Volume 14 — South Carolina Law Reports

<p>Payment made after suit brought cau not be given in evidence Under the general issue; but all matters of defence arising after action brought must be pleaded/>tó darrien continuance.</p> <p>Less than twenty 'pounds old currency will not carry costs, except in particular actions enumerated in the act of 1799. (see these exceptions, note (a.)</p>

Tried at Charleston, before the late recorder Judge Drayton, of the city court, in. January Term, 1825, who sent up the following report: “ The sale and delivery to Both of the defendants upon their joint contracts were fully proved. Mr. O’Hara proved that one of the defendants was an infant about 19 years old; that the defendants were young ladies living in Charleston, But he knew nothing oftheir pecuniary means.

Tried at Charleston befo¡re Mr. Justice Waties who made the following report: “ This - case came before the circuit court at the January Term on the following facts: Defendant was taken on a. ca. sa. issuing from tlic court of common pleas in Colleton distr.ict¿. by the sheriff of Charleston district, and admitted to the prison bounds on .giving the usual bond, dated ISthJune 1824, and conditioned inter alia tq render a schedule in forty days to the clerk ofthe court in…

<p>The act of 1824, which exempts females from arrests under a Ca. So. does not exempt them from arrests under a hail writ.</p>

The plaintiffs in this case, were the children and suc4t of the heirs at law of James Barnes, as had arrived at the years of maturity- William Branch had intermarried with the widow of James Branch. The plaintiffs obtained a rule against the said William and wife, and the minor children of the father James Barnes, to shew cause why a writ of partition should not issue to divide the estate of James Barnes, according to the provisions of the act of 1791.

Tried in Colleton District, November term, 1824, before his honor Judge Richardson. Charles Fishburne in his life time confessed a judgment to the plaintiff, to wit: on the 30th .May, 1821, on a writ, without any declaration. -cited TiddS45-7. It is a matter of discretion to give leave to enter up' -a judgment nunc pro tunc, and it will be refused when the rights of defendant ma be compromitted.

Tried in Beaufort district, in November term, &824, Before Mr. Justice Richardson. These were too cases of summary process to recover fees due to the plaintiff, while he was clerk of the court of common pleas for Beaufort district, in several actions to which the said Fitts find Givens were plaintiffs.

’ Tried before Mr. Justice Huger,.who made; the following report: , ■ f “This was an application to th e court fpr certain funds, which had been paid into court by John Robertson as Guar-mishce.

<p>This was amotion for arrest of judgment, before Judge Waties, who-.dismissed the motion; on the ground,</p> <p>That the objections made to the replevin bond came too late after judgment obtained.</p> <p>• An application was now made for a new trial, on the grounds:</p> <p>That the bond, on which this, action was founded, had but one security upon it, whereas the law requires two securities on bonds of this nature, viz. on replevin bonds.</p>

<p>’íried before bis honor the Recorder.</p> <p>This was a rulé upon Mr. King, to shew cause why he should not pay over to. the Assignees of Eliza Smith, the the monies in his possession, arising from property sold in tha cas^s of Adger and Black, and Milliken and Primeros^ against Eliza Smith, in order that these monies be distributed by the Assignees according to law.</p> <p>On the 3d July, . 1823, Eliza Smith filed her petition for the benefit of the insolvent debtor’s act, to which, at the same time, her schedule was annexed.</p> <p>On the 9th October, 1823, some of the creditors of Eliza Smith filed a suggestion of fraud against her, under which she w'as remanded to jail, but upon an appeal to the constitutional court, she was by thetij discharged; after which, on the ,26th January, 1824, she took the requisite oath.</p> <p>In January term, 1824, the city sheriff was ordered, upon motion, to pay certain monies in Ins hands'arising from,sales tiaderji.fd’s. against E. Smith ads. Milliken and Primerose, and Adger and Black, et. al. to the execution creditors in their order. The sheriff paid these monies to Mr. King' the Attorney of Adger and Black, and Milliken and Primerose, but before paying them away, Mr. King received notice from Mr. DeSaussure to retain them, as a motion respecting their appropriation would be made to this court., Mr. DeSaussure contended, that the money in. the hands of Mr. King, must be delivered to the assignees .of E. Smith, to be by them appropriated: _</p> <p>1st. To the payment of the prisoner’s jail fees, of the costs of suit under which she swore out, and of the costs for obtaining her discharge.</p> <p>2nd. To the payment of-her debts in the legal order; judgments of the same date, being put upon the same footing,</p> <p>Mr.Pepoon who appeared for creditors, who had not obtained judgments, but who were willing to come in and take a dividend of the insolvent’s effects, contended that the assignees were bound to pay the insolvent’s debts in average and proportion, according to their amounts, without regard to their nature, with the exception of specific liens and tha preferences pointed out in the qct.</p> <p>Mr. King contended, as tht monies under the executions of Adger and Black, and Mílliken and Primerose, were made by the sheriff, and paid over by him, before E. Smith swore out, that his clients were entitled to retain them exclusively; the assignees having no right to receive them under their assignment.</p> <p>The Recorder delivered the following opinion.</p> <p>It was agreed upon among the parties, that the money-in Mr. Ring’s hands, should be regarded as if it Were in the possession of the city sheriff and it is also agreed that ire deciding the. motion which has been made, I shall' dé», termine the order and mode in which insolvents effects shall ‘ be distributed by the assignees. All the questions which have been made, will be disposed of by ascertaining.</p> <p>1st. The rights of the assignees under the insolvents assignment? -</p> <p>•2nd. The order and mode in which the debts due by the insolvent ate to be paid by the assignees?</p> <p>1st. The question under this bead, is whether the .assignees are entitled to all the property of the insolvent,, which she owned át the time she petitioned for the benefit of the act and filed her schedule, or whether they are only entitled to what was in. her possession, at the time when she swore out?.</p> <p>In-the 1st clause ofthe act, it is enacted, that if any person shall be sued, &c. and shall be minded to make k surrender of all his effects towards satisfaction ofthe debts; whetéwith he stands charged, or in which he shall be indebted to any person, lie shall within: a certain time after being taken into custody, exhibit his petition' with an account of his real and personal estáte, and upon such petition the court is required to' order the petitioner,-and the Creditors at whose suit he stands charged, and all other his creditors to be brought before them kt an appointed day; when unless successful opposition be made to the prisoner, are oath shall be administered to him that the account, or schedule, filed 'tvlth bis petition, contains a true account of ail his real and personal estate, debts, credits and so forth, which he possessed or was entitled to, when he swears off, or which he possessed or was entitled to, at-the time when he filed his petition- After taking this oath, the debtor executed an assignment of the lands, goods, and effects contained jn his schedule to assignees appointed by the court,; by which assignment the lands, goods and effects, “ so assigned,” are vested in the assignees, who may take possession or sue for them in their own names. Upon, executing this assignment, the prisoner is discharged, with a proviso, within, six month? afterwards, he deliver to the assignees all such effects contained in the schedule, as shall be in his power to deliver. In the 17th clause, it is enacted that if any insolvent, debtor,, at the timé when he shall .render an account of his estate, pursuant to the directions of the act, (i.,e. of his estate at the time when he filed his petition and schedule,shall conceal any debts owing to him, the assignees ‘ may recover such debts. By the 18th clause, if any person shall discover any property of the insolvent, “ subsisting at the time. of his swearing off,” not comprised in the schedule, he shall be allowed 50 per cent, of its nett produce, when sold by the assignees.</p> <p>None of these passages of the act can hear any other sense than that the debtor is compellable to assign all the property he had when he petitioned, and that this is one of the, conditions upon which he is discharged. All such property¿ therefore, becomes vested in the assignees, and consequently no part of it can be levied on or sold by any creditors subse-: quently to the time when the debtor filed his petition. It, may be urged that this interpretation interferes with the common law rights of the creditor; and if the meaning of the. statute were doubtful, this argument might be forcibly insist-, ed upon; but where the meaning is plain, the common daw must be regarded as repealed by necessary implication.</p> <p>2nd. In the first section it is said, that the assignment st shall be in trust for the suitor or suitors,” at whose suit the debtor stands charged, and such other of the creditors as shall be willing to receive a dividend; provided, they make their demands within twelve months, that the petitioner shall be forthwith discharged from the suit under which he was im- ' prisoned, and “ from and against all such others of his creditors, as shall have received their dividends, as aforesaid, for all debts, contracts and demands whatsoever.” In the 3rd. section, the assignees are requiredj first to discharge the said costs of suit and other costs and fees aforesaid, meaning the fees of the keeper of the jail, ,the costs of the suit or suits prosecuted against the debtor, under which he was imprisoned, and the costs incurred upon prosecuting and obtaining his discharge, (see the 1st section.) ¿ndly. To retain a compensation for executing the assignment; 3rdly, To divide the balance amongst such of the creditors, who deliver in their demands within the time aforesaid, according, and in proportion to their respective debts. • In the 4th, 5th, 6th and 7th sections, certain liens'are preserved upon certain conditions.</p> <p>But to decide this case, it is not necessary to advert to any of these sections, several passages of which are very ambiguously, if not unintelligibly, expressed./ By the act it is declared that the creditor of creditors by whom the debtor has been imprisoned, can have no further remedy .against him. And by our courts it has been solemnly decided that the same rule prevails as to all creditors, who have brought suits, whether they have obtained judgments or not.' All the creditors, therefore, who have brought suits against the debtor are forever debarred from any other redress' against him, than that which is afforded to them out of the assigned estate. This being the law, it would be paradoxical to compel'creditors to come in and take a dividend, if the amount in the hands of the assignees is not to be divided, but to be so appropriated that prior incumbrances may take tlie whole. The words of the act are general. The assignees are trustees, not only for the suing creditors, but for all the creditors who are willing to come in and receive their dividends. The only preferences given are to certain specific liens and certain costs and fees; and if it had been intended to give other preferences, it is to be presumed that they would have been mentioned. If certain preferences are preserved, the rational inference is, that no others were intended to be preserved. in the prison bonds act, it is declared that the property assigned shall be subject to all prior incumbrances; if the same had been the object of the insolvent debtors law, would it not also have been expressed? A statute ought to be so construed that no man who is innocent be endamaged. (3 Inst. 360.) Now if older judgments are to be paid before junior judgments, the legal remedies of the latter Would bfe impaired, by their being compelled to resort to an etchaustéd estate. And this consequence would'attach to them, though, they had been guilty of no fault; having done no more than pursue that course, for the recovery of their debts, which the law directed and sanctioned; and they would be subjected to this injurious necessity merely because they had brought actions. For those who had not sued, might refuse to resorttó the insolvent estate and might prosecute their rights against him at a future day. Where creditors suffer the same disa. bilities they ought to reap the same advantages.' The maxim, qui sentit commodum sentiré debet et onus, is as equitable . and legal a principle when stated in the converse,-qui sentit onus, sentire debet et commodum. By the bankrupt laws/the bankrupt is discharged from all debts due or owing at the time of the bankruptcy; and all debts (with certain exceptions which do not affect this question,) without any regard to their nature, come in equally for a dividend of the bankrupt’s assets. The reason is the same under the insolvent debtors law, so far as it relates to creditors compelled to discharge the debtor. The rule- ought, therefore, to be the same. And this reasoning is considerably strengthened, not only by the expressions in the law which I have already resorted to, but by the precise coincidence between its exprés» sions- in the, 3rd clause, “according and in proportion to their several and respective debts,” and those in the 33d Sec - tion of the bankrupt act, of the 5 th Geo. II. c. 30. of force when our insolvent debtors act was passed, and from which, it is probable, the words in our act were transcribed.</p> <p>Upon the whole, collecting the meaning of the insolvent, .debtors act, as well from its expressions, as from its apparent object and ii.tent, I am of opinion that all creditors (with the exception before mentioned) who are deprived of any future remedies against the debtor, are to be placed upon an equal footing; and as it has been decided, that all judgment creditors are compelled to release their demands against their debtor, they aré all to take the same dividend of his assets, without any regard to the order of their dates.</p> <p>Having arrived at the foregoing conclusions, upon the questions which have been presented, it is ordered that the monies in Mr. Kings’ possession be by him delivered to the assignees of Eliza Smith, to be by them distributed in the following nfanner:</p> <p>1st. To the payment of the gaolers fees and of the costs of the suits in the cases of Simon Mairs é¿ H. A. DeSaussure, and of the costs incurred in prosecluting and obtaining the debtors discharge;</p> <p>2nd. That they retain the usual compensation for their 'tr'oüble in executing the assignment; and</p> <p>3rd. Thatlhey dividethe balance, thereafter remaining, yateably and proportionably, among the suing creditors and all the other creditors, who, pursuant to the directions of the act, shall come in and declare their willingness to accept t£ dividend”</p> <p>From this decision, an appeal was carried up and as* gued the 24th and 25th February, 1825.</p> <p>Contended that under the law of this state, no such construction had been given, as that' taken by the Recorder. Any creditor might loose his lien. The Recorder was mistaken in being governed by tiie bankrupt law, instead of the English insolvent debtor’s law. Out act, refers to the insolvent law, (Pub. Laws, 247.) passed. 1729; and no such construction has ever been given to it in England. The common law rule of construction is the best. That-is, cotemporaneous exposition. Here the exposition has been 40 or 50 years, as he contended for it. And if the rule was otherwise, then executions lodged, for the purposes of obtaining priority over junior executions, vould loose their liens, and they would all come in pari' passu. Suppose the case of a judgment and subsequent mortgage. The statute does not take away the lien of mortgages; and by that means a mortgage may obtain a preference over a prior judgment. [Brown vs. Gilleland, 3 Eq. Rep. 539.1 Bay, 298.) The practice of a country should have weight in giving construction to acts.(l Pr. Williams, 223. 2 Str. 755. Burr. 1755.) Besides, the assignment is voluntary, gnd should not be allowed to divest prior lieqs.</p> <p>Choses in action, besides land and property out of the state, are not bound by judgments, fee. They may be so distributed. They may satisfy the language of the láw¿ The prison bounds act and this, may be construed, in some inspects pari materia. In that act all liens are retained. Judgment and other creditors, who do not choose to take dividends are not barred- (Sturgcs vs. Crowninshield, 4 Wh$at. 122. Stapleton vs. Mooreham, 6 T. R. 366. Tidd, 978,).</p> <p>cited Bingham on Judgments, 256, Cullen on Bank. 270. 157. 229. The design.of the law was to put the whole property iuto-one fund, to pay the creditors, as far as it will go, and to discharge the debtor. ( Cooper’s Bank. Law. 235.209. so 22. 63 89. 99.103. Cullen, 209.) By the act, the assignees are allowed to sue, fee,, as bankrupt assignees in England. (Public Laws, 75.) Lex- nimini facit injuriara-. If the act of the law discharges the debtor, his judgment is put into the same situation. (Bingham, 266./ The oldest execution has preference on account of diligence». The party who has taken a ca sa. seems still more diligent.. It is a question whether the tittle of the assignees vests by the assignment or by operation of law from the time of the petition. Cur act, giving the power given to assignees of bankruptcy, makes the bankrupt law, so far, in force. By the 7th section, unlessjudgment creditors come in, and show their judgments bona fide, money paid on them, vested in the assignees. By the 17th section, no debt paid to the insolvent, nor his release, after his account filed, is- a bar to suit of the assignee. As after an act of bankruptcy in England, the petition is "notice to all the world. (Cullen 229.) After act of bankruptcy he has no power over his effects. So far then, our act adopted the bankrupt law of England. Upon assignment made, the assignees may take possession, &c. and sue, fee. as the assignees of bankrupts. The 17 sec. shews they may sue by relation back, for debts paid before. If he do not render in all his property, he is not entitled to the benefit of the act. Why must the schedule be rendered at the., time of petition, if it be pot affected by it? If afterwards property is discovered, half goes to the assignees; which must be by relation to the petition and not to the assignment. ( Coop - or 82 ) This is in some respects a bankrupt law. As far as made obligatory to creditors to come in and take a dividend, it is a bankrupt law. If filing petition and schedule is to have any effect, it must be to divest debtors power over the property.</p> <p>If they have a lien and prior light, they must take through the hands of the assignees, Lien is not a right of property. The act requires parties to prove their judgment and mortgages.. These have not proved their judgments, and have lost their lien. It is a question in what manner shall debts be paid? . When this act was.passed bankrupt laws were in force. It was the received notion that judgment creditors had no priority. It was reasonable and just that all insolvent’s property should be divided amongst all his creditors. The assignees gire made trustees for all creditors who shall come in, &c and first they are to pay costs arid retain compensation, .and divide according to the amount of debts. Similar to the words made use of in the bankruptlaws. The act of Congress so provides. ( Coók 99.) The act of 2nd George divided according to amount of debts. All the property shall, make a common fund.</p> <p>The act does specify what liens shall be preserved. 'Mortgage was then a transfer of property with the right of possession, but is since made a mere security. Even pledges, before act of George 3rd, were transferred to assignees'.— Those who only give credit on the security of the property preserved their liens. Those, who give personal credit are not entitled to any preference. As to lien on subsequently acquired property,in Mayrantvs.Myers,2'Const. R. 419. thiscourt lias decided that all judgment creditors are forever barred, and their liens are not only divested but their debts satisfied.</p> <p>The suing creditor, is, in terms, made the object of the trust. It makes him pay the costs of suit, and the assignees repay him. Yet shall other judgments take all, and he who -is most diligent mulct? U hat becomes of the doctrine of lien, as to property discovered, and as to the amount necessary to pay costs? If the construction contended for be cor-.reci, simple contract creditors are in a better .situation, than judgment.creditors.. They are not bound to take dividend, nor are they bourid afterwards. The object of the act, is to prevent fraudulent judgments covering the property. They must come in and swear they were obtained bona fide. (Porieust vs. Sullivan, 1 M’C. 397.) Here the judgment looses its solemnity, and is proved by the oath of. the party and not by the record. If the party within three months, before application, prefers one creditor, (though on judgment) he is not entitled to the benefit of the act. Shall {he law give the preference, which it forbids the debtor to give? By the 19th section of the act, trustees are allowed to give the debtor 5 per cent, of his property5 which is similar to the statute of George 2nd. If theprior judgment take all, he musí be deprived of this. It would be well for the community if these liens were put an end to.</p> <p>By the common law the arrest of defendant on ca. sa. is an entire discharge of the debt.</p> <p>The act has so far altered the common law, in this respect, that if defendant is discharged under the insolvent laws, the plaintiff is entitled to come in pari passu, with other creditors, but his lien on the property in virtue of his judgment and fi.fa. is entirely gone; as to-this purpose, the judgment is satisfied. (4 Dali. 214. lb. 277.)</p>

