
    HOOD vs. M'CORKLE.
    Western Dist.
    
      Oct. 1838.
    APTEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, FOR THE PARISH OF CARROLL, THE JUDGE OF THE SECOND PRESIDING.
    In this case the evidence being insufficient to decide it on the merits, it was remanded for a new trial.
    This is an action to recover the value of a slave belonging to the plaintiff, and killed by the defendant.
    The plaintiff alleges, that the defendant killed his slave Henry, a good and peaceable servant, without any just or legal cause whatever, and refuses to pay the value thereof. He alleges his value to be seventeen hundred dollars, for which he prays judgment.
    The defendant admits he killed the slave in question, but avers he was a runaway, defying the law and refusing to submit when ordered. That the slave wasfound quarrelling with the hands under his management as overseer, and was not on the plaintiff’s plantation, but was shot while in the act of brandishing a large knife, and threatening the life of the defendant. He prays that the demand be rejected.
    Upon this issue the cause was tried by a jury. The evidence showed that plaintiff’s slave came in at 12 o’clock, and weighed his cotton and went off. In about two hours the overseer missed him, and went to one or two of his neighbor’s and told them the slave Henry he expected had run off, and desired them (and among others the defendant, who was overseeing for one Chambliss, adjoining) to accompany him the next day in search of the slave. That same evening the slave was discovered quarrelling with the slaves of Chambliss, and had a butcher knife in his hand. The defendant was sent for in a hurry, and on coming up the slave ran, and on getting over into plaintiff’s field and refusing to stop on being ordered, the defendant shot him down on the spot.
    On this evidence, and after the arguments of counsel, the jury returned a verdict for the defendant. After an unsuccessful attempt to obtain a new trial, the plaintiff appealed.
    
      M‘Guire, for the plaintiff.
    Downs, contra.
    
   Bullard, J.,

delivered the opinion of the court.

The plaintiff in this case seeks to recover the value of his slave, killed by the defendant. The latter pleaded in justification, that the slave was a runaway, and refused to submit; and that he was armed with a large butcher knife, which he brandished at the defendant, and threatened his life. There was a verdict for the defendant, and the plaintiff- appealed.

His counsel has contended, that according to the 32d section of the Black Code (1 Moreau’s Digest 108) freeholders alone have a right, in the case of a slave being found absent from his usual place of working or residence, unaccompanied by any white person, and refusing to submit to examination, to seize and correct said slave, and if the slave shall resist or attempt to make his escape, to make use of arms, but at all events to avoid killing him, unless assaulted and stricken by the slave. He contends that the justification is therefore unsupported b_v evidence, there being no proof either that the defendant is a freeholder, or that any assault was committed upon him.

In this case the evidence being insufficient to decide it on themeritsjfwas remanded for a new trial.

The authority cited by the counsel for the appellee from the same work, page 34, appears to us to relate only to the right of the owner to be paid by the state, for a slave killed while run away.

It appears to us the case should be remanded for a new trial.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, the verdict set aside ; and it is further ordered, that the case remanded for a new trial, and that the costs of appeal be paid by the appellee.  