#### Clark et al. vs. Bales.

The defendant will he made liable for trespass, if it is proved that he came in aid of tho person, who committed it, though he took no further part in it; and whore there are circumstances in proof, connecting- a defendant with the trespass, and the jury find a verdict against him, and the judge, who heard tho testimony, refuse to grant a new trial, this court will not disturb the verdict.

"When a joint trespass is proved, the jury are to estimate the damages against all the defendants, according to the amount which they think the most culpable of tho defendants ought to pay : and whore tho trespass is an aggravated one, they are not confined to tho actual damage, hut may give exemplary damages.

Quere: "Will the affidavit of a juror, after verdict rendered, that he was induced to consent to the verdict from a misapprehension of tho instruction of the court, ho admitted as cause for a now trial ?

Writ of Error to the Circuit Gov/rt of Independence Comity.

Hon. B. H. Neely, Circuit Judge.

Pairohild, for the plaintiff.

"W. Byres, contra.

Mr. Chief Justice Eyglish

delivered the opinion of the Court.

Henry Bales brought an action of trespass, in the Independence Circuit Court, against Johnson Clark, John Clark, Sarah Clark, Jonathan Clark and Bobert A. Patterson, alleging, in the declaration, in substance, as follows:

1st. Count: That, on the 20th December, 1851, the defendants broke, and entered the close of the plaintiff, and drove away, and converted to their own use, a sow and nine shoats, of the value of $ 200, the property of the plaintiff.

*4532d. Count, for breaking and entering tbe close of tbe plaintiff, pulling down bis fence, and carrying away bis rails.

3d. Count: That tbe defendants seized, took, and drove away, tbe bogs of tbe plaintiff, to wit: one sow, and nine sboats, of tbe value of $200.

Tbe defendants pleaded not guilty, tbe case was submitted to a jury, and a verdict returned for tbe plaintiff, assessing bis damages at $ 10(5.

-Tbe defendants moved for a new trial, on tbe grounds following :

1st. Tbe damages assessed by tbe jury are excessive, and unwarranted by tbe evidence, and law of the case.

2d. Tbe verdict is against tbe evidence, and, entirely without, evidenee, as to defendant, Robert Ratterson.

3d. Tlie verdict was given on a misapprehension of tbe law of tbe case, as declared in tbe'affidavit of Jemes Ga/rson, one of tbe jurors.

4tk. Tbe verdict is against tbe law and evidence.

To support tbe motion for a new trial, tbe defendants filed the affidavit of Carson, one of tbe jurors, made before a justice of the peace, stating, that affiant misunderstood the charge of tbe court to tb e jury, in this: that be understood tbe judge to charge tbe jury, “that if they, by tbe law and testimony, find one of tbe defendants guilty of tbe charge alleged in tbe declaration, all must be so-found, and damages awarded accordingly, as to tbe parties charged, and that tbe jury bad no right, or power, under tbe instructions of tbe court, as understood by affiant, to discharge any one of tbe defendants, without discharging all of them — that be understood tbe court to charge, that if any one were guilty of tbe trespass, all were guilty, and that damages must be found against all, or all must be acquitted. That, under this misapprehension of said charge, as understood by affiant, be acquiesced in tbe verdict of tbe jury. That be now understands tbe charge of tbe court to have beelt, that tbe jury bad tbe right, under tbe law, to discharge one or more of tbe defendants in said cause, provided *454they believed tbe testimony, as to any one of tbe defendants, was deficient, and did not sustain tbe charge alleged as to him. or them. That, under such an understanding of tbe law and charge of tbe court, be could not, -under bis oath, as a juror in said cause, have consented to tbe verdict rendered, and, under such state of facts, be mates this affidavit.”

Tbe corn’t overruled tbe motion for a new trial; tbe defendants excepted, toot a bill of exceptions setting out tbe evidence, and brought error.

