Darby v. Calhoun , 8 S.C.L. 398 ( 1817 )

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.