Volume 15 — South Carolina Law Reports

<p>rp JL HESE were two separate actions on two policies of Insurance on certain goods, viz: 114 whole and 29 half casks of rice shipped on board the sloop Hope, Captain Johnston, tried before Mr. Justice Richardson, at Charles - ton. The policy of Schult & Budd was dated 21st September, 1821, from Charleston to New Orleans, with liberty to touch at Pensacola, on $¡1,550. The policy of John Rose was dated 23rd September 1821, for the same voyage, on $2,000. The sloop Hope sailed from Charleston on her destined voyage. At the time of her departure she was sound, staunch, and in every respect, seaworthy; but on the 24th October 1821, she met with severe gales which compelled a deviation. She made for the Balize at the mouth of the Mississippi River;. heavy gales still continuing, and on her arrival at the Balize, she struck on an old wreck; on getting her off the wreck and bank, it was discovered that the leak had gained so fast as to render it necessary for the pilot to run her as near the mud bank at the Balize as possible, to prevent her going down. The cargo was all landed at the Balize. The ground floor consisted of 54 casks which the Captain thought were all more or less damaged. On the 30th Oct. the Captain departed from the Balize for New Orleans with a part of the cargo in lighters, where he arrived on the 3rd Nov.and landed the same on the 5th and 6th of November. On the 11th November, he again sailed from the Balize for New Orleans with another portion, and on the 20th November, the residue of the Hope’s cargo arrived at New-Orleans. The regular-protests were noted and extended. On the arrival of the eai-go at New Orleans, a survey by the Port Wardens was called, and the surveyors returned that 28 casks were more or less damaged. As to the number of casks found to be damaged, there was a variance; one witness testifying that as many as 46 were actually damaged, and, perhaps, more. The cargo was abandoned to the underwriters, as a total loss, and the same was sold by order of the consignees at public auction. The amount of nett sales was §2,367,10. Of this amount Schult & Buck} were entitled to receive §864,90, after paying other expenses, exclusive of salvage, and John Rose was entitled to receive §1,079,08, after paying the expenses, exclusive of salvage; and the amount of salvage allowed was 44 per cent on the whole amount.</p> <p>The plaintiff contended at the trial for the right to abandon, and claimed for a total loss. The defendants objected that there was not a total loss, and that the plaintiffs were entitled only to receive compensation for the 28casks, said by the Port Wardens tobe injured.</p> <p>RiciiardsoN, J. charged the jury that in his opinion there was a total loss, and that if they gave the plaintiffs the 28 casks or more as the amount damaged, they were at liberty to find a verdict for the true loss with or without interest at their sound discretion.</p> <p>The jury found a verdict for 46 casks injured, but allowed no interest, giving to Schult & Budd §612,78 and to John Rose §801,28. From these verdicts, the plaintiffs appealed, and Cogdell and Gilchrist made the following points—</p> <p>* 1st. That the verdicts of the jury were erroneous, in as much as a partial loss was found and no interest thereon allowed.</p> <p>2nd*NThat the presiding Judge was wrong in charging the jury that a partial loss only was proved, when in fact the evidence established a total loss.</p>

<p>This matter came before the Court, at Coosawhatchie, in April 1824, (Mr. Justice Colcock sitting,) on a rule upon the Commissioners taken out at the November term preceding, to shew cause why a mandamus should not issue, commanding them to restore a certain road near Beaufort and keep the same in repair. It appeared that the road leading from Beaufort to Battery Point had been a public road before 1796, and that the commissioners in 1822, had sanctioned an alteration in the road to relieve a Mr. Scriven over whose land it ran. This complaint was made by Mr. Smith, complaining of the alteration, on the ground that it was an inconvenience to him in going to his plantation. His honor dismissed the application, on the ground that the Commissioners had the power at their discretion to turn and alter the road, however long established and that no tice-to the owner of the land, Mr. Scre-ven, over which the old road ran, should have been given of this application. The Commissioners thought the new road a great inconvenience to Mr. Screven and of little importance to Mr. Smith. The new road had been made at the expense of Mr. Screven.</p> <p>This appeal was now taken up, on the ground that the Commissioners had no authority to change or alter any, old established road or private path, unless such alteration be absolutely necessary, and that it was not requisite to have given notice to Screven. (See act of 1811.)</p>

<p>This was a rule on Young and two other assignees, appointed by the Court, of the estate of R. R. Gibbes, to shew cause why they should not pay over certain monies in their hands to the holders of the oldest judgment against R. R. Gibbes. The assignees objected to the rule, that they could not be called on to account in this way, which objection the presiding judge (Bay J.) overruled, and ordered that the assignees should return what funds they had in hand. They afterwards produced their accounts shewing that they had received $1,284 06, and disbursed $140 22 ; that the amount of $1204 06 which they had received, consisted of $190 06 received for the sale of part of the property assigned; $594 of money which Gibbes had in hand and paid into court when he took the benefit of the act; and of $500 which had been paid to them on a bond, one of the choses in action assigned.</p> <p>The presiding judge ordered the assignees to pay over to the oldest judgment, the proceeds of the property sold, and the money they x-eceived at Gibbes’ hands. From this oi’der the assignees appealed and shewed for cause — ■</p> <p>That the Court has not jurisdiction of trusts, and that it could not call the trustees of an insolvent debtor to account by rule. That the sums disbursed should have been charged against the assets received, or against the proceeds of the property sold, and that the residue only of the proceeds of the property was applicable to the oldest judgment; and that the judgment or execution creditors had no lien on the money paid into Court by Gibbes when he took the benefit of the act.</p> <p>The pfWer of entering up a judgment on an award goes on the principal and incident. So of all proceedings against the Sheriff and other officers of the Court. The assignees are the agents of the Court, and as such are liable to be called on to account. M’Willie vs. Hudson, 2 Const. Rep. Tread. 119.</p> <p>When a power is given by statute every thing necessary to give it effect is implied. Warring vs. Catawba Co. 2 Bay 109. 6 Bac. tit. Statute B. 369.</p>

<p>A fee cannot be limited to take effect in futuro; therefore a deed of a tract of land “ in case of my death to A,” is void as a conveyance.</p> <p>t An instrument having the formality of a Deed, may operate as a L Will, being voluntary and to take effect at the death of the /£ maker.</p> <p>A Covenant to stand seized to uses must be supported by a good or valuable consideration, and the insertion of the words “ having received full value,” or “ for divers good causes and considerations,” will not support such a covenant.</p> <p>On complaint of a breach of covenant, the recovery must be measured by the consideration paid.</p>

<p>On an indictment for stealing the property of A. B. and C. proof that the defendant stole some of the goods of each of them respectively, in which they had no joint intefest, does not correspond with the allegation, and new trial granted on conviction.</p>

<p>The question in this case was, whether in an action against the Sheriff for an escape of a person from the goal bounds, it is incumbent on the Plaintiff to prove the insolvency of the surities given by the prisoner to keep the bounds, before he can maintain an action against the Sheriff for the escape. The case was tried before the Recorder of Charleston, who nonsuited the Plaintiff, who appealed.</p>

<p>Where the Tenant holds over his term, and the Landlord recovers double rent under the act of 1808, he cannot bring case af-terwards against the Tenant for holding over, whereby he lost the sale of the premises. Quere 1 If the Plaintiffs under any circumstances could recover for such remote consequential damages 1</p> <p>To determine whether causes of action are the same, the samo evidence must be necessary to support them.</p> <p>Where a party has been injured he cannot bring suit for one part and another suit for another part. If the cause of action is entire, but one suit can be brought.</p>

<p>This was an issue devisavit vel non. It was contended that the pretended will was a forgery. The jury found against the will, and the case was taken up to the Court of Appeals, on the ground that Mr. Justice James, who tried the cause had rejected the evidence of Mr. Vinyard, the executor and party to the record, who was offered to prove the circumstances under which the will was found.</p>

This was an action of assumpsit for Overseers wages, tried at Charleston, January, 1826, before Mr. Justice Gantt. The contract was proved for $100 per annum. The Plaintiff, the Overseer, was sick and idle, quarrelled with the defendant after a month or so, and struck her. He was discharged'by the defendant, and he went off taking the keys with him. The defendant Offered to pay him pro tanto.

<p>This was an action on the Administration Bond of Charles Gilfert, Administrator of S. G. Holman, an alien, against the Defendant Fayolle, the surety. The question made, was whether the act of 1788, P. L. 464, was repealed by the act of 1789, P. L. 494. The act of 1788 provides, “ That where any person, not a Citizen of this State has died, or shall die, already indebted to a Citizen of this state, the assets and effects within the same, of such deceased person being sufficient [insufficient the Court thought was intended] for the payment of all his debts, shall be liable to discharge the debts due to the Citizens of the State in the same manner as if the same had been liquidated by bond or other specialty, any law, usage, or custom, to the contrary notwithstanding.”</p> <p>The act of 1789 directs generally, that in the payment of debts of a deceased person, Bonds and Obligations shall be paid before simple contract debts.</p> <p>Mr. Justice Gantt, who heard the cause, decided that the act of 1788 was still of force, being a particular provision, unimpaired by the act of 1789 providing a general law.</p> <p>The Plaintiff, who claimed to have a foreign bond paid before simple contracts in this State, appealed.</p> <p>9 Mass. R. 257.</p>

<p>A master in equity is liable at law, to an action on the case, for a neglect of duty, as an officer of that court, by any one who maybe injured by such neglect.</p>

<p>This case came up to the Circuit Court of Charleston, on an appeal from the Ordinary. A paper purporting to be the will of John Elcock was propounded for probate, haying only two witnesses. It bore date and was executed on the 9th of March, 1823. Objection to the Will — - That by the act of 1824, three witnesses were required to all wills of personal property, “ from and after the first day of May then next.” That the testator did not die until the first of May, 1825. To this it was replied that the will had been executed before the act was past, and was therefore not affected by it. The Ordinary gave judgment against the will, and upon appeal, Judge Richardson who heard- the cause, agreed in opinion with the Ordinary, and the jury found a verdict against the will. — ■ From this verdict the appeal was taken up.</p> <p>The act of 1824 was prospective. To construe it in any other way was contrary to just principles. The general doctrine is, that the will takes effect from the execution. The will was valid at its execution, and remained so up to the time of passing the act, and to say that the act rendered it invalid was to admit that it had a retrospective effect. The statute of 1824 was exactly analogous to the statute of wills. Grimke P. L. 82. It is copied from the statute of frauds. The construction under the two acts must be the same. This law has not affected all wills. ■ It has not abolished wills donatio cau-sa mortis. An act ambulatory, as explained by Ulpiaru only means an act that may be changed. But it is good if not altered. Mathew v. Warner, 4 Yes. 200; Slade v. Cooper, 1 Phil. 336,n(a.)2 N. Sc M’C. 482. It had been ruled in England that a will executed before the statute of frauds, was good, though the testator died afterwards.— Gilmore v. Shooler, 2 Mod. 310. This case was exactly in point; the words of the two statutes being exactly the same. So in Noel v Clark, 3 Mod. 218, where the will had been executed but with one subscribing witness, before the statute, it was held good, though the testator died afterwards. Ashburnham v Bradshaw, 7 Mod. 239; Sergeant v Punter, Prec. in Chan. 77; Skinner 227; Downs v Townsend, Ambler 280; Addington v Andrews, 3 Atk. 149. The civil law doctrine was the same. Voet. 2 vol. 272 ; Cod. Lb. F. 3 L. 10. Inst. L 1, T 2, par. 6. In France the same doctrine is maintained in the Code Ci-vile, and in the notes to the Code cases are cited. He also cited Poth. on Test. Would the courtnow change the principles of the law, under which we had lived for more than one hundred years. Suppose our ambassador Mr. Poin-sett, who is absent in Mexico, had died soon after the passing of this act, without complying with its provisions, would his benevolent intentions have been thwarted by a construction varying from the uniform decision of years?</p> <p>Finley, against the Will. This ease was within the act, unless excepted by the act itself. But the act excludes the idea of any such exception. The will was ambulatory till the death of the testator, and therefore within the provisions of the act, the testator having died subsequently. If the legislature did not intend to comprehend cases of this sort, would the exception not have been expressly made in the act, the case being one so apparent. Suppose the property had been acquired after the passing of the act; would it not be allowing a transfer of property in a particular way which the legislature had prohibited. As to the civil law, and to the array of French authorities which his friend had made, he could only say, that he did not understand French, and therefore could not answer for their applicability: but French law was not our law. As to the English cases they were contradictory; and those especially from Prec. in Chan. , Skinner and Modern were not applicable. In 7 Bac. ah. 299, it is said the will of a papist is void, having been executed before the statute, its legal effect being from the death and not the execution. The same case there cited, ofBuch v Morgan, wasreported in7Mod. 240. SeeViner tit. Devise. The will was held subject to the law existing at the death, though enacted after its execution. Dyer 143; Com. Dig. tit. Devise. A new publication is required after the act. There was a substantial difference in this respect between testaments and wills. A devise is looked upon as a conveyance at the time it is made, with a power of revocation, and a testament of personal property on the contrary is considered only as taking effect at the death of the testator. It is said not to have any life till then, which expression was used as in contradistinction to the operation of a devise. The property under a devise is considered as having vested at the execution, and to construe a will as only operative from the death would often be to divest the right. 1 Rob. on Wills 231, 232; 7 Mod. 242. Besides, a devisee to all one’s children vests only in the children then in existence. 2 Salk. 691; Cowp. 97 ; 6 Cru. Dig. 69 ; Amb. 451. A will speaks at different times, as to the different estates, real and personal. In this case the party had time enough to alter his will conformably to law.</p> <p>The cases cited by the gentleman supported the positions he (Mr. King,) had assumed. More fraud (as Lord Mansfield said,)had been committed under the statute than before. Fraudulent wills are apt to be punctiliously executed. 4 Burn. Ecc. L. 84. The greatest judges in England had stated that the law of testaments had been taken from the civil law, therefore that law was applicable. In 2 Edens Ch. R. 254, the editor in a note says, that he could find no entry in the Register’s Books of the ease of Ashburnham & Bradshaw, which case alone stands opposed to all the cases in the English Books, and that case was decided by Lord Northington, who never did regard authority.</p>