Tbe substance of tbe testimony, as it appears in tbe bill of exceptions, is as follows:

B. Henderson, a witness for tbe plaintiff, testified that be lived in tbe neighborhood of tbe parties to tbe suit; that, in December, 1851, a short time before tbe commencement of tbe suit, be was at tbe bouse of plaintiff, who lived upon an improvement upon tbe public land, which be bad bought and claimed —the improvement consisted of a log-house, field, a lot around a stable and corn crib, and a bog-pen in tbe yard. Tbe plaintiff bad a large spotted sow, which be bought a year before that time, of one Henderson. Witness knew tbe sow well, when Henderson owned her, and saw her frequently in tbe plaintiff’s possession, after be bought her of Henderson; and after which, she bad nine pigs, which, in December, 1851, were quite large shoats. Plaintiff, at that time, bad bad tbe sow up in a pen, fattening for bis pork — tbe shoats were running about tbe yard, stable and crib. When witness went to plaintiff’s bouse, as above stated, be was told that tbe sow bad been let out of tbe pen, tbe night before, by some person, and that tbe Ciarles bad driven her, and a part of tbe shoats, off, that morning; and, while witness was there, Jaoleson Glm% and two or three of tbe sons of tbe defendant, Johnson Clark; and Jonathan Ciarle and Bobert A. Patterson, came up to tbe plaintiff’s bouse, and said they were going to drive off tbe balance of tbe shoats. Plaintiff told them not to do so- — that they could not drive or take them away, without legal antboi’ity. Jaclcson Ciarle replied that be bad authority *455enough. — that they were Ms mother’s hogs (Scvrcch Glcvrk, one of the defendants,) and that he would take them; and he, and Jonathan Olark, and the sons of Johnson Clark, commenced driving them off, against the order-of plaintiff, and, to get them away, they had to run some of them into the hog-pen, and catch them; and that they drove them off, and took them to said Sarah Clark’s. Witness did not not recollect of seeing JBobert A. Patterson doing any thing particular about said hogs, only he come with the others, and went away with them. Before they could get the skoats away, they had to run them around in the yard and lot of plaintiff, &c.

Witness was at the house of plaintiff, some eight or ten days before this; and Jolmson Glcvrk and John Glcvrk, two of the defendants, came there, and said the sow and shoats belonged to their mother, or the estate of James Clark, deceased' — witness did not remember which, and that they would have them. Plaintiff told them they could not have them without legal authority ; and they said they had authority enough. On the next day, after the hogs were taken, as aforesaid, plaintiff got the constable, and a writ to take the hogs, and the plaintiff, the constable, and witness and some others, went to Mrs. Sarah Clark’s, one of the defendants, and mother of the defendants, Johnson Glcvrk, John, Glcvrk, and Ja/natha/n Glcvrk, and there found said sow and pigs in a pen. The defendants, Johnson Olark, John Glcvrk and Jonathan Olark, were there. The constable and plaintiff demanded the hogs, and the said Johnson and John came out to the pen, and told the constable and the plaintiff not to take the hogs. The constable told them his writ commanded him take them; and Johnson Olark told him if he attempted to lay down the pen, and take the hogs, if he were to knock him in the head and kill him, he could not be hurt for it. The constable and the plaintiff did not take the hogs. Witness passed there on the next day and saw the hogs — 'they had all been killed. Did not see who killed them — 'they were killed and dressed, but witness knew *456them., "Witness tbongbt the sow and sboats were worth about $20 — were worth from $15 to $25.

James W. Henderson, witness for plaintiff, testified, that he was one of the executors of James Clark, deceased, the husband of Sarah Clark, and father of said Jolmson, John, and Jonathan Ciarle; and that Robert A. Patterson, the other defendant, was a son-in-law of said Jolmson Cla/rle,. That, at a sale of the personal property of said James Ciarle, deceased, by his executors, the sow in question was sold, as part of his estate, purchased, and paid for, by one Jolm P. Henderson, who afterwards sold her to the plaintiff.

Holland, witness for plaintiff, was with the constable when he went to Mrs. Clark’s to demand the hogs for the plaintiff, and as to what occurred there, at that time, testified substantially as the witness Beiyjamvn P. Henderson. He also saw the hogs at Mrs. Piarle's, after they were killed.

Jaeleson Ciarle, witness for the defendants, testified, that one of the hogs running out was not sold at the executor’s sale; and that his mother Sarah Cla/rle, claimed the sow and pigs which plaintiff had in possession, and asked witness to go and get them for her. She told Johnson Clark’s children to help witness drive them to her house. Johnson Ciarle was not present, and witness never heard him give the children any directions about the matter. Early in the morning, Sarah Ciarle, witness, the children of Johnson Ciarle, and Jonathan Ciarle, went up to the plaintiff’s house, which was about a quarter of a mile from the house of the mother of the witness, to get the said sow and shoats, and found them near the house, running out near the road. The plaintiff forbid their taking them, but Mrs. Clark said they were hers, and told.,witness to drive them home; and she, Jonatha/n, Johnson’s children, and witness, attempted to drive them to Mrs. Clark’s, and did drive the sow and a part of the shoats, but a part of the shoats they did not get that time; but Jonathan, Robert A. Patterson, and Jolmson’s children, returned to the plaintiff’s, and witness, Jonatha/n and Jolmson’s boys, drove the balance of *457them to Mrs. Clark’s, said Kobert A. Patterson, returning with them. Tliey put them all in a pen at Mrs. Clark’s, and witness afterwards killed and dressed them for bis mother, at her direction. Neither John nor Johnson Clark was present when the hogs were killed, nor had any thing to do with the killing of them. Neither of them was present when the hogs were taken from the plaintiff. They were both present, however, when the constable and plaintiff came to Mrs. Clark’s after the hogs.

