
    J. B. Arnandez v. Thomas B. Lawes.
    Whether a party be justified by the 32d article of the Black Code in the use of fire-arms to prevent the escape of a slave arrested by him at an unseasonable hour, is a question with the decision of which juries may safely be trusted.
    Where the damages allowed by the jury for the unjustifiable killing of a slave, are less than the sum which should have been allowed, the court will increase the amount.
    APPEAL from the District Court of Iberville. Burk, J.
    
      H. F. Deblieux, for plaintiff, contended:
    The plaintiff sued to recover from the defendants, as damages' resulting from the gross fault and act of the defendant Lawes, in killing his, plaintiff’s, slave, the amount of the value of the slave, and other loss suffered by him in consequence of the deprivation of his services or of his value.
    It was admitted by plaintiff, although doubtful of existence, that defendant was a freeholder; on which quality, it is expected, from the course pursued at the two trials below, much will be the stress laid here. The plaintiff’s counsel considered that quality, in a ease having the features of the present, of so little importance, that it was not cared for whether or not he was a freeholder. Even if not one, it was considered that, as he alleges it, he has much more interest in the good police of slaves, than perhaps one thousand others, who are undoubtedly freeholders by purchase of 80 or 40 acres of public land, not being even citizens of the State. The plaintiff’s counsel was well acquainted with the decision of this court, in Z. Blanchard v. J. F. Dixon, rendered 29th January, 1849, which was quoted and read to the juiy, as exculpating Lawes in this case, in his quality of freeholder. The plaintiif’s counsel also read and relied on that opinion of this court, and will do so here, to show that what was then pretended, is not the doctrine of the Supreme Court.
    The court says, after quoting the 32d section of the act of 1806, B. & C. Dig. pp. 53 and 54: “We deem it unnecessary to inquire whether a freeholder, under the circumstances of this case, would have been justified in resorting to the violent means used by defendant to arrest a slave, in the day time, on the high way, on a day of rest, suspected of no crime, who is guilty of no assault, and who merely endeavors, by flight, to escape from an examination, more particularly, in the absence of proof that the arrest could not have been otherwise safely effected. See Oliver v. Young, 9 M. R. 221.”
    The provisions of the section under consideration are departures from the general law, and must be strictly construed.
    After thus very clearly intimating, that in the case then under consideration, Dixon, even being a freeholder, would not be justified, the court then proceed to state, what they find in the record, that he is not a freeholder, and that as he could, not in any way interfere in the police of slaves, he was clearly in no case to use dangerous means to effect their capture; and Dixon is condemned to the full amount of loss incurred by the plaintiff in consequence of the maiming of his slave.
    
