#### Smith vs. Weaver.

T},ER curiam.

If an action of trespass be brought fpr killing a negro slave, pending an indictment for the same fact, and the indictrn.ent be first tried and the defendant acquitted of the felony, that proyes the trespass, never was merged ; and the plaintiff may.proceed to try his action, notwithstanding the objection that trespass, cannot be commenced till after a trial for the felony.