<p>This was an appeal from the court of ordinary, tried before Mr. Justice Bay, at Charleston, October Term, 1826. Thomas Drayton by his last will gave to his son William Henry Drayton, the residue of his estate, and appointed him sole executor. He propounded the will, which was resisted by some of the next of kin and after hearing evidence, the ordinary (Mr. Mitchell,) decided in favor of the will and admitted it to probate. From this decision, the parties, who were opposed to the will appealed and gave the ordinary notice not to grant letters testamentary to the executor, until the determination of the appeal. He did not make demand of letters testamentary from the ordinary but possessed himself of the assets as far as he could and administered the estate in various ways. At May Term, 1826, the appeal was tried on an issue devisavit vel non, and the jury found for the will. The parties who opposed the will appealed and in July 1826, William Henry Drayton died, having made his will and appointed Thomas Wilson Esquire his executor, who proved the said will in due form of law. The appeal was then abandoned and Thomas Wilson made suit to the ordinary to grant him a warrant of ap-praisement for the effects of Thomas Drayton, and this raised the question whether Thomas Wilson as executor of William Henry Drayton represented Thomas Dray-ton the first testator, or whether letters of administration cum testamento annexo should be granted. The ordinary decided that Wilson did represent the first testator and from this decision the parties opposed to Wilson appealed; and on the hearing of the appeal in October 1826, the presiding judge, Mr. Justice Bay, reversed the decision. From this judgment of reversal, Wilson appealed on the grounds—</p> <p>1st. That William Henry Drayton did not die before probate; as the probate consisted essentially in the judgment of the ordinary allowing the will.</p> <p>2nd. That after the appeal, the ordinary had no rightful authority to proceed or administer the executor’s oath, and as William Henry died before the appeal was determined, it was impossible for him to take the oath. And as the means appointed by law for completing the probate was rendered impossible by the act of God, he and his executor ought not to be .prejudiced by it.</p> <p>3rd. That the generalrule, thatif an executor die before probate, administration cum testamento annexo must be granted did not apply to a case like this, where the executor was also the residuary legatee, and had done every thing in his power that was essential to complete his right and assume his duty as an executor.</p> <p>If the executor die, before probate his executor cannot prove the will. But in this case the will was proved. William Henry Drayton went to the Ordinary’s office with the Will and the Witnesses, and the Ordinary delivered his judgment establishing the Will. The Executor offered to qualify, but the opposite side entered a caveat, which was not granted, and he died. In point of form the probate was not made. But in substance it was. Probate is sometimes used to mean the mere proving of the Will, or where the evidence has been taken and the ordinary gives the executor a copy of the will. It is sometimes used to signify the establishing the will, and getting the judgment of the Ordinary that it is the will of the testator. When the Executor sues he only says he proved the will and makes profert. Ordinarily the will is only proved by the oath of the testator. The last act done is administering the oath to the Executor, and that is called probate. It is the authenticating the will and giving a copy to the executor. Toller 58. Now it is contended that as W. H. D. never had a copy of this will, he never had probate. But this was wrong, for before his death he had the judgment of the Ordinary establishing the will. He entermeddled with the estate. He could have sued. To be sure he could not have gone to trial without the probate. If by the act of God, the whole means prescribed to complete an act to vest rights, be not complete, the party shall not be injured if he be guilty of no laches. 1 Coke R. 248, Thomas’ edi. Co. Lit. 97c. The Executor here had substantially complied. Besides an appeal suspends the proceedings before the Ordinary. Toll. 73; 6 Coke R. 186, Thomas ed. 4 Leo. 90. Allen vs¡ Duudass 3 T. R. 130. per Buller. If the decree of the Ordinary is reversed, the intermediate acts of the executor are void. Toll. 128, 131. The opposite side prevented the Executor from procuring the requisite formalities of his right. They cannot now object to the want of those forms. So in Shelly’s case, it has been held that if the substantial paid has been complied with, the right is completed. So in case of judgments entered after the death of the defendant. It is said no man can prove a will but the executor named in it. Toll. 114. But Thomas Wilson needs not prove the will. It was proved already per testes, by W. H. Drayton. Thomas Wilson needed no probate. It had been done at his hand. Even if letters of administration on the will were granted, no further proof of the will would be required.</p> <p>Colcock, J. But the administrator must swear to the will.</p> <p>Petigru. That would be necessary if no proof had been offered before the Ordinary. After the evidence of the witnesses, taken by the ordinary, and upon record in the Ordinary’s office, and his judgment thereon, it stands as a will, and the administrator need not swear to it. It had already been proved in solemn form. The case resolved itself into this — what has been wanting ? Nothing but the oath of W. H. D. — for as to the copy, that was nothing; for it might be obtained now, and probate when granted refers back to the death. On the doc trine of relation, he thought it was not wandering to apply the rule to this case. Toller 75. There was reason why the Ordinary should not grant letters now, as the clerk signs judgment after the death of the defendant. The commission is not the office. Marbury vs. Madison, 1 Craneh 137; Eggleston vs. City Council, 1 Const. Rep. 45. But suppose that W. H. D. had taken the oath, he could not swear for his executor. What was that to Thomas Wilson? He has taken the oath as executor of William Henry Drayton, and he stands in his shoes and swears he will do every thing rightfully, as if he were W. H. D. Was it ever heard that a person lost his office, by not taking the oath? It is administered with the delivery of the commission. It was no more essential lo W. II. D. than the commission. Suppose the ordinary were to say, I have always considered letters of administration as granted and have them now to deliver? Could your honors say any thing against it?. . I state the case thus. The ordinary has delivered his judgment and letters of probate now lay in his office for him. It is just the case of Marbury vs. Madison. The President in office had made them out in his last days. The officer to carry them, could not take so ■ many and was obliged to-leave them, and forsooth the President who succeeded him turned the keys upon them and locked out the messenger, but the commission though never delivered was held good. The accident in this case was precisely within the case of Shelly, and was like the case where a deed by accident has not been delivered.</p> <p>Probate was not only the proving the will, but taking out letters testamentary and until then, no rights are consummated. An action may be commenced, but the plaintiff cannot declare before probate, 3 M‘Cord 371. He must set them forth in the declaration. The certificate is required, Toller 68. The court knows that in this country the executor proves the will and renounces, and unless he take the oath and gets letters he is no executor. Wills are daily proved and none of the executors qualify, 1 Salk. 308, and yet his friends argument would make them all executors and give their executors the rights he is contending for in this case. Proving of the will, of course, is necessary before letters, ■2 Swinb. Pow. Ed. 742. Until probate is taken out the party is not executor in any legal sense. In Shelly’s case neither party was to receive any benefit. The case of Marbury vs. Madison does not apply. There the commission was made out. The party had taken the oath of office, and every thing else that he could do. To complete an act there must be consent. But the executor being dead, renders it impossible.</p> <p>Taking the oath was a part of the probate, but the term probate was of loose meaning, and proving the will was the substantial part. That alone was absolutely necessary. The passing of the recovery in Shelly’s case exactly illustrated his idea. Thomas Wilson as much represented the testator here, as the heres factus of the civil law.’ As to the argument of the alien it did not apply. There is no such thing as a half citizen.</p> <p>The Court. Yes, denizen.</p> <p>King. And my friend has made out half probate.</p>

<p>The act of 1791, giving the Court of Common Pleas the power to order the sale of mortgaged premises after judgment, by suggestion, does not apply w-here the mortgagor is out of possession. In such oases the mortgagee must go into the court of equity and make the -mortgagor, ag well as the party in possession, parties to the foreclosure.</p>

This case was tried at Charleston before Mr. Justice Gantt. The only question was, whether by the act of 1822, providing “ That whenever a Notary Public, who may have made protest for nonpayment of any inland bill or promissory note, shall be dead, or shall reside out of the district in which said bill or note is sued, his protest of said bill or note shall be received as sufficient evidence of notice in any action by any person whatsoever, against any of the parties to such…

<p>Defendant leased of the plaintiff’s assignor a House, for a term of years, stipulating to pay a certain rent per annum, to be paid annually. At the expiration of tin* lease the defendant continued in the occupation of the house, without any further agreement betwen him and the lessor. This was an action for use and occupation, for a period subsequent to the expiration of the written lease. The only question was as to interest. The Recorder ruled that the plaintiff was not entitled to interest, there being no written stipulation to pay the rent. The plaintiff appealed.</p>

<p>5t I give unto my wife H. B. my two negro female slaves, Sally and Harriet. I also give her one third part of my income annually during her life, to revert after her decease to my estate.” Testator then gives to his son Thomas and to his heirs one third of his income. He then gives his daughter the remaining third of his income, for her sole benefit duringlife, and then to descend to her heirs lawfully begotten. The will then proceeds : “ After the decease of my wife, the above named H. B., the whole of my estate to be equally divided between my son Thomas and fiiy daughter Ann, and their heirs lawfully begottan. Held that the wife took an absolute estate in the two slaves.</p>

This was an action of assumpsit on a promissory note drawn by the defendant, payable to the plaintiff, tried before the Recorder of Charleston, October Term, 1826. The defence was usury. The defendant appeared in court and offered to swear as a Witness, under the act of assembly to prove the usury.

