
    McGrew against Cato’s Executors.
    May, 1820.
    No action can aprlvaieTnjury involved in a ter°acquiuai the felony.
    
      STERLING CATO brought his action of trespass vi et armis, in the Superior Court of Washington county vs. John McGrew and another for killing his slave. Cato died pending ^6' acti°n> and if was revived in the name of his executors1, Verdict of Guilty against McGrew, and of Not Guilty as to his co-defendant. • Judgment against McGrew, on which he brought his Writ of error. The matters embraced by the assignments of error and bill of exceptions, appear in the opinion of the Court. ,
    
      Crawford for plaintiff in error,
    cited Bull, N. P7 8. Stra, 872. 10 Coke, 133.
    
      Pickens for defendants,
    cited Chitty’s PI. 486, 491 — 6. 2d Saund. 155. Burr. 1353. 1 Wilson, 45,
   Per Curiam.

When a human being- is slain, the law presumes a felony until the contrary appears. While this presumption exists, the private injury is merged in the felony. The Court below erred in refusing to instruct the Jury, that this was good matter of defence, under the general issue, and in instructing the Jury that the plaintiffs could recover for the private injury before an acquittal- for the presumed felony. On these grounds the judgment must be reversed.  