Priester v. Augley ( 1851 )

Curia, per Evans, J.

The taking of the sugar cane wau no felony. It was only a trespass made a misdemeanor, and punishable in a slave by Act of Assembly, and no one has a right to kill a mere trespasser. The killing the negro was, therefore, unlawful, and there can be no doubt that the defendant’s son, who shot the gun, was liable. But the question is, whether the father is liable. According to all the authorities, if a servant, in. the course of his employment about his master’s business, do any act whereby the property of another is injured, the master is liable. - There is no doubt, from the evidence, that Josiah Augley, by his father’s authority, and in the execution of his father’s orders, went with a gun to drive away the negro. If, in doing so, he unlawfully killed the negro, the father is liable, because he shall answer for the acts of the son as his servant in executing his commands; but not for his acts unconnected with the master’s business. We think the charge of the Circuit Court was, in this particular, correct. As to the question of damages, the charge was most favorable to the defendant, and he has no right to complain.

The motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ. concurred. O’Neall, J. absent at the argument.

Motion dismissed.