
    
      John Carter vs. Alexander Pinchbeck.
    
    In trespass quart clausum fregil, a cropper or overseer, who was to receive from the plaintiff, as compensation for his sorvices, a share of the crop planted in the field in which the trespass was committed, is a competent witness for the plaintiff.
    Defendant had license to drive his wagon over plaintiff’s land by a certain route. Defendant’s slave, who drove the wagon, sometimes went by that route, and sometimes by a shorter one, through plaintiff’s field, and this was an action of trespass for hauling by the shorter route : — Held, that the presumption was, that the slave went the shorter route by defendant’s direction, and the onus was on him to rebut the presumption.
    
      Before Whitner, J., at Chester, Spring Term. 1854.
    The report of his Honor, the presiding Judge, is as follows:
    ‘ ‘ This was an action of trespass quare clausum, fregit. The defendant had purchased a mill seat, situate in the middle of plaintiff’s plantation, and had permission of egress and ingress along a road passing by plaintiff’s house to the mill. Having determined to remove some of the timbers from the mill, to one he designed to substitute higher up on the same stream, his wagon and team, under charge of his negro driver, was employed, in the Spring of 1851, in hauling. The exact localities were very imperfectly understood by the counsel and the Court, and the witnesses succeeded badly in furnishing such descriptions. After a very tedious examination, having reference to what afterwards proved an inaccurate diagram, these matters, with others arising in the case, were committed to the jury. It appeared in evidence, that the defendant had not in any instance accompanied his wagon in person — that several of the loads had passed along the permitted route — that occasionally the wagon had passed through the field by a nearer route, but before the crop had been planted, though one witness testified that he had seen the wagon returning empty twice through the field, after the corn had been planted, and was up. Two witnesses testified that hogs had rooted up corn in this ten or twelve acre field, perhaps the next night after the wagon had passed through along the route permitted to be travelled. There was some contrariety in the testimony as to the fences, though the weight of evidence showed that the fences were very inferior, especially a cross fence between the parties, and that a water-gap was often out of proper condition. There was no road-way in the direction the wagon had taken, when taking the nearer route, nor could I at all learn from any representation offered or description given, how this travel was effected.
    “ The first ground of appeal objects to the competency of John Kirkpatrick, who cropped with plaintiff in 1851, and received a share of the corn made on the field, of which crop, it was in proof, there was a fair yield, better than in the neighborhood usually though it had been replanted after the hogs had rooted it up.
    “ On the second ground, as to the liability of the defendant for the act of the slave, he had the benefit of very special instructions, as favorable as he could have required, that the master should be held only to answer for such trespasses as were committed when in the master’s employment, and by his direction. I thought, until I saw the ground, that this view had been pressed quite to the satisfaction of defendant; for really, regarding as I did, the case on the part of plaintiff, without any special merit, I offered the jury a fair opportunity on this point, to acquit the defendant of any trespass whatever. So, too, I thought at most, a very petty trespass had been committed. I intimated very plainly that the justice of the case could not suffer, so far as plaintiff was concerned, by a verdict for the smallest coin known .to our currency. These matters I felt constrained to submit to the jury, and they returned a verdict of thirty dollars.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because the witness on the part of the plaintiff, John Kirkpatrick, was an incompetent witness, as the suit was brought for damage done to the crop, and he was interested in that crop.
    2. Because defendant was not responsible for the acts of his slave, in driving over the land of plaintiff with his wagon, if he had done so without his orders, and so his Honor should have charged the jury ; but he did not do so, but said to the jury he did not think the defendant was, but told them they might infer he was, liable, when there was no legal evidence from which such an inference could be legally drawn.
    
      Thomson, for appellant.
    Williams, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The grounds of appeal are susceptible of very brief answers.

1. This action is trespass quare clausum fregit. Who could bring it? No one but the owner. A cropper, or overseer, has no interest in the soil, or in the crop growing on it. When made and gathered, he has an interest that the share to which he may be entitled should be specifically laid oiF to him; or that he should receive in money the value of it. In the growing crop he has no legal interest; he could not recover for damages done to it by a stranger. No one save the owner of the land could sue for, or recover for such injury. It is plain, therefore, Kirkpatrick had no legal interest, which could render him incompetent. He might have had an interest in the question, but that went to his credit, and of that the jury were to judge, and have judged.

2. There is no plainer proposition in our law, than that a master is not.liable for the acts of his slave, done outside of his employment, and unauthorized by him. But in this case, how does that rule apply? The defendant, I understand, justified the trespass, under a license to him to pass over the plaintiff’s land. After such a plea, Ido not perceive how he can say that his slave drove his wagon and team over the .plaintiff’s land without his authority. But waiving that, the slave was in his employment; he drove sometimes the way licensed, and sometimes a shorter way, unlicensed. What is the proper legal presumption ? That this was done not by the authority of the defendant? Certainly not. The presumption is the other way. The slave hauling by his authority, is presumed to do every thing with his knowledge, and by his directions, until the contrary appears. This it was his business to show, and failing to do it,- he must abide the consequences.

The motion is dismissed.

Wardlaw, Withers, Whitner, and Munro, JJ., concurred.

Glover, J., absent at the argument.

Motion dismissed.  