RICHARDSON against SALTAR and others.
tyherethe Countv Court does not form rules and regulations for Patrollers un-^Icr the Act of 1802, c. 15, conform to those of 1794, c 4; and under that Act ene patroller lias not a right punishment by himself; and if private persons aid thoughcalled’ upon by him to do so, they, as well as he, passersU£S"
THIS was an action of Trespass vi et armis. tried be-r ’ fore Lowrie, J at Bladen Superior Court. The Defendants pleaded jointly, not guilty, justification, &c. The Tury found a verdict of Not Guilty, as to all; and uapon. ' motion by the Plaintiff for a New Trial, it was overruled by the Court, and an Appeal taken to this Court.
... r , , , The material circumstances of the case were, that the £)efenc]ant Saltar, who was a regular Patrol, associated ’ ° with him the other Defendants, Allen, Bryan and Single-tary, who were not Patrols, and went to the plantation of Mnior Owen, where they found in an outhouse, the negro J J ’ ° Simon, whom they called upon for a pass, which he produced, written in these words : “ Pass Simon, or let Simon pass Monday morning.” It was in the hand-writing of 1 ... . , , the Plaintiff’s wife, but in bis name. Saltar told the negro the Pass was not a ProPer one-> and ordered him to strip, on which he attempted to escape, and Allen, who stood in the door, caught him, which enabled Saltar to seize and throw him. But Saltar alone was not strong enough to hold him down, and calling for aid, Allen and Single-tary struck him, and at length, their united efforts and blows, with a stick and with their fists, subdued the negro, and he was whipped.
A Physician proved, that the temporal artery was divided, and that the negro was much weakened by the loss of blood, from the effect of which he could not probably *69Recover in less than three or four weeks ; but the wound was not so serious as to do any permanent injury. It appeared, however, on the part of the Defendants, that the negro was engaged in some business in a smithery, within a few days after he was whipped. The only proof against Bryan was, his having gone to the plantation of Owen with Saltar.
The Judge instructed the Jury that the pass was nota proper one; or at least was not sufficient to preclude Sal-tar from examining the negro, or from using such force as was necessary to compel him to submit to an examina" tion; and that Saltar had a right to command the assistance of the other Defendants for that purpose. Still, however, it any of them transcended the necessary limits, and wantonly beat the slave, they became trespassers ab initio.
Henry, for the Defendants.
The application for a New Trial, being to the discretion of the Court, they will not award one, where the injury done is of a slight and trivial nature. Supposing the Defendants to be guilty, very small damages would compensate the Plaintiffs, who lost , • r i. i i. r , ’ the services of the slave only tor a tew days.
2- But Bryan is wholly innqcent, and has been properly acquitted: He ought not again to be put in jeopardy ; and a New Trial must be granted or refused as to all the Defendants. Where trespass is brought against two Defendants, one of whom is found guilty, and the other is acquitted, a New Trial cannot be granted On the motion of the convicted Defendant.
Daniel, J.
By the Act of 1794, c. 4, the County Courts are authorised to appoint in each Captain’s district, a number not exceeding six discreet and proper persons, to be Patrollers. The Act of 1802, c. 15, gives the County Court power to appoint, in such manner and in such numbers as they please, and to form rules and regulations for them, &c, and they are to have the same pow-*70grs and authorities as they had under the act of 1794. The act of 1794 is not repealed, but enlarged by that of 1804. It does not appear from the case, that the County Court of Bladen made any rules and regulations under the authority of the last act; therefore the Patrollers of that County were regulated by the law as it is laid down in the Act of 1794. That Act says, “it shall be the duty of the Patrollers, or two of them at least, appointed as aforesaid, to patrol their respective districts, once at least in two weeks.” The $th section states, that the Patrollers in each district, or a majority of those present, shall have power to inflict a punishment, &c. I am therefore qf opinion, from a full and fair examination of the two acts, that the Defendant, Saltar, had not the right to exercise the powers of a Patroller by himself, and as the other Defendants were present, aiding and abetting him in an lunlawful act, they were all guilty of a trespass.
$Jew Trial grantecj.