Cumberland County NcArchives Court.....Campbell, Vs. Staiert 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 13, 2008, 12:19 am

Source: North Carolina Reports
Written: 1811-18

July Term 1818.

CAMPBELL v. STAIERT. 

From Cumberland.

When a slave cuts timber on land not belonging to his master, the master is 
liable in trespass, if the act were done by his command or assent; but if it 
be the voluntary and willful act of the slave, the master is not liable.

Trespass against defendant for cutting timber on plaintiff's lands. The 
evidence was that a slave, the property of defendant, had cut the timber; and 
the court directed the jury that if the cutting was done by the command or 
assent of the defendant, that he was liable; but that if the act was the 
voluntary and willful act of the slave, then the defendant was not guilty. 
Verdict for defendant. Rule for a new trial refused, and an appeal to this 
Court.

McMillan for defendant.

Taylor, C. J. It would be repugnant to principle, and in direct contradiction 
to every adjudged case, to support this action of trespass against the master 
for this act of his slave, which was not done at his command or by his assent. 
From all the cases it is to be collected that where the act of the servant is 
willful, and such that an action of trespass and not an action on the case 
must be brought, the master is not responsible, unless the act is done by his 
command or assent. But where mischief ensues from the negligence or 
unskillfulness of the servant, so that an action on the case must be brought 
and not an action of trespass, then the master will be answerable for the 
consequences in an action on the case, if it is shown that the servant is 
acting in the execution of his master's business and authority. It is true 
that a man is liable for trespasses committed by his cattle in treading down 
the herbage on another's soil; but that is because he is bound to keep them 
within a fence, otherwise they will wander and probably do much mischief; but 
he is not bound to keep bis slave confined, and if he were, it would be a 
monstrous thing to charge him with their depredations.

Daniel, J. This is an action of trespass vi et armis against the defendant, 
for the act of his servant. The jury have found, under the charge of the 
court, that the defendant did not command or assent to the trespass committed 
by the servant.

The plaintiff contends that the defendant is liable for the acts of his 
servant in this action, notwithstanding he knew nothing of them. The law on 
this subject is clearly laid down by Lord Kenyon in McManus v. Crickett, 1 
East, 106. He says a master is not liable in trespass for the willful act of 
his servant done without the direction or assent of his master. He further 
remarked that it was a question of very general concern, and had been often 
canvassed; but he hoped it would at last be at rest.

An action on the case would be against a master for any damages arising to 
another from the negligence or unskillfulness of his servant acting in his 
employ, although the master knew nothing of the act at the time; as when the 
captain of a vessel runs down another vessel by his negligence or 
unskillfulness, or where a servant does another an injury by negligently 
driving his master's carriage or riding his horses. 1 East, 106; 1 Chitty, 68, 
131; 3 Wills, 317.

But where a servant willfully commits an injury to another, although in his 
master's employ, as if he willfully drives his master's carriage against 
another, the master not knowing or assenting to it, an action of trespass 
cannot be sustained against the master.

Motion for a new trial overruled.

Cited: Parham v. Blackwelder, 30 N. C., 449; Stewart v. Lumber Co., 146 N. C., 
88.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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