
    
      William Priester vs. J. D. Augley.
    
    No one lias a right to kill a slave committing a trespass.
    A master is liable for the act of his servant, done in the course of his employment about his master’s business.
    
      Before Frost, J. at Barnwell, July, Extra Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    “'It was proved that Josiah Augley, the son of the defendant, shot and killed Adam, a slave of the plaintiff. George I. Priest-er, the magistrate who held the inquest, testified that the defendant, being examined, stated to the jury, that one of his sons told him, when in bed, that some person was in the cane patch. Another of the defendant’s sons, Andr.ew, came in for the gun, and defendant told him not to take (he gun, but to take the dogs and run the person off. Josiah then came in, and the defendant believing that Josiah had got the gun, told him “ not to shoot so as to hit, but to scare.” After a while the defendant heard a gun fired, and Josiah returned. The defendant said to Josiah, “ what did I. tell you.” Josiah said he did not shoot any person, but he saw some one going off with sugar cane, and he shot behind to scare him. This statement was substantially confirmed by Josiah and Andrew, the sons of defendant. Josiah was fourteen years old, and Andrew about fifteen or sixteen. Josiah and Andrew endeavored to set the dogs on, but they would not pursue. It was then that Josiah came in to get the gun. The night was dark, but a negro held a torch, which threw the light on a person near the cane patch. Josiah rested the gun on the fence and fired. The person was distant, as Josiah said, about thirty yards. The gun was loaded with high Bristol shot They entered the body of Adam between the upper part of the hip and the neck, breaking his right arm. Adam went a few steps and fell, with some cane under his body. There was no appearance of a struggle where he fell, nor signs of running. Josiah says he fired, seeing a boy about his own size, and aimed behind him, and the shot killed Adam. The value of Adam was variously stated by witnesses, from six to four hundred dollars.
    “ The jury were instructed that an infant child is, in law, regarded as the servant of his father; and, in illustration of the principle, they were told if an infant were beaten, his father might maintain an action to recover damages, and that the father might recover the value of his infant’s services from one who employed him. No mention was made of the form of action. They were further instructed that a master is liable for the act of his servant, done in the course of the master’s employment, and by the master’s command or sanction. Respecting the liability incurred by the act of shooting Adam, the law was affirmed to be, that one may justify killing another for the protection of his own person, or of other persons standing in certain domestic or natural relations, or in defence of his habitation ; but that one cannot justify killing another to prevent the commission of a felony against property. That the shooting of a slave in the act of stealing was unlawful, equally so as if the slave was innocently employed. They were further instructed, that if Josiah fired at one negro in the field, with the intention not to hit him, and killed the slave of the plaintiff, it was a trespass for which damages might be recovered ; for that a trespass is an injury to the property of another, with force not justified or warranted by law.
    ' “ It was submitted to the jury to determine whether, in shooting Adam, Josiah acted in the course of his father’s employment, and by his command and sanction.
    “In advising them respecting the damages that should be given, if the verdict were found for the plaintiff, it was suggested to them to find the lowest sum which the evidence would warrant.”
    The defendant appealed, and now moved for a new trial, on the following grounds.
    1. Because his Honor charged the jury, that an infant child is so much the servant of the father, that the father could bring an action of trespass for beating him, whereas, it is respectfully submitted, that his only action would be for loss of service.
    
      2. Because his Honor charged the jury, that it is as unlawful to shoot a negro stealing, as it is to shoot an innocent negro.
    3. Because his Honor charged the jury, that it appeared to him that the injury would be compensated for by the jury giving the plaintiff the lowest value of- the negro killed, which, it is submitted, was leaving the jury no alternative but to find for plaintiff.
    4. Because his Honor charged that the defendant’s permitting his son, without objection, (who was as to this case sui juris,) to take his gun to drive off the depredators of his property, made the defendant liable for the acts of the son, as his servant.
    5. Because there was no proof to connect the defendant in any way with the killing, and that the verdict js contrary to law and evidence.
    
      Owens, for the motion.
    
      Aldrich, contra.
   Curia, per Evans, J.

The taking of the sugar cane wau no felony. It was only a trespass made a misdemeanor, and punishable in a slave by Act of Assembly, and no one has a right to kill a mere trespasser. The killing the negro was, therefore, unlawful, and there can be no doubt that the defendant’s son, who shot the gun, was liable. But the question is, whether the father is liable. According to all the authorities, if a servant, in. the course of his employment about his master’s business, do any act whereby the property of another is injured, the master is liable. - There is no doubt, from the evidence, that Josiah Augley, by his father’s authority, and in the execution of his father’s orders, went with a gun to drive away the negro. If, in doing so, he unlawfully killed the negro, the father is liable, because he shall answer for the acts of the son as his servant in executing his commands; but not for his acts unconnected with the master’s business. We think the charge of the Circuit Court was, in this particular, correct. As to the question of damages, the charge was most favorable to the defendant, and he has no right to complain.

The motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ. concurred.

O’Neall, J. absent at the argument.

Motion dismissed.  