
    Miller against John Simpson, Henry Vallandingham, and Andrew M‘Ilwayne.
    Ju$ be disturbed by nicely scmtinizingtheviewsthey
    This was a summary process to recover pertain hogs claimed by plaintiff, which he alleged the defendants had converted to their use. The • ’ . r ,1 ,1 , .-i • circumstances oi the case were, that the plain-1 tiff had lost a gang of hogs, which strayed seven or eight miles off into, the neighbourhood of the defendants; that Simpson employed M^Ilwayns to hunt with him a gang of hogs, which he, ('Simpson,) said had strayed from a hog-driver, and from whom he had purchased them; that they accordingly did so, and that they found a gang of hogs, some of which Simpson killed, one of which he sold, and another he gave to Jffillwayne for his trouble in assisting him to hunt .them; but there was no proof that these were the same hogs which had been lost by the hog-driver; but the plaintiff, on the contrary, proved that the hogs which he had lost answered the description of those killed by Simpson and MlIhoayne; and that two sows, answering the same description,' were in the possession, or about the house, of Vallandingham, which he said were part of the hogs which he and Simpson had purchased of the hog-driver. The counsel for the defendants acknowledged the evidence to be too strong against Simpson, for him to prevail in this motion respecting him, but contended for a new trial as respects tlie other two defendants, on account of the evidence being too slight to authorize the Jury to give a verdict against them.
   The opinion of the Coürt was delivered by

Mr. Justice Grimke.

I am of opinion that this is of that class of cases where the evidence is properly submitted to the J ury. They were to determine the identity of the hogs, and whether Simpson, Vallandingham, and M-Ilwayne, had not all of them been concerned in the killing or converting these hogs to their use. They have done so, and I think on good grounds: for,

I st. As to Simpson, he was proved to have killed hogs answering the description of those lost by plaintiff, and he has not shown that the hogs which he did kill were those which were purchased from the hog-driver; and, indeed, there is no evidence that such hogs were lost by a hog-driver, for no description was proved which tallies with those claimed by plaintiff The proof is, he purchased' a stray gang as they ran in the woods; and which testimony comes from his own and Vallandingham's naked declarations.

2d. As to M'-Ilwayne, as he became the partaker of the hogs so claimed by Simpson, if Simpson's right be not good, neither could his be so; he, therefore, stands on the same ground as Simpson, whom he assisted in hunting and killtng, and taking one for his share for the trouble he had in doing so.

3d. As to Vallandingham, he acknowledged the two sows which were about his house were the co-partnership hogs he and Simpson bought of the hog-driver, which identifies them to be of the same gang; now, if Simpson gave no proof that the hogs he killed were the identical hogs lost by the hog-driver, and purchased by them, neither did Vallandingham extend any such proof: his evidence, therefore, rested upon the same testimony as Simpson’s. All this evidence was submitted to the Jury, and they found that the hogs claimed by defendants as stray hogs, which they purchased of the hog-driver, were not the hogs so strayed, but they were the hogs of the ' plaintiff which he had lost, and which he had proved to have got into the neighbourhood of defendants. It cannot be expected that full and satisfactory evidence can be adduced in every case; but, on the contrary, every case tried shows the uncertainty of proving fully every fact contended for: it is in cases of this kind, that the Jury are properly and legally called • upon to determine as to the strength and weight of evidence; and when they have done so, I should be unwilling to grant a new trial on account of the views they have taken of the evidence, unless it could be made to appear that they had found a verdict without, or against evidence or law, or violated their province of decision in some gross manner; none of these, in my opinion, have they done in the present case. The motion, therefore, for a new trial must be discharged.

JVoii, Cohock, Johnson, and Cheves, J. concurred.  