
    Thos. Henderson v. James Lyles.
    
      Before Mr. Justice Butler, at Newberry, Fail Term, 1834.
    tiff^has sustained damages by a tiSío,SwiÜch is capable ofbeing tied to recover to the extent of the damage sustain* ed, altho’ there may be circumstances of extenuation on the pan of the trespasser : but where a party, by his own act, wantonly brings an injury onbim-solf, and the jury refused to indemnify him to the extent of his actual loss, the Court will not grant him a new trial.
    
      This was an action of trespass for shooting three mules and a horse of the plaintiff. One mule died immediately after it was shot; the others were so much injured that they could not be used for some weeks ; the horse was but slightly in-Of several witnesses who were examined, none valued {he mule that was killed at less than $80, and one witness at $100. The defendant proved that the mules and horse were in his wheat field when he shot them ; that they were mischievous, and in the habit of breaking into his fields, (which were enclosed by fences five feet high,) and damaging his crop ; that hr. had sent them home, and sent word to the plaintiff and his overseer to keep them up, and on one occasion took them home himself.
    His Honor charged the jury that the defendant had no legal justification of his conduct; that he should have pursued the provisions of the Act of 1827, and not having done so, he was responsible to the plaintiff for at least the actual damage sustained. They found a verdict for the plaintiff of sixty-two dollars.
    The plaintiff now moves for a new trial, on the ground that the jury were bound to render a verdict to the amount of the damage sustained by the plaintiff.
   Harper, J.

The cases of Duff v. Hutson, 2 Bail. 215; of Richardson v. Dukes, 4 M’C. 159, and of Wise v. Freshley and Veal, 3 M’C. 547, sufficiently establish that where a plaintiff has sustained damage from a trespass not justifiable, which is capable of being accurately estimated in money, he is entitied to recover to the extent of the damage actually sustained ; and though thoro may be circumstances of extenuation on the part of a trespasser, yet the jury are not at liberty capriciously to find merely nominal damages, or a sum far less than the amount of the actual injury.

But I think the case now before us different from the class of cases to which 1 have referred. In those, although there were circumstances of extenuation on the part of the trespasser, (as where the defendant entered on land believing it to be his own,) there was no fault in the party trespassed against. He, therefore, was entitled to be reimbursed to the extent of the injury sustained. But if the party wantonly bring an injury on himself, by his own act and provocation, he has no. reason to complain if a jury should refuse to indemnify him, oven to the extent of his actual loss. Suppose, for instance, the plaintiff in this case had repeatedly and in spite of warning, turned his mules into the defendant’s field. He could not complain if the jury had given him merely nominal damages. He did not turn them into defendant’s field, but there was evidence of great negligence and default on his part. I think it was a case entirely within the discretion of the jurv as to damages, and that they might properly reduce them below the actual loss proved.

Fair & Pope, for the motion.

Heller & Bauskett, contra.

The motion is dismissed.

Johnson and O’Neall, Js. concurred.  