An action lies in favor of the owner of a slave against his overseer, who directs the slave to run a horse, and the slave is killed in doing so.
The line of distinction between trespass and case is, in many instances, so nice that it seems difficult to discover it. Trespass seems the most proper, in this instance.
Trespass. — The defendant was employed by the plaintiff, and lived with him as an overseer.
The plaintiff being from home, the defendant ordered a negro, the property of the plaintiff, to catch a horse and go with him to the race paths, which were in the neighborhood, for the purpose of straining the horse and ascertaining his speed. The negro obeyed and started the horse, the defendant being present. The horse flew the way, threw the negro, and killed him.
Per Curiam.
Let the evidence go to the jury. The line of distinction between trespass and case, in many instances, is so nice, that it seems difficult to discover it. This appears to be one of that description, but modern authorities seem rather to incline to trespass than case.
Verdict for the plaintiff, for $350. Rule for a new trial, which was discharged.
Vide 5 Term Rep. 648; 6 Term Rep. 125; 3 Wil. 403; 1 Esp. 54; 6 Term Rep. 128, n.; 2 Hen. Mun. 423; 2 Gould's ed. Esp. N. P. 214. 215.
NOTE. — By statute case was allowed in every instance in which trespass would lie. And now, by the Code, § 2747, all wrongs and injuries to the property and person may be redressed by an action on the facts of the case. — ED.