<p>This was a rule taken put by Laval, lately elected city Sheriff of Charleston, ágaiiist DéLéiSserliné, the late Sheriff, to shew cause why he had not delivered over the records and papers of the office. The rule Ivas heard by the Recorder of Charleston, October term, 1826, who delivered the following opinion:</p> <p>The Recorder. In this case the objection takén to the rule’s being made absolute is, that thohgli the defendant was elected under ah ordinance to hold his office for two years only, yet as soon as he became city sheriff he was in under the constitution of the state, thé 6th article of which declares that “ Sheriffs shall hold their offices for. four years.” To establish this it became necessary for. the defendant to shew that the constitution includes the city sheriff, and he has attempted this by endeavoring to prove that this court is a state court, that the Recorder is a state judge, and then it is taken for granted that if these positions be demonstrated the city sheriff must be a state sheriff, and consequently included within the provisions of the constitution. For it must be admitted that the officers mentioned in that instrument are state officers, and no others. It is not I apprehend, denied that the city sheriff is a city officer, but it is contended that he is also a state officer, that is, as well a state sheriff as a city sheriff, because he has to perform duties within the city similar to those which thé district sheriff performs within the district. That position would seem to flow from such a general principle as this, that whenever a person is directed by law to do certain public duties similar to those performed by a known officer, he thereby becomes such officer; and the defendant’s counsel have in conformity contended, that whoever éxercises judicial power becomés a judge, and is protected by the constitution. If there were such a principle, the argument perhaps, would be at an end; but none such exists. A coroner exercises an important judicial office, having the authority to summon a jury, and to charge them and receive their verdict like a judge, yet he is not a judge within the constitution, for if he were, though an inferior one, he would hold his commission during good behaviour. He also acts as sheriff when the sheriff is interested, yet no one ever supposed he thereby became protected for four years from such act. So the managers of elections, comihissioners of roads, &c. are judges whose decisions áre Often very important áñd final, yet it cannot be pretended that their exercise of judicial authority imparted by the laws, gives them a tenure during good behaviour; so with many others. The principle therefore, does not exist. Persons may be designated to do certain duties similar to those of an officer either executive or judicial, and yet not become thereby such officer. But it is assumed that the character of the court gives the character to the executive officer. No course of reasoning has been pursued to establish this assertion and no authority supports it. In Hel-frid’s case, Judge Johnson says, “ a sheriff is not otherwise necessary to a court than to execute its orders and its process ; he certainly has no participation in the judgment of the court; and if there be no sheriff, I see no reason why the court would not be at liberty to pronounce its judgment.” But further, when the jurisdiction of the court of Wardens was explained by the act of 1784, the persons designated to serve their process were constables.-— In less than three years afterwards, the Wardens themselves by ordinance, established the office of city sheriff, transferring the duties performed by the constables to him. Suppose they had retained the title of constable, and imparted to him all the powei’S given to the person they called city sheriff, his character it must be admitted, would not have been altered, yet it never would «. have been contended that such constable became afterwai’ds protected in the tenure of his office by the state constitution as a sheriff. The name then it appears to me has led to the erroneous opinion that the city sheriff is what the law means by a sheriff. Indeed, I doubt the power of .the city council to appoint a sheriff. What then, it may be asked, is this office ? The answer is, he is a city officer having certain qualifications, and performing in the city certain duties analagous to those of sheriffs. It cannot be denied that the legislature may direct writs to be served by constables or others, and the processes of courts to be executed by whomsoever they think proper. In the present case, within the city of Charleston, they have directed these duties arising out of the city court to be performed by this officer, as the sheriffs of the state perform those issuing from the superior courts of law. The office is thus declared by the act to be analogous or similar to that of shei’iff; but this very similarity destroys its identity ; nullum simile, says Lord Coke, est idem. If the city sheriff be a sheriff, then there are two distinct sheriffs, independent of each other, exercising jurisdiction over the same place, which, it is said in 3 Bacon 162, cannot be, for though there are two sheriffs in London and Mid-dlesex, yet they regularly make but one office, and if one die the office is at an end until another is chosen. If in fact the city sheriff be a sheriff in Charleston, what prevents his serving the process of the Common Pleas and Sessions as well as that of the City Court ? Further, the city sheriff was an officer well known, as defendant’s counsel contended, at the adoption of the constitution in 1790, and therefore was intended to be included in the term sheriff in that instrument; but the reverse appears to me to be the legal conclusion. He was well known then to be an officer of a corporation, of a veiy mean rank, and as the counsel have admitted, of slender profits. Why should he be drawn from his obscurity and the tenure of his almost worthless office rendered sacred by the constitution ? The true construction I take to be this. As sheriffs of the state were at that time officers of dignity and power, and well known, and as the city sheriff, though perhaps equally well known, had neither dignity nor power, the mention of the former is an exclusion of the latter, according to the common maxim, particularly when the very name of the latter is different from that of the former. Further, the constitution carefully preserves all chartered rights and privileges then in existence. (8th art.) The wardens had, (and three years before had exercised it,) the right of electing this officer called a City Sheriff, and of fixing his term of office at their pleasure. The constitution could not therefore, have intended to in» elude this officer, because it would have abridged a chartered right previously granted by law. But the argument that sheriff must include city sheriff, if good when applied to the constitution, must be at least equally so, when applied to all the acts of assembly, where the term is used. All sheriffs are directed to execute process from the Court of Ordinary, 2 Brev. 223. Can the city sheriff do so ? So in many other acts, sheriffs are directed to do certain things which there can be no doubt the city sheriff is not bound to do. Sheriffs are not bound to serve on juries, yet the city sheriff was till the passage of the act of 1796, (2 Faust 101) which says : the following officers of the city of Charleston shall not be bound to serve on juries: the Intendant, City Sheriff, &c. One act directs all public officers to give bond to be approved of by certain state officers, and to be lodged in a particular place, &c. Surely it cannot include the city sheriff or city clerk, or any other city officer. I take the true rule to be, that no act of the legislature applies to this inferior city officer, unless he be expressly named or referred to therein, and I think the same rule. is applicable to the constitution. Let the rule be made absolute.</p> <p>An appeal was now taken up from the decision of the Recorder, as well upon -the motion to admit Laval into the Office of city sheriff, as upon the rule served on F. A. DeLiesseline to shew cause.</p> <p>By the ordinance of 1824 it was ordained that the city sheriff should,hold his office until 1826. Under this ordinance DeLiesseline was elected, and after serving as sheriff that period, Laval has been appointed by a new counsel. The constitution of the state does speak of .all sheriffs. But it means state sheriffs. This officer is not a sheriff as meant by the constitution. This office grew, out. of the ordinance pxaseriáJ*arsuance °f Uie act of 1783, P. L. 329, and it jr-onlj a city officer. The constitution meant that officer who is known to the common law, and by the act of 1795 P. L. 271, sheriffs are ordered to be elected for each district. These were the sheriffs meant by the constitution. This city officer is not the shire-reeye, the viscount.— Who could confound the sheriff, shire-reeve, or keeper of the county, with the city sheriff of Charleston ? They represent different rights. The sheriffs of the state represent the officer who in England holds the court of the shire. The elections of state sheriffs are regulated by acts of the legislature. The city sheriff was never created by that authority. He is the mere creature of the city council. The provision of the constitution does not apply to officers of corporations. City Council vs. Egleston, 1 Con. Rep. 45. City officers are not to be commissioned by the Governor, but by the corporation from whence their appointment emanated. Their duties were different ; which was conclusive of the matter. By the act of 1795 the duties of state sheriffs were made the same as in England. Their powers are to raise the posse commi-tatus, they extend over the whole district, they are keepers of the public peace, See.; Com. Dig. Compty B. Before the organization of the militia their duty was to call out the troops and to suppress rebellions. Had the city sheriff ever such powers ? The city council have not authority to enforce the laws of the state, unless authoris-ed by the legislature. M’Millan vs. City Council, 1 Bay 47. The oath of office only prescribes his duties to the city authorities. He was a constable before the act of 1801, but then the city swelled a little under their new powers, and called him sheriff, but the worthy burgers only changed a name. The case of Helfrid, 2 Nott and M’Cord 233, was not inconsistent with the views he had ■'aken. That case would seem only to say that the Recorder, by the acts of the legislature, had two that he was an inferior judge, andas such the constitution» was indifferent by whom he was appointed.. It can hardly be contended that every bum-baliff concerned in thief-taking, or in catching skulking debtors was t.o hold his office for four years. If he had been called baliffi, nobody would have ever thought of his holding under the constitution. The name of Sheriff caused them to catch at this idea of the constitution. The city Marshal stops those who ride too fast, and catches dogs and cattle — he is nothing. But even the .city Sheriff, what can he do ? He cannot hang a negro.. He cannot even serve the process of a magistrate. If .your Honors, appoint a messenger, he too will be a sheriff, and cry .out for the constitution, Has the council been uniform in its plan ? Not they. They have some years sunk down to Major Cartwright’s plan of annual elections, and then they have become more aris-tocratical, and have tried the triennial mode. I do think the judgment of the Recorder should.be affirmed.</p> <p>This offiee was constituted in 1787, four years before the constitution was framed. He was known as a sheriff and had considerable powers given to him; to make proclamation’for the intendant, &c. and was vested with all the powers given by the state laws to state sheriffs. See Ordinances p. 38, 54, 87. The framers of the constitution must have been aware of this office. The act of the legislature of 1781, recognizes this officer. It legislated for the city sheriff. The same reason applies for the tenure of four years for a city sheriff, as for a district sheriff. The city sheriff has always been a conservator of the peace. Before the act of 1780, the officer who served the processes of the colonial courts was called Provost Marshal. The duties being the same, why should the constitution distinguish between sheriffs of a city and -Rovififs of a county. The constitution does apply to a class of officers who are not appointedby the legislature, i. e. the recorder, the officers appointed by the governor, &e. If the recorder is considered an officer under the constitution, why not the city sheriff ? The Attorney General goes into that court to enforce the laws of the state, and this officer executes them for him.</p>

<p>The books of the Keeper of a Billiard Table, are not admissible evidence.</p> <p>The cases, as to the admission of books of accounts in evidence, reviewed and considered.</p>

<p>This was an action of assumpsit tried before the recorder of the city of Charleston, in October term, 1826, who made the following report: “ This was an action of as-sumpsit called for trial during the absence of the defendant’s counsel from court. The ease was clearly proved by the plaintiff, and on the point of jurisdiction a witness testified that the defendant Wm. Overstreet, was a resident of this city but his partner Brown resided in Savannah. No question being made before me on the point, the plaintiffs took their verdict. The next day I received the following notice of appeal — Be pleased to take notice that a motion will be made at the next court of appeals in arrest of judgment or for a new trial, on the ground that the case was not within the jurisdiction of the court, inasmuch as one of the partners hf the firm of William Over-street, & Co. lived in Savannah, without this state.”</p> <p>St common law-all the parties to a joint contract must have been made defendants. The act of 1792,1 Faust 2t4, authorises suing the partner where the others were out of the state, does not apply, because it preceded the establishment of this jurisdiction. The act of 1801, 2 Faust 392 ; 3 Brev. 46 ; Act 1818 p. 26 — On looking into these acts it will be seen that they have jurisdiction only when defendant has been resident ¿tiree months. He cited also, 2 M’Cord 43, on the subject of the jurisdiction. 1 Chitty 313, 427.</p>

In this case the defendant applied to the Court of Common Pleas for the benefit of the Insolvent Debtor’s ,Act, and the question made was whether the seventh section of the Prison Bounds Act, Grimke P. L. 457, which declares that no prisoner shall be discharged “ who shall have within three months before his or her confinement, or at any time since, paid or assigned his estate or any part thereof to one creditor in preference to another, or fraudulently sold, conveyed or…

Assumpsit on anote drawn by Samuel Green as attorney for John O’Neall, and Thomas S. Barrett, at eighty eight days, for $¡200, and endorsed by Sami. Green, as attorney for Walter Herbert. The questions were, Whether a power of attorney to Dr. Green to renew a note which these parties had discounted at the bank, with O’Neall and Thomas as drawers a^id Herbert endorser, £t at sixty and ninety days,” authorised his renewing thenote at eighty éight days?

<p>Plaintiff gave in evidence a Bond purporting to have been executed in another state, and proved the signatures of the obligor, but gave no evidence as to the signatures of the witnesses.— Held to be sufficient evidence of the execution of the Bond, under the act of 1802.</p>

This Was an action of assumpsit brought by the plain-4tiff as administrator of Hugh Wallace, deceased, upon a note of hand given by the defendant to the deceased* and tried before judge Waties, atNewberry, March, 182G. The plaintiff changed in his declaration a promise to his intestate only. The defendant pleaded the general issue and the statute of limitations.

<p>'Every privilege which one man claims in derogation of the rights . of another, is viewed with jealousy by the law, and it will re-» quire it to be confined to the prescribed limits and specific objects of the grant.</p> <p>When a person claims the right of keeping up a pond of water which overflows the land of another, it must be kept at its prescribed limits, which are, the height to which it was kept at the time of the purchase, and for the specific object to which it was then applied.</p> <p>Ry the extinguishment of a right is meant its total annihilation, and not its suspension.</p> <p>The right to overflowlthe lands of another by grant or prescrip - tion is an incorporeal hereditament, and if extinguished for a moment is gone forever.</p> <p>Rights of this sort are denominated by the civil law servitudes.</p> <p>A servitude may be extinguished by the act of God, the operation of law, or by the act of the party.</p> <p>The act of aparty shall always be construed moststrongly against himself.</p> <p>A servitude may be extinguished by a renunciation of the party, either express or implied, as by permitting the party from whom the servitude is due, to build .on the property such works as presuppose an abandonment of the right.</p> <p>When the act which prevents the servitude, is by the party to whom the servitude is due, it is wholly extinguished, but when it is by the act of another, it is only suspended,</p> <p>An act incompatible with the nature or exercise of the servitude is sufficient to extinguish it: so the creation of a new inconsistent right by the party himself, will .extinguish the former -right,</p>

<p>To suit on an administration bond, the declaration, going only for the penalty without setting out breaches, the defendant craved oyer, set out the conditions and pleaded performance. The plaintiff replied that the adm’x. had not truly administered, because she had not paid a certain debt. Demurrer, on the ground that plaintiff did not allege that the administratrix had assets to pay the debt. Demurrer supported.</p> <p>Suit cannot be brought on an administration bond against the sureties until the adm’r. has been called to account and a judgment obtained against him.</p> <p>But where creditors sue, quere if it is enough to shew a judgment against the administrator on a plea ofplene administravit, and a return of nulla bona! Or should further proceedings be had against the administrator!</p>

<p>Nancy Meheig was appointed, by the Court of Chancery, committee to a Lunatic, and she gave Bond as usual to the Commissioner in Equity, to account annually before him, and the defendant Wallace was her surety on the bond. Nancy Meheig, as usual, not having accounted annually, as she should have done, was summoned by the Commissioner to do so,- but she neglected to comply, and she was reported to the Chancellor as a defaulter, under the act of 1824, whereupon that court ordered suit to be brought on her bond, at law. Under this order the defendant as surety was sued, and the question made before his honor Judge Waties, who heard the cause at Laurens Spring Term, 1826, was, whether an action at law could be maintained on the bond, no proceedings having been hád in the court of Equity against the principal to account, and no specific sum assessed against her by any court having jurisdiction of her accounts. The question was tried on demurrer'. His honor gave judgment for the plaintiff. Defendant appealed.</p>

<p>Defendant hired his slaves to Miss Adams and E. Peck, who called on plaintiff to attend them while sick, inform - ing him that they belonged to defendant, who was charged by plaintiff. The case was tried on summary process. The only question was, whether the defendant was liable under the circumstances, or whether the physician should have charged the hirers who employed him. Several witnesses were examined as to the custom of the country in the payment of medical bills incurred for hired slaves, but they differed in opinion. The Court decreed for the defendant.</p>

<p>The Commissioners of the Roads are authorised by the act ot 1788 to cut down and use such native forest trees as are unre-claimed and unappropriated to any particular use, as rpay he near the high roads, private paths, bridges, &c. for the purpose of making and repairing them, notwithstanding the trees are enclosed m a fence.</p> <p>Trees reserved for ornament, and those cultivated for use, have always been exempted.</p>

<p>The lands of an intestate may he sold under an execution obtained against the administrator, without making the heirs parties to the proceedings, notwithstanding there may he sufficient personal assets to" satisfy the debts.</p>

<p>One of sevaral co-partners can discharge his iudividual debt to a third person, by releasing or giving a receipt to such person for a debt due by him to the firm.</p>

<p>Where a defendant is in gaol under a Ca. Sa. and escapes, the plaint iff'has two remedies against the Sheriff i. e. An action of debt, wherein he will be entitled to recover the whole amount of his judgment against the prisoner; or an action on the cace for damages by reason of the escape, in which the jury will be allowed to assess damages according to the circumstances.</p> <p>To an action on the case the sheriff may prove that the defendant was insolvent, in mitigation of damages.</p> <p>Quere, if the sheriff is liable at all events for an escape, (there being no negligence,) of a prisoner under final process, as in England 1</p>

This was an action of trespass to try titles, and while the cause was at issue, one of the plaintiffs, Theodore Gourdin, died, and his death was pleaded in abatement. To this plea the surviving plaintiffs filed a demurrer which his honor Judge Richardson sustained. This was an appeal to reverse his judgment. It is conceded that by the common law, where one of several plaintiffs die the suit abates, (1 Com. Dig. Tit. Abatem’t. H.) and that although the action survived.

