Volume 1 — South Carolina Law Reports

THE prisoner Lewis was charged with horse-stealing, and committed to prison for the offence, on the day previous to the session of the court. The grand jury having found a bill against him, he was brought into court and arraigned, and upon being asked if he was prepared for his trial, he answered in the negative.

<p>THIS was an action for an assault and battery. The cause came on to be tried before a special jury in Charles-Ion, at a special court, under the act of assembly, authorising such courts, before Judges Pendleton and Burke.*</p> <p>On the trial it appeared, that the plaintiff was a,seaman, and had shipped himself as such, on board the ship Britannia, commanded by the defendant. He signed articles in London on a voyage to this place, and from hence to return again to London. During tbe voyage he had conducted himself as an orderly and well disposed mariner. Shortly after the arrival of the ship here, while she was taking in her cargo, the plaintiff and others having laboured hard during the day in stowing away rice, went in the afternoon to the mate, and asked for grog. The mate answered, that he had none at his disposal, and referred them to* the captain; upon which the defendant and one Eastbury, went down into the cabin to make their application. Captain Ball, the commander of the ship, being busily engaged in writing, on perceiving them, got into a violent passion, and took up an iron poker then in the fire-grate, and beat them both severely; so much so, that the plaintiff, Flemmings was disabled for a considerable time afterwards. It appeared also in evidence, .that Eastbury, the other mariner, was in liquor, and behaved rather rudely, but Flemming was sober, and had behaved himself with civility.</p> <p>urged that subordination on board of a vessel, was essentially necessary; and unless seamen were kept in due and proper order, commerce could never be advantageously carried on. The safety of the ship, the lives of the passengers, and the protection of all on board, equally required it. That mariners were naturally a rough and turbulent set of men, and required curbing and restraint more than any other class in the community. It was for this reason that the marine laws have, time out of mind, permitted masters of vessels to correct unruly and disorderly sailors, and oblige them to da their duty. ‘ That the common law of the land liad adopted the marine laws, as part of the law of nations ; so that it was incorporated into the principles of our constitution: besides, the cabin of a ship is the sanctuary of the captain ; as much so, as a house is that of its owner:' and no person has a right to enter it without his permission, no more than a. stranger has, to enter into another man’s dwelling without leave of access being first given, (which probably gave rise to the common custom of knocking at the door of a dwelling-house, before entry.) If the plaintiff had wanted any thing from the captain, he ought, in decency, to have sent in a message by the steward of the ship, and not have rudely entered it himself. To support the power and authority of masters on board of their vessels, the counsel relied on Vin. Mr. tit. Mariners, 241. 12 Mocl. 434. 3 Bac. 566,'7.</p> <p>conceded that the general doctrine contended for by the defendant was good, and that a master on board of his ship may, if a sailor behaves rudely, or refuses to do his duty, give him moderate correction, which might well be compared to master and servant, tutor and scholar, and all other persons in superior and subordinate stations ; but this general power will not justify any cruelty or outrageous beating. And if a master of a ship, or other person, abuse this power and authority, then he is no longer justifiable, but becomes an aggressor, and is answerable in damages to the person injured. In the present case, however, it did not appear that the plaintiff had misbehaved, or refused or neglected to do his duty. He had been working hard during the day, and asked the mate civilly for grog, who referred him and others to the captain, in the cabin. The only offence, therefore, (if it can be called one,) was his going into the cabin, to speak to the captain, and then he behaved well, (though Eastbury, who was with him, did not.) If the captain had ordered him out, and he had refused ; or if he had been insolent, it might have justified captain Ball, in making use of moderate force, to compel him to leave it. But, on the contrary, it appears that he made use of a very improper weapon, and beat the plaintiff most unmercifully. That seamen were a highly useful set of men, well worthy of the protection of the laws of their country; and as, on the one hand, they were much in the power of their commander, so, on the other hand, thej' were well entitled to every possible security against ill usage.</p>

SPECIAL action on the case. The defendant, who was a physician, and others, living at or near Jacksonborough, one evening, after drinking freely, got the plaintiff, Genay, w^° was a foreigner, and then in company, intoxicated; and it was so contrived, that the defendant and plaintiff ¶ 1 should quarrel, and in order to adjust this quarrel, pistols were introduced, and, by the connivance of those who act-e(^ as seconds in this sham dispute, powder was fired off at each other;…

<p>THIS was an action of trover, tried at Charleston, in January term, 1784, before a full bench.* A privateer, it seems, was fitted out in North-Car olina during the late revolutionary war, and in the course of a cruise against the enemy, tbe crew landed on Edisto-Island, while it was under the protection and jurisdiction of the English, took away a number of negroes, the property of Jenkins, the plaintiff in this action, and earned them to Washington, in North-Car olina, where they were condemned in a court of admiralty there, and sold as tbe property of the enemies of the United States, or their adherents.</p> <p>For the plaintiff, it was contended, that this taking was un-authorised by the rules of war. The commission given to the privateers, being to cruise and capture the property of their enemies on the high and open seas, does not make any capture of property on land, legal. The plaintiff was an Am erican citizen, whose property was not liable to capture, or condemnation, although he had been compelled by conquest, to submit to the jurisdiction of the enemy, and to live under their protection at the time when these negroes were taken off. And that if the capture was unlawful, not authorised by the rules of war, or laws of nations, no condemnation in a court of admiralty could legalize such seizure.</p> <p>For the defendant it was urged, that captures made on land, by the seamen from on board of a ship or vessel of war, by the aid of their boats, had always been deemed lawful seizures from an enemy; as much so, as if taken on the high seas. The case of the captures made by Lord Anson on the coast of the South Seas, was relied on 5 where it appeared that the seamen and mariners from on board of the ships, landed in their boats, and sacked the- city of §>uito, some miles from the sea-coast, and took awaytrea-sure to an immense amount. This property was afterwards reclaimed in England by the Spanish court, who complained of this landing and plundering a city, as an infraction of the law of nations ; nevertheless, the whole was deemed a lawful prize. The case of Admiral Vernon, at Porto Bello and Carthagena, was also mentioned as in point; also, the case of Admiral Pococke at the Savannah, &c. It was further contended, that persons living with, and under the jurisdiction of an enemy, taking a commission and aiding and assisting them, were considered as associates in war ; and liable to be treated as such. Vattel, p. 27. 33. 95. Bur* lemaqui, 279. And that although part of the country had been reduced by the enemy, yet those who were firm and attached to its interests, could have joined their cofuntry-men in arms, if they had thought proper, and assisted in driving oif the invaders ; or have remained quiet at home, without taking up arms for them. With respect to the negroes taken, it was the duty of the plaintiff to have interposed his claim as an American citizen, in the court of admiralty in North-Car olina, which was a court of competent jurisdiction. And if it had been found good, it would have been sustained. His not doing it, was a tacit admission of the legality of the capture. That at all events, the sentence of the court of admiralty in North-Carolina, would operate as a bar to this action. The only constitutional review of the case, which could have been had, would have been by appeal. And it was the plaintiff’s own fault, that he had put it out of his power to appeal. By the act of confederation,- the judicial proceedings of one state, had due faith given to them in others; and the acts and proceedings of one court of competent jurisdiction, were-not to be questioned in any other, where no appeal had been made. This is the case even between nations not confederated, and in cases too manifestly unjust. 2 Ld. Raym. 935, 93S. Carth. 31. 1 Atk. 49. If this, then, is part of the law of nations between foreigners, not connected with each other, the reasoning will be much stronger between friend-Ty associated states, bound by a solemn agreement, to give faith and credit to the proceedings in the courts of justice of each other.</p>

<p>TRESPASS for entering plaintiff’s plantation with otners, and taking out of his dwelling and out-houses, household furniture, horses, and other articles, to the value of 1,000/. sterling. It appeared in evidence, that the defendants were present with a party of men, who had joined r 1 j ’ j the British, in September, 1780, when the plaintifF was plundered of household furniture to a considerable amount, , r- , . * ^ , , , . , ,,. , ‘ several or his horses taken away, and his dwelling-house burnt.</p> <p>For the defendant M’-Neily, several witnesses were called, particularly Alexander Scott, William Floyd and David Fee, who all testified that he was made a prisoner himself in his own house, compelled to deliver up his arms, and from thence was carried a prisoner to the plaintiff’s plantation, and there remained under a guard during the whole time the house and plantation were plundered. That he did not interfere or receive any part of the property so plundered oirtaken away ; on the contrary, that he was carried a prisoner from captain White’s, the plaintiff’s plantation, to Britton’s Ferry, fifteen miles distance, and from thence to major James’s plantation, ten miles further, and there discharged, and permitted to go home, after being three days a prisoner with the party.</p> <p>It was, however, proved, that in November following, he joined the British, and went into the garrison at George« Town, and did duty as a militia man in their service. From this circumstance principally, the jury were induced to doubt the principles of this defendant while a prisoner at the plaintiff’s plantation, and considered him as an aider, and abettor of their proceedings there. Graham and Edy were of the party who plundered the plaintiif, and therefore they gave plaintiff a</p> <p>Verdict for 400/. against M1-Nelly ; 200/. against Graham ; and 100/. against Edy.</p> <p>As this was the first case of trespass after the war, in which a jury severed and apportioned damages, it was at first doubted as a deviation from the old common law rule of joint trespassers, who being all equally guilty in the eye of the law, it was supposed jury could not sever. Rut after-wards, upon mature consideration, the point was given up, as it would be the means of preventing a multiplicity of suits, and at the same time put it in the power of the jury, to apportion at once the quantum of damages, agreeable to the degree of guilt of each trespasser. And it has since been relied on as a precedent.</p>

<p>Where plaintiff and defendant had a previous quarrel, the plaintiff’s going to defendant’s house after-wards, in the. night, with au armed party, and proposing a settlement of the difference, (though no actual threats were made use of, and a note given in consequence of this proposal, with security) yet this shall constitute a duress^ hotli as to the principal and his security.</p>

<p>TRESPASS for entering the deceased Whitaker's plantation, and taking away sundry negroes, horses, cattle, hogs, corn, &c.</p> <p>The defendant, it seems, was one of those deluded citizens of America, who joined the British army in the late war, and accepted a commission in their militia service. In the year 1780, he went, or was sent with a party of men under his command, to the house of the deceased Whitaker, and took away the above articles to a large amount, and carried them off to the British garrison then at Camden. On the trial it was admitted, that he was only a subordinate officer, and acted by the orders of his superiors in command : and further, that no part of the property taken away, was appropriated to his private emolument, but carried to the use of the British army; and, therefore, as he was compelled to do what he did, it was said, it would be unjust to make him responsible. But</p>

<p>Where ¿la-taages accrue by non-per-contract6 for* house"witMn a may, under our discount law, give dence against mand'^' for6" nnd^sendces'5 performed in</p> <p>See the act of loving'mutu-set-off1in'cli's6-each other "St</p>

ACTION of covenant brought for a breach of warranty, in a common release for a lot of land in Charleston. The case was this : the defendant’s testator, Parsons, in his lifetime, sold to Alexander Burn, the father of the plaintiff’s wife, a lot of land in Charleston, which he had purchased at a sheriff’s sale. Burn soon after died ; and the lot came to Mrs. Liber, his only child, by descent.

This was an action of trover, brought to recover a negro wench, Nancy. This cause was tried before Justice J PENDLETON, at Camden. During the war, it seems, some of Dr. Turnbull’s negroes ran off, or were taken by a plundering party, from a settlement of his, called Smyrnea, in East-Florida, and carried into Georgia.

• . , ... UPON a motion to set aside a verdict, and to grant a new trial* It appeared that the plaintiff Mounier, had sold goods to the defendant, to the amount of about 28/. sterling; for which the defendant gave in payment to ~ _ 0 1 J him, Francis GuerirCs note to that amount, as and for a cash note, not subject to the 'instalment lata.

EJECTMENT to try title to 640 acres of land. The plaintiff relied on a grant for the premises in question, under the great seal of the state, in 1775. The defendant claimed under a clause in the will of his grandfather, one Murphy, who devised the lands to him.

