
    GREER v. EMERSON.
    If an overseer directs a slave belonging to his employer to run a horse,& the slave is killed in doing so, trespass will lie.
    Trespass.—The defendant was employed by the plaintiff, and lived with him as an Overseer.
    The Plaintiff being from home, the defendant ordered a negro the property of the plaintiff, to catch a horse and go with him to the race paths. which were in the neighborhood, for the purpose of straining the horse and ascertaining his speed. The negro obeyed and started the horse, the defendant being present. The horse flew the way, threw the negro, and killed him.
    
      Campbell, for the defendant,
    moved that the plaintiff should be non-suited, on the ground that the evidence would not support an action of trespass. Case, and not trespass, was the proper form of action. He read several cases, shewing the distinction between trespass and case, and concluded by saying, that it was lawful for the overseer to carry the negro and horse to the paths, and to direct him to strain the horse.
    If the act itself was lawful, any consequences which might result could not make it a trespass.
    Overton and Whiteside, e contra,
    
    contended that the overseer’s being employed to look after the business of the plaintiff, did not authorise his ordering the slave to do an act which had no connection with that business.
    The defendant in ordering the negro to strain the horse, was completely beyond the limits of his authority, and stood in the same situation as if he had not been overseer. 6 D. & E. 125; 2 Bl. Rep. 892, 1055, 983 and 1028.
   Per Curiam.

Let the evidence go to the jury.—The line of distinction between trespass and case, in many instances, is so nice, that it seems difficult to discover it ; this appears to be one of that description, but modern authorities seem rather to incline to trespass than case.

Verdict for the plaintiff, for $350. Rule for a new trial, which was discharged. 
      
       Vide 5 T. R. 648; 6 T. R. 125; 3 Wil. 403; 1 Esp Rep. 54; 6 T. R. 128, n. 2 Hen. & Mun. 423; 2 Goulds ed. Esp. N. P. 214 215.
     