<p>Where the defendant sets up a discount, and pays the balance of plaintiff’s claim into court, the plaintiff ha ving refused to receive it before suit, if the jury allow his discount they may find for the defendant, and thereby cause the plaintiff to pay costs.</p>

This was an action brought by the sheriff against an Attorney for costs, under the act of 1791, making attorneys liable for costs, when they commenee actions for plaintiffs residing without the limits of the state. His Honor Judge Richardson decided that the words of the act, “ agents or attorney ;,” meant attorneys in fact, and not attorneys at law, and reversed the decision of the magistrate.

Samuel Knox, of North Carolina, in th.e first clause of his will says “ My widow to remain and enjoy this my mansion house and farm during her widow hood.” In the 8th clause he says, “ To my grandson Samuel Knox Fetters, son of William Petters, I beqiieath the plantation whereon I now live, and as much in the south state joining this tract, as will make this tract 800 aeres, with all the improvements and appurtenances thereunto belonging forever.” The defendant S. K.…

<p>The defendant being a member of the Legislature, and indebted to the plaintiff, the plaintiff issued a writ against him, which was served on the defendant, in Columbia, whilst he was attending the legislature. A motion was ¿lade before bis honor Judge Gañil, at the sitting of the court to set aside the service of the writ, on the ground that' the service was void under the constitutional provision which declares that “ the members of both houses shall be protected in their persons and estates during their attendance on, g'úng to and from the legislature, and ten •days previous to the sitting and ten days after the adjournment of the legislature. But these privileges shall not be extended so as to protect any member who shall be charged with treason, felony, of breach of the péace.”— His honor ordered the service to be set aside, ánd' this was an appeal from his judgment.</p>

<p>This was an action of trespass for killing the plaintiff’s slave, tried before judge Richardson, at Sumter, Fall Term, 1816. It appeared in evidence that the defendant discovered two' negroesstealing potatoes from a bank which' he had put up near his house; he shot at' them with a gun loaded with buck shot,, and killed one of them belonging to the plaintiff. The evidence was, that he was a negro of bad character. The jury found a verdict for the plaintiff for one dollar.</p> <p>This was á motion 'for a new trial on the ground that the jury were not justified in finding a verdict for less than the real value of the negro.</p> <p>cited Arthur vs. Wells, 2 Const. Rep. 314’; Witsell vs. Earnest, 1 Nott & M’ Cord 182Porteus vs. Hasell and Jenkins, Harper’s Law R. 333 ; Wise vs. Freshly,-3 M’Cord 547.</p>

This was a suit brought against Sutherland and one Lynch.- On the trial a verdict was found against Lynch, but in favor of Sutherland. The appearances, pleas, and subpoenas were joint, one attorney acting for both. The question was whether Sutherland was entitled to have his costs. The clerk refused to tax any costs for him, and this was a rule on him to shew cause. Huger, J. who heard the cause, made the rule absolute, with directions to the clerk to allow only half costs.

This case was referred to arbitration by order of court,with consent of parties. The award was made and returned to the court, and the plaintiff was allowed until the succeeding court to show cause against its confirmation; and before the award was confirmed the defe ndant died. A motion was made to enter up judgment on the áward nunc pro tunc, but Huger, J. who tried the cause refused the motion on the ground that the death of the party before confirmation, abated the suit.

This was an action of trespass for killing the plaintiff’s slave, tried at Orangeburgh. The defendant in this case was one of a party who went in search of some runaway negroes who had been very mischievous in the neighborhood. They were surprised in their camp, and as they fled the defendant fired towards them, and soon after, one of them who belonged to the plaintiff, was found, dead.

<p>The Sheriff is not liable for money received by his Deputy, oh a' case in which execution has not yet been lodged in his office.</p>

<p>Perjury may be assigned on an oath administered by a justice of the peace, on- the investigation of a matter submitted to arbitrators by a rule of court with consent of parties.</p>

<p>Defendant sold plaintiff a slave, and gave him a bill of sale warranting only the title, and at the time of giving him the bill of sale, he absolutely refused to warrant the soundness of the slave. It was proved that the negro was unsound at the time of sale. He had a eronic consumption attended with a bad cough. At the sale, which was at vendue, where defendant sold all his slaves, the defendant said to one witness that the negro was sound, that he had only a cough, as all his other negroes had. It was declared at the sale that the defendant would not warrant any of the negroes or that any of them would live another day. Plaintiff was heard to say after the sale that he had bought a dead or sick negro, but that he could cure him with bacon. The price paid was $482, the value if sound. This was an action of deceit.</p> <p>Waties, J. who heard the cause, charged the jury, that if the defendant, by representing an apparent unsoundness to be trifling, knowing it to be otherwise, had thereby induced the plaintiff to give a sound price for the property, that it was fraudulent, and though he had declared that he would not warrant, yet it ought not to avail him.</p> <p>The jury found a verdict for the plaintiff.</p> <p>The defendant appealed.</p> <p>cited Peake’s N.P. 115. lEsp. Dig. 40. Bernard vs. Yates, 1 Nott and M'Cord 142. Rogers vs. Beaty, 2 Nott and M‘Cord 531.</p> <p>cited Slyke vs. Greenway and Gorree. Wells vs. Fowler. 1 Black. R. 465. 2 P. Wm. 170. Douglass 260. 1 Term R. 12. Bliss vs. Thompson, 4 Mass. R. 488. Hodgson vs. Richardson, 1 Black Rep. 465. Fitzherbert vs. Martin, 1 Term. R. 12.</p>

<p>ín debt on bail bond, the plaintiff in his declaration must set out the condition, the proceedings against the principal, and the particular breaches.</p> <p>It is not enough to set out the conditiou, the writ, and the return thereof and to assign as a breach that the defendant did not appear ; the plaintiff should allege that he had prosecuted his writ to judgment, and had issued a ca. sa. to which there had been a return of non inventus, and that the defendant in the original action had not paid the debt, costs, and charges, or any part, nor rendered his body.</p> <p>Bail bonds are given to the sheriff and his successor, and may be assigned by the successor.</p>

This case came before the court for Marlboro’ district, on an appeal from the Court of Ordinary, of that district, admitting to probate the last will and testament of Mason Lee, deceased, who died some short time after executing the will, in July, 1820, leaving the appellants his nephews and nieces, his heirs at law, and two illegitimate sons entirely unprovided for, and giving his whole estate, valued at about $50,000, to the States of South Carolina and Tennessee.

<p>This was an action of deblinue for a negro slave. The plaintiff claimed under a bill of sale from Jos. Ingram, who purchased the negro in Dec. 1809, in North Carolina, from Daniel Porter, and sold to thei plaintiff 10th April, 1810, who had possession until March 1820. Daniel Porter died in 1820. This suit was commenqed soon after. The defendants claimed under a deed of gift from Daniel Porter to his daughter, the wife of defendant. This deed was executed the 20th Feb. 1802, and recorded in the Register’s Office of North Carolina. The witnesses to this deed were dead, the original' had been destroyed and an office copy was given in evidence; but no proof of the delivery of the deed was made out. Daniel Porters’ daughter at the time was quite a child living with her father. This deed was in the following words:</p> <p>“ To all to whom these presents may come, I, Daniel Porter, of the state of North Carolina, and county of An-son, send greeting. Know ye, that I the said Daniel Porter, for and in consideration of the natural love and affection, which I have and bear unto my beloved daughter Phoebe Porter, of the state and county aforesaid, and divers other good causes and considerations me thereunto moving, have given and granted, and by these presents do give and grant unto tbe said Pboebe Porter, rall and singular, one negro girl named Rose, to have hold and enjoy all and singular the said negro girl, Rose, after my death to the said Phoebe Porter, her heirs, executors, and assigns, to the only proper use and behoof of her the said Phoebe Porter, her heirs and assigns forever, and I the said Daniel Porter all and singular the said negro girl Rose to the said Phoebe Porter her heirs, executors, and assigns, against all persons whatever shall and will warrant and forever defend by these presents. In witness whereof I the said Daniel Porter, have hereunto set my hand and seal this 26th February, 1802.”</p> <p>The defendant contended that the deed gave only a life estate to Porter, remainder in fee to his daughter, and that the deed was valid.</p> <p>The plaintiff replied that the deed was fraudulent, that it was also void from the nature of it, and that if it were valid that the plaintiff had a legal right under the statute of limitations.</p> <p>The case was tried before Huger, J. who charged the jury in favor of the deed, and for the defendant on all the grounds. The jury found a verdict for the defendant, and the plaintiff appealed.</p> <p>This paper may be regarded as a testamentary paper; if so, it was revocable, and actually revoked by the subsequent sale. 1 Phil-limore 242. There was no proof of the delivery of the deed. Nothing to consummate the contract. 2 Black. Com. 306, 441. As to the statute of limitations they cited 1 Brev. 170. 2 Seh. and Lif. 628. The limitation in the deed was also void under the authority of the cases of Vernon vs. Inabnet, 3 Brev. MS. R. 380, and Cooper vs. Cooper lb. 320.</p> <p>The deed was also fraudulent and void against a purchaser without notice from the donor.</p> <p>The deed was recorded. That was sufficient evidence to raise the presumption of a delivery. They contended that the deed was valid, and that the verdict should be supported.</p>

This was an action of debt on bond, against the defendant Wilson. The bond, in .the body of it, purported to have been given by one Jerideau alone, but at the bottom it was signed and sealed by Jerideau and Wilson. Gatsst, J. wbo tried the cause, admitted parol evidence, to shew the consideration of the bond, whereby it appeared that Wilson was interested and properly a party obligor to the bond.

At a late election for sheriff of Georgetown district, on the second Monday in January, 1827, the relator and Robert Thurston were competitors; and Thurston was declared elected by the managers. The relator objected to the regularity of the election, and this was a motion for a prohibition before Judge Bay, at Chambers, to restrain bis excellency, from granting a commission to Thurston, on the ground that the election was void.

This action was brought on an open account. It appeared that the defendant’s testator had been indebted to plaintiffs testator the amount of the account. A witness was produced who had presented the account to the defendant in September Í824, who admitted the account, but said there was a discount to a greater amount. The defendant relied on the statute of limitations, and the question was, whether these words amounted to an acknowledgment.

This was an action of debt on bond. Edward Crosland, Uic testator, by his last will and testament, dated in the year 1818, directed that certain lands therein mentioned should be sold by his executors. ■ After the death of the testator the executor sold the land. The defendant Mur-dock, was the purchaser, and the bond now the subject of suit was given for the purchase money.

This was a summary process on a note of hand. Plea non assumpsit and infancy. Issue taken on the first, and replication to the second plea, that the note was given for necessaries. Huger, J. decreed for the defendant on the ground that a note given by an infant, even though for necessaries, is void. Plaintiff appealed-.

This action was brought to recover the value of a negro woman and her child, the property of the plaintiff. The defendant was the captain of a steam boat, on board of which, the negroes were sent as passengers from Charleston to Georgetown. The boat came to anchor in one of the creeks which form the inland passage between those towns.

Allen in 1816 married Leah Byrd, the daughter of Benjamin Byrd; and when they were about to move Home, Mrs. Boyd told two of the negro women to go home with Mrs. Allen to assist her. One was to return shortly, the other to remain longer, to help her, neither to stay very long. The witness who heard this did not' consider them as a gift. Neither Allen nor Byrd, the fa-therinlaw, were present. One of the negroes sometime • afterwards returned home.