<p>A MOTION was made to postpone the trial in this cause. The action was trover for negroes, and was regularly at issue the term before the last ; but then put off, at the instance of the defendant, on account of the absence of the witnesses. At the last term, it was again put off, for the same reason, but under a peremptory rule for trials at this court.</p> <p>Pinckney again moved the court for further time: and suggested that some unforeseen accidents had prevented the defendant’s witnesses from attending from North-Carolina, where the process of this court could not run ; and observed, that it would be a ruinous business for the defendant, if he was now pressed on to trial; as well as to his special bail, Mitchell, if he should be compelled to pay the money. It was true, he said, that the cause had been delayed for two courts, and was now under a peremptory rule for trial at a third court; but it ought not to preclude the defendant from the'indulgence of another court, if the circumstances of the case would warrant it. He trusted they would: and produced the affidavit of Mitchell, stating, that the de--fendant and all his witnesses, lived in North-Car olina, at a considerable distance ; that he had written to them all, to be here at this court, and he really expected them; but high freshes in the rivers, and heavy rains, or other unforeseen accidents, might have prevented them from attending, and that no affected delay was really intended. That a peremptory rule ought to be so construed, as to mean, provided some extraordinary accident or occurrence did not prevent it. That it was never intended that such a rule should be construed to be peremptory, without limitation ox exception. Loft. 262. 786. was quoted to shew that peremptory shall not have effect, -where, without the fault of a party, a witness cannot attend. That the postponing a cause, or bringing it on, depends upon the rules of practice, made by the court, for the regularity of proceedings, and advancement of justice ; and that those rules may be dispensed with, or relaxed by the court, upon sufficient reasons. 4 Burr. 1989 — 98. 1 Black. Rep. 514. General rules, say Lord Mansfield, imply an exception, in cases where the general rule is used for oppression, or where the hardship of the case is such, that it would be manifestly unjust to include it within the general rule. 4 Burr. 1989. The court ought never to lay down a general rule so strictly, as that it may put unreasonable difficulties upon suitors, and render them liable to inconveniences, worse than those which the rule was intended to prevent. 4 Burr. 1996. He also quoted general Gansel's case as in point.</p> <p>opposed the motion, and said, that it was incumbent on the special bail, to have sent expressly for the defendant and his witnesses, and not to have depended upon contingencies. There was no parity between this and general GansePs case. There they had seas to cross, and winds and storms to encounter : here, only about 200 miles to ride. If Mitchell should die in the mean time, the plaintiff would be deprived of the benefit of special bail. The defendant may not be here again to give special bail. Were excuses of this nature to be received, and admitted by the court as sufficient, no plaintiff could calculate, with any degree of certainty, when his cause would come on; and although it might be improper to press on a cause, unreasonably, where the defendant could not be ready, or where he was prevented by unavoidable accidents, from attending; yet, in the present case, none such were stated in the affidavit, to justify a further postponement of the trial.</p> <p>Pinckney then proposed, that Mitchell should bind his heirs and representatives, in case of his death, to pay the debt, if a .verdict should go against the defendant, so as to make the plaintiff safe at all events ; as a further inducement for the court to postpone the trial.</p>

ASSUMPSIT for board and lodging, &c. The original entry in the plaintiff’s books was called for; when it appeared that no entry of the charge or account was made at the time the defendant lodged in the house of the plaintiff ; excepting a post entry, some considerable time after-wards, not written in the leaves of the book where other charges were usually made, but on a leaf before the first page of the book.

<p>On a special agreement in nature of a covenant to deliver a note of hand, jury may assess what damages they think reasonable, though less than the a» mount of the note agreed to be deliver» ed up.</p>

<p>THIS was an action of ejectment, brought to recover 350 acres of land on Pedee river. The land was originally grauted to one Greenwood, who conveyed to one Rogers, who conveyed to Gordon, the father of the plaintiff’s lessor; under whom the lessee of the plaintiff now claims.</p> <p>The deed to Gordon is dated in 1766, when he took possession of the land. He kept possession until 1776 or 1777, when he was forcibly turned off by a person claiming under the defendant’s testator, Parsons. It appeared, from the 7 1 rr 7 deeds produced at the trial, that Rogers, several years after he had conveyed to Gordon, made another conveyance of the same land to Parsons, in Charleston, which was duly recorded in the secretary’s office. It also appeared, that Gordon, who was an illiterate man, never recorded his deed of conveyance, but locked it up in his desk, and kept it securely by him till he died ; when his son, to whom the land came by descent, found it amongst his papers, at the time of taking an inventory of his effects.</p> <p>The defendant relied on the act of assembly, passed in 1698, to prevent deceits by double mortgages and conveyances of land, See. which declares, “ that the sale, con- “ veyance, or mortgage of lands and tenements, (except “ original grants,) which shall be first registered in the regis- “ ter’s office in, Charleston, shall be taken, deemed, adjudg- “ ed and allowed of, and held to be the first sale, convey-a ance anc[ mortgage, and to be good, firm, substantial, and “ lawful, in all courts of judicature within Soutli-Carolina, “any former or. other conveyance, sale, or mortgage for “ the same land, notwithstanding.” This clause of the act was conclusive in favour of the plaintiff’s testator, and gave him an indisputable title against all the world, as his conveyance was first upon record.</p> <p>On the other hand, it was urged for the plaintiff, that although old Gordon (who was certainly ignorant of the operation of the act quoted) had incautiously kept this deed of conveyance, without having had it first recorded ; yet he could relinquish his claim to the land under the deed from Rogers, and rely upon his statutory right of possession ; which gave him a right paramount to that of Parsons, although his deed was frst recorded ; and offered to produce evidence of an uninterrupted possession in old Gordon, for more than 10 years after the date of the conveyance from Rogers, until he was forcibly turned off by Parsons’s agent. But to this evidence</p> <p>The defendant’s counsel objected, because the lessor of the plaintiff was out of possession. And they insisted, that this kind of evidence could only be given in favour of persons in actual possession of the premises in question.</p> <p>In reply to this objection, it was said, that whatever weight it might have on ordinary occasions, where a possession was voluntarily relinquished by a party, who had gained a right by it; still, in a case like this, the defendant ought not to be suffered to take advantage of it; because, here was a forcible dispossession and intrusion, unwarranted and unsupported by law, against old Gordon’s will and consent. It would, therefore, be extremely improper, to-suffer a man to cut and carve out his own mode or remedy of gaining possession of land as he pleased, and then to permit him to take advantage of his own wrong, by justifying it. That if Parsons, in his life-time, had the title in him, he 7 ... I ought to have commenced his action; in which case, he would have found old Gordon in possession, or some person claiming under him ; and then, there could be no doubt, but that he might have given evidence of his statutory right by possession. That, therefore, under these circumstances, his heirs at law ought to be considered as in the place of his father, who should be considered as in possession, and to enjoy every light under, and by virtue of it.</p>

<p>book of “'erf tries of a merchant or shopkeeper, is to go to a the piamtiff’s siveanng to •where one of the copart-ners, -«-ho made the entries, is out the*other co! swear'to™iS in^he"'books'</p> <p>These entries are pri-ma facie evidence of a delivery.</p>

THE plaintiff was convicted by the court of wardens - ...... .. .. tor selling spirituous liquors without license, contrary to the. act °f assembly ; fined 50/. and committed to gaol for non-Payment* He was afterwards brought up before the court uPon a habeas corpus, and a motion was made for his discharge, upon the ground that the court of wardens had not . ... 1 . iurisdiction of this offence, and consequently no power to J r convict and imprison him.

UPON a motion for a new trial. It appeared that the plaintiff had recovered a verdict in this case, against defendant, for 230/. sterling, for a breach of contract entered into in the year 1780, for delivery of flour and tobacco.

TROVER for five negroes, viz. Peter, his wife and three children. The plaintiff, Robert Porter, was an officer in general Sumter’s brigade, in 1780 and 1781; and the defendant, a planter on Btack. river, who had joined the British while they were at Camden, and performed duty as a soldier in their militia.

<p>THIS was a special action on the case, for the value of cattle, taken away from the plantation of the plaintiffs’ tes» tator, during the late war, and driven to the British garrison at Camden. In the declaration, was a count for money had and received.</p> <p>The defendant demurred to the action, and for cause of demurrer stated, that the suit was brought for a cause of action, which could not by law survive to the plaintiff, being in the nature of a trespass or toft. On joinder in demurrer, the question came on to be argued, whether this action could be maintained or not.</p> <p>contended generally, that this was a kind of injury, which, from its nature, was a trespass. It is a species of tort, which arises ex delicto ; one committed by force and against the peace, See. Therefore, the maxim actio personalis moritur cum persona, perfectly applies to it. That at common law, an executor could not bring trespass for a damage done to testator ; as for instance, the carrying away his goods and chattels in his life-time. 2 Bac. 439. And- therefore it was an injury which died with the party who received it.</p> <p>laid it down as a general position, which he said was well understood and admitted, that an executor stood hi the place of his testator, and represented him in all his personal contracts, and therefore might regularly maintain any action in his right, which he himself might do. were he alive. He was aware, he said, that this might be confined to contracts, in contradistinction to torts and trespasses. But the statute of 4th Ediv. III. ch. 7.* (made of force in this state) expressly enacts, “ That executors shall “ have an action against trespassers and wrong-doers, in “ taking away the property of testator in his life-time, to “ recover damages in like manner, as they, whose executors “ they be, should have had, if they were alive.” This statute alters the ancient common law, and under a proper construction of it, not only trespass and trover, but e*> eiy other action for recovery of personal property will lie ; for whenever any injury is done to the personal estate of the deceased, in which he is represented by his executors or administrators, in that case they may maintain an action on the case, &c. within the equity of the statute. De bonis a-.por-tatis in vita testatoris, 4-th Ediv. III. which gives an action of trespass for a wrong done to a testator in his lifetime. Cro. Eliz. 377. 1 Vent. 30. 4 Mod. 404. 1 Lord Raym. 40, 41. 1 Salk. 314. The maxim, “ actio person~ “ alls moritur cumpersona,” extends to wrongs and injuries of a different nature from injuries done to property; such as, assaults, batteries, slander, false imprisonment, escape against the sheriff, or the like, &c. There appears, however, a material distinction between actions for and against executors : for, in many cases, an executor within the equity of the statute of 4th Ediv. III. may maintain an action for an injury done to a testator ; whereas if it had been done by a testator, an action could not be supported against his executor, as coming within the rule of actio personalis, &c. For instance, if a sheriff suffer one to escape on mesne process, the executor of the plaintiff may maintain suit against him; because, the body of the prisoner, being a pledge for the debt, the executor might be otherwise without remedy, which is an injury to the goods of testator, and not to his person. But, in case of the death of the sheriff, the party could have no remedy against his executor, as it is personal neglect or injury which dies with him. Where-ever the cause of action is for money due, or contract to be performed, gain or acquisition of the testator, &c. the action survives ; but where it is a tort, or arises ex delicto, supposed to be by force, and against the peace, &c. there the action dies, as in trespasses, assault, batteries, &c. before mentioned. Other actions, however, may be substituted in their room, upon the very same cause, which do survive against executors. No action will lie against an executor, where the declaration must be qaare vi et armis et contrapa-cem, or where the plea must be not guilty, as in trover; for upon the face of the record, the cause appears to arise ex delicto, and all private injuries, as well as public wrongs, are buried with him. But in all these cases, where trespass, trover, or the like, would lie against a testator, another action will lie against his executor, by waiving the trespass or tort, and bringing the action of assumpsit for money had and received. For instance, an action against a common carrier, is for a tort or supposed crime. The plea is not guilty; therefore, it would not lie against an executor. But as-sumpsit will lie notwithstanding, for the value of the goods lost. So, if a man take a horse from another, and bring him. back again, trespass cannot lie against his executor, though it would against the testator, but an action for the use and hire will lie against the executor. Here, then, is the grand fundamental distinction, says Lord Jkansfeld. If it is a sort of injury, by which the offender acquires no gain to himself, at the expense of the sufferer, as beating, imprisonment, &c. there the person injured himself has only an action for a reparation in damages ; but where, beside the crime, property is acquired, which benefits the testator, an action for the value of the property, shall survive against his executor. As if a man cut down trees, his executor shall not be liable for the cutting dawn, yet he is chargeable for the value of them. So far, therefore, as the tort goes, executors shall not be chargeable ; but wherever the tortious act belief is a testator or offender, his assets ought to answer. Cowp. 377. In the present case, the action is not for the trespass or of-fence of driving the cattle off, but for the value of them ; so that at common law, as the tort is waived, the action would lie as well for, as against executors. But the statute of Edw. III. expressly gives it to executors, though it is silent as to the action which survives against them ; and at common law this action would lie against executors for the va-i c i > iue ot the property*</p>

<p>, A tender made of paper currency in iiaf/gone6 out (thougi^tiie act remained um-epealed making it a goodf ’under situationlmiof thatperiod at</p>

<p>THIS was an action of trover for a negro woman slave, The claim of the plaintiff was Venus, and her six children. founded on a gift from his grandfather, made to him when was a k°y, upwards of eighteen years ago.</p> <p>It appeared, from the evidence of one Leslie, at the trial, 1 r 7 7 1 that he was employed by Barnes, the grandfather of Steel, as a ploughman, when the gift took place. He was called one day out of the field, where he was at labour, by Barnes, to be a witness to the gift. When he came to the house, ^arnes told him, that he had given the wench Venus (who was then a girl) to his grandson John Steel: upon which he called the girl, and put her hand into that of his grandson, saying to Leslie, “ Bear witness to this gift: I give this girl u to my grandson, John Steel.” The plaintiff and the negro girl lived with Barnes till the day of his death: after which, this girl was appraised as part of Barnes's property, and sold with others at public sale. Barnes died intestate, and no person appeared on the part of the boy, to forbid the appraisement and sale. It was admitted, that the wench after-wards came fairly into the possession of M'Knight, the defendant 5 so that</p> <p>The only question was, whether, under the foregoing circumstances, the plaintiff was entitled to a recovery against a bona jide purchaser, after such a lapse of time ?</p>

THIS cause came on to be tried before Waties and Drayton, Justices, and a special jury of merchants.

