Volume 17 — South Carolina Law Reports

Tried before Mr. Justice Gantt, Fairfield, Spring Term, 1828. The defendant was charged upon two separate indictments, with distinct acts of illicit trading with a slave.

Tried before Mr. Justice James, at Chester, Fall Term, 1827. The defendant was indicted for murder, and at the trial, the jury being unable to agree readily in a verdict, permission was granted them, with the consent of counsel on both sides, to separate, after they should have agreed upon and sealed their verdict; and the Court adjourned.

Tried before Mr. Justice James, at York, Fall Term, 1827. This was an action of debt on bond. The bond had been executed in favour of W. E. Hayne, and had been assigned by him to the plaintiff. The defence relied on was payment. The facts were these : The plaintiff agreed to indulge the defendant for two yeai-s, on condition that he would pay interest at the rate of 14, instead of 7 per cent, per annum.

<p>In a suit by a distributee against an administratrix for her share of the intestate’s estate, the Ordinary decreed a certain sum to be due to the dis-tributee by the estate. Held to be a sufficiently formal decree as against the administratrix.</p> <p>Iu the absence of statutory or other positive regulation, it belongs to every Court to prescribe the formula of its proceedings. There are, indeed, certain substantial requisites to every judgment or decree; in addition to the ordinary circumstances of time and place, it must exhibit the parties, the subject matter in dispute, and the result. But if these facts be distinctly ascertained, the phraseology is unimportant.</p> <p>The jurisdiction of the Ordinary extends no further than to take and adjust the accounts. He has no authority to enforce the performance of his order or decree. Hence, if his decree ascertain the sum due, it is a sufficient decree, and need not contain an express order that the defendant should pay it.</p> <p>It is the duty of administrators to provide for the wants and necessities of the infant children of their intestate, until a guardian is appointed. Expenditures for this purpose form a charge upon the distributive share of the children, and although not properly a charge on the estate itself, will be regarded as gratuitous, if not entered in the accounts filed with the Ordinary.</p> <p>The Court of Ordinary is the proper tribunal for the examination of administrator’s accounts. The Court of Common Pleas has jurisdiction only byway of appeal; and, therefore, in an action upon an Ordinary’s decree, will not entertain jurisdiction of a demand, set up as a discount, which was properly cognizable by the Ordinary, but which had not been submitted to him. It ought to have been substantiated before the proper tribunal, and the omission cannot be aided.</p>

<p>This was an appeal from an order made by Mr. Justice James, at Lancaster, Fall Term, 1827.</p> <p>The plaintiff had recovered against the defendants jointly, and to enforce his judgment, lodged a fi. fa. thereon, with the sheriff' of Lancaster, which fi. fa. was made returnable to the spring term of 1827. The defendant, Jones, who resided in Lancaster, prevailed upon the sheriff to deliver the fi. fa. to him, and he sent it to the sheriff of York, with directions to levy the amount upon the property of the defendant, Williams, who resided in the latter district. At Lancaster Spring Term, 1827, the plaintiff obtained a rule against the sheriff, to shew cause why he had not collected the money due upon the fi. fa. and upon the return of the rule, Mr. Justice Waties ordered, that an attachment should issue against the sheriff, unless he should collect and pay over the money to the .plaintiff, by the next term. At the fall term of 1827, the sheriff of Lancaster obtained a rule to be issued against the sheriff of York, to shew cause why an attachment should not issue against him, for not having collected and paid over the money to the plaintiff; and this rule was returned and made absolute at the same term. The counsel for the sheriff of Lancaster, thereupon moved to rescind the order against him, which had been made at the previous term; and Mr. Justice James who presided, granted the motion.</p> <p>The plaintiff now moved to reverse this last order, upon the following grounds.</p> <p>1st. That the precedent order against the sheriff of Lancaster, made by Judge Waties at spring term, 1827, having been upon a full and correct view of all the circumstances of the case, the presiding Judge at the next term, had no power to rescind it.</p> <p>- 2d. That if the latter Judge possessed such power, nothing had transpired, since the order was made, to justify the exercise of that power.</p>

Tried before Mr. Justice James, at Chester, Fall Term, 1827. This was an action by Sum. Pro. upon a promissory note, in which the defendant had promised, jointly and severally, with two others, “to pay Thomas S. Ellis, executor of Sarah Ellis, deceased, or David Hutcheson, executor of Robert Ellis, deceased,” the sum specified in the note.

<p>A promise to pay tbe debt of a third person, though made in consideration of forbearance, is not an original, but a collateral undertaking within the statute of frauds, and must be in writing.</p> <p>Fish v. Hutch inson, 2 Wilson, 94 b.</p> <p>King v. Wilson, 2 Str. 873.</p> <p>Buckmyr v. Darnall, 2 Ld. Itaym. 1085.</p>

<p>In a suit by Sum. Pro. founded on a former judgment, the plaintiff must annex a copy of the judgment to the copy-process served on the defendant. And the omission need not be pleaded in abatement, but may be taken advantage of by motion.</p> <p>In suits within the summary jurisdiction, all special defences must be pleaded, or they will not be admitted in evidence, if objected to. To an action oi debt on judgment, the plea of payment is special, and therefore, if the action is brought by Sum. Pro. that defence must be formally pleaded, to be admitted in evidence.</p> <p>37th Rule.</p> <p>Vide 1 Ch. PI. 481, and statute 4 Ann, c. 16, P. L. 95.</p>

Tried before Mr. Justice Gantt, at Chester, Extra Term, in April, 1828. This was an action on the act of Assembly of 1799, against the defendant, who was sheriff of Chester district, to recover the penalties imposed by that act, for neglecting to make due returns of executions lodged in his office.

<p>The death of the defendant after the expiration of the rule to plead, does not abate the action; and the rule is the same, whether the action be commenced by writ of foreign attachment, or by process against the person.</p> <p>gm;ih v. Irish 1 Mod. 4. S.C. ® ^jP’ j peters-' dorff’s Abr. Abatement, *'</p>

Tried before Mr. Justice James, at Fairfield, Fall Term, 1827. This was a scire facias to revive a judgment, recovered against the defendant’s testator, at November Term, 1823, for $1089 25, with interest and costs. The defendants pleaded payment. At the trial, on the production of the record, the word “ satisfied,” was found to have been indorsed on the execution.

<p>In an action upon an administration bond to recover a sum oí money, which the Ordinary had decreed to he due by the defendant, as administrator, the defendant cannot deny that he had been duly cited before the Ordinary. The decree is conclusive evidence of that fact, and cannot be' controverted, but by way of appeal.</p> <p>It is no objection to a decree of the Ordinary against an administrator, in favour of a distributee of the estate, that all the administrators had not been cited before him.</p> <p>It is no objection to an action on an administration bond, that the real plaintiff is a co-obligor in the bond; nor that she is a joint administratrix, and has not accounted for her own administration.</p> <p>A continuance is almost exclusively a matter for the discretion of the Circuit Judge. The Court of Appeals will very seldom interfere with his decision; and never, where it is doubtful whether the witness, whose absence is the ground of the motion for a continuance, could have been heard if present.</p> <p>A. A. 1799, 2 Faust. 316.</p> <p>CO Ordinary Williams & parlnnan. 1 N. Powers, 2 N. ^n^gc^' derson,4McG. 4 note. (a)</p>

