
    
      Robert H. Bradley vs. Samuel Flewitt and others.
    
    Trespass for killing a slave : plea — not guilty: proof — that the slave was shot and killod by defendant while he was in pursuit of him as a runaway at the request of plaintiff: verdict for defendant, and new trial ordered, (with leave to defendant to plead specially,) unless defendant enter satisfaction for the costs.
    Whero, in trespass for killing a slave, the plea is the general issue, and the trespass is proved, the jury should find a verdict for the plaintiff for some amount: semble.
    
    
      Before Fíiost, J., at Williamsburg, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trespass, brought to recover damages for-shooting the plaintiff’s slave, Jack. The plaintiff and his mother, Mrs. Bradley, lived together, — had before the year 1849 planted in common, but planted together that year. Jack belonged to plaintiff. Mrs. Bradley was very eccentric, and the plaintiff still more so, if not actually deranged for some time before the shooting. They managed badly, and, for three or four years, their negroes were continually running away-and depredating on their neighbors’ property. In the summer of 1849, Jack and two other young men, an elderly man, a woman and a girl, the property of the plaintiff and his mother, were runaway. Together with another runaway man, who was intelligent and of very bad character, they made a camp in a swamp in the neighborhood of the defendants. The camp ground was a clearing in a very dense thicket, and was supposed to be about twelve or fifteen feet in diameter. From this hiding place the negroes killed the hogs and sheep and robbed the fields of the neighbors. The defendants formed a party to hunt and capture them. The defendants were armed with guns. That of Flewitt and of one or two others were loaded with small bird shot — that of one with buck shot. The party surprised the gang in their camp. The negroes took to the thicket. They were ordered to stop, but did not. All of the defendants discharged their guns, without effect, except Flewitt, who shot Jack. The load entered Jack’s thigh, midway between the hip and knee. It took effect “ in a lump.” A scattering shot entered the leg behind the knee. The perforation 'was very small, hut the shot cut the artery of the leg. The other wounds were represented not to be dangerous. Flewitt and another rode to Dr. Bradley’s to be advised by him what they should do. They said they did not think the wound was dangerous. By Dr. Bradley’s advice Jack was brought to his house, two or three hours after he was shot. His extremities were cold, and he was nearly pulseless. Dr. Bradley after attempting, by other means, to stop the flow of blood, applied a turniquet; which succeeded in stopping it. Dr. DuBose was sent for. He came about dark, thought Jack too feeble' for the necessary surgical operation. Jack recovered a little during the night. In the morning Dr. DuBose returned, but still thought Jack could not support an operation. He apprehended mortification from the continual suspension of the circulation by the turniquet, and slackened it. T’he hemorrhage was renewed; and Jack, sinking slowly,.died the night after.
    “ There was evidence that the defendants, in hunting and shooting the runaways, acted by the direction and request of the plaintiff. William J. Cooper testified that he was sent for by Mrs. Bradley, who, in the presence of the plaintiff, made many complaints against Jack and the other negroes, for killing her stock and stealing every thing on the plantation; expressed fears for her personal safety from Jack’s behaviour; and mentioned that, the night before, Jack had come to the house and the plaintiff had shot at him, but without effect. Both Mrs. Bradley and the plaintiff then requested Cooper to collect some of the neighbors and hunt áhe runaways and take them, and if they could not take them, to shoot them. William Flewitt had pursued Jack, some time before he was killed, and Jack making his escape, as he ran picked up a stick, and looking back, threatened to knock Flewitt’s brains out, if Flewitt put hands on him. This occurrence Flewitt mentioned to the plaintiff, and the plaintiff said he wished Flewitt had had a gun to shoot Jack. Flewitt told to Samuel Flewitt, his brother, and to two others of the defendants, his adventures with Jack and what the plaintiff had said. The plaintiff was one of a party to take Jack, and said if he could see Jack he would shoot him. Sheriff Bradley testified that the plaintiff, in the presence of one of the defendants, told him to shoot Jack if Jack came about him ; and said that he had told the defendant who was present to do the same; hut the plaintiff laughed and said that defendant would not do it. Cooper also testified that he had communicated to the defendants the request of Mrs. Bradley and of the plaintiff; and several appointments were made by him and them to go in pursuit of the negroes, hut those appointments failed. Another engagement prevented Cooper from joining the party when Jack was killed.
    “ For some time before the conversation of Cooper with the plaintiff and his mother, several witnesses testified that they did not think the plaintiff was sane. This they inferred from his deportment, dress, slovenly neglect of personal neatness, and a wild expression of his countenance. The plaintiff, without any cause, at least without any sufficient cause, had taken offence against Chapman and threatened his life. He wanted to fix a fight on sheriff Bradley, his cousin, without any reason known to Bradley. Porter, Armstrong and Mathews thought the plaintiff was so insane as to he dangerous. Dr. Bradley, the uncle of the plaintiff, mentioned several circumstances, not very conclusive in themselves, which excited his apprehension that the plaintiff was not sane. Immediately about the time of the killing of Jack, and afterwards, the insanity of the plaintiff was more developed, and Dr. Bradley became then confirmed in his previous apprehension that the plaintiff was insane before Jack was killed; but he said, the general impression was that the plaintiff was only eccentric, like his mother. In December, 1S50, the plaintiff having been found a lunatic, was committed to the Asylum, where he still is. The Chancellor ordered this suit to be continued, in the name of the lunatic, by his committee.
    “ I stated the law to the jury, (my instructions, not being the subject of appeal, it is unnecessary to report,) and told them that, applying the law to the facts of the case, it was my impression they should find for the plaintiff, unless the defendants acted by the direction of the plaintiff; and if that was the case, the plaintiff, had no cause of action. But they were further instructed that the defendants could not justify the killing by the request of the plaintiff, if, at the time the request was made, the plaintiff* was insane. And even if the defendants did kill Jack by the license of the plaintiff, that defence not being specially pleaded in justification, would not entitle the defendants to a verdict, hut would only reduce the verdict for the. plaintiff to nominal damages. The jury found a verdict for the defendants.”
    The plaintiff appealed, and npw moved this Court for a new trial, on the grounds :
    1. Because the plaintiff having proved a trespass, and the defendants having plead^the general issue, the jury should have found a verdict for the plaintiff for some amount.
    2. Because under the facts and circumstances of the case as proved on the trial, and the law applicable thereto, the jury should have found a verdict for the value of the slave killed.
    