UPON a motion and application for a writ of dower, at Beaufort, in the April session of 1789, the following special case was reserved to be argued at bar in Charleston. Some time previous to the year 1/82, Richard Pendarvis 1 intermarried with Mrs. Mongin, the present plaintiff’s wife ; and they lived and cohabited together till Pendant* died.

THIS was another case from Beaufort district. The action was trover for sundry slaves, and the right of property turned upon the construction of a will, and the limitation over of personal chattels. Held: that the limitation over was void, gnd cannot be confined to the defendant’s dying with-. out issue living at the time of her death, and therefore dismissed the plaintiff’s bill.

THIS was a feigned action brought against the trustees of the defendant, to try whether certain property, which had been assigned to them by him, for the benefit of all his creditors, should be liable to the plaintiff’s execution or not; he having obtained a judgment'against Waring. The facts were these. Previous to the late war, the defendant was in affluent circumstances. He had contracted considerable debts, but not out of proportion to his property.

<p>that the value *t the time of covery,1 °shaU he the measure ot damages; yet, un-euliar hard-mayS’ lessen to the°cir-an™ justice of the case, Although the tiiIa ni In tv ic</p>

<p>AN information was filed in this case, by the attorney-general, on behalf of the state, against seven negro slaves, ° ° ° seized by the plaintiff, a revenue officer, on the ground that they had become forfeited, being imported contrary to the directions of the act of the legislature, in that case made and provided.</p> <p>The claim interposed by the defendants, was on behalf 1 J of the two infant children of Mrs. MiClaws, one of four and the other of eight years of age, to whom the negroes belonged, and for whom she (Mrs. Claws) was a trustee. From the examination of sundry witnesses, it appeared, that the claimants had been, for some time previous to the seizure, settlers at the British settlement on the Bay of Honduras ; but in consequence of a great scarcity of provisions, which had nearly produced a famine in that place shortly before their arrival here, they had been induced to leave the settlement, and come to Carolina with a view of actually settling. It further appeared, that previous to their sailing from the bay, (about the latter end. of August or beginning of September, 1788,) they had taken much pains to inform themselves whether there was any law of force in this country which prohibited them from taking along with them, the negroes belonging to the children, and were informed, that provided they went as actual settlers, there was no law which would operate against them ; but if ne-groes were taken for sale, they would become forfeited. That under these assurances, they embarked.</p> <p>On the part of the prosecution, it was contended, that whatever might have been the assurances or impressions of the claimants, at the period these negroes were removed into this state, they became forfeited to all intents and purposes, by virtue of the 16th clause of the instalment act passed the 4th of November, 1788 ; which is in the following words: “That no negro or other slave shah be im- “ ported or brought into this state, either by land or water, “ on orbefox-e thefhstday of January, A. D. 1793, under “ the penalty of forfeiting every such slave or slaves, to any “ person who will sue or inform for the same ; and under “ the further penalty of paying 100/. to the use of the state, “ for every such negro or slave so imported or brought in. “ Provided, that nothing in this pi-ohibition contained, shall “ extend to such slaves, as are now the pi-operty of citizens “ of the United Stales, and at the time of passing this act S£ shall be within the limits of the United StatesB The only exception in this clause, it was said, was with regard to negroes, the property of the citizens of the union, and within the limits of the United States, on the day of the ratifica-iion of the act. Thai the negroes in question did not come under the description of those contemplated by the proviso in the -danse of the above act. They were not within the United States on the day the act passed 5 nor were they the property of the citizens thereof, but the property of foreigners, and imported into the state, since the law was enacted, contrary to the intent and meaning of the same. That it was the policy of the law to shut the door effectually against the importation of slaves, under any pretext whatever, by foreigners, or from foreign countries. And it was so framed,, that no other construction could be given it.</p> <p>On behalf of the claimants, it was urged by their counsel, in reply, that it would be one of the hardest cases ever decided in a court of justice, were the negroes in question taken from the children to whom they belonged, with the additional forfeiture of seven hundred pounds sterling, besides the loss of property. -They called the attention of the court and jury to the former act of assembly, prohibiting the importation of negroes, passed on the 28th of March., if87. The ninth clause of this act, they observed, prohibited the importation of slaves, under the pain of forfeiture only5 but there was an express proviso in it, that the penalty of the act should not extend to the negroes of transient persons or travellers, passing through the state j nor to the slaves of persons coming to settle and reside xvithin the stale, who should not sell them within one year after their arrival within it. That the act of If87 remained in full f.-rce till the act of the 4th of November, 1788, was ratified. It was, therefore, under the sanction of the proviso in the former act, that the claimants left the Bay of Honduras, with a view of residing in. this state. They left the settlement on the bay about the latter end of August, or beginning of September, 1788', and never arrived in the port of Charleston till within a few days after the 4th cf November following. It was, therefore, impossible for them to have known of this latter act, as they were, on the day it passed, on the high seas, on a lawful voyage, and with a lav,-ful intent, that of becoming citizens and settlers in South-Carofinu, under the authority of a law which they had been informed of before they embarked. To deprive them, therefore, of their property under these circumstances, and subject them to so heavy a penalty in addition to it, would be such an act of injustice as the legislature never could have intended. It would be contrary to common right to give the act such a construction. It would be no less than holding out a boon to decoy with one hand, in order to strike a fatal blow with the other. The act of 1787, held out allurements to persons to come and .settle in our country, and bring their ne-groes with them. The act of 1788, if the rigid construction was given it, which is contended for, without allowing Sufficient notice for persons to be informed cf it, would be calculated to ruin the unsuspecting stranger who had reposed confidence in our government, and promised himself protection under its act of 1787. That therefore the intention of the legislature must have been to exempt those negroes from forfeiture, who were upon the way, or on the point of arriving in the state, under the sanction of the former law, when the latter act passed, though not expressed in the words of the law itself, otherwise it would be chargeable with manifest injustice, which is not to be supposed from a body of sage legislators. Nor could they ever have intended the penalty for travellers passing through the state, or persons in distress, as were the present claimants, persons retiring from a place threatened with famine. Thai at all events the act was obscurely penned, and not guarded sufficiently, to prevent injustice, if the letter was to govern the construction. ^It was, therefore, the duty of the court, in such case, to square its decision with the rules of common right and justice. For there were certain fixed and established rules, founded on the reason and fitness of things, which were paramount to all statutes ; and if laws are made against those principles, they are null and void. For instance, statutes made against common right and reason., are void. J 8 Rep. 118. So statutes made against natural equity are void ; and so also are statutes made against Magna Charta. Ibid. 118.</p> <p>They further contended, that the judges were bound to give such a construction to acts, as would comport with the intention of the law makers : and that this intention was to be collected, sometimes from the cause, or necessity oí mak-iug the act, and sometimes from foreign circumstances. When this can be discovered, it ought to be followed wiJi reason and discretion ; although contrary to die letter of the act. Bac. 648. That they were also bound to cons.-rue statutes, according to equity. Ibid. 649. They compared this case to the statute of ELzabeih* in Eng and, which makes it felony to export sheep out Of the kingdom. In this act, there is no exception as to a ship’s live stock, proceeding on a voyage to foreign countries; yet the judges of Weslmmster-Hall, in the construction of this act, never considered the enacting clause as extending to masters of ships or vessels, carrying away sheep with them for that purpose. And commanders of ships, have uniformly car-ne d out of the kingdom, sheep with them from the day's of queen Elizabeth to the present day. It was said, that if the letter of the statute of Elizabeth had been attended to, and not the spirit and intention of it, it would have been felony. But the judges gave an equitable construction to it, by saying that the parliament only intended to prevent the exportation of sheep to foreign countries for sale ; and not to deprive mariners on long voyages of the benefit of fresh provisions. So in the present case, the judges ought to give as equitable a construction to this clause of the act of 1787, by saying that it never was the intention of the legislature of this state, to direct a forfeiture of negroes brought into the country under the sanction of a former act, before it was possible for the party to be apprized of the subsequent one. Such a construction would be consistent with the principles laid down in the authorities cited; while a contrary one would be rendering the law subservient to the purposes of palpable injustice and oppression. The policy or necessity of passing this law, was doubtless a wise one, as ^ was intended to prevent the importation of slaves for-sale ; but foreign circumstances loudly called for an excep- ,. , , J 1 tion in favour of the claimants, who could not possibly be Supposed to be guilty of any wilful breach of the law in question ; and appealing to the justice of the court, under those circumstances, it was urged, their good sense and discretion ought certainly to induce them to give a construction favourable to their claim.</p>

<p>SPECIAL action on the case against the defendant, as a common carrier. The defendant had been employed by the plaintiffs to bring round to Charleston, from Augusta, in Georgia, a quantity of tobacco, which had been shipped on board of his boat employed in that trade. On the passage from Savannah, the boatmen anchored near the outside of an island on the coast, called Pinckney’s island, where, owing to the want of a good anchor, and a tarpaulin, she drifted on shore and filled with water. In consequence of it, more than one half of the cargo was damaged or lost.</p> <p>On the trial it was proved for the plaintiff, that the tobacco was put on board the boat in good order ; and that at Savannah, the defendant or his agents, were cautioned against going along the coast, without a heavier- and better anchor, and a good tarpaulin to keep off the spray of the sea. That when the boat came to anchor off Pinckney’s island, and the tide turned against her, it was found that the anchor was much too light to hold so heavy a boat. Shortly after she drifted on shore, and having no tarpaulin to cover her hatchway, she soon filled with water. It further appeared in evidence, that if the boat had been provided with a proper anchor, she would have rode in safety till the tide turned ; or, if she had had a proper pilot on board, the boat might have come within the islands, along the inner passage ; where she would have been perfectly safe, with the anchor she had.</p> <p>The defendant attempted to prove, that the boat was driven on shore by tempestuous weather, hut on the cross examination of the witnesses, it appeared that the wind was no more than a fresh sea-breeze, and such as was common in .these latitudes at that season of the year.</p> <p>The defendant's counsel, in this case, relied principally upon the circumstance of the boisterous weather, which they contended would excuse a common carrier. 1 Str. 128. That the boat was as well found as the boats in the same trade usually were. That she was manned with skib ful boatmen, and every thing was done by the defendant which was incumbent on him to do for the preservation and safe carriage of the tobacco.</p> <p>For pie plaintiffs, in reply, it was urged, that whoever carries goods for hire or for freight, is considered in law as a common carrier. (1 Bac. 243. Bull. N. P. 70.) As masters and owners of ships, lightermen, hoymen, boatmen, stage-coachmen, &c. Therefore, on account of the hire and freight they are chargeable for all faults arising from the want of skill, care or diligence, to the party injured. 3 Black. 103, 4. Nay, so strict is the law against common carriers, that if a ship, boat, or vessel be robbed at night, the master or owner shall be liable. 1 Bac. 245. It is a rule, says Blackstone, that every common carrier, engages by law, to be answerable for goods he carries, at all events. 3 Black. Com. 163, 4. Nothing shall excuse them, but 1st. the act of God, or 2d. enemies. Bull. N. P. 70, 1, 2. Lord Ray hi. 909 — 918. As to the latter, none were pretended here, and as to the former, it appeared from the evidence, that the breeze was not more than every man of common foresight could have guarded against; or, by having a proper pilot on board, the boat might have been conducted in safety without being exposed to the sea. Then there was certainly some want of skill in not conducting the boat through the proper channel, or a want of due care and diligence, in not providing the boat with a proper anchor and tarpaulin, either of which made a defendant liable.</p>

<p>SHORTLY after the preceding cause was determined, Hammond paid off the judgment, and brought this action against the defendants, for the freight of the tobacco.</p> <p>For the plaintiff, it was urged, that as the defendants in their action against Hammond, had been satisfied for die damages the tobacco had sustained, it was tantamount to a safe delivery ; and there could be no question but what he would be entitled to his freight. It was a well known rule</p> <p>of lav/, that where any part of a cargo is delivered, freight is due for such part, and if an underwriter paid loss on a policy of insurance, he always kept the premium. From whence it was inferred, that as part of the cargo was de» livered sound, and the rest paid for, which was equal to the delivery, freight for the whole was due, and ought to be paid.</p> <p>In reply, it was said by the defendants’ counsel, that the jury in calculating their damages in the former action, had not given more than about one half of the value of the tobacco lost; which rendered it highly presumable that they had taken the freight into consideration, and deducted the •amount from the damages the defendants suffered. At airy rate, the loss in the former case was owing to the plaintiff’s own negligence, and to recover freight on that part which he negligently lost, would be suffering him to take advantage of his own wrong.</p>

THIS was an action of replevin, which came on upon a demurrer. The facts set forth in the pleadings, were, that Jac°b Cohen was a licensed vendue-master, and had rented a store of the defendants, which he used as a vendue store. The plaintiff had sent to Cohen a quantity of goods, wares and merchandise. Before the sale, Cohen was taken on a capias ad satisfaciendum, and arranged his affairs for taking the benefit of the act for insolvent debtors.