<p>■ This was ail .action ol trespass m et armis, tried at Charleston, before Mr. Justice Huger. It appeared ‘that the plaintiff got possession of a small house in the neighborhood, of the defendants, near Monk’s Corner; that the'defendants were disposed to get.rid of him, believing that he was dealing with their negroes and was a troublesome neighbor. To effect this, they issued a distress warrant, whilst the plaintiff was from home, and seized upon such articles as were in the house, which were very'few and of little value, being such as were suitable only- for the lowest retail grog shop, worth about $5 or $10» The defendants thought they had a right to issue this warrant, as they were the owners of the place. On plaintiffs return home, he found .the'defendants in possession of the house.. He applied:-for-a writ of replevin but before it was served, he received back from, the defendants all his goods, in as perfect a state as‘lie left them. He had been out of possession only four days.' On this replevin suit, the jury found a verdict for the defendants. And.this action was now for the trespass. The facts were proved as stated .above. Besides evidence was given, that the house was pulled down by the defendants, whose property it was.. The liouse was of no great value. .The plaintiffpaid. tax. for. no property whatever. He had gone into this house about 18 months before this. The tax for the premises were paid by defendants. The plaintiff had been committed to. jail in Charleston for having been engaged - in the insurrection there, a year or two before -that. The house was pulled down at the request of the defendant,-by defendant-and the-neighbors, who had ;been invited there for the -purpose. The plaintiff was not present at the time.. He had moved off his articles, about 200 3'ards. Defendant had taken the possession, and.destrained some time previous to this. When the house was pulled down, nothing was in it. Defendant had taken quiet possession of it before. The object-in pulling down the house was to prevent plaintiff, Rhodes,' getting possession again, and to expel him thereby from the neighborhood; .as he was trading illicitly with tlie.negroes.. .The plaintiff was regarded as a nuisance in the parish, and a great vagabond, with whom no white man associated, and who cultivated no land, and owned no-other property, than as stated above, .winch were- only fit for- negro.trading. When plaintiff received back, his,goods, ,he made no complaint, and did not pretend to claim property in the land... , •</p> <p>The plaintiff,-, on .the other hand,' made some pretended claim to the land; he had -been, put .into possession by one Burney, who had had possession of .the land in 1813, as trustee for his child, and who built the. house and lived in it for, eighteen months.. It was not proved when plaintiff was put into possession. Plaintiff’s own witnesses proved that the • land was reputed to be defendant’s; and that the plaintiff , had been an - inmate of the Charleston gaol for seven or eight years, the greater part of the time for perjury.</p> <p>Mr. While, for the plaintiff,:objected to this,evidence, but was overruled. ’ .</p> <p>His honor, Judge Huger, told the jury, that lie was disposed to think that the plaintiff had been in possession, and had been illegally turned out, and that I16 was entitled toa verdict) but, that he was not entitled, in'liis opinion, to more than a cent; and of that they were to judge. He also observed,.</p> <p>' that if he had been in the situation of the defendants, he should have done as they'had done, and trusted, as the defendants were thén doing, to the good sense of a jury of his country to assess the damages.</p> <p>The jury found a verdict for the plaintiff for one cent.</p> <p>•The grounds for a new trial were:</p> <p>1st. Because-the presiding judge permitted the plaintiff’s bad character to be given in evidence, to mitigate the damages.</p> <p>2nd. Because the judge erred in his instructions to the jury, with regard to the amount of damages which they ought to give,</p> <p>In an action of trespass for-pulling down a hóuse, the character of the plaintiff cannot be given in evidence. The devil himself has rights; and the Jaw will give him his due,</p> <p>The question of the possession of the plaintiff was doubtful. The land belonged to the defendants. It was altogether a question for the jury. Character incidentally proved in shewing the plaintiff’s occupation, asa measure of damages, which was correct.</p> <p>Where improper evidence is, allowed, the court will grant' a new' triai. They cannot say what effect it produced with the jury. The evidence of character, in this case therefore was improper. (PhiU. Ev. 145.) The rightful possession was'proved in the plaintiff; which is sufficient to maintain the action.</p>

<p>This b as an action of assumpsit on a promissory note by the indorsee against the drawer.</p> <p>Tried before the recorder of the dty of Charleston, in October term, 1823.</p> <p>The pleas were non assumpsit and usury.</p> <p>The defendants counsel offered Welcome Olds, the-fndorser of the note, as a w itness to prove the us my. The plaintiffs counsel objected to his being sworn, upon the-ground that a party to the note was an incompetent witness. Authorities were produced, both in favor of, and against the position of plaintiffs counsel. The court overruled the objection, and said that it appeared to the court, upon principle, that the indorser was a competent witness.</p> <p>Mr. Olds, then, deposed that the note originally w.as given by himself and the defendant to the plaintiff for $500, at 30 days; that for his forbearance of 30 days, five dollars wore paid as a premium; that these .five dollars were paid one, two, three, or four days after the note was drawn. That $100 were, paid upon this note, and a new one given for the balance of $400 at 30 days. That upon this note four dollars were paid, as a premium for the loan, and that these four dollars were paid, either on the day when the note was drawn, or a day or two afterwards, which the witness did not ¿recollect. Upon being crossexamined, the witness said that the plaintiff had loaned him money at several times, as often as two or three times, but that these sums had been returned; and did not constitute any of the payments made upon this note; that for the last mentioned note, of $400, another note for the same amount had been given at seven days, which was the note now in suit.</p> <p>The Recorder stated to the jury the legal definition of usury and left the case to them upon the testimony.</p> <p>The jury, after having been out some time, enquired of the court whether the second premium, of four dollars, had been paid on the day when the note for $400 was drawn or afterwards. The court informed them that the words of the witness, were, that these four dollars were paid, either qu the day when the note was drawn, or a day or two after-wards, but which, the witness did not recollect. They found a-verdict for the plaintiff.</p> <p>A ihotion was made for a new trial, on the ground, thát the drawer of tbe note was an incompetent witness to prove usury. .</p>

This ivas a motion before Mr. Justice Richardson, to reverse an order made at chambers, and to discharge the\defendant -under the .prison bounds act. This was an action of trespass its- et arniis for shooting the plaintiff’s slave. The declaration simply alleged, that the defendant had shot off, and discharged a gun.- at and againsfthe said slave, and so greatly shot, hurt, and wounded him that'by reason thereof, the said slave died.

<p>This was a motion, at chambers, to set aside the pro-; eeedings in this case on the ground, that the copy writ was left at defendant’s house, at a time when he was out of thé state, at New York. A motion in arrest of judgment, was made at the same time for reasons contained in the following-statement of the court.</p> <p>The motion was made before Mr. Justice Bay, whb sent up the following report to the appeal court, “When this motion was first made by Mr. Hunt, I was disposed to grant it, as the words of the act, of 1720, (Public Laws, 109,) are express upon the subject. The 6ih clause of the act declares, that in all civil actions, the original process shall be by writ to attach the body of the defendant, and if he cannot be found a copy may be left at his dwelling house or usual place of residence; and the clause contains a proviso, that no execution or any judgment shall be granted against the body or goods of defendant, until 30 days next after such judgment obtained; and that nothing in the said act contained, touching the making any person a party in court, without arresting or attaching the defendant, shall be construed or extended to any person or persons gone off from this settlement, (meaning state or province) and not being actually resident in the same, at the time when such copy of the writ shall be left at the house of such pcrsoiras aforesaid. Upon the plain construction of this latter clause of the act, the uniform practice of our courts has been to set aside all writs, and proceedings under them, which were left at the dwelling houses or places of abode of defendants at a time when such defendants were out of the state. And an affidavit was produced in this case, stating that defendant was at New York, on the day when the copy of the writ was leffat his dwelling house, in State street, in this city: In consequence of which, I was on the point of making an order for setting aside the proceedings, when further time was requested to procure some further affidavits, which, it was alleged, would throw some further light upon the subject, which was granted. Upon the 2nd day, when this motion was renewed by Mr. Hunt-, Mr. Prioleau urged, shat the object of the act of 1720, was to prevent surprise and to guard against the inconvenience of a man’s having a judgment obtained against him without his having an opportunity of making his defence; and he produced some affidavits to shew, that the defendant had this opportunity afforded him, (notwithstanding the writ was left at his house, at a time when.he was at New YorkJ to make his defence if he pleased; but that he stood by and did not move to set aside the judgment by default against him and plead to the action, but suffered a writ of enquiry to be' executed for damages, and judgment to be entered against him. That it never could have been the intention of the act of 1720, to- permit a man, who had gone out of the state, for a short-time, and returned back, time enough to make his defence to the action alter due notice, to screen himself under the technical- words of the act, of being.out of the settlement when the writ was left at hip house or place, of residence. Such a construction, he contended, was contrary to the spirit and intention of the act,, which was only intended to guard- against surprise; and for that purpose, he relied on the case ofLarle vs. Chappel, tried at Laurens, spring-term, 1822, in which, it appeared, that a copy of.the writ, was left at defendant’s house, while he was in Georgia; Upon a motion to set aside the proceedings,upon an affidavit, stating “that he was out-of the state, when-, the copy was left, to wit, in Georgia;” without saying he was-surprised or .was in.-dangcr of suffering--injury by his not knowing of the service,:the court refused to set it aside, as the party might reside on the borders of the'state and only-' have gone,into his' fields or any small distance out of- the state, in order to-avoid service of legal-process. (1 M’Cordy 566.j Upon the' authority of this case, therefore, which I had never, seep before or heard of, I -changed the determination I had. come to, founded on-the-former, decisions of the court,|and refused the -motion, for the sake of -uniformity in' our decisions,, although • only- three judges concurred-in th& opinion quoted.</p> <p>There -was still a further ground taken in the case, in arrest of judgment; viz: that the premises were -not sufficiently described in the declaration, so as to enable the sheriff to -give possession of the premises by metes and bounds; and that the jury, in their verdict, took upon themselves to supply this defect by inserting metes and bounds therein. The description in the writ was, “that the said Wrn. Frean did' break and enter the lot and close of the said William' Cruik-shanks, in State street, in Charleston aforesaid.” The de~-scription in the verdict is in the following words:. “We find, for the plaintiff the within lot'óf land situate'in. Si ate street, in front on said street twenty-six feet, two inches, and ini depth from east to- west eighty-six feet, bounding to the north on land, now or late of Ann Ferguso-n, eastwardly on State street aforesaid, westwardly on' land partly of John Cart and partly of Ann Ferguson, and southwardly :onTand of the estate of J. Mathews, with ‡400 damages.” Upon this point, I was of opinion that although the-old law was very strict and particular in describing the nature, extent'and quantity of lanHs, messages and tenements.demanded in real actions, yet in the modern action of ejectment, (haw of Ejectment, 5,) many things have been added: and improved- by art and acquired new appellations that are perfectly well understood now by the law, that were not found, iii the law bookstand as men began to contract .by-mew-names which • were not known in the old lhw, so it was -.but reasonable-to suffer the remedy to follow the nature of such contracts; which shows that the description is now more conformable to the general understanding of men, at the present-day, than 'formerly. In this action, however, the .law- does not require ■that the thing demanded be so porticularly specified-that the sheriff may certainly know of what to give possession,, if the- plaintiff should recover. It is sufficient that the description is good to a common intent, or described in a manner in which it is-generally known and understood. The old. rule, (Cottingham vs_. King, 1 Burr. 627,j about the sheriffs being.necessarily to be informed so exactly on the record “what heis to deliver possession of” is now out of use; and the practice Is otherwise; for the sheriff now delivers possession according to the directions of the plaintiff, who therein acts at his peril and he is only to take what he has a title to, (2 Bacon 4Iff. 1 Burr. 628-9-30.) This doctrine is confirmed by Lord Mansfield and all the Judges of the King’s Bench. An ejectment will lie for an orchard; because it is a word of certain signification, it being well enough understood.' (4r Bacon 419. So- an ejectment will lie for a stable, because it is a word of determinate signification. (4 Bacon 419.j So im ejectment of an house is good, for the import and certain signification of the word .dorms or house, is well enough understood in the law. (2 Bacon 420. Palm. 337. Hutchinson vs. Puller, 3 Lev. 97.J With respect to the verdict and the finding of the jury supplying the defect in the declaration, as alleged, I observed that it is laid down in the books, that a verdict, not only cures such defects as may be called artificial defects, and come within the statute of Jeofails, but also natural defects, or the omissions of the parties in their allegations, which must be presumed to have-been given in evidence to the jury, otherwise they could not have found a verdict for the party. By which is meant all matters of form, and not matters of substance; which must be determined in every case according to the nature of it. For these reasons, I refused the motion in arrest of judgment.”'</p> <p>An appeal was taken upon the grounds.</p> <p>That the writ was served during the defendant’s absence from the state, so that he had no opportunity of appearing, as appeared by affidavit.</p> <p>Also on arrest of judgment, on the ground, that the declaration set out no specific lot or premises.- An order for judgment was made and afterwards, a jury who in such cases can only assess damages, undertook to supply thé record, by finding for the plaintiff, premises not defined. Also, because there was no rule of survey to.ascertain the metes and bounds; and because the writ of execution, founded upon an unauthorized judgment was irregular.</p> <p>A copy writ left at defendants bouse, wliije he is absent from the state is bad sei vice. (Pub. Laivs 109.) Where party is out of the state the suit must be by attachment. The true principle relating to service of writs is decided in 1 JVott&. Ml Cord, 90. In Lark vs. Chappell, (1 Cord 566,) only the particular case is decided;but so far ás principles are involved, it is in favor of setting aside this service.</p> <p>On the second ground, ho said, the jury on a writ of enquiry can only assess damages. In all actions of trespass for lands, a survey is required by law. (Pub. Laws 119.J The pleadings do not set out the metes and bounds, which they are required to do by the 83d rule of court.</p> <p>—Contended that the defendant was hot surprised; and referred to the notice given by his attorney. Lark vs. Chappell, decides that .the defendant must be surprised. Appearance of defendant by attorney cures all antecedent defects. (3 Crancli 490.)</p> <p>As to the second ground; he said, in trespass for town lots, the metes and bounds need not be set out. (Cro. Eliz. 465 ) After verdict, this description will be held sufficiently certain. (1 Burr 628.) Ejectment does not require great certainty. (5 Burr. 2.672. 1 Salk. 264. 2 Wm. Black. Rep. 706. 2 Strange 695. 1 Lord Raymond 191. 1 T.Rep. 704. 1 Bac. 160. 5 Bacon, 368. 2 Bac. 419,, 420. The law merely authorizes the court to order a rule of. survey, and is not imperative.</p> <p>The defence), in which the defendants counsel is instructed, Was given by defendants wife, in whom the-property- really is. The defendant hás.no interest in the case)-which is the substantial defence. He referred to.the affidavits. Did-not. deny the authorities that ejectment lies for-a house, orchard, &c. The objection is, that the verdict describes the premises, -when the-declaration does not.</p>

This was a motion made by the defendant in Charleston, before Judge Bay at Chambers, for the benefit of the prison bounds act. The defendant had been a vendue master, and had sold goods ior the plaintiffs to tbe amount of about 817,000. In the mean time Moses failed and tbe plaintiffs brought actions, and obtained judgments and executions against him, in June 1821, and under these executions he had been confined to the Charleston gaol, nearly two years.

<p>Tried before Mr. Justice Richardson, at Walterbo-irough, Colleton district, in November term, 1824. •</p> <p>This was a summary process to make defendants liable for three horses, under the following circumstances. It appeared in evidence that prior to, and on the 22nd August 1822, the plaintiff was the legal owner of the horses in question; that some few days before, the defendant Wm. Cántey seized them, and delivered them to the other defendant, James Johnson, a justice of the peace, at the same time making-an affidavit, that'he believed them to be the property of negroes; whereupon the said James Johnson proceeded to sell the horses, underthe 34th section of the negro act, (2 Bnv. 238, P. L. 170-lj áhd obtained for the same the sum of ‡ 69 2-5. The plaintiff being at the time sick, requested two friends to attend the sale for him; they accordingly did so/ and having Stated to defendant James Johnson the sickness of the plaintiff, they demanded the property in his behalf, forbid the sale aiid offered to swear that the property was the plaintiff’s, and that they were present when the-horses were purchased by Inin. The defendant James Johnson offered to deliver up the horses, if they would take the oath prescribed in the act*, but they refused to do so, because they could not.</p> <p>On behalf of plaintiff, it was contended that although, the defendant, James Johnson, under the act had jurisdiction of the subject matter, yet he had rendered himself liable by not complying with its provisions iii the following particulars:</p> <p>Because the act which is to be construed strictly, requires that the affidavit to be made by the party seizing, should set forth distinctly, that the property seized was kept, raised and bred for the use, benefit and profit of slaves, “ and that it was seized in the possession of a slave or slaves,” whose names should be set forth therein, and the affidavit of Cantey, upon which the defendant, James Johnson acted, was defective in the above particulars, as well as in stating simply the belief of deponent, that the horses were the property of slaves. Itwas further contended that he was hable, inasmuch as he had condemned and sold the horses without notice to the plaintiff, upon the exparte and singular affidavit of Can-tey, who was interested in the condemnation of the property, and had not reduced to writing the proceedings of the condemnation; and lastly because the act in question is unconstitutional and, therefore, void.</p> <p>On behalf of the defendant James Johnson, (the other defendant not being represented by counsel) it was contended, substantially, that he could not be made responsible for an error of judgment, and that he was justified iri .condemning the property; as no affidavit, corresponding with the one prescribed by the act, had been made before him on behalf of the plaintiff.</p> <p>The presiding judge decided that the defendant James Johnson, having jurisdiction of the subject matter, could not be made liable in a civil action, however erroneously he had acted; unless fraud or collusion could be shewn, but gave judgment against the other defendant.</p> <p>A motion was now made to reverse the decision of the judge on th# circuit, on the following grounds:</p> <p>1st. Because the said James' Johnson is liable, under the circumstances, for the value of the horses, inasmuch as he did not comply with the requisites of the act, to entitle him to condemn and sell the property.</p> <p>2nd. Because the act referred to, and under which the defendant, Johnson, professes to have acted, is unconstitutional and therefore void.</p>

Tried before Mr. Justice Huger at Charleston, in Mfiy term, 1824. This was an action of debt, for a penalty in a covenant. The defendant bad contracted to erect a steam engine for the plaintiff, according íq the terms of a sealed instrument oí writing under the penalty of $1,000. The plaintiff alleged a breach in the contract owing to the defectiveness of the work. Much evidence was introduced on the subject of damages.