      It is to be noticed that in that case a j ury had found for the defendant; and this court being of opinion that they had so done clearly against the testimony and law did not deem it just to remand the case, but passed upon it finally.
    Had Dixon, proved himself a freeholder, no doubt the court, after discussing more fully the sections 30 and 32, would have rendered against him the same judgment on the evidence before them.
    In the present case the facts present a more aggravated case of useless, barbarous, unjustifiable violence. The two slaves had their permits. On the first summons they landed their boat; came onshore; delivered their permits, and submitted to defendant. No need was there of violence or fetters; they were submissive and confiding in their innocence and obedience to their master’s commands : two strong white men stood by them, one of them provided with a loaded gun. But defendant must have them tied, and ordered it to be done; with what view, under the circumstances, could the poor negroes think ? For purpose of chastisement they musthave thought. So thought the boy William, and fearful, as the witness describes him, (i. e. craintif,) as he was, his first impulse was to run. He had never deserved a whipping for the nine years he had belonged to his good master, the plaintiff; he will be whipped now. He went a few yards— even the distance he did run we must believe exaggerated by the witness who had so large a share in the causes of his death — a voice calls for him to stop; it is that of Iris fellow slave, who is being tied by the witness ; he no doubt recognises this voice; his just fright abated; the thought suddenly occurs to him that by running he aggravates the probable consequences of their arrest; that this attempt to avoid defendant will be fruitless, and he stops; but at that moment is shot down dead. He is shot at the moment when he is turning round to come back and submit to be tied. He receives his death wounds, three penetrating wounds, in his left side and left arm; other shots graze his back, inflicting flesh wounds.
    But the defendant thought that his gun was loaded with bird-shot, and though it was loaded with buck-shot he did not know it, and is excusable because, indeed, this bird-shot does not generally kill a man at thirty yards.
    Both the medical witnesses say that this bird-shot will kill at that distance, although rarely, perhaps in two cases out of eight. (Dr. Stone’s testimony.) They could have said-also, that buck-shot in many cases does not kill. However, buck-shot was used and did kill, and the defendant was bound to know what was in his gun, or submit to the civil consequences of his ignorance of the fact which could only discharge him from crime of a high grade. Had he killed the negro with small shot, only intending to stop him, he would be as well liable as he is now. How can it be known that he would not have caused death with such shot on this occasion ?
    It must be clear to all legal minds, and even to any right mind, on this series-of facts, that the defendant has been shown guilty of what is called a gross fault; and were it necessary in such cases as the present to establish the degree of his fault, whether in commission or omission, no doubt could remain.
    But under the great principle embodied in the articles 2294 and 2295 of the Civil Code, that whoever has occasioned damage to another is bound to repair it; no such discrimination is admitted; the conclusion which may be arrived at, that the fault of the party is less in its degree, does not lessen his civil liability. Equity, and such also is the law, requires that not he who is not at all to blame, but he who has by his fault, whatever it is, caused a loss or damage, should suffer that loss or damage. The amount of reparation must be full, complete to the party injured, no deduction can be made in regard to the greater or less imprudence, or fault, which’ gives right to the action. Such are the principles unanimously laid down by the great commentators on our civil law, copied, word for word, on this subject, from the French code. Vide Code Napoleon, art. 1382. 7 Duranton, Nos. 708 and 1199, includes all faults and omissions. 11 Toullier, Nos. 119, 121, 135, Dornat, p. 2, art. 8, sec. 4.
    That the defendant himself was aware that he was guilty of a fault which entitled the plaintiff to reparation from him, is evident from his declaration to some of the witnesses, to the effect that he wished him to be told that he wanted to see him, and would satisfy him for the loss of his negro; and this was soon after the occurrence, when he severely felt the enormity of his fault; the dead body of the slave being still before him.
    This cause, after a fuflinvestigation before a jury, in which the plaintiff had to contend against the prejudices of many planters, about the necessity of extreme measures in the police of slaves, and the right of any one to shoot down a slave who does not instantly submit, terminated in the court below in their finding a verdict for $1000’ for the value of the slave, and for damages in the shape of interest from the day of the slave’s death.
    The first branch of the verdict clearly assesses the value of the slave below the minimum value established by all the witnesses who knew him. This is $1250, the price plaintiff paid for him, which he was better worth then, says one witness, than when purchased. Three of the witnesses, after enumerating his good qualities, declared that to his master he was worth $1500; i. e., they themselves would have valued his possession, if their’s, at more than that amount. The jury, in finding only $1000, were influenced, to some extent, by the prejudices above alluded to, in not allowing the full amount of value.
    The second branch of the verdict, allowing interest as the damages due plaintiff beyond the value of the slave, is clearly illegal, insomuch as it allows interest on a.n amount yet unliquidated, and also unjust, as it would allow only $80 a year to plaintiff, when it is positively proved that he lost not less than $1 per diem.
    The plaintiff, in stating his damages over and beyond the value of the slave, which he sincerely estimated at $1500, wished to claim from defendant no more than would prove to be his damages at the termination of this suit. Instead, therefore, stating those damages at some enormous and vague amount, he directed his counsel to claim them in proportion to the time which would elapse until justice was done towards hjm by defendant. He estimated these at $1 per day, and it was so put down. It may be said that we are claiming the value of the services of a dead slave; but this sum is claimed as damages only, and damages incurred in consequence both of the killing, and of the failure to remunerate the plaintiff,' and to put it in his potver to replace, if possible, the slave by as good a subject.
    Had the defendant not appealed, however, this cause might not have been taken up to this court. The plaintiff, had the judgment been acquiesced in, although it does him not full justice, would have ceased litigating further. He only appealed when and after the defendant had done so, and determined, if litigation must continue, he would assert his rights to their full extent.
    He therefore claims before this court: First. That the'judgment of the court below be increased, so as to assess the value of the slave at the sum of $1500. Secondly. That the full damages claimed by him, over and above that sum, be allowed by the judgment of this court, and, as damages, not in the shape of interest. And that the judgment of the court below be reversed, and that judgment be awarded him by the court in accordance to his claims. All which is respectfully submitted.”
    