<p>CASE to ascertain the value of an indent, tried before a special jury in Charleston, The action was brought on a contract in writing, dated 17th February, 1784, which stated, that the deceased Richardson had borrowed of the plaintiff an indent for 869/. is. 6d. which had been issued to him, for his services as an officer in the state troops, and in which Richardson promised to repay that sum, in general indents with interest. At the time of the contract, general indents were worth only 10/. for 100/. but in consequence of the prospect of the adoption of the funding system by congress, they had risen in value up to 6s. 8d. in the pound, which was the current value at the -time the action was commenced. The question was, what sum the plaintiff ought to be allowed, whether at the rate indents bore at the time the note was given, or the current value when they were demanded by the commencement of the action.</p> <p>*For the defendants, it was said, that if Richardson had purchased indents for cash in 1784, he could have procured them at the rate of ten for one ; and that the plaintiff could not have got more than one-tenth of the nominal value, if he sold them. That this value must have been in contemplation of both parties, at the time the indent was lent. To allow this value, therefore, with interest from the time of the loan, was as much as the plaintiff in conscience and justice had a right to demand. It was further urged, that if they had fallen lower in value, Richardson would have been bound to make good what it was worth, when he received it; and, upon the same principle, the plaintiff was not entitled to more than it was worth when he parted with it.</p> <p>For the plaintiff, in reply, this contract was compared to one for the sale or transfer of stock, where it is very clear, that if the tranfer is not made on the day stipulated for, the value of stock on that day, and not on the day the contract was made, must be paid. 1 Bac. 70. 2 Fern. 394. Free. in Chan. In the present case, an indent (which is Carolina stock) was borrowed, and the contract is to repay in indents, not in money. It was therefore exactly similar to the sale or contract for stock in England. That in all cases, where a specific thing or property of any kind is to be delivered, and the party fails in delivering it, the value of the property at the time of the delivery, and not the value at the time of contract, is the true and governing rule of estimation. Because, then it is, that the party sustains the injury by nondelivery. For, if the thing contracted for, had been delivered agreeable to contract, the other party could have got the current price for it. That in this respect it may be compared to a warranty, where, if the thing warranted be recovered from the purchaser, the value at the time of the recovery or eviction, and not the value at the time of the purchase, shall be recovered from the seller. 1 JDom. 77. That although in the present case no time is fixed for the delivery of the indent, yet the suit is a good demand. It is a rule in covenants, that if no time is fixed for performance, a demand will hasten the obligation of the party to perform.</p>

THIS was an action of ejectment brought by the plaintiff, to recover a house and plantation, called the Quarter-4louse. The case was, that the plaintiff having occasion to be absent from this state for a short time, had constituted his brother, his attorney and agent during his absence.

<p>THIS was an action of debt on bond. The bond was entered into in the life-time of testator, previous to the 1st of January, 1787, and came under the instalment act, which makes all debts previous to that day payable by five equal an» nual instalments.</p> <p>Read offered evidence to shew that this bond was given for a legacy due to the plaintiff, which was in the hands of testator, as executor of the estate from which it is payable. That it therefore came under the denomination of money had and received by the testator to the plaintiff’s use, which was one of the exceptions in that act, and insisted that this debt was not liable to be paid by instalments.</p> <p>cited Butter, 182. “ That a bond “ given to a legatee extinguishes the legacy.” From whence he argued, that the bond created a new debt, in which not the estate, but the executor, in his private capacity, was the debtor; and that from this change of the nature of the debt, all relation with the legacy was determined.</p>

THE plaintiffs had been indebted to the defendant, in a bond given (as it appeared) for the purchase of a house, in the time of depreciated money, and while the British were in possession of Charleston. T he defendant threatening to sue them, the plaintiffs, to avoid, as they alleged, an unpleasant contest, agreed to pay the debt, on its being liquidated, with such depreciation as arbitrators should fix. At that time, no depreciation table was established.

THIS was an action of debt on an old bond, dated in 1775, and payable in 1776.

<p>Jt. makes an agreement to deliver riee assigns °-1 Ik aitenvards, by ment on the hack ot such agreement,^ rk'a to he de-which1 is ac-shined by ^A. Tins shall cmtle a new contract he-tween A. and C. so as to preclude any discount or equity being gone into, between A. and Ji. the origi-iial contract-in, pames.</p>

IN this case, an interlocutory order for judgment was ob« tained against the defendant. The action was brought upon , , r , _ TT . a book account, ior professional services. Upon executing the writ ot inquiry,. Pinckney and Mr. John Drayton, stated to the court the nature of the evidence they intended to offer, in order to J ’ prove the account.

FORGERY. The indictment in this case was as fob Lws : “ The jurors of and for the district of Charleston an act of the general assembly of the said state, passed. “ the 16th day of March, in the year… Held: that new games which have been invented, are not within prior statutes. The legislature of Great Britain were obliged to pass a special act, making it felony to counterfeit East-India bonds, though they were writings obligatory. 4 Blac. Com. 248.

THIS was an action of assumpsit, founded on a special agreement. The declaration stated in substance, that the plaintiff had agreed to build a boat for the defendants’ testator, Lide, which should carry 1,000 bushels of corn from Cheraws to Georgetown ; for which he (hide) agreed to give plaintiff the same quantity of merchantable corn, and to pay him at the rate of 2s. 6d. per bushel for all the boat should carry more than the 1,000 bushels.

CASE on an indorsed note by indorsee, against indorser. produced, in evidence, a negotiable note band from Patrick Carnes, deceased, dated the 18th December, 1785, payable to Fohn Walker, for/-, . on 1st January, 1787. On the back of this note, Walker made a transfer' of' his right, and gave the defendant, HooPeri a power to sue in his name, and to appropriate the money to his own use, when recovered; but did not make it payable to order.

<p>No evidencs ted to ^ shew ^Panels/exaction of ejectment, un less on a covenant that sel-lei* was ljtw-i fully seised,</p>

THE prisoner, Gee, was indicted, under the negro act, for the murder of a negro boy, named Sawney, the property of Abraham Cohen, by shooting with a gun loaded with shot.

UPON an indictment found in April sessions, at Georgetown, against the defendant, for assaulting Mr. Maddan, attorney at law.

IN this case, the prisoner, Frink, was convicted of manslaughter : but on account of some favourable circumstances which appeared on the trial, the jury thought propet to recommend him to mercy. On the last day of the sessions, he was brought up to receive sentence of burning in the hand, which had been usually inflicted instanter in open court.

ASSUMPSIT for goods sold by defendant as an auctioneer, on account of plaintiffs. Wilkinson, Teasdale, and another, were trustees for Neal, and ordered the defendant, as an auctioneer, to dispose of his goods and effects on a credit of six months, taking security from the purchasers for the amount of their purchases.

<p>a negro boy out as an ap-Uaii'-drcsser,"1 blo'for1 rent níasteíy ^to yhom he is bound.</p>

SLANDER, for calling the plaintiff a mulatto. The defendant in this case attempted to justify, but failed in his justification. He then contended the words -were not in themselves actionable ; and if not actionable, that he was not subject to damages, unless a special loss had been proved. But the

IN September sessions, an indictment was preferred against the prisoner, for murdering a negro slave, the property of Mr. Radcliffe. On the trial, it appeared that the prisoner had taken up the negro on some pretext or other, and afterwards carried him on board of a schooner he then commanded ; where, either in attempting to tie him, or secure him from going off, he threw a lead-line round the negro’s neck, and strangled him.

CASE on attachment. This suit was brought upon an agreement from William M-Iniosh, of Georgia, dated 11th December, 1/85, to Thomas Washington, by which he engaged to deliver Washington, or order, Richard Call’s bond for 315/. sterling. This agreement was afterwards negó-dated to the plaintiff Breen, who attached the property of M-hitosh in the defendant luganos hands, to pay this 315/. But resolved per

SPECIAL action on the case, to try the property of a r ... 7 , , , , 3 , , ‘T-. negro wench M mail, and her children, settled on Mrs. Holman by her husband, at a time when he was supposed to have been considerably in debt. Mr. Holman, the husband, in October, 1775, in order to make a provision for his wife, settled the negro in question and four others, on her and to her heirs for ever, &c« in the usual form* The t i ¶ ¶ ° ** o ■.» , deed was recorded m .1776.

ASSUMPSIT on two protested bills of exchange, draw». by the defendant at the island of Bermuda, on his brother Richard Todd,, in South-Carolina; one dated in October, for 350/. currency, and the other in October, 1779, for 2,400/. currency, J The value of South-Carolina currency in Bermuda, was well known to be seven for one sterling; but when the bills were sent on for payment, the money had greatly depreciate On hearing of the arguments,

<p>Wherever a new credit or time for pay-í^thé^hoíder °^ea the . holder takes !t aPon himself, and the indorser is discharged. ,vhatevLr^ ;*le. notice to the indorser.</p>

THIS was a special action on tbe case. The first count In the declaration stated^ that in and by a late act of the legislature, ratified on the 19th of February, 173Í, being u An act to amend the… Held: that debt would lie for the sheriff to recover his fees. Esp. Dig. 7, 8. And in 12 Mod. -513. it is held, that a gaoler may even detain in custody the body of his prisoner, until his fees are paid.

FORGERY of a three pound bill of the paper medium of South-Gar olma* The indictment contained two counts : 1st. For counterfeiting the bill in question. 2ch For uttering the same, knowing it to be counterfeited, with an intent to defraud. After several witnesses were examined, which brought the fact of passing the bill fraudulently, home to the prisoner ; Mr. Thomas Jones, one of the signers of the paper medium, - bills, was examined.

THE bond in this case was given by the defendant to Da Costa, for a tract of land, which was, at the time of sale, under mortgage to Commodore Gillon, for a sum equal, or nearly so, to its full value ; but Da Costa did not inform the defendant of this circumstance at the time the deeds were executed, or at any time during the negotiation-.

<p>Every jutig-fo^the^rfioie ^tEnding fteinstalment says, that debts shall only be re-i’nstelmenS.</p> <p>This act does not niter the common lav.' or statute of frauds, in that respect; consequently those judgments mutt be paidc>fFby the sheriff in rotation, agreeable to their seniority.</p> <p>It is too late,, after judgment for defendant, to take advantage of want of demand of security. It ought to have been pleaded to the action.</p>

DEMURRER to plea in bar to debt on bond, given in . the court of chancery, to enable Thomas Washington to obtain an injunction there. In this case, the plaintiff had a judgment at law against Thomas Washing ton, who applied to the court of chancery for an injunction ; and in order to obtain it, the defendant, Snipes, entered into a bond with 1 him as security, agreeable to the directions of the act prescribing the terms of obtaining injunctions, fkc.

