death. Upon the plea of not guilty, the plaintiff proved the death of the horse, occasioned by the sticks which had been tied to his tail, and the confession of Caldwell, that his negro boy had tied sticks to the horse's tail, the horse having frequently broken into his wheat field. Upon being then informed by the witness that he had understood the horse had died from the abuse occasioned by the sticks which had been tied to his tail, Caldwell replied that he was glad of it. Verdict for the plaintiff, and motion for a new trial. There is no point of difficulty in the cause. For whether the conduct of the slave was under the direction or sanction of the master, is not material; or whether the master's direction or sanction thereof is tested by his express command, or by his presence, and not forbidding the act; or by other circumstances e vincing his approbation, is equally immaterial. He is in either case liable. For the law is, if one agree to a trespass which has been committed by another for his benefit, this action lies against him, although it was not done in obedience to his command, or at his request. Bac. Abr. 185. sect. 4. title Trepass. A fortiori, ought the master of a slave to be liable in such case for the trespass of the slave. The master of a slave ble for in 10. CAWTHORN v. DEAS. June T. 1835. 2 Porter's Rep. 276 The plaintiff sued the defendant in trespass, for an injury to his is not lia- property caused by the negligent conduct of the defendant's slaves. The court charged the jury, that it was not essential for the sed by the plaintiff to prove that the slaves acted under their master's authority; negligent conduct of but that in presumption of law, slaves were always under their master's control, and that he was liable for their negligent conduct. Verdict for plaintiff. juries cau the slave when not acting in his employment, his autho Per Cur. Thornton, J. The judgment must be reversed. By and under the common law the master is only liable for torts done in the exrity. ecution of his authority, or for damage flowing from negligent conduct in his employment. But, according to the civil law, though the master be liable for any injury or damage done by the slave, yet that liability is limited to the value of the slave, it being always in the option of the master to pay the estimate of the damage done, or surrender the body of the slave as a recompense. We adopt the common law as applied to master and servant. 11. SAWNEY V. CARTER. March T. 1828. 6 Rand's Rep. 173.; A court of equity can not enforce between slave, the master Per Cur. Coalter, J. The pauper, in this case, claims his freedom on an alleged contract between his master and him, at the time he was purchased at an executor's sale, that on paying his a contract purchase money, he should be free. He alleges, that he has paid master and accordingly; but that his master would not emancipate him. The whereby proof of the contract is by no means clear; although, if that was proved, and such a contract could be enforced in equity, there is he will proof enough in the record, of his master having received some his slave property, to wit, a wagon and three horses, which the pauper tain condi claimed as his own, and the proceeds of his earning by wagoning, formed, There is no case in this court, to send the case to an account. The case of John Rose, a pauper, v. Haxwell, adm'r of Duncan Rose, jun., was decided in this court against the pauper. That was a very strong case for the pauper, as I find by my note of it, though I was not present when it was decided. According to these notes, it appears, that this man belonged to the estate of the late Col. Banister, near Petersburg; that he was the son of Duncan Rose, the elder, who, on agrees that ●mancipate after a cer tion is per which condition has been complied with by the slave. his death bed, recommended him to the care of his nephew, the intestate of the appellee. On the sale of Banister's estate, he was purchased by Dr. Wilson for 901., who sold him to the intestate for the same sum. The intestate then put him apprentice to a carpenter. After his apprenticeship, he worked as a journeyman, and down to the death of the intestate, worked for himself, and was treated as a freeman by his employer, who paid him his earnings. The intestate frequently admitted that he was free, and said that he had paid him his purchase money, and more; and never interfered with him as a slave. His administrator always considered him as free; but finding that he had not been emancipated by deed, and not knowing but that he would be taken to pay debts, considered it his duty to take him as a slave. He says he is not hostile to his claim to freedom; but suggests, for the consideration of the court, whether a contract for freedom can be set up in a court of equity, and whether any other mode of emancipation than that prescribed by law, can be sustained. By the act of May, 1723, 4 stat., at Large, 132., it is enacted, that no negro, mulatto, or Indian slave, shall be set free on any pretence whatever, except for some meritorious service, to be adjudged and allowed by the governor and council, and license therefor first had and obtained; that if they shall be otherwise set free, it shall be lawful for the churchwardens, and they are required, to take them up and sell them as slaves, &c. This is re-enacted by the act of October, 1748, 6 stat., at Large, 112. By the act of May, 1782, 11 stat., at Large., 39, reciting, that application had been made to empower persons disposed to