<p>Tried before Mr. Justice Gantt, at York, Spring Term, 1828.</p> <p>This was an action upon an administration bond; to which the defendant pleaded, first, infancy; secondly, general performance. To the first plea, the plaintiff replied that assets had come into the defendant’s hands after he had attained full age; to the second, non-performance, and assigned a breach in the non-payment of a decree of the Ordinary, made in 1826, in favour of Hannah Campbell, (late Wherry.) Issue was taken on both the replications, and the evidence was as follows:</p> <p>Administration of the estate and effects of Samuel Wherry, deceased, had been granted to the defendant and his mother, Dorcas Wherry, in the year 1792, at which time, they both entered into the usual bonds for the faithful discharge of the duties of their office. The infancy of the defendant, at the time, was fully established; and the returns to the Ordinary’s office abundantly shewed, that the estate had been exclusively managed by Dorcas Wherry, down to the year 1800, at which time she made, in her own name, a full and final settlement with all the distribu-tees, except Hannah Wherry, now Mrs. Campbell, who was the real plaintiff in. the present action. Hannah was not of age at that time, nor did it appear whether she was afterwards paid, or not; but there was no proof that the defendant in any way interfered with the estate, except in relation to the renewal of a lease. The intestate, at the time of his death, was possessed of a long lease of certain lands from the Catawba Indians, and in the year 1793, the defendant obtained a new lease of these lands in his own name. In 1810, Hannah Wherry, and all the other persons interested in the estate, joined in a bond to the defendant in the penalty of $1000, reciting that Samuel Wherry had died possessed of the said lands, and that they -were entitled to distribution thereof, and binding themselves to release and relinquish all claim and title therein to the defendant. From that time the defendant remained in possession of the land, and in the year 1825 obtained a renewal of the lease to himself, as administrator of Samuel Wherry; but for what cause he was so designated in the lease, did not appear. The defendant was subsequently cited before the Ordinary, who made a decree against him in favour of Hannah Campbell, to the amount of $563, 90.</p> <p>His Honor, the presiding Judge, charged the jury, that the bond of the defendant was voidable only, and not void at the date of its execution, and might be confirmed by his intermed-dling with the administration after his coming of age; and that his renewing a lease, and taking possession of the demised premises, was such an intermeddling as amounted to a confirmation. He further charged, that the length of time which had elapsed between the date of the bond and the renewal of the lease, was no objection to the plaintiff’s right to recover, as performance could not be presumed, until twenty years after the youngest distributee of the estate had come of age ; and that the decree of the Ordinary was conclusive as to the amount due.</p> <p>The jury found for the plaintiff the amount of the Ordinary’s decree; and the defendant now moved for a new trial, on the ground of misdirection of the presiding Judge in each particular of his charge; and in arrest of judgment on the ground, that the bond was void in its inception, and was incapable of confirmation by any subsequent act of the defendant, after attaining his age.</p> <p>An infant cannot bind himself by a Penal bond; it is absolutely void in its inception. Fisher v. Mowbray, 8 East, 330. Nor can an infant confirm a bond after coming of age, but by an instrument of equal solemnity. Baylis v. Dinely, 3 Maulé & Selw. 477.</p> <p>It is now perfectly well settled that the lapse of twenty years, without a demand, is of itself a presumption that a bond has been paid. Oswald v. Legh, 1 T. R. 270. 2 Atk. 144: And the rule applies to bonds for the performance of covenants, as well as to money bonds. Ordinary v. Steedman <&• Stevens, Harper, 287. It is true the presumption may be rebutted; but will an act subsequent to the period, when the presumption of performance has arisen, be sufficient for confirmation of a bond voidable in its inception ? Suppose, which is not admitted, that the bond was originally not void, but voidable, yet when the presumption of performance has arisen from lapse of time, there is nothing capable of confirmation.</p> <p>If an infant takes a lease rendering rent, and after age continues in possession, this makes the lease good and unavoidable. Bingham on Infancy, 66. This is closely analogous to the present case: The defendant took a lease to him as administrator; he thus availed himself of his letters of administration, and he cannot be allowed to shake off the reciprocal obligation of his administration bond.</p> <p>As to the presumption arising from lapse of time, like all other presumptions, it may be rebutted. If the grant of administration was not too stale to enable the defendant to obtain an advantageous renewal of the lease, then the administration bond was not too old to be confirmed. The right and the obligation ought certainly to be reciprocal.</p> <p>Whether the estate was entitled to an interest in the lease,-or whether it belonged entirely to the defendant, was a question for the Ordinary. His decree might have been appealed from; but in this action it is conclusive.</p>

<p>The rule that a party cannot impeach his own witness, is confined to the introduction of general evidence to destroy his credit; he may call other witnesses to contradict him as to particular facts relevant to the issue.</p>

<p>This was a motion to rescind an order made by Mr. Justice Gantt, at Fairfield, Spring Term, 1828. The case had been continued on the application of the defendant; and, subsequently, the plaintiff moved for leave to examine by commission, Mr. Farrar, a gentleman of the bar, practising in another circuit, but within one hundred miles of Fairfield Court-House. His Honor granted the motion, on the ground that the testimony of the witness could not otherwise be obtained, but with great difficulty and expense, and at an inconvenience to the administration of the justice of the country ; and that as a continuance had been granted, the Court had a right to impose such eqhitable terms as the exigency of the case called for.</p> <p>The defendant appealed on the ground that the order was unauthorized by law.</p>

Tried before Mr. Justice Gantt, at York, Spring Term, 1828. This was an action of debt on the official bond of tlie defendant, as tax-collector for the district of York, for not paying over to the Commissioners of the Poor, the poor-tax for the years 1822, 1823,1824 and 1825, which had been collected by him.

<p>This was an appeal from an order made by Mr. Justice James, at Union, Fall Term, 1827. The plaintiff took out a rule against the sheriff, to shew cause why he had not paid over to the plaintiff’s execution, the moneys in his hands belonging to the defendant. The sheriff shewed for cause, that the money had been paid to him under an assessment in lieu of dower; and that the officers of Court claimed, that their costs in the proceedings in dower should be paid before any other application of the funds. His Honor, the presiding Judge, said that, although reluctant to grant the plaintiff’s motion, he was compelled to do so under the authority of the adjudged cases. Rule absolute.</p> <p>The defendant now moved to reverse this order on the following grounds.</p> <p>1st. That the money in this case- was not liable to levy, nor subject to the lien of an execution.</p> <p>2d. That the order defeats the objects of the law of dower.</p>

Tried before Mr. Justice Gantt, at York, Spring Térm, 1828. The defendant was sued before-a magistrate, as executor tie son tort, of William Scoggins, deceased. The proof of inter-meddling was, that defendant had possessed himself of a cow, of the value of $12, which belonged to the deceased.

<p>Tried before Mr. Justice Gantt, at Lancaster, Spring Term, 1828.</p> <p>The lands of the plaintiff’s intestate had been levied on in his life time, by the sheriff, under a writ of fieri facias; but before a sale was made, the intestate died. The plaintiff having obtained a grant of the administration, contracted with the defendant for a sale of the lands for the sum of $1000. The agreement, which was parol only, was that the defendant should bid the lands off at the sheriff’s sale, but whether he bid more or less, was to pay the price stipulated with the plaintiff. The defendant bid off the lands for the price of $615, paid that sum to the sheriff, took his title for the lands, and went into possession of them; and this was an action of assumpsit to recover the difference between $615 and 1000. At the trial, the plaintiff proposed to go into evidence of the above agreement, but his Honor, the presiding Judge, held the evidence to be inadmissible, on the double ground that the agreement was void by the statute of frauds; and that at law, an administrator had no right to contract for the sale of the real estate of the intestate.</p> <p>The plaintiff was nonsuited, and now moved the Court of Appeals to set aside the nonsuit, and to send the case back for trial, on the ground that the evidence of the agreement ought to have been admitted.</p>

Tried before Mr. Justice Gantt, at Union, Spring Term, 1828. The plaintiff had sold a negro slave to the defendant, and abated $50 in the price, on the supposition that the slave was unsound. Held: that the contingency on which the defendant’s obligation was to arise, not having occurred, his promise was not binding ; and the arbitrators had manifestly erred in making an award for the plaintiff. On this ground, therefore, the award was set aside.

<p>Tried before Mr. Justice Gantt, at Union, Spring Term, 1828.</p> <p>This was an action of trover to recover the value of certain furniture, of which the plaintiff’s intestate had died possessed, but which the defendant claimed as his own, and had converted to his own use. The conversion was proved, and the only question was as to the title. The defendant called a Mr. Taylor to prove, that the intestate, a short time previous to his death, being indebted to him, had authorised him to make sale of the furniture in question, in order to discharge the debt, and furnished him with a bill of sale for the purpose; and that he, Taylor, had accordingly sold the furniture to the defendant. This witness was objected to by the plaintiff, and the objection was sustained by his Honor, the presiding Judge, who held Taylor to be directly interested in the event of the suit. Other witnesses were examined on both sides; but their testimony left the question of title doubtful. The jury found for the plaintiff the value of the goods.</p> <p>The defendant now moved to set aside the verdict, and for a now trial, on the ground that Taylor was a competent witness, and had been improperly rejected.</p>

Tried before Mr. Justice Gaillard, at Gre.enville, Spring Term, 1828.