CASE upon a bill of exchange. The bill, it seems, wag drawn by Pozuell, Hopton, and Co. dated Charleston, Decern-her 1st, Iff6, upon Samuel Brailsford, the defendant, in Bristol, requiring him two years, after sight, to pay to Richard Champion, or order, a certain sum. It was accept-e¿ by Brail-tford thus: “ Accepted, payable at the house of j j 1 1 “ Brown and Collingson, London.

<p>Where the inhabitants c*l a parish aro liable to for repairing or making a causeway., they are in-terestedxn the suit respecting it, and therefore it is a good cause for changing the venue.</p>

SPECIAL action on the case, in nature of ravishment of ward, to try the freedom of a negro female slave called ' Miley, and her children. The plaintiffs in this action were of the society of the People called Friends or Quakers, and had taken uncommon Pains to procure this wench and sundry others, their freedom.

DEBT on bond, for the performance of covenants, &c. The bond was dated in December, 1779; the penalty, 100,000/. It was given for a plantation on the east side of Broad River, valued at 1,450/. old currency, and was con» ditioned for the delivery of a negro man, Jack, value 6004 another negro to be valued by three indifferent persons, in April, 1781, and the residue in horses, to be taken also at a valuation.

EJECTMENT to try title to 149 acres of land. Held: in equity, that he should lose his land for his fraudulent: ¡seglect.

THE prisoner was indicted for horse-stealing. It appeared in evidence, that he was a hostler to Mr. Tims, innkeeper at the Ten-Mile House, and that in the night time, he went off, and took with him the horse, On behalf of the prisoner, it was contended, that this * ’ was only a breach of trust, and not a felony because he had the care and charge of the horse, and by this means gained a possession by the consent of the owner; conse-there could be no felony committed, as he…

THIS cause was tried before a special jury» Mr. 'Chamfneys, in 1775, drew an inland bill of exchange on the deceased Mr. Brewton, for 300/. currency, and upwards, in favour of Ash, payable at fourteen days, which. bill Breivton accepted, being for two casks of indigo sold to Brewton by Champnei/s. It did not appear that any protest had ever been made for non-payment, or even any demand made for the money ; but there having been mutual dealings between Brewton and Ash, the…

FORGERY of a promissory note. The jury in this case, found the prisoner guilty of attempting to pass the “ note, knowing of the forgery.” Upon the adjournment day, the counsel for the prisoner moved in arrest of judgment, that this was not such a fading as would warrant the court to pass sentence against the prisoner; inasmuch as the verdict did not state or find that the prisoner passed the note, knowing of the forgery, with intent to defraud.

<p>DEBT on bond, dated the 11th of October, 1786. Dis~ count pleaded. It appeared that this bond was assigned to Mons. Desverneys, in February, 1788, and that the defendant had then notice of the assignment. The transactions offered in discount, between the present plaintiff and defendant, were all subsequent to the time of the assignment and notice. But</p>

<p>ACTION of trespass, to try title to lands, and for damages, &c.</p>

THIS was an action brought in right of Mrs, Thompson, for her share of her grandfather, Samuel Snee s esT , . r n itri tate. It appeared that the executor ot onee made sale or the effects of the estate, and closed the accounts some time in t^e year jyy g; and always kept the money by him, to pay ovcr tQ those entitled to a distributive share, whenever they * * * should think proper to call for it.

THIS was an action of assumpsit, by the indorsee, against the administrators of the drawer of a promissory note It came out from the evidence in this case, that Wood, 7 y the drawer of this note, had, in his life-time, driven to mar-bet, eleven hogs belonging to one Warren, his neighbour 5 and upon his return home, Warren had him taken up for hog-stealing, and taken before a magistrate.

THIS was an issue directed from the court of chancery, and tried by a special jury at Charleston, and was the second trial (that court having, on account of some alleged mistake, directed a new trial) in order to ascertain the location of a tract of land, situate on Ashley river, which the defendant had purchased at the sales by the master in chancery, of the estate of Cattel, and sold for 490 acres.

DEBT on a bail-bond. A Monsieur Bonnefons had been arrested, and held to bail at the plaintiff’s suit, and the bond returned into the sheriff’s office, with the name of the defendant subscribed to it, as security for Bonnefons5 appearance, who afterwards left the country.

THIS was an action for a breach of a “covenant m a common release for lands. It was admitted, that the plaintiff had purchased from the deceased Witten, a tract of 300 acres of land, in St. Mathexds parish, and given bonds for the sum of 600/. being the consideration money agreed upon.

<p>If the master of a negro wench permits her to work, or hire herself out, upon, condition of paying him certain stipulated wages, all she saves ormakes beyond such wages shall be at her own disposal. And if she thinks proper to purchase the freedom of a-fa-vourite negro girl, with the surplus, such negro girl shall be entitled to her freedom, and shall net be. deemed the property of the master.</p>

<p>DEBT on bond, is to be granted, for discovery of new evidence after trial, which mi^hl, by due diligence, have been procured at the trial; am! the more especially too, as the plaintiff may discontinue his suit as soon as lie discovers a defect of evidence, which it is probable^ might be supplied at a future dav,</p> <p>Assignee of a bond is bound to give notice to the obligee of any dis» count of de-fence set up against it by the obligor, otherwise he takes upon, himself the consequences.</p>

COVENANT for damages on warranty for land sold. In 1779, the defendant sold to Guerard., two tracts of land — one of 1,050 acres and the other of 371 acres, for 100,000/. currency, which, when depreciated, was equal to 700/. sterling. Soon after the purchase, Guerard settled the tracts, cleared part of the rice land, made several improvements and arrangements for an extensive plantation.

IN this case affidavits were submitted to the court, on behalf of one Heyliger, against Col. Mitchell, one of the justices of the peace for Charleston district; and an information was moved for against him, for oppression in office as a magistrate. opposed the motion, on the ground that the 2d section of the 3d article of the new constitution of the state, had virtually abolished this species of public prosecution ; and that the law with regard to it had been entirely…

This was a case tried in Ninety-six district some years ago, in order to determine the right of property to a negro man slave, taken during the war, and sold to the defendant. The property was'admitted to have been in Moore before 1 1 J t 8 the war, and immediately previous to the capture.

AN action of trover had been commenced and tried, at Orangeburgh, for negroes and a horse, taken by the defendant from the plaintiff’s plantation, during the war. The negroes, it appeared, soon afterwards returned, or were de» ° 1 r livered back, but the horse was never sent back.

UPON plene administravit pleaded in this ease, the question was, whether a note of hand given in June, 1786, was become a specialty by virtue of the 45th section of the county court act, and was to be put on a footing with bonds, and paid in average with them, under the executor’s and administrator’s law, in case of deficiency of assets f urged, that this clause of the county court law had altered the common law, and made that which was only a simple contract, a specialty.

THIS was an action of debt on a bond given for a tract ° of land.

<p>CASE on a bill of exchange against the acceptor, for 0 r 118/. Boston currency. The bill was drawn by Parington &? Hussey, merchants in Boston', in favour of the plaintiffs, on Foltz &? Lorens, in Charleston. When it was presented ^or acceptance, neither Foltz nor Lorens were at home ; it was therefore accepted by Keller, their clerk, for them, On the bill becoming due, Foltz Lorens refused paying it, saying they had no effects of the drawers in their hands, and because it had been accepted inadvertently by their c^el'k. who was ignorant of that circumstance- at the time made the acceptance. The bill was accordingly sent back to Smith Loving, who returned it to the drawers, Faring-/ pn £s? Hussey, from whom they received payment.</p> <p>stated that he had witnesses to prove the return of the bill to the drawers, and that the payee had received payment, consequently they had no right of action. That it would be unjust to allow the drawers to make use of the names of the plaintiffs to recover money from the defendant, when the plaintiffs had been paid, and when there was a balance really due from the drawers to the defendants, on a general account.</p> <p>Fraser objected to this evidence, as it would affect the credit of bills of exchange in the hands of fair holders. But</p>

<p>'THE prisoner was indicted for counterfeiting a ten pound bill of the paper medium, and the jury found him guilty upon the second count of the indictment, which charged him with “ counterfeiting a bill of the denomination of ten “ pounds, &c. which was signed with two of the names of “ the commissioners.” It was moved in arrest of judgment, that as the act of the legislature prescribed a particular form for the bills of the paper medium, in which the signatures of three commissioners were required, and this counterfeit had only two, the crime was therefore not complete. This point was argued before all the judges, who afterwards delivered their opinions separately.</p>

<p>Where goods ta "^factors') particular**^ sections con-corning them, and they, m order to enhance their them’ at the usual credit, to a merchant, ümenofatsaíet v'ards10betei" comes insoi-rent; the factors shall not with thFloss!</p>

THIS was a rule served on the sheriff, to shew cause why certain monies, levied on the plaintiff’s execution, against one M'Farlane, should not be paid over to him in discharge of the debt. The objection to paying over the money was, that there was an execution in the sheriff’s office, prior to that of the pftktiiFs, lodged by Daniel O'Hara, who insisted that the money should be paid over to him, as he had the first lies on the goods levied.

ÁSSÜMPSIT for fifty barrels of rice, of the value of 128/. 12s. 4d. sold by one Fardo, a factor, who afterwards became insolvent. The defence set up was, that the rice was purchased from Pardo, and the defendant being in possession of Pardo’s note, as also of a bond, assigned over to him, he contended he had a right to set them off against the purchase-money for the rice, as in the transaction he had nothing to do with Atkinson, the present plaintiff. But

ASSUMPSIT for rice sold by pardo,- a factor. This cause was nearly similar to the foregoing one, bug not tried by the same jury. The same kind of defence was set up, viz. a debt due from Fardo to the defendant.

<p>THIS was an action of replevin. The case was, that one Cobb had rented a tenement from the present defendant and avowant ; and there being due for rent in arrear 45/. he seized the plaintiff's negro, who happened to be found accidentally on the premises. So that the simple question was, whether the negro of a third person, accidentally found on the premises of a landlord, could be distrained, for rent due by the tenant, or not ?</p> <p>contended, that by the common law, any and all the goods and chattels found on the premises, were distrainable for rent in arrear. That it was not the business of the landlord to inquire into the right of property of his tenant to any goods actually in his possession — - it was enough that they were on the premises ; otherwise it would be easy for a tenant to collude with another, exchange property for a few days, until he could move from a house, and thereby defeat the right of the landlord to this summary mode of redress by distress» That it had beers the constant practice in this country heretofore, to consider negroes found on leased premises as liable to a distress.</p> <p>admitted the doctrine contended for, as to every species of personal property, excepting negroes. As to them, the common law could not apply, because slavery was unknown in England,, from whence we borrowed the principles of the common law j consequently, such a species of property could never have been in the contemplation of the common law. The doctrine of slavery was a part of the civil law, and incorporated into the policy of this country from high considerations o? necessity and utility. Every rule, therefore, respecting slaves, must be taken from the civil law, or governed by the local circumstances and situation oí South-Carolina. The law of distress was unknown to the civil law. Upon the local situation of this country alone, then, the case should be governed. They further urged, that it would be extremely inconvenient, indeed, to the citizens of this country, if the doctrine contended for were to prevail. That negroes had a volition, or will, of their own, and could not be restrained from going into a neighbouring plantation, or inclosure, and mixing with other negroes. To’ subject them, therefore, under such circumstances, to the rigid doctrine of distress, if found on premises occupied by a tenant, would not only be unjust, but contrary to the sound policy and general convenience of the state. Even in England, for the public advantage, and general convenience, personal property, in a variety of situations, was exempted from distress ; as, corn in a mill — -wool at a neighbouring barn. 2 Burr. 1500. Cloth at a taylor’s shop — horses at an inn, &c. So, in the same manner, for the public convenience, negroes ought to be exempted. Our courts had already, in some instances, modified the doctrine by saying that a negro, bound out as an apprentice, should not be liable ; ([Phelon v. MiBride)) ante ;) neither should goods at a vendue store. (Himely v. Wyatt £f? Richardson, ante.)</p>

CASE for the residue of an estate, also for monies' had 1 and received. 1 he right of the plaintiffs in this action, was not disputed, and the accounts on the part of John Ash, executor Joseph deceased, were admitted to be proper. groun^ of contest was, the laches of the defendant, as was alleged, in not recovering a bond from John Berwick to his testator, given in December, 1778, condi- . ¶ r , r . _ _ . , tioned tor the payment of 31,000/. currency, and also m not…

DEBT on a bond conditioned for payment of an indent for 1,267/. 3s. 6d. in September, 1786. that at the time this bond was given, the testator, Scott, agreed that if the indent was not returned on the day mentioned in the condition, that then it should be converted into a specie debt, to be paid for at the rate of pound for pound j and offered to call a witness to prove the agreement.