The counsel of the plaintiffs in error, has not claimed, in his brief, that the court below should have regarded, or granted a new trial tipon the affidavit of the juror, Carson, stating that he agreed to the verdict under a misapprehensien of the charge of the court. It need only be remarked, therefore, on this point, that we are inclined to place this affidavit with the class held to be inadmissible in Pleasants vs. Heard; and, even if allowed, the court below could best judge whether its charge was given in terms likely to mislead the juror, or whether the affidavit was not without just foundation. The charge of the court is not put upon the record, and we have no means of determining whether the .juror could, have mistaken it.

It is urged, by the counsel for the plaintiffs in error, that a new trial should have been granted, because there was no evidence to sustain the verdict, as against the defendant Patterson, and that the damages assessed were excessive.

The proof is clear that the hogs belonged to the plaintiff, that they were driven from his premises to Mrs. Clark’s, and killed.

The defendants, John and Johnson Clark, were not present, it ■seems, when the hogs were driven off, nor when they were killed, but they were at Mrs. Clark’s, when the plaintiff and constable went there for the hogs, and forbid their taking them from the pen. The defendant, Patterson, was the son-in-law of Johnson Clark, whose mother claimed the hogs. He went to the house ■of the plaintiff, it appears, with Jonathan Clark, and Johnson *458Clark’s children; was present when they were chasing a portion of the hogs about the premises, and returned with them to Mrs. Clark’s, where they drove and penned the hogs.

The defendant will be made liable for a trespass, if it is proved that he came in aid of the person who committed it, though he took no further part in it. 3 Phill. Ev. 187.

It cannot be said that there was a total want of evidence to sustain the verdict as against any one of the defendants; and it was the peculiar province of the jury to pass upon the importance to be attached to the circumstances connecting each, and all of the defendants, with the trespass upon the property of the plaintiff, as detailed in evidence, in making up their verdict. Upon these circumstances they found all of the defendants guilty of a common cause; and the judge, who also heard the testimony of the witnesses, refused to set their verdict aside. We shall not, therefore, disturb it. See Drennen vs. Brown, 5 Eng. R. 138; Bowen vs. Cook, ib. 309; Hubbard vs. State, ib. 378; Spratt et al. vs. Vaughan, &c., Ib. 474; State Bank vs. Wooddy et al., ib. 638; Bivens vs. State, 6 Eng. R. 455; Sparks vs. Beaver, ib. 630; Mains vs. State, 13 Ark. R. 285; Funkhouser and wife vs. Pogue, ib. 295; Hendrix vs. Sharp, ib. 306.

Nor are we disposed to set aside the verdict on the grounds of excessive damages.

When a joint trespass is proved, the jury are to estimate the damages against all the defendants, according to the amount which they think the most culpable of the defendants ought to pay. 3 Phill. Ev.

The trespass in this case, was rather a flagrant one. The plaintiff’s premises were invaded, his close broken, entered, his hogs driven off, killed and converted; and on the trial, the defendants proved no color of title to the property. True, the value of the hogs was proven not to exceed $25, but the jury were not confined exclusively to the value of the hogs, in determining the amount of damages to be awarded the plaintiff. They had the right to take into consideration the invasion of the plaintiff’s *459premises, the' •■vexation to his feeling, the inconvenience to him arising from the deprivation of his property, as well .as its value, and then to add something by way of “ smart money,” or exemplary damages.

Under all the circumstances of this case, we cannot conclude, that the verdict for one hundred dollars, was so exorbitant as to indicate corruption, or bad faith on the part of the jury, and shall not therefore, disturb it. See Major vs. Pulliam, 3 Dana 582; Wort vs. Jenkins, 14 John, R. 352; 3 Starkie Ev. 1451. The judgment is affirmed.