      W. E. Edwards, for defendant:
    This is an action for damages brought by plaintiff against the defendant for shooting his slave. The jury rendered a verdict in favor of the plaintiff for the sum of $1000 damages, with interest thereon at the rate of eight per cent per annum, from the date of the death of the slave until paid.
    The evidence adduced, shows that the defendant, Thomas R■ Lawes, who it is admitted is a freeholder, at the date alleged in the petition, after nine o’clock at night, in front of his plantation, discovered two of the plaintiff’s slaves in a skiff upon the river, rowing up; hailed them; made them come ashore; demanded their passes; received a paper from them; and when in the act of getting a light to read its contents, the slave William broke away and fled, when the defendant, calling upon him several times to stop without being obeyed, fired upon him, then at a distance of thirty to thirty-two yards. That the night was very dark, and that the defendant, Lawes, at the time he fired at the slave, believed that both barrels of his gun, were loaded with little bird-shot, and was ignorant of the fact that JDaigle, the overseer, the day before, had extracted the small shot from one barrel, and charged it with buck-shot, for the purpose of shooting a crane. And that, if both barrels of his gun had been loaded with fine shot, as defendant believed they were at the time he fired, the said slave would have received little or no injury therefrom.
    From these facts, then, the defendant contends that the verdict of the jury and judgment of the court a quo is erroneous, and should be reversed upon the following grounds: 1st. The defendant, being a freeholder, and finding plaintiff’s slave William at a late and unlawful hour of the night in front of his plantation, absent from the dwelling of his master, to a distance of four miles, without a white person accompanying him, was authorised by law to arrest and examine him. Acts 1806, section 30 and 32, page 176. Bullard & Curry. 2d. It was the duty of the slave William, under the law, after defendant had stopped him upon the river, to passively submit until defendant had completed his examination; instead of this, as soon as he lands from the skiff, he attempts to malte his escape by running, to prevent which, the law fully authorised the defendant to make use of arms, as he did. Acts of 1806, section 32, page 176. Bullard & Curry. 3d. The question then will arise, in the use of arms upon the slave, has the defendant brought himself strictly within the statute above cited. We answer, he has. He is a freeholder, as admitted by piaintiff. He is in front of his own property; the negro William is passing there at a suspicious and unlawful hour of the night, a distance of four miles from his usual place of working or residence, without being accompanied by any white person. Seeing this, the law permitted the defendant to stop and examine him. He did so; the slave stops; declares he has a pass; hands it to defendant; it being too dark to read, the defendant turns from the slave in search of a light; that moment the slave flies and attempts to make his escape, before the defendant could possibly know whether the paper in his hand was a pass or not; and, if a pass, whether the same was genuine and legal, and whether the slave was acting in obedience to its contents or not. And the'very fact of the slave making the attempt to escape after giving up the pass, and before it could be read, instantly created a well grounded belief in the mind of the defendant, that the paper was a forgery or ruse, the examination of which would afford him an opportunity to escape. In one word, the slave refused to submit himself to defendant’s examination, and was in a state of resistance when he attempted to escape ; and the defendant was authorised to make use of arms to carry out the examination.
    Did defendant, in the use of arms to enforce the examination of the said slave, use due caution to avoid killing him. The evidence shows that he called upon the slave several times to stop ; that he permitted him to run to the distance of thirty-two yards before he fired, and, at the time, believed that both barrels of his gun were charged with No. 8, or bird-shot, which, at that distance, under ordinary circumstances, would not have killed. That he was ignorant of the fact that either of the charges of small shot, which he himself had put into his gun, had been extracted by the overseer, and one barrel loaded with buck shot. We, therefore, contend that all due caution was used by defendant to avoid the killing of the slave, and that his death was purely accidental; for which defendant is not responsible. If the slave had been shot with the other bore of the gun, in which there was fine bird-shot, and from which death could only have occurred by the shot striking the eye, or cutting one of the great arteries of the body, or from some other extraordinary cause, no one would have pretended that the defendant would have been liable in damages, as the law, when the slave was attempting to escape, allowed the use of arms, which could not have been used in a form less dangerous than shooting the finest kind of shot at a distance of thirty-two yards, and the death would have been accidental, growing out of the performance of a legal and justifiable act.
    It is therefore contended, that the defendant has brought himself within the 32d section of the act of 1806, and thatthedenth of the slave was an accident, originating from an act authorised and directed by that statute-. This act of the Legislature of 1806, has conferred upon freeholders extraordinary power over slaves. Each one is made a police officer, and every slave found absent from his dwelling, prima facie, a criminal. To keep slaves under proper subjection and discipline, such a law was necessaiy for the country, where there was no standing or salaried police. It has operated well, and kept the country free from riot and rebellion. But the moment the use of arms is taken out of the hands of the freeholder, in the arrest and examination of wandering slaves, the peace and safety of the public is at an end. And if eveiy freeholder, when he uses arms to compel the arrest and examination of a straggling slave, is to be mulcted in damages for whatever injury he may do the slave, whether that injury be accidental or otherwise, no one will attempt to enforce it; and the slave, the moment he leaves his master’s premises, is without government or control. The slave is controlled only by fear; that fear arises solely from arms which the law puts into the hands of the white man, and takes from him. The principle settled in this case will be an important one for the country ; for by the verdict of the juiy the act of 1806 is abrogated, and the freeholder left witliout protection, in his attempt to enforce the police regulation of slaves.
    
      4th. The court permitted the juiy to retire to their homes during the trial, contrary to law.
   The opinion of the court was pronounced by

Rost, J.

The main question presented to the juiy who tried this case, was, whether the defendant Lawes was authorised by the ' 32d article of the Black Code, to make use of arms in the manner he did, tc(|prevent the escape of a slave of the plaintiff arrested by him at an unseasonable' hour. It is a question with the decision of which juries may be safely trusted, so far as the public interest is concerned. The verdict was in favor of the plaintiff; and there is nothing in the record which would authorise us to disturb the judgment entered thereon, on the application of the defendant and appellant.

The plaintiff also has appealed, and asks that the judgment be amended so as to allow a larger sum for the slave, and damages at jjle rate of thirty dollars a month since he lost the services of said slave, instead of the interest allowed by the juiy on the amount of the verdict.

We are of opinion that the plaintiff is entitled to have the judgment amended so as to be for the sum of $1200 including damages.

It is therefore ordered that the judgment is this case be amended, so as to be in favor of the plaintiff and against the defendant for $1200; and that as amended it be affirmed, with costs.  