
    HEARD NOVEMBER TERM, 1874
    Russell vs. Cantwell.
    Eor a, wrong committed in July, 18G4 at Columbia, in this State, no action lies by one who was then a sliuvo.
    Before GRAHAM, J., at Charleston, November Term, 1873.
    This was an action, for malicious prosecution, by George Russell against James Cantwell.
    On the 1st July, 1864, at Colombia, in this State, the defendant commenced a prosecution against the plaintiff, before the Mayor of Columbia, acting as Magistrate, for stealing some gold and silver coin. A preliminary examination was held, and the evidence being very slight, the plaintiff was discharged.
    At the time of the prosecution, the plaintiff, as he himself and others testified, was the slave of one Thomas B. Gordon.
    At the close of plaintiff’s evidence the defendant moved for a non-suit, on the ground, inter alia, that the plaintiff had no cause of action against the defendant, because he was a slave when the act complained of was committed, and the injuries, if any were done, was-to the master.
    The motion was denied, and the defendant excepted.
    The jury found for the plaintiff $800.
    The defendant appealed, and now renewed his motion for a non-suit.
    
      Simonton & Barker, for appellant.
    
      Corbin <£ Stone, contra.
    Feb. 16, 1875.
   The opinion of the Court was delivered by

Wright, A. J.

The injury complained of by respondent is alleged to have been done to him by the appellant on the first day of July, 1864, at which time it is claimed by appellant that he (respondent) was a slave, and respondent so testifies.

If the respondent was a slave at the time the act complained of was committed, under the then existing laws of this State he could not have brought this action, as he was “ incapable of holding property in his own right, and the possession and title must be referred to his master.”—Fable vs. Brown, 2 Hill. Ch., 378.

As to the personal protection of a slave, the right devolved upon the master.—Tennent vs. Dendy, Dud., 85.

During the progress of the war, whether before or after the proclamation of emancipation, slaves were only made free by the force of arms, as the proclamation, being a military order only, could not change the civil status of persons residing in those States, and parts of States, where it was not made of practical force.—Ferdinand vs. State, 39 Ala., N. S., 706; Doris vs. Grace, 24 Ark., 326; Brothers vs. State, 2 Cold., 201; McMath vs. Johnson, 41 Miss., 439.

To permit those who were slaves and are now free to bring actions and carry on prosecutions against persons who were or were not slaves, for wrongs and injuries committed against them during the existence of slavery, would open the door to a flood of litigation that would prove disastrous to all classes of persons in the State.

The motion is granted.

Moses, C. J., and Willard, A. J., concurred.  