<p>Tried before Mr. Justice Bay, at May Term, 1824,</p> <p>This was a foreign attachment, in assumpsit for work and labor, &c. and also on a contract under seal, which was' set out and declared upon in the declaration, and was found, ed on the same covenant or sealed contract which was sued 'upon in the last reported case, between the same parties, in which the jury gave a verdict to tlie full amount of the penal, ty. The writ was entered in the Sheriff’s Office, SOth June, 1817, at 2 o’clock, P. M. and the declaration filed 19th Jan. 1819, being exactly the hour and minute when the other' action was commenced, aiid the declaration filed. It was pro-póséd, on the part of defendant’s attorney, that this' case should 'he postponed, until Judge Huger, who tried the foriher case ánd who was temporarily absent, should resume his duty as 'presiding judge; the propriety of which proposal it was urged was made manifest by the fact, that the witnesses, many of whom were the same, testified as to facts and circumstances Which were the foundation of the verdict of the jury in the other cause. This proposal was rejected. A motion was then-made for a„ nonsuit, on the inspection of the record, it Seing manifest that this was an action On an implied assump-sit, when there'was a special contract under seal and tlie said contract let' out and declared upon. This motion was overruled; and a verdict found for the pláiritiíT.</p> <p>’A triotion was now made' for a hótisuit, on the grounds;</p> <p>1st, That this was an action of assumpsit on a contract under seal,</p> <p>2nd. That the party, having shewn' by his declaration that there was an express contract, could not recover on the counts for work and labor, materials furnished or money laid out and expended for defendants use; but could recover only on the special contract or not at all.</p> <p>3rd. That the cause of action in this case, was the samé as that in which the same plaintiff had recovered the penalty of the contract with interest.</p>

<p>Tried at Charleston, in May Term, 1824, before Mr. Justice Huger.</p> <p>This was an action of covenant. In October, 1816, an agreement was entered into by Gourdin of the one part, and Davis and Lehre of the other part, whereby Gourdin leased to Davis and Lehre Nelson’s ferry and 200 acres of land for 800 dollars per annum. In a second and independent co--venant in the same lease, Gourdin agreed to furnish half the labourers necessary to erect a bridge across the Eutaw creek at its entrance into Santee; and farther to aid and assist in opening a road of about two miles from the mouth of the said Eutaw creek; the object being that the said road and bridge be at the joint expense of the two contracting parties. The plaintiffs complained of a breach of this covenant on the part: of the defendant.</p> <p>The pleadings made two questions:</p> <p>1st. Was there a breach on the part of defendant? and!</p> <p>2nd. If there was; to what extent had the plaintiffs been injured?</p> <p>It appeared from the e\idence, that the bridge and road in question were of considerable importance to Nelson’s :'stry. The benefit to accrue from them was estimated at Norn two to three hundred dollars per annum, and the said bridge and road had not been made. The road from Charleston to Nelson’s ferry leaves the Congaree road, not many miles from the ferry, and takes a more northerly direction,, The road contemplated would run from the ferry, in ” south west direction, until it intersected the Congaree road. It is often difficult, and sometimes impossible, to cross the Santee at Nelson’s ferry, from freshets. Could travellers re™ turn into the Congaree by the route contemplated in the agreement, and not be obliged to retrace their steps on the present road, it was thought certain that many would cross at Nelson’s, who are now deterred by the necessity of returning on the present road, should the ferry be difficult or ink’ passable. There appeared to be two or three blind roads running from the mouth of the Eutaw' creek towards the Con-garee road, sometimes in the direction of the road contemplated. But one, was opened several years since,.nearly south, by one of the witnesses, when he lived at the ferry, to facilitate his approach to his summer residence in the pine barren; there was another in a more westerly direction, which was called the neighborhood road. The one which the plaintiff wished opened would have taken a still more westerly direction, and pass through a swamp attached to Williams’ creek. This would have effected more completely the object of the parties than any other; as less distance would have been lost by travellers who might be unable to cross at the ferry.. There were advantages' and disadvantages peculiar to each course. It is thought unnecessary here to state them all. It is however, important to state that the road by Williams’ creek would pass over lands said to belong to Samuel Gour-din, the son of defendant, and, land belonging, or said to belong to one O’Farrell and his heirs. Mr. Davis had directed his overseer to open the road; and he informed Mr. Gour-din, the son, then living on the land, of his instructions, who replied that the road might be opened if they pleased as far as his line, but not beyond it. The son occupied and planted thé land from .the date of the lease; before that period if had been called the land of his father. On the 1st and 7th of February, 1819, defendant wrote to Davis and proposed to build the bridge across Eutaw creek, if Davis would give 200 dollars, or that he would give Davis 200 dollars if. he would build the bridge. He further observed that the road could not be cut without.the.sanction of the legislature. On the 14th of February, Davis, in a letter,to Gourdin, insisted upon having the road,and bridge made; this appeared by a-copy .of the letter transmitted to Lehre in a letter from the defendant on the 7th February, 1819. .Op the -7- — of ■ 1819, an act was passed authorizing the .road by Williams* creek to be cut. At this time, Davis was a,member, of .the legislature. Qn the 22nd.of July, 1822, the defendant, by his attornies, Simons, and Waring, proposed.to Davis to. build the bridge and cut the road for 400 dollars, if he would do it. ,It was stated by ttyo witnesses, on the part of the plaintiffs, -that in,conversations with defendant, at different times6 he said that a road could.not.be cut .without an act. of the legislature, and had he known how. averse .his son was to have the road run through his. land, he would, not have, entered into any agreement .about openipg.it.</p> <p>The presiding judge charged the jury-if the .defendant had been, guilty-of a breach of .Ins covenant, they ought to give full-,damages; but,.he thought, he.had not. That.by the words and spiritof the .covenant, he wasto,be,regarded only,as an auxiliary. That Davis, was principal, .who ought to have called'upon defendant to proceed, with the . work and ■not defendant upon him. That the.agreement-wasloose; no specified direction,for the ;road;,to take;.and,that.certainly there was pothing.in.it which authorized,-D.avis to designate €he direction. That if Gourdin had refused wilfully to do any thing in the matter* he ought to be made to pay.</p> <p>The jury found a verdict for plaintiffs.</p> <p>An appeal was now made, on the grounds:</p> <p>1st; That no breach of covenant, On the part of defend» ant was proved.</p> <p>2nd. That the damages were greater than were warranted by any testimony adduced in the cause.</p> <p>Gourdin putting his son in possession of the land, through which the road was to run was an attempt to take advantage-of his own wrong, and the verdict is proper. The question Was tried upon it's nierits, without reference to form. The opening of the road was the consideration of the advance in rent, and the plaintiff was entitled to damages on the covenant.</p> <p>The opening the road was a secondary stipulation in the covenant. This same case has been before the court before, and it was held the covenants were mutual and independant. (2 M‘Cord’s Rep. 514.) Before Davis Should have his action on the covenant, he should at leastnotiiy Gourdin, that he was ready tocommence the road, &c. Paying O’Farrell for the land was a condition precedent, and Davis should have been the agent in-doing so. See the act authorizing the road tobe made. The verdict should only have been for half the expense of building the bridge and making the road.</p>

<p>•A usage, to become law, must be of long standing, general, in its operation,, and known to,, and acquiesced in, by all those whose rights are affected by it, besides being, just and reasonable in its operation.</p> <p>The consignor is Hablé to the carrier for freight; and the carrier is not bound to look to the consignorYfafttor for it; and nojlegal Usage or cuatom’to the contrary exists iii Charleston.</p> <p>■ if the consignee be liable, it- does not free the- consignor from his liabilityras two may be liable for one debt.</p>

<p>Trespass for obstructing a way.</p> <p>Tried before his Honor Judge Richardson, in January Term, 1824.</p> <p>This was an action of trespass for obstructing a way claimed by the plaintiff to his island, called Goat island, over the defendant’s land, called Stent’s point. It was proved that there was no land passage to Goat island, except across some part of defendant’s plantation, and this action was for a right of way through his plantation. A vast number of witnesses' were examined on both sides, and the evidence contradictory; however, the Reporter considers it only necessary to publish such parts of the casé as presented legal points on the very important doctrine of prescription. After the evidence closed, the plaintiff’s counsel contended that a grant of way in the O ' ners of Goat island was to be presumed from 1 .oag island being an old settlement; that the convenience of the way proved there was a grant of it; that W. Lawton proved there was a beaten path which was used five years before 1776; that indeed the Savannah road continues to Goat island, though they disclaimed the right to a cartway; and finally, that it was to be presumed that the grantee of Goat island was also the grantee of Stent’s point, and when he granted out Stent’s pointy he reserved the right c¡í nay ex necessitate from bis Goat island place, through Stent’s point, and that non user for for 20 years did not destroy a grapt of a right of way.</p> <p>To these arguments, the defendant’s counsel replied, that no prescription in favor of Long island could benefit Goat island; that if convenience could raise a presumption of a right of way, inconvenience could destroy it, and this was more inconvenient to defendant than convenient to plaintiff. It was denied that Lawton proved any pa h appertaining to Goat island; he spoke of Long island; that if the Savannah road was the one claimed, it was a public road; and therefore/ plaintiff must fail in his suit, as he could not claim a private right of way over alpublic road, ( Co. Litt■ 5G, 1 Esjo. R. 148;) that all the presumptions about the owner of Goat island also owning Stent’s point were baseless and fanciful, and if true, the consequences did not follow ex necessitate. That the plaintiff must fail in this case, on the ground of necessity, under the decision of Lawton and Rivers, (2 XlCord, 447;) for the way by water was just the length of the way by land; that there was no proof or presumption of a grant, and the ground of prescription failed, because there was no adverse use proved to be continued, and uninterrupted for above twenty years, according to the doctrine established in the same case; nor was the road identified, but was here hodie, and there eras.</p> <p>The judge charged the jury, that his directions to them would be better given by reading the decision of ihe Constitutional court in the case of Lawton and Rivers, than by any other charge; as that case shews the nature of the necessity to be proved by a plaintiff, and also the requisites oí prescription. That as to the proof of identity, he left it to the jury, but stated that in his opinion even the termini need not be preserved, and yet the same road might exist, if the thoroughfare were one and the same and such a continued use of the same general coarse and road as to keep up the idea of a grant. He told them that there was testimony to raise a presumption of a prescription in Littlejohn for a way to Long Island, but that it bad nothing to do with the ease* and the jury should not regard it; that it would be immaterial to plaintiff even if Littlejohn could prove it, as plaintiff was not connected with him.</p> <p>The jury found for the plaintiff a cart way on the line between Mrs. Stent’s and Mallory Rivers,’ and damages-enough to carry costs.</p> <p>A motion was now made to set aside the verdict and for leave to enter a nonsuit, or if that be refused, for a new trial, upon the following grounds:</p> <p>1st. Because, as the plaintiff, by his declaration claimed a cart way, and no cart rvay whatever was proved to have existed at any time over any part of defendants land, a nonsuit should be granted.</p> <p>2nd. Because, if such a way ever existed, the terminus a quo was not ascertained or proved, and, therefore a nonsuit should be granted.</p> <p>3rd. Because no verdict for the plaintiff could have been legally found on the right of way by necessity; neither should it have been left to the jury on that ground; for it was proved that the access bj' land and water, other than over the way claimed, was at all times as short, and when the tide was high, was shorter than any passage over the defendants land; and, therefore, under the decision of Lawton and Rivers, ( 2 M‘ Cord,) no necessity could exist.</p> <p>4th. Because there was no circumstance in the cas© which could authorize the presumption of a grant of the way from the owners of Stent’s point to the owners of Goat island.</p> <p>5th. Because there was no prescription proved in the owner of Goat island from continued and uninterrupted use; , nor was the way claimed identified by any definite limits, nor was the use thereof, if any existed, exclusively in plaintiff or his predecessor, or adverse to the defendant, or to those through whom he claimed,</p> <p>6th. Because his honor stated to the jury that he did not think it necessary that even the termini of the way claimed should be proved to have been preserved, in order to establish the existence of the way prescribed for.</p> <p>7 th. Because the said verdict was contrary to law, evidence, and the charge of the presiding judge.</p> <p>Had hoped that the case of Lawton and Rivers, would have settled this. It is essential to prove the prescriptive right as claimed. (Rotheram vs. Green, JYoy 67: S. C. cited in 1 Camp. Rep. 315-note.) The plaintiff has prescribed for a cart way. Unless twenty years use be proved he should have been nonsuited. The proofis, that one witness once saw a cart going that way. Lawton’s foot path is not more thah a foot wide. There was not a shadow of testimony. One of the counsel disclaimed.</p> <p>The terminus a quo has not been proved. No witness can tell where it commenced, which should have been done. {Albon vs. Brounsal, Yelv. 1-64 and note.) The terminations of a road prescribed for must be proved. He must shew a quo loco ad quem locum, and the road should be constant, not .one place hodie, another eras. A nonsuit ought to be granted.</p> <p>In 2 M‘Cord, 445, Lawton and Rivers was a case regarding the same way, and that case shews there must be an actual necessity. The road being direct from Turnbull’s to Dixon’s island landing, did not create an actual necessity. Here no grant is shewn.</p> <p>As to prescription, use must be continued at least 20 years and must be of the same way and must be adverse, and must be of the same way without Variation. The testimony is clear that it continually varied. Adverse possession is negatived by the testimony. It always went by Mrs. Stent’s permission.</p> <p>— The jury have decided on facts. The judge charged the jury correctly. Whether the road was used, continued, or obliterated, were matters of fact. To .-et aside a verdict for wrong finding, it must be .so wrong as to warrant a belief that the jury were influenced by corruption, or obstinacy and ignorance, bordering on it. From Stent’s point thejr cross a similar marsh to get to tiio main of James island. It may be presumed that the same person owned all. Superior convenience strengthens presumption.The proof of a road to Long island, shews a road to Goat Island, an intermediate point. Goat island, a small place, could not afford frequent acts of user. The proof of a cart once passing, may with other facts, raise a presumption of further user. The making a gate and road suitable to a cart, for use in a single instance, is a strong presumption. Here is great necessity in this case. The property has been shewn to be utterly valueless without this road. By water it is a difficult passage ®f several miles.</p> <p>Cases similar in principles may differ in facts. In the case of Lawton vs. Rivers, there was as near a way by water as by land. Both residence and plantation were on the same high way. In this case to go by water is two or three times the distance by land. In that case the plaintiff was obliged to go part of the distance by water. Presumption is that both places here were granted together;' if so, the original owner had the right of way, and reserved it when he, sold Stent’s point. Evidence that traces of a way were plainer some years since. The contradictory testimony here is peculiarly for a jury.</p> <p>It is said the jury found a cart way from no evidence fout the passage of a single cart; but other circumstances were proved; as making gate and causeway. The judge laid dowa the law correctly. It is said the terminus a quo is not proved. It is the Savannah road, not a particular point on that road,It is not necessary to pursue always the same precise line. Identity of the use determines the identity of the road. It may be easy, to effect the- some purpose; viz, to get from the Savannah road to Goat island. The witnesses say they had rather give up the island than use it without this road. Here Was practical necessity. No oilier practically convenient method of getting there.</p> <p>The authorities quoted do not apply to the present case. The ways were defined with precision there, here it must be necessarily varying in some degree, it has been sufficiently identified in this case. Occasional deviations will not destroy the identity;</p> <p>Said there were three modes of getting a road, and it is questionable whether there is not a fourth — by the verdict of a jury. It is not a matter for the jury to judge of the necessity! Doubted whether the jury can find a right of way from a self created necessity. Can one by purchasing part of A’s land acquire a right of way over B’s; a right which A did not possess? (1 (Saund. 323, n. 6.) Is the rule recommended by expediency? Does the law give a right to one to take from another’s land, because he adds much to the value of his own? Because it will be a matter of convenience to cultivate Goat island, and make five bags of cotton, does it authorize him to commit a trespass? The necessity originates when he wants to cultivate. As to the presumption of a grant, has it been proved by presumption? The presumption is assumed that all was owned by the same person. (% Evans’ Pothier, 340. fVilles 76.) Presumption is nothing, when it is in the party’s power to give positive proof. Must not give secondary proof, when better can be had. It is substituting possibility for proof.</p> <p>As to prescription, put it on the ground that possession gives a right to the land itself, and will do so to the accessories, (3 T. R. 159-J yet in analogy to the statute of limitations, possession must be constant and certain, as well as adverse. The user should be of such a nature as to imply a constant claim of right on one part, and acquiescence on the other, .ill the witnesses say every body went that way, as often as Turnbull and those under whom he claims; all the world have the same right. Here the grant is presumed from -’.ser. but they first presume user and then the grant, is the presumption of a grant more favored than tlie grant itseli? That, if relied on, must be proved. Proof of user here has been user by other persons, except in some slight instances. It has been rather proof of a public than a private way. ( Com. Dig. Tit. Chemin, 25 and 57.) If any thing was proved, it was the right of jumping fences. Like a prescriptive right of sporting. (Evans’ Potheir 240.) Necessitj? should be confined to the case of persons granting lands and is supposed to grant the right of way with it.</p>

