#### JOSEPH MARDREE *vs.*THOMAS SUTTON.

If A knows, or has good reason to believe that B is about to shoot, or kill the hogs of C, which are in B’s field, and A permits his slave to go with B in pursuit of the hog?, and the hogs arc by B, with the aid of the slave destroyed, A is liable in an action of trespass for such destruction.

ActioN of TRESPASS *m et armis,*tried before bis Honor Judge PersoN, at the Spring Term, 1855, of Chowan Superior Court.

In order to connect the plaintiff with his son George, who was the active agent in the trespass complained of, three witnesses testified that they heard a conversation between the plaintiff and defendant early in the morning after the night of the alleged trespass, and near the spot where it took place, in which plaintiff asked defendant if he had sent his boy and dogs to help his son George to kill his hogs ? Which question was repeated three times, to which there was no answer ■ till repeated the third time, when the defendant said, “ I did sir, and help yourself if you can.” The plaintiff then said to the defendant, “ the reason why he made the inquiry was, that if the boy had come there to help kill his hogs of his own accord, he would have him whipped, bnt as he was sent by his master he should hold him equally liable with his son.”

The plaintiff further showed that three of liis hogs had been shot dead; two more severely injured by gun shots, and that several sows, that had pigs, were so badly hurt that nearly all their pigs (21 in number) perished for the want of suck: it was further proven that one of the hogs shot, was badly torn on the ham by a dog; also that between the hours of midnight and day, several neighbors heard the barking of dogs, as if chasing something — the squealing of hogs — firing of guns, and othér loud noises, all in the direction of the spots where the hogs were found the next morning, dead and torn.

It was also in evidence that these hogs were in the field of *George Sutton*when thus injured; that they were at the time doing damage to his growing crop, but had got into the field through the deficiency of the fence, which was only three and a half or four feet high.

*147The defendant then introduced *George Sutton,*the son, as a witness, who stated *“*that he was the owner of the field in question; that the hogs had got in there on the night alluded to; that he went about midnight and shot one of them dead, and being unable to get them out, went to his father’s for assistance ; that he told him the circumstances and asked him for the service's of his boy in getting the hogs out of the field: defendant said the boy might go, but said, “George you must not kill, or injure the hogs;” but the boy did not hear this. This witness also took five of his father’s dogs along with him : he then returned with the slave and dogs and shot three other hogs dead, but the boy did nothing but pursue the hogs in endeavoring to get them out; that the dogs would not bite hogs, and did not injure them. This witness also stated that he was present at the conversation deposed to by the first mentioned witnesses, and that it was not as they had stated it; that his father only admitted that he had sent his slave to help drive out the hogs. Plaintiff objected to the reception of that part of George’s testimony in regard to what the defendant said to him when he applied for the slave, but it was received by the court; for which plaintiff excepted.

ITis Honor charged the jury that if the evidence satisfied them that the defendant lent his slave to his son George, or sent him to the field himself, for the purpose of aiding George in killing, or otherwise injuring the plaintiff’s hogs, then the defendant would be liable for all the damage done to the hogs by both George and the slave : but if, on the contrary, they were satisfied from the evidence, that the defendant lent his slave to his son, or sent him to the field himself, to assist him in getting the hogs out, with orders not to kill or hurt the hogs, and the slave disobeyed the orders, and either of his own head, or by the command of George, committed the trespass complained of, that then the défendant would not be liable at all. To this charge the plaintiff excepted.

Yerdict and judgment for the defendant. Plaintiff appealed.

*Smith*and *Jordan,*for the plaintiff.

*Heath,*for the defendant.

*148PeaesoN, J.

If a father, at the request of his son, agrees that his slave may go and aid the son in driving hogs out of the son’s field, and the son, with the assistance of the slave, wilfully and wantonly kills some of the hogs and injures others, the father is not liable in an action of trespass. But if, at the time the father agreed that his slave might go, he knew, or had reason to believe, that the son intended, or would kill the hogs, or otherwise inj ure them, then the father is liable to the owner of the hogs in an action of trespass for the damage done, as an aider or abettor, under the rule *quifaoit per alium facit per se ;*and in trespass all are principals.

There was evidence in this case, that the defendant knew, or had reason to believe, that his son would kill the hogs or otherwise injure them ; the son came at night in hot haste : told his father that the hogs were in his field; that he had shot one, and wanted the slave to help drive the others out; besides getting the slave, the son took five of his father’s dogs; three of the hogs -were shot dead; two others were severely injured by gun shot wounds, and others badly tom by dogs; the father, when apprised of these facts and asked if he had sent his slave to help kill the hogs, hesitated and gave no answer, until the question was put three times.

The plaintiff is entitled to a *venwe de novo*because the case was not submitted to the jury in such a way, as to make it turn upon the question, did the defendant, when he agreed that his slave might go, know, or have good reason to believe, that his son intended, or would kill, or otherwise injure the hogs ?

The expression used by the defendant according to the testimony of the son, “George you must not kill or injure the hogs” was competent evidence to be weighed by the jury and to pass for what it was worth.

Peb CueiaM. (Judgment reversed.