
    Charles Brown against The Rev. Thomas Frost.
    
      Charleston District,
    
    1798.
    Nonsuit. The correct rule of law in such «ase is where there is a to-evidence 6 or testimony, or only light or sumption ^to support anae-lion,the judge ought to directanonsuit, as it would be a nugatory thing to send such unsupported cause to a jury.
    But where there is testimony, though of a doubtful .nature, or depending on a long* train of circumstances, or on facts contradictory in themselves, or which admit of different interpretations ; in such cases the court should send the case to the jury, to determine between Ihé parlies, and not cut the plaintiff off from a chance of justice.
    Jurors are the constitutional judges of facts and circumstances, and it is not for the court to infer that their verdicts are wrong, unless some rule of evidence or principle of law is violated*
    But in very intricate and doubtful cases, notwithstanding the finding of a jury, the judges will, in the exercise of their extraordinary discretion, in some cases order a new trial, that the ends of justice may be the better ascertained.
    TRESPASS to try title to land.
    This was an action of trespass to try title to a tract of land , r . . . . _ _ near Georgetown^ before Mr, justice Burke, in which there was a verdict for the plain tiff,
    The present was, therefore, a motion for a new trial, oh Srounc^s : That the judge ought to have ordered a nonsuit on the trial, and should not have permitted the case . to have gone to a mry; and, 2dly. That the verdict or fina* . . . . , mg was without evidence to support it.
    From the report of the judge, it appeared that the titles of both the parties in this case were of an ancient origin, and were traced down through a number of claimants and proprietors, to the parties in this suit, and both claimed by; deeds of conveyance either actually produced or accounted for.
    
