
    
      Rachel M. Elwell vs. Abijah Bradham, Daniel Kelly and Elijah F. Strong.
    
    1. Defendants, two of whom, were deputy sheriffs, took from the arms of plaintiff a negro child, under the mistaken supposition that the child belonged to plaintiff’s husband, and with a view of executing against him writs of fi. fa. but did not use more violence than was necessary to possess themselves of the property. Verdict for defendants. Although plaintiff was entitled to a verdict for the injury to her person, yet that being of the slightest character, the Court refused to order the case back, merely to have entered a verdict for nominal damages.
    2. Where the ends of justice have been answered, and there has been no misdirection on the part of the judge, the Court will not, on a mere apex juris, order a case hack.
    3. Debruhl vs. Dinkins, 2 Nottand M’Cord, 85, considered.
    
      Before Wardlaw, J. at Sumter, March Term, 1843.
    Two of the defendant were deputy sheriffs: the third had an interest in urging an execution against the husband of the plaintiff, John L. Elwell, now deceased. Tt appeared that under writs of fi.fa. against J. L. Elwell, the defendants took from the arms of the plaintiff, a little negro, that belonged to George Frierson. The plaintiff insisted that they knew the negro was Frierson’s, and wTere intentionally exceeding their authority, with the view of extorting from her a disclosure of the place where negroes had been concealed by J. L. Elwell, which belonged to him, although covered by a pretended marriage settlement; and that they hurt her much in the struggle. The defendants, on the contrary, maintained that they had good reason to suppose the little negro to beJ. L. El well’s; and that they used no more violence than was necessary, and in fact, did not hurt the plaintiff; and further, they rested the necessity for great energy and firmness upon allegations of various subterfuges adopted by J. L. Elwell, to avoid the sheriff.
    The case was argued throughout as if the only questions were as to the quantum of damages, and the liability of the third defendant, who had not been active. Without expressly saying that the jury must find something for the plaintiff, the presiding judge submitted the case, with comments on the questions raised: and supposed, of course, that the verdict would be for the plaintiff, to some extent.
    The jury found for the defendants.
    The plaintiff moved the Court of Appeals for a new trial, on the following grounds:
    1st. That the trespass alleged having been proved, by uncontested evidence, the verdict should, as matter of law, have been for plaintiff, in some amount.
    2nd. That ITis Honor omitted so to instruct the jury, which, it is respectfully submitted, should have been done.
    3d. That the verdict was contrary to the law and the evidence.
    
      Wethers &¡' Watson, for the motion.
    Moses, contra.
   Curia, per

O’Neall, J.

In this case, from the- verdict of the jury it seems that the defendants intended to execute the writ of Ji.fa. in good faith ; that their seizure of the little negro was on the supposition that it belonged to the plaintiff’s husband; and that in doing it, no more violence was used than was necessary to possess themselves of the child. Although the defendants cannot justify the seizure of another’s property by mistake, yet none but the ower can complain of that. The plaintiff must stand upon the injury done to her person, in taking the child out of her arms. That, it is true, is an assault and battery, but yet it is of the slightest imaginable character, and if the jury had given one cent damages, the law, as well as justice, would have been fully satisfied.

The question now presented, is whether a case shall be sent back for another trial to have a verdict for nominal damages entered. It is clear that the granting of a new trial is, in many instances, a matter of discretion. Where the ends óf justice have been answered, and there has been no misdirection on the part of the judge, nor improper testimony received, the Court will not, on a mere apex juris, order a case back. In Debruhl vs. Dinkins, 2 N. and M’C. 85, where an assault and battery had been clearly proved, the jury found for the defendant, the Court substantially refused the motion for a new trial, in granting it, unless the defendant released the costs. This condition was I think wholly wrong, For with the costs we have nothing to do, they follow the verdict; if it is right, it should stand, if not, it should be set aside. In Fitch vs. Walker, 1 Bail. 98, Judge Nott, in delivering the opinion, maintains the doctrine for which I contend, that barely to secure a verdict of nominal damages the Court will not order a new trial. Such a matter falls clearly within the maxim, deminimis non curat lex. The motion is dismissed.

Richardson, Evans and Butler, JJ. concurred.  