
    The City Council of Charleston vs. The Rev’d. Dr. B. M. Palmer.
    Under an ordinance of the city of Charleston, it is provided, “ that the owner or tenant of any house, whose chimney shall take fire, and blaze out at the top shall be subject to a fine of not less than fifty, nor more than one hundred dollars.” It appeared that the chimney in this case, blazed out in consequence, of a negro servant carelessly throwing-info the fire a band box filled with pieces of silk, crape, chip and shreds of work, and that the blaze was but momentary; the court Held, that the owner or tenant was stiff liable to the penalty.
    'Charleston district. Tried before the Recorder 'in the' City Court, July, 1819.
    TThIS was a prosecution under the 32d section of the ordinance, respecting44 fire-másters,” which provides, “ that the o#ner or tenant of any house, whose chimney shall take fire and blaze out at the top, shall be subject to a fine <ñ not less than fifty, nor more than one hundred dollars.”
    It was admitted that the chimney appeared to take fire, and blazed out at the top ; but the defendant offered in evidence the written testimony of Miss Bunce, taken by consent. She stated that she was present when the chimney was said to be on fire, and site knows that the chimney blazed out in consequence of a negro carelessly throwing into the fire a band box filled with pieces of silk, crape, chip and other shreds of work; that the blaze was but momentary, and seen, she believes, by no other individual of the family but herself; that she does not recollect when the chimney was last swept, nor can she be positive that it was within a fortnight of the fire; that she believes the chimney to have been swept frequently, though she cannot precisely recollect at what intervals of time; that there are but two chimney funnels ; that which blazed out from the combustible matter thrown into it, tras the funnel of the kitchen.
    Upon this evidence, the defendant contended that the chimney in the technical sense of the ordinance did not take fire ,• for it did not appear, by the evidence, that the soot was on fire, the flame which blazed out at the top being caused by the shreds which took fire; but that even, could the ordinance be extended to such a fire, that it could never have been intended to punish what did not arise from the negligence of the master ; that the negligence or carelessness proved in this case was that of a negro slave, and the master could not be punished criminally for the acts of his slave. '
    The Recorder charged the jury that they must judge from the testimony how the chimney took fire ; that it appeared immaterial to him whether the fire was occasioned by the soot or the rubbish stated in the evidence ; that he did not think it necessary, under the ordinance, that negligence should he proved on the part of the owner or tenant; the ordinance did not, in its terms, embrace a case of negligence, hat imposed a penalty to follow the fact of the lire, to excite the vigilance of house-keepers, and to reimburse to the city the expenses attending a fire ; and in this rase, though the act was said to he that of a slave, yet the master was responsible, as it could hardly be called a crime-hut was an act which it was to be presumed was under the control of the master.
    The jury found a Verdict for the city of g 50.
    From this the defendant appealed, and moved for a new trial, on the ground that the verdict was contrary to law and evidence.
   Mr. Justice Richardson

delivered the opinion of the court.

The new trial is refused b-y the unanimous concurrence of the court. The fact of the chimney’s taking fire is sup - ported by the evidence. It is not pretended that the ordinance is unconstitutional; and we are of opinion that the city Judge gave it the true construction; It is true that a master is not liable for the unauthorized acts of his slaves; but here, the slave merely made a fire in the chimney, which being foul, took fire, and blazed out at the top, and the thing complained óf is, that the chimney was kept so foul as to take fire. Suppose a master were to set a spring; gun, and his slave or other person accidentally touching it were to set it off, upon whose head would the consequen oes fall? Upon the master’s clearly. So here the master suffers the chimney to become so" foul, that the funnel became combustible, his slave accidentally increases the fire in the. usual place, which ignites the soot, and the master’s negligence is exposed. Suppose a visitor had caused the same blaze by throwing lightwoo'd upon the fire, could that excuse the owner, when the true charge is for keeping a chimney so sooty that it blazed out by a reason of a fire made in the usual place? Sufely not. It is the identical v piece of negligence proved by the very consequence which the act punishes. The visitor,like the slave, would merely have unwittingly exposed the negligence of the owner. jut not have caused it. The having his chimney so Sooty; as that when it took fire, it blazed out at the top, is the simple charge made out; and the argument is resolvable into this, that the foulness of the chimney being rendered manifest by the act of a slave, the charge is upon the slave, and not the master. But this conclusion is a plain mistake of the rule upon which the argument turned.

Gadsden, for the motion.

Tomer, City Attorney, contra.

The motion was refused.

Justices Johnson, Huger, Nott and Colcock, concurred-  