To this it is answered, that a master is never liable for his servants, unless they are acting by his command or privity. Fin. Abr. Trespass, 460. pi. 1. The command of the master is a fact not found, and therefore the Court cannot presume it. But supposing this act of the negroes to be an entry, yet it can be deemed at most only an entry in law. I have shewn that an entry in deed is requisite *296t0 avoid the statute of limitations, and that entry must be animo clarnandi. For the difference between an entry in deed- and an entry in law, see Co. Litt. 253, b, sect. 419, But if the act of the negroes was sufficient to avoid the statute of limitations, it might have been, for aught that appears, against the will, and without the con» sent of .Johnson, 1 Leo. 110. .A master is civilly, though not criminally, answerable for his servants, 2 Salk. 441, 1 Vent. 295. 2 Lev. 172. 3 Keb, 65. The case of negroes here, is not similar to the case of servants in England, because here negroes are an object of property ; they have nq will, and their masters are answerable for any trespass they commit, whether it be with their knowledge or com sentj or not, in the same manner as they are for their beasts. Were it otherwise, an injury might be committed, for which there would be no remedy, In England, the master is not liable for a trespass done by his servant, unless it be by his command, or with his assent. Fin, Trespass, 460, In such case, the servant himself is liable to an action, but no action will lie here, against a negro.

Second question, — Whether the deed of bargain and sale by Benjamin Johnson, an infant, was void, or voidable only. That it is only voidable, see Gilb. Evid. 186. 2 Bac. Abr, 136. 2 Roll. Abr. 572. 8 Co, 42. 3 Mod. 311. '1 Mod. 25. Co. Litt. 51. 171. 3 Bac. Abr. 137, 2 Inst. 483. 673. 2 Stra. 939. 3 P. Wms. 208. Cro. Jac. 364. Fin. tit. Infant, 386. pi. 23. If the deed be voidable, it must be avoided by entry or by claim, Estates of freehold cannot cease without entry or claim. Co. Litt, 218. a, 214. b. 3 Co. 6. 59. 2 Co. 53. b. 54. a. 1 Co. 94. b. Moor, 292. 345, 346.

An ejectment will not lie by one tenant in common against another, without an actual ouster, Co, Litt. 199. b. O. Law Eject. 101. Faresly, 39. Cro. Eliz. 220, Salk. 392. 423. Ld. Raym. 830. Allen, 8. Fin. Joint-Tenants, 512. Gilb. Eject. 85, 86. Gilb. Evid. 10. 237, 238. 7 Mod. 39. 12 Mod. 657. Fin. Evid. 151. pi. 30. 169, pi. 25. 3 Bac. 220. 219. 211.

*297The Provincial Court gave judgment upon the special Verdict for the defendant. The plaintiff appealed to the Court of Appeals, which Court, at May term, 1771, reversed the judgment so far as it related to Thomas Johnson, and affirmed it so far as it related to Benjamin Jghnson•