<p>This was an application to one of the Judges of the court of Common Pleas, for the discharge of the prisoner under a writ of habeas corpus. It appeared by the return of the Sheriff, that the petitioner was detained in his custody under a writ of ne exeat, issued by the commissioner in Equity for Chester district. The plaintiff’s counsel contended that the bill filed, upon which the Commissioner had issued the writ, did not make out a ease in which the Court of Equity had the power to order a writ of ne exeat.</p> <p>Huger, J. who heard the application, refused to look into the bill or to grant a discharge.</p> <p>now made the point before this court.</p> <p>contended that the prisoner was entitled to be heard ex debito justicise. It is in nature of error, to ascertain the legality of a commitment. Blac. Com. 134,376, 129. His honor said that the matter was to be judged of by the return of the Sheriff, and that he would not investigate the matter of it. The only possible method to ascertain the legality of a commitment is to examine into the facts of the ■ ease. Unless the party is heard, there is no benefit in the Act to him. Was there any authority to shew that the court of common pleas cannot hear a habeas corpus, because the prisoner has been committed by the court of Chancery ? He cited Addis’ case, Cro. Jac. 219. Yeates vs. Lansing, 4 John. Rep. 417. Vent. 357. Vaugh. 153. Salk. 350.</p>

This was an action of trespass quare clausum fregit.— His honor Judge Waties held that the defendant was bound to plead his title specially, to enable him to give it in evidence in pursuance of the 83rd rule of court. The defendant appealed.

This was an action against the defendant, who was sheriff, for neglecting to collect the money due on an execution for the plaintiff lodged in his office. The execution had been renewed twice, and while the third renewal was in the hands of the sheriff, he had been ruled and finally an attachment issued against him. He was arrested and he paid off the principal sum due on the execution, and was discharged.

<p>The general rule is that if a blank piece of paper be signed, sealed and delivered, and afterwards written it is no deed, as there is nothing of substance in it.</p> <p>A deed executed with blanks, and afterwards filled up and delivered by the agent of the party is good.</p>

<p>This was a summary process on a note, which had been given bythe defendant while under age for ahorse. In answer to the plea of infancy the plaintiff replied that the defendant had confirmed the contract after he came of age, by keeping the horse and selling him. It was urged that this was not a confirmation of the contract, but that if it were it would not enure to the benefit of the plaintiff, ■who was not the original payee, but the bearer only of the note. The original party to the contract alone could take advantage of the confirmation.</p> <p>Gantt, J. who heard the case nonsuited the plaintiff.</p> <p>appealed. They cited 3 Bac. tit. Infancy (i) 2 Vern. 228; 4 Cruise, 3 art. tit, 32. ch. 8, sec. 7.</p>

This ease should have been reported in a previous term, but being mislaid, is inserted here. The plaintiff brought suit against the defendant, on a written contract for wages for one year, as overseer.— The contract was for $180 for the year. The plaintiff managed the crop well, but in July he made use of abusive language to the defendant’s daughter, for which he was turned away.

The plaintiff brought his action to recover a year’s wages from the defendant. He was to have received $200 per annum, but was turned off by the defendant in April for misconduct. The presiding judge charged the jury that if they thought the circumstances justified the defendant in dismissing the plaintiff, that they ought to find for the defendant, as the contract was entire for the year and the plaintiff should recover all or nothing.

<p>The doctrine that where a parent suffers property to go and remain in the possession of a married child, a parol gift is. presumed, applies as well, where the property goes into the possession of the child at marriage as afterwards..</p> <p>It is always a question of fact to he determined under all the circumstances, whether a gift was intended or not.</p> <p>The presumption is strongest where the property goes into the possession of the child at marriage.</p>

This was an indictment for perjury. The proof was fully made out by the evidence of four witnesses at least. Three of the witnesses had been examined by commission, by order of court made with the prisoner’s consent.

This was a summary process on open account. The plaintiff, a merchant, was absent from the state. Huger, J. who tried the case admitted proof of the original entries being in the hand writing of the plaintiff. In reporting the case to the court of appeals, his honor stated that he thought he had been wrong.

The defendants practising as attorneys under the firm of Gist and Roddy brought an action in the name of the plaintiff against Meadows, and prosecuted the same to judgment and sued out execution. After the dissolution of the copartnership between the defendants, the money was paid to Roddy, partly by the defendant Meadows and partly by Hunt the sheriff, who collected it on fi. fa. for which Roddy gave receipts in his own name and not in the name of the firm.

<p>This was an action of debt on an administration bond. The suit was brought for the benefit of a party who was injured by the defalcation of the administrator, under the act of 1789, and his name was entered on the record as the real plaintiff and acknowledging himselfliable for costs. The Ordinary was merely a nominal plaintiff. The question was, whether the Ordinary was a competent witness to prove the bond, Waties J. who tried the cause, admitted the evidence. The defendant appealed, and moved for a new trial.</p>

This was an action of trespass to try titles to a tract of land. The defendant claimed under a grant to Nance, and the question was whether that grant extended to Agness Henry’s line. Huger, J. who tried the cause, admitted on the part of the defendant the evidence of a witness, who swore that be lived in 1771 with Nance, and that he cut logs for Nance at a particular point near Agnes Henry’s line, and that Nance always claimed up to Henry’s line.

The plaintiffs obtained a judgment against tbe defendant on a bond, at the March term, of Sumter court, 1826, and having a mortgage to secure the payment of the bona, filed their suggestion on the 20th February, 1827, returnable to March term succeeding, to procure a sale of the mortgaged premises, in pursuance of the act of Assembly.

<p>it is not necessary that a seal should be made of wax.</p> <p>The impression and not the wax makes the seal.</p> <p>Whether the impression was intended for a seal is always a question of fact for the jury, whether made of wax, ink, or otherwise.</p> <p>If the body of the instrument does not shew the intention to make a scrawl a seal, it may be shewn from the scrawl itself, or by evidence aliunde.</p> <p>As where the L. S. are enclosed with the scrawl, proof that the letters are in the hand writing of the obligor.</p> <p>0r where a person uses a symbol or cypher, that it has usually been employed for the purpose of a seal and no other.</p> <p>Parol evidence is admissible to prove that the party intended the scrawl for his seal.</p> <p>Although a debt from the intestate to the administrator may not yet have fallen due, he may notwithstanding retain funds for the payment of it, in preference to debts of an inferior grade.</p>

<p>Allison the defendant’s testator, had been clerk of the court of common pleas for York district, and during the term of his office, he had neglected to record many of the judgments obtained at that court. Moore was elected his successor, and was authorized by a resolution of the legislature to commence a suit in the name of the treasurers of the state on Allison’s bond, given for the faithful performance of his office, to recover the amount of fees ■due for recording the judgments by Moore, which Allison had neglected, provided it should be at his own expense and responsibility. This was an action of debt on the bond, and the breach assigned, was the neglect of Allison to record the judgments.</p> <p>The defendant moved for a nonsuit on the ground that no breach existed when the suit was brought, as the plaintiff, by his own shewing had before that time recorded the judgments.</p> <p>Waties, J. who tried the cause, was of opinion that this was a good objection. The plaintiff could derive no other right from the resolution than that which the state possessed; and as the state could not now maintain the suit on the bond for a breach which had been repaired, the plaintiff could not. It appeared to him if the plaintiff had any remedy it was by an action of assumpsit for services rendered. He therefore ordered a nonsuit.</p> <p>This was a motion to set aside the nonsuit,</p>

Muse Boulwar’s will was propounded before the ordinary of Fairfield, which was opposed on the ground of insanity. The ordinary decided in favor of the will, and an appeal was taken up to the court of common pleas, where the jury also found in favour of the will.

This was an action of trespass to try titles to a tract of land. The plaintiff claimed under a grant issued in 1775 to Agnes Harbison. The defence was that the pretended grantee died in 1773, previously to the issuing of the grant and therefore the land never vested in her. To that it was replied that the defendant could not have the benefit of such a defence, because a court of law could not enquire into the validity of a grant. The jury found a verdict for the plaintiff.

Col. Hill the father of the plaintiff’s testator, Solomon Hill, and of Andrew Hill, by his will gave a tract of land to Andrew on condition that he would relinquish all right to certain negroes then in the possession of Colonel Hill, which negroes were bequeathed by Col. Hill to Solomon. The defendant claimed under a bill of sale from one Arnold.

<p>This suit was brought against the defendant as administrator of Wurtz. The plaintiff contended that he had paid the debts out of order. The question was whether a judgment recovered in North Carolina was to rank as a judgment debt, in marshalling the assets of an insolvent estate in South Carolina, or whether it only ranked as a simple contract debt. The case came up on demurrer before Richardson, J. who overruled the demurrer and. held that the debt only ranked as a simple contract.</p> <p>The plaintiff appealed and moved to set aside the judgment.</p>

This was an action on the case against the Sheriff for not taking solvent sureties on a prison bounds bond, given by one Crowder who was in confinement under a Ca. Sa. issued in a suit of the Plaintiffs against Crowder.

The Defendant being indebted to the Plaintiff, and being also indebted to others, to a large amount, for which judgments were about to be obtained, consented to confess judgment to the Plaintiff for a portion of the debt due to him. The agent of the Plaintiff not being in possession of the evidences of the debt, stated an account, which was acknowledged by Defendant to be correct and just, and a confession was taken acccordingly.

This was an action to recover a demand which the Plaintiff had against Robert Givens, deceased, from the defendant as Executor de son tort. The debt was proved. It was then proved that immediately after the death of Givens, the defendant employed a wagoner, and removed the effects about five miles. That he paid a debt against Givens with some of- the property; That he was twice seen riding ahorse which belonged to Givens, and had occasionally ploughed the horse.

<p>The plainffj by an instrument purporting to be articles oí' a,- ■ greement between himself and the plaintiff, but signed and sealed'by the defendant alone, obligated himself to build a house . for the plaintiff by a certain day., and acknowledged'payment, and on failure to build the house within the time mentioned, defendant to forfeit $1200 to the plaintiff. Plaintiff brought ' his action of debt for the penalty — Held on- demurrer that the plaintiff should have averred that th,e defendant had neither built the house nor paid the $1200i The declaration contain- • ing no such averment, the plaintiff had no cause of action.</p> <p>If a contract be in the-disjunctive, the breach ought to be assigned as to both alternatives.</p> <p>Until there is a breach of both alternatives, there is no cause of action. , ’’ " .</p> <p>Where the penalty professes tobe a subsisting debt and the condition is added only by way Of defeasance,.the party may sue for the penalty, without noticing the condition; hut it is otherwise where there is no subsisting debt or duty, and the obligation depends on the performance or non performance of some particular act.</p> <p>If there is a contingency, it must be alleged to have happened.</p>

<p>Lands are only bound by judgments on summary process from the time they are entered on the judgment docket.</p> <p>But the judgment of the Court in summary process cases, is the decree entered by the clerk on the minutes of the Court, and that is sufficient evidence, in an action of debt on such judgment.</p>

<p>The Statutes of the 13th and 27th Eliza, against Frauds, only enacts the principles of the Common Law. It is not the act of conveying voluntarily which renders the deed void, but the intention with which it is done.</p> <p>Fraud always to be inferred from the circumstance#.</p> <p>Trustees of Holman vs. Greenwood, 1 Bay. 173, not a case of authority.</p> <p>When a voluntary deed was intended to secure property from > the reach of creditors, it is void against subsequent purchasers as well as creditors, where the possession has not been changed._;</p> <p>Whenever a deed is void, merely against creditors, the payment of the debts will cure the defect; but where it is attended with circumstances which authorize a belief that no change of property was actually intended to take place, hut that it should revert to the donor, as soon as the debts are paid, the rights of > a subsequent purchaser cannot be- effected by the payment of the debts.</p> <p>it seems there is no difference between cases of real and personal property, as to subsequent purchasers ; and the Court will in both instances give effect to a bona fide sale without notice against a voluntary deed.</p> <p>The English rule that the subsequent sale is to be preferred eren in the case of notice, questioned, as not in accordance with the decisions in this country.</p> <p>At vendor continuing; in possession is regarded as to creditors or ‘subsequent purchasers as the owner against the most solemn unconditional deed to ahina lide purchaser not in possession.</p> <p>A purcht ser from a trustee withon t notice will hold the property discharged from the trust.</p> <p>But where the possession has been kept (as in the case of a father to his children) for iho separate use of the donee and the profits and labor reserved as an accumulating fund for bis benefit, it may repel the presumption of fraud.</p> <p>Where a gift is made by a parent to a child and the possession is retained by the parent, it will depend on the particular circumstances of each case, whether the possession will be considered fraudulent or not.</p> <p>The cases on that subject considered.</p> <p>Steel vs. M’Night, 1 Bay. 64, thought a most extraordinary decision and of no authority.</p> <p>There possibly may be cases where a subsequent purchaser would not be affected by notice ; as where the voluntary gift be actually fraudulent, as distinguishable from cases unattended with any other presumption of fraud than what is tovbe inferred from the subsequent sale.</p> <p>A purchaser with notice of a voluntary deed, in favor of those whom the grantor is under natural obligations to provide for, cannot be relieved.</p>