<p>Tried before Mr. Justice Gantt, at Spartanburgh, Fall Term, 1827.</p> <p>This was an action of trespass on the case for obstructing plaintiff’s way over the land of the defendant. The plaintiff claimed by prescription, and proved that he had used the road for upwards of thirty years. One of the witnesses had known the road for forty-seven years ; another for forty years, during which time, its position and course had never been altered, until the obstruction by the defendant, for which the present action had been instituted. The witnesses considered it a “ settlement road that is to say, a road for the use of the neighbours: Never heard it called a public road; but it was open, and all who chose, might make use of it. The plaintiff offered to prove by one of the Commissioners of the Roads, that the Board had refused an application to open the road, on the ground that it was a private way, and not a public road, and that.they had no authority over it. This evidence was objected to by the defendant, and the objection was sustained by the Court.</p> <p>His Honor, the presiding Judge charged the jury that the evidence was sufficient to establish the road in question to be a public highway, rather than a private road. The plaintiff had shewn no exclusive right in himself, nor in any person else or any set of persons; and although it was used chiefly by the neighbours, it was open to all who passed in that direction, and there was no evidence that one had a better right than another.</p> <p>That if it were a public road, a private action would not lie for obstructing it, unless some special damage had been sustained, and none was charged in this case: And the remedy, therefore, was by indictment.</p> <p>The Jury found for the defendant, and the plaintiff moved to set aside their verdict, and for a new trial, on the following grounds.</p> <p>1st. That his Honor erred in rejecting evidence that the Commissioners of the Roads did not regard the road in question as a public road.</p> <p>2d. That his Honor misdirected the Jury, in charging that the evidence was sufficient to prove the road public.</p> <p>3d. That a road used only by the inhabitants of a particular neighborhood, is not a public, but a private road, for the obstruction of which, any one of the said inhabitants might maintain an action; and that his Honor erred in charging otherwise.'</p>

<p>Tried before Mr. Justice Gantt, at Greenville, Fall Term, 1827.</p> <p>This was an action of trespass to try title. The plaintiff gave in evidence, first, a grant to Augustus'Merrick, dated'5th February, 1787; secondly, a deed of Tilly Merrick-, dated 13th May, 1793, by which he conveyed the land in his own name to Thomas Dugan, but subscribed the deed “ Tilly Merrick, Executor of Augustusthirdly, a conveyance from Thomas Dugan to plaintiff, dated 13th December, 1806. The plaintiff also proved possession in Dugan, and afterwards in himself, by their tenants. The will of Augustus Merrick was not produced, but plaintiff relied on possession under tíie deed of Tilly Merrick, and lapse of time to raise the presumption of a will, and an authority under it in Tilly Merrick to convey. He also produced two witnesses to prove that Tilly was the brother and heir-at-law of Augustus Merrick: These witnesses testified that they were well acquainted with Augustus and Tilly Merrick; that Augustus had no family, and no sister, nor other brother than Tilly; and that he was reputed to be a single man at his death.</p> <p>The defendant claimed by possession under a junior grant to Thomas Nations; and the plaintiff called witnesses, to prove that defendant’s possession was not adverse. Several questions .were raised as to the defence, but the decision of the Court was confined to the title made out by the plaintiff.</p> <p>His Honor, the presiding Judge, charged the Jury that the plaintiff’s title had failed at the threshold ; that Tilly Merrick’s conveyance could not avail him, without proof of a will, and an authority under it to make a conveyance; that admitting him to be the .heir-at-law,' his styling himself executor was an admission that a will existed, which divested his right as heir.</p> <p>The Jury found for the defendant: And the plaintiff now moved to set aside their verdict, on the ground of misdirection.</p> <p>Tilly Merrick’s conveyance as heir was good, unless a will existed, and it was for the defendant to shew that there was one. If Tilly Merrick’s styling himself executor, was an admission-that there was a will, and such admission was conclusive upon him as heir, then it is equally conclusive upon all who could claim under him, and the conveyance is effectual: But if subscribing as executor, is not an admission of a will, then his right as heir is not divested, and the conveyance is equally good. In one right or the other, Tilly Merrick had full power to convey, and the conveyance must be referred to whichever was most effectual. Legge v. Magwood. Harper, 116. In any case, after so great a lapse of time, and possession accompanying the deed, a will, or whatever else is necessary to support the deed, may be presumed.</p> <p>The case of Legge v. Magwood, will not assist'the plaintiff: There, an act done generally was referred to a specific authority, to wit, as executor; but it is not said, that an a,ct done in a specific character, shall be referred to every right or authority the individual might have possessed. The opposite conclusion would follow on principle; for though the greater includes the less, the less can not include the greater. It is a rule which would produce injurious consequences. Besides, the evidence was insufficient to prove Tilly Merrick to be the heir of Augustus: He was proved to-be the brother; but that did not make him heir, unless it were also proved that there were no children, wife, father or mother, or other brothers or sisters: It is true the witnesses knew of none; but to render this negative testimony of the slightest avail, it ought to have been shewn that they stood in sueh a relation to Augustus Merrick, as that they must have known of other heirs, if any sueh existed. It has never been held, that the negative testimony of others than members of the family, was competent to put the' opposite party upon proof of the alternative. Common repute is not sufficient; and there is no case where strangers have been admitted for that purpose ; for their testimony is mere hearsay, being, after all, derived from common repute. 1 Ph: Ev: 189. Doe v. Griffin, 15 East, 292. Highham v. Ridgway, 10 Ib. 120. Wliitelock v. Baker, 13 Vezey, 511.</p>

Tried before Mr. Justice Gantt, at Laurens, Fall Term, 1827.' Trespass for breaking plaintiff’s close, and ploughing up a cotton-field; Pleas, general issue, and liberum tenementum. Held: that Littleton Parsons was an incompetent witness to invalidate his own deed, and rejected the evidence.

Tried before Mr. Justice Gantt, at Spartanburg}), Fall Term, ' 1827. This was an action for a malicious prosecution. Held: that the averment could only be supported by the indictment. And the plaintiff was nonsuited. The plaintiff now moved to set aside the nonsuit on the grounds— 1st. That the caption of the indictment was amendable by the journals of the Court. -• 2d. That the journals were admissible as evidence, independently of the indictment.

<p>In an action by a gaoler for gaol-fees, tlie sheriff is not an incompetent witness for the plaintiff, unless it appear that he is interested in the event of the suit; and such interest is not to be presumed merely from his official relation to the plaintiff.</p> <p>When a debtor in execution escapes from prison, the gaoler forfeits his right of action against the creditor for gaol-fees: The only exception is, where the escape has been occasioned by the act of God, or the enemies of the country.</p> <p>Vide the fee-i3ls’Acts& of ’ 1827. p. 57.</p> <p>Alsept v. F.yles,2 H. Bl. 108.</p> <p>Acts of 1813, 20.</p>

Tried before Mr. Justice Gaillard, at Abbeville, Spring Term, 1828. This was an action of trespass to try title: Verdict for plaintiff The defendant appealed upon several grounds; but the decision of the Court of Appeals was confined to one of them. The facts, connected with this ground, are so fully noticed in the opinion of the Court', as to render an additional statement of the evidence unnecessary.

Tried before Mr. Justice Gail laud, at Abbeville, Spring Term, 1828. This was a rule upon the sheriff. Under an order of Court, in a proceeding for partition, the sheriff had sold lands to the amount of $10,000, and retained 2 J per cent, of that sum for his commissions; and he was called on by the rule, to shew cause , , , . why he should not pay over to the parties, the whole of the proceeds of the sale, save 1 per cent.

Tried before Mr. Justice Gtailiard, at Laurens, Spring Term, 1827. This was an action of assumpsit, brought by the Commissioners of the Poor for Laurens District, to recover the sum of $250, expended by them for the maintenance of an indigent daughter of the defendant.

Tried before Mr. Justice GANTT, at Laure~s~ Fall Term, 1827. AT a sale of the estate and effects of Jonah Fowler, deceased, macic by order of the Court of Equity, for partitiou, the plai~itiff purchased a negro girl, at a full price, for a healthy slave; anc! shortly afterwards paid the purchase money, of which the defendant, who was one of the distributees, received his share. The girl subsequently died, dnd it was alleged that she was unsound at the time of the sale.

