Curia, per

The fact that the defendant killed the plaintiff’s slave is not. controverted., and prima facie an action lies against him. He has not justified, but attempted to excuse it as the result of an accident, and the question is whether that excuse is made out according to the rules of law? To excuse a trespass on the ground that the injury done was the consequence of an accident, it is not enough that the party did not intend it, but it must appear that it was unavoidable and without any the least fault on his part; and the books go .so far as to say that if by an extraordinary degree of circumspection, even greater than is ordinarily practised in the affairs of *163life, he might have guarded against it, he shall be liable: which is illustrated by a case where to an action for an assault and battery, the defendant pleaded that the plaintiff and himself were-soldiers at exercise skirmishing with their muskets, and in so doing the defendant casualiter et per infortunam et contra voluntatem suam in discharging his piece wounded the plaintiff. On demurrer the plea was held bad, for say the court, a man shall not be excused a trespass except it has: been committed utterly without his fault. Hammond’s N. P. 67. , Going in, pursuit of runaway negroes was not only justifiable but laudable in the defendant, and the act of firing his piece merely for the purpose of intimidating and , inducing them to surrender was in itself harmless enough, and the circumstances I think justify the finding of the jury that the killing was not intentional; but according to the,rule this is not enough to excuse the defendant, he must appear blameless.

The fact that the negro was killed is in itself a strong circumstance going to show a want of proper care on the part of the defendant. Those accustomed to the use of fire arms, know that shot discharged from a gun take an exceedingly wide range, and are turned out of their direction by the most trifling and unsubstantial obstruction. To have fired therefore in the direction in which the ne-groes, and especially when they were out of his view, and when it was uncertain whether the gun might not have been bearing on them, was not only incautious but rash in a high decree, and according to the rule rendered the defendant liable. A new trial is therefore granted.

New Trial Granted,