CASE upon a policy of insurance, tried before a special « JUty* The defendants in this action were underwriters upon a policy of insurance on the brig John, whereof 'Yohn Howell was master, bound to Jamaica. There was ** , insured on the vessel the sum of 350/. and on the freight 7 , 150/.

UPON a motion to shew cause why the defendants claim for dower should not be set aside, and her petition under the act of assembly, dismissed. The facts, as stated and admitted, were, that the plaintiff, Rutledge, sold a lot of land-in Charleston, to David Bogie.» deceased, and tbe conditions of the sale were, that the pur» chaser should give bonds for the payment of the consideration money, payable by instalments, with a mortgage on the premises to secure the payment.

IN an action of replevin, the defendant Smith, avowed the taking of the goods for rent in arrear, and produced a deed from one Kerr, of the premises, to the defendant, but offered no written lease to the plaintiff, Jacks, nor any evidence even of a parol lease» He rested solely on the right or conveyance of the land in question, from Kerr.

THE defendants, were indicted jointly for a riot and assault on Dr. Fayssoux, Holmes, their counsel, moved that they might be tried separately. But

TROVER for a negro boy. This case came before the •court on a special verdict found m the year 1790, as fol- , ’ ¿OWS i “ That Mathew Guerin, (whose daughter, Thomas Stone, “ the present plaintiff, married,) by deed of gift, gave sun-“ “ dry negroes to his three grand-children, Thomas Stone, “ the younger, and Elizabeth and Mary Stone, all minors “ and under age, share and share alike, and among others, “ the boy in question.

THIS was an action of assumpsit for sheriff’s fees ; and the points submitted to the court were the following, viz. 1. Whether in cases where executions are lodged, and levies made, the sheriff becomes, under the instalment law, entitled to the whole fees, or only part, and what part ? 2.

SPECIAL action on the case, for taking insufficient . ’ ° bail. stated that he had commenced a su^ f°r the plaintiff, in 1788,against one Wagner, of Georgia. That an affidavit ox the debt was annexed to the writ, and 7 it was indorsed for bail, to the amount of 76i. 6s. 2cl. That owe M'-Fariane became bail for the defendant in the action, j udgmeut was regular!)' obtained agains~ the defendant, and afterwards, on a scire fados, against the bail, who turned out insolvent.

THIS was an action of assumpsit, brought for the value °* a «irmly of negroes sold at -public auction, viz. a rcliow ca^ct^ Stcpnsij, a ploughman, his wife, a young « ench, their daughter and her child, bid oil at 3 70h ' It appeared, in - -1 (-vitk n-v, that Stepney, the ploughman, broke out with the . , , , small po:., ihe clay aiter the sale, and t.ied ; and, conse-quentiy, must have taken the miection previous to the day °f sn^c f'hc defendant offered, before this action…

DEBT on bond, dated the 18th May, 1773, for 1,000/ old currency. stated, that the bond in question was given for a tract of land on Santee river, purchased by the intestate, Huggins, in his life-time, and that the indenture of release was dated on the same day with the bond.

1 HIS was an action of debt, brought against the defend» . ° ants, who were securities in an administration bond, tor Luke Stoutenburgh, administrator of William Stoutenburgh, ip i deceased. this bond the defendants pleaded a performance of the condition.

<p>*When a note is indorsed over after it becomes due, the rules with respect to due diligence, ave inapplicable. During the existence of the instalment law, the local circumstances of the country ought to be taken into consideration, which would be of great •weight m determining 'tlie jury oil the present occasion.</p>

TROVER for a negro called Jack. On the lOih of Flay, Í 786, one Kemp Strother' mortgaged five negroes to Jc°^m Vanderhorst, since deceased, one of whom was the' ne8r0 ‘ln Question; and which mortgage was on the 11th of the ensuing September, duly recorded in the secretary’s „ ^ office, m Charleston.

THE prisoner M-Cartu, was convicted of horse-stealing 1 J ° upon very clear testimony. His counsel however moved, in arrest of judgment, that he had a pardon from the go-Temor, under the great seal of the state, for an offence committed subsequent to the present ope, which it was contended, operated as a pardon for this offence also.

THIS was an action of trespass, to try titles to lands under the will of John Heyward, of Tick-Toxun, deceased, upon the issue of denis amt vel non, before a special jury at bar, by consent of parties. The will in this case contained two kinds of devises or bequests, viz. one of real estates, and the other of personal property.

THIS was upon an indictment for an assault, committed on Mrs. Rouple by the defendant, with a large stick, with which he gave her several severe blows, and left her speechless on the ground. The defendant justified, and produced u 1 evidence that the prosecutrix struck him first, two or three times, with'a cowskin.

THE defendant in this case, was indicted under the swindling act, for selling a blind horse, as and for a sound horse, excepting a blemish in one eye; when the defendant had been told he was a' blind horse, before the sale. The attorney-general contended, that this was an act of swindling, under the late law for preventing such deceitful practices.

UPON an application for a mandamus to restore him to his office as inspector of tobacco, he having been (as alleged) improperly displaced by the commissioners. On the return of the rule for the commissioners to shew cause why a mandamus should not issue to them to restore the applicant to his office, and took an exception to the jurisdiction of the court.

<p>THIS was an action brought upon a bond payable in indents 5 and the jury in making up their verdict, estimated the value of the indents at the time they were to have been delivered*</p> <p>Holmes now moved for a new trial, on the ground that the jury had gone upon a mistaken principle, viz. that they ought to have given the value of the indents at the time the contract was mude7 and not at the time it was to have been performed; which, he contended, was the true measure of damages.</p> <p>Pringle was going into his reply, when</p>

THE defendants were indicted for a riot, in entering into the plantation of Colonel Gervais, at twelve o’clock at night, in January last, and breaking open an inner room in a kitchen, and taking away in a tumultuous manner, sundry negroes, &c. It appeared in evidence, that they took a negro man with them, who was armed as well as the defendant, and that they were the only persons present when this outrage was committed.

THIS case was, that the defendant, who was a cabinetmaker in Charleston, and carried on an extensive trade in that line, had gone to Philadelphia to engage journeymen.

THIS was an appeal from the inferior court of Abbeville .... .... county, Ninety-six district. Qn tjie 5^ Df October, 1792, an attachment was granted fjy Mr. Nichols, a magistrate in Cambridge, against the effects of the defendant, Childs, for 18/. returnable into the county court of Abbeville.

TRESPASS to try title to 800 acres of land on Pacolet fiver* Ramsay stated that the plaintiff claimed the premises in question, under conveyances from a certain James Huey, ^ate answered, that although an deed thirty years’ standing might, under some circumstances, be read in proof; yet it was only where possession had gone along with it; and that it was necessary to prove such possession before the deed could be read.

ASSUMPSIT on an acceptance of an order or inland bill of exchange. The bill was drawn by one Bradley, as attorney for Thompson, in favour of the plaintiff, on the defendant, as sheriff of Orangeburgh district, and payable out of the proceeds of the sale of lands, which the defendant sold as sheriff of that district, which bill was accepted by the defendant. The defence set up by the defendant was, that funds had never come into his hands to enable him to take up the draft.

THIS case came before the court upon a special verdict, which stated K that John Boone devised 4,000/. to his niece, “ Mary White, to be paid to her one year after her mar-a riage ; and, in the mean time, to remain in his executors’ “ hands, they paying interest for the same. That Levi 61 Durand, the defendant’s testator, who was one of the “ executors of John Boone, paid Miss White her legacy, in M 1Y79, which she received when money was greatly de- “ predated.

THE indictment in this case, contained two counts: 1st. For forging a ten pound bill. 2dly. For passing it, knowing it to have been forged.

TRESPASS to try titles to 200 acres of land in New-bury county. The plaintiff in this case, claimed under a North-Carolina grant, dated the 25th of March., 1755, to one John Clark, On the 1st of October, 1755, Clark conveyed to Abraham Anderson, whose eldest son and heir at law, Abel Anderson, conveyed to the plaintiff. produced a copy of the grant, which was admitted.

THE prisoner in this case, was convicted at the Iasi Qrangcburgh court of sessions, before Gb.im.ke, J, of murder, And upon a motion made by his counsel, in arrest of judgment, was, agreeable to the terms of the eonstitution, brought up to the adjourned court at Columbia, before Geimke, Waties, and Bay, Justices.

<p>THE plaintiff, Zylstra, was convicted under one of the or<ünances of the city-council, for keeping a tallow-chand- . ler’s shop, within the bounds of the city, and fined for the r offence, in the sum of 100/,</p> <p>The present therefore, was a motion for a prohibition, to restrain the court of wardens from levying this fine, as unconstitutional and out of its jurisdiction.</p> <p>It appeared that the proceedings against Zyhtra in the wardens’ court, was by way of information.</p> <p>Peace, in support of the motion took three grounds:</p> <p>I» That the proceedings byway of information, was taken away by the new constitution of the state.</p> <p>2. That if it was not, still it must be agreeable to the common law.</p> <p>3. That the penalty being above 20/. sterling, it was not recoverable in this inferior court of wardens, without the intervention of a jury.</p> <p>1. 2. He urged, that all public prosecutions by way of information, which had always been considered in England as an arbitrary mode of proceeding, was abolished in this state by the second section of the third article of the new constitution ; and that every such prosecution must, since, the adoption of that constitution, be carried on through the medium of a grand jury, by way of indictment, and not left to the arbitrary discretion of a court — not even the superior courts, much less to an inferior one, which had not a jury attached to it. Upon this ground, he said, the proceedings were erroneous, and ought to be set aside. But what he principally relied on, was his</p> <p>Third ground — which was, that the penalty being above 20/. it was not recoverable in the court of wardens, in a summary way, without a jury. He admitted that the charter enabled the city council to make by-laws for the good government of the city ; provided they were not repugnant to the law of the land ; and to annex and levy fines for all oifences committed against their by-laws ; and to recover all penalties which may be incurred under any law or laws then in force, respecting the said city. And also, that the act for enlarging the powers of the corporation, passed in March, 1784, gave them cognisance of debts not exceeding 201. But he contended at the same time, that the court of wardens could possibly take cognisance' of any thing above 20/. That the penalty in question, exceeded this sum, and therefore could not, by any possible construction, be within the limits of their jurisdiction. That a corporation has no natural rights; it is an artificial body, created b}' its charter, which prescribes bounds and limits to it, beyond which it cannot pass. That a corporation has many incidents given to it by charter — such as suing and being sued, having a common and perpetual succession, and that of making by-laws, &c. But at the same time, one uniform rule governs all corporations, viz. that nothing shall be intended to be within their jurisdiction but xvhat is expressly given. Whenever therefore, they take cognisance of a thing they have no right to do, then their proceedings are coram nonjudice, and void. That this was exactly what had been done in the present case. The city council had passed a by-law, inflicting the penalty of 100/. and the court of wardens had proceeded to take cognisance to the amount of 100/. to convict the offender for it, and had issued an execution for levying the same, although their powers are expressly limited to 20/. This therefore, he said, was taking cognisance of what they were not authorised to do j consequently, under the foregoing authorities, their proceedings were coram non judice, and void. Besidete, the greatest of all evils which such a claim of power was likely to draw after it, was, that it had a tendency to deprive a citizen of the inestimable trial by jury, the birthright of every citizen, secured to him by magna charta and our excellent constitution. He therefore prayed that a prohibition might issue, to restrain the court of wardens from exercising so unwarrantable a stretch of power as they now claimed it? this case,</p> <p>denied that the powers of the city council were limited or confined by the charter. That they were left undefined and discretionary, according to the extent of the evil the ordinance was intended to prevent. And that if it had been the intention of the legislature to confine the powers of the city council in this respect, it certainly would have fixed some sum, beyond which they could not extend their fines and penalties. Their silence therefore on this head, carried with it conclusive proof that it was the„ idea of the legislature to leave this matter to the sound sense and discretion of the body of men, who should, from time to time, compose the city council. If therefore, the city council had this power, by the corporation charter, to in: any sum it thought reasonable and proper, it must follow as a necessary incident, that the court of wardens could recover it. For it would be a solecism in the doctrine of corporations, to suppose it could impose a fine or forfeiture, which 5t could not recover; besides the city charter gives the power of levying all such fines and penalties as should be so fixed by their by-laws.</p> <p>Marshall, city recorder, urged that the by-laws under which the offender had been convicted, was made to prevent nuisances. That in a large populous city, in a warm climate like ours, such laws were peculiarly necessary, to preserve the health of the citizens. That it was a law which came in aid of the common law, which required a prompt and easy remedy to carry it into execution» That the necessity of the remedy, and the usual delay in the ordinary course of justice, would not admit of pursuing the usual forms of proceedings for misdemeanors in the common law courts. That no one could say the fine was dis-proportioned to the nature of the offence ; and if the of-fence was committed, no one could say that the penalty should not immediately over Lake it, so as to prevent, if possible, a repetition of it. He acknowledged that the charter was silent as to the amount of the fines the city council was authorised to inflict for the breach of their by-laws; but this, he said, must ever depend upon the enormity of the offence, and an urgent necessity for an immediate check. And therefore, he said, it was left indefinite) to be governed by imperious circumstances, and the sound discretion of the city council. That the act for enlarging the powers of the corporation, it was true, had circumscribed the jurisdiction of the court of wardens, in cases where citizen and citizen were concerned against each other, and sought for redress in that court, to 20/. but in cases where the corporation itself was concerned, or where the inhabit ants of the city were interested, it was silent also. Ana the jurisdiction of that court, in these particular cases, must be coextensive with the powers of the city council to impose the penalties ; otherwise, this absurdity must follow, that the city council had a power to inflict a fine, which the city court or jurisdiction could not reach or recover.</p> <p>Pinckney concluded on behalf of the corporation. That the prevention of nuisances was a matter of domestic regulation in the city, and expressly came within the letter, as well as the spirit of the charter. A tallow chandler’s shop, he said, was a nuisance at common law, in a city. There was an old law in force in this state against it, which inflicted the same penalti- on the offence which the city council had done by the ordinance under consideration : so that, in fact, it was doing neither more nor less than re-enacting the old law within the bounds of the city. The charte r with respect to fines, is indefinite, and having- so good a precedent before them as the former act of the legislature for preventing die same offence, the city council was highly justifiable in making this ordinance, which is neither repugnant to the common law of -the land, nor the former act of the legislature of the country, on this subject; but, on the contrary, it has come very properly in aid of them both, within the bounds and limits of the city. The civil jurisdiction of the city was originally confined to small and mean causes, 3/. but in the act of 1734, it was extended to 20/. — ■ the same jurisdiction which the judges of the court of common pleas have, without the intervention of a jury. This, however, was intended to be confined to cases between citizen and citizen, who came into the wardens’ court of justice. It certainly never was intended to disarm the corporation from defending the city against nuisances, or other offences or dangers, which required a prompt and efficacious remedy to prevent them. The power, therefore, of levying and recovering those fines, must be coextensive with the power of enacting them, otherwise the ordinance itself must become a dead letter. That by the terms of the charter itself, all the ordinances of city court-</p> <p>viil arc repealable by the act of the legislature. This seems to be the only check provided by the charter, for repealing or setting aside improper or illegal ordinances — -the power is not given to the courts of law. Several legislatures have sat since the passing of this ordinance in 1784, and they have never thought proper to call the propriety or legality of it in question. The presumption therefore is, that it fully met with their approbation.</p>