<p>An administrator sueing ifi Iiis representative character, is not liable for costs, if the alleged cause of action arose antecedently to the death of his intestate: It makes no diffrence, that, from the nature of the contract 'sued upon, as where it was a note payable to the intestate, “ or bearer,” the administrator might have sued in his own right, if the cause of action appertained to the intestate, and arose before his death. Nor, as it seems, does it vary the rule, that the declaration contains counts upon promises to the administrator.</p> <p>sTenTlTaun 322. Wiltoii Boland Pub 445.</p> <p>„ , „ , ,, Viae2Avchb: Pr: 130.1.</p>

Tried before Mr. Justice Gaillarb, at AbbevlR, Spring Term, 1828.- This was an action of assumpsit, in which the plaintiffs declared specially upon an award, with counts upon the original cause of action. Verdict for plaintiffs. Several points of law were raised at the trial, but the principal question was as to the validity of the award.

Tried before Mr. Justice Gaillard, at Columbia, Spring Term, 1828. Held: that Morgan’s incompetency, as a common law-witness, was not removed by the release, nor by the assignment and proof of his insolvency; and the plaintiff being admitted under the act of 1777, and denying the usury on oath, Morgan’s testimony was altogether excluded.

Tried before Mr. Justice Johnson, at Newberry, Fall Term, 1827. Trover for a slave named Charlotte, and her child Eliza. The plaintiff and defendant had married daughters of William Spraggins ; and both claimed the slaves, in dispute, by gift from their father-in-law.

<p>In action of covenant for not employing plaintiff as clerk, tlie declaration averred, that on the day stipulated in the covenant plaintiff was ready and tendered his services to defendant; &c. The evidence was, that on the day stipulated, plaintiff was sick, and unable to attend to business, and that defendant agreed to dispense with his services, until he recovered ; that on his recovery at a day subsequent, he tendered his services to the defendant, but that the latter then refused to employ him. Held, that the proof did not support the allegation; and nonsuit ordered for the variance.</p> <p>In an action of covenant, if plaintiff aver, that he was “ ready at the day ” to perform all the covenants on his part to be performed, he cannot recover on proof, that the defendant had consented that the time should be enlarged, and that he was ready at the day substituted. But if the declaration contain appropriate averments, it seems that the plaintiff may recover on such proof, although the agreement to enlarge the time was "by parol, vide 1 Esp. N. P. C. 34. andHotham v. East-India Company, Doug. 272.</p>

<p>Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1828.</p> <p>This was an appeal from the decree of the Ordinary of Edge-field District, refusing probate of the will of Samuel Tomkins, deceased, which had been propounded by the executors. The will had been duly executed, and attested by three subscribing witnesses; but the probate,was resisted on the ground of the alleged incapacity of the testator, and his ignorance of the contents of his supposed will. The issue devisavit velnon was submitted to a jury under the act of assembly ; and on both sides much evidence was introduced : all of which is so fully referred to in the opinion delivered by the Court of Appeals, as to supersede the necessity of further detail in this place. The jury, in concurrence with the opinion of the presiding Judge, found for the will: And the next of kin now moved to set aside their verdict, and for a new trial on the ground of misdirection, and that the verdict was contrary to law and the evidence.</p>

<p>In summary process against the indorser of a promissory note, a formal averment of demand on, and refusal by the maker, and notice thereof to the defendant as indorser, is unnecessary. If the process state that the defendant is indebted as indorser,” it is sufficient.</p>

Tried before Mr. Justiee'HuGER, at Barnwell, Fall Term 1827. This was an action on the case against the defendant, as late sheriff of Barnwell District. The declaration contained several counts, for cancelling the bail-bond of Joseph W. Wood, who had been arrested at the suit of the present plaintiff; for a voluntary escape of the said Wood; and for neglecting to execute successive writs of fi. fa. and ca. sa. against him.

<p>Tried before Mr. Justice Waties, at Sumter, Fall Term, 1827.</p> <p>The defendant, in consideration of love and affection, conveyed the slaves now in dispute to his daughter, Nancy Powell, wife of the plaintiff, to have and to hold the same to her and her issue forever. Following the Jiabendumwas a clause, declaring it to be “ the nature of this deed,” that if the said Nancy Powell should die without issue, the said slaves should return, at her decease, to the surviving heirs of the donor. And the donor, by another clause, warranted the said slaves . to bis said daughter, against himself, his executors, and administrators, and against all other persons whatsoever, subject to “ the condition” above recited.</p> <p>Nancy Powell died, leaving no issue at her death, and the defendant having converted the slaves, her husband brought this action. The jury found the foregoing facts by special verdict; and submitted for the opinion of the Court, whether, under the deed, the plaintiff had acquired an absolute interest in the slaves, in right of his wife ; or whether the defendant was intitled to them by virtue of the limitation over to his heirs.</p> <p>The presiding Judge gave judgment for the plaintiff’; and the defendant now moved to reverse the judgment, and for leave to enter judgment on the postea in his own favor.</p>

<p>Before Mr. Justice Gantt, at Chester, Spring Term, 1828.</p> <p>This was an action of trespass quart clausum fregit. The parties had referred the matters' in dispute to the arbitration of Peter Wylie and David M’Calla, and at a former term the submission had been made a rule of Court. Wylie and M’Calla, being- unable to agree, appointed Dr. John Douglass umpire, who' after examining the evidence, declared that he could not come to a conclusion satisfactory to himself, and suggested that John It. Johnson shouldbe called in to assist in the investigation. Johnson also examined the evidence,'and declared his opinion to be for the defendant: Douglass, however, could not agree in this opinion, and recommended to M’Calla, who was in favour of the plaintiffs, to call in a Mr..Gill, to decide the matters in dispute, as umpire. M’Calla consented, with some reluctance, and Wylie joined him in appointing Gill to be the umpire: the latter accepted the appointment, and made an award in fa-vour of the defendants. At this term the plaintiffs moved to set aside the award, on the following grounds.</p> <p>1. That the nomination of Dr. Douglass, as umpire, was a complete execution of the power of appointment by the arbitrators, and the subsequent appointment of Mr. Gill was therefore void, and his award a mere nullity.</p> <p>2. That the calling in of Johnson was wholly irregular, and his opinions on the matters in dispute cannot affect the rights of the plaintiff.</p> <p>3. That the opinion of Dr. Douglass, the umpire first select* ed, being ultimately in favour of the plaintiffs, the award of the umpire last called in cannot avail against it.</p> <p>The presiding Judge refused the motion : and it was now re.-newed in the Court of Appeals.</p>

<p>A third person, not a party to the action, and whose interest in the subject does not appear by the pleadings, cannot be permitted to shew, by evidence, that the suit was for his benefit, in order to prevent a discontinuance by the plaintiif on the record.</p> <p>A Court of Law can know no other persons as parties than those whose rights are made to appear by tbe record, made up according to the established rules of pleading, vide Peay, adm’r. v. Walker, cited within.</p> <p>Act of 1798, ,i,jR Acts of p. 20.</p>

Tried before Mr. Justice Gantt, at York, Spring Term, 1828. This was an appeal from the decree of the ordinary for York District. The plaintiff was a creditor by specialty of the defendant’s testator, and after the death of the latter, obtained ju¿¡gmf!Ut against the executor, the defendant. He subsequenl-ci(;ed the defendant before the ordinary to account for his ad~ j j ministration.

<p>It is only in extreme cases, as where the verdict is so palpably against evidence, as to leave no doubt but that it is erroneous, that the Court will interfere with the decision of a jury upon questions of fact.</p> <p>Where there has been plenary proof of a gift, subsequent declarations of the donor, that a gift was not intended, are inadmissible; And although one of the witnesses testify to subsequent declarations of the donor in favour of the gift, yet if they were not elicited by the questions of counsel, and could add nothing to the weight of the proof, they do not furnish a ground for the admission of other declarations of the donor of a contrary import, in reply. But the Court should instruct the jury to dismiss the subsequent declarations in favour of the gift from their consideration.</p> <p>Where the gift of a slave was absolute in its terms, and accompanied with delivery of possession: Held, that the reservation of a right to “borrow,” under certain circumstances, or to receive “ something like hire,” if the donor should stand in need, was a condition subsequent, and did not invalidate the gift, although made by parol.</p>

Tried before Mr. Justice Gaillard, at Chester, Fall Term, 1828. The plaintiff claimed by a gift from the defendant, whose daughter he had married. About a year after his marriage the slave had been sent, or came into his possession, and there was evidence of a previous declaration by the defendant, that she intended the slave for the plaintiff’s wife.

