
    William P. Leggett vs. William Simmons.
    The rule of the liability of the master for the act of his slave, seems to be limited to cases in the way of trade, or public employment, or where any injury is occasioned to another by any act done by a slave, in pursuance of his master’s directions, but not for proceedings of a slave unauthorized by the master.
    The liability of a master, in a civil action, for the felonious killing by his slave of the slave of another, seems to depend upon the criminal knowledge or agency of that master in the transaction.
    The authorization from a master to his slave to do an act, or the agency of a master in the transaction of his slave, may be gathered from the circumstances surrounding the occurrence.
    S. sued L. in an action of trespass, to recover the value of a slave, supposed to have been killed by the slave of L., and proved that his slave visited the plantation of L., and upon his own, the slave’s, request, twice received from L. a dram of spirits, in company with a slave belonging to L., who is supposed to have taken the life of S.’s slave; that during the night L. was aroused from sleep by a clamor among his slaves, which was found to proceed from the two slaves to whom he had given the drams; and that as L. approached them, armed with a gun, the slave of S. rushed upon him and discharged his gun ; after which L. took no steps to drive S.’s slave away, but permitted him to remain upon his premises; that L. in a short time was again aroused by a similar clamor, and approaching the spot he beheld first the two slaves in a struggle together, and next the slave of S. pursuing and threatening the life of his, L.’s slave, and thereupon, as the difficulty seemed to cease, L. left the spot and returned into his house;, and the next morning the slave of S. was found dead upon the spot where the last quarrel took place : Held, that the facts do not amount to sufficient proof that L. commanded or authorized his slave to take the life of the slave of S. and that S. could not therefore recover.
    Ereok, from the circuit court of Pike county; Hon. Van Tromp Crawford, judge.
    William Simmons sued William P. Leggett, to the October term, 1843, of the circuit court of Pike county, in an action of trespass, to recover the value of a negro man, named Solomon, the property of the plaintiff, alleged to have been killed by a negro man, named Moses, the property of the defendant. The declaration avers, that “ the defendant, with force and arms upon the body and person of Solomon, a negro man-slave, the property of the said plaintiff, of great value, to wit, of the value of one thousand dollars, did commit, and cause to be committed, an assault, and him the said Solomon, slave of said plaintiff, as aforesaid, with a certain pocket-knife, did then and there stab, cut and wound, and cause to be stabbed, cut and wounded, whereby, and of which stabbing, cutting, and wounding by the said defendant, then and there done, and caused to be done, as aforesaid, the said negro slave Solomon, then and there instantly died, and was thereby wholly lost to the said ■ plaintiff,” &c. The defendant pleaded the general issue. Af-terwards the declaration, by leave of the court, was amended, and two more counts added; the one charging that the slave Solomon was killed by a slave named Moses, the property of the defendant, “ by and with the advice, assistance, promotion, and consent of the defendant,” and the other averring that Solomon was killed by Moses, without averring that it was done either by the command of the defendant, or with his knowledge or assent. The jury found a verdict for the plaintiff for eleven hundred and eighty dollars. The defendant entered a motion for a new trial, on the following grounds, to wit:
    “1. Because the court charged the jury that they were authorized, in such cases, to give a verdict for £ smart money.’
    “2. Because the verdict in said cause was unsupported by, and plainly contrary to, law and evidence.
    “ 3. Because the damages allowed were excessive.
    “ 4. Because said verdict was directly contrary to the charge-of the court, as requested by defendant’s attorney.”
    At the same time the plaintiff remitted one hundred and eighty dollars of the damages assessed by the jury. The court overruled the motion for a new trial, to which the defendant filed a - bill of exceptions, and set out the evidence, in substance as follows, to wit: On the trial the plaintiff proved that the defendant confessed or stated as a witness on the coroner’s inquest, and before the committing magistrate, that on Saturday evening, about dark, the 3d day of June, 1843, the slave Solomon came to his house and asked him for a drink of spirits; that he directed a dram to be given to Solomon, and also to his own boys; and afterwards another dram was given to them, and Solomon then went to his, defendant’s, negro-house; that some time after-wards he was aroused by a fuss in the negro-house, where the negroes were gambling; that he went out with his gun to stop it, and as soon as Solomon saw him, he, Solomon, rushed upon defendant, seized the gun, and fired it off in defendant’s hands, and then ran off; but after awhile peace was restored, and Solomon was permitted to return ; that defendant then returned to bed, and in a short time was again aroused by another fuss in the house of Moses; defendant again went out to see about it, and when he arrived at the door of Moses’s house he saw Moses and Solomon coming out of the house, engaged in a struggle; that Moses broke loose from Solomon, and ran round an oak tree in the yard, Solomon pursuing him, striking at him with a knife, and swearing he would kill Moses, if he was the last negro in the world, in that manner they ran round the tree several times, when suddenly the fuss ceased, and the defendant again returned to his bed ; after which he knew nothing more about the matter until next morning, when he found Solomon dead, with a knife lying by his hands. The witnesses said they did not hear the defendant say that Moses killed Solomon, or thát he, defendant, advised, assisted, promoted, or assented to the killing. Witnesses understood defendant to say his object was to make peace; but he did not say he commanded peace, or used any means to make peace. The defendant also stated before the coroner’s inquest, that Solomon was a bad negro, and he had previously ordered him not to come to his house. The plaintiff then proved that Solomon was worth about one thousand dollars at the time he was killed. No other evidence being offered the plaintiff asked the court to instruct the jury, that “ if they believe from the testimony of the acknowledgments of the defendant, that he was present, and an eye-witness of the killing of Solomon, the slave of Simmons, by Moses, the slave of defendant, and did not forbid the act, nor take any measures by a command to his slave, or otherwise, to prevent it, such presence and silence is prima facie evidence to support this action.” Which instruction was given by the court, and the defendant excepted, and now prosecutes this writ of error.
    