<p>Tried at Barnwell in the Fall Term, 1824, before Mi\ Justice Richardson.</p> <p>The plaintiffs in this case had obtained a judgment against the defendants, on a bond which was secured by mortgage. After obtaining the judgment they filed a suggestion to obtain sale of the mortgaged premises, and obtained judgment by default on the-day of-1815. The suggestion did not state that judgments had been obtained against the defendants subsequently to the execution of the mortgage andbeforethe obtaining of the plaintiff’s judgment on their bond; but a sale of the mortgaged premises wa? ordered on a credit of-■. At this term, Thomas T. Willison showed to the court by affidavit, that at the time of filing the suggestion and obtaining the order for the sale, of the mortgaged premises, he occupied the premises claiming the same as owner, and that he had no notice of the proceedings until after the sale was made; and that suit had been brought against him to fry title to the premises by the person who purchased the same under the order for sale; and thereupon moved the court to arrest the judgment for the sale of the mortgaged premises and to set aside the proceedings, as 4efective, on the grounds that the suggestion did not state intermediate judgments to have been obtained against Bour-deax or his representatives, and that the land was ordered t® be sold on a credit which the law did not authorize (a.) The presiding judge thought the proceedings defective, and inclined to grant .the motion; but a motion being made t® amend the suggestion, upon hearing argument, he granted leave to amend, and refused to order the proceedings to be set aside.</p> <p>Willison appealed from the decision of the presiding judge and moved to reverse the same and to set aside the proceedings, on the grounds:</p> <p>1 st. That leave to amend ought not to have been granted, the proceedings being utterly defective and void, and there being nothing by which an amendment could be legally made.</p> <p>2nd. That if the suggestion was amendable, the order to set aside the judgment should still have been granted, and the said Thomas T. Willison allowed to plead to, and defend the said suggestion.</p> <p>The court derives its authority to foreclose mortgages from the act of 1791, (T Faust Pub. Laws 63.) Where a statute authorizes a particular mode of proceeding, that must be pursued, and if it is not, the proceedings are defective and void. King vs. Horne, (4 Term Rep. 349; Goodwyn vs. Parry, Do. 577.) An irregu-Ianty may be amended, but when the proceedings are entire,;!y defective, they cannot be amended. (Tidd. 485, 661; JYewnham vs. Law, 5 Term Rep. 557. MaddLch vs. Ham-tnel, 7 Do. 51. 1 Bacan Ab. Tit. Amendment, D, 4.)</p> <p>In the first place, the application came too late. See Mooney vs. Welsh, (1 Const. Rep. 34.) In the second place, the applicant is a stranger to the proceedings. (Thompson vs. Caldwell, 2 M‘Cord 390.Barkley. vs. Scriven, 1 JYott &/•.iii(Cord, 408. Ib. 11.) And</p> <p>In the third place the act prescribes no form; but the 43rd and 44th rules of court do, and they have been complied with.</p>

Action of Replevin. Tried before his Honor Judge Huger, Charleston, May Terra, 1821. The plaintiff had occupied a house belonging to the defendants, for the rent of which they distrained.

This action was founded on the following undertaking: “ Charleston 12th February 1820.

Tried at Charleston i» January Term, 1824, before Mr. Justice Richardson. This was an action of assumpsit on the following promise, viz: “ I undertake and promise to pay the plaintiff the amount of the within execution, with interest and costs, on condition that the defendant have indulgence for two weeks from this date, May 22d 1822.” Jacob Eggart.

<p>On a bond with a penalty of $5000 to perform covenants, the jury found a verdict for $500. Held that, interest on the $500 could not be collected, interest on judgments can only be collected where the original cause of action bore interest.</p>

This case was heard by Mr. Justice Waties who made the following report: “The above case was as follows: The plaintiff, a citizen of this state, sued out of the court of common pleas of Charleston district, a writ of foreign attachment against -Jeremiah Thompson, a citizen of New York, which was served upon goods in the hands of guarnishees.

<p>The act of 1817, taking, away from the Commissioners of the roads tiie power to grant or open any new road over the lands of psrsons who shall signify to the board any opposition, &c. was held by the court to extend to 11 private paths," mentioned in the act of 1788, and to all description of ways.</p> <p>It was also held that the Commissioners had not the power to shut npa'new way which they had opened, and to open again an old road which they had closed. The commissioners are not the judges to determine the-necessity which gives a way.</p> <p>Where a party is entitled to a right of way over the lands of others, the .owner of the land, and not the claimant of the road is authorized to lay off the road, in such a manner as is least inconvenient to himself; and if he refuse to lay off the road or obstruct it, an action should be brought against him.</p> <p>It seems, that jf the plaintiff is' entitled to a right of way oyer the defendants land, the erection of gates upon the way is not such an obstruction as will give a right of action.</p>

Justice Richardson. The appellant in this case was taken up under a Warrant from John Michel, one of the justices of the peace, on a charge for insolence, and for an attempt to strike Mr, William M‘Dow; and a court composed of the said magistrate and two freeholders was formed for the purpose of trying him under the act of assembly, regulating the trial of negroes and slaves.

<p>the act of 1740, authorizes any person to seize and carry to the nearest magisirate, any horses, kept, raised or brpd by slaves, who is authorized to sell them. But the horses must have been appropriated for the peculiar use and benefit of slaves.</p> <p>though the horses be condemned and'sold by the magistrate as the property of a slave; yet the true owner, if he be a freeman may have his action for damages against those who seize his horses. The decision of the magistrate is no bar to the action, and the fact that the plaintiffs agent had notice of the seizure cannot alter the case; as no person can take the necessary oatli before the magistrate, but the owner of the horses.</p>

<p>":If a circuit judge, whose duty it may be to boid any particular court, should be absent, from indisposition, &c. any other circuit judge is authorized to supply bis place: The judges of the appeal court are only required t© do so, in case of the absence of any circuit judge or chancellor.</p>

A notice was served by J. B. Legare on Holmes & Waring, that a motion would be- made befare W. S. Smith Proíhdnotary of Charleston, to tax a bill oFcosts in this case.

<p>Tried before Mr. Justice Bay in October term, 1824, who made the following report of the evidence;</p> <p>“John Anderson, the prosecutor, proved that, in the month of June last, as he was going on board of his schooner, then laying at Crafts’ north wharf, in Charleston, he discovered Davis on the wharf, near the vessel. He got up from behind some easks and then walked up the wharf When he went on board of his schooner, he discovered that the companion door had been broken open. He went down into the cabin, and there being no light in it, he felt about in or-der to discover whether there was any body in it or not, and soon found the prisoner, Wilson. Upon enquiring of him who he was and how he came there, he said one of his sailors had given him permission to come on board, and that he belonged to the sloop Mary. Witness said he had no sailors on board his schooner, he had discharged them the day before. Witness then laid hold of him and dragged him to the forward part of the cabin, and then brought him upon deck Witness called out to one of the guard men he had passed in coming down to his vessel; but not getting an answer he jumped on the wharf. At the same time, Wilson jumped off the quarter deck of the schooner and attempted to run. The witness ran up to stop him, when he drew a dagger on witness and made seven or eight passes at him; but gave him only pne wound on the fingers; upon which he closed with the prisoner and threw him and took away the dagger from him. On which he immediately discovered it was his own dagger, which prisoner had taken out of the cabin. Witness still called out for assistance, when one of the guard came «p? and Capt. Town soon after. Witness then requested Gapt. Town to remain on board his schooner white' he assisted the guard men in taking Wilson to the guard house-The prisoner gave witness a blow after he was in tho guard house. When witness returned to his vessel, Capt. Town had procured a light from his mate and steward, who were also there. Witness was preparing'to go to bed, when Davis came down (this was some time after he had relured from the guard house) and hailed him and asked what had become of the man he had found in his vessel. He gave him an evasive answer, in hopes of some person coming to his assistance. Davis said the man was an old ship mate of his and fellow boarder. The guard soon after came down., and they ecured Davis and took him to the guard house. When witness returned again to his vessel, after securing Davis, he discovered that his trunk had been broken open or unlocked, and emptied of all its contents, and put into a clothes bag, on which' Wilson lay when he first found him, behind a desk, on his first entering the cabin. Witness also discovered that the mate’s trunk had been taken out of the cabin to the lore part of the schooner, but not opened. The contents of his trunk were, six shirts, five pair of pantaloons, eleven pair of socks and stockings, three or four vests and outside jackets. His sword had also been taken out of thb cabin and carried on deck. On being cross-examined, witness said that Davis was concealed behind a cask when he first perceived him. Here the testimony closed. The court observed to the jury that there could belittle orno doubt as to the guilt of Wilson, as the testimony was very clear against him; but that it did not appear, that there w'as sufficient evidence against Davis, to convict him as a principal in the offence; but the jury thought otherwise, and brought in the following verdict, viz: “ We find Henry Wilson guilty of grand: larceny, and James Davis guilty oí petit larceny."</p>

<p>This was an indictment for killing a slave in heat and passion.</p> <p>Tried before Judge Colcock.</p> <p>The indictment in this case was in the common form and contained two counts, for murder, and manslaughter at common law, omitting, however, the averment that the deceased died of the wounds inflicted. The prisoner was convicted on the second count in the indictment which was framed on the second clause of the act of the 20th December 1821 for killing a slave on sudden heat and passion. This count charged that the prisoner, “ in and upon a certain negro slave named Dick, the said Dick being the property of Barbara Holmes in the peace of God and of this State then and there being, feloniously and upon sudden heat and passion, did make an asault fee.” and after setting out the instrument with which the wounds were inflicted, tlieir nature and extent, in the usual way, concludes thus; to wit, “ of which said mortal wounds the aforesaid slave Dick then and there languished, and languishing did live, for the space of half an hour, and at the expiration of said half hour then and there died; and so the jurors aforesaid upon their oaths aforesaid do say that the said Henry Wimberly, the said slave Dick in manner and form aforesaid feloniously and upon sudden heat and passion did kill and slay against the form of the act of assembly &tc.”</p> <p>A motion was now made to arrest the judgment on the following grounds,</p> <p>1st. That the structure and averment of the count present the crime of manslaughter at common law and not the killing on sudden heat and passion under the act.</p> <p>2nd. Because the averment, that the deceased died of the wound, is omitted.</p> <p>Elli&son, contended that the indictment was wrong in stating the offence- as felonious. The legislature, by the act Intended to create a pew offence. The killing in heat and passion was made a misdemeanor; and was not intended to bp subject to the principles of the common law. It is punished by a fine. Felonies at common law carry with them forfeit ture of goods. This is a statutory felony made so by the act; and the instrument must describe the offence specifically. (Crown. Cir. Comp. 105.) The indictment avers that he died at the expiration of the half hour, but not of the wounds, The charge must leave nothing for inference. (Ib. 105.J</p> <p>If there had been no legislation on the subject, it would be indictable at. common law. It is the killing of a reasonable creature and the act only changes the punishment. (see act of 1740.) No new offence was intended to be created, only a new punishment. Otherwise no case of manslaughter but killing in heat and passion, -would be punishable under the act. As to the second ground the plain construction of the indictment is, that he died of the mortal wounds.</p> <p>Slaves have no' personal rights. The act of 1740 adheres to the old forms, but does not make it manslaughter, which would he felony. To say he was in the peace of God and the state, was not applicable to the'condition of a slave. Before the act of 1740, defendant might Have been indicted at' common law. A slave is no body. He has no personal rights. If you apply the common law, in extenso, you must have express or implied malice. The word feloniously is not surplusage and therefore can not bo stricken out.</p>

Tried at Charleston, before Mr. Justice Bay. This was an action of assumpsit, brought on the following order; Charleston, June 13th, 1822.

<p>Tried before the Hon. Judge Colcock.</p> <p>William Kincaid brought this action by summary pro-■tysss, to recover from the defendant >J40, being the amount of property belonging to Wm. Gloss, which the defendant had; sold under execution. The facts were these. Wm. Gloss was indebted to several persons in the neighbourhood in which he lived, among whom was the present plaintiff. On the 29th May 1822, the plaintiff went before a magistrate and took out an attachment for his debt, which, on the same day, he had levied by a constable on the property belonging to William Gloss. The plaintiff’s debt, as set forth in the attachment, consisted of a book account for $51,43 cents, also a note for $33,68 cents, with interest from the 1st January 1822, making the amount due on the day on which the attachment issued including the interest cn the note, $86,20.</p> <p>The clerks office was examined and no bond could be found, which the magistrate should have taken and returned, as is required by law. On the 30th May 1822, the constable who had levied the attachment also levied several executions on the same property, at the instance of other creditors, by virtue of which executions the property was afterwards sold.</p> <p>Wm. Gloss, three days after the issuing of the attachment, came forward and confessed a judgment to the plaintiff for the debt, for which the attachment issued, which judgment was signed and execution taken out on the 14th June 1322. The plaintiff after the property had been sold under the above executions, required the constable to pay over the proceeds ihe sale in satisfaction ofhis debt; contending tliatthe plaintiff’s attachment atad levy under it, were void, and that the money belonged to the executions. The constable having ^refused to pay the plaintiff the money, he brought this suit. On the trial it was contended for the defendant that the attachment* under which the plaintiff claimed a lien on the property was void, because the plaintiff had not given to the magistrate an attachment bond, and because no such bond was returned to the court; both of which are required by the act of the legislature. The court was of opinion that the attachment was void; but that a third person had no right to take the objection.</p> <p>It was further contended, that admitting the attach-* aiciii to have been good,'the levy made by the constable was void, in as much as the debt for which the attachment issued exceeded twenty pounds.</p> <p>The court also overruled this objection and gave a decree for the plaintiff.</p> <p>The defendant appealed and moved the court to reverse the circuit decision, and for a decree on the grounds above stated.</p>

Trespass to try titles, tried before his Honor Judge Richardson, at Lexington. The plaintiff produced a grant to the land in dispute to one Busbie, and a regular chain of title from Busbie down to Jesse Allen. He proved that Jesse Allen died intestate, in 1806, seized of the land, leaving a widow and four children.

This was an action of trover to recover the value of a negro woman called Sarah, and her three children, Jane, Charles and James, tried before Judge Gantt- The plaiutiff claimed under a deed of trust from Joins Bell, to himself, dated 15th January, 1813.

<p>Neither the plea of nil haiuit in tenementss, nil demisit, nor riere passa, can be pleaded to covenant for rent on an indenture, for it operates a3- as estoppel.</p> <p>But the estoppel only exists during the continuance of the occupation of'the tenant; and if he be ousted by a paramount title he may plead if.</p> <p>An outstanding title, alone, will not discharge a lessee by indenture. He must be evicted, or prevented from entering or from enjoying the thing demised, by virtue of such title; and he must set out the title in his ple»j gnd shew particularly how it arises, Where a person was in possession by an outstanding lease, and refused fa give possession to the new lessee, it is tantamount to an eviction.</p> <p>ÍNo particular words are necessary to constitute a lease, but there must be an interest in the freehold conveyed. And an agreement to iak.e charge of a ¡ farm and to work on shares is not such an outstanding lease, as will \ amount to an eviction, where the person in possession under such agree* l ment refused to deliver possession to the lessee.</p>

<p>Asheviffmay assigna bond given to him as sheriff, for properly bought unde?-an attachment sale; and the assignee may bring the action in his owe name, as assignep.</p> <p>Wherever a bond is drawn to one and his assigns, by the law of the contract it is assignable.</p> <p>Though the idorsement was in blank and filled up, after suit was brought, it is good.</p>

<p>Tried at Marlborough before Judge James.</p> <p>This was an action of assumpsit to recover the consideration money agreed to be paid for a tract of land. The plaintiff’s counsel offered to prove the hand writing of defendant to a written agreement for the sale of land not un - der seal, by other testimony than the subscribing witnesses. Evans, for the defendant, moved for a nonsuit, on the ground that the act of 1802 dispensed with the attendance of subscribing witness only in the case of bonds and notes, expressly mentioned, and that as to other contracts the common law remained of force; and the court being of that opinion ordered a nonsuit.</p> <p>From this opinion the plaintiff’s counsel appealed, on the ground that his honor was wrong in refusing to admit evidence to prove the handwriting of the parties to a written agreement not under seal, for the sale of land and payment of money by other than the subscribing witnesses.</p>

<p>Trespass to try title, tried before Judge Gantt.</p>

<p>This was an action of trespass to try title.</p> <p>The Reporter deems it unnecessary to publish any thing more than the opinion of the Appeal Court.</p>

<p>Hi debt on an administration bond, against (he administrator and security, a decree obtained before'the ordinary against the administrator, may be given in evidence to shew the amount of damages. The security was not summoned when the administrator was called to account.</p> <p>'St is not necessary to summon the security to an anministrator, bond before tlie ordinary, where the administrator is called to account.</p>