<p>This was an action on the case for selling to the plaintiff an unsound negro, John Thomas was offered as a witness for the plaintiff. Defendants attorney objected to his testimony on the ground of interest, and to support this allegation called upon other witnesses, who stated that Thomas had previously said he was interested. The plaintiff’s counsel insisted that Thomas’ previous declarations of interest did not render him incompetent and still offered him as a witness. The Court rejected him. The plaintiff’s counsel then offered to swear Thomas on his voir dire in relation to his interest, which the Court also refused. The plaintiff’s counsel then offered Thomas’ release of all claims and damages against the defendant, which the Court also refused. — He then submitted to a nonsuit with leave to set it aside in the Court of Appeals on the ground, that Thomas’ previous declarations of interest did not render him incompetent, and that he should have been examined on his voir dire as to his interest; and that his release should have been received for the purpose of rendering him competent.</p>

<p>This was an action of debt on a bail. bond. -After-a ca. sa. had been issued, and after the Court to which the Writ in fhis case was returnable, the bail offered to surrender the principal.</p> <p>James, J. who heard the case, charged the jury that it was too late to surrender the principal and that the bail; were fixed, and that the measure of damages was. the. amount of the judgment and costs in the case against, the principal.</p> <p>The jury found for the plaintiff, the amount of the judgment- and costs against the principal.. .</p> <p>moved for- a new trial, on the ground of error in the charge of the judge. He cited the case of Bryce vs. Morton, 1 Nott and M’Cord, 65.</p>

<p>A libel is a censorious or ridiculing writing, picture or sign, published with a mischievous and malicious intent, towards government, magistrates, or individuals.</p> <p>On an indictment for a libel, words spoken by the defendant cannot be given in evidence, in support of the innuendoes.</p> <p>The following words were held not libelous, “As Mrs. Reynal says she has been most cruelly censured without a cause, which is absolutely false, I would advise her, &e.”</p> <p>So, “ I would advise her to beware, lest facts, which are stubborn things be brought to light, and you will then see who you keep underyour roof,” was held not libellous.</p> <p>There must be a malicious and mischievous intent to constitute a libel.</p>

This was an action brought on a joint note against Lucas & Dotterer, as co-partners. Before the trial Lucas died, and his death was suggested on the record.

<p>The defendant was indicted in three several cases for retailing without a license. Having been convicted on the first indictment, which charged the offence to have been committed on the 11th day of August, 1823, anterior to the time of finding the bill in the case in which he had been convicted, he pleaded that conviction in bar of both the other indictments, which alledged the offences to have been committed on different days, within a year of the day charged in the first indictment, and insisted that the penalty imposed by the act was a commutation of the license, and that an indictment could not lie fora second offence committed within twelve months after the one for which, he was convicted. The court over-ruled the plea, and on the trial the defendant was convicted. A motion was now made for a new trial.</p>

<p>By the English law, a mortgage is a conveyance of land as a security for money to be paid in future, ai.d dei> „suble upon the payment of the money within the time presonoed. If the money he not ¡paid according to the contract, the deed becomes absolute, and the fee of the land is vested in the mortgagee.</p> <p>In Equity, however, it is considered in the nature of a pledge, and that Court will interp’ose its authority and extend to the mortgagor further time to redeem, although nis-remedy is lost at law. That is what is called an equity of redemption.</p> <p>But by our act of 1791, the fee continues in the mortgagor, and the mortgagor is entitled to redeem even after the time stipulated.</p> <p>Under this act the right to redeem is a legal right, and does not require the aid of the Court of Equity.</p> <p>A mere equity is not the subject of an execution, and though in England an equity of redemption cannot he levied on, yet here -the right of the mortgagor being a legal one, maybe levied' upon and sold. - . ■ ■</p> <p>The purchaser takes the place of the mortgagor, with all his rights, privileges and disabilities.</p> <p>If the land he sold under an execution older than the mortgage the purchaser takes it discharged of the mortgage, and if he pur chases under the mortgage, he takes it subject tothe judgment.</p> <p>If land be sold under a junior execution, the purchaser acquires a good title, and the money is applied to the several executions according to their priority.</p> <p>The execution is considered as a mere authority to sell without ' regard to the distribution of the fund afterwards.</p> <p>It seems that judgments and executions, though dormant, pre- ■ serve their liens for any indefinite period of time.</p> <p>Where a purchaser buys under an execution, there being a pri- or mortgage, he takes subject to the mortgage, and may redeem.</p> <p>But where there were prior and subsequent judgments and an intermediate mortgage, and the purchaser bought under a judgment subsequent to the mortgage, on a rule against the Sheriff by the owner of the subsequent judgment to shew cause why the money was not paid over to nis execution, the Court refused to decide the' rights of the parties on a rule, and thought the remedy was in Equity, the prior judgment and mortgage creditors to bo made parties.</p>

<p>This was an action on a bib of exchange brought by the plaintiffs against the' defendant, as executors of Warner. The defendant pleaded the general issue, and Upon that plea the case was docketed, and stood for trial three years upon the issue docket, but had been continued. Now the defendants moved before Mr. Justice Bay, at Chambers, for leave to withdraw the plea of the general issue, and to plead ne unques executor, alledging that they had only lately discovered that the plaintiff’s testator had died in another State, and that his will had been proved in this State,</p>

This was a suit for the recovery of dower in a tract of marsh land, lying at the upper end of Bro.ad-street, in the City of Charlestorqpurchasedin Avgust, 1817, by Joshua Brown from the City Council of Charleston, and mortgaged by him to them, for the payment of a large proportion of the purchase money.

The defendant went before a magistrate, and made an information in the form of an affidavit drawn up by himself, in which he charged the plaintiff with a felony in stealing a negro slave. There .was no legal evidence that a warrant was ever issued on this information, but the magistrate returned it, with some other papers connected with the same transaction, to the Clerk’s office, and they were by him turned over to the Solicitor of the circuit.

<p>This was an indictment for receiving stolen goods.— The indictment contained two counts, one for a misde-meanour at common law, and the other for a misdemeanour under the statute 1st. Ann. c. 9. The case was tried before Mr. Justice Huger, in Charleston, May term, 1827, who made the following report: “ The defendant was indicted for having received a stolen ring from a negro. The ring was stated in the indictment to be the property of Eliza M. Ross. The indictment contained two or more counts. One was for a misdemeanour at common law; and a question arose whether the common law count could be sustained. The Statute of William and Mary declares the receiver of stolen goods an acces-sary after the fact, and a felon. When a misdemeanour at common law is made felony by statute, the first is merged in the last; Raymond 711. It was, therefore, contended that this count must bo stricken out. I was of a different opinion.. I did not regard the statute of Vvilliam and Mary aa embracing the receiver of stolen goods from a slave. It includes only such as have received stolen goods from one who is capable of Committing a felony. — ■ By our act,, a slave is not regarded as capable of committing a felony. The common law offence, in this respect, has,'thereforé, not been merged.”</p> <p>The prisoner was convicted and this was a motion in arrest of judgment on the grounds, that.if the defendant was guilty of any offencé, he was liable as accessary, and could not", therefore, be indicted for a misdemeanour, or at common law, and'thát the principal was known and could have been prosecuted, and therefore the defendant could not he indicted under the statute of Ann. '</p> <p>cited 2 Brev; Big.'180, 181, in note. State vs. Council, Harper, L.' R. 53. if the principal is unknown it is sufficient so to state it, but if lie is known he must be prosecuted; 3 Chitty Cr. L. 721. It is admitted that in general the offence at' common law of receiving is merged by the statute, but it is said that slaves are incapable of committing a felony. The act of 1740, 2 Brev. 232, 233, declares slaves capable of a felony. With regard to names of third persons, they ought tobe described so as not to mistake them for others. The names of Eliza and Elizabeth are distinct. 1 Chit. 177.</p> <p>Admitting that the statute does repeal the common law with respect to white persons, it will , not be so construed with regard to slaves* as it will not furnish a rémedy. The mode of .trial, of evidence, and conviction are different with respect to slaves. The declarations of slaves without oath are admissible. The judgment does not define the degreé of the offence, and the punishment is discretionary. The admission of a conviction founded on such evidence against a white man is inadmissible. The reason why the receiver cannot at common law be convicted before the principal, is that it might so happen that the principal might be innocent, and to try the receiverbefore the principal, would be to try a matter without the proper parties. The judgment of the Court in the case of the principal being a slave, does not distinguish between grand and petit larceny and this is a difficulty which it is impossible to get over — ascertaining the degree of of-fence is one of the reasons that renders the trial of the principal necessary.</p> <p>cited Chittyl713; 2 Lord Ray. 1730; 1 Leach 181, Wilks’case. If- the • principal is known the receiver cannot be tried until his conviction. 5 T. R. 83; 1 Haile 624.</p>

The defendant, formerly a merchant residing in Georgia in January, 1820, havingfaiied in business, applied for and obtained the benefit of the Insolvent Debtors Act of that State.

This was an application to Judge Bay, at Chambers; to open a judgment in this case. The defendant submitted an affidavit stating that he owed the plaintiff’nothing, and never did owe him the value of one cent — that he had not received nor seen the copy process in this case, and, therefore, had no notice to appear in Court. The Judge thought the affidavit insufficient, and refused the motion.

<p>The entry of a nonsuit on the back of a Declaration is evidence of the termination of that suit in the Court alone where the nonsuit was ordered. In any other Court, evidence of tire record of the judgment must be produced.</p> <p>In an action against the Sheriff for an escape under mesne process, evidence that the Plaintiff in the original suit, after the escape, suffered a nonsuit, is not conclusive evidence that he has sustained no injury.</p> <p>After an escape, the Plaintiff may proceed against the Sheriff, immediately, without further prosecuting his suit against the principal; but if he do, and abandons it, or is nonsuited, that nonsuit is not conclusive in favour of the Sheriff.</p> <p>Where a Defendant is in custody on mesne process, and the Plaintiff is nonsuited, the Sheriff may discharge the Defendant.</p>

This was a case of replevin, in which the question made, ivas whether the act of 1823, which provides, '■ lhaP from and after the first day of March next, the following articles shall, in all cases of debt contracted after that period, be exempt from levy or sale for the same,” did exempt the articles enumerated from sale under a dis-f roí» warrant for rent.

The plaintiff obtained a verdict in May Term, 1815, in an action of debt on a replevin bond, in these words;— “We find for the plaintiff ten cents and costs.” The declaration contained the usual count on a money bond, and the plea was nil debet. The judgment was filled up as on a plea of non est factum, on a money bond, and for the amount of the penalty. Execution issued, but no proceedings took place until 1825, when an action was brought to revive the judgment.

<p>This was an appeal from the Court of Ordinary for Horry District; and on an issue of devisavit vel non, the Jury found the following special verdict, viz-.—</p> <p>“We find that John J. Gause, late of Horry District, made his last will and testament on the second day of February, 1826, and shortly, thereafter, died. That the said last will and testament was executed by the testator, in the presence of only two subscribing witnesses; but another person who was present was requested to subscribe his name as a witness, but did not do so. That the last will and testament was made and executed in the State of North Carolina; but the testator’s place of residence was in Horry District, South Carolina. That the said last will and testament was admitted to probate by the Court of Ordinary, for Horry District, as stated within. If the Court is of opinion that the said will from the foregoing statement is valid and legal (the same being attested by only two subscribing witnesses) to pass the estate therein mentioned,' then we find for the defendant, Benjamin Gause, Executor of the said wiU. But if the Court should be of opinion that the said will is invalid and illegal to pass the real and personal estate therein 'mentioned, we find for the appellant, R. W-. Cause, and that the said will is null and void and improperly admitted to probate.”</p> <p>Upon this verdict the Circuit Court gave the following judgment, viz : “ That the paper purporting to be the last will and testament of J. J. Gause, having been attested in the presence of. only two subscribing witnesses, is null and void, and was improperly admitted to probate in the Court oí Ordinary. It is, therefore, ordered, that a verdict be entered for the appellant, and l hat he be permitted to enter up judgment thereon, and that the decree of the Court of Ordinary be reversed.”</p> <p>From this judgment an appeal was taken up to this Court, and the following points stated.</p> <p>1st. That the will of J. J. Gause having been executed in the State of North Carolina, where the testator died, without having left that State from the time of the attestation thereof, and having been duly attested in the presence of a sufficient number of witnesses to pass real and personal property by the laws of that State, was a good and valid will.</p> <p>find. That three witnesses were called to witness the execution of the will and saw the testator subscribe his name.</p> <p>The right to dispose of property one has acquired, is a natural right, and the manner alone is the subject of statutory regulation. 1 Phil. 375. In cases of intestacy the law of the domicile must regulate the disposition of of the personalty, but with respect to wills the rule is different. A will made where one happens tobe at the time of his death, and executed according to, the law' of that place, is good all the world over as as to the personalty, unless it was intended to evade the the law of the domicile. 1 Bin. 336. 12 Wheat. 172, Armstrong vs. Loar. Code. Nap. 999. Heineceius, Voet. 271. 3 Dallas, 370. in Note.</p>