<p>A deed of gift, to the heirs of a person then living, recited that the-donor had delivered the slaves, which were the subj-ct of the gift, to the heirs. Held, that this recital manifested the intention of the donor to restrain the gift to the heirs, or children, then living, and that children born after-wards did not take, vide Stroman v. Eottenhury, 4 Desaus. 268.</p> <p>The question reserved, whether the infancy of one of severa! joint owners of a chattel will protect the interests of such, as have attained full age, from the operation of the statute of limitations.</p>

<p>If the defendant in summary process have a discount, which exceeds the summary jurisdiction, the Court, on being satisfied of its merits, will order the plaintiff to declare in the higher jurisdiction, to enable the defendant to set up his discount.</p> <p>An acknowledgment by one partner, that a debt due to the firm has been satisfied, binds the partnership, although made after dissolution, unless it appear that the partner making the acknowledgment had no authority to receive or cancel the debts of the firm, vide 2 Bailey, 133.</p> <p>Lindsay v. Lindsay, 1 M’C. 491.</p>

<p>None but a solvent person should be admitted prochein amy to prosecute the action of an infant plaintiff; but the Court of Appeals will not rescind the appointment of a prochein amy, whose solvency is doubtful: tor the person admitted may be removed, at any stage of the suit, on proof of his insolvency, and another substituted, unless security is given for the payment of costs.</p>

Tried before Mr. Justice James, at Fairfield, Fall Term 1827. This was a suit by summary process on an inland bill for fifty dollars. The cause of action was fully and particularly set forth in the body of the process ; and at the trial the case was completely made out by evidence. When the plaintiff had closed, the defendant suggested that a copy of the note had not been indorsed on the process ; upon which the presiding Judge directed a nonsuit.

Tried before Mr. Justice Gaillard, at Union, Fall Term, 1828. This was a summary process upon a promissory note for twenty-four dollars. The note was admitted, but payment was resisted on the ground, that it had been given for a gaining deb}:.

Tried before Mr. Justice Gaillard, at York, Fall Term, 1828. This was an action of assumpsit, to recover the price of certain goods, alleged to have been purchased by the defendant at a sale of the intestate’s effects, which had been made by James J. Sutton, who preceded plaintiff in the office of administrator of Jonathan Sutton.

<p>The vendor in his deed described tiro land as containing ninety-one and a half acres, and, after setting forth (he boundaries, added; “ The ninety-one and a half acres I warrant, be the samo more or less.” Held to be a warranty of the quantity.</p> <p>Where the vendor, “ for a more full and particular description ” of the land sold, refers to a plat, in which the lines are specified to be of a certain length, and to contain a certain number of acres; and on a resurvey, the length of the lines, and the number of acres included within them, are found to fall short of the description contained in the plat, the purchaser is intitled to an abatement of the price pro tanto.</p> <p>e¡ ñde Com’r 4</p>

Tried before Mr. Justice Gaillard, at York, Fall Term, 1828. The defendant, Thomas Patton, was administrator de bonis non of the estate of Holstead Davis, deceased ; and this was an action upon his administration bond, brought against himself and his sureties to recover a sum of money, which, by the decree of the ordinary, he had been directed to pay to Elizabeth Davis, the widow of the intestate, for the distributive shares of herself and three minor children.

Tried before Mr. Justice Richardson, at Greenville, Spring Term, 1828. This ivas an indictment, under the 20th section of the act of 1740, commonly called the negro act, P. L. 1(58, for concealing and conveying away a slave, who had been accused of murder. The slave belonged to the defendant’s mother, who resided on a plantation to which the slave was attached, and who w as proved to be capable of managing and directing her property.

<p>The Court of Appeals will not render judgment on a special verdict. Its jurisdiction is appellate only; and if a verdict is brought up without tile judgment of the Circuit Court, it will he remanded for judgment.</p> <p>A commissioner of the roads is not liable to be separately indicted for not repairing bis division of an established public road, which had been ordered by the board of commissioners to be discontinued. The board have no authority to order the discontinuance of such a road; but all the members of the board must be indicted jointly.</p>

<p>Tried before Mr. Justice Richardson, at Greenville, Fall Term, 1828.</p> <p>This was a suit by summary process on a written contract, in these words. “ On or before the twenty-fifth of December, 1827, 1 promise to pay or cause to be paid unto Daniel Hull, or holder, fifty dollars, to be discharged in a horse, for value received of him this 14th August, 1826.” This paper was signed by the defendant, and delivered to Daniel Hull, who subsequently transferred it, by delivery, to the plaintiff.</p> <p>The day after that specified for payment of the money or delivery of a horse, the defendant went in search of Hull to tender a horse; but Hull having removed, he was unable to make the-tender. Subsequently, on being apprized that the contract had been transferred to the plaintiff, the defendant went to him and tendered a horse in satisfaction, which the plaintiff refused to accept, on the ground that he had the right to elect, and he preferred the money.</p> <p>The presiding Judge held, that, as to Hall, the right of election was in the defendant, by the terms of the contract; and the plaintiff could claim no higher right than Hull, although he might have taken the note as one for the payment of money : that the teuder of a horse to the plaintiff' was consequently a performance of the defendant’s contract, and discharged the plaintiff’s right of action. His Honor, therefore, ordered a nonsuit;-which the plaintiff now moved to set aside.</p> <p>Contended that the nonsuit was properly ordered, on the ground taken by the presiding Judge. Besides which, the contract in suit was not assignable by delivery; and independently, therefore, of the question of election, the present plaintiff was not intitled to maintain this action.</p>

<p>Tried before Mr. Justice Gail lard, at Spartanburgh, Spring Term, 1828.</p> <p>This was a suit by summary process. The petition stated that the defendant was indebted to the plaintiff, on a foreign judgment, and a copy of the account for which the judgment was rendered, together with a statement of the costs, was indorsed on the process; but no copy of the proceedings, was indorsed. or annexed, nor did it appear when the judgment was rendered, by what Court, or in, what country. At the trial the plaintiff gave in evidence certain proceedings by attachment against the defendant, which had been instituted by the present plaintiff in the County Court of Wilkes County, North-Carolina, and on which judgment had been rendered for him, for the amount stated in the process. The presiding Judge overruled a motion for a nonsuit, ánd gave a decree for the plaintiff. The defendant now renewed his motion for a nonsuit in the Court of Appeals.</p> <p>contended that the statement of the cause of action in the process was so totally deficient in certainty, that the defendant could not know what it was he was called upon to defend, and was necessarily taken by surprise. But independently of that objection, an action would not .lie on a judgment awarded in another State, in a suit instituted by attachment of the goods ; for such a suit is a proceeding in rem, and so continues, unless the defendant appear and answer to the action in person. And this he is every where allowed to do, even after judgment against him for default of an appearance; so that such a judgment cannot be regarded as conclusive of the debt, for which it was awarded. Kilburn v. Woodworth, 5 Johns. 39.</p>

