not to the Congress of the United States. But the same thing may be said of any other chattel of which the owner is possessed. The rule of property in the case of the master and his slave is the same, unless limited in certain particulars, as I shall presently show, as is enforced in the case of a horse or a bale of goods. And to claim for a subject the incidents of property, including the right of ownership, is to affirm its right to such protection from laws inade or to be made, as the legislative department of the government may deem proper. Indeed, it would be difficult to illustrate the fitness of this view more conclusively than by giving practical effect to the argument which is addressed to this part of the case by the respondent. Suppose that the Act of 1852 contained an express provision that it should not be held applicable in any case where negroes should be the only persons carried. Would not such an enactment, as well on the ground of humanity as of right, be exposed to the severest censure? The owner would have an irresistible claim to a repeal of such legislation, as not only thus excluded his property from the protection which, in other cases, it gave to human life, but in such exclusion, from its peculiar qualities, afforded it in fact less protection than it gave to a bale of merchandise. For, in addition to all such other qualities as are in a bale of goods as property, in the negro, as property, there is life, the essence of the right itself. Refuse protection to that, without which the right of property is valueless, and the subject of property to which such refusal extends, is less protected than another piece of property, which does not require that protection.

Although, according to the law of South Carolina, the negro is the property of the owner, and a sale or transfer, voluntary or otherwise, is made in the manner and according to the form that is used in reference to a chattel; yet the law of South Carolina, in many particulars, distinguishes between the negro as the subject of property and any other chattel. The owner of a bale of goods may destroy it if he is pleased to do so; but the owner has no such right in relation to his negro. A cruel beating of a slave is an offence against the law of the State of South Carolina; and if the owner shall take the life of his slave, he may incur the same penalty that awaits him who takes the life of one of his own class. The law of South Carolina does not regard the ownership in all respects as absolute, but in a case of life, and even in a case of cruel

beating, subordinate to the provisions just referred to. And in this, the law of the State, and the law of the United States concur; for they are both enacted for the protection of life, and its security from such dangers as result from malice or neglect.

But it is not only in such cases as I have alluded to that a discrimination is made between the negro, as the subject of property, and any other chattel. The will, which in the negro operates as a motive of action, is recognized in all cases where its effects are developed, as materially qualifying the liability of those who otherwise would be held responsible. A carrier who would otherwise be liable for the loss of a negro, as he would be of any other chattel committed to his care, is relieved of such liability when the loss is made to appear as the consequence of the exercise of his will, on the part of the negro. And even in cases where the negligence of an agent who is charged with the care of negroes is established, but the proximate cause of the loss, although connected with such negligence, is to be referred to some direct exercise of the will, the agent has been relieved from liability; when in the case of any other chattel, the same negligence, resulting in loss, without the intervention of any quality like that of the will, breaking the immediate connection between the negligence and the loss, would have fixed his liability.

It seems to me, then, quite clear that, although the negro is regarded, in law, as but a chattel, yet the discrimination recognized by the same law, between the negro and any other chattel, is sufficient to bring him within the definition of a passenger. "Every person who pays a stipulated sum for his passage, or is on board in any shape, even free of charge, and has neither interest in the cargo nor belongs to the ship's crew, is a passenger." (Jacobsen.)

It is therefore ordered and decreed, that the respondents pay to the libellants the penalty of five hundred dollars, provided in the Act of Congress of 30th August, 1852, with the costs of these proceedings.

Notes of Cases in Connecticut.

We have received from our correspondent in Connecticut a full report of a very interesting case, on which the Supreme Court of that State was divided in opinion. We regret that our limited space and the rule we have laid down, of not publishing entire cases which will appear in full in regular reports, must prevent our giving more than an abstract of it.

WILSON ET AL. V. THE STATE OF CONNECTICUT.

Indictment-Former conviction-Identity of offence - Shop and warehouse. THIS was an information against the plaintiffs in error, charging them with breaking and entering the shop, store, and warehouse of the president, directors, and company of the Windham Bank, in the night time, burglariously and with intent to steal the goods, &c., of said company, there deposited.

