
    John T. Hadden vs. M. Leibeschultz.
    
      Slave, Unlawful Beating of.
    
    For beating a slave in tbe possession of a bailee, tbe owner is not entitled • to recover tbe penalty of fifty dollars imposed by the Act of 1839, 11 Stat. 58.
    BEFORE WARD LAW, J., AT EDGEFIELD, FALL TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ This was an action of debt, within tbe summary jurisdiction of tbe Court, brought to recover tbe penalty of fifty dollars, which is prescribed by tbe 5 Sect, of tbe Patrol Act of 1839, 11 Stat. 58. Tbe process alleged that tbe defendant 1 did beat a slave, tbe property of tbe plaintiff, quietly and peaceably being in the possession of Nicholas McEvoy, tbe bailee of tbe plaintiff,’ whereby tbe debt, &e. ■
    “It appeared that tbe plaintiff, residing in Abbeville District, bad entrusted tbe slave, bis property, to tbe care and keeping of N. McEvoy, a boot-maker at Edgefield, as an apprentice— that disgusted with tbe noise which tbe slave made at night in bis attempts to play tbe fiddle, tbe defendant, after previous warning to tbe slave, but without application to McEvoy, on two successive nights, entered tbe shop where tbe slave was playing, and flogged him in tbe presence of McEvoy, and against bis remonstrance — not desisting tbe last time until, •after choking McEvoy, be bad been hustled out of tbe shop by other slave-apprentices, whom McEvoy called to bis assistance.
    “I doubted the plaintiff’s right to recover under the allegations he had made, but to put the case in such situation that the attendance of witnesses would not in any event, be hereafter required, I decreed for the plaintiff fifty dollars, in each of the two cases.”
    The defendant appealed, and now moved this Court in arrest of judgment.
    
      Bacon, for appellant.
    The Act is penal, and penal laws must be construed strictly. State vs. Solomons, 3 Hill, 79. The material words of the Act, and those constituting the statutory definition of the offence must be alleged, 3 N. & McO. 365; 3 Hill, 61; State vs. Perry, 2 Bail. 17; 1 McM. 274; 1 Sp. 49 ; 1 Bail. 144; 3 Chit. PI. 357.
    
      Spann, contra.
   The opinion of the Court was delivered by

MuNeo, J.

The point made by the defendant’s third' ground in arrest of judgment is, that the allegations in the process, assuming them to be true, do not entitle the plaintiff to recover the forfeiture prescribed by the fifth section of the Act of 1839.

The-allegations in the process are, “that defendant at, &c., on the day of June, 1857, did beat and bruise, a slave fiamed Henry, the property of the plaintiff, then and there quietly and peaceably being in the possession of N. McEvoy, the bailee of your petitioner,” &c.

The portion of the fifth section of the Act of 1839, upon which the action is founded, is in these words — “ If any white man shall beat or. abuse any slave, quietly and peaeeably being in bis master’s plantation, or found anywhere without the same with a lawful ticket, he shall forfeit the sum of fifty dollars, to be recovered by the owner, and to his use, by action of debt, besides being liable to the owner in an action of trespass for damages.”

The proof was, that at the time the alleged trespass was committed, the plaintiff resided in Abbeville District, and had intrusted his slave to the $are and keeping of N. McEvoy, a boot-maker, at Edgefield, as an apprentice.

Eor the outrage committed by the defendant, in entering the premises of the bailee, it is clear, that an action of trespass, either by the bailee, or by the owner of the slave upon his constructive possession, was the only remedy. Eor it is manifest that the cumulative remedy in question, is, by the express terms of the Act, restricted to cases only, where the beating or abuse of the slave is inflicted, either while he is peaceably and quietly within his master’s plantation; or is without the same, but with a lawful ticket.

The defendant’s motion in arrest of judgment, is therefore granted.

O’NEALL, WARDLAW, WITHERS, Whither and Glover, JJ., concurred.

Motion granted.  