delivered the opinion of the court.
The plaintiff in this case seeks to recover the value of his slave, killed by the defendant. The latter pleaded in justification, that the slave was a runaway, and refused to submit; and that he was armed with a large butcher knife, which he brandished at the defendant, and threatened his life. There was a verdict for the defendant, and the plaintiff- appealed.
His counsel has contended, that according to the 32d section of the Black Code (1 Moreau’s Digest 108) freeholders alone have a right, in the case of a slave being found absent from his usual place of working or residence, unaccompanied by any white person, and refusing to submit to examination, to seize and correct said slave, and if the slave shall resist or attempt to make his escape, to make use of arms, but at all *575events to avoid killing him, unless assaulted and stricken by the slave. He contends that the justification is therefore unsupported b_v evidence, there being no proof either that the defendant is a freeholder, or that any assault was committed upon him.
In this case the evidence being insufficient to decide it on themeritsjfwas remanded for a new trial.The authority cited by the counsel for the appellee from the same work, page 34, appears to us to relate only to the right of the owner to be paid by the state, for a slave killed while run away.
It appears to us the case should be remanded for a new trial.
It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, the verdict set aside ; and it is further ordered, that the case remanded for a new trial, and that the costs of appeal be paid by the appellee.