No. 56 | Ga. | Jan 15, 1851
By the Court.
delivering the opinion.
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 to
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 repugnant to the Act of 1799, so-far as the pleadings of the defendant are concerned, then the-Act of 1799 repeals the Act of 1770 to that extent. The same-reason exists in this case why the defendant should “plainly,, fully and distinctly set forth the cause . of his defence,” to prevent surprise at the trial, on the part of the plaintiff, as in any other civil suit which may be instituted in the Court. Johnson et al. vs. Ballingall, 1 Kelly, 68.
This ground of error was well taken, and must be sustained.
The plaintiff was undoubtedly entitled to have had a continuance of his cause, which the Court offered to grant him, but the testimony of the witness, taken by commission, under the peculiar facts of this case, we think, was properly rejected by the Court. It is always desirable to have the witness personally present in Court, when it can be done, and we are unwilling to create exceptions in favor of the introduction of testimony taken by commission, beyond those which the Legislature have thought proper to create, and the party offering such testimony must clearly bring it within the provisions of the Statutes which authorize it. See Craft vs. Jackson, 4 Geo. Rep. 363.
Ashburn was alone sued in this action, and the effort of the plaintiff, on the trial, was to make him a joint trespasser with Drawhorn, who killed the slave. Ashburn justified as a patrolman. It appears some negroes were routed in the yard of Lockett ; Ashburn pursued one in one direction, and Drawhorn pursued the plaintiff’s negro in another direction, and committed the trespass.
Where an immediate act is done, by the co-operation or the joint act of two or more persons, they are all trespassers, and may be sued jointly or severally, and any one of them is liable for the injury done by all. To render one man liable, in trespass, for the acts of others, it must appear either that they acted in concert, or that the act of the party sought to be charged, ordinarily and naturally produced the acts of the others. Guile vs. Swan, 19 John. Rep. 382. If Ashburn, as a patrolman, entered the yard of Lockett, in company with Drawhorn, to disperse the slaves, and did not exceed his .authority by any act done by him, he is not responsible for the excess of authority on the part of Drawhorn, unless he acted in concert with Drawhorn, either directly or indirectly, in the commission of the acts which
We are of the opinion that the Court gave the law applicable to the facts of this case, in charge to the Jury, substantially correct, and find no ground for a reversal of the judgment in that assignment of error. The judgment of the Court below must, however, be reversed, on the first ground considered, and it is so adjudged.