<p>This was an action of trespass to try titles. Tried before hiá Honor Judge Colcock.</p> <p>The plaintiff’s grant was the elder one, and if it covered the land in dispute the plaintiff was entitled to a verdict. To close the plaintiff’s grant by course and distance it would ■not cover the land in dispute. Two corners of the plaintiff’s land were established, and to close from these the land was ihe defendant’s. But the plaintiff contended, that a gum-tree corner on the bank of Bush river was the corner of her grant; and if that was established, then, that her grant would cover a part, if not the whole, of the land in dispute. But to set out at the pine comer and run out the land as far as marked, and pursue the course, it would never arrive at the gum, it being a considerable distance out of the course; besides the distance of the lino would not reach the gum corner by at least one half of the land in dispute. The gum corner was cut out by the surveyors, and by the growth of the tree counted twenty years younger than the plaintiff’s grant. To close from the gum corner according to the course would cross Bush river and make the closing line nearly half a miie too long. Bush river was not noticed in the original survey. To close agreeably to the lines contended for by tiio plaintiff, from the gum, not only was contrary to the course and distance and figure of plaintiff’s plat, but was unsuported fey a single marked tree, although two corners intervened, according to the plaintiff’s plat. The plaintiff offered to prove, that a certain William Golding (deceased) had said he was a chain carrier at the time of the original survey and that the gum was the corner then made. This testimony was objected to. as. inadmissible upon general principles, besides heing made after the commencement of a suit between the present defendant and the plaintiff’s devisor. His honor permitted this testimony to be given. A witness, Marmaduke Coate, said, while a former suit was pending for the land in dispute, the deceased, Golding, came to the house of the plaintiff’s devisor and he was sent for to see him point out the gum corner. When he went he found the plaintiff’s devisor and William Golding at the gum corner. Golding then said, that was the corner of the original survey, and that they run a straight line from that corner to the pine corner on the defendants land. This line would leave out about half of the land in dispute, and the defendant’s trespass would be on his own land. Other witnesses said they had heard Golding say that the gum was the corner. Mr. Neil, said that for about twenty years the plaintiff’s devisor, William Coate had, claimed the gum as his corner. Mr. Chandler said his father, forty years ago, had said the gum was Coate’s corner.</p> <p>On the part of the defendant it was proved that Golding was a man of light and suspicious character, that the plaintiff’s devisor was his brother in law, and that thirty or forty years ago the land was regarded as vacant. By Bowell, the defendants grantee, it was proved that Coate knew of the survey, and at first he set up a claim and afterwards abandoned it. The land had passed through several hands and had been once sold at sheriff’s sale, and Coate had never made known any claim, until about three or four years ago. His Honor charged the jury that if they believed the gum corner to be the plaintiff’s corner they might find the whole of the land for the plaintiff, and he expressed a strong opinion to them that that should be their verdict.</p> <p>The jury found for the plaintiff, the land in dispute and four dollars damages.</p> <p>The defendant appealed and moved the constitutional court for a new trial.</p> <p>1st. Because His honor erred in admitting the statements of William Golding to be given in evidence.</p> <p>Bauskct and Dunlap, against the motion, cited Phillip’s Ev. i 84. The declarations of a dead person, who surveyed the land are always admissible. (6 Binney Rep. 59.) Hearsay admissible to prove boundary.(2 Haywood’s Rep. 349.)</p> <p>Declarations have never been admitted to affect private rights. (Phillips Ev. 184.)</p>

<p>In this case, which was a motion to set aside a nonsuit¿ several important points where brought up by Mr. Haynes-worth the appellants counsel, but the court set aside the non-suit on the ground, that where there are two defendants, against one of whom there is a judgment by default, the other defendant cannot nonsuit the plaintiff.</p>

York Spring Term, 1825. The defendant assigned to the plaintiff a note given by one William Kerrs, and promised “ to make the same good if it was not,” or in other words to pay if the drawer proved insolvent. The note was not negotiable. The plaintiff sued Carr to the first ensuing court and got judgment at the second court, but gave no notice to Mullen until after the judgment against Kerr, which was nearly, or about, a year after the note became due.

<p>Tried before his honor Judge Gantt, at Laurens fall term, 1824.</p> <p>The plaintiff commenced an action of debt against the defendants on a guardianship bond, given to him as ordinary, by Wm. Maddox as guardian and the other two defendants as his sureties. The defendants pleaded specially that neither the one, as guardian, nor the other two, as sureties, had ever been called on to account, either in the court of ordinary or equity.</p> <p>The plaintiff demurred generally to this plea.</p> <p>The presiding judges sustained the demurrer.</p> <p>The defendants moved the Constitutional Court to reverse this decision, on the ground.</p> <p>That the action ought not to have been brought on the bond, before the accounts were adjusted in the proper court.</p>

1 he plaintiff bought a horse from defendant, paid hira the price, ‡ 100, and took a receipt with a warranty. The sheriff afterwards levied upon the horse, as the property of the defendant and sold him. Upon this the plaintiff agreed t® take ‡ 70 for the horse, and defendant paid him ‡ 26 in part. The declaration contained two counts. The first for breach of the warranty; the second a general indebitatus assumpsit for money had and received.

<p>Nothing more in this case is necessary to be published than the opinion of the court.</p>

The plaintiff by virtue of an execution at the suit oí Ann Franklin, against John and Daniel Trussed for eighty odd dollars, caused a levy to be made on the following property to wit: 123 acres of land, a cotton gin, brushing machine, and running gear, a fann, and the Still, in question. Under this execution and the levy thus made, a sale had been effected of property to an amount exceeding one hundred dollars over and above what was necessary to pay the execution.

<p>Tried at Lancaster Spring Term, 1825.</p> <p>This was an action of debt on a bond conditioned for the delivery of a negro named Daniel, levied on, under an exes cution at the suit of Wilson Allen, against Fowler "'Williams: Plea, non est factum.</p> <p>The defendant claimed the right of submitting the condition ofthebo-d to thejury, under the act of assembly, that the damage sustained by the plaintiff might thereby be ascertained; and the presidingjudge ruled accordingly, though it was objected to by the plaintiff’s counsel.</p> <p>It appeared in evidence, that Daniel was valued at $500, that he had been levied on under the above execution, and that he was not produced according to the condition of the bond; but that plaintiff told the defendant that if he could get the two Georges they would answer the same purposes as Daniel.- The two Georges were put into the plaintiff’s possession and were sold by him. . Walker bought one, and the witness, Temple, saw plaintiff receive some of the money, The witness said further, that the execution of Willson Allen, vs. Fowler Williams was placed in his hands by the plaintiff, for the purpose of taking the two Georges; but that he failed to get them, and returned the execution. John Bevens proved that he was present when the plaintiff had possession of the two Georges, and heard the plaintiff address the defend.ant thus, ‘ old gentleman make yourself perfectly easy about the affair, for I have got what will keep you safe.” The two Georges were present at the time.</p> <p>On this evidence the jury found for the defendants.</p> <p>The plaintiffmoved for a new trial on the grounds, that</p> <p>1st. This being an action of debt on a penal bond fof the performance of covenants, and non est factum pleaded, the plaintiff was entitled to a vef diet on that plea.</p> <p>2nd. Because the court charged the jury, that the condition of the bond was before them, though’ the plaintiff’ ob-: jected, until compelled thereto by rule for that purpose, which had not been previously taken out,'and that the plaintiff could not recover, as he had not proved any damage, which he was bound to do. . .</p> <p>3rd. Because the court ruled, that a parol release could discharge a party from performance of an agreement under seal.</p>

<p>Tried at Sumter, before Judge James. The opinion of the court contains every thing necessary to be published.</p>

<p>'ÍJebts tobe set-off must be mutually subsisting debts at the, time the action ia brought; and where the defendant had made a conditional bargain for a note against the plaintiff of a third person, but the agreement was never executed till the suit was brought, it is not such a subsisting debt as can be set off.</p> <p>So, the same doctrine prevails in cases of bankruptcies. The se.-off musthave been an existing debt,between the parties, at the time the bankrupt-cyhappens-</p> <p>So the same rule applies with regard to administrators. The set-off must have been mutually subsisting at the death oí the intestate.</p> <p>The cases of Reynolds vs. Raring, and Sullivan vs. Montague, (Doug. 206-112.) said to be over-ruled.</p>

<p>A warranty of the soundness of a slave, includes soundness of the mind, fis well as of the body.</p>

<p>These cases were tried at Lexington, spring term, 1825* before Judge Richardson. They were actions on notes.. The defence set up was usury. The defendant gave the plaintiff notice that he would give evidence, as he was allowed, by the act of 1777, (Pub. Laws, 286. 2 Brev. Dig. 319,J of the fact of usury, unless the plaintiff would, in pursuance of the act, deny, upon oath, the truth of the usury. The plaintiff did come into court, and on oath denied that there was any usury in the case; and the only question which arose was, whether the plaintiff, having denied the fact ofusury the defendant could now introduce other witnesses to prove the usury? The judge held that the defendant could not introduce other witnesses, but that he was precluded by the oath of the plaintiff.</p> <p>The defendant now appealed.</p>

This was an appeal from the judgment of a magistrate. The appellant, an infant, committed a tort, for which he was sued; the matter was submitted to arbitration, and the arbitrators awarded against him. The magistrate thought, that as the note was given for damages for a tort, for which he was liable, the obligation of the note was valid. Judge Oaillard dismissed the appeal, and confirmed the decision of the magistrate. A motion was now made to reverse the decision.

Tried before Judge Gaillard, at Pendleton, Spring Terra, 1825. These were actions of trespass to try titles, and the only question was of location.

Trespass to try title. • Spartanburg, Spring Term, 1824, tried before Judge Gaillard. The plaintiff’s title to the land in dispute, under a granS dated the 5th of March, 1787, was admitted. The defendant claimed the land as purchaser at a sheriff’s sale, made on the 6 th of January, 1823, and title from the sheriff dated on the-11 th of the same month.

<p>' This was an action of debt, tried Before Judge Gantt, at Fairfield, Spring term 1825.</p> <p>John Miller died intestate leaving a widow and several children, possessed of a tract of land containing about 400 acres. By virtue of a writ of partition, in the court of common pleas, the land was sold for partition among the heirs at law, and those, representing them, some of whom had sold their shares, and some were levied on and sold by the sheriff before partition, and the purchasers represented the heirs whose shares they claimed in the proceedings in partition* most of which the defendant had bought in, and' had deeds of conveyance for them. The whole tract was sold by the-sheriff to the plaintiff, under an order from the court, on a credit. The defendant produced and proved his several titles for the distributive shares of some of the heirs at. law, which were allowed him at valuation, pro raía.</p> <p>The principal question arose on the discount for the share of John Miller, a son and distributee of the deceased.</p> <p>One Absolom Simonton had obtained a judgment against John Miller, the son, who inherited a share, and who had previously purchased a share from Caldwell and wife. Before partition the sheriff levied and sold John Millers undevided share of the land, expressing it to be 100 acres, and made the deed accordingly to A. Simonton, the plaintiff wlio was the purchaser for ‡-, as stated by the sheriff on the fi. fa. which was also the consideration mentioned in the deed. Defendant produced a deed from Simonton, conveying the land, so purchased, to defendant, which he alleged, conveyed and passed all the interest which John Miller,- the son had, to wit: two shares.</p> <p>The plaintiff contended that the levy, and the discrip-tion in the deed, were not sufficient to pass more than one shares that the expression of “ one hundred acres more or less” did not alter the meaning; more especially as it clearly appeared, that the quantity of acres nominally mentioned in the levy on the fi.ja. from which the deed had been written, was in figures* and plainly appeared to have been originally 50, and altered to 100. That there were no words in the levy or the deed authorizing the construction, that it passed all the interest of Miller. Likewise that the description was at least ambiguous and uncertain; and he offered parol evidence to prove that there was, in fact, only one share levied on and sold. This he said could be proved by the crier and many other by-standers. The plaintiff also offered to prove the fact, that the same sheriff, soon after, did levy on the share of Caldwell and wife, as the property of John Miller, on another execution, which was paid off by John Hollis, who had •'afterwards purchased it from John Miller.</p> <p>The presiding judge rejected the evidence, and instructed the jury, that the description in the deed clearly shewed, that all the interest which John Miller had in the land, was levied on and sold; and that the evidence could not be received, inasmuch as the effect of it would be to contradict the deed.</p> <p>The jury, according to the charge of the court, found for defendant.</p> <p>The plaintiff moved for a new trial on the following grounds:</p> <p>1st. Because the description of the land in the levy and sheriff’s deed can only mean the share inherited by John Miller, and not the share or part he purchased from Caldwell and wife.</p> <p>2nd. Because the deed and the levy were expressed in terms so ambiguous as made it a proper subject for explanation by parol evidence.</p> <p>3d. Because the terms of the levy and deed, and other circumstances, on the face of the written evidence, clearly showed that there was no more than one share sold.</p>

<p>The plea of non est factum, to a bond, only puts the factum of the bond in issue, and the defendant, under such a piea, cannot object that the bond was illegally assigned to the plaintiff.</p> <p>When the sheriff assigns a bail bond to the plaintiff, under the statute, 4 Anne c. 16, it must be done under his hand and seal, with two subscribing witnesses.</p> <p>A date is not indispensably requisite to a bond, as it takes affect from delivery, as in case of all deeds, and it is admissible, by parol, to prove that it was delivered on a different day from that on Which it is dated.</p>

This was an action of trespass to try title. It was originally commenced against Alexander Winn. But at some court previous to the trial the present defendant came into court and moved that as Winn disclaimed any title he might be substituted defendant in his place, alleging that the right of the land was in him.

This was a summary process, for use and occupation, and for a small account for goods sold and delivered, against the defendants, as partners. The facts are sufficiently detailed by the court, for a proper comprehension of their judgment. Cited 2 Johnson’s Rep. 300. 4 Do. 924. 3 Do. 530. 3 Esp. Rep. 101. 1 Cord’s Rep. 388. Selwyn 107, that one co-partner cannot bind the other after the dissolution.

<p>A filaitUlffhas no right, without the. consent of the defendant, by giving o * credit,to reduce his demand within the summary process jurisdiction!</p> <p>The parties, by mutual consent, cannot give jurisdiction, much less can one, without the consent of the other.</p> <p>So, the plaintiff cannot by releasing part of his demand, reduce his cause of action within an inferior jurisdiction.</p>

This was an action of assumpsit on a promissory note, which became due 1st Jan. 1815. An original writ was sued out on 30th Dec. 1815, which was returned non est inventus. A second writ, entitled & pluries, and on which these proceedings were founded was issued, returnable to October term, 1819. The defendant pleaded the statute of limitations. Plaintiff replied an original sued out within four years, and continuances down to the second writ.

<p>X very unimportant matter may suffice to make out a caso of obliteration, in a will, if it appear to have been animo revocandi.</p> <p>v t Where the animo revocandi is doubtful, the party that alleges it must prove it It is not enough that a testator intended to revoke his will. Hr. must execute some one of the acts, prescribed by the statute, to effectuate hi: intention ot revocation.</p> <p>Testator intending to alter his will, and make a new one, gave directions for that purpose to witness, as he read over the will to him. The witness made memoranda by interlining the propose:, alhr -'- tions in pencil, for his <iwn convenience. One word was scored through with the pencil. Testator not having completed his directions the first day, was unable from weakness to complete them on the second, and the new will was .never dtawn.- Held no revocation, the oOlileration not being made by the direction ol‘the testator, nor intended to reyoke the whole will.</p> <p>A verdict without evidence is contrary to law, and the court will always exercise the controlling po . r ■ . g'”Wing new trials; anda similar finding of aseeondjury ... . . alter the law, and tile-court will continue to grant new trials, (a)</p>

The plaintiffbrought his action by sum. pro. for about ‡ 48. The defendant pleaded a discount. On the trial of cáse, the plaintiff recovered seventy-five cents by a decree of the court. The clerk taxed against the defendant the plain-PifPs cost. A motion was made to set aside this taxation, which the court refused.

<p>This case came up in the following manner. Mr. J. G. Holmes took out a rule against the late sheriff David Becket, of Richland district, to shew cause why his costs for advertising property of the defendant, in divers cases, should not be confined to the printers bill alone, for inserting in his newspaper the advertisements.</p> <p>The sheriff, for cause, by Col. Chappell, submitted, 1! that in advertising the property of defendants, he is entitled to charge for each advertisement .f 1,93, on each case inserted in the advertisement, or, in other words, to $1,93, per month, in each case in which property may be advertised for sale.”</p> <p>Upon this shewing, his honor Judge Richardson, re* quested the clerk, Mr. Guignard, to enquire into the facts and to certify them, with his opinion thereon to the court. Mr.'Guignard made the following report:</p> <p>“ It appears that David Beckét late sheriff of Richland district has charged the sum of ,$'606',45, for advertising defendant’s, (Dr. O’Gilvie,) property in the Gazette, for the years 1822, 1823 and 18^4; which amounts to nearly as much as the printer has charged the sheriff for all the advertisement in those three years, of which, those that O’Gilvie was interested in, could constitute but a small proportion.</p> <p>“ Mr. Becket’s bill is too general for, me to make an exact statement. It appears that he has advertised property of O’Gilvie for sale at the suit of several plaintiffs, say six or more different plaintiffs, which did not occupy in the Gazette more than one square, for which the printer has charged one dollar fifty cents, for three publications. Mr. Becket lias charged the defendant that price in each case. Say, if six cases, the sum of $9; which the clerk deems an overcharge; as in his opinion the sheriff has no right to charge the defendant with more than the amount paid the printer.</p> <p>There is some difficulty in ascertaining the proper mode of advertising. In this district where there are Gazettes, there is, it seems, no necessity for the sheriff to put up written notices in three public places, in addition to advertising In the Gazette; but in the act of 1808 (page 49,) it is expressly declared that the sheriff shall advertise in the public Gazette, and also advertise as heretofore. Agreeably to which it appears that the sheriff is bound to advertise three weeks in the public Gazettes, and also, advertise at three public places in the district. And if so the sheriff ought to be entitled to one dollar for three manuscript advertisements in each case, and also the printers charge for advertising.</p> <p> James S. Guignard, </p> <p>Clerk of Richland district.</p> <p>“ I consider the principle laid down by the clerk correct; but if the sheriff did not actually advertise in manuscript, he is not entitled to any costs therefor.</p> <p> J. S. Richardson, </p> <p>Columbia, April 1825.” •</p> <p>The defendant O’Gilvie, appealed from the opinion of the circuit court on the grounds:</p> <p>1st. That the sheriff of Richland district, where a Gazette is published, is not required to advertise in manu. script, at three public places in the district, but is only required to advertise in the Gazette, and consequently is not entitled to costs for advertising at three public places.</p> <p>2nd. That if the sheriff of Richland district, is, entitled to charge for three public advertisements in manuscript, yet he is not entitled to charge , on each case, under which the same property is advertised for the same sale day.</p> <p>The sheriff appealed-from the foregoing decision,- and ■moved this court to order the clerk to retax his costs so as to allow him $1,50 on each case advertised in the papers for each month.</p> <p>Or, if that should not be done, then he moved this court to order the clerk to allow him $1 for the first advertisement, and 50 cents for each subsequent advertisement of the same property, in each case in which it was advertised.</p>

<p>"ÍVhere an action was brought by two partners, A and B, on a book account and the entries were made by A, — B can not be admitted to prove the entries made by A, unless it be clearly proved that A is out of the State.</p>

This was an action brought by the plaintiff an attorney, before a magistrate, in Lexington district, for the sum of $20, for a counsel fee. It appeared that the plaintiff was employed by the defendant in a case brought against him, by one Allen Body. The defendant frequently called on the plaintiff and consulted with him respecting the case, and procured subpoenas for him for his witnesses.

