
    
      Jesse Hendrix vs. Levi Trapp.
    
    In trespass to personal property, jf the general issue alone is pleaded, and the trespass is proved or admitted, the plaintiff must have a verdict for some amount. A license from the plaintiff to do the act complained of, if not specially pleaded, cannot be used in justification, hut only in mitigation of damages, 
    
    
      Before O’Neall, J. at Fairfield, July, extra Term, 1845.
    This was an action of trespass for beating a slave. It was clearly proved that while the slave was pursuing the highway to a neighbour’s house, whither he had written leave to go from his master, the defendant met him, and struck him several severe blows over his head and arms with a hickory stick. A witness for the defendant testified that he heard the plaintiff admit that he had told the defendant, if he caught his negroes on his place to whip them, and that he, the plaintiff, was to do the same with the defendant’s negroes. His Honor charged the jury that in the state of the pleadings, as the trespass was proved, the plaintiff must have a verdict for something. That the license to whip the negro could not, under the general issue, entirely protect the defendant from a verdict. It would, however, if believed, be greatly in mitigation. Verdict for the plaintiff for $200. The defendant appealed, on the ground of error in the charge of the presiding Judge.
    
      Wethers and McDowell, for the motion.
    
      Boyce, contra.
    
      
      
         The rule that in trespass, where there is no plea of justification, or such a plea is not sustained by the proof, and the trespass is proved or admitted, the plaintiff must have a verdict, seems, under the maxim de minimis non curat lex, not to extend to cases where the injury is very slight; Broom’s L. M. 156. At any rate, in such a case, a new trial will not be granted because the jury have found for the defendant, even though the presiding Judge inadvertently omitted to instruct theip, that as a matter of law, the plaintiff was entitled to a verdict for some amount. Elwell vs, Bradham and others, 2 Sp. 168. R.
    
   O’Neall, J.

delivering the opinion of the court, said. The general proposition seems to be undeniable, that wherever in trespass the right of property is in the plaintiff, and the trespass is admitted or proved, to enable the defendant to have a verdict, he must plead his justification specially. In 1 Chit. Pl. 495, the rule is stated in reference to trespass for injuries to'personal property, thus; “in general, matters which admit the plaintiff’s property as well as the seizure, &c. must be pleaded, as a justification for cutting ropes, or killing dogs, or taking guns, <fec.”

The great matter relied on by the defendant to entitle him to a verdict was the supposed licence by the plaintiff to beat his slave. That, according to the rule, was the subject matter of a special plea, and if not so pleaded, the most which the defendant could have from the fact, was that it would' -be in mitigation. In 3 Steph. N. P. 2645, it is said, “the plea of license is, where the defendant committed the alleged trespass under the permission of the plaintiff, a good plea in an action of trespass, but it must be specially pleaded

Motion dismissed.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  