
    
      C. G. McCoy vs. Richard and Benjamin Phillips.
    
    For killing cattle, by shooting and chasing them from their range, trespass vi et a/rmis is the proper remedy.
    A grant, issued after the commencement of a suit, hid admissible as evidence that the land was vacant when the suit was commenced.
    It is in the discretion of the Court to allow the plaintiff, in reply, to give new matter in evidence.
    
      A defendant who finds the cattle of another pasturing on unenclosed land, which he claims as his range, but to which he shews no title, nor right of possession, nor right of pasturage, is liable to the owner for shooting and worrying them.
    
      Before Frost, J., at Charleston, October Term, 1850.
    This was an action of trespass for killing plaintiff’s cattle.
    The plaintiff, it was proved, was the owner of a large herd of cattle — 1000 or 1500 head — which ranged over an extensive region of country. At the time the trespass complained of was committed, he had a drove of about 70 head ranging near Richard Phillips’s, on a tract of unenclosed land lying on Hell Hole Swamp, which Phillips claimed as his pasture land. From this tract of land the defendants drove the cattle; one they shot; several died from excessive driving; and others, it was alleged, died of starvation, in consequence of being driven from the range. There was no proof that either the plaintiff, or the defendant, Richard Phillips, who claimed the range, owned the land from which the cattle were driven. Phillips lived and owned land near by, and the plaintiff lived about 8 or 10 miles off.
    After defendants had closed their testimony, plaintiff offered in evidence a grant of land, obtained since the commencement of the suit, (not the range in dispute,) to shew that there was vacant land on the swamp to that extent. The defendants objected to it, as not strictly in reply, but it was admitted: and the defendants were allowed and gave evidence in reply to it.
    In his report of the case, his Honor, the presiding Judge, says: “The jury were told that the plaintiff claimed damages for one head of cattle shot, for twelve alleged to have died from excessive driving, and for the loss of thirty-one in consequence of the defendant’s act in driving them- from the range which the defendant claimed. The evidence on these several claims for damages was brought to their attention. Respecting the defendant’s right to the range from which he had driven the plaintiff’s cattle, they were instructed that the defendant had shewn no exclusive right of pasturage by any grant or prescription, and that he had shewn no title to the land from which the plaintiff’s cattle were driven, by title or possession; and that, from the testimony, it appeared that he only asserted a right to the range or pasturage on a tract of land, the limits of which were not otherwise defined than by the extent to which the cattle might go. Since the defendant had shewn no title to the land, they were told that it was unnecessary to instruct them respecting the rights which his attorney asserted, in behalf of the owner of the soil, to preserve the pasturage on it for his exclusive use, by driving off the cattle of others which might come on the land. They were instructed that, from the evidence, it appeared to be the usage for all persons to pasture their cattle on unenclosed land. That this usage was confirmed by the law of estrays, by which cattle can only be tolled for entering unenclosed land, and by the fence law, which, when it required every person to protect his cultivated land by fences, recognized the right of the owner of the cattle to permit them to go at large, and pasture on lands not enclosed; and further, by the decisions respecting the right of hunting over unenclosed land. That it did not appear, by the testimony, that the defendant had any other right of pasturage in the range, from which he had driven the plaintiff’s cattle, than was common to all — to the plaintiff equally with the defendant, and other owners of cattle; and that the defendant had acted illegally in driving away the plaintiff’s cattle, and was liable, in this action, for the damage which resulted to the plaintiff. Respecting the thirty-one head of cattle, alleged to be lost, the jury were directed to the evidence, to decide whether they had, in fact, been lost; and secondly, whether, if lost, they could have died in consequence of having been driven off the tract claimed by the defendant as his range, when so extensive feeding grounds, as it appeared, was left open for their resort.”
    The jury found for the plaintiff ninety-six dollars. The defendants appealed, and now moved, in arrest of judgment, on the ground that the action should have been case, and not trespass ; and failing in that motion, then for a new trial, on the grounds:
    1. That the Judge erred in permitting the plaintiff, after the defendants had closed their defence, to produce a grant purporting to be a grant of vacant land, which was not in reply to any evidence which had been adduced by the defendants, and was to them a surprise.
    2. That the Judge erred in permitting the plaintiff to produce a grant of vacant land obtained subsequent to the commencement of the suit.
    3. That the Judge erred in charging the jury that if it was defendant’s pasture land, being unenclosed, he had no right to drive off the plaintiff’s cattle, and was liable for consequential damages.
    Phillips, for the motion.
    -, contra.
   Curia, per

Frost, J.

The plaintiff produced evidence which satisfied the jury that, by shooting and driving, the defendant had caused the death of twelve head of cattle, the value of which they found for the plaintiff. This was an injury, with force, and proper for an action of trespass. The plaintiff attempted to recover for the loss of other cattle, which he alleged died from starvation, in consequence of having been driven from the pasture which the defendant claimed. This cause of action may have been proper for trespass on the case; but that is no objection to the verdict, which does not find any damages for that alleged wrong.

The grant, which was taken out after the commencement of the action, would certainly not have been admissible if it had been offered by the plaintiff in support of an issue involving the title to the land. But it was produced only to shew that there was some vacant land on the swamp. When offered for this purpose, it was not material whether the grant was issued before or after the action was commenced.

The circumstances under which the plaintiff was permitted to produce the grant in evidence, in reply, as stated in the report, ,are sufficient to obviate the objection that it was irregularly ad■mitted. But it is in the discretion of the Judge to admit evidence in reply, in the same manner as, in the examination of a witness, he may permit questions, introductive of new matter, to be asked in reply. It is the constant practice to permit the plaintiff, even after a motion for nonsuit, to introduce evidence which should have been offered in chief. Whether the land granted was vacant or not, was wholly immaterial to the issue presented to the jury; and the defendant lost no advantage by the production of the grant, in reply, which he would have had if it had been introduced before the plaintiff closed his evidence in chief.

The third ground of appeal is at variance with the report. The jury were not instructed that, if it was the defendant’s pasture land, being unenclosed, he had no right to drive off the plaintiff’s cattle. But they were told the defendant had not shewn any right of pasturage in any way.

No exception is taken to the instruction given on the only point of law presented by the evidence: that the defendant, not having shewn any exclusive right of pasturage, nor any title to the land from which he drove the plaintiff’s cattle, acted illegally in driving them from the range; and was liable to the plaintiff for any injury done to them in the act of driving.

By the fence law of 1827, (6 Stat. 331,) even if the defendant’s range had been proved to be his land, and it were enclosed by a fence and planted, and the plaintiff’s cattle were found in such field, and if the fence did not conform to the lawful standard, the defendant had “killed, wounded, maimed, chased or worried” the plaintiff’s cattle, the defendant would have been liable to an action of trespass. Such being the law with respect to enclosed and cultivated fields, it cannot be doubted that the defendant was liable in trespass if he killed or chased and worried to death the plaintiff’s cattle, bécause they were found pasturing on unenclosed land to which the defendant shewed no title, nor right of possession, nor right of pasturage; and who, for any thing that appeared, was, like the plaintiff, pasturing his cattle on the land of another.

The motion is refused.

O’Neall, EvaNS, Wardlaw, Withers and Whitner, JJ., concurred.

Motion refused.  