<p>This was a complaint, before a court of magistrates and freeholders, by the plaintiff against the defendant, that he field over the possession of a certain lot of land in Columbia, notwithstanding the determination of his lease, contrary to the acts of Assembly of 1812 and 1817 in that case made and provided. The jury gave a verdict for the Plaintiff and thereupon the magistrates made an order for restitution to the plaintiff. Upon this, defendant filed a suggestion for a prohibition before his honor Judge Gantt, at chambers, who refused the prohibition.</p> <p>The defendant appealed on the ground:</p> <p>That bis honor Judge Gantt erred in refusing the prohibition; as magistrates and freeholders have no jurisdiction under the acts of 1812 and 1817 under parol leases, where the complaint is for bolding over.</p>

This wag a question of evidence, the circumstances connected with which, will sufficiently appear in the opinion ofthe court.

<p>A release of the equity ot redemption completes the legal title in the mortgagee. (a)</p> <p>An action of trespass to try titles cannot be brought by a co-tenant against a person whohas entered and holds under theauthority of the other co-tenant.</p> <p>A party who suffers a case to go the jury, cannot, after verdict, object that the issue was not joined.</p>

Tried before Judge Gaillard, Laurens, Spring Tertri, 1825.. This was an indictment, under the act of December 1822, against fraudulently packing Cotton.

<p>Indictment for Perjury.</p> <p>Tried before his Honor dudge Gaillard. '</p> <p>The perjury assigned was in an oath taken before arbitrators,’appointed by rule of court,' and administered by them. The offence is thus charged “ The jurors &c. present, that, heretofore,’to-wit at March Term 1824, in the court of common pleas, held at Pendleton court-house, in and for the dis-tri,cí ofPendletsn, a certain cause, wherein John D. M’Cros-key was plaintiff, and Enoch B- Benson, sheriff of Pendle-ton District aforesaid, was defendant, which before that time had been commenced fee. was then and there pending and to be tried, between the said parties. And thereupon, by consent of all parties, an order and rule of court was then and there made, amongst other things in substance and to the effect following, that is to say, that the said cause be referred to arbitration, and that Robert H. Briggs choose the arbitrators. And the said Robert H. Briggs prior to the arbitration hereinafter mentioned, ehosed and appointed as arbitrators, to hear and determine the cause aforesaid, the following twelve persons Sic. (naming them.) And that af-terwards to-wit on the seventh day of August 1824, the said arbitrators, so chosen as aforesaid, met and took upon themselves the burthen of the said arbitration, to-wit at &c. And that upon'the said arbitrátión certain questions then and there arose, and it became and was material &c. And that Margaret M’Croskey then and there appeared in her proper person before the said arbitrators, they then and there having competent authority to administer an oath in that behalf, and was then and there duly sworn before them &c. and being so sworn was then and there examined and interrogated upon her oath aforesaid, by and before the said arbitrators, touching the matters in dispute and the questions in difference as aforesaid.” • The indictment proceed to charge, that the said Margaret M’Croskey “ upon hqr examination before the arbitrators aforesaid, the said arbitrators then and there having competent authority to administer, to her the oath in that behalf, did wilfully, falsely and corruptly swear fee.” and sets out the oath, assigns the perjury, and concludes in the usual form. ;</p> <p>The defendants counsel demurred to the indictment on two grounds.</p> <p>1st. That arbitrators have not such' a judicial authority as the right to administer as oath.</p> <p>2nd. That no other person having competent authority is charged in the indictment to have administered the oath, ,</p> <p>His Honour sustained the demurrer', and decided that the indictment was insufficient.</p> <p>The solicitor now moved the court of Appeals to reverse the decision of the presiding, judge.</p>

<p>The affidavit of an Administrator, to hold a defendant to bail, stated “ that nales were found” among his intestates papers, “ by which it appeared that defendant was indebted &c. §1700:” The court held that it was unnecessary to set out how many notes, or their dates,or to give any further discription of them.</p>

This is a branch of the same case, between the same parties, reported at page 211. The action was «pon a cof venant, which may be seen by a reference to that page. The defendant set up, by way of discount, in general terms, a breach on the part of the plaintiff, of all the covenants contained in the Indenture.

This case' was decided by the late Constitutional Court of Appeals, in November Term 1823, but was ac-cidently omitted that year by the Reporter. The Reporter thinks it proper to insert it here, that it may not be lost. It was an action of Trover, for a negro, broughtby the plaintiffs against the defendant, in which the question was ¡made whether the church could be barred by the Statute of Limitations,

<p>By the law of England, a copy of a deed, duly enrolled, is as good eyideifpe ns the original itself; and was the law of this state till the ease of Purvis, Vs .Ttobinson, a decision much to be regretted, decided that the.Ioss of the-original must be proved, to admit a copy.</p> <p>But to'prove the loss, the court will only require the best evidence the nature of the case admits of; and the only way of proving the loss of anything, is by shewing that it has been sought for, where it might have been expected to be found, or was usually kept, and that it could not be found. So the destruction of a paper may be presumed from circumstances; as the.</p> <p>burning of a house, the loss of a vessel, or the ravages of war.</p> <p>A copy of a deed executed in 1779, and recorded in the Register’s office in Charleston, was -admitted' in evidence upon proof of diligent search having been made, where it was probable it should be, on the presumption of its haying been distroyed during the revolutionary struggles.</p>

<p>The aot of 1794, requiring aliens to do militia and patrol duty is neither against the constitution of the United States, nor against the Laws of Nations. The constitution of the United States, has not given to Congress the absolute and exclusive control over the militia of the States.</p> <p>It seems,the power given to Congress, by the 8th section of the first article of the constitution, is of a limited nature and confined to the objects specified in tho clauses, and in all other respects and for all other purposes, the militia are subject to the control and government of their respective states.</p>

This was amotion made.before Judge Bay in Charleston, by Mr. Pepoon, attorney for the first attaching creditor, Ohors, to have the books of accounts belonging to the absent debtor delivered over to him, claiming the first lien, on the rights and credits of the said absent debtor.

The reporter could procure no other documents in relation to this case, than the opinion of the court, which, he believes, states the facts sufficiently.

Tried at Walterborough in November ternij 1825, before Mr. Justice Waties. fa this case, a writ of domestic attachment was issued, m which judgment was.recovered by default against the de« fend ant, and entered on record on the 5th July 1825. Claiiv born was the garnishee, on whom a copy writ of attachment had been served. The case came before the court below upon two motions.made before Judge Waties, presiding.

<p>Tried before Mr. Justice Bay,</p> <p>Motion of Pettigru, Attorney General, for a mandamus to the clerk of the court of common pleas to take special bail in an attachment, in the same manner as if defendant had been taken on a bail writ.</p> <p>On the 26th October, 1825, the plaintiff attached the ■defendant, who was then absent from the State, by his lands, Stc. to make him a party in court, and answer to an action of assumpsit.' On the 17 th November following, defendant having returned to the State, offered to dissolve the attachment by putting in special bail; and the question was whether the .condition of the recognizance should be in the form contained in the books of practice in the alternative, viz : to pay ■the condemnation and costs, or render himself to the custody if the sheriff, or whether the condition should be absolute, to j pay, The clerk refused to take- a recognizance of bail piece in the alternative, on which the defendant moved judge Bay, for an order or mandamus to require the clerk to take the recognizance in the alternative.</p>

Tried, at Georgetown in the Fall Term, 1825. The defendant in this case was indicted under an act of the legislature, passed in the year 1819, entitled An act to provide for the more effectual performance of patrol duty.

This was an action of assumpsit on a promissory note. The indorsee against the drawers. Tried before the recorder of the City Court in JulyTerm, 1825' The note in this case was drawn for $862 80, by the defendants in favor of James G. Brown, and by James C. Brown, indorsed to the plaintiff, dated 20th November, 1823, payable seven months after date. The defence was usury.

Tried at Colleton, before Mr. justice Waties in No■vember Term, 1825. This was an action of debt on a bond, of the date of 38th February, 1805, payable to Richard Freeman, Sen. of John’s Island, planter, executor of the estate of Jacob Rentz, deceased, conditioned for the payment of 3978 26. The pleas were non est factum and payment. The handwriting of the bond was admitted, where the plaintiff rested his case.

<p>Motion for a prohibition before Mr. justice Bay,- who made the following report:</p> <p>“The object of the present motion is for a writ of a prohibition to restrain the city sheriff, F. A. DeLiesseline from levying a tax upon the relator on a bond held by her for $1400,- imposed by an ordinance of the city council of Charleston.</p> <p>in support of the motion, stated that although the relator resided within the city of Charleston, yet the obligor of the bond Mr. James King, Sen. resided out of the limits of the city, to-wit, in St. Paul’s Parish, and that it was given-for property formerly belonging to her within the same parish; admitting, • however, that ■ the income of the said-bond was spent within the limits of the city, as might appear by the suggestion filed in this case. . He next stated that it was contended that the city ordinance for 1824, embraced or made liable to taxation all bonds whether representing property in the country or city; whether the bonds themselves were in the city or country,-or whether the obli-gor or debtor resided in the country or city: Provided the income was enjoyed or spent within the limits of the city; which he contended-was not warranted-by.the terms of the ordinance itself, the city' charter- or the laws of the'land? therefore he prayed for the writ of prohibition.'</p> <p>the city recorder, argued for the city and contended, that'as the relator was an inhabitant ofthe'city of 'Charleston, she was subject to the city ordinances as well as any property she might have within the limits of the city. That bonds at interest owned by a person resident in Charleston had been considered as property, (as in Ravenel’s case, 1 Cons. Rep. 36,) and, therefore, the subjects of taxation. That an obligee or owner of a bond might sell, assign, or transfer over a bond in the same manner as lands and negroes are sold or transferred, and the holder would thereby become the absolute owner and proprietor of such bond and all monies, principal and interest, secured thereby in the sanie manner as if land or negroes were sold. That 'the city council by the fourth clause of their charter are empowered to ' make and levy such assessments on the inhabitants of Charleston,' or those who hold taxable property within the same, for the safety, convenience, benefit and advantage of the city • as should appear' to them expedient. This, .■clause of the charier then, the recorder contended, gave the power to the city council of taxing the inhabitants of the city or their incomes, or their property as they thought most expedient, And the city ordinance for raising the supplies for the year 1824, was in exact accordance with the powers given by the above 4th clause of the city charter; for it declares among other things that all personal property con~ sisting of bonds, notes, insurance stock, six and seven per cent stock of the United States or other obligations, Sic. shall pay a tax of fifty cents on every hundred dollars, 8zc, It then proceeds to tax stock in trade, profits or incomes, and the other subjects of taxation, Sfc. mentioned in the ordinance.”</p>

<p>A debt dll'1 to the Bank of the State of South (darolina, is not a debt due to the public, and oan claim uo priority on that ground</p> <p>The llunk, though owned ent’rely by the State, is a mere corporation, possessing the sume power? and privileges of other corporations.</p>

Tried before the Recorder in October term, 1825. This was a process for $22 50 in the nature of case, by a landlord, against the defendant as a constable, for executing a fieri facias, and removing goods off the premises before the landlord was paid his rent due, pursuant to the statute 8 Amé c. 17, of force in this state. The first witness call-ét), was Mrs. O’Callagau who testified that the ''efendant eame to her house on the 11th April i 23, with an execution as he said.

Tried before »h\ Justice James, May term, 1825. The indictment was in common form against Butler at common law for grand larceny for stealing window sashes from, a house of Condy Si Wilson, then unoccupied, but watched by a servant who slept in the yard. There was a count in the same indictment against Quin for receiving the goods sto'-en contrary to the statute. The word theft in the .fourth clause of the statute, and the title and preamble were relied upon.

<p>Where the assured undertake to state all tbc circumstances which can affect the risk, they must do so fully faithfully. The rule admits of no exceptions. It cannot be said aí'.cr a loss has taken place, that the insurers knew ihefact, and therefor^ it was not Communicated,</p> <p>go, on a policy41 at and from charleston to Marseilles,the fact that the vessel had been laden at Havana, and only touched at Charleston, not having been mentioned in the offer, was held to avoid the policy, although the underwriters may have known the fact. Havana being a belligerent port, and the danger increased thereby-. JVbtt, J. dissenting.</p>

<p>Tried before the recorder of the city of Charleston who made the following report!</p> <p>This was an action on C. Fishburn’s note, dated Charleston, April 1821, indorsed by the defendant. The noto was payable to B. F. Hard or bearer. Knox the notary who protested it, proved that when it became due, he tried to find the drawer in Charleston, but could not; that he called on the defendant and told him he could not find the' drawer; witness asked him, if he knew where he was, and defendant said no. Witness then demanded payment of him, and he replied that witness must first look to the drawer. The defendant then said that Fishburn (the drawer) was in the country; and witness gave him a notice for Fishburn, to be sent by defendant to him. This was on the last day of grace. Defendant said, some one was going into the country or Fishburn’s servant would be in town; witness said, you can then send the notice to him, and, he said, yes!</p> <p>Elliott swore he knew Fishburn intimately; that he was in Charleston in 1819 and 1820; and witness supposed-he was there in the winter of 1821, as it was his habit to spend all his winters in town. ■ According to the witness’s best recollection, he was the.n in town; he was a student of law in Charleston at the time. He believed; at that time, he was not engaged in planting; he was now dead; he called himself an inhabitant of St. Bartholomew’s Parish; witness tho’t he resided in the city in April 1821; witness lived by himself theu, and Fishburn often visited him.</p> <p>Wilson was next examined. He testified that Fishburn in 1820, resided at the Round O. His summer residence . was at Island creek; that he resided in Charleston in the summer of 1821. It was after the month of May that witness saw him in Charleston. He also saw him there before April 1821, and during that winter, but did not know if he was a visitor or resident at that time. He resided in Charleston in the summer, but in the previous winter thought he was but a visitor. The drawers and second endorsers’ signatures were, then</p> <p>then moved for a nonsuit, which being refused, the grounds of the motion were used in the defence before the jury. He insisted that no demand was proved to have been made on the drawer; and secondly, that the cause of action did not arise within the city, the drawer being found to be a resident of the country.</p> <p>combatted these grounds and insisted that it was proved the contract was made where it was dated; viz: in the city and that the drawer resided there, at the time, though he afterwards could not be found there, when the note became due. Thatno demand on the maker of a note, or acceptor of a bill is necessary, when he cannot be found, as was the case in this instance. He cited 1 Cons. Rep. 367. 4 Mass. R. 44.. Mass. 44. 2 Caines 121.20 Johnson 168. Buller,JV.P. 273 He further contended that as this note was payable to bearer and not to order, the in-dorsement was like a new note by defendant which rendered any demand on any other than himself nugatory.</p> <p>The Recorder told the jury that he thought the case was entirely for them and not for him to decide. But upon the last point taken by the plaintiff’s attorney, his opinion was that the defendant was not to be regarded as an ordinary indorser of a. note in which a demand on the maker would have to be proved; but rather as a new drawer of the note, his name being written on the back of a note, hot payable to order, but to hearer and if he were a drawer, then no demand on any but himself was necessary. That as his hand writing' was proved, he thought the plaintiff entitled to a verdict..</p> <p>The jury found for the plaintiff and the defendant appealed on the grounds: ■</p> <p>1st.. That no demand was proved on the drawer, or at his residence. ■ ;</p> <p>2nd: That the court charged, that no demand on the drawer is necessary where the note is payable to bearer, fo? the purpose of subjecting the indorser to liability.</p>

<p>Tried, at Charleston, in February Term, 1825, before Mr. justice Waties.</p> <p>This was a special suit, brought on a summary process, for damages occasioned by the negligence of the servant of the defendant.</p> <p>The evidence was, that the empty carriage and horses of the defendant were seen standing near a house in the village of Hamstead, and the driver not on his seat; that they were afterwards observed to move from thence, at first slowly, but* soon, at a furious rate; and on their way encountered a bread cart belonging to the plaintiff, which was standing at a door in the same street, and which was broken in pieces by the encounter, and the driver of it much hurt The coachman was seen running after the carriage, and the horses were said to be, generally, orderly and well broke: The court inferred from this, that the injury done to the plaintiff must have been owing to gross negligence in the coachman, who could not have been on his box, and could not have been watching his horses, as it was his duty to' do. His honor therefore, thought the master was answerable for such negligence, and decreed that he should pay to the plaintiff, thirty dollars for the cost of repairing his bread cart, and also five dollars more for the loss of the services of his driver for one week. From this decision there was an appeal to this court.</p>

