SMITH v. WEAVER

Browne, for the defendant. I contend that the plaintiff is not entitled to maintain this action, and that it will lie, by the general principles of law, yet the writ in this case was prematurely sued out, being done before the determination of the criminal prosecution against the defendant. By the Act of 1774, cap. 31, the offense of killing a slave, the property of another, if committed under such circumstances as, in the case of a freeman, would have amounted to murder, was punishable upon the first conviction with twelve months imprisonment, and by paying the owner the value of the slave; upon a second conviction the offender was punishable with death. By the Act of 1791, cap. 4, the punishment is altered to death upon the first conviction, and the crime is placed in all respects upon the same footing with the murder of a freeman. Thus, if the offense amounted to murder, the civil remedy is merged in the felony; if it amounted to any inferior species of homicide, the offender must be absolutely acquitted upon the indictment, and (142) could not have been found guilty in this action, where the killing must have appeared to the jury willful and malicious; and if so, the offense is felony. The policy of the law in this respect is wisely directed to the public security, by compelling those who have been injured by means of a felony to prosecute the offender criminally. But if the party may obtain a recompense by a civil action, very many offenses will remain unpunished. If it shall be answered that the party plaintiff has in this case prosecuted criminally, and there by entitled himself to sue, yet at all events he should have waited the final determination of the charge before he instituted the suit. 1 Bac. Abr., 64, in notis. Baker, for the plaintiff. The rule laid down on the other side is an useful and politic one, when applied to cases within the reason of its operation, but manifestly leads to unjust consequences when extended to others which are not intended to be affected by it. The law has in view that there shall be every reasonable motive to incite men to the prosecution of those by whom they have been injured, by an act amounting to felony, in order that the public justice may be satisfied; but when this is done, there is neither reason nor justice in withholding from the injured party the satisfaction which the offender is able to make him. If a person guilty of felony be pardoned or burned in the hand, he is afterwards liable to the action of the individual. 1 Bac. Abr., 64. Why should he not be equally liable after an acquittal where the prosecution has been bona fide? The jury has found the trespass and assessed the damages, and the Court will not disturb the verdict unless some plain rule of law demands it. As to the suit having been brought before the determination of the criminal prosecution, that is right or wrong according to the event. If a conviction had taken place, then the Court would have made the payment of the value of the slave a part of their judgment, and of course the present suit would not lie; but as the defendant was acquitted, it does not signify when the suit was brought.