#### *Robert Devlin vs. Simpson Killcrease.*

1. A party proving the declarations of another party, concerning a trespass which had been committed, has the right to prove and give in evidence all the expressions that were used in tire conversation relative- to the trespass at the time, as well on account of their being a part of the same conversation, as also, to shew to the jury the spirit and feelings with which they were spoken.

2. It is the right, and also the duty, of a Judge, to comment on all the evidence of a case to the jury, and in cases of complicated facts, to give to the jury the aid of his experience, discrimination, and judgment upon the evidence, as well as the law, so that he finally leaves the ultimate decision of all the facts to their judgment. This is the practice of all Common Law Courts, and such is the well settled practice in South Carolina.

*jBefore*Richardson, J., *at*Abbeville, *Spring*Term, 1842.

This was an action of trespass- for cutting the timber and poles of the plaintiff. The trees had been ci.it by defendant’s negroes — and whether he ordered the trespass, was made a question by his counsel. This must appear from the evidence.

The evidence taken at the trial, and which has been reported by the presiding Judge, as his report of the case, is herewith subjoined, which, with the grounds of appeal, will sufficiently explain the facts, and the questions made and decided by the court.

“ Mr. *A. Patton.*The defendant lived near to the plaintiff, on land of Henderson. Heard defendant say his boys had cut some rail-timber and some poles for chimneys. He had been to plaintiff to make up ; but they would have to go to law. He had as much money as plaintiff to spend at law; and he could buy him and all he had, if they were black: Spring of 1841, before the suit. Said he had gone to plaintiff, and plaintiff to him first, and could not settle.

“ í*¡ —Conversation at McClinton’s store. — -As to the first timber, he said plaintiff would be satisfied to cut as much of *his timber.*He did not say whether he had authorized it or not; but said his boys had cut it, <fec. Witness did not attend to the whole conversation with McClinton. Said plaintiff was not willing to compromise the second trespass. Defendant attends closely to his negroes and business.

“ Mr. *Samuel Leard.*Defendant said he had before cut *426some two or three timber trees and some poles, and plaintiff would not settle, (fee. He was contrary.

“ i*j —Defendant said he offered to pay him, and he would not do it. Plaintiff was disposed to go to law; said his boys had cut the timber; did not say it had been done with his permission.

“ *John McLaren.*Leased the land to defendant, for Henderson, and offered to shew defendant the lines; but defendant said he knew them from Mr. Dill. The fence runs on the line, three-fourths of the way. Henderson’s near timber land had been pretty much cut up.

“ *Charles Sproull.*Knows plaintiff’s land; not a large tract; timber scarce. Saw where the timber was cut, two rail trees ; many poles ; some fifty yards from the fence, or 100 yards from Henderson’s wood-land. Henderson’s land had many stumps.

“ *Bart. Jordan.*Examined the timber-land. Appeared last February to have been cut recently. Two pine trees of four cuts each, 100 rails ; a number of pole stumps, (20 or 25;) some good trees for rails on Henderson’s land.

*“*The court charged the jury with all the facts, and especially to decide the question for themselves; but turned their attention to the use made of the poles, (for chimneys,) and to the expression of the defendant, as proved, and as indicating his concurrence in the trespass. If so, they were told that the plaintiff was entitled in law to recover at least the value of the trees taken, to which the jury might add reasonable damages, for example’s sake. The jury found for.the plaintiff, $53.”

From which verdict the defendant appealed, on the grounds following:

1. That the proof was, that the trespass was committed by the defendant’s slaves, and no proof that the defendant ordered or directed it.

2. That his Honor charged the jury that the defendant’s offering to pay the plaintiff for the trespass, was an ac-knowledgement that the trespass was done by his orders.

3. That his Honor charged the jury that he “believed that the defendant was guilty of the trespass whereas, it being a matter of fact for the jury, and doubtful from the *427testimony, it should have been left to the jury, without any expression of opinion of his Honor, as to the guilt or innocence of the defendant.

4. That his Honor admitted evidence that the defendant had said, (long after the trespass was committed,) “ that if the plaintiff was black, he could buy him and all he had.”

5. That the verdict is contrary to the law and the evidence.

Perrin, for (he motion,

on the 1st ground, said that it was necessary to prove that the defendant had committed the trespass. The declarations of defendant, that his ne-groes had cut the trees, was no evidence that defendant had so ordered the cutting of the trees. The master is not liable in law for the trespass of his slaves, when not committed by his orders. The offer to pay by defendant, is not sufficient evidence, for abstract justice would have prompted this offer; but no offer to pay was intended to charge himself as giving the order to commit the trespass.

On 3d ground, cited Graham on N. Trials.

4th ground. This is not such a declaration as would go to explain the character of the trespass. Cited Starkie Ev.; 2 Maul *&*Selwyn, 77; 2 Starkie Rep. 314.

*The alia and errona*only embraces such acts as are committed at the time of the commission of the trespass. Cited Treadway Rep.; also, Dudley.

Burt, contra,

offered to argue, but was excused by the court.

Curia, *per*

Richardson, J.

The fourth ground of the appeal, supposes that the expressions of the defendant to the witness, Patton, that “ if Devlin was black, defendant could buy him and all he had,” were incompetent. But these expressions were part of the conversation relating to the trespass, and his own offer to adjust the complaint. And the plaintiff had a right to adduce, before the jury, as well the spirit in which the defendant admitted the trespass done, as the facts. I do not perceive how else we could get fairly at what the defendant did acknowledge upon the subject, unless by hearing all he did say, leaving *428it to the jury to apply the expressions for what they were worth, which was very little. The 2d and 3d grounds assume that the Judge ought not to indicate his own opinions upon the evidence, lest he should bias, the jury. In this case such opinions were not more than indicated. But the frequency of such grounds of appeal leads me to remark, that according to the case of the *State vs.*Bennett, 2 Tr. Con. Rep. 692, it is the right of the Judge to comment upon the whole evidence to the jury. And in the case of the *State vs. Cassadoes,*1 N. *&*McC. 91, it is decided to be not only the right, but also the duty of the Judge, in cases of complicated facts, to give to the jury the aid of his experience, discrimination and judgment, upon the evidence as well as the law, so as he finally leaves the ultimate decision of all facts to their judgment. And such, I presume, is the practice of all common law courts. Of this, and from high authority, I will give one illustration. Lord Brougham, commending the judicial character and conduct of Lord Ellenborough, says: “ Lord Ellenborough was not one of those Judges who, in directing the jury, merely read over their notes, and let them guess at the opinions they have formed, leaving them without any help or recommendation in forming their own judgments. Upon each case that came before him, he had an opinion; and while he left the decision to the jury, he intimated how he thought himself. This manner,” he continues, “ of performing the office of Judge, is now generally followed, and most commonly approved.” (See 2d Brougham’s Miscellanies, public characters, p. 39.) See the cases collected on this head, in Graham on New Trials; and I may add, such is the well settled practice in South Carolina.

The motion is therefore dismissed.

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