<p>Tried before his Honor Judge Huger, at Newberry October term, 1825.</p> <p>' The plaintiff brought his action on a note given for the purchase money of a tract of land, to which the defendant set up a defence by way of discount, that there was an outstanding title in a third person to about one half of the tract of land. The plaintiff admitted that at the time the pontract was made and the title from plaintiff to defendant executed, there was an outstanding title. But a short time before the commencement of his action, and long after the execution of the deed from plaintiff to defendant, the plaintiff procured the person having the title to the land, to execute a title to the plaintiff himself. The plaintiff, however, had never executed to deffes-dant a second title of the land subsequently acquired by him.</p> <p>His honour the presiding )udge, determined that the defence could not avail the detendant, and the jury tound a verdict for plaintiff for the full amount of the note.</p> <p>The defendant appealed and moved for a new trial on the following grounds:</p> <p>1st. Because at the time the note was given there was an outstanding title in a third person to half the tract of land.</p> <p>2nd. Because the execution of a title from the person holding the outstanding title to the plaintiff subsequently to his conveyance to defendant, did not give defendant a legal title to the land.</p>

<p>Tried before his honor judge Colcock, October term, 3824.</p> <p>In this act'on the defendant was sued as one of the securities on a bond given to the plaintiff, as ordinary, condi» íáoned in pursuance of the act of the legislature, for the administration of Sarah and Robert Cates on the estate of Robert Cates, deceased.</p> <p>The defendant put in two pleas.</p> <p>In the first, after craving oyer he pleaded a general peí ■ ibrmance of the condition of the bond. To which the plaintiff replied that the administrators did not perform the condition of the bond, in this, that they did not administer the estate according to law, and did not pay to Asa Cates, Aaron Cates and Robert Cooper and wife, ‡747 57, being $249, 19 each, their respective shares of ‡3364 6§, with which the administrators were charged, on account of their administration of the estate, in an account had by order of the court of equity, in a suit wherein the distributees above named were complainants, and the administrators, and others, were defendants; and of which sum of ,f3364, 6§ the administrators by the decree of the said court at February Term, 1823, were ordered to pay to said distributes the amounts to which they were respectively entitled.</p> <p>The replication concluded with a verification praying judgment, &tc.</p> <p>The defendant rejoined that the plaintiff ought not to have, Uc. because he together with a certain Win. Darby, a co-obligor, conceiving themselves in danger of being injured by their -ecurityship, on the 1st January, 1821, petioned the court of ordinary, to which they s-ood bound, for releif, in pursuance of the act of the legislature. That such proceed* ings were had on the petition, that the plaintiff as ordinary on the 12thJan. 1821, revoked and annulled the said letters of administration, and afterwards, on January 19th, 1821,granted letters of administration, do bonis non of the said estate, to Sa rah Cates alone. — That afterwards on the the 29 of Jan. 1821, Sarah Cates and R.T.Cates by requisition of the plaintiff, as ordinary, accounted with Sarah Cates, as sole administratrix, dc bonis non, for their administration; and all the rest of the estate, that was found remaining upon that accounting, the same being allowed of by the plaintiff, as ordinary, was delivered and paid over by Sarah and Robert T. Cates to Sarah Cates as sole administratix de bonis non.</p> <p>This rejoinder concluded with a verification. The plaintiff put in a general demurrer and the defendant joined.</p> <p>In the second plea the defendant set forth his discharge bTf the plaintiff, as ordinary, substantially the same as is stated in the rejoinder above mentioned, and concluded with a verification. To this plea the plaintiff replied that he ought not to be precluded, because Asa Cates, Aaron Cates, and Cooper and wife, on the 23d May, 1821, filed their bill in the court of equity against Sarah Cates and Robert T. Cates, administrators of Robert Cates, deceased, and others, amongst other things 'or a general account touching the administration of Sarah and Robert T. Cates, on the estate of Robert Cates, deceased. That the court of equity at February Term, 1823,-ordered a reference to the commissioner of that court, and upon such reference being had, the commissioner charged and reported against Sarah and Robert T. Cates, adminis-tratrix and administrator, the purchase made by Robert T. and John S. Cates, at the sale of Robert Cates, deceased, and which had been set aside ($2067 GÚJ, j several articles of property which Sarah and Robert T. did not sell, the rent of the lands, and the hire of a negro boy for two years after the death of Robert Cates, deceased, and interest on the respective sums, making in all $3541 50f, which report of the commissioner, was confirmed by the court of equity at February Term 1823. And that Sarah and Robert T. Cates, were ordered to pay to the said distributees the amounts to which they wore respectively entitled. The plaintiff then averred that the distributees were entitled to receive $74T 57, and that the said Sarah and Robert T. Cates, had not-paid the same, and concluded with a verification. The defendant demurred generally to the replication, and the plaintiff joined in demurrer.</p> <p>On the trial of the cause the court decided against the defendant in the action on both demurrers, and directed the jury to find for the plaintiff the amount of the commissioners’ report and interest.</p> <p>They found accordingly.</p> <p>The defendant appealed and moved the court to reverse the decision of the circuit judge on the points of law embraced in the pleadings, on the grounds:</p> <p>1. That the plea of a discharge by the plaintiff as Ordinary, is a good defence to the action, and the replication thereto is no answer to it, and is a departure in pleading. Therefore the demurrer to the replication should have been sustained.</p> <p>2. The plaintiff’s replication to the plea of general performance is well answered by the rejoinder and the matters contained in it. Therefore the demurrer to. the rejoinder should have been''overruled.</p> <p>3. If all the facts contained in the pleadings on both sides be taken as true, (and the state of the pleadings presents the case) the lawof the case is with the defendant.</p> <p>4.If the defendant could not succeed on the above grounds he then moved the court to set aside the verdict, on the ground that there were items contained in the report of the commissioner on which the jury founded their verdict, for which the defendant as security could not be liable.</p>

Tried before judge Huger, atRichland,fall term, 1825. In this case the plaintiff obtained a judgment against ■ defendants, at spring term, 1822, and issued his Ji. fa. bearing date the 29th April, which was returned October terra following, “ nulla bona.” And here the proceedings rested until the 18th April 1825, when an alias ji.fa. was issued and on the 15th of June a ca. sa. upon which the defendant Becket was arrested, who now moved the court to be discharged, and the…

<p>Plaintiff sold and conveyed to the defendant a tract of land, upon which the de'eudant entered and took possession: Upon an action of assumpsit for the purchase money, the court held, that the plaintiff might recover, although the contract was never reduced to writing: For,</p> <p>The contract was at an end, and there was nothing left but a promise to pay n consideration of the land thus actually transferred.</p> <p>Or where upou a parol contract for the sale of lands, the contract has been executed by one party, a&sumpsit may be maintained for the purchase money.</p>

<p>The following was the report ofjudge Gantt, who tried the case.</p> <p>“ This was an action of trespass vi. et ar. for taking some plank. The plaintiff had never been in possession of the house, from the loft of which the loose plank was taken, unless indeed by his tenant.</p> <p>The jury found for the defendant, on the following tegs titnony.</p> <p>Seth Killeiar, proved that he heard Clancy say that •he took the plank from a house which plaintiff purchased of Capps; heard Johnson say that he had sold the plank to 'Clancy.</p> <p>Clubb; the plaintiff’s tenant was. living on the land at the time the plank was taken, and forbid Clancy from taking ■the plank. About three parts of the plank in the loft was taken out.</p> <p>Cross examined, says: That Clubb, lived three hundred yards from the house from which the plank was taken, and in a different enclosure. The boards were loose and ■ Johnson had been living there.' 'Í his witness proved the execution of a deed from Capps to plaintiff, of certain land.</p> <p>Sessions proved that he made a survey of the land and that the house where Franklin lived was within the lines claimed by Davis.</p> <p>Eelleiar was again called, and said, that Johnson lived in the house where Franklin did, and was tenant to Davis. He {'Johnson) sold the plank to Clancy just before -he moved off.</p> <p>I charged the jury that this was a possessory action, and such as could not be maintained by him in reversion. That the law gave a.remedy by action on the case for waste to the reversioner, but that taking loose plank from a loft was not such an injury as would amount to waste and authorize the reversioner to bring an action; and that if it should amount to waste, still tresspass vi et armis was not .the appropriate remedy. That the action of tresspass vi et armis might be maintained by the tenant in possession, but not by the reversioner. Whether the tenant had a title or not I did not •think material. The plaintiff proved that Clubb was his tenant; and if any one had a right to the action, it was Clubb, >the tenant.</p> <p>Either, Clubb was tenant to Davis, or he was not; if tenant, the right of action was in him; if not, them the plaintiff had neither an actual or constructive possession, and consequently could not maintain the action of tresspass.”</p> <p>The plaintiff moved to set aside this verdict, on the ground, that his honour had charged the jury erroneously.</p>

Tried before judge Richardson, Spartanburgh, fall term, 1825. This was an action of debt on a note under seal bro’t by Willihm Trimmier, commissioner in equity of Spartan-burgh,-as successor in office of Simpson Foster, late commissioner.

Tried before Judge Gaillard, at Lancaster spring term, 1S25. This was an action of assumpsit, to which the defendant pleaded that he had tendered the sum due before the commencement of the action; to-wit: on the sixth day of March, 1823. The plaintiff replied that his writ was sued out, the first Monday after the fourth Monday in October, 1822.

<p>Where a defendant was taken under a hail writ, and the sheriff, by mistake took a bond for the prison bounds, stating defendants imprisonment to have been under a ca. sa. the court held the bond void, and that the defendant was not estopped to shew that there was no ca. sa.</p> <p>A recital to amount to an estoppel, must come from the party to be estopped, and not from the opposite side.</p> <p>"What cases amount to an estoppel and what not.</p> <p>To debt on a bond against the securities for the prison bounds, defendants pleaded performance generally, and replication that thedefendant did not render in a schedule, &c. according to the condition of the bond, a rejoinder that the securities surrendered the principal to the sheriff, who received him, and discharged them, was held ill, and not a good answer to plaintiff’s replication.</p> <p>The securities to a prison bounds bond cannot discharge themselves by a surrender of their principal to the sheriff.</p> <p>It is no defence to an action against the securities on a prison bounds bond, that property of the defendant had been sold under a Ú.fa. for the plaintiff may take out both a Ji. fa. and ca sa. at the same time, provided hé. proceed but upon one.</p> <p>But a levy is prima facie evidence of satisfaction; and where a ca. sa. was executed but four days after a levy, before it was possible the levy could have been disposed of, it was held, that all the proceedings under the ca. sa. were void.</p> <p>•Where a bond is given lor the prison bounds, and the debtor remains within the rules forty days, without rendering his schedule,and is then committed, to the jail, the securities are not thereby discharged from liability on the bond; but the plaintiff has the double security of the bond, and the confinement of the defendant.</p>

<p>Tried at Greenville, fall term, 1824, before judge Gantt.</p> <p>The defendant in this case was in execution by virtue of a capias ad satisfaciendum, at the suit of the plaintiff, had given bonds for the prison bounds, and had rendered a schedule of his estate to the clerk of the court, who had given the usual notice that h,e would be liberated in ten days, unless cause was shown to the contrary. The ten days expired on the first day of the court. The plaintiffs demanded further time to obtain information to enable them to contest tlie schedule or otherwise oppose the discharge of the defendant, which the clerk granted, and appointed the following Saturday for the hearing, before himself. On Friday the defendant made an application in open court for his discharge, which the presiding judge then refused to hear. On Saturday at 12 o’clock, A. M. (the court being still in session) the plaintiffs by their attorney applied to the clerk, and informed him that they were ready to show cause against the discharge of the defendant. The clerk refused to leave court, but pro?posed to hear the cause after adjournment. When the juries were dismissed, the defendant renewed the application for his discharge in open court. The plaintiff’s attorney objected, that under the circumstances, the court had no jurisdiction of ihe matter; But that he was prepared to shew cause. The presiding judge proceeded without a jury to hear the evidence; when the plaintiffs proved that on the day of his arrest the defendant had paid another debt of between twenty and thirty dollars, and on that ground opposed his discharge; as the property contained in his schedule did not satisfy the execution of the plaintiff on which he was committed.</p> <p>His honour considered the cause as insufficient and ordered the defendant to be discharged and the property assigned.</p> <p>A motion was now made on the part of the plaintiff, to reverse the decision, and to set aside the order of the presiding judge, on the following grounds:</p> <p>1st. That as the application was first made to the clerk of the court as commissioner of special bail, who had ample authority, and the cause was still pending before him, the court had no legal jurisdiction of the matter.</p> <p>2nd. That the cause was sufficient to prevent the discharge of the defendant, whether there was any fraud intended or not, and his honour erred in ordering him to be liberated.</p> <p>3rd. The cause should have been submitted to a jury.</p>

<p>All indictments upon statutes must stale all the circumstances which const!» tuts the definition of the offence in the act ,so as to bring the defendant precisely within it.</p> <p>A conclusion “ contrary to the form of the statute, &c.” will not aid the defective statement of the cri'me. Not even the fullest description of the of-fence, even in the terms of a legal definition, will be sufficient, without ■keeping close to the expressions of the statute.</p> <p>The forgery of a receiptfor a note, is not such a forgery as is indictable under the act of 1801, similar to the statute 2 Geo. II. ch. 25; which only punishes the forgery of a receipt for money or goods.</p> <p>To bring the indictment within that act, it must state the receipt to have been either for goods or money.</p> <p>The person whose receipt was so forged is a competent witness; more especially as all the matters between the parties, to which the receipt reiated, were already settled.</p> <p>A record of a judgment, under an award, between the prisoner and the prosecutor, was held competent evidence, to shew that all matters in dispute between the parties had been settled, to which the receipt forged related,' to shew the prosecutor had no interest.</p>

Tried before judge Richardson, at Greenville, fall term, 1825. The defendant had bid off a tract of land sold by A. Crowder, the former sheriff of Greenville district, and refused to comply with the terms of sale. The land was resold by Crowder, at the risk of the defendant, and purchased by another person for a less sum than he had bid at the first sale.

Tried before Judge Gantt, at,Union Spring term, 1825. This was an action of covenant upon a warranty of the title to a tract of land. The deed contained a general warranty of the title to the land only. The defendant in addition to several other pleas pleaded the statute of limitations. The jury found a verdict for the defendant, and this was a motion for a new trial.

<p>By the act of 1824, the statute oflimitalions shall not hereafter be construed-to defeat the rights of minors, when the statute has not barred the right in the life time of the ancestor, before the accrual of the right of the minor.</p>

This was an action of trover for a negro, commenced the 21st day of September 1822. The defendant pleaded the statute of limitations.

<p> The rule slill prevails, as lo personal properly, that where the statute of limitations begins to run, it will run on notwithstanding any intervening dtssa-bililies. </p> <p>Th v act of 1824, to the contrary is only confined to actions concerning lands?</p> <p>Where the statute has not commenced to run against the intestate or testator, during his life time,it will not run against the administrator, tilt administration is granted. But where it commences to run against the intestate or testator, his death will not suspend it till administration is taken out. (1)</p>

<p>This was an action of assumpsit, for the purchase money of a tract of land bid off by the defendant, at an auction had by the plaintiff of his property.</p> <p>The questions made were, whether the clerk of the auctioneer was a sufficient agent of the parties, to bind the defendant, by an entry of the sale in a book, had for that purpose; and 2nd, whether the entry made was a sufficient memorandum of the sale. The entry was in these words: The tract of land to Wm. Msadons, jr. at $5,48.”</p>

<p>la an action for malicious prosecution, it is necessary to set forth, in the declaration, that the prosecution is at an end; and to shew in what manner it was terminated.</p> <p>That the defendant was acquitted by the grand jury, or by a noli prosequi or by arrest of judgment, dees not necessarily shew that the prosecution has been put-an end to, and in such eases, it is, therefore, necessary to state that he was finally discharged, by order ofthe court.</p> <p>Where the declaration stated “ that the plaintiff had been acquitted by the grand juty’s finding “ no bill,” and that the said prosecution is wholly ended and determined,'and he the said plaintiff wholly discharged therefrom, as by the records and proceedings thereof remaining in the said court appears,” the court held it was a sufficient statement of the discharge of the plaintiff from the prosecution.</p> <p>But that if it were not sufficient, it could only have been taken advantage of on demurrer, and was cured by pleading to the merits.</p> <p>In a statement, that the plaintiff was acquitted, without specifying in what manner, the word “ acquitted” is to be construed a technical word, which means, acquitted on trial by a petit jury;</p> <p>But where the manner of acquittal, is set out in such a way as to 9hew that the word “ acquitted” was not intended to be used in its technical sense, it will be taken with such qualifications.</p> <p>Where a technical word is used without any qualifications the court will give it its technical meaning, yet when it is accompanied with such qualifications as shew that it was intended to be understood in a different sense, it will be taken with such qualifications.</p>

Tried before Judge Richardson, at Union Spring Term, 1826. It appeared in evidence, that William Porter in his life time made a deed for a few acres oí land to plaintiffs’ intestate, as trustee for a certain Baptist congregation in Union district. He afterwards executed a bond to the same person, with a condition to make titles to him in his own right to the whole tract of land, embracing the part which had been previously conveyed in trust.

