to an action for an assault and battery, the defendant pleaded that the plaintiff and himself were-soldiers at exercise skirmishing with their muskets, and in so doing the defendant casualiter et per infortunam et contra voluntatem suam in discharging his piece wounded the plaintiff. On demurrer the plea was held bad, for say the court, a man shall not be excused a trespass except it has: been committed utterly without his fault. Hammond’s N. P. 67. , Going in, pursuit of runaway negroes was not only justifiable but laudable in the defendant, and the act of firing his piece merely for the purpose of intimidating and , inducing them to surrender was in itself harmless enough, and the circumstances I think justify the finding of the jury that the killing was not intentional; but according to the,rule this is not enough to excuse the defendant, he must appear blameless.

The fact that the negro was killed is in itself a strong circumstance going to show a want of proper care on the part of the defendant. Those accustomed to the use of fire arms, know that shot discharged from a gun take an exceedingly wide range, and are turned out of their direction by the most trifling and unsubstantial obstruction. To have fired therefore in the direction in which the ne-groes, and especially when they were out of his view, and when it was uncertain whether the gun might not have been bearing on them, was not only incautious but rash in a high decree, and according to the rule rendered the defendant liable. A new trial is therefore granted.

New Trial Granted,  