
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1813.
    William Heyward v. Thomas Bennett.
    A Verdict, obviously imperfect and uncertain on its face, cannot be supported, and must be set aside.
    The evidence of a right of passage, and a common right of pasture, will not support an exclusive right of possession by virtue of a legal title.
    This was an action of trespass, to try title to —— acres of marsh land on James’ Island. Title being the issue, there Was no question about the trespass. The plaintiff attempted to deduce his title from Samuel Stobo, but in tracing the title up to the original grant, which ivas to one Mary Patty, on the first of July, 1683, it appeared very manifestly, and so the court stated to the jury, that the grant did not cover the marsh, but expressly called for it as a boundary. The plaintiff then set up a claim by possession, which it was said commenced anterior to the 4th July, 1776, and, therefore, would consummate his right under a special clause in an act oí the legislature, notwithstanding the recognized principle of nul-lum tempus occurret Reipublicca. Upon the point of possession, the evidence on both sides was vast, and the one contradictory of the other. The jury found a verdict for the plaintiff for the whole land in dispute.
    The defendant moved for a new trial, on the grounds, — that the plaintiff did not shew any title to the. premises ; that they never' were granted to those under whom he claimed ; that as he could only claim by setting up a bare right of possession, it was’incumbent on him to support such possession by the strictest proof; that the evidence in support of his possession was insufficient; and that the verdict was contrary to law and evidence.
   Brevard, J.

I am of opinion the motion ought to be granted. The verdict is in these words, “We find for the plaintiff all the lands laying to the westward of Cos’s Creek,' from the mouth thereof upwards, until it intersects the first boundary line it comes to, with forty shillings damages.” The uncertainty of the verdict is not made a ground in this motion ; nevertheless I think it cannot be overlooked. To refuse the motion, would be to support a verdict obviously imperfect on its face. There are no materials in the record, nor any thing which it can refer to, to cure the imperfection ; to render it certain. It would require the verdict of another jury t0 asoer*a*n ^10 intention of the jury who found this verdict. On this ground I think the-verdict ought to be set aside. 5 Com. Dig. 521, 522. Cro. Ja. 113. Co. Litt. 227, a. 1 T. R. 141.

I am also of opinion that the verdict is against evidence and law, and on this ground, likewise, ought to be set aside.

The plaintiff claimed under an original patent granted to Mary Patty, dated July, 1683. It was found in locating the land embraced by this patent, that the marsh land in question was not included therein. This title failed. The presumption of another grant, from conveyances produced in evidence, was unsupported by evidence, and was completely rebutted, as the presiding judge very properly observed at the trial.

The title by possession, which was last of all relied upon, was also unsupported by evidence.

There was no evidence of actual peaceable, and continued possession, five years anterior to the 4th July, 1776, as was pretended. And there was no evidence of a claim by title, or claim of a right of possession, corresponding with the preten.ded possession, which I think essential to such a title. The evidence of possession went rather to prove a right of passage occasionally through the marsh, and a common right of pasture, than an exclusive right of possession, by virtue of a legal title.

Coicock, Nott, Smith, and Bat, Js., being of the same opinion, a new trial was ordered.  