THIS case came before the court upon a special verdict, which stated, that in a transaction between the parties some time in the year 1788, the defendant gave the plaintiff a ^ond, signed Benjamin Singleton, payable to himself, the defendant, for 7001. sterling : and at the time of passing it, . . . 1 . he made a blank indorsement on it, by placing his signature or name on the back of the bond.

<p>UPON a motion for a prohibition. The plaintiff had 1 1 been convicted, in the court of wardens for the city of Charleston, of selling spirituous liquors, and fined SOI. for tbe offence, under the terms of the act for regulating tavern licenses, &c.</p> <p>He was afterwards taken on a ca. sa. and sent to gaol 5 but being unable, by losses and misfortunes, to pay the fine, he applied for and obtained the benefit of the insolvent debtors’ act, and delivered up what property he had, agreeable to the directions of that law.</p> <p>After the expiration of the year and a day from the time 0f his discharge under the insolvent debtor’s act, a writ of scire facias was issued against him by the court of wardens, in order to renew the judgment on the conviction, and charge him a second time in execution for the above 50/. The present was, therefore, a motion for a prohibition to that court, to restrain it from proceeding further in the case, on the ground that a person once taking the benefit of the insolvent debtor’s act, and giving up all his effects, was for ever discharged from every demand for which he was sued or imprisoned.</p> <p>On behalf of the court of wardens, it was contended, that the insolvent debtors’ act never intended to discharge the debtor entirely from the demand, only to give him indulgence to raise the money for which he was sued; and therefore it prevented any person from suing such debtor for one year and a day after the discharge ; but it did not follow that every creditor was obliged to sue at the expiration of that time: some might indulge him to a much longer period, and still recover; though every one might sue after that time if he chose.</p> <p>it was urged, that such a construction as the corporation insisted on, would be so far from giving relief to an unfortunate man, who had parted with every shilling he had in the world, on his coming out of gaol, and who was about to begin the world anew, would in fact be tantalizing with misfortune, and making him the sport of every rigorous creditor who chose to renew his suit at the expiration of every year and day during his life. That it would damp all enterprise and industry which an active man was still capable of exerting at any future period ; and would prevent the aid and interposition of friends who might afterwards be disposed to serve him by giving him a credit, lending money, or otherwise assisting him, which, it was said, was contrary to the spirit and meaning of the insolvent debtor’s act.</p>

DEBT on a bond. The defendant, the bond on which this suit was instituted, together with WOW* Signed three others, to the nominal plaintiff, Russelh and several. It is joint This bond was afterwards assigned by Russell to the late Col. Kershaw, for a valuable consideration, and is now in the hands of his trustees, the bona fide holders, who directed this suit to be commenced against the defendant.

THIS was a rule obtained to shew cause why a mandamus should not issue to the corporation of Charleston, to restore the plaintiff, ivho had been displaced as a warden of the city.

UPON a motion for the sheriff to restore sundry negro slaves who had been seized as the property of Barnard Beck-ifier??, at the suit of Arthur Bardeleben.

THE point submitted to the court in this case was, whe-notes of hand are on a footing with bonds, and to be paid in average and proportion with them, in case of the insolvency of an estate* It turned upon the construction of She twenty-sixth clause of the executor's law, passed in 1789, which enacts, “ that debts due by any testator or in-a testate shall be paid in the following order, to witfu-56 neral and other expenses of the last sickness ; charges of “ the will or…

THIS was an action of debt upon a bond. On the adjournment day of this term, the defendants obtained a rule to shew cause why the judgment entered up by the plaintiffs should not be set aside, and they, the defendants, have leave to plead plene administravit.

THIS case came before the court on a special verdict, which stated, that “ Sarah Baker, by deed-poll, gave her “daughter, Sarah Dott, (wife-of David Dott,) sundry ne- ° . . “ groes, &c. distinct from her husband during her life, and “ at her death, to the heirs oj her bodij.

<p>THIS was another case brought forward by the same parties as in the foregoing case ; but the spt cial verdict was founded on Mrs. Baked s will, made several years after the deed of gift.</p> <p>This verdict found, that ei Sarah Baker, by her will, bequeathed one-fourth part of her estate (consisting of ne-u groes, household furniture, &c.) to her daughter, Sarah “ Dott, during her life, (without the control of her hus- “ band,) and at her death, to the heirs of her body, and their a heirs and assigns for ever ; but if she should leave no is- “ sue, then to be disposed of as she should think proper.”</p>

<p>CASE for a cask of indigo. The defendant admitted that the indigo came into his possession; but contended that it had been returned to Mr. Frank Allston, for account of, or by order of the plaintiff; which Mr. Allston denied. That the defendant then proposed that if Allston would take his oath that he never received it back, he would pay for it. Allston accordingly went and made the oath ; but the defendant refused to be bound by his agreement, and offered to go into testimony respecting the indigo.</p> <p>Pinckney objected to this as being irregular; and he contended, that as the defendant had agreed to leave the matter in dispute to Allston’s oath, he was bound by it, and could not go into any other testimony ; and relied upon a case in 2 Fsp. Rep. 178. where Lord Kenyon held a man to such a kind of agreement, and refused to let in any other evidence.</p> <p>Trezevant urged for liberty to give other evidence 5 but</p>

IN this case a motion was made to set aside the return of the. commissioners, for having awarded to the plaintiff, a widow, an extravagant sum in lieu of her dower. objected to the return of the commissioners, because, as he alleged, they had allowed the widow much more than, by any known rule of valuation, or any principle of justice, she was entitled to.

<p>TROVER for two negroes. The bill of sale from the defendant to M^Teer, was admitted.</p> <p>Holmes then stated to the court, that these negroes had been conveyed to M'-Teer, in his life-time, to cover them from a suit in chancery, which CoL MiPherson was about to institute against him. That, no consideration was paid, and it was in nature of a trust, in order to screen the pi-o-perty against MHher sods claim, and offered to call a witness to prove this trust; when</p> <p>opposed the introduction of testimony to prove a trust against the face of a deed, which appeared to be absolute and unconditional.</p>

<p>In an action ©f debt on an administra-seneraWvei administrator did not pay off debts according to law, is good. Plaintiff is not obliged £o assign eve-jy specific íhedeféndant shew°lh(nv he disposed of every part of the effects,See. as the inventory charges is "bound1 by ehai'ge° himself, by rendering m an account to the ’ordinary. f</p>

<p>The execution oí a third •will, is a re-uoo former the&sfa8t°-v«n be lost or mislaid; in which' case, parol evidence of its Eontents is admissible.</p>

<p>An action will Ütí on n bill of exchMi^e $m*o-ÍCPfííá "N'11011-occcpJ(üicei pítho:¿<;h the time far payment be uot</p> <p>H:'i bKl i:- is -7, :» f'i for irlere.t a.d Carnages on Mils.</p>

