
    Tate v. O’Neal et al.
    From Wilkes
    name degree of discretion in the punishment of slaves, is necessarily allowed patrols.
    If in the exercise of this discretion they inflict punishment, they are not liable in an action to the master, unless then' conduct clearly demonstrates malice against the owner.
    This was an action brought against the Defendant and two others, for beating the slave of the Plaintiff The Defendants were the regular patrol of the Morgantoil district, in the county of Burke, and finding the slave not on his master’s premises, they enquired for his pass dr permit from his master; whither he was going; what was his business ? To these questions the slave returned mo answer; and the Defendants, together with one other patrol, composing a majority of those officers in that district, after consultation, inflicted on the slave fifteen lashes, having first made his body naked, and confined him to the whipping-post. There was contradictory evidence as to the severity of the punishment ,* and one witness swore that some animosity existed between the family of one of the Defendants and the Plaintiff.
    The Court instructed the Jury that the County Court of Burke had power to appoint the Defendants patrols; and if a majority of them was present, and agreed, they might legally whip a negro subject to punishment that if they found the whipping to be so excessive, as to manifest that it was not inflicted with the view of executing the law, but with the intention of gratifying malice against the owner of the slave, such owner would be entitled to recover j but, that in ascertaining that fact, they would not examine with the most scrupulous exactness into the size of the instrument, or the force with which it was used, as some discretion must necessarily be allowed patrols ; the excessive severity of the punishment must be such as a common observer would instantly perceive j that if-the mode adopted by the Defendants in whipping the slave, was such as masters commonly adopted, they had not acted unlawfully $ and that for the purpose of whipping the slave, they might confine him to the public whipping-post j that the refusal of the ■ slave to answer the enquiries put to him, authorised the patrol to believe he had been improperly or dishonestly occupied. Yerdict for Defendants, and 'motion for new trial j motion overruled j judgment, and appeal.
   Per Curiam.'

Upon looking into this case, we find nothing, either in the charge of the Judge, or finding of the Jury, to justify us in interfering with the judgment of the Court below. The rule for a new trial is thei-er fore overruled, and the judgment of the Court below is affirmed.  