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By the Court.

Lumpkin, J.,

delivering the opinion.

This was an action of trespass brought by the owner of a female slave, to recover damages of the defendant, for the unlawful beating of said' slave. The defence was that there was sufficient provocation given to justify the whipping. *190The jury rendered a verdict for the defendant. A new trial was asked and refused; and this is the error assigned for our revision.

The woman was employed to do the washing of the family of the defendant. The defendant alleges that she returned an insolent response by a servant, sent on Sunday morning to bring home some dresses, and for this he repaired to the neighborhood of the girl, and finding her in the street he attempted to force her into the kitchen, and upon her resisting his attempts to drag her into' the house, he inflicted upon her a severe beating in the street; and after getting her within doors he continued the beating, inflicting blows and bruises upon various parts of the body and head, knocking out one tooth, etc.

The woman was confined to her bed, by reason of this abuse, for about a month, her situation requiring the services of a physician whose medical bill amounted to about fifty dollars. The Court charged the jury that the plaintiff was entitled to recover for the actual damage done the girl; and for the doctor’s account.

A Mr. Phillips was examined as a witness on the trial, and after testifying to the facts of the beating, of which he was an eye and ear witness, he was asked to give his opinion as to the damage the girl sustained. The question being objected to, was repelled by the Court, and this decision is excepted to as error.

Amongst other grounds taken in the motion for a new trial, was that of _ newly discovered evidence. Without further remark, I shall dismiss this ground by 'stating that it does not come 'up to the rule prescribed by the Court in such cases. The excuse given is, lack of time to procure the necessary affidavits; but no motion was made to postpone the rule, to enable the plaintiff to supply this acknowledged defect. I may add that the testimony, if procured, was negative in its character, and would have averted nothing. .

Upon the threshold of this case we state, as a Court, that there is much to condemn in the conduct of the defendant. When insults are given personally by a slave, it is right to punish instantly; and the party offended need not delay until the owner can be consulted. The condition of our society demands this promptitude of proceeding. But in a *191case like this there is no need for this hot haste; but, on the contrary, altogether better to proceed more carefully and not to act without consultation with the owner or employer of the slave. It may be that in this case the information received through the servant of the defendant may not have been true. Hence, more caution and circumspection was necessary. The servant who communicated the objectionable message may have been actuated by ill-will toward the woman. It is dangerous, in this hasty way, to act upon the exporte representations of another servant.

Again: we say emphatically, that, considering the day and the place upon which this violence was inflicted — on the Sabbath morning, in the public streets of the city — the conduct of the defendant was altogether unbecoming. Moreover, the punishment, itself, was both indecent and excessive, and can not be justified, considering that the message, delivered to the defendant was not misunderstood nor misrepresented. The description of this beating, both as to its extent and the mode of inflicting, is alike revolting to the feelings of decency and humanity.

But we sit here to administer the law of this case; and to it I shall briefly address myself.

It will be remembered that this girl was hired out at the time the alleged trespass was committed, to a Mr. George Johnson, and was not in the possession of the plaintiff in this action, who represents the estate of Wiggins, to which the girl, Dinah, belongs. The suit, then, is brought, not by the hirer, but the owner. The owner can only recover for .some permanent injury done to his slave; or, as the books express it, in speaking of a horse as any other personal property — for an injury done to the reversion. When the owner is in possession of personal property, he can recover for present service, physician’s bill) etc.; but .that is not this case.

Does the proof show there was any permanent injury done this woman? The doctor who attended her first thought there was, from the character of the beating. He testifies, however, that he saw her afterwards, and she appeared to be going about as sprightly as ever. If the fact existed, evidence could readily have been adduced to prove it. The failure to bring forward such testimony is an admission that no lasting injury was done. We can hardly venture to con*192sider the loss of a tooth as diminishing, either the actual or marketable value of the woman. The maxim, de minibus, will not apply in such a case.

This being so, what foundation is left to warrant a verdict in favor of the owner? None that we can see. The dependant may still be liable to the hirer, provided the claim be not barred, for loss of service and the physician’s bill; or he may be made criminally responsible for the beating, provided it was cruel and excessive, and without sufficient provocation. We express no opinion upon these points..

It only remains to consider whether the Court was right in ruling out, on the trial, the interrogatory propounded to the witness, Phillips. Having already stated all the facts as to the whipping, he was asked to give his opinion as to the damage done the girl? The Court has, in many cases, permitted witnesses to give their opinion in connection with the facts to' which they have testified. But the question, as put without qualification, was too broad. Can any one doubt that the witness would have included in his reply the temporary injury as well as the permanent? Indeed his answer would, most likely, have been influenced, mainly, by the results; in other words, to the loss sustained by the hirer. The inquiry should have been made definite, viz.: What was the permanent injury to the woman ? Pie proved none. The form of the question, then, was objectionable, and properly ruled out by the Court. He might also have embraced in his censure many fanciful and imaginary reasons as the measure or ground of damages, not authorized by law, as the facts of the case, and yet the jury would not have been enabled, by the generality of his answer, to have judged of the sufficiency of the witness’ reasons.

The jury .were already in possession of all the witness knew about the matter — for he had been examined fully — and could more properly estimate the damages than he could.

Upon the whole, we see no ground for reversing the judgment of the Circuit Judge denying a new trial. The charge of his Honor was more favorable to the plaintiff, as owner, than he was entitled, upon the law of the case. The jury declined acting upon it, .and their finding ought not to be disturbed.

*193JUDGMENT.

Whereupon, it- is considered and adjudged by the Court, that the judgment of the Court below be affirmed.

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