<p>Tried before Mr. Justice Gantt, at Fairfield, Spring Term, 1832.</p> <p>This was an action on -the case against the defendant as sheriff of Fairfield District for a false return under the following circumstances. The executors of Aaron Cates recovered judgments in separate actions against William F. Pearson and Washington Lyles, as sureties of John Boyd, for the same debt, and assigned both judgments to the present plaintiff, who lodged ex-editions thereon in the offices of the sheriffs of Fairfield and Richland Districts respectively. The sheriff of Richland made a levy under the execution against Lyles; but by the direction .of the plaintiff applied the proceeds in satisfaction of a judgment against Lyles in favour of Andrew Wallace, which was junior to the plaintiff’s, but for the payment of which the plaintiff was said to be liable as the surety of Lyles. The present plaintiff had also recovered a judgment against William F. Pearson and Henson Barker, and had received from Pearson several sums of money on account of this judgment, and of that in favour of the executors of Cates, which, added to the pro ceeds of the levy made by the sheriff of Richland, amounted to a sum more than sufficient to discharge both of the judgments against Pearson. The defendant, as sheriff of Fairfield, subsequently levied the plaintiff’s executions on two slaves said to be the property of William F. Pearson ; but being informed that they were in fact the property of Philip Pearson, sen. he sold them under executions against the latter, and returned the plaintiff’s executions nulla bona. And for this return the present action was brought.</p> <p>At the trial much evidence was introduced on both sides in reference to the question, whether the slaves levied on were the property of Philip Pearson, sen. or of William F. Pearson; and many objections were made as to admissibility and'effect of this evidence. It was also contended for the defendant, that the previous levy upon the property of Lyles had satisfied the plaintiff’s judgment against him, and extinguished that against Pearson for the same debt pro tanto; and that the money paid by Pearson to the plaintiff being sufficient to satisfy the residue of both his executions, there was in fact nothing due upon either of them ; and the plaintiff had therefore sustained no injury by the return. To meet this defence the plaintiff offered to prove that Boyd, the real debtor, who had left the State, had previously deposited in the hands of William F. Pearson, the whole amount of the debt due to the executors of Cates, for which judgments had been obtained against Pearson and Lyles as sureties; which money Pearson had not paid over to the plaintiff, but had applied to his own use. This evidence was objected to as irrelevant, and the objection was sustained by the Court.</p> <p>The jury found for the defendant, and the plaintiff now 0 J moved to set aside their verdict, and for a new trial, on a variety °f grounds, which, from the view taken of the case by the Court of Appeals, it is unnecessary to specify.</p>

<p>The plaintiff gave certain slaves to his son, to work and labour for the better support of his mother; and the son agreed to support and defray the expenses of the mother. Held, that the fulfilment of the son’s agreement was not a condition precedent to the gift, and that the plaintiff could not maintain trover upon a breach of it.</p>

Tried before Mr. iustice Huger, at Edgefield, Fall Term, 1828. This was a summary process on the joint and several promissory note of Joel M‘Clendon and the defendants, payable to William Kilgore, or bearer, and by him transferred to the plaintiff before it became due. The defendants were copartners in mercantile business, and the copartnership was limited to buying and selling.

<p>A purchaser of land, sold by the Treasurer under a mortgage to the Loan-office, is not bound, in making title, to prove that the land was duly advertised before the sale.</p> <p>If the interest of a bond has been regularly paid by the obligor, or his executor, lapse of time will not raise a presumption of payment of the principal, or satisfaction of a mortgage entered into to secure the payment, in favour of a purchaser of the land mortgaged; although there is no evidence of participation in, or knowledge of the payments, by the purchaser.</p> <p>Where a mortgage of land has been duly registered, a purchaser from the mortgagor, or from those who claim under him, cannot set up a title by possession against the mortgagee.</p> <p>The registry of an absolute conveyance from the mortgagor, or from one who claims under him, is not notice to the mortgagee that the purchaser holds adversely to him.</p> <p>Crea, 1 N. & Barkley v. Ob-Turner!). M'-</p> <p>1 Faust, 65.</p>

<p>Tried before Mr. Justice Huger, at Edgefield, Fall Term, 1828.</p> <p>Debt on bond. The brief stated the following case. The defendant’s testator was surety to a bond executed by William Payne, to secure payment of the purchase money of a tract o< land, sold by order of the Court of Equity to make partition atnong the heirs of Goode. The sale had been ordered on the application of Payne, who had married Goode’s widow. Subsequently to the sale it was ascertained that 217 acres of the laud sold did not in fact form part of the estate of Goode, but were the inheritance of his widow ; and they were adjuged to her by a decree of the Court: leaving, of the whole tract purchased by Payue, somewhat less than 100 acres, lying in detached parcels. Payne died shortly afterwards, leaving his bond unpaid ; and this action was brought to recover the sum due after allowing a pro rata abatement of that part of Payne’s purchase which had been adjudged to his wife.</p> <p>On the part of the defendant, witnesses were called, who testified, that the 217 acres were the most valuable part of the tract, and that the detached parcels which remained were of inferior quality, and of little or no value by themselves: And it was contended, that the entire object of the purchase being defeated, the whole contract must be regarded as rescinded.</p> <p>His Honor, the presiding Judge, charged, that as Payne had himself applied for the order of sale, under which he purchased, he must be presumed to have known the state of the title, and ivas bound by his contract; nor was his surety intitled to relief under the civil Jaw rule adopted by our Courts.</p> <p>The jury found for the plaintiff; and the defendant now moved to set aside their verdict, and for a new trial, on the following grounds.</p> <p>1. That (he entire object of the purchase having been defeated, the contract of sale must be regarded as at end, and the consideration of the bond had therefore wholly failed.</p> <p>2. That if the contract was not rescinded, there ought to be more than a pro rata abatement, as the land which remained was of inferior value to that which was taken away.</p> <p>3. That his Honor was mistaken in treating this as a case under the civil law doctrine of implied warranty, which he was unwilling to extend; it being a clear case of a contract made under a mistake as to fact, and which was therefore voidable without reference to the civil law rule.</p> <p>4. That the verdict was contrary to law and the evidence.</p>

<p>The declaration alleged an undertaking to pay in one and two years from the date of the agreement; the contract proved was to pay in one and two years from the time of completing the work. Held, that the variance was fatal; and that plaintiff could not recover on an indebitatus count, for work done according to the terms of the agreement.</p> <p>If the defendant’s agreement is to pay by instalments, the plaintiff cannot, it seems, recover on a common count for work and labour, but must declare specially.</p> <p>The copy of the contract filed with the declaration will not aid a variance from the terms of the contract in the allegations of the declaration.</p> <p>The allowance of amendments is in a great measure a matter of discretion; but a motion to amend comes too late after nonsuit granted for the variance.</p>

<p>Before Mr. Justice Gaillard, at Chester, Fall Term, 1828.</p> <p>Tins was a rule upon the sheriff to show cause, why the proceeds of certain slaves, levied on and sold as the property of the defendant M‘Daniel, should not be paid over to the plaintiff’s execution. There were executions against the same defendant duly entered in the sheriff’s office prior to the plaintiff’s; but a preference was claimed for the latter under the following circumstances. The defendant Cornwell, whose liability to the plaintiff’s debt was that of a surety for his co-defendant, had pointed out the slaves in question as subject to M'Daniel’s debts, and had required the sheriff to levy on them ; but as they were claimed by Mrs. M'Daniel, the sheriff refused to make the levy unless he were indemnified. Of this Cornwell gave written notice to the plaintiffs in the senior executions, informing them, that if they would not enter into an indemnity to the sheriff, he would ; but in that event should claim to have the proceeds applied to the satisfaction of Adair’s execution, in discharge of his own liability. The senior creditors declined interfering, and Cornwell indemnified the sheriff, who, in consequence thereof, levied on the slaves, and sold them under Adair’s execution. Mrs. M‘DanieI immediately commenced an action against the sheriff for the value of the slaves, which action Cornwell defended ; and the suit was still pending. The plaintiffs in the senior executions also claimed the proceeds of the sale, and the sheriff refused to apply them to the satisfaction of Adair’s execution ; whereupon this rule was granted on the application of Cornwell.</p> <p>The presiding Judge discharged the rule ; and a motion was now made to reverse his decision, and to make the rule absolute.</p>

<p>A Judge of the Supreme Court of the United States, although an inhabitant of this State, and the owner of slaves, is not bound to the performance of patrol duty, personally, or by substitute. Colcock, J. dissenting.</p>

<p>Where judgment was confessed by one of two obligors of a bond, within five years after it became due, but no proceedings were had on the judgment for fourteen years, and more than twenty years had elapsed from the time when the bond was payable; held, that the jury might presume payment in an action against the co-obligor.</p>

<p>The acknowledgement in a bill of lading, that the goods were shipped “ in good order and well' conditioned,” is conclusive against the master and owner, as to the external order and condition of the goods at the time of the shipment, unless there be evidence of fraud, or mistake.</p>

<p>Tried before Mr. Justice Gantt, at Charleston, January Term, 1829.</p> <p>This was an action of assumpsit by a factor against his principal, to recover a sum of money paid by him, under an award, for damages sustained by a breach of the implied warranty of quality in a sale of cotton belonging to the principal. The facts of the case are so fully developed in the opinion delivered by the Court of Appeals, as to supersede the necessity of any detail of them in this place.</p> <p>The jury, under the charge of the presiding Judge, found for the defendant: and the plaintiff moved to set aside their verdict, on the ground of misdirection in various particulars.</p>