<p>CASE on a demurrer. The defendants shipped a quam dty of rum on board the British sloop Bell, of Jamaica, hound to Charleston ; which sloop, on her passage, was captured by a vessel acting, or pretending to act, under a commission from the French republic, and brought into the port of Charleston. The rum was afterwards ordered to be s°bl for the benefit'of the captors, as lawful prize, by Mons. the French consul residing here.- Previous, however, to this, the defendants had put in their claim for the ruin, as being American citizens, and the bona fide , owners of the rum, which was refused. At the sale, the defendants'were the purchasers, and gave their notes to the plaintiff, as agent of the captors, for the amount of the saiesi an(l by this means repossessed themselves of their property, so captured. When these notes became due, the defendants were advised not to pay them, on the ground that they were, in fact, compelled or obliged to give them, in order to get back their property out of the hands of the privateersmen.</p> <p>The action was then commenced. The defendants put _ ... in a special plea, stating the duress of their goods, and a compulsion to give these notes, in order to regain possession of their property! And further, that this court had no jurisdiction of the cause, as it naturally involved in it the question of prize or no prize, which exclusively belongs to the admiralty jurisdiction. To this the plaintiff demurred; and for cause of demurrer alleged, that duress of goods (which, however, he denied in this case) would not avoid so deliberate an act as the giving the se notes j and that this was a contract cognisable by a common law court, and not of admiralty jurisdiction. The defendants joined in demurrer, So that two questions came before the court for their consideration,</p> <p>1st. Whether duress of goods would avoid a man’s act or not ? 2. Whether this court would take cognisance of the cause, originally of admiralty jurisdiction ?</p> <p>There was however a third point, and the most material of any, though not submitted by the pleadings, and which naturally arose out of them ; which was, 3. Whether, upon a supposition that this court cannot take cogni-sance of a case which originally and exclusively belongs to the admiralty jurisdiction, it will of a matter incidentally springing out of it ?</p> <p>On behalf of the plaintiff, it was argued, on the first ground, that duress of goods will not avoid a man’s deed ; because the party may have adequate satisfaction in damages, for any injury he may receive ; and for that purpose the counsel relied on 2 List. 48;* and 1 Black Conn 431. That, however, in the present case, there was no kind of duress but a voluntary contract at a public sale, where the law was open for redress of every kind of injury whatever.. The defendants were perfectly free to contract for the rum, or not, as they thought proper. There was no compulsion on them; no threats. Every step respecting the contract, and giving the notes in question, was the result of deliberation and free will. That it was unnecessary to go into the consideration of a note of hand ; it carried with it upon its face a valuable consideration, and no construction whatever could draw it into the admiralty jurisdiction. It was a contract cognisable in the common law courts only, and not elsewhere. That the rurp. in question, had been -taken on the high seas, and had been upwards of twenty-four hours in the hands of the captors, which devested the original owners of their property, so that they could have no further interest, in it. And although there had been no regular condemnation, yet that only respected the distribution of capture, not the devestment of the original owners. That the defendants, therefore, could have no claim to the rum in question ; and if no claim, then they could not even have an equitable pretext for detaining the money in their hands, under colour that they had no other mode left to regain their property.</p> <p>2. On the second ground, the counsel did not contend that this court could take notice of a prize cause, or one of admiralty jurisdiction ; but denied that this was a question of prize or no prize, or an incident springing out of it. That it did not appear to be a cause of'this kind, from the face of the proceedings.</p> <p>For the defendants, it was replied, that duress of goods would avoid a man’s deed in some particular instances; for the necessities of a man might, in many cases, be so urgent and pressing, as not to admit of the ordinary modes of redress by due course of law, however able the other party might be to make him compensation, or to satisfy him for any injury he might sustain ; and relied on Astley v. Reynolds, (2 Sir. 916.) where a pawner of goods paid 61. more than was really due to the pawnee, and upon an action of assumpsit, recovered it back again ; because it was said, this payment was by compulsion, and the plaintiff could not do without the plate pawned; so that an action of trover would not do for his business ; therefore it must have been paid by the plaintiff relying on his remedy to recover it back again. From whence the counsel in this case urged, if assumpsit would lie to recover back money paid under the circumstances as in Astley v. Reynolds ; that if a demand was made for money supposed to be due under similar circumstances, the defendants might defend them» selves against so unjust a claim. That the situation and calling of the captors, made it more urgent and necessary :n this case, than perhaps in any other which could occur, -,.o induce the defendants to regain their effects by any possible means short of force, out of their hands. They were ■privateersmen ; the very import of the term was sufficient to convey an adequate idea of them : transient persons, not one of whom might ever be found again here, after once leaving the port; or if found not worth a shilling to make reparation in damages. This case, therefore, was much stronger than any mentioned in the books, and fully justified the defendants in not paying the notes thus given for their goods, so illegally detained from them. As to force, they had none at command, to oblige the captors to relinquish ; and if that were practicable, it might' endanger the peace of the 'country; whereas the present mode was a peaceable one, which prevented every thing like- hostility, and was fully sufficient for every purpose they wanted.</p> <p>2. On the second ground it was clear, they said, that a court of common law could not take cognisance of a prize cause. All the writers on the laws of nations, concurred on this head and laid it down as a well established rule, that the question of prize Or no prize, must be determined by thejHS belli, and belongs exclusively to the prize court, in the admiralty jurisdiction. That the reasoning was so strong in the case of Leceaux v. Eden, (Doug. S72.) that it was unnecessary to mention any other; nay, the plaintiff himself, conceded the point.</p> <p>3. On the third point, the defendants’ counsel contended, that although the notes were not (abstractly considered) a matter of admiralty jurisdiction ; yet, as they incidentally sprung out of the capture, and was a consequence of it, and the money mentioned in them, depended upon the determination of the previous question of prize or no prize, it was such an incident attached to a prize cause, as could not be severed from it, without manifest injustice to the defendants. That the notes in question, were only evidences of the contract, made to get back the rum into the defend-anti’ possession; which contract, however, whether good or bad, binding or nugatory, still depended on the right of property in the rum. For if the rum was still the property of the defendants, any contract made to pay for what was their own, was void and of no effect. On the contrary, if it was in the captors, then they were bound to pay ; which still brought the grand question back to the consideration of prize or no prize ? That even if the rum had been the property of enemies, instead of friends and neutrals, there must have been a condemnation in a court of competent jurisdiction. (Lindo v» Rodney,) Here was no condemnation or •investigation in a court competent to decide upon it; it was sold by the arbitrary order of the French consul. That with regard to the effects of this sale, it might well be compared to the case of pirates, who took goods at sea, and sold them on land ; v/here it was adjudged to belong to the admiralty jurisdiction. For that which is an incident to the original matter, shall not take away the original jurisdiction. Doug. 583. That the opinions of the judges in the case of Leceaux v. Eden, (Doug. 579.) were also clear on this point. That where the injury was the natural consequence of the capture, the admiralty has the sole and exclusive jurisdiction. That where the admiralty has exclusive jurisdiction of the matter, it ought to have jurisdiction of every thing necessarily incident to it. And that if the original taking be not a trespass cognisable at common, law, it leaves it with all its incidents, to the court which has original jurisdiction. From all whfch authorities and opinions, it was sufficiently clear, that whatever was an incident to a case of admiralty jurisdiction originally, should be tried by the admif altj, and not by a court of common law.</p>

THIS was a special action on the case, for selling an unsound negro female slave. The evidence was extremely doubtful, whether the unsoundness stated, was the effect of disease before or after the sale.

<p>THIS was an action of debt on bond, commenced in Washington district. No payment had been made on the bond for upwards of 24 years. Bay, J. who tried the cause, directed the jury to find for the defendants, as the law presumed it had been discharged, there being no pay» ments indorsed on it within the above period. That it was a rule of law that twenty years elapsing without any payment being made on a bond, is presumptive evidence that it has been paid off. He relied on the authority of EspinassEs Nisi Prius, 254. also, 1 Burr. 4.34. and the jury found accordingly.</p> <p>And now a motion for a new trial was made by</p> <p>Trezevant, on the ground of misdirection. He argued, that although the reason and authorities will support such a doctrine in England; yet, it is not applicable to the situation and circumstances of this country. It was well known, he said, that various acts, from the time of the provincial congress in 1775 and 1776, till the instalment law in 1789, had all operated to prevent the recovery of debts. That the circumstances of the war, and distresses of the citizens which sprang out of it, prevented them for many years, from paying off their debts ; while many indulging creditors, on the other hand, from principles of compassion, refrained from pressing for their demands. All these things, be contended, so materially altered the situation of this country, that the reasons and principles would not ap~ ply with justice here, which were applicable to the circumstances of an old country, where riches abound and regularity prevails.</p>

ON a return of the scire facias issued in this case, moved for a judgment, as no cause was shewn to the contrary. as being made too soon, and urged, that the defendant was entitled to an imparlance at least of one term, as a matter of course ; it having been the practice (he said) of the court for several years past. But

CASE on attachment. The plaintiff, Kennedy, having, a demand against the absent debtor, Raguet, attached' his property in the hands of Messrs. Conde and Doughty, as-a-arnishees. The garnishees made no return to the attach* d . . ment; by which means, they admitted effects in their hands . . sufficient to pay the plaintiil s demand, who proceeded to against them, and issued out his execution for levying the amount.

THIS was an action by the plaintiff, as indorsee of a promissory note, against the defendant, as drawer. The note was drawn by the defendant, in favour of Mr. Khanes, who indorsed it, in order to lodge it in the bank; and was afterwards entrusted to the nephew of the defendant, to de-Pos^ the South-Carolina Bank for discount.

<p>THE prisoner was indicted, together with one Campbell, for the murder of a Spanish seaman by the name of Jewels ; and, at her particular request, was tried separately. Campbell was convicted of manslaughter, but the prisoner of murder. On the adjournment day of the sessions, when she was brought up for sentence,</p> <p>Trezcvanl moved in arrest of judgment, on the ground that if one be indicted for murder, and another as accessary, and the principal is convicted of manslaughter, that the ac-cessary shall be discharged. He cited to this point 1 Tríale^ 437. where it is said, jf A. be indicted for murder, and B» accessary, and A. be found guilty of manslaughter, B. shall be discharged. Also, 1 Hale, 116. to the same point:— if A. be indicted of murder, and B. as accessary, and the jury find A. guilty of manslaughter, there shall be no inquiry of B. afterwards. Likewise, 2 Hawk. 447. where it is said that if a man is found guilty of manslaughter, those accused as accessaries, before or after the fact?'shall be discharged. So again in 1 Hale, 137. if a man be indicted for manslaughter, with accessaries, the indictment as to ac-cessaries is void. Also, Cro. 546. 1. From these authorities, he urged, that as Campbell, who was a principal, had been convicted of manslaughter, the prisoner ought to be discharged.</p> <p>There are two counts in the indictment, in both of which Campbell and the prisoner are charged as principals, and not as principal and accessary alternately, as her counsel has supposed. In the first, Campbell is stated tó have murdered the deceased with a club, or stick, by severe beating, -and that the prisoner was present, aiding and assisting. In the second, the prisoner is charged with murdering the deceased, by stabbing in the throat and breast with a pair of scissors, and that Campbell was present, aiding and assisting her. So that they are both charged as principals in both counts. It is true, the old law admits of principals and accessories, at the fact; but by modern improvements of our criminal juris» prudence, and as it now stands, there may be accessaries before and after the fact, but none at the fact; they are all principals. 2 Hawk. 312. Foster, 347. Even under the first count, the prisoner might have been convicted of murder as an abetor, and Campbell onlv of manslaughter, according to the malignity of the offenders, and the deadly weapon made use of by each respectively. For it is laid down in 2 Hawk. 312. that if there be matice in the abetor, and none in the person who struck the party, it will be murder in the abettor, and manslaughter only as to the other. It is the malicious intention which constitutes this offence, and makes the essential difference between murder and manslaughter. For although two be aiding and assisting in killing another, yet, if one engage on a sudden quarrel or heat of passion, without any previous malice or ill will, and the other, while the parties are engaged seeks that opportunity of taking revenge, or of gratifting a malicious disposition, and gives the deadly blow, it is murder in the latter, although only manslaughter in the former. But in the second count she is charged as the principal in the first degree, and not as an abettor, and the jury were to judge whether she was a principal or an abettoi, according' to the nature of the evidence offered them. In either case, if there was malice, it constitutes the offence of murder. The jury have found it so ; there is no averring to the contrary ; and the court is bound by the finding of the jury.</p>

THIS was an action upon a single bond, for 150/. which was given in part consideration for a tract of land. There was, however, a condition to this bond, that if the defendant would build a house of certain dimensions, mentioned in the condition, within a certain time, it should be accepted in lieu of the above sum of 150/. The plaintiff declared in the usual form on the bond, and laid his damages at 20/.

ON a motion to set aside a judgment, and to have a neto trial, after a scire facias to revive the original judgment. The bond on which the original suit was commenced, ivas given for the defendant’s amerciament, upon his being taken off the cotvfscatmi law, and judgment was entered on it in 1789. It layover from that time, till a scire facias was issued to revive the judgment.

Trespass to try title to a tract of land, before Wa» ties, J. at Cambridge, in November, 1795. The plaintiff claimed under a grant to himself, which the defendants admitted ; but they gave in evidence an elder grant of the same land to one A. Robinson, who having ne= glected to pay the office fees, and purchase-money due am it, the land had been sold by the commissioners of the treasury, under the act of assembly, and bought by the defendants.

<p>whore mo» account1M<ofn generally0 "nd m0i’e, t ®al1 enough to pay off the two first, those two shall be exthict^umier do]^T bbc carried to the credit of the third.</p>

<p>CASE for 12 per cent, on the defendant s estate, under , . , the amerciament law.</p> <p>Discount pleaded to the whole of the demand, for sundry articles taken for the use of the American army, during the ^yar.</p> <p>To which it was objected, that as Gaillard had not given ... .. . in. his account to the commissioners, within the time mentioned in the act of 1785, he was now precluded from it-But,</p>

DEBT on bond, assigned to Mr» Rivers. A special verdict in this case found, that the bond in question was a joint and several bond from John Hammilton and James Kennedy to the deceased Hatfield, and that Kennedy, the defendant, signed his name as security ; therefore, submitted to the judgment of the court, whether the plaintiffs could go against the security, until the other obligor was proceeded against to insolvency.

<p>Where fee of land zg in a widow and she marries again, the crop planted by the first husband, shall go over to his executor; but for the next year, they ought to pay rent for the use and occupation,</p>

UPON a claim of the widow for dower. _ , . . . r 7 , , , , ' in this case a petition tor dower had been presented on behalf of the demandant, Mrs. Scott, and a writ for the ad measurement of it had gone out to certain commissioners, *n ^le usua^ f°rm, commanding them to admeasure unto the widow, and assign her dower in several tracts of land described,, so me o£ which were lots in town with buildings thereon; others consisted of lands in the country.