<p>Tried before judge Huger at Laurens, Spring term, 1826.</p> <p>This was an action of assumpsit on a note. Plea, general issue. The note was admitted. The defendant offered evidence to shew, that the note in question had been given for the balance due on a settlement of sundry accounts.</p> <p>Judge Huger thought the evidence inadmissible, A verdict was found for the plaintiff.</p> <p>The defendant appealed on the ground: That he should have been allowed to shew that the note in question was by mistake given for more than was really due.</p>

<p>Tried before his honor judge Richardson, at York* Spring Term 1826.</p> <p>The question as to the value of certain advances made by the testator in his life time was before the ordinary, and from his decision of the value of the property, Mary Gill appealed to the court of common pleas, and offered to prove by attending witnesses that the advancements were worth nearly four hundred dollars more than that fixed by the ordinary.</p> <p>His honour rejected the testimony on the ground that no evidence, not offered before the ordinary, could be received there, but that the case must be tried upon the report of the ordinary. The jury found a verdict, conforming to the decree of the ordinary.</p> <p>The appellant now moved fora new trial on the ground.</p> <p>That his honour erred, in refusing to allow her to examine witnesses in open court, on the value of said advancements.</p>

Motion to reverse an order made by judge Richardson at Union, aud for an order to the clerk to enter up judgment against defendant nunc pro tunc The defendant being indebted to the plaintiff, and being also indebted to others in a large amount, for which judgments were about to be obtained, consented to confess judgment to tbe plaintiff for a portion of tbe debt due him.

<p>On a bond conditioned to pay several sums by different instalments “without interest* Out with interest if not punctually paid* the money not having been punctually paid, it was held, that interest was recoverable from the dale of the bond, and not from the time the instalments respectively became due; and the penally became forfeited by the nonpayment of the first instalment.</p>

<p>Tried before judge Huger, at Abbeville, March term* 1826.</p> <p>This was an action of assmpsit, founded on the following instrument “ Charleston, May 30, 1821, ‡300. On the first day of January 1822,1 promise to pay to order the sum of three hundred dollars for value received in house rent, James Moore.” The declaration contained a single count, describing this as promissory note delivered to the plaintiff,, who was now the holder of it. The signature of the defendant to the writing was admitted. No other proof was offered. The counsel for defendant moved the court for a nonsuit, on the ground that this was not a note within the statute of Ann or the custom of merchants.</p> <p>The presiding judge sustained the motion.</p> <p>The counsel for the plaintiff moved the court of appeals to reverse this decision; because the writing declared upon was a good note, within the statute of Ann and the custom of merchants. Chappell for the motion cited Chittij on Bills 78. (Ed. 1817,) and cases there referred to.</p>

<p>Tried before judge Richardson, at York, Spring term, 1826.</p> <p>This was an action ot replevin.. The defendant avowed the taking for rent in arrears, and produced in evidence a siugle bill by which" the plaintiff promised to pay the defendant two hundred dollars, expressed to be for the rent of defendants house fortheyear eighteen hundred andtwenty two. The court charged the jury that the defendant by receiving the note had waived his right of proceeding by distress; and the jury by their verdict excluded the amount of the note. The defendant now moved for a new trial.</p> <p>Because the court misdirected the jury in charging them that the defendant by taking a note for the payment of the rent, for 1822, had barred bis right to distrain therefor.</p> <p>Contended that the not£ ^iven for rent and not paid did not preclude a distress for the rent. The acceptance of an inferior security will <> t deprive die party of a security of a higher nature. (1 JYott and N Cord 187. Godfrey vs. Newton, 1 Esp. N. F. 72. Ib. 2 part, 168.J</p> <p>In Martin vs. Mitchell, Harper’s L. R. 445, the question has been settled, that the party going to trial, accepted the terms imposed on him by the court.</p>

Tried before judge Galllard, Darlington March term, 1826. The case was briefly this. Harrell bought from Thomson one hundred bushels of corn, for which he paid him; but the corn was not delivered before Thomson died. Wither-spoon administered on Thomson’s estate, and there were one hundred bushels of corn on Thomson’s plantation. Vv ither-spoon wanting corn, agreed to take it and pay for it. ■ Verdict for the plaintiff.

Tried before Judge Richardson, Spring Term, 1826. This was an action brought on an arbitration bond, to which the defendant pleaded performance generally. The plaintiff replied an award, which he set out, and assigned a breach in the nonpayment of the award.

<p>Tried before judge Gaillard, at Sumter District, March term, 1826.</p> <p>This was a rule upon the clerk to shew cause why he should not be attached for refusing to sign an execution upon an appeal from a magistrate’s decree. The clerk shewed for cause, that the execution should be awarded from the magistrate’s court, and that tbis court had no cognizance of the matter under the act of 1799.</p> <p>The presiding judge dismissed the rule, and this was an appeal from his decision, on the ground that the act of 1799 directs that, on an appeal from a magistrate, execution shall be awarded from this court.</p> <p>cited the act of 1799 (2 Faust, 318J which orders the court to grant or award executions upon appeals from magistrates. The circuit court not only has appellate, but concurrent jurisdiction How otherwise can the clerk, &tc. obtaiu the costs of appeal? He could not send the case back and order the magistrate to issue execution for his costs. Every thing is brought up to the superior court, and how could the court send the matter back? To amend errors in a court of record a writ of false judgment lies. (3 Black. Com. 407. 2 Sellon Pr. 410. 2 Tidd. 1139. Jac. Law Die. tit. false judgment.) It is in the nature of an accedas ad curiam. (2 Sellon 410. 2 Tidd. 1139.) When the parties are once in court, the subsequent proceedings in false judgment are the same as in error. (lb.) So if proceedings are removed out of the county court or other court not of record, by writ of false judgment, and the plaiutiffis nonpros-sed, the execution shall issue out of the court above. . 2 Tidd. 91L) Executions are judicial writs issuing out of the court where the record is, upon which they are grounded; and therefore when a record is removed here from another court by writ oferror and the plain tiffis nonprossed, this court will award execution. (2 Tidd. 912. 3 T. R. 657.) Where a judgment against the plaintiff is reversed on a writ of error brought in the King’s bench, that court having the record before ther% inay in all cases, give such a judgment, as the court below should have given, and if necessary may award a writ of en-quiry to assess the damages- (2 Tidd. 1131. 1 Salic. 403. 1 Lord Ray, 9. Carth. 319.) The writ of execution being founded on the record must issue out of the court of King’s Bench where the record is (2 Tidd. 1136. Cowp. 843.) Although, on a writ of error from the common pleas, a trans-script only is removed into the K. B. yet the K. B. awards execution. (2 Sell. 387. Cowp. 843.)</p>

<p>' Tried before Judge Huger, at Abbeville District, Spring term, 1826.</p> <p>This was an appeal from the decision of the ordinary <»f Abbeville District refusing to admit to probate a paper offered as the last will and'testament of A. Houston, deceased, This paper was dated the 14th day of December, 1824', and was in form of a Will signed by the said A. Houston, but was not subscribed by any witness. A. Houston, the testatrix, died m the month of September, 1825. The ordinary decided that this was not a good Will, as it had not the number of witnesses required by the act of 1824, notwithstanding the paper had been signed before the passage of that act.</p> <p>The appeal from the ordinary was on the following ground viz : that as the Will in question was dated before the first day of May, 1823, and before passage of the act of 1824, it was not governed bj' that act, but was a good will, without witnesses, to dispose of personal property, and ought to have been admitted to probate.</p> <p>These facts were set forth in the pleadings, and the question of law submitted to the court was whether, under the circumstances, the paper in question was a good Will.</p> <p>The court decided it was not.</p> <p>From this decision the appellants appealed to this court, and moved to set aside the decision made by his ho-nour, on the circuit, and relied on the same grounds as set forth in their appeal from the ordinary.</p>

<p>The defendant gave the plaintiff, who was sheriff, a receipt for a negro slave levied on, to deliver the said slave to the sheriff on a particular day, or to pay §500. The court held, that the defendant might, to an action brought on such receipt for not delivering the slave shew that the executions under which the slave was levied on, were satisfied, and that the slave had been bought from the defendant in such executions, and that he had delivered the slave to such purchaser, or that he might shew that the slave was transferred to him, or give any other evidence to identify himself with the purchaser.</p> <p>The sheriff by taking property in execution acquires a mere qualified property to enable him to execute the trust reposed in him; and whenever the object of the levy is answered or the execution is otherwise paid, the right of properly in him ceases, and reverts to the original owner or to those claiming under him.</p>

<p>Tried before Judge Huger, at Urangeburgh, fall term., 1825.</p> <p>This was an action for overseer’s wages. The plaintiff produced a memorandum of an agreement in writing, the terms of which were, that the defendant, in consideration of the plaintiff’s services would on the 1st January 1824, allow-Mm 1200 lbs. c.otton.</p> <p>The jury allowed interest on this contract and the defendant appealed on the ground.</p> <p>That no interest should have been allowed on such a memorandum.</p>

This was an action of trespass vi et armis, to recover the value of four negroes and for breaking and entering plaintiff’s house. It appeared that the defendant Mitchell, as sheriff, had levied on the negroes in dispute as the property of one James V. Thomas, against whom he had sundry executions, and had possession of them some time. Plaintiff set up a claim to the negroes aud by some means got them into his possession.

<p>The legislatui e by giving the court of Common Pleas authority to appoint guardians, did not transfer to that court all the powers of the court of equity connected with the subject, and it has no power to call them to account.</p> <p>Executors, administrators and guardians all stand in the same relation of trustees, and their transactions are only examinable m a court of equity, or some other court specially authorized to examine and adjust their accounts.</p> <p>Where a guardian is appointed by the ordinary he has jurisdiction over the subject, but a very inadequate one, as he cannot compel obedience to his decrees; and Ins proceedings may be examined by a court of equity. But the court oí law cannot take cognizance of the matter.</p> <p>What was said in ¿Inderson vs. Maddox, that “ if the plaintiff (in action on a guardianship or administration bond) set out the condition of the bond in his declaration, and assign a specific breach, so that it shall appear to the court, that no enquiiy into the slate of the defendant’s accounts will be necessary, an action might be brought on the bond in a court oflaw,” said to be an erroneous impression thrown out by the court; as the plaintiff cannot by his manner of assigning the breach, restrict the defendant in the nature of his defence</p> <p>.inaction cannot be maintained on a guardianship (or administration) bond although the guardian has been cited to account, but has failed to do so.</p>

Tried before judge James, at Barnwell, April term, 1826. This was an action of assumpsit on a note or agreement, of which the following is a copy: “ On or before the 1st January next we or either of us promise to pay Charles J Colcock, executor ofthe estate of Reid, four hundred and thirty dollars for the hire of Sam, Silvia, Big Peter, Dorcas, ¡Savannah and his wife for one year from this date, and w.e bivd ourselves to tax, feed, shoe, and clothe them and to pa}-doctors…

Tried before Gaillard J. at Marion district, Spring Term, 1826. Trespass to try title. The plaintiff claimed under a grant to Jordan Gibson,, dated 23rd June 1772, and produced a regular chain of title, through several persons to himself. The grantor and those who claimed under him had been in possession of the-land at different periods, from the time of the grant to the time oí the conveyance to the plaintiff.

<p>Ecvery renewal of a note is a discharge of the prior note; because the re* newed note is a substitute for the former.</p> <p>Where a note, to which the defendant was indorser, had become due, io bank, but had by mistake been consolidated with a note of the drawer with other indorsers, by the attorney in bank of all the parties, who waa authorized to renew their notes, and the note, which defendant had indorsed, was suffered to remain in bank a year, before the mistake was discovered,aud then his agentrenewed the note again, it was held that the defendant was not liable, as the subsequent renewal was irregular, and nc notice of demand on the drawer and non-payment of the first note having been given to the defendant or his agent.</p>

<p>'I'Vhere a friend of a defendant, With a view to procure indulgence for ih0 defendant, paid part of the judgment against tbe defendant to the plaintiff’s lawyer, upon condition that no credit should be given on thejudg- ' mint, but the judgment to he assigned to the person, so paying the money, as a security for the money advanced, the court refused a tule upon the plaintiff’s attorney to compel him to enter a credit upon the judgment lor the amount he had so received.</p>

<p>On an indictment for kilting a slave “ in sudden heat and passion” contrary to the act of assembly, the jury found a verdict of '• guilty of manslaughter.” Upon which the court held judgment could not be passed.</p> <p>The crime, by act ofassembly, of killing a slave in sudden heut and passion, is a different offence from the common law crime oí manslaughter.</p> <p>?t is not enough to say, in an indictment, thata crime has been committed, in the words of the act; but it is also necessary to specify on the face of the indictment the criminal nature and degree of the offence, and also the particular facts and circumstances which render the defendant guilty of the offence,</p> <p>The act of 1321, rendering it murder to kill a slave, does not take away from the prisoner, if he be master or overseer, in whose possession the slave was killed, the right of exculpating himself by his own oath. And the • fact of a third person coming up at the moment of the death of the slave, after the wounds were given, will not alter tile case.</p>

<p>This was an action on the case tried before his honour Judge Waties, at Lexington, Spring terra, 1826.</p> <p>evidence was substantially as follows: - The defendant bad by contract undertaken to open Saluda river, and remove the obstructions to the passage of boats. Being in want of hands they applied to the plaintiff, who hired at the rate of seventy five cents per day, two negroes, Edmond and Norridge, neither of whom could swim well, upon the express .stipulation that they should not be employed in deep or swimming water. The defendant Freshley on the 28th October 1824, being about to finish the last part of the work which he then intended to do, proposed to put up,a sign-post on a rock in a ripple, at the head of Lee’s shoals above where Wise’s hands had been before employed. He and all hands bad .been drinking too much. It appeared by going in below the rippie, that the water was eddy and the passage safe» Freshley suggested that the lower route was the safest, but at the instance of some of the hands he went above the ripple. When the canoe reached the sluice, on some danger beingap-prehended, Freshly jumped out of the canoe and ordered all hands to jump out, hold the canoe, and save his tools, of which ’there was about 200 lbs. weight in the canoe. The negro Edmond jumped out and was immediately drowned. It appeared also that Freshly was fully apprised of the, danger of the place and subsequently stated to several of the witnesses, that he knew it was a very dangerous place, but that none of the rest of the hands knew the danger; that by his knowledge of the place he knew exactly where to jump out; and that if he had not he must have been in among the rest. That the rest of the hands who made their escape had to swim about three hundred yards; that Freshly would not permit a negro named Lamb, who belonged to himself and Veale to go in the canoe; and that afterwards said if he had permiffed Lamb to, go in he would have been drowned also. The sluice where the negro was drowned was proved tft be a very deep and dangerous place — that to go in above the ripple was a very dangerous way, and that to go in below was perfectly, safe and free from danger. That there was no necessity of Edmond’s going in, Freshly having himself stated, that the other hands, all of whom were white men, were amply sufficient to put up the sign-post.</p> <p>His honour, charged the jury, that the law was perfectly clear, and that the plaintiff was entitled to recover if they believed the contract to be proved, or upon the general liability of the defendant as bailee, if they believed the defendants had been guilty of any neglect; but left it to the jury to decide upon the testimony. The negro was proved to be worth one thousand dollars. The jury found for the plaintiff one cent. The plaintiff appealed and moved the court of appeals for a new trial, on the grounds:</p> <p>1. That by the terms of the contract, which was most' abundantly proved, the defendants were liable for the valué of the negro;</p> <p>2. That as bailee for hire they did not take that care of plaintiff’s negro, which a prudent man would of his own and that they were therefore chargeable; and</p> <p>3. That the verdict was contrary to the law and the evidence of the case.</p>

This was an action of assumpsit on a note of hand. Defendant offered in discount a note of hand, given by Joshua English to James English, or bearer, and by him transferred by delivery to the defendant. To this discount the plaintiff offered to set off a note given by Joshua English to the plaintiff. This last note was dated in 1818, and was barred by the statute of limitations before the commencement of this action.

<p>The following; words were held sulfieient to take a debt out of the statute of limitations, viz: “ that the note had not been paid, and thai he would not pay it, unless compelled by law, as it was om oí dale, and he had received no consideration for it.”</p> <p>If the existence of the debt be acknowledged, there is a legal promise to pay, and the debt is not barred by the statute.</p>

<p>The doctrine of fixtuies is more rigorous in relation to claims between, heirs and executors, than between those of landlord and tenant and the tenant for life and the remainder man or reversioner.</p> <p>A Still, fixed in a rock furnace built against the wall of a house constructed for the purpose of distilling, is Dot a fixture, it seems, which passes with the land at sheriff sale, more especially as the previous owner of the freehold, himself, had made a severance.</p>

<p>The defendant offered in evidence, by way of discount to the plaintiff’s demand, (which was admitted) two accounts amounting to one hundred and sixteen dollars, fourteen cents. After the jury had been charged, and had returned into court with their verdict, and before it was offered to the court, the defendant’s counsel moved for leave to withdraw his discount from the jury, with a view to discontinue the same, — which motion the presiding judge refused.</p> <p>The defendant’s counsel now moved the court of appeals to reverse this decision, and for leave to enter the order and discontinue the discount to the plaintiff’s demand.</p> <p>The defendant in putting in his discount; stands, as to the discount, as plaintiff in the action, and may withdraw it whenever he please. The plaintiff may take a nonsuit after the jury have returned, the verdict not being yet published, and the right to withdraw a discount must be the same.</p> <p>The discount is in nature of a plea. But the plea cannot be withdrawn after the jury have found their verdict, although not yet published.</p>

<p>No subsequent execution can issue, until the proceeding one be regularly returned. And where a Ji. fa. and ca, ¿a .‘are taken out together, both must be returned before another can issue.</p> <p>To ascertain whether an execution has been issued in proper time or not, reference must be made to the actual time of sicing out the writ, and not to its test.</p>

<p>Where a bond was given to the sheriff tor the prison bounds, stating the consideration to be the fact of the defendant’s being in custody under a to. sa. extrinsic evidence is inadmissible to shew that the defendant was confined in consequence of a surrender of bail after the judgment, but by stsadvortsncc the bond was drawn for the prison bounds. arel'evidence-is inadmissible to prove a different, greater or other consideration than that stated in a bond, and which should have been inserted, when it is not stated in the bond, “ andfor other considerations.”</p> <p>JTor can a recital of an important fact be varied by parol evidence; but on thecontrary itis always to be taken most strongly against him who makes " it; and in this case the recital of theca, sa. was considered the recital of the sheriff and not of the obligor.</p> <p>%is nota safe or salutary rule to allow a contract to exist partly in writing and partly in parol.</p>