
    Wilkins vs. Gilmore.
    1< If tí slave or servant commit a trespass by the command or encouragement of the master, the master is guilty of tho trespass'.
    2. In the action of trespass the jury are not restrained in their assessment of damages to the amount of mere pecuniary loss sustained by the plaintiff, but may award damages in respect of the malicious counduct of the defendant and the de-< gree of insult with which the trespass has befen aííetíded.
    3. Where the supreme court is not informed by the nature of the case or by a statement in the bill of exceptions that it contains all the evidence submitted to the jury, the court will presume that the evidence justified the verdict.
    Gilmore instituted this action of trespass against Wilkins in the circuit court of Maury county, on the 13th of September, 1839, by virtue oí the provisions of the act of 1821, ch. 22, made for the benefit of poor persons. At the January term, succeeding, the defendant pleaded not guilty; and the cause was submitted to a jury, Judge Dillahunty presiding, at the May term.
    It appeared in evidence, that Wilkins had leased a portion of land, and some houses thereupon, to plaintiff, Gilmore, for the term of three years, and that before the expiration of the lease, Wilkins had become dissatisfied with his tenant; that about the 15th of March, 1839, a slave, or a white man blacked so-as to resemble a slave, came to the house in which Gilmore and his family resided and threw off the roof. Gilmore and wife were absent, but a young lady and the children of Gilmore, five in number, were present and expostulated against the violence. This was, however, disregarded, and the roof of the house thrown off and the children and furniture of Gilmore exposed to the rainy and inclement weather. ’
    
    There was no conclusive and positive proof as to the identity of the person by which this deed of violence was done, but much circumstantial testimony in regard thereto was submitted to the jury, which it is needless here to set forth. The judge charged the jury, that if the slave of Wilkins threw off the roof of the house by the command or procurement of Wilkins, Wilkins was liable for the injury done, and that the, jury in their assessment of damages were not confined to the actual amount of pecuniary loss sustained by the plaintiff, but that they were authorised to award damages in respect of the malicious conduct of the defendant. The jury rendered a verdict in favor of the plaintiff for the sum of $250.
    
      The defendant moved the court for a new trial. The plaintiff then came in and remitted the sum of $100 of the said damages, and the court overruled the motion for a new trial, and rendered judgment for $150. The defendant appealed in error.
    
      Nicholson, for plaintiff in error.
    
      Dew, for defendant in error,
    cited, 1 Black. Com. 431-2, Gamp-hell vs. Stairet, 2 Murphey’s Rep. 389, McManus vs. Cricket, 1 East, 106, to show the liability of the master for the acts of his slave, done by command or procurement of his master, and 3d Starkie, 1450, in reference to the power of the jury over the question of damages in an action of trespass...
   Gheen, J.'

delivered the opinion of the court.

This is an action of trespass for throwing off the roof of plain* tiff’s house in his absence, and exposing his children to the weather. The court charged the jury, in substance, that if the act was done by the defendant’s slave, by the procurement, authority, or command of the defendant, he would be liable in this action, as though he had done the act himself.. If the jury should find for the plaintiff, they would not be confined in the assessment of damages, to the actual pecuniary loss of the plaintiff, but might give exemplary damages.

1. As to the first proposition in this charge, that the action of trespass will lie, for an injury done by another, by the command, authority or procurement of the party charged, there can be no doubt. Whoever procures or commands anotherto commit a crime, or do a civil injury, is guilty of the offence himself, as a principal in the first degree. Hence if a slave, or servant, commit a trespass by the command or encouragement of the master, the master is guilty of it. 1 Black. Com. 431-2: Campbell vs. Stairet, 2 Murphy’s Rep. 389: McManus vs. Crocket, 1 East Rep. 106.

2. The second proposition is equally clear. In an action of trespass, the jury are not restrained in their assessment of damages, to the amount of the mere pecuniary loss sustained by the plaintiff, but may award damages, in respect of the malicious conduct of the defendant, and the degree of insult with which the trespass has been attended. 3 Starkie, 1450.

3. As to the facts of the case; we are of opinion, the evidence contained in this record, well warranted the verdict against the defendant: but if that were not so, we are not informed by any statement in the bill of exceptions, or by the nature of the case that all the evidence has been set out, and consequently, we are to presume that there was enough to justify the verdict of the jury. Let the judgment be affirmed.  