      Dargan, for the appellant,
    cited 2 Saund. PI. and Ev. 857, 861, 633; 2 T. R. 166; 2 N. and McC. 138; 1 Mill, 196; 2 lb. 58 ; 2 Bail. 407; 1 Chit. PI. 494; 2 Camp.. 378 ; 5 Rich. 326; Norvell vs. Thompson, 2 Hill, 470; 1 McM. 131; 2 N. and McC. 85; 2 Bail. 18; 3 McC. 258 ; 5 Rich. 405; 4 McC. 156; 4 lb. 161; Witsell vs. Earnest, 1 N. and McC. 182 ; Bailey vs. Jeffords, 2 Sp. 271.
    
      Harllee, contra,
    cited Elwell vs. Bradham, 2 Sp. 168 ; Hendrix vs. Trapp, 2 Rich. 93; Watson vs. Hamilton, Mss.; 2 Stark. Ev. 815 ; Selw. N. P. 27 ; 2'Gilb. L. Ev. 256 ; 2 Chit. R. 639.
   The opinion of the Court was delivered by

WitheRs, J.

The case is one of trespass vi et armis, for killing a negro. The plea is the general issue. The verdict was for defendants, notwithstanding the jury were instructed that upon the state of the pleadings the verdict should be for the plaintiff, in some amount.

Evidence was received for defendants, without objection, tending to show that in pursuance of the permission or rather the request of the plaintiff, the defendants went in pursuit of a gang of desperate runaway slaves, one of whom was Jack, who was killed. It appears that a confession, or some account of the transaction, before a Coroner’s inquest perhaps, by one or more of the defendants, was adduced by the plaintiff to fix legal blame and responsibility upon them, and out of this testimony an argument-was raised and pressed for them, that there was no wanton conduct on their part. Of course it is to be understood the jury were instructed, that the evidence for defendants could be only in mitigation of damages, but their verdict has given it the force and effect of a justification.

The question is, must there be a new trial, and if so must the rule be declared, that upon the general issue and the evidence adduced, the verdict should have been for the plaintiff and for the value of the.negro?

Our rules as to evidence receivable under the general issue in trespass are those of the English Courts prior to the recent modifications of their practice and pleadings. That is to say, every defence admitting the defendant to have been prima facie a trespasser must be specially pleaded; matters going to show he never committed a trespass properly come under the general issue: what cannot be pleaded and would yet be matter of complete defence, or in mitigation of damages, must be received under that plea. We have also a familiar rule of law, that for the destruction of personal property, without legal excuse or justification, the value of it is the measure of damages ; for which Richardson vs. Dukes, 4 McC. 156, and Bailey vs. Jeffords, 2 Spear 272, are examples.

Yet these principles do not meet, fully and precisely, the condition of the present case, as it comes to this Court. Supposing the evidence received be such as, not arising out of the res gestee, (vide 2 Greenl. Ev. Sec. 93,) could have been excluded eyen in mitigation of damages, still it was received by acquiescence of the plaintiff, and its influence on the jury shows, that if it had reached them under a proper special plea, it would have worked a justification of the defendants. If we were to send the case back, it would be incumbent upon the Court to allow the addition, in behalf of defendants of a special plea which would serve to let in the matters of excuse or justification, (as the case might be,) which the jury have regarded as so meritorious. If another jury were to take the like view of it, the condition of the plaintiff would not be improved.

Nor have we any reason to conclude they would not.

Without affirming that the apex juris alone supports the plaintiff’s case here, (as in Elwell vs. Bradham, 2 Spears 168, which was not a case of the destruction of personal property, but only a slight trespass on the person, and warranting no more than nominal damages) yet the finding of the jury does place •this case on such footing, as enables us to look to the merits of it, with a view to that sound discretion over the question of new trial which is not cramped by the rigid force of unbending law. If We place the plaintiff in the situation which is prescribed in the orders that will be subjoined, he will have the benefit of the rule laid down for him on the Circuit, as set forth in his first ground of appeal; and though deprived of that which is claimed in the second, it will be only because on a second trial, with the position of the defendants changed by the leave that would and ought to be accorded to them, it is not probable the plaintiff would stand in so good a condition as that he will be placed in now.

It is ordered, that a new trial be granted unless the'defendants shall, on or before the second Monday in January next, cause to be regularly entered, on the record and ji. fa. in this case, satisfaction for the costs demandable by them of the plaintiff.

It is further ordered, that in default of the same, the plaintiff have a new trial, without prejudice; and the defendants, in such case, have leave to file, in addition to their plea of the general issue, a special plea, as they may he advised.

Wardlaw and Whitnee, JJ., concurred.

Fkost, J., concurred in the result.

New trial ordered, nisi.  