Tried before the Recorder, in the City Court of Charleston, at November Term, 1828. Held: that it was unnecessary in this case to plead the coverture in abatement ; for it went, not merely to exempt the defendant from liability to be sued, but to defeat the very ground of the action : nor was it necessary to plead it specially in bar; for the bond of a feme-covert was void ab initio, and whatever showed the bond to be…

<p>íf the only resident member of a copartnership give notice, pursuant to the-attachment act, that he is about to depart from the State, and is ready to am swer any suit that shall be brought against him, the property of the firm cannot be attached after his departure, for a debt due by the partnership previous to the notice; although the notice was in the name of the individual partner only, and did not specify that it related to the debts of the copartner-, ship.</p> <p>Vide act of1 1744, sec. 9, P, L. 189.</p> <p>Fife <&rC«. Clarke,3M‘©. 347.</p>

<p>The costs of a judgment rendered subsequently to the 1st of March, 1828, when the fee bill of 1827 went into operation, must be taxed at the rates prescribed by that bill, although they were incurred whilst the fee bill of 1791 was in force.</p> <p>If joint defendants, who sever in pleading, join many matter involving costs, as subpoenas, commissions, &c., and the plaintiff recover against one or more of them, those of them who are successful cannot tax such costs against him.</p> <p>Costs cannot be taxed for special matter and argument on motions for continuance.</p> <p>Costs cannot be taxed for the attendance of a witness without proof, that he was duly subpmnaed, and íequires to be paid for his attendance. The affidavit of the witness himself is the highest evidence both of his attendance, and his intention to charge for it; and can never be dispensed with, if he is living at the time of the taxation.</p> <p>Fide 4 M‘C. 491.</p> <p>Acts of 1827, p, 58,</p>

<p>Costs may be taxed for special matter and argument on the execution of awrit of inquiry, if an argument was rendered necessary ih consequence of a de-fence made, or objection raised by the defendant.</p> <p>Acts of 1827 p' 55‘</p>

Tried before Mr. Justice Huger, at Charleston, May Term, 1827. • Trespass to try title. The defendants proved possession for more than the statutory period of limitation; and contended, that although one of the plaintiffs was a minor, the statute was a bar to the other, whose rights were vested in defendants by virtue of their possession: and being thus tenants in common with the infant, the latter could not maintain an action at law against them.

<p>Although the defendant in trover have a lien on the goods in dispute; if he did not give notice of his lien when the goods were demanded of him, but re. fused to deliver them on another ground, the plaintiff need not prove a tender of the amount of the lien.</p> <p>So a refusal to deliver on demand-is sufficient evidence of conversion, although the plaintiff did not disclose his right to malte the demand; if the defendant did not question his authority at the time, but insisted upon a distinct and. independent right in himself to detain the goods.</p> <p>An assignment in trust for creditors, executed in New-York, takes effect from its delivery there, and is intitled to precedence of a subsequent attachment leviedin this State. Vide Greene ® Mo wry, 2 Bailey, 163.</p> <p>One intitled to goods which are attached in the hands of a third person as the property of au absent debtor, is not hound, after the plaintiff in attachment has abandoned the suit, to come in and contest his title with the garnishee under the proceedings in attachment: nor is his title affected by any order or judgment obtained by the garnishee under the proceedings in attachment, to which he was not a party.</p>

<p>An agent is a competent witness to prove his agency. The objection goes to his credibility, and is a question for the jury.</p> <p>The defendants refused to pay over to plaintiff a sum of money had and received to his use, unless he would release a suit then depending against them for a distinct matter. Held, that plaintiff was intitled to recover interest from the time of the demand.</p>

<p>The non-payment of a sum of money, ascertained by a decree of the ordinary to be due by an administrator to an infant distributee, who has no guardian, but sues by prochein amy, is not a sufficient breach to sustaiffian action on the administration bond.</p> <p>No one but a guardian, properly constituted, is intitled to receive moneys due to an infant.</p> <p>An appeal will lie from the ordinary to the Court of Common Pleas, for error of law in the settlement of accounts, as well as in other cases. But in all cases, except where the execution of a will is involved, in which on appeal the case is heard de novo, appeals must be brought up from the ordinary in the same manner as from other Courts, from which appeals are allowed. The opinion of the Court on this subject, in Wallis v. Gill, 3 M‘C. 475, reviewed and reconsidered, by Nott, J.</p> <p>1 Faust, 213.</p> <p>p L. 493.</p>

Tried before the Recorder in the City Court of Charleston, at July Term, 1828. Summary process for money had and received by the defendant to the use of the plaintiff, as administrator of the estate of Martha Mackey, deceased. The defendant relied upon a written notice from the ordinary, not to pay over the money in question to the plaintiff: which notice was given under the following circumstances.

<p>No appeal lies from an order made by a Judge in chambers, for the discharge of an apprentice from his indentures, in pursuance of the authority specially delegated by the act of 1740.</p> <p>An appeal is not to be allowed from an inferior, or special tribunal, except in cases where it is expressly granted by law.</p>

<p>A bond to the colonel of a regiment of militia, entered into by the collector of fines, to secure the faithful performance of the duties of his appointment, is valid and binding on himself and sureties, although such bond is not required by law.</p> <p>A bond is not void merely because it is voluntary; nor isa voluntary bond void, because the condition is for the faithful performance of the obligor’s duty to the public. There is nothing unlawful in requiring a person to do his duty.</p> <p>An officer having authority to appoint an agent for the performance of public duties, may require a bond for their faithful performance, although not directed so to do by law; and may impose any terms, not inconsistent with the duties of the appointment, as a condition of granting it. Aliter, where the agent has an independent right to the appointment, and the authority of the officer extends only to issuiug the commission. Vide United States v. Tingey, 5 Peters, 115.</p> <p>Where an officer is required by law to call an agent for receiving public moneys to account, it is no objection to a bond taken by him to secure the the faithful performance of the duties of the agent, that the penalty is payable to himself, although he is not intitled to receive the moneys which may come to the hands of the agent.</p> <p>Abr. 414.</p> <p>1 Faust, 819.</p>

Before Mr. Justice Richardson, at York, Spring Term, 1829. . This was an application for a mandamus, to the managers of elections for the district of York, to receive the vote of the relator, John Marsh. The managers showed for cause against the the application, that the relator was an indian of the Pamunki tribe of Virginia.

<p>Oil an agreement for the sale of land, the purchaser gave his note for the purchase money, payable by instalments at certain fixed periods, and the vendor agreed in writing to make titles to the purchaser, but no time was specified within which titles were to be delivered. Held, that the contracts of the parlies were mutual and independent, and that in an action upon the note, it was not necessary to prove a tender of titles.</p> <p>An outstanding title in third persons is no defence to an action upon a promissory note for the purchase money of land, unless it be a subsisting title, such as will deprive the party of the benefit of his purchase: It will not avail where the purchaser has gone into possession, and has a good equitable title.</p> <p>A defect in the title of the vendor cannot be set up as a discount in an action upon a promissory note for the purchase money of land, whilst the purchaser remains in possession under his purchase: Nor will a Court of Law entertain cognizance of such a defence in any case, where it cannot do equal justice to both parties. Vide Bordeaux v. Cave, and Westbrook v. M‘-Millan, post.</p>

<p>Before Mr. Justice G-aillard, at Union, Fall Term, 1828.</p> <p>This was a rule upon the plaintiff, to show cause why satisfaction should not he entered on the judgment in this case: and, in support of the rule, the defendant produced a receipt from Bates, late sheriff of Union District, of a sum more than sufficient to satisfy the plaintiff’s debt and costs. The plaintiff showed for cause, that he had not received any part of either the debt or costs; and the presiding Judge discharged the rule. The defendant now moved to reverse that decision, as contrary to law.</p>

Tried before Mr. Justice Richardson, at Union, Spring Term, 1829. originally the property of plaintiff’s testator, and of which the defendant came into possession under the following circumstances.

Tried before Mr. Justice Richardson, at Spartanburgh, Fall Term, 1828.

Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1829. The conversion was proved, and the title was the only point in dispute : but on this head much evidence was introduced, and various questions made; all of which so fully appear in the opinion delivered by the Court of Appeals, as to, supersede the necessity of any detail in this place.