<p>In the month of September, 1821, the plaintiff delivered to the care and custody of the defendant, John Sut-cliffe, Flour, Groceries and Dry Goods, to the amount of $1000, to be delivered to one John Liglitbourne, at Rio Pongus, on the coast of Africa. The defendant was mate of the schooner Calypso, and received the goods on board the schooner as the agent of the plaintiff for the purposes aforesaid, and proceeded on the voyage and arrived in safety at Siere Leone, but instead of deliveiiug the goods entrusted to his care, to Liglitbourne, he sold them and converted the proceeds to his own use. it was for this breach of trust that the suit, (a special action on the case,) was brought to recover the value of the goods and damages. To this action the defendant pleaded infancy, and the plaintiff demurred generally.</p> <p>Hunt, ou the part of the defendant argued that although the declaration in this case ivas in the nature oi a tort, yet in substance it was on contract, and an infant was not liable on contract for goods sold and delivered to him. Carthew, 160. If the defendant had been of full age, he would have been liable for the value of the goods delivered to him, and an action for money had and received would bave lain against him. But as lie was an in> fant under age, an assumpsit could not be converted into a tort, so as to make him liable in that form of action. 1 Co myn on Contracts, 143-160. . And that if one deliver goods to an infant upon a contract, he shall not be chargeable in trover dr in any other action for them. • .</p> <p>This is a ease of tort, and ivas declared on as such. These goods were delivered to the defendant upon a special trust and confidence that he would safely deliver them to Lightbourne, instead of which he betrayed his trust and sold them, and converted the money to his own use. . There then was a gross and manifest fraud or tort; an act not only of omission but one of Commission, which makes him clearly responsible as for a tort. He admitted that an infant ivas not liable on a contract for the sale and delivery of goods (except for necessaries) but in this case, there was no sale and delivery to him. It Was a delivery for a special purpose, and a conversion to his own use, contrary to good faith and the confidence the plaintiff had placed in him. He cited 1 Espinasse, 172. 1 Nott & M'Cord, 197.-.</p> <p>urged that this was an action ex delicto, and not ex contractu. It was not converting an assumpsit into a tort, as was said on the other side, but for a manifest fraud. Assumpsit could not have been maintained for it. The goodswere not charged to defendant as sold to him, but invoiced as goods shipped on board the' Calypso to Lightbourne under the charge of defendant, and embezzled by him, and therefore, be was clearly chargeable in this form of action.' 6th Cranch, 226; 3d Bacon, 685.</p>

<p>Unliquidated demanda do not bear interest, except in cases where the defendant has been guilty of fraud or imposition,</p> <p>if an agent sell without disclosing the name of his principal, he will in respect to the purchaser be regarded as the principal.</p> <p>To an action arising on the contract of the agent, the purchaser may in general set off a debt due by the agent to himself; hut not where he has notice of the agency before his responsibility for the agent actually accrues.</p> <p>The agents being vendue masters, at whose sale the purchaser bought for cash, precludes the purchaser from discounting a responsibility which ho had assumed in favour of the agent, which had not then accrued.</p>

<p>The maker of a Promissory Note, against whom a judgment lias been recovered, is a competent witness at-common law in a suit by the same plaintiff, the lender against the indorser, to prove usury.</p> <p>The lender can only be a witness under the act, where the usury is offered to be proved by the evidence of the borrower, and where the borrower is not a competent witness at the common law.</p>

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<p>On the 10th February, 1826, the recorder of the City Court of Charleston made an order that Andrew Krebbs, who was in custody at the suit of the plaintiffs, should be discharged under the provisions of the Prison Bounds Act, on his making the usual assignme at of the property contained in his schedule with the exception, among other'things, of his troop horse, which was now the subject of dispute. In pursuance of this order, lie made an assignment in blank on the back of the schedule, and was forthwith discharged. The plaintiff appealed from this order, so far as it excepted the horse, and upon the hearing in the Court of Appeals, it was set aside; but in the mean time, and pending the appeal, Krebbs sold the horse to the do-fendant, At the trial, the plaintiffs’ counsel filled up the blank assignment in conformity with the order of the Court of Appeals, under an agreement that his doing so should not effect the legal rights of the parties. The plaintiffs now claimed the right of property in the horse, and denied the right of Krebbs to sell it: 1st. Under the order of the Court of Appeals, which they contended by legal operation had relation back to the date of the assignment; and, 2dly. Under the assignment so filled up.</p> <p>A nonsuit was ordered, and the question was now brought up by Finley & Gray, and opposed by Furman.</p>

<p>M. Laving an execution in the hands of the Sheriff against one S. the defendant Q. promised the Sheriff that if he would not push the execution, he would pay the costs, in consequence of which the Sheriff did not proceed. Whereupon M. sued Q, for the costs — held the promise to be within the statute of frauds, notheing in writing and void for want of consideration.</p>

Assumpsit on a Promissory Note, purporting to be drarvn by Jer. H. Bussy, the defendant’s intestate and payable to plaintiff. The signature to the note was in the hand writing of John B. Barton, who was' called as a wit ness to prove the execution of the note.

<p>No suit can be brought by or against a feme covert sole-trader, unless her husband be.joined:</p>

<p>Bequeast to testator’s wife of negroes, named. “Item. I bequeath to my wife one sorrel mare, one brown cow. Item. All my' household furniture, and the increase of the said negroes during her natural!” Held that the legatee only took a life estate in the negroes ; the word “ life” being clearly omitted, and all the sentences considered as one clause.</p> <p>Where the testator gave a life estate to his wife of certain negroes, and then says “to my son it. G. I bequeath all my lands, &c. and my four negroes, Jim and Tom, with the remainder of my-personal estate, shall be kept together for the use and maintain-anco of my children.” Held that this residuary bequeast did-not include the remainder after the life estate in the negroes-given to the wife.</p>

The Court not having expressed any further opinion as to the reversionary interest of the Plaintiff in the ne-groes, after the death of the tenant ior sife, at the request of Counsel, they now heard that point re-argued. The point was very ably argued by Job Johnston, for the defendant, and by Bauskett & Dunlap, for the plaintiffs; but as the Reporter did not hear the argument, he «an make no statement of it.

This was an action on a note of hand given by the defendant. Her counsel'objected that she was a married woman, her husband now residing in the same district.

This was an action to try titles to an unexpired term in a house and lot in the town of Columbia. The plaintiff set up a title to it under the following writing, signed by the defendant, viz: — “ South Carolina, Richland District, Columbia, Nov 9th, 1822. Articles of agreement entered into between John Black, of the one part, and William Cline, on the other.

<p>Where the defendant bought at the sale of (he Commissioner in Equity a tract of land sold for the purposes of a division, and described as “ all that tract said to. contain 449 acres, more or less, situate, ■ lying and being, &c. &c &c. it was held that the purchaser could not set up by way of discount to a suit on. his note given for the purchase money, that upon a re-survev ilicro was a deficiency of 29 acres.</p> <p>There is no implied warranty at the sale of a public officer and no deduction will be allowed for a deficiency, unless it amounts to a failure of consideration, or defeats the great object of the purchaser, or furnishes satisfactory evidence of a total mistake in the character of the land.</p> <p>Where a tract of land is sold in gross, and the number of acres mentioned merely as a part of tbe description, without any warranty or representation by which the purchaser is misled, no deduction pro tanto, will be allowed for a deficiency of acres.</p> <p>Too easy an ear should n it bo lent to defences of this sort in cases of public sales.</p>

This was an action of assumpsit brought jointly against iho defendants as indorsers of a note of one Simon Beck-ham, drawn and indorsed by Samuel Green, as attorney for the parties to the note, and intended as a renewal of a note formerly indorsed by the parlies and discounted at the Bank. The original note was signed by Simon Beckham,-and payable to John M’Willie, and by him and the other defendants indorsed, successively. The Power of Attorney was to sign renewals.

BurrillFaust by his will devised as follows: “I give my two children Uriah and Saliy, the tract of land whéreon I now live. I give Sally 140 acres to he laid off at the upper end of the tract adjoining Jasper Faust’s land, by a straight line from the river.” “ I give my son Uriah all my other lands.” Uriah Faust died intestate and unmarried.

<p>.No words of perpetuity are necessary toa deviso of lands to convey a fee simple. The Act of 1824 is a declaratory law, and therefore retrospective in its operation.,</p>

<p>Under a plea of no rent in arrear, the defendant may shew that the house was rendered uninhabitable by a storm.</p> <p>It seems, if one rents a house for a year, and during the term it is rendered untenantable by a storm, the rent ought to he apportioned according to the time it was occupied.</p>

John H. Folker, by deed, conveyed to Joseph Alexander, a lot of Land in the City of Charleston, in trust for the sole and separate use of Hester Keenan, a married woman and an alien, during her natural life, and in the further trust for such uses, as she should by a will in writing limit and appoint, and in default of such appoints ment to her right heirs.

The plaintiffs in this case had obtained judgment against the principal, and had taken his body under a ca. sa. but with his consent had discharged him from the arrest, under the provisions of the act of 1815, which authorizes the plaintiff to discharge the defendant in custody under a ca. sa. with his consent, without weakening the force of his judgment, or in anywise incapacitating the plaintiff from afterwards taking out a fi. fa. or ca. sa. against the defendant.

The suggestion stated in this case that the relator had under his charge a plantation in Charleston district, tbe dwelling house of which was situated in St. James’ Parish, Goose Creek. That seven hundred acres, part of the tract, were in St. Jamás’ Goose Creek, and two hundred and fifty acres in St. John’s, Berkley.

<p>This indictment was tried in the City Court of Charleston, and was in the following words: — “ The Jurors present, that William Púrse, a resident of the City of Charleston, on the first day of January, in the year of our Lord, one thousand eight hundred and twenty-six, at St. Michael’s Alley, in the City of Charleston and within the jurisdiction of this Court, unlawfully and injuriously, a certain building called a necessary house, before that time erected near and adjacent to the public street or lane, called St. Michael’s Alley, did continue, and from the first day o> Japticry till the day of taking this inquisition, still doth continue the said building, near and adjacent to the public street or lane, called St. Michael’s Alley, whereby tbe bous-es of persons living in the said street were filled with noxious and unwholesome smells from the said building, and the air was greatly corrupted by tbe stench of the said building, to tbe great damage and common nuisance of the inhabitants residing in the said street, and also of all persons along the said street, going, passing, and returning, and against the peace and dignity of the same State aforesaid.”</p> <p>A motion was made to quash this indictment, and granted by his honour, the Recorder, for the following reasons:</p> <p>The Recorder. It will be observed, that it makes but the single question, whether the erection of such a build-ilig near the street, be, or be not a nuisance ?• I thought that there could be no argument in the affirmative — that, its location alone was harmless, though it might be rendered otherwise by a variety of circumstances, such as from its leading to a public exposure of the person, contra bonos mores ; by being so badly built as to overflow, or so badly kept as to become offensive to the passengers, neighbours, &c.; but as this would constitute the gist of the offence, they should have been stated in the indictment, if they were relied on. This principle I thought clearly laid down in the case of the People vs. Sands, 1 Johns. 78; and in the following cases, decided by our own Courts; State vs. Wilson & Strange, 2 Const. Rep. Mills Ed. 135, when itwas held, that whateverwas necessaryto warrant a conviction must be alleged in the indictment— as félonice, murdravit in murder: felonice cepit et aspor-tavit in larceny. So in the State vs. Rustling, 2 Nott& M’Cord, 560, in every indictment for a particular offence the manner of its commission should be accurately stated. So in the State vs. Wimberly, January term, 1825, itwas held that the special manner of the whole fact should be set forth in the indictment with such certainty that the offence may judicially appear to the Court. So in Bro-bant, ads. State, January term, 1825, the Court say, it is proper when there is any doubt about the manner in which the offence was committed, to lay as many counts in the indictment as will embrace all the variety of circumstances. As this indictment contained not one circumstance which, in my opinion, constituted an offence, I thought it my duty to quash it.</p> <p>Petigru, attorney-general, appealed, and moved to reverse the judgment of the Recorder, on the ground that the indictment did sufficiently set out the offence. •</p>

This was an action of trespass to try title to a Plantation on Slanns Island, in the District of Colleton. The right of property turned on the construction of the following clause in the will of Edward Wilkinson, deceased, viz. “ My plantation on Slanns Island, I devise to my cousin, William Smith ” If this devise gave a life estate only to Wm. Smith, the plaintiffs were entitled to recover; if it conveyed a fee simple, the defendants were entitled to the land.

The defendant was indicted in the City Court of Charleston, for bringing á free negro info the State contrary to the act of 1823.

At the suit of the plaintiff, the defendant had taken the benefit of the Insolvent Debtor’s Act, and this was an action brought on that judgment. The defendant was held to bail, on the ordinary affdayit of the amount due. He moved to set aside the arrest on the ground of the former discharge.

