Brooks v. Ashburn

• Decision Date: 31 January 1851
• Docket Number: No. 56.,56.
• Citation: 9 Ga. 297
• Parties: Edward Brooks, plaintiff in error. vs. John C. Ashburn, defendant in error.
• Court: Georgia Supreme Court

9 Ga. 297

Edward Brooks, plaintiff in error. vs. John C. Ashburn, defendant in error.

No. 56.

Supreme Court of the State of Georgia

JANUARY TERM, 1851.

Trespass, in Macon Superior Court. Tried before Judge Warren, September Term, 1850.

This was an action of trespass, brought by Edward Brooks against John C. Ashburn, for the value of a negro man. The plaintiff's case showed that Ashburn and one Drawhorn went to the house of one Lockett, on the Sabbath day, in search of a runaway negro of Drawhorn's. Seeing some negroes collected, they approached them, when the negroes ran in different directions. Ashburn pursued one, and Drawhorn another. Draw-horn struck the negro of plaintiff, and killed him. The value of the negro $800.

Plaintiff offered in evidence the interrogatories and answers of John McKenzie, an aged and infirm person, who had been subpoenaed, and was in attendance on the first day of the term. The commission was executed on that day. On the day of the trial, he Was "unable to attend, from bodily indisposition." The witness was a regular minister of the gospel, and had attended his usual appointments previous to this last sickness.

The Court rejected the depositions, offering plaintiff a continuance. This decision was excepted to, and is assigned for error.

Defendant proved that he was commissioned as a Captain of Patrols, in the first of the year, 1816, (in which year the negro was killed,) which commission was to continue three months, or until the Captain resigned. The negro was killed within his patrol district.

To all of this testimony plaintiff objected, on the ground thai defendant had pleaded only the general issue, and had not set forth in his answer the defence now relied on. The Courtoverruled the objection, and this decision was excepted to, and is now assigned as error.

The Court charged the Jury as follows:

"If the evidence convinces you that Drawhorn and the defendant went voluntarily, and in concert, into the enclosure of Mr. Lockett, to rout slaves there seen by them, and, in the pursuit of this purpose, Drawhorn or Ashburn killed the negro, each and both are civilly liable to any party injured, for the injury done by either, and the value of the slave is the measure of damages.

"But if the entering the enclosure of Lockett by defendant and Drawhorn was not voluntary, but in the execution of patrol duty by Ashburn, the act of entering the enclosure was not a trespass, but lawful; and, in the execution of this lawful act, any one of the parties who acts in excess of his duty, will be alone liable; or, at most, any such as may act in excess of their duty would be liable for damages arising from the excessive act. So that if it was in discharge of their duty, as patrolmen, they entered the enclosure, and Drawhorn went in pursuit in one direction, and the defendant in another direction, and Drawhorn killed the slave without excess of action by Ashburn, or by his direction, then Ashburn is not civilly liable, and plaintiff must look alone to the party killing his slave for the damages he has received.

"The Jury will discover from this, that much depends upon the fact, whether the defendant was acting at the time, bona fide, as a patrolman, in the agency he had in the matter under consideration. If, at the time, he was acting, bona fide, as a patrolman, and was not present and countenancing the excessive act of producing death, then he is not liable to plaintiff for damages. But on the contrary, if the defendant and Drawhorn were not acting as patrolmen, and this defence is an afterthought, then each is liable for the act of the other, and Ashburn is liable for the act of Drawhorn, and (if Drawhorn killed the negro) liable for the value of the slave. The Jury will judge of the evidence, and apply it to the principles of law laid down, and find, ac-cording to the conviction which the evidence produces on your minds."

To all of which instructions, or so much as tended to excuse the defendant from liability as a co-trespasser, on the ground of being a patrolman, plaintiff excepted, and has assigned error thereon.

These several grounds of error were argued before the Supreme Court.

S. Miller and Geo. R. Hunter, for plaintiff in error.

L. S. Smith, for defendant in error.

By the Court.—Warner, J., delivering the opinion.

The first ground of error taken in the record to the judgment of the Court below, which we shall consider, is the admission of the evidence offered by the defendant, as a justification under the Patrol Laws of this State. This defence was not specially set forth in the defendant's answer, he having only plead the general issue to the plaintiff's action. The question is, whether this evidence of justification was admissible, under the plea of the general issue?

The defendant relies on the 44th section of the Act of 1770, relating to slaves, patrols, and free persons of color. Prince, 786. That section of the Act declares, that "if any person shall be, at any time, sued for putting in execution any of the powers contained in this Act, such person shall and may plead the general issue, and give the special matter and this Act in evidence, " &c.

This action is a common action of trespass, brought by the plaintiff against the defendant. The defendant is not sued for putting in execution any of the powers contained in the Act of 1770. It is true, he offered evidence, on the trial, to justify himself, under the provisions of that Act; but such evidence was an independent matter of defence for him, which he ought specially tohave set forth in his answer, as provided by the 9th section of the Judiciary Act of 1799. Prince, 421.

The Judiciary Act of 1799 regulates the pleadings in all civil suits, cognizable in the Superior and Inferior Courts, on the Common Law side of said Courts, respectively. Prince, 420. The plaintiff's action was a civil suit, to recover damages for the injury done to his property; and if the 44th section of the Act of 1770 shall be considered as repugna...