emancipate their slaves to do so, it is enacted that it shall hereafter be lawful for any person, by his last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county court by two witnesses, &c., to emancipate his slaves, or any of them, &c. This act is brought into the revision of 1794, ch. 103., sec. 36., by the 26th section of which, 1 Rev. Code, 433, it is made unlawful to permit slaves to go at large, and hire themselves out, under penalty of being apprehended and sold; and is also brought into that of 1819. sec. 53., p. 433. It has also been decided by this court, that a deed of emancipation, not recorded in the proper court, but in some other, gives no title to freedom, until properly recorded. Givens v. Mann, 6 Munf. Rep. 191.; Lewis v. Fullerton, 1 Rand's Rep. 15. (XVII.) OF THE LIABILITY OF OTHERS TO THE MASTER FOR ABUSING HIS S. AVE. (A.) BY ASSAULTING, BEATING, OR HARBORING HIM. 1. CORNFUTE V. DALE. April T. 1800. 1 Har. & John's. Rep. 4. This was an action of trespass for an assault and battery com- Trespass mitted by the defendant on the plaintiff's slave. will not lie by a master for an asbattery on unless it be sault and his slave, with a loss It was contended, that the action could be sustained, and that it was not necessary to prove a loss of service; that an action might be supported for beating the plaintiff's horse, 2 Lutw. 1481; 20 Viner's Abr. 454; and that the lord might have an action for the attended battery of his villein which is founded on this p inciple, that as the of service. villein could not support the action, the injury would be without redress unless the lord could. On the other side, it was said, that Ld. Ch. J. Raymond had decided, that an assault on a horse was no cause of action, unless accompanied with a special damage. Ch. J. Chase assigned, among other reasons, for the decision in favor of the defendant, that the action did not lie, because there was not a reciprocity of action; no action being maintainable against a master for an assault and battery committed by his slave; and that the injury to the slave was not dispunishable, it being indictable as an offence; and that without an injury or wrong to the master, no action could be sustained. And see Belmore v. Caldwell, 2 Bibb's Rep. 76, where the court say, that actual possession of the slave by the master is necessary to entitle him to an action of trespass for beating him. 2. SMITH V. HANCOCK. 4 Bibb's Rep. 222. tion of. Held by the court, that in an action of trespass for beating a slave, Justificathe property of the plaintiff, whereby he died, the defendant may justify by showing that the slave was at an unlawful assembly combining to rebel, and that he refused to surrender, and resisted by force. 3. STATE V. HALE. Dec. T. 1823. 2 Hawk's North Carolina This was an indictment charging the defendant with having on a slave, tion, or circumstances attend no justifica- committed an assault on a slave, and with inhumanly beating wounding, &c. The jury found, that the defendant committed ing it, being personal violence on the slave, mentioned in the indictment, by shown, is striking him; and whether this amounted to the offence charged, ble offence. they referred it to the court to decide. The judge below rendered judgment for the defendant, and the state appealed. an indicta Taylor, Ch. J. The indictment, in this case, is for an inhuman assault and battery, but the special verdict states, that the defendant struck the slave. The question,\therefore, presented to the court, is, whether a battery, committed on a slave, no justification, or circumstances attending it being shown, is an indictable of fence. As there is no positive law, decisive of the question, a solution of it must be deduced from general principles, from reasonings founded on the common law, and adapted to the existing condition and circumstances of our society, and indicating that result which is best adapted to general expedience. Presumptive evidence of what this is, arises, in some degree, from usage, of which the legislature must have been long since apprised, by the repeated conviction and punishment of persons charged with this offence. It would be a subject of regret to every thinking person, if courts of justice were restrained, by any austere rule of judicature, from keeping pace with the march of benignant policy and provident humanity, which for many years has characterised every legislative act relative to the protection of slaves, and which christianity, by the mild diffusion of its light and influence, has contributed to promote; and even domestic safety and interest equally enjoin. The wisdom of this course of legislation has not exhausted itself on the specific objects to which it was directed, but has produced wider and happier consequences, in securing to this class of persons, milder treatment and more attention to their safety. For the very circumstance of their being brought within the pale of legal protection has had a corresponding influence upon the tone of public feeling towards them; has rendered them of more value to their masters, and suppressed many outrages, which were before but too frequent. It is, however, objected in this case, that no offence has been committed, and the indictment is not sustainable, because the person assaulted is a slave, who is not protected by the general criminal law of the state; but that, as the property of an individual, the owner may be redressed by a civil action. But though neither the common law, nor any other code yet devised by man, could |