      J M. Smiley, for plaintiff in error.
    The court below erred in not granting a new trial, because the verdict of the jury was contrary to law and evidence.
    The master is not liable for a trespass committed by his slave unless done by his command. Saunders on Pleading and Evidence, 863.
    The testimony in this case shows that the object of Leggett, the defendant below, was to make peace, not to promote or encourage the commission of a trespass or felony.
    The testimony leaves it in great doubt whether the slave Moses killed Solomon at all. And if he did the evidence makes it a clear case of justifiable homicide. How. &■ Hutch. 694, sect. 3.
    The record in this case shows that the verdict of the jury is contrary to law and evidence, as clearly as any that could well be imagined. And the rather arbitrary rule, established in the eleventh judicial district, to refuse all motions for new trials alone, makes it necessary to appeal to this court.
    
      William Vannerson, for defendant in error.
    We rely, for sustaining the judgment in favor of defendant in error, upon the following principles, and these authorities, so far as regards the amount of the judgment.
    In trespass vi et armis there is no precise rule of damages. Damages, in the discretion of the jury, are not limited to the value of the property injured or destroyed. The action is in its nature vindictive; and when the jury give exemplary damages, the court ought not to interfere unless they are manifestly outrageous. Dennison v. Hyde, 6 Con. R. 509, 520; 8 Am. Com. Law, 202; Allen et ais. v. Administrators of Gran, 1 Greenl. 294.
    
      But the remitter, entered by the plaintiff below, we think, leaves the question of damages out of the question in this court, inasmuch as the value of the negro killed, as assessed by the jury, is amply sustained by the testimony, except the amount remitted.
    For sustaining the action, under the circumstances of this case, we rely upon the following general principles and authorities :
    All persons assisting in the commission of a trespass are principals and trespassers. 1 Chitty’s PL 63.
    A person is liable as a trespasser for advising to the act. 8 Am. Com. Law, and authorities there cited, 180, 190.
    It is not material whether the conduct of Leggett’s slave was under the direction or sanction of the master or not, or whether the master’s direction' or sanction thereof is tested by his express command, or by his being present at the doing of the act. and not forbidding it, or by other circumstances, evincing his approbation, is equally immaterial. He is, in either case, liable; for the law is, that'if one agree to a trespass that has been committed for his benefit, this action lies against him, although it was not done in obedience to his command, or at his request. The same if he advise it, though not present. 6 Littell’s R. 118; Bac. Ab. tit. Trespass, letter G, 589, 590; Crawford v. Cheney, 15 Louisiana R. 142; 5 Hammond’s Ohio R. 351; 3 Monroe’s Ky. R. 423; Am. Com. Law, before cited, 180-190; Wheeler’s Law of Slavery, 235, 236.
    Upon the principle of the case, and upon the authorities cited, we rely for the affirmance of the judgment below.
    
