This suit is instituted to recover the value of the slave “ Plant,” the property of plaintiff on the ground that he was illegally killed by defendant.
The judgment was for defendant, and plaintiff has appealed.
The Act of 1855, relative to slaves and free ’colored persons, having been declared unconstitutional; and the Act of 1857, relative to slaves, not having been in force at the time of the killing of the slave, the decision of this cause must de*568pend upon tlie effect of the Act of 1806. Session Acts, p. 150; Bullard & Curry’s Digest; p. 49.
The 32d section of said Act provides, that “ If any slave shall he found absent from the house or dwelling, or where his usual place of working or residence is, without some white person accompanying him, and shall refuse to submit himself to the examination of any freeholder, the said freeholder shall he permitted to seize and correct the said slave as aforesaid ; and if the said slave should resist, or attempt to make his escape, the said inhabitant is hereby authorised to make use of arms, but at all events avoiding tbe killing of said slave, but should the said slave assault and strike the said inhabitant, be is lawfully authorized to kill him.”
This section is substantially the same as the 65th section of the said Act of 1855. Session Acts, 386.
The 35th section of the Act of 1806 declares, that “ It shall and may he lawful to fire upon runaway negroes, who may he armed, and upon those who, when pursued, shall refuse to surrender.”
This section does not differ materially from the 41st section of the .Act of 1857, relative to slaves. Session Acts, 233.
It is established, that the deceased slave was in the habit of running away. In the act of sale to the plaintiff, it is stated he had run away several times. He was sold with full guaranty, except the vice of running away.
It is admitted that plaintiff lives about 45 or 50 miles distant from the place where the slave was shot.
The testimony shows, that defendant is a -planter and slave-holder, and lives in the neighborhood where the slave was killed.
It appears that defendant and one Mcrriman were hunting for some runaway negroes.
Merriimn testifies thus : “ When we eame across this boy he was in a thick palmetto swamp—he had a camp ; there was a large quantity of provisions there. He ran, hut picked up a belt, before running, to which was attached a scabbard. I ordered him to stop three times, and hollowed as loud as I could ; I was not more than twenty or twenty-five steps from him. So did defendant order him to stop. We were both afoot and had no dogs. If he had gone ten feet further he would have been out of sight. He was shot in the butt.”
The left arm of the slave was also struck by the discharge of the gun, and broken.
The defendant is, under the circumstances, justified by the law.
The object of the law is not that runaway negroes, who are armed, or who, when pursued, shall refuse to surrender, shall be killed. It-authorises the firing* upon them, avoiding, however, if possible, to kill them.
Unless there are particular reasons why a runaway slave attempting to escape, should he at once wounded, the policy of the law, humanity, and a just regard to the interests of slave-holders require that the gun should not bo aimed at him ; but that it should be discharged for the purpose of inducing him to stop.
When this is ineffectual, and it becomes necessary to fire upon him to prevent Ms escape, then the pursuer ought not to try to give him a mortal wound, but merely to cripple him, so as to arrest his flight.
If, however, the slave be killed, the homicide is a consequence of the permission to fire upon him. Duperrier v. Dautrive, 12 An. 665.
Judgment affirmed, with costs of appeal.