#### EDWARD RIPPEY v. W. T. J. MILLER, EX’R.

The rule adopted in criminal cases, that is, that where circumstantial evidence is submitted for their consideration, the facts proved must be such as to preclude every other hypothesis, but the guilt of the accused does not apply in. civil cases.

Where wheat is brought to a machine te be threshed, and while there is burnt up by the wilful act of another, together with the house and machine, the jury may in their verdict give the value of such wheat to the owner of the machine, &c. They may also give interest on the value of the property destroyed, from the time of its being destroyed.

*480An action for willingly destroying a horse, may be joined with a count for trespass, in entering upon the plaintiff 5s tenement; and where there is no formal declaration, such additional count will be understood as made.

ActioN of Trespass q. o. /., tried before his Honor Judge Caldwell, at the Fall Term, 185b, of Cleaveland Superior Court.

This case was before this Court at the August Term, 1850, 11 Ired. Rep. 247. The trespass alleged was, that the defendant’s intestate entered upon the plaintiff’s land in the night time, in July 1844, and set fire to the plaintiff’s machine house, which contained a Wheat Thrasher, Cotton Gin, a quantity of Wheat, Cotton, Straw, and other articles all of which were destroyed by the fire, and also that the defendant’s intestate at the same time entered into the plaintiff’s barn yard upon another part of the same premises, and there killed a horse belonging to the plaintiff, by breaking his skull. A part of the wheat des-. troyed was the property of other persons, brought there by to be threshed for a certain toll. The evidence against the defendant was circumstantial, no one having seen the act perpetrated.

The defendant’s counsel contended—

1st. As this was a case of circumstantial evidence, the jury must be satisfied, beyond a reasonable doubt, of the guilt of the intestate, and unless the facts proved precluded every other hypothesis, except that of his guilt, they must find for the defen dant.

2nd. As this was an action, brought to recover damages for an injury done to real estate, in no event could the jury find the value of the horse killed.

3rd. That the defendant was not liable for the wheat in the plaintiff’s possession, which belonged to other persons, and was brought to plaintiff’s Thresher to be threshed.

4thly. That plaintiff was only entitled to recover the actual damage of his property destroyed by the fire, at the time it was destroyed, without interest.

His Honor charged the jury that the defendant, in this case, was not on his trial for the criminal offence of burning the plain*481tiff’s property, and that the strict rules of eveidenee applicable to the crime of Arson, did not apply to this, which was only an action brought to recover the value of property which plaintiff alleges was destroyed by the defendant’s intestate. And, to entitle the plaintiff to recover, he must satisfy the jury that the defendant’s intestate did the acts complained of, and that the jury must weigh the whole evidence, and say how the matter was.

Upon the other points made up by the defendant’s counsel, the Court instructed the jury that they might find the value of the horse killed, the value of the wheat and straw which was destroyed with the house, as well that brought there to be threshed, as that of his of his own. If the jury desired, they might find interest upon the value of the property destroyed irom the time it was destroyed ; but that the question of interest was a matter wholly for the jury.

Under these instructions, the jury returned a verdict for the plaintiff.

Motion for a venire de novo. Rule discharged. Judgment and appeal.

Bynum and Lander for plaintiff.

Guión, J. Baxter, and Gaither, for defendant.

Nash, C. J.

No declaration has been filed, and in such case, it is the practice of the Court to consider such declaration filed, as meets the facts stated in the case. This rule is adopted to prevent surprise on a plaintiff from the loose manner in which the pleadings are conducted on the circuit. The declarations in this case we consider as having several counts, and one for the killing of the horse. The first objection raised by the defendant, was that as this is a case of circumstantial testimony, the jury must be satisfied, beyond a reasonable doubt, of the guilt of the intestate, and unless the facts proved precluded every other hypothesis except that of his guilt, they must find for the defendant. This is the rule in capital cases, and adopted in fa- *482 vorem vitae, but does not extend to misdemeanors or civil suits. Tbe point was before tbe Court at June Term last, at Raleigb, and tbe principle declared substantially as stated in tbe case by tbe presiding Judge.* Upon no controverted fact, ought a jury to find it established, unless the party alleging it produces proof •to satisfy, their mind that it is so. Tbe object of all evidence is to Satisfy tbe minds upon tbe controverted facts, and when tbe tryers are so satisfied by competent and legal testimony, they ought so to declare, and not until so satisfied. His Honor stated tbe rule upon this subject correctly.

Tbe second exception, as we consider tbe declaration, surely cannot arise. If the declaration contained but one count, and that for tbe trespass to tbe freehold, there might be a doubt whether under tbe allegation of alia enormia, damages could be given by tbe jury, for the killing of tbe Horse; but, as there is a separate count for that injury, and tbe proper action for repressing it is trespass, vi et armis, and as every count is considered in law as a separate declaration, there surely can be no doubt tbe evidence was properly received, nor can there be any serious doubt that the counts can be joined, 1st Ch. PI. 280. There is no error in 'the charge upon this point.

The third exception was properly abandoned by the defendant in the argument here.

The 4th exception cannot be sustained, and the jury, in an action of Trover or Trespass de bonis asportatii, may in their discretion, give interest on the value of the article converted or taken away or destroyed from the time of the conversion or injury as a part of the damages, Devereux v. Burguin, 11 Ire. 490, so as to make the trespasser do full justice, by charging him with the price as on a cash sale.

Judgment affirmed.

*

Neal v. Fespeman, ante 446.