
    Robert A. Darby against John Calhoun.
    
    Charleston,
    May, 1817.
    totoetthe dictoryevidence. The Jury saying raade uPeytheir charge* 0c ° Ü sufficienttogS a new trial. It belongs to
    This was an action of trespass, tried before Mr, Justice-, at Charleston, in-Term, 181 — , for taking and carrying away a spar irom ° J 0 J * the beach on Folly Island, which the plaintiff claimed, and which it was alleged was cast up by the sea and left there; that this spar had belonged to the ship Benson.
    It further appeared, by a witness on the part of the plaintiff, that the defendant came there with a captain Bonnell; that he cocked a gun, and presented it at the witness, and ordered some negroes to roll it away, which they did; that this spar was lying above high water mark.
    Captain Bonnell, a witness for defendant, testified, that he was in want of a spar, and was informed by defendant that there was one on Foily Island; that it had belonged to the ship Benson, and that he might have it; that he accordingly went down and brought it away; that Calhoun, the defendant, was on the beach when he, the witness, brought it away, but did not give any assistance; that he never went above high water mark.
    The Jury, from this testimony, thought proper to find a verdict for the defendant. The present is a motion for a new trial, on the grounds,
    1. That the verdict was contrary to evidence.
    
      2. That the Jury had declared, before they J . . J heard the charge of the Judge, that their minds had been made up; and that their verdict was contrary to law.
   Bay, J.

delivered the opinion of the Court.

1. Upon the first ground, I am of opinion there was evidence on both sides. One witness for the plaintiff swore, that the defendant was present, and ordered the negroes to roll away the spar, and another witness swore, on behalf of the defendant, that he had no hand in taking this spar away; and that he was on the beach, and did not go above high water mark. From this view of the subject, it was for the Jury to determine in which scale the weight of evidence preponderated ; and as they have found for the defendant, I see no legal reason for disturbing the verdict on that ground.

2. There is no doubt but, as the Jury had said they had made up their minds before they heard the charge of the Judge, their conduct in this respect was improper; and if this was a case of sufficient importance, it might form a good ground for a new trial. But this excess of zeal in anticipating the merits, might have arisen from the nature of the action, and their being of opinion that the plaintiff had no right of property to the spar, which had belonged to the ship Benson. As, however, these kinds of actions, sounding in damages, are sometimes viewed as hard .actions, especially where no injury has been done to the property of the plaintiff; and it is often discretionary in the Court to grant new trials or refuse as they may seem proper; and as this appears to me to be one of those kinds of cases, I am of opinion that the verdict should remain at rest, and that the motion should be refused. And in this opinion the rest of the Court concurred.

J. B. White, for the motion.  