The plea set up a former conviction for larceny of the same goods, &c., the intention to steal which was alleged in the present case. The opinion of a majority of the court was delivered by STORRS, J., (now Chief-Justice,) to the effect that

The offence of burglariously breaking and entering a shop, store, and warehouse, with intent to steal, (Stat. 1854, ch. 312, § 39,) is complete without an actual larceny. The latter, if committed, is a distinct offence, although the theft ensued upon the breaking.

It follows that a conviction for such larceny is not pleadable in bar against a subseqent prosecution for the breaking.

Generally, to constitute a legal identity between two offences, so as to make an acquittal or conviction of one an available defence against a prosecution for the other, it is necessary that the averments of the second information should be such, that, if proved, they would have warranted a conviction under the first.

Although there is a strong current of American authorities in favor of so modifying the foregoing rule, as to treat a conviction for a less offence, which is an ingredient of a

greater crime, as a bar to a subsequent prosecution of the greater, this doctrine, if it exists, is inapplicable to the offences of theft and burglary under the Connecticut

statute.

Whether, if the second information should charge a burglary and larceny, an acquittal in a former prosecution for the larceny, would be a defence, quære.

The same rules govern cases of former acquittals and former convictions.

In Connecticut, a banking-house is well described as a store, shop, and warehouse of an incorporated bank.

WAIT, C. J., dissented, on the ground, that the essence of the offence in both cases was the intent to steal; without such intent being proved, a conviction in the former case could not have been had. Also, that the breaking in and stealing were parts of the same transaction, and could not be severed at the will of the prosecuting officer. His honor referred to a decision in 7 Conn. 414, that under a statute making it a crime for a person to have in his possession a counterfeit bill, knowing it to be such, with intent to pass the same, a conviction for having one such bill would bar a prosecution for having another at the same time, although they purported to have been issued by dif ferent banks.

The phrase "ground of action," in the Connecticut Statute of Amendments, (Rev. Stat. tit. 1, ch. 8, § 102,) is not used in a technical sense, but refers to the real object of the plaintiff in bringing his suit.

In deciding upon the admissibility of an amendment the court will look not merely at the face of the declaration, but also at the extrinsic circumstances of the case.

Where, in an action on the case, it appeared that the ground of action was the non-delivery of gold which the declaration alleged had been intrusted to the care of the defendants generally and not in any particular capacity, it was held that the plaintiffs' declaration might be amended by additional counts, with new averments as to the manner, time, and place of the reception of such gold.

Where, in the other counts of the declaration, it was

alleged that the gold was entrusted to the defendants as common carriers to carry from N. to P.:

Held, the declaration might be amended by averring other places.

Notes of Cases in Vermont.

Supreme Court of Vermont. General Term for the counties of Addison, Rutland, and Bennington.

THIS was an action of trespass to recover the value of property sold by a town tax collector. The plea in justification alleged, in detail, the legality of all the proceedings in assessing and collecting the tax. The replication was not in form de injuria, putting in issue each particular fact in the plea, this form of pleading having been held bad at a former term in the same case. Crogate's Case, 8 Co. R. 66. This being a justification, by authority of law, partly lying in record, and partly in pais, cannot all be tried by the same tribunal, as it must under the replication de injuria. So, too, at the present trial, where the party attempts to put in issue several distinct matters, as the legality of the assessment, and the regularity of the proceedings of the collector, it is liable to the same exception. It is virtually de injuria, as far as it is carried. The plaintiff must elect to go upon one single ground of exception to the justification, but this need not necessarily consist of one single fact. Robinson v. Haley, 1 Burrow, 316; 1 Smith, L. C. 241, et seq. and notes. The replication was therefore adjudged insufficient. Either party is, by a general rule of this court, allowed to amend any formal defect in pleading, by paying costs, during the pending of the demurrer, and taking none for the same time, and this even after judgment announced.