
    DEVAUGHN vs. HEATH.
    tÍRKKPASS QUAKE CUAUSUJ1Í MtEGIT.}''
    
      L'-V-iridiciire damages: — iff trespass qua/re clausumtfr-egU, a charge to the jury, assorting that they cau net give vindictive damages, “unless they believe, lioni the evidence; “that the' defendants maliciously entered upon the plaintiff’s lands, in a abide, aggravating, or insulting manner,” is erroneous, because it improperly restricts the standard of liability.
    2. Gift 1o slave —There is no statute or rule of law in this State, which prohibits -a gift of old clothes, or other articles harmless in tlieir nature, to a-«lave, without the knowledge or consent of his master; but, the title and possession, on the delivery of the articles to the slave,, must bo'referred to the master.
    Appeal from the Circuit Court of Chambers. •
    Tried before tlie Hon.-Robert Dougherty;-
    This action was brought by James Heath,'agairi'st Sdm-uel Devaitghn;-. George W. Devaughn, Joshua Bussey, and Washington-Bussey, toffecovOr damages for a trespass on the plaintiff’s lands. If appeared from -the'evidence adduced on the trial, that'one of’the Devaiighns" suspected the plaintiff of'trading with" one' of' hid slaves', and'‘laid a snare to catch him, by sending the slave to the plaintiff’s house by night, with a piece of-’meat “tfo'sell, tvhile the defendants lay hidden within hearing of the conversation which might ensue. The slave; however, sent information of the plot to the plaintiff; and when the party approached the plaintiff’s bouse, one Hammond, a young man living in the plaintiff’s bouse, secreted himself in the cotton, near the path by which they came, and recognized the defendants as the persons composing the party ; and when the slave knocked at the door, and said that he had a piece of meat to sell, the plaintiff came out, and ordered him off The plaintiff’s dogs were aroused by the party in ambush, and began to bark at them ; and when the plaintiff called out “Who’s there”? the . defendants ran off; but one of 'them was overtaken by the plaintiff andHammond. Hammond, who was introduced as a witness by the plaintiff? testified to the information which dhe plaintiff received of the defendants’ plot, and to'the f&ets-whieh occurred on the plaintiff’s premises on the occasion.referred to. The defendants proved, that the plaintiff had ..made inconsistent .•declarations at different times, when speaking of the occur■-■rences at his 'house on the night of the alleged, trespassr, ,and that lie or his wife had given two or-threc pairs of old pantaloons to Devaughan’s slave, who had .formerly belonged'to 'Mrs. Heath’s first husband.
    The court charged the jury, at the request of the plain'tiff, “that if 'IDevaughn’s slave had been an old family negro of the plaintiff’s wife, then the plaintiff, or his wife, ■had a legal' right to give said slave several pairs of old pantaloons, without the .knowledge or consent of his master;” "The defendants excepted to this charge, and requested the ¡•eourt'to instruct the jury, “that they can not give vindictive. damages, nnless they-believe, from the evidence, that ■the defendants-maliciously .mitered the plaintiff’s lands, in a rude, aggravating, or insulting .manner, and committed the trespass alleged in the complaint.” The court refused to give this charge, and the defendants excepted ; and they now assign as error the charge given, and the refusal of the charge asked.
    .ÁLLISON & ANDREWS, Richards & Falkker, for the .appellants.
    J3ROGK.& .BARNES, ChiltoN & Yancey, contra.
   STONE, J.

Thesdiarge asked by the defendants in the court .below, and refused by the court, assumes that, t® justify the jury in awarding vindictive damages, in an action of trespass guare clausum -frcgit, the defendant must have entered the land maliciously., in a rude, aggravating,, or insulting manner. These conjoint words evidently-erected too strict a standard of liability. Trespasses might be so wantonly or recklessly committed, as to justify the imposition of 'vindictive ..damages, without any evidence of actual malice towards the owner'of the property trespassed' upon. T-he word aggravating was probably employed as" the synonym of offensive, or insulting, According to it' this meaning, cases may be imagined, which would call for exemplary damages, when the act complained, of. was-neither tumultuous, grossly abusive, contemptuous, nor strictly insulting. It has been ruled that] “in cases attended with circumstances of aggravation, the jury may give exemplary damages:”' — Mitchell v. Billingsley, 17 Ala. 394; Parker v. Mise, 27 Ala. 483. When the circumstances of the trespass are rude, -.or insulting, malice may be inferred froraothem. So, malice or ill-will may be found to exist, when 'there are no accompanying acts oí rudeness or insult. The charge was properly refused. — 2 Greenl. Ev. § 253, and note.

The charge given asserts, that Mrs. Heath had" the'’ Ibgal right to give to Ralph,- the slave of Mr. Devaughn, three or four pairs of- old pantaloons, without the knowledge or consent of the latter. We have looked into this question with much care, and cannot find that the circuit; court erred, in giving this -charge. The articles are harm-less in their, character, and, if given, could not -possibly-have injured Mi. -Devaughn». We have no statute, which forbids the giving of articles like these to-slaves; The substance of the charge was, that Mrs. Heath had the right to abandon the ownership and possession of the- property to the slave. When the gift was perfected by delivery, the articles became the property of Mr. Devaughn, The-slave’s master. In a leading case on; this subject,' (Fable v. Brown, 2. Hill’s Ch. 397,),the court said, “If one having-good title to personal property, should transfer it into the possession-of a slave, this ¡transfer would not be void ; the title would-be ©hanged, but the title and possession must be referred to the master.” — See, also, Brandon v. Huntsville Bank, 1 Stew. 341; Trotter v. Blocker, 6 Porter, 291 ; Leech v. Cooley, 6 Sm. & M. 93 ; Cobb on Slavery, § 262 ; Williams v. Ash, 1 How. U. S. 13.

The judgment of the circuit court is affirmed.  