<p>■Where a person is sued by the City Council of Charleston, for the penalty for retailing without a license, in the City of Charleston, the Recorder has jurisdiction of the case, if the ofience is committed within the City, whether the defendant resides in the City or not.</p> <p>By the Act of 1223, the penalty must be sued for by the City Council, and a qui tarn is not necessary. ,</p> <p>Where a person is in the habit of using only initials for his Christian name, and was so indicted, and it was proved that he was so known and called himself, and the fact whether he was so known is put in issue and the Jnry convicts him, the Court will not interfere on that ground.</p> <p>A man may take whatever name he pleases, and if he by his own conduct renders it doubtful what his real name is, the fault is his, and he must take the consequences,</p> <p>in the suit by the City Council for the penalty for retailing, a citizen of the town, though one of the corporators, is a competent witness.</p>

<p>To support an action for a libel, tlie plaintiff’s name need not be mentioned in the writing, it is sufficient that there; is a description of him, by which he may be known.</p>

The facts in this case were stated by the following special verdict of the jury.' “ We find that Humphrey Courteney was tenant to William Blake, of a certain bouse and lot in meeting street, in the City of Charleston, for several years prior to the 9th June 1823; that the said William Blake duly made and executed bis last will and testament, wherein be devised the said premises to the plaintiffs, as tenants in common, and on the 9th June aforesaid, departed this life,…

This was an action of debt on a Prison Bounds Bond. The.declaration set forth that the plaintiff, as survivor of William Walton & Co. on the first of June, 1818, in Colleton District, recovered a judgment against Wm. Youngblood, and' afterwards, on the ' 25th January, 1823, issued a Ca. Sa. under which Youngblood was arrested, and on the 12th of April, 1823, the defendant, as his surety for the bounds, signed the bond upon which this action was brought.

<p>This was a summary process brought by the plaintiff as the indorsee against the defendant as the indorser of a promissory note, drawn by one Otis P. Prescott.</p> <p>The evidence of demand and notice was contained in the protest of the notary, which stated that on the day the note became due the notary made diligent inquiry for Prescott, and ascertained that he had no residence in Charleston, and was supposed to have gone to Philadel» phia, and that he, on the same day, left a written notice of the non-payment of the note at the residence of the defendant, the indorser, (he not being at home.) Upon this evidence, Richardson, J. decreed for the defendant,' on the ground that there was not sufficient evidence of a' demand upon the maker of the note and notice of nonpayment to the indorser.</p> <p>This was a motion to reverse the decision of his Honour, on the ground — That it was not necessary to charge the indorser in this case, that a personal demand should have been made of the drawer, he having removed beyond the limits of the State, to wit, to Philadelphia.</p> <p>cited 4 Mass. 45; 6 Mass. 445; 2 Cains, 131; 6 Mass. 384 ; 2 John. 274; 14 John. 114; Galpin vs. Hard, 3 M’Cord, 394.</p> <p>Halls, Kirkpatrick & Co. vs. Howell, Harper 426.</p>

<p>An execution loses its lien on the property of the defendant when his body is taken under a Ca. Sa. and if an assignment is made under the prison bounds act, the oldest fi. fa. 'thong!' it be junior to the execution under which the body is taken has the first lien.</p> <p>The other judgment creditors having issued out writs of fi. fa. before they had taken out writs of ca. sa. do not thereby retain their liens.</p>

<p>This action was brought on the following policy of insurance on the schooner John, “ lost or not lost at and from Charleston to Marseilles, and at and from thence to Havana,”it was dated on the 13th August, 1818. On the same day a policy was subscribed on goods consisting of boxes of sugar and logwood, valued at $2000 “ lost or not lost at and from Charleston to Marseilles,” beginning the adventure from and immediately following the loading thereof on board the said vessel at Charleston, to continue and endure until the said goods be landed safely at Marseilles. In case of loss it is agreed that said property being neutral, be warranted free of any charge, damage or loss which may ensue in consequence of any seizure or detention for or on account of any illicit or prohibited trade, or in any trade of articles contraband of war. In case the risk upon the policy does not take place, the premium is to be returned except percent. On the day before these policies were subscribed, viz. 12th Aug. 1818, the following information was communicated by all the morning papers of the city of Charleston, viz. “Yesterday arrived schr. John, Conck-ling, Havana, five days. Sugar and Fruit, to John Stoney, and will sail in a few days for Gibraltar and a market.” These papers were taken by the Company. On the same day the following offer was submitted to the Company. “ $500 on vessel, estimated if sold for cash, at $-. $2000 on goods consisting of boxes of Sugar and Logwood. The above sums are offered for Insurance by John Stoney, on account of J. Marks & Brooks, (citizens of the U. States:) per the American schr. John,Beth. Conckling, master, on the vessel from Charleston to Marseilles, and at and from thence back to Havana, and on the goods from Charleston to Marseilles.” “ The said vessel at Charleston this day, intended to sail in or about four days. N. B. Every circumstance material for the underwriters to know, so as to form a just opinion of the above risk, is stated in the above offer. Charleston, 12th Aug. 1818. Signed, John Stoney, per J. Pritch-ard.” — “ The premium on the above vessel was fixed by the President and Directors of the Union Insurance Company, at their Office in Charleston, this 12th Aug. 1818, at and after the rate of 2 per cent out, and 4 per cent out and to Havana. Signed, David Alexander, President.”</p> <p>On the 19th Aug. the morning papers stated, — “ Schr. John,-, from Havana, for Gibraltar and a market, went to sea yesterday.”</p> <p>“The manifest and report of the cargo laden at the port of Havana, on board the schr, John, B. Conkling master, bound for Charleston, Gibraltar and Marseilles.</p> <p>144 boxes Sugar shipped by Antonio De Frias, & Co.</p> <p>26 do. do. do.</p> <p>40 do. do. do. Havana, 4th Aug, 1818.</p> <p>Bill of Lading. Shipped per John,-, by order and for Messrs. Marks & Brooks,</p> <p>1C boxes Sugar.</p> <p>10 do. brown Sugar.</p> <p>1 do. do. do.</p> <p>2 tons Longwood.</p> <p>To be delivered to M. Autrey & Co. Marseilles.</p> <p>(Signed,) B. CONCKLING.”</p> <p>The Collector’s certificate, shewing she got a Mediterranean pass in Charleston was also produced. The John had been in Charleston in June; she was on the Company’s books ranking No. 1; she arrived in safety at Marseilles, and delivered her cargo; she sailed from Marseilles for the Havana, and was lost; no. offer to return the premium on the goods had ever been made. At the time of her leaving the Havana, Spain and her South American colonies were at war. Cuba, of which Havana is the Capital, adhered to the mother country. The South American colonies had privateers at sea. It was stated that only Spanish subjects could by the laws of Spain ship goods from the Havana. Several members of the Insurance Company declared their ignorance of the notice in the morning papers of the 12th Aug. They •vvere of opinion that the risk was increased by the cargo having been taken in at the Havana. Other witnesses thought that the company must have seen the advertisement and that the risk was not increased. The property insured (goods and schooner) appeared to be American.</p> <p>Under these circumstances -it- was contended that the plaintiff could not recover.</p> <p>1st. Because there was a breach of the warranty; and</p> <p>2ndly, If the Court should be of opinion that there was no breach of the warranty, that there was a misrepresentation, as the offer did not state that the cargo had been taken in at the Havana, and that this was a fact material to the risk, and ought to have been communicated, whether known or unknown to the insurer; and that were this fact one which need not have been communicated if known, yet that from the evidence it could not have been inferred that it was known.</p> <p>His Honour, Mr. Justice Gaillard, who tried the cause, was of opinion that the case made out was in all respects similar to the cases which had been submitted to this Court on former appeals; (Harper’s L. R, 235; 3 M'Cord, 387,) and directed the Jury to find a verdict fo>-ihc defendants in conformity with the opinions declared in those cases. The Jury, however, found a verdict fot the plaintiff and from their verdict the defendants appealed and made these-points.-</p> <p>1st. That there was a breach of warranty.</p> <p>2nd. If not, that there was a misrepresentation.</p>

<p>A prior commission of Bankruptcy in England, docs not give the Assignees'a lien over attaching creditors in this State.</p> <p>No effect will be given in this State to the English Bankrupt Laws, nor to any provisionary assignment, made in aid of those laws.</p> <p>All assignments by a creditor in England, within two months of the suing out of a Commission of Bankruptcy against him are void, and the Assignees hold in trust for the Assignees under the Commission. .</p> <p>As between the Bankrupt and the Assignees under the Bankruptcy, the Commission transfers all the rights the Bankrupt has, whether in England orina foreign country,</p> <p>The Assignees, however, as to foreign debts, stand in no better situation than the Bankrupt himself, and arc subject to every equity, and to the remedies provided by the laws of the foreign State, and when they are permitted to sue there, it is net as Assignees, but as representatives of the Bankrupt.</p> <p>An assignment in England, within two months of Bankruptcy,, is an assignment in aid of the Bankrupt Laws, and will not give a lien prior to a subsequent attachment in this State, over rights attached here. . ,</p> <p>An assignment made by one partner of the effects of the firm, for the payment of their debts, though under seal, will bind the other partner.</p> <p>"Where a seal is not essential to f ho validity oí a contract, the addition of a seal will not vitiate it.</p>

<p>The Legislature may order a Street to be opened over the Lands of an individual without making compensation.</p>

<p>This was.an action of Replevin brought.by Wm. S. Price against Robert Limehouse. The defendant was owner of a house and lot in King-street, Charleston, which, on the 1st September, 1821, lie leased to the plaintiff for six years and a half, commencing from that date. In consideration of the lease, the plaintiff agreed to pay, to the defendant the sum of $804 in cash, and to execute a bond in the penal sum of $2113, conditioned to pay $1056 50 cts. in two equal instalments, the first payable on the 13th April, 1823, and the second, in two years from that date, with interest on the whole sum, payable annually, from 1 Bib April, 1823. The plaintiff having complied with ibis agreement, by paying the cash part and executing the bondffor the remainder, continued in peaceable possession of the premises, under the lease, from the date thereof, until on or about the 5 th of August, 1824, when the defendant issued a distress warrant and levied upon certain articles of furniture belonging to the plaintiff, for the sum of $711, being part of the bond remaining unpaid as al-ledged. The plaintiff replevied. — The defendant pleaded the common avowry and cognizance for rent; to which the plaintiff replied in bar (craving oyer of the said demise and setting it forth in the plea) that he had executed the bond required by the demise, and that the defendant had no remedy by distress for default of payment, but should have resorted to his action upon the bond. To this plea the defendant demurred generally, and the plaintiff having joined in demurrer the case came on to be argued before his honour, Judge RichabdsoN, who sustained the demurrer.- — Whereupon the defendant took a verdict for the amount of principal and interest due on the bond.</p> <p>A Motion was now made to set aside the verdict, and to reverse the decision upon the demurrer.</p> <p>The defendant, by taking a bond for the rent of the premises relinquished, ipso facto, Ins right to the remedy by distress, and must seek redress* in the usual form by action on the bond. There was no rent reversed in the demise which is necessary to the support of the remedy by distress. — 1 Bay, 315; lb. 443; 2 Const. R. Tread. Ed. C37. Even if there were such reservation of rent in the demise, it extended to the whole term for which the lease stipulated to run, to wit, for six and a half years, aud therefore any distress prior to the expiration of the term was premature and illegal. To entitle the defendant to distrain, the rent, if it couhd be claimed as such, should havebeen payable annually — Co. Lit.'" 144. This distress was for interest on tho Bond also, whieb was illegal — 6 Johnson, 43. - The bond was a common money bond, and if any distress could have been made to enforce its payment, it should have been made for the penalty, and not for any of the instalments.</p> <p>The leading question is, whether rent has been reserved. If it has been, the right to distrain follows of course. The parties by their contract may fix the time whenever they please, that the rent should become due — 2 D. & E. 600; Gilbert on Distress, 32. Taking a bond or note will not extinguish the right to distrain — 3-M‘Cord, 484.</p> <p>cited Brady on Distres, 102;-2 Bin. 146; Yan Leon vs. Smith.</p> <p>cited Parker vs. Harris, 1 Salk. 262.</p>

<p>This was a special action on the case against defendant, late Master in Chancery for the District of Charleston, for taking an insolvent person as surety on a guardianship bond of one Rhodes, who was appointed guardian to the plaintiff by the Court of Chancery, and the defendant was ordered to take the security.</p> <p>The case was tried before the Recorder of Charleston., before whom a nonsuit was moved for, on the ground that by the act of 1791, the Master was bound to give bond for the faithful performance of his duties, which the plaintiff should have sued on. And that the plaintiff should have obtained a decree against the guardian on a bill to account before the amount of damages could be ascertained; and until he did so, he could not bring this suit against the Master.</p> <p>The Recorder refused the motion, and the jury found a verdict for the plaintiff.</p> <p>The defendant now moved fora new trial, on the ground that the act was a judicial and not a ministerial one, for which the officer was not liable, and that a decree should have been obtained.against the guardian and the amount due by him ascertained, before the suit could be maintained. A nonsuit was also moved for on the ground's taken before the Recorder.</p>

<p>Goods deposited for keeping in tho store-house of a factor, who under let from a commission merchant, are not subject to distress for rent due the first lessor.</p>