
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1803.
    Champion v. Smith.
    In trespass for taking-plaintiff’s goods, defendant may give evidence of title m himself, under the general issue : and where the jury found damages for the value, as well as for the taking, although the defendant had established his title by the evidence, a new trial was awarded', nisi.
    
    Where the defendant in trespass has proved title to the goods, the plaintiff cannot recover upon his possession, without proof of abetter title | and a verdict in his favor will be set aside as contrary to evidence.
    Motion for a new trial. The case was trespass vi et armis for taking away a horse from the plaintiff; and was tried before Brevard, J. in York district.
    It appeared in evidence, that one Chisolm owned the horse in question, and sent him to his father lo keep for him ; that a younger brother of Chisolm took the. horse to ride, and did not return him. It did not appear how the owner, Chisolm, became divested of the property, or that he became divested at all; but it was proved, that the plaintiff came to have the horse in his possession afterwards by purchase fairly. It further appeared that the former proprietor, Chisolm, and the defendant, went together after the horse; that they enquired for the plaintiff; that they found the horse near plain, tiff’s house in the woods, and drove him to plaintiff’s house, where Chisolm and plaintiff disputed about the right of possession, and plaint’ff forbid him to meddle with the horse ; and that he took him notwithstanding, the defendant assisting him by getting green baik to tie the horse. Chisolm was also sued, but not served with process.
    The judge left two questions lo the jury. 1. Whether the defendant was assisting, and countenancing Chisolm, in taking away the horse out of the possession of the plaintiff, who claimed him as his property ; instructing them that if they should believe he was, that then he was a principal in the trespass, and he was liable to pay damages, whether actual force wasemp'oyed or not, either by Chisolm or himself, if the horse was taken out of plaintiffs possession against his will, 2. If they should be of opinion,-that the property of the horse was in the plaintiff, and that the evidence for the defen^ant ^id not Prove a better right of property in Chisolm, theta they might find as well the value of the horse, which, it appeared, waa afterwards converted by Chisolm to his own ose, as damages for the trespass done in taking' him away ; and that a recovery of the value in this action might be pleaded in bar to an action of trover for the same cause. See 1 Show. 146. 2 Show, 211. Cro. Eliz. 667. Cro. Jac. 73. 2 Sir. 1078. 1 Com. Dig. 153.1 Ld. Raym. 472. 2 Bur. 1010. 3 Wils. 304. 1 T. R. 480. 3 Bur. 1223. And in the charge inclined .to think the defendant should have shown, in what manner the young man, who rode the horse away, liad disposed of him ; as otherwise it might be presumed, that he had sold him by authority from his brother, to some person of whom plaintiffhad bought him. The jury found, for the plaintiff assessing damages specially for the value of the horse, and also for the taking.
    Nott, for defendant,
    cited 5 Bac. Abr. 18Q. Plaintiff could have only a special property, and Chisolm might take the horse away, and this action cannot be maintained. 5 Bac. Abr. 201. Defendant may prove property in this action, under the plea of the general issue ; although in order to justify the taking it was necessary to plead the justification specially. Esp. Dig. 410. But here property wass proved in mitigation of damages.
    Siíith, contra.
    
    The only question is, whether there was suffi. cient evidence to authorize the jury in believing, that the horse was the property of plaintiff, and not of Chisolm. There was evidence pro and contra. The jury have decided, and they had a light to decide, it being a question of fact.
   The court,

Waties, Johnson, Bast, and Trezevant, Justices,

(absent Grimke, J.,)

were of opinion, that the verdict, so far as it assessed damages for the value of the horse, was against evidence ; as the evidence seemed quite sufficient to prove that Chisolm had the bast right to the horse ; and they thought the presiding judge had charged the jury erroneously on this point, as the evidence on behalf of the defendant was sufficient ti} prove the horse to have been Chisolm’s by a prior title, which must be deemed good until rebutted by evidence on the part of the plaintiff. The court therefore granted a new trial, unless plaintiff would release the damages for the value of the horse. See 14 Vin. Abr. 592, et seq. as to releasing damages.

Note. In trespass the defendant may in all cases give evidence of title unte the generaHssue. 7 T. R. 354. 3 T. R. 403. *  