#### THOMAS SUTTON AND WILLIAM LONG *vs.*JOSEPH MADRE.

Circumstances that raise only a *possibility or*conjecture, ought not to be left alone, to a jury as evidence of a fact which a party is required to prove.

ActioN of trespass *quare clausum fregit,*tried before his Honor Judge Pekson, at the last Spring Term of Perquimons Superior Court.

Title to the *locus in quo*was proved to be in the plaintiff, *321'Sutton : it bad been cultivated by one Thach, under whom Sutton claimed title in 1851, but by no one in 1852, until the fall of the year, when it was proven that both of the plaintiffs were seen there,with their respective horses and hands, plough-ing and putting the land in wheat. Both of these repaired the fences, including the dividing fence between the field in question, and that of the defendant, upon which they put some new rails, and they gathered and shipped the wheat crop the ensuing year.

There was evidence as to the defendant’s entry, also to plaintiff Sutton’s title and 'as to boundary; and there were questions ■raised as to the admissibility of evidence, which are all stated in the defendant’s bill of exceptions; but from the view taken of this case, by the Court, it is not'material for them to be set forth.

The defendant’s counsel insisted that the plaintiffs could not recover, because the legal title being in the plaintiff, Sutton, and he -being in actual possession, that possession was exclusive; and that there was no evidence of any such possessory right or possession in the plaintiff, Long, as to admit of an action being sustained by him, and called upon his honor so to instruct the j ury.

But the Court declined so to instruct, and left it to the jury to say, whether “ they were satisfied from the evidence, that Long was thereunder a contract of renting or some like agreement, by which he acquired an interest in the land.

To this the defendant excepted. Yerdict for. the plaintiff. Judgment and appeal.

*Heathy*for plaintiff.

*Smith*and Jordan, for defendants.

Battle, J.

It may be a matter of regret that the j udgment in this case must be reversed and a new trial granted upon an objection which applies to the parties, and not to the merits of the suit. We say it *may he*a matter of regret because, apparently, the law has been correctly administered in the Court *322below, in every thing except in submitting to the jury the question of the joint possession of the *locus in quo*by the plaintiffs, without any proper evidence to support it. The title of the land was shown to be in the plaintiff, Thomas Sutton, and the only testimony offered to show that the other plaintiff was in possession with him, was that the two were seen together ploughing in a crop of wheat, with their respective hands and horses : were also seen to repair the fences and to gather and ship the wheat the ensuing year. No written lease, from Sutton to the other plaintiff was produced, and no oral letting was shown by any direct proof, and it was left to be inferred from the testimony just above stated. "Was that testimony sufficient to be left to the jury for that purpose? We think that under the circumstances it was not. The burden of proof, it will be remembered, lay on the plaintiffs. The evidence they offered could raise a conjecture only of a fact which they were bound to establish. It was just as consistent, if not more so, with the supposition that the plaintiff, Sutton, permitted the other plaintiff to crop with him upon shares, as that he had rented him the land. Such a case comes directly within the rule laid down by GastoN, J., in delivering the opinion of the Court in the case of *Cobb*v. Fogleman, 1 Ire. Rep. 440, “Where the law does not presume the existence of a fact, there must be proof, direct or indirect, before the jury can rightfully find it; and although the boundary between a defect of evidence and evidence confessedly slight, be not easily drawn in practice, yet it cannot be doubted that what raises a possibility or conjecture of a fact, never can amount to legal evidence of it.” See also *State*v. *Revells.*Busb. Rep. 200. The rule may, perhaps, be better illustrated by the following example : suppose the plaintiff in a cause was bound to show the existence of a fact within twenty years, and the only testimony he offered was that of a witness who stated that it existed either nineteen or twenty-one years, and he could not remember which: could the Judge leave that isolated statement to the jury as testimony, from which they were at liberty to find the issue in favor of the plaintiff? Certainly not; and *323yet the case would be as strong in his favor as the present. Here the testimony tends to prove a fact against the plaintiffs as much as it does one for them. Hence it can, at most, raise only a possibility or conjecture, which, as Judge Gaston says, is not legal evidence of the fact.

Eor the error in this single particular the judgment is reversed, and a *venire de novo*awarded.

Pee Cubiam. Judgment reversed.