
    Smith versus Weaver.
    A. killed B’s slave, was tried for felony, and acquitted; B. sued for the trespass and had a verdict: a new trial was moved, (on the ground that the civil remedy is merged in the crime) but denied.
    THIS was an action of trespass for killing a slave, the property of the plaintiff, who had been hired to the defendant. The jury found a verdict for the plaintiff, under the direction of the court, stating to them that in point of law the defendant was liable, if the facts charged in the declaration were established by satisfactory evidence. The objection taken at the trial was, that the offence charged amounted to felony, the civil remedy for which, although the defendant had been indicted and was acquitted, was nevertheless merged in the crime. And now upon a motion for a new trial it was argued by,
    
      Browne for the defendant.
    I contend that the plaintiff is not entitled to maintain this action, and that if it will lie, by the general principles of law, yet the writ in this case was prematurely sued out, be
      ing done before the determination of the criminal prosecution against the defendant. By the act of 1774, cap. 31, the offence of killing a slave, the property of another, if committed under such circumstances as, in the case of a freeman, would have amounted to murder, was punishable upon the first conviction, with twelve months imprisonment, and by paying the owner the value of the slave: upon a second conviction the offender was punishable with death. By the act of 1791, cap. 4, the punishment is altered to death upon the first conviction, and the crime is placed in all respects, upon the same footing with the murder of a freeman. Thus if the offence amounted to murder, the civil remedy is merged in the felony; if it amounted to any inferior species of homicide, the offender must be absolutely acquitted upon the indictment, and could not have been found guilty in this action, where the killing must have appeared to the jury wilful and malicious; and, if so, the offence is felony. The policy of the law in this respect is wisely directed to the public security, by compelling those who have been injured by means of a felony, to prosecute the offender criminally. But if the party may obtain a recompence by a civil action, very many offences will remain unpunished. If it shall be answered that the party plaintiff has in this case prosecuted criminally, and thereby entitled himself to sue, yet at all events, he should have waited the final determination of the charge, before he instituted the suit; 1 Bac. Abr. 64, in notis.
    
    
      
      Baker for the plaintiff.
    The rule laid down of the other side is an useful and politic one, when applied to cases within the reason of its operation, but manifestly leads to unjust consequences, when extended to others which are not intended to be affected by it. The law has in view, that there should be every reasonable motive to incite men to the prosecution of those by whom they have been injured, by an act amounting to felony, in order that the public justice may be satisfied; but when this is done, there is neither reason nor justice in withholding from the injured party the satisfaction which the offender is able to make him. If a person guilty of felony be pardoned or burnt in the hand, he is afterwards liable to the action of the individual; 1 Bac. Abr. 64. Why should he not be equally liable after an acquittal, where the prosecution has been bona fide? The jury have found the trespass and assessed the damages, and the court will not disturb the verdict, unless some plain rule of law demands it. As to the suit having been brought before the determination of the criminal prosecution, that is right or wrong according to the event. If a conviction had taken place, then the court would have made the payment of the value of the slave a part of their judgment, and of course the present suit would not lie; but as the defendant was acquitted, it does not signify when the suit was brought.
   Taylor, J.

It is not necessary to enquire what would have been the legal consequences as applied to the present suit, if a felony had been committed; because that fact, having been properly put in issue upon a criminal prosecution, has been negatived by the finding of a jury. The plaintiff in prosecuting for the felony has done all that the law requires of him, and the acquittal of the defendant could be no broader than the charge; consequently the trespass remains. I do not think it necessary to decide whether, in any case of trespass, it would be a good defence that the facts proved amounted to felony, although the charge in the declaration was of a trespass merely; because I am clearly of opinion, from the circumstances of this case, that the verdict is properly found.

Haywood, J. assented.

Motion denied.  