Tennessee Superior Court for Law and Equity, 1801

Greer v. Emerson

Tennessee Superior Court for Law and Equity · Decided November 6, 1801 · <italic>Per Curiam.</italic>

1 Tenn. 12

Counsel

CAMPBELL, for the defendant, moved that the plaintiff should be nonsuited, on the ground that the evidence would not support an action of trespass. Case, and not trespass, was the proper form of action. He read several cases, showing the distinction between trespass and case, and concluded by saying, that it was lawful for the overseer to carry the negro and horse to the paths, and to direct him to strain the horse. If the act itself was lawful, any consequences which might result could not make it a trespass. OVERTON and WHITESIDE, e contra, contended that the overseer's being employed to look after the business of the plaintiff, did not authorize his ordering the slave to do an act which had no connection with that business. The defendant, in ordering the negro to strain the horse, was completely beyond the limits of his authority, and stood in the same situation as if he had not been overseer. 6 D. E. 125; 2 Bl. 892, 983, 1028, and 1055.

Opinion of the Court

Trespass. — The defendant was employed by the plaintiff, and lived with him as an overseer.

The plaintiff being from home, the defendant ordered a negro, the property of the plaintiff, to catch a horse and go with him to the race paths, which were in the neighborhood, for the purpose of straining the horse and ascertaining his speed. The negro obeyed and started the horse, the defendant being present. The horse flew the way, threw the negro, and killed him. *Page 14 Let the evidence go to the jury. The line of distinction between trespass and case, in many instances, is so nice, that it seems difficult to discover it. This appears to be one of that description, but modern authorities seem rather to incline to trespass than case.

Verdict for the plaintiff, for $350. Rule for a new trial, which was discharged.¹

NOTE. — By statute case was allowed in every instance in which trespass would lie. And now, by the Code, § 2747, all wrongs and injuries to the property and person may be redressed by an action on the facts of the case. — ED.

¹ Vide 5 Term Rep. 648; 6 Term Rep. 125; 3 Wil. 403; 1 Esp. 54; 6 Term Rep. 128, n.; 2 Hen. Mun. 423; 2 Gould's ed. Esp. N. P. 214. 215.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.