Heyward v. Bennett

Supreme Court of South Carolina

Heyward v. Bennett

5 S.C.L. 113

DecidedJanuary 15, 1813

StatusPublished

This text of 5 S.C.L. 113 (Heyward v. Bennett) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Heyward v. Bennett, 5 S.C.L. 113 (S.C. 1813).

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Opinion

Brevard, J.

I am of opinion the motion ought to be granted. The verdict is in these words, “We find for the plaintiff all the lands laying to the westward of Cos’s Creek,' from the mouth thereof upwards, until it intersects the first boundary line it comes to, with forty shillings damages.” The uncertainty of the verdict is not made a ground in this motion ; nevertheless I think it cannot be overlooked. To refuse the motion, would be to support a verdict obviously imperfect on its face. There are no materials in the record, nor any thing which it can refer to, to cure the imperfection ; to render it certain. It would require the verdict of another jury [114]*114t0 asoer*a*n ^10 intention of the jury who found this verdict. On this ground I think the-verdict ought to be set aside. 5 Com. Dig. 521, 522. Cro. Ja. 113. Co. Litt. 227, a. 1 T. R. 141.

I am also of opinion that the verdict is against evidence and law, and on this ground, likewise, ought to be set aside.

The plaintiff claimed under an original patent granted to Mary Patty, dated July, 1683. It was found in locating the land embraced by this patent, that the marsh land in question was not included therein. This title failed. The presumption of another grant, from conveyances produced in evidence, was unsupported by evidence, and was completely rebutted, as the presiding judge very properly observed at the trial.

The title by possession, which was last of all relied upon, was also unsupported by evidence.

There was no evidence of actual peaceable, and continued possession, five years anterior to the 4th July, 1776, as was pretended. And there was no evidence of a claim by title, or claim of a right of possession, corresponding with the preten.ded possession, which I think essential to such a title. The evidence of possession went rather to prove a right of passage occasionally through the marsh, and a common right of pasture, than an exclusive right of possession, by virtue of a legal title.

Coicock, Nott, Smith, and Bat, Js., being of the same opinion, a new trial was ordered.

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Brevard, J.

I am of opinion the motion ought to be granted. The verdict is in these words, “We find for the plaintiff all the lands laying to the westward of Cos’s Creek,' from the mouth thereof upwards, until it intersects the first boundary line it comes to, with forty shillings damages.” The uncertainty of the verdict is not made a ground in this motion ; nevertheless I think it cannot be overlooked. To refuse the motion, would be to support a verdict obviously imperfect on its face. There are no materials in the record, nor any thing which it can refer to, to cure the imperfection ; to render it certain. It would require the verdict of another jury [114]*114t0 asoer*a*n ^10 intention of the jury who found this verdict. On this ground I think the-verdict ought to be set aside. 5 Com. Dig. 521, 522. Cro. Ja. 113. Co. Litt. 227, a. 1 T. R. 141.

I am also of opinion that the verdict is against evidence and law, and on this ground, likewise, ought to be set aside.

The plaintiff claimed under an original patent granted to Mary Patty, dated July, 1683. It was found in locating the land embraced by this patent, that the marsh land in question was not included therein. This title failed. The presumption of another grant, from conveyances produced in evidence, was unsupported by evidence, and was completely rebutted, as the presiding judge very properly observed at the trial.

The title by possession, which was last of all relied upon, was also unsupported by evidence.

There was no evidence of actual peaceable, and continued possession, five years anterior to the 4th July, 1776, as was pretended. And there was no evidence of a claim by title, or claim of a right of possession, corresponding with the preten.ded possession, which I think essential to such a title. The evidence of possession went rather to prove a right of passage occasionally through the marsh, and a common right of pasture, than an exclusive right of possession, by virtue of a legal title.

Coicock, Nott, Smith, and Bat, Js., being of the same opinion, a new trial was ordered.

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Bluebook (online)

5 S.C.L. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heyward-v-bennett-sc-1813.