
    Simon J. Magwood vs. Elizabeth C. S. Milne.
    
      Practice — Evidence—Nonsuit—New Trial.
    
    In trespass qua.re clausum fregit, on very slight evidence, the jury found for the plaintiff: — Held, that, after the verdict, the Court would not I grant a nonsuit, though a new trial, if asked for, might have been granted.
    BEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ Trespass quare clausum fregit. The points of dispute upon which the motion for nonsuit, and that being refused, a verdict for the defendant, were urged, were these:
    “Did the negroes of the defendant cut wood and convert the same into rails, &c., on the plaintiff’s land ?
    “If yea, were they directed to do it, or was their act sanctioned by the defendant, or was she otherwise in any way liable for the act ?
    “ Mrs. Milne ,bad no overseer on her place, which adjoined the plaintiff’s.
    “ The first day that Savage entered upon service, as the plaintiff’s overseer, he discovered, at the distance of one hundred yards, negroes cutting wood for rails and boards, and when he came upon them, they ran and scattered, some going towards the defendant’s place. He saw cart tracks leading in the same direction; found axe, frow and maul, left behind, and did not know whose negroes they were. P. B. S. Hart was the manager of Mrs. Milne’s affairs, and to him resort was had by Magwood for a trespass, as he alleged, by the defendant’s negroes. Hart applied to Messrs. McBeth & Buist, Attorneys at Law, on behalf of his principal.
    
      “ Plaintiff produced two letters from them, upon the subject of the alleged trespass, which were addressed to the plaintiff, and which I admitted against objection. One was of date, 21st May, 1858, and my memorandum of it is to the effect, that Mr. Hart disavowed that trees were cut by order, and all knowledge of the trespass, and of those who committed it: the letter stated, that Mrs. Milne was prepared to pay for such trees as “ may have been” cut shortly subsequent to Mr. Milne’s death, for the purpose of making rails, and adds, “ she acknowledges a liability to this extent, on the ground, that the permission extended by you to Mr. Milne, to cut them, may be regarded as having ceased at his death.” “ If you will render an account on this basis, we will advise that it be settled.” Another letter from the same to the same, re-affirmed that Hart admitted no liability, and declined an arbitration, and repeats Mrs. Milne’s former proposition, and adds, that the redress she would be willing to afford, would, embrace not only such trees as were cut for rails, but those also cut for boards and puncheons.
    “ A couple of persons who visited the plaintiff’s premises last summer, gave a representation of affairs as observed at the place of the trespass, and said eighty or one hundred ordinary pine and oak trees, mainly the former, had been cut, some recently, others a year or more before.
    “I refused the motion for nonsuit, and the defendant offering no evidence, the case went to the jury, upon the two questions of fact, to wit:
    
    
      “ 1. Was a trespass committed by the slaves of defendant ?
    “ 2. If so, did she authorize it, or sanction it ?
    
      “ They rendered a verdict for twenty-five dollars, for the plaintiff.”
    The defendant appealed, and now renewed her motion for a nonsuit, on the grounds:
    
      1. Because there was nothing in the testimony produced by the plaintiff, to show that the defendant or her slaves were in any why connected with the trespass on the plaintiff’s land.
    2. That if there was proof, that the trespass was committed by the slaves of the plaintiff, there was no proof that it was done by the plaintiff’s authority.
    And failing, then she moved for a new trial, on the grounds:
    1. That the letters of the attorneys of the defendant, addressed to the plaintiff, were not admissible in evidence.
    2. That if they were, they contain nothing which can be deemed an admission by the defendant of a trespass.
    3. That there is otherwise, not the slightest evidence to support the verdict, and that the same being wholly against the law, should be set aside.
    
      McBeth & Buist, for appellant.
    Lining, contra.
   Curia, per O’Neall, C. J.

In this case, unquestionably, the testimony was' slight. Yet the facts that a trespass was committed on the land of the plaintiff by the slaves in cutting wood for rails and boards, that they ran as soon as observed, some going towards the defendant’s place, that cart tracks were also in the same direction, when connected with the defendant’s admission,- that she was willing to pay for trees cut immediately after Mr. Milne’s death, for rails, puncheons and clap-boards, might authorize a conclusion, that the trees were cut by the slaves of the defendant, and by her authority.

This would preclude the granting the motion for nonsuit, and especially after the jury have found on those facts for the plaintiff.

It might have been, that the Court would have granted a new trial ;• but as the defendant did not seek it, the Court will not interefere.

The motion is dismissed

Johnston and Waedlaw, JJ., concurred.

Motion dismissed  