      W. P. Harris, on the same side.
    It is not necessary, for our purpose, to combat the proposition laid down by the counsel for the plaintiff, that the master is not responsible for the act of his servant, unless such act is done by the command of the master. A true exposition of this rule shows that it is not an obstacle to a recovery. The command need not be express. Assent to the act of the servant is sufficient, and this assent may be implied from circumstances. Nor is this assent necessary, where there rests upon the master a legal obligation or duty in regard to the conduct of the servant in relation to third persons. Story on Agency, 469-471; Caldwell v. Sacra, 6 Littell, 118. When the relation between the master and servant is such, that the master can control the conduct of his servant, and it is his duty to exert this, control, he will be responsible for failing to exert it. See the opinion of Chief Justice Eyre, in Bush v. Steinman, 1 Bosan. & Pull. 409. The particular language to which I refer is as follows : If any man, having control over the actions of another, by the absence of due care and control, negligently suffer him to commit an injury, he shall be responsible, &c. This is but the sense of the familiar maxim, qui non 'prohibet quum prohibere posset juvat.
    
    If the law applicable to the relation of master and servant at common law, governs the relation of master and slave, as it exists in this country, the reason of the doctrine cited before would require an enlargement of the responsibility of the master in proportion to the extension of the master’s power over the slave, and the increase of his duty and obligations consequent upon that power. The institution of slavery gives to the master, with some restrictions, which do not affect the principle contended for, almost absolute control over the actions and conduct of his slave. And in consideration of this control it exacts from him such an exercise of it as will protect the rights of third parties. It is true that the slave is criminally responsible for his acts; but this provision of the criminal code results from public policy, and was not intended to abridge the civil responsibility of the master.
    The question as to whether or not an indictment for murder would- be sustained against the slave Moses, or whether or not the circumstances amount to a justification, cannot be considered under the state of the pleadings. The intention with which the act is done is not the criterion in actions of this kind. 1 Bing. 213; 2 H. Bl. R. 832.
    Upon the whole case, as disclosed by the testimony, and the view taken of the law of the case, the verdict was right, or at least the jury might fairly interpret the conduct of Leggett as imposing upon him a responsibility for the loss of the slave Solomon.
   Mr. Justice Thacker

delivered the opinion of the court.

This is an action of trespass to recover damages for the loss of the plaintiff’s slave by the act of the defendant’s slave.

A bill of exceptions, filed upon the overruling of a motion for a new trial, discloses the substance of the whole evidence. The facts are briefly, — that the deceased slave visited the plantation of the defendant, and, upon his own request, twice received a dram of spirits from the defendant, in company with the slave of the defendant, who is supposed to have taken his life; that some time after, the defendant was aroused from sleep by a clamor among his slaves, which was. found to proceed from the two slaves in question; that as the defendant, armed with a gun, approached those slaves, he was run in upon by the plaintiff’s slave, who discharged his gun; that the defendant took no steps upon this act, but seems to have allowed the plaintiff’s slave to still remain upon his. premises; that not long after, the defendant was again aroused by a similar clamor, and approaching the spot, he beheld first the two slaves iir a struggle together, and next the slave, now deceased, pursuing and ■threatening the life of the defendant’s slave, and thereupon, as the difficulty seemed to cease, the defendant left the spot and returned into his house; and that, upon the following morning, the plaintiff’s slave was found dead upon the spot where the last quarrel took place. Evidence was likewise adduced to •show that the deceased slave was of $1000 value. The jury ■found a verdict for the plaintiff below, in $1180, of which amount the plaintiff remitted $180.

The rule of the liability of the master for the act of his slave, seems to be limited to cases in the way of trade, or public employment, or where any injury is occasioned to another by any ■act done by a slave in pursuance of his master’s directions, but not for proceedings of a slave unauthorized by the master. Snee v. Trice, 2 Bay, 345; Saunders on Plead, and Ev. 863. The liability of a master in a civil action for the felonious killing by his slave of the slave of another, seems to depend upon the criminal knowledge or agency of that master in the transaction. Wright v. Weatherby, 7 Yerg. 367. It is true that an authorization from a master to his slave to do an act, or the agency of a master in a transaction of his slave, may be gathered from the circumstances surrounding the occurrence. But the facts of this case, as detailed in the record, do not amount to sufficient proof that the defendant below commanded or authorized his slave to take the life of the deceased slave. At most, these facts show a case of manslaughter by defendant’s slave — a killing during a sudden quarrel, and at least, a case of justifiable homicide. In the first point of view, although a master might be sufficiently culpable in his agency in a matter of manslaughter by his slave as to expose him to damages in a civil action, yet the features of the evidence in the present case do not seem to carry such an impression, and in the latter point of view, the defendant would be clearly exonerated. The defendant was doubtless censurable and blamable, for want of care, prudence, and resolute and sufficient interference between the slaves at the outset of the fatal difficulty, but his conduct seems hardly to warrant the finding of the jury, as such cases are contemplated by the law.

Judgment reversed, and a new trial directed to be allowed.  