      They both claimed under Landgrave Thomas Smith, who had a barony of 24,000 acres of land granted to him, by the former lords proprietors of South Carolina, in that part of the country, and the land in question was a part of this barony, which had been by him, or his heirs or representatives, divided and subdivided into a great number of portions or subdivisions among the numerous branches of his family, who, on their parts, again sold out their proportions to various, purchasers, at different periods, as best suited their convenience.
    The defendant, on his part, produced regular conveyances down from the landgrave to the party under whom he claimed, but was not able sufficiently to fix the location, or shew in what part of the barony the land he claimed was situated.
    'f he plaintiff, on the other hand, was more fortunate in ascertaining his location, and in shewing where the land he claimed within the barony lay, by different surveyors, and also by witnesses who proved and identified the land in possession of several of the parties through whom he claimed his title. But in the course of the evidence offered on the trial, it appeared that the deeds which formed one of the links of his chain of title was wanting ; that is to say, the conveyance from the landgrave to his son-in-law, Benjamin-Waring, through whom the plaintiff claimed, was not to be found ; all the others were regular and substantiated, agreeably to the rules of law. As soon as this defect in the evidence in. support of the plaintiff’s claim was discovered, the defendant’s counsel, Mr. Edward Rutledge, moved for a nonsuit, which was opposed by the plaintiff’s counsel, who stated to the court, that his client would prove the existence and loss of the deed wanting, to the satisfaction of the jury. The presiding judge, therefore, refused the motion for a nonsuit, and permitted the plaintiff to go into this kind of testimony. The plaintiff then proved by one or two witnesses, that Mr. Allston, who was executor of one of the ancestors of one of the parties under whom he claimed, during': tbe revolutionary war, had his dwelling-house destroyed by fire, and among other things lost a number of valuable papers; (though some of them were saved ;) that he complained much at the time of the loss of his papers, and of some of his title deeds for his lands. Among the few saved and preserved from the fames, one deed was found and produced, which recited this deed of conveyance wanted, from the land-grave to his son-in-law, Benjamin Waring. Upon this testimony to the jury, the plaintiff said he was willing to rest his cause.
    At this stage a nonsuit was again called for by the defendant’s attorney, but the judge a second .time refused it, and permitted the cause, under all the circumstances of the case, to go to the jury, who found a verdict for the plaintiff.
    In support of the present motion, the Attorney-General and Mr. Edward Rutledge contended,
    that the judge should have ordered a nonsuit to have been entered, as so material a link of the chain of title was wanting. That from the plaintiff’s own shewing, he said he proved the land originally to have belonged to Landgrave Thomas Smith, and as n® conveyance was produced from him, the law would infer that the land was still vested in his heir at law. That every man in this action must recover by the strength of his own title, and not by the weakness of his adversary’s ; and if he shews himself, or it is proved by the defendant, that the title is in another, it is sufficient to destroy his right of action. That, therefore, upon this ground, the judge who tried the' cause should, in the first instance, have directed the nonsuit moved for. But admitting that he had a right by law to go into the suppletory evidence contended for, he had totally failed in proving the existence or loss of the deed wanting. It was hardly necessary for him, he said, to urge the rules of law, which were so well and universally known, with regard to the loss'of deeds. That the party must prove, 1st. That such a deed once existed ; 2d. That it has been lost of destroyed, and that diligent search has been made 'for it in a proper place, and that it cannot be found ; or, 3d. That it is in the hands of your adversary, who refuses to deliver it. After this is done, you may give a reasonable proof of the contents of such deed, or offer a copy in evidence. But, he asked, had this been done in the present case ? He was bold to say it had not. No proof was offered by any person who ever saw this deed. That a house was destroyed by fire, he admitted ; and that some tide-deeds for land might have been destroyed, he also admitted ; but there was no proof that this deed (wanting) was among those which were so destroyed. It was true, he said, that a deed said to have been among those saved, contained a recital of a deed from Landgrave Thomas Smith to Benjamin Waring; but this, he contended, was too vague amt indefinite even to raise the slightest presumption upon. No copy was offered in evidence from the records, nor the least testimony of the contents of it. It was a bare recital of Benjamin Waring himself, under whom the plaintiff claims. There was nothing, therefore, from the whole oí thio suppie-tory testimony offered, to raise a presumption strong enough in law to justify the judge in leaving it to the jury to determine whether this deed ever existed or not ? or whether it was destroyed or not ? or even whether its contents amounted to a transfer of the land in question from the landgrave to Benjamin Waring or not ? If, therefore, the whole of this unsubstantial fabric vanishes in air, what was there to submit to a jury ? Not one circumstance of sufficient solidity had been offered, that came within any one of the rules of evidence.
    A nonsuit, therefore, upon the second motion, ought clearly to have been ordered, as soon as this suppletory evidence closed. And the judge, in refusing it, and submitting to the jut-y this kind of unsubstantial testimony, was guilty of misdirection. And for this purpose he relied on Cowp. 214. where the judge (Baron Eyre) left it to the jury to determine, whether 37 years non-payment of quit-rent did not amount to presumptive evidence that it had been released or extinguished ; and the jury found that it did» This was deemed a misdirection in the judge, and a new trial was ordered on the ground of this misdirection, and because the verdict was against law.
    Again, he said, a verdict -without any evidence at all, as in the present case, ox against plain evidence, or against law, ought not to stand; there ought to be a new trial. 3 Burr. %S-2S.
    
    Mr. Johnson, in reply,
    observed, that it would have been denying the plaintiff a manifest right, to have deprived him of the benefit of the evidence offered, to prove the existence and loss of the deed in question, by ordering a nonsuit in the first instance ; and still more so, after it was offered, to have taken it from the jury, and cut him off from the bene* fit of their verdict, by granting the second motion, without submitting it to their consideration. He admitted, that in cases where there was a total defect of evidence, the court would and ought to order a nonsuit. But, in this case, a great deal of evidence had been offered to the jury, both oral and written. In the first place, a regular chain of titles had been traced up from the plaintiff in this action to Benjamin Waring, the son-in-law of the old landgrave. All these had been delivered over to the plaintiff by the party from whom he purchased, which was strong presumptive evidence of the right, because ancient title deeds generally accompany the right to the freehold ; and only a single link was wanting to carry it up to the landgrave himself. In the next place, it was proved, that the dwelling-house of the executor of one of the ancestors of one of the parties under whom the plaintiff claims, had been destroyed by fire, and among other things, a number of deeds and papers, and that the owner of the house complained, at the time, of the loss of some of his papers and title deeds for his lands, at a time when he was smarting under his losses, which could not have been intended to bolster up an unfounded claim at some future day, but expressed with the utmost sincerity of soul to his neighbours at the time of his calamity. And, lastly, it appeared from one of the deeds saved from the flames, that this deed from the landgrave to Benjamin Waring was particularly mentioned and recited, as a deed which had been made and executed with all due and legal solemnities. This was also an ancient deed, and could not be supposed to have been fabricated for the purpose of supporting the plaintiff’s present suit.' All these circumstances, he said, formed such a mass of testimony, as could not well be resisted; and ifc would have been the height of injustice to have withheld it from the jury, by ordering the nonsuit. The presiding judge did, therefore, what was proper and right in submitting the whole to the jury, to form their conclusions upon, them; and having done so, there are no grounds to call their verdict in question.
    It cannot, therefore, be said to be a verdict without evidence, for there was a great deal of evidence offered. Nor one against evidence ; that is not alleged. Nor is it a verdict against law ; for if the jury were of opinion the deed in question ever existed, and was lost, it was a finding warranted both in law and in fact. They were the constitutional judges of facts, and where law and facts are blended together, their finding is conclusive and binding; and having done so, there are no legal grounds for setting their verdict aside.
   The Judges,

