
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Charles Barber v. John and Elizabeth Barnes.
    To maintain the action of trespass vi et qrmis, evidence of unlawful force is necessary; and it must appear that the injury complained of, was the direct and immediate consequence of such unlawful violence.
    Motion to set aside a nonsuit, ordered by Brevard, J., in Ker-shaw District Court. The case was as follows : The action wag for taking away, with force and arms, a negro man slave, the property of the plaintiff, and compelling him to go on board a canoe, in the Wateree river, whereby he was drowned. There was an additional count in the plaintiff’s declaration, for harboring the slave, and enticing him to go on board the canoe. As the counts appeared to be inconsistent, the judge at the trial, required the plaintiff’s counsel to elect on which of them he would rely; and the form of the action was considered as trespass vi et armis. The evidence given went to prove, that the plaintiff’s slave had a wife, who was the slave of Mrs. Barnes, one of the defendants. That the plaintiff’s slave sometimes ran away from him, and that he was seen with a pass, which was supposed to be given by the other de-Cendant, John Barnes, Mrs. Barnes’ young son. Some other circumstances were given in evidence, to raise a presumption that the plaintiff’s slave had been harbored, or encouraged to leave his mas. Ser’s service, by the defendants, sometime before the accident, which occasioned his death. That accident happened in this manner; Mrs. Barnes sent her son to obtain permission from a Mr. Johnson, to draw the seine for shads at his fishery, and for ¡he use of his canoe. This was obtained ; and after the hands who were engaged for drawing the seine, were about to enter on the business, the plaintiff’s slave appeared, and requested to be employed, or rather, he volunteered his services, without asking a formal license. After he got into the canoe, Mrs. Barnes, who happened to be present, understanding that he could not swim, signified that he had better not go in the canoe ; but she soon after went away, and the slave would go in the canoe, as padler, and by some accident, overset the vessel, in consequence of which, he was drowned. The defendant, John Barnes, was a small lad, and had no control over the slave.
    A nonsuit was claimed, on the ground that there was no evidence of any force from which the loss had directly proceeded, to charge either of the defendants ; and 3 Bl. Com. 143, — 1 Bac. Abr. 55, were cited.
    The counsel for the plaintiff replied, that the injury resulted from an unlawful act, the act of improperly and unlawfully intermeddling with the personal property of the plaintiff, from which force might be implied ; and cited 5 Bac. Abr. 15Í), — 1 Stra. 635.
    The District Court expressed no willingness to favor technical exceptions, more ingenious and subtle than useful or necessary; but declared, that it was necessary and proper to adhere to established forms for the advancement of justice ; to preserve the boundaries of actions; and confine the evidence to each appropriate form of action, in order to avoid confusion, embarrassment, and a consequent failure of justice. In the present case, it appeared to be the duty of the court to order a nonsuit, on the ground that there was no evidence of any loss, or injury, occasioned by force, without which the action of trespass with force could not be maintained. And it was observed, that if the evidence given entitled the plaintiff to recover damages from the defendants, or either of them, it could not be in this form of action, but in an action of trespass on the case for consequential damages. But if any force could possibly be implied from the circumstances given in evidence, yet it did not appear, from any circumstance, that the loss which accrued to the plaintiff was a direct or immediate consequence of such act of force. It was a consequential injury, imputable rather to negligence than to force. The books are full of cases, which show the distinction between trespass and case. See, particularly, the case •of Scott v. Shepherd, 3 Wils. 411. 2 Bl. Rep. 892, 1 Stra. 596. Hob. 134-. See also, 5 T. R. 649. 0 T. R. 128. 8 T. R. 191. 8 T. R. 188. 2 Ld. Raym, 1216, 1402. Bull. N. P. 26, 79. 1 East. 106. 3 East. 593.
    
      Note. See 1 East. 106,110. 8 T. E. 188. 6 T. E. 125, 659. 5T. E. 648. 5 Esp. Eep. 18. 2 H. Bl.- 442. Where the injury immediately proceeds from ¡something in which the defendant is himself active, trespass vi et armis lies; ali-.ter, where it arises from neglect, the misconduct of servants, or even the misconduct of the defendant himself, if the injury is not direct, and proceeding from force. The injury being wilful, or involuntary, makes no difference as to ■the right of action. 2 Hen. and Mun. 423, Taylor v. Rainbow.
    Ellison, in support of the motion,
    in this court, cited 2 Burr. 1114. The act of meddling with the plaintiff’s property was un» lawful, and the loss to the plaintiff having taken place in consequence thereof, force is to be implied.
    Blanding, on the contrary.
    The act being unlawful, or lawful, is not the true distinction. It is unlawful to dig a hole in a highway ; yet, if another fall into it, by accident, and break his leg, trespass vi et armis, cannot be maintained, but trespass on the case. So slander is unlawful. 3 Bl. Com. 1811.
   Nott, J.,

declared the opinion of the court, against the motion. The evidence given did not prove any right to this sort of remedy, or, indeed, to any other. There was no evidence at all of any force used, or threatened, from whichrthe loss could possibly be presumed to have been an immediate consequence. If any blame can be imputed to the defendants, in relation to the loss in question, it ¡must arise from a presumption that the negro was persuaded, or ■encouraged, by them to engage in the business in which he was when the accident, occasioning the loss, happened. But, admit. •ting the truth of this presumption, the conclusion will not follow, ■that this action can be maintained. The injury cannot be considered as flowing directly from any act of trespass committed forcibly. The distinction is too clear to admit of question.

Motion rejected.  