
    
      Henry F. Bailey vs. Daniel C. Jeffords.
    
    1. In actions of tort for the destruction of property, its value furnishes the measure of damages, from which, if the jury materially depart, the Court will order a new trial.
    2. In torts other than for the destruction of property, no specific measure of damages can he laid down. But the value of property wilfully destroyed is due ex debito justicia
      
    
    
      Before Wardlaw, J. at Charleston, May Term, 1842.
    This was an action for killing a cow and hog.
    The parties live on James’ Island, their plantations separated in one quarter by a creek, fordable at low tide, and in another quarter by a public road running through a lane, on the several sides of which are their pastures. The plaintiff’s plantation is managed by his driver, Stephen. The defendant i-esides on his. The defendant’s fences were good or bad, according to the differing opinions of witnesses — but, as all concurred, were not what they deemed “lawful,” under the Act of 1827. The defendant’s crop suffered much damage from plaintiff’s hogs and cow7s, and in the course of the summer he killed one hog, and in November or December, 1841, killed a cow in his field. He sent word to plaintiff, by plaintiff’s stockminder, Joe, and acknowledged the fact, in reply to a letter of complaint which the plaintiff wrote to him. The cow was valued by one witness at $20; by another at $12. Of the particular hog killed, the value was not fixed, but the hogs of plaintiff, in general, were said to be worth seven or eight dollars a head. The Island is thickly peopled, and affords but little timber; there ai-e no “lawful” fences there; some turn cattle to the range, some keep them up: some have stockminders, and some none: some kill cattle doing damage, and some do not.
    The counsel addressed remarks to the jury, as to the duties and conduct of the several parties. The presiding judge said to the jury, that they should consider all the circumstances of aggravation and of mitigation, the conduct and motives of the parties, and find for the plaintiff any sum below the damages claimed in the declaration.
    The jury found for the plaintiff, $1,
    The plaintiff appealed from the verdict, on the following gTOimds :
    1. That the trespass by defendant, the value of the property, the unjustifiable circumstances under which the trespass was committed, were clearly proved, and under such facts his Honor should have charged the jury, that they were not at liberty to find a verdict for less than the real value of the property destroyed.
    2. That his Honor charged the jury, that in actions sounding in damages, which the present was, they were at liberty to find a verdict from one cent up to the whole amount laid in the delaration. Whereas, it is respectfully submitted, the charge should have been, that when property is in question, the value of the article, as nearly as it can be ascertained, furnished the rule from which the jury could not depart.
    3. That the jury were not justified in finding a verdict for nominal damages.,
    4. That under the Act of 1827, as to fences, the jury could not take into consideration any mitigating circumstance further than as to vindictive damages.
    5. That the verdict was contrary to law and evidence.
    
      Eckhard, for the motion,
    cited 6 Stat. 331; 1 Hill, 277 ; Harper Rep. 333.
    
      Petigru, contra,
    cited 13 J. R,ep. 152 ; 1 Bay, 49 ; 1 Burr. 609 ; 2 Bac. Ab. (Damages D.) 6 lb. (Trial.) As to new trial, 1 Burr. 11; 2 Strange, 1051.
    
      
       See Arthur vs. Wells, 2 Const. Rep. 314; Witsell vs. Earnest, 1 Nott & M’Cord, 188; Wise vs. Freshly, 3 M’Cord, 547; Owen vs. Wesner et al. Mss. Dec. 1827; 1 Rice Dig. 197.
    
   Ouria, per

Richardson, J.

In the case of Richardson vs. Dukes, 4 M’Cord, 156, which was trespass for shooting a negro, it was adjudged, that even in actions of tort, as in the case before the Court, where property is destroyed, its value furnishes the measure of damages; from which if the jury materially depart, the Court will order a new trial; and accordingly a new trial was ordered in that case. This rule has been recognized and acted upon in several other cases, and is essential to the peace, order and justice of civil government. In torts, other than for the destruction of property, no specific measure of damages can be laid down. But the value of property wilfully destroyed would seem to be due ex debito justicias. A new trial is therefore ordered.

O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  