after hearing arguments, were of opinion, that where a link of a long chain of titles is alleged to be lost or destroyed, as in the present case, a considerable degree of latitude was perfectly allowable, in order to reach the justice, of a case of this complexion. They were, therefore, clearly of opinion, that the presiding judge did right in not ordering ■a nonsuit in the first instance. The correct rule of law, in eases of this sort, they took to be this: that wherever there was a total failure of testimony or evidence offered to a. jury in support of an action, there it was the duty of the judg e tu arder a nonsuit, because it would be 9 augtito.vy act, ta new-?. such an unsupported cause to a jury. But wherever there: was testimony, although of a doubtful nature, or a train of facts which were contradictory in themselves, or which admitted of different interpretations; in all such cases, the court ought to send it to the jury, ultimately to determine between the parties. In cases, too, where the general issue is pleaded, juries have a great latitude, and may even find a deed of themselves, if they know it, although not shewn by either of the parties. So also they may find a matter of record, though not shewn in evidence, (contrary to opinions formerly held on this subject,) and as they may find such record, so, by parity of reasoning, they may take instruction concerning it, from every circumstance -which carries the appearance of truth.

plavid. 410, 4U.

t Burr, a97.

Upon these grounds, also, the judges were of opinion, that the presiding judge acted properly in not ordering a nonsuit on the second motion for that purpose, but was regular in sending it to the jury, after the suppletory evidence was given. What were the points then submitted to them ? Why, whether this deed (supposed to have been lost or destroyed) ever existed or not; and, secondly, if it did, whether its loss was sufficiently accounted for or not. 1’hese were facts very proper for their considei-ation ; they were, under all the circumstances of this case, fairly and regularly submitted to them, and this court has no legal grounds to say that their verdict is either against law or evidence.

But the judges said they had a discretionary power of ordering new trials in cases of great intricacy or doubt, for the attainment of justice, without invading the province of a jury on the one hand, or of impeaching verdicts upon legal grounds on the other. And this case appeared to them to be one of this complexion. The parties all claimed under one of the earliest grants made by the former lords proprietors of South Carolina, and by ancient conveyances. That the subdivisions of this barony were made by surveyors of the parties’ own choosing, and there might be much light thrown upon the location of the lands mentioned in the de-iendant’s deed, which appeared to be involved in much doubt and obscurity. That there was still some doubt and uncertainty on the part of the plaintiff, about the existence and loss of the deed from the old landgrave to Waring, notwithstanding the finding of the jury, as the only mention, made of it was the recital in another deed, not between the same parties, but by a person interested in the establishment of this deed to himself.

For all these reasons, they thought it for the furtherance of justice to order a new trial, that this case might be tried before another jury, who probably may not have heard so much of the case as the one -who tried the cause ; and the more especially, as it would, in that case, be only putting the defendant exactly in the situation in which the plaintiff would have been, if the verdict had been in the defendant's favour ; for in that event he would, as a matter of right, have been entitled to another action, under the act of 1744, without impeaching the verdict of a jury.

Rule for new trial made absolute, without costs.

Present, Burke, Guimk, Ydaties and Bay.  