Tried before Mr. Justice Gailxard, at- Fairfield, Fall Term, 1828. This was an action of trespass for breaking and entering the plaintiffs’ close, and taking and ’carrying away certain slaves, the property of the plaintiffs. A great deal of evidence was introduced at the trial, and a variety of questions made, which, under the disposition made of the case by the Court of Appeals, it is unnecessary to specify.

Tried before Mr. Justice Huger, at Newberry, Spring Term, 1829. Summary process for money had and received, brought to recover the value of a bale of cotton sold by the defendant under the following circumstances. The cotton belonged originally to one Smith, against whom the plaintiff had recovered judgment to a large amount, and had duly entered his fi. fa. in the sheriff’s office.

Tried before Mr. Justice Richardson, at Laurens, Spring Term, 1828. This was a scire facias on a bail bond, against the defendant as bail of William Bowen, “ in an action of debt,” at the suit of the present plaintiffs.

<p>Tried before Mr. Justice Q’Neall, at Barnwell, Spring Term., 1829.</p> <p>This was an action of assumpsit upon a promissory note, payable to plaintiff’s testator. The defence relied on was, that the note had been given for the purchase money of a tract of laud, the title to which was defective.</p> <p>The defendant proved, that about the date of the note, he purchased a tract of land from the testator, at a price corresponding with the aggregate amount of this and two other notes of the same date, which were also now in suit. But no conveyance was produced ; nor was there any evidence of the terms of the contract, except as to the price. He then gave in evidence the copy of an original grant to Daniel Bordeaux and Robert M'Lewrath, dated in May, 1786, covering the tract purchased by the defendant: and proved that Daniel Bordeaux died, leaving two children, Isaac Bordeaux, the plaintiffs’ testator, and Mrs. Juhan, who had also died, leaving her husband, Alexander Juhan, and several children, some of whom were still minors, surviving her: that Robert M'Lewrath died in 1793, .leaving several children, some of whom were minors: and that ....... , there was a continued series ot minorities among the persons iutitled to distribution of his estate, from his death to the. trial of this action. '</p> <p>In reply it was proved, that the defendant had been in receipt of the rents and profits of the land from the date of his purchase in 1820; and that he had remained in undisturbed possession of the land to the present time.</p> <p>The plaintiffs then gave in evidence a deed from the sheriff of Barnwell District to Alexander Juhan, dated in 1803, conveying Robert M‘ Lewrath’s moietv of several large tracts of land, which h i ! been held by him in common with Daniel Bordeaux, among vt inch was included the tract, of which the laud purchased by defendant was a part. The deed recited a judgment in the Court of Common Pleas for Orangeburgh against the administratrix of M'Lewrath, execution issued thereon, and a regular levy and sale: but neither the judgment nor execution were produced. The execution of the deed, however, was fully proved. The plaintiffs also introduced the record of certain proceedings in the Court of Equity for Barnwell District, on a bill filed by the heirs at law of Robert M‘Lewrath, against Juhan and the heirs at law of Daniel Bordeaux, in which, amongst other things, the title to the lands held in common by Daniel Bordeaux and Robert M'Lewrath had been drawn in question. And it was admitted, that the bill had been dismissed by the Court of Equity, and the decree of dismissal affirmed by the Court of Appeals; but neither of the decrees were produced. The Commissioner in Equity testified, that the decrees were not to be found in his office; the Circuit decree having, he believed, been forwarded to the Court of Appeals by his predecessor, and not returned, and the decree of the latter Court never having been filed in his office.</p> <p>The plaintiffs then introduced the minutes of the Court of Common Pleas for Barnwell District, in which appeared the entries of two orders made in a cause, in which Daniel Bordeaux was styled plaintiff, and Alexander Juhan defendant. The first of these orders was entered at spring term, 1804, and directed a writ of partition to issue to certain commissioners therein named, to make partition of “ the lands in question,” between the plaintiff and defendant, and ordering the commissioners to return their proceedings at the next term. The second order, which was made at the succediitg term, was a confirmation of the return “ made by the commissioners,” declaring the same final and conclusive, between the parties. The clerk of the Court was examined, and testified that he had made due search in his office for the return of the commissioners above mentioned, but had not been able to find it.</p> <p>The plaintiffs then proved that Alexander Juhan had for many years been in possesion of that portion of the Bordeaux and M‘Lewrath lands, in which the tract purchased by the defendant was comprised ; and had always been reputed the owner of that part, until the claim, set up within a few years past, by the heirs at law of Robert M‘Lewrath.</p> <p>Alexander Juhan was tendered as a witness to prove, that the salé to defendant, as well as other sales of different portions of the same lands, had been made by Isaac Bordeaux with his acquiescence, and in pursuance of an arrangement between them ; and that he had frequently offered to defendant to confirm his title. His competency was objected to on the ground, that he had become security for costs in this case for one of the plaintiffs, who was absent from the State, and was therefore directly interested in the event of the suit. The objection was sustained, and the witness excluded.</p> <p>insisted that he was intitled to a verdict, notwithstanding the evidence adduced. There had been no sufficient evidence to divest the title of the heirs at law of. either of the original grantees. The sheriff’s title was unavailing, unless there was a judgment and execution to authorize a sale by him ; and neither judgment nor execution had been produced, nor had even a ground been made for the admission of secondary evidence of their existence: for there was no proof, that search had been made for them in the proper place. Admitting, however, that the heirs of M‘Lewrath were out of the question, still the title of Mrs. Juhan’s minor children was unimpeached; the statute of limitations did not affect their right, and their disability not only protected themselves, but also protected those of full age, who held in common with them. It was said there had" been a partition, but it did not appear that it was a partition of any lands now in question; still less did it appear, that Juhan had, by the partition, acquired a title in severalty to the tract purchased by defendant. For aught that appeared the title of' the minors to that tract still subsisted ; and the defendant, after paying his money, might be compelled to give up the land, and account for the rents and profits to the real owners. This the law would not force him to do, and by the well settled doctrine of our Courts, he had a right to refuse payment of his note.</p> <p>contended that the evidence, although not sufficient to sustain an action of tresspass to try title, was nevertheless amply so to intitle the plaintiffs to a verdict in the present action. At common law, a purchaser could not set up a title in a third person, until lie bad been evicted. Our Courts had departed from the ancient rule, and in doing so had introduced greater mischiefs than they had endeavoured to avoid. This had been at last discovered, and the Courts had for some time evinced a disposition to restore the old rule. It was now settled, that it was not sufficient to show, that the seller’s title was defective, but the purchaser must prove an absolute good title in some third person, by which his own possession was likely to be affected. Hood v. Huff, 2 Mill, 159. It was not therefore incumbent on the seller to prove a good title in himself, but it was enough if he could throw sufficient doubt upon the title set up by the purchaser, to make it apparent that no danger to his possession was really apprehended from that quarter. This rule was just and reasonable. The purchaser of hind ought in common prudence to examine the title before he makes his contract: and if lie does not, or wilfully buys a bad title, then it is neither just nor reasonable, that he should be allowed to complain of it, whilst he remains in possession of the land, and enjoys its fruits; unless he can show a very substantial ground for apprehending that he may be deprived of his possession. Besides, a defence of this kind most generally takes a plaintiff by surprise, of which this very case was an illustration. This action had been tied up, for several years after its commencement, .by an injunction granted in the equity suit between the heirs of M‘Lewrath and Bordeaux; which was always understood to involve the only defence to the present action, and to be conclusive of its fate. It was never surmised, that there was any other defence to this note, than a supposed title in the heirs of M'Lewrath ; which was the principal subject of contest in that suit. And yet when that defence had been overthrown by the decree; the claim of the M'Lewraths, after the fullest investigation, utterly rejected; their bill dismissed, and the injunction dissolved ; and the plaintiffs might reasonably have expected to take a verdict, as a matter of course ; they were suddenly called upon to fight over the whole battle again ; to prove that, which had already been most fully proved ; and, at a moment’s warning, to make out a title with just such evidence as happened to be within reach, without time for searching up old records, or supplying secondary evidence of such as might be mislaid.</p> <p>Now what was the evidence ? The defendant proves a grant of the land fifty years old, and rests his defence on this bald title, after proving a continued chain of minorities among the heirs at law of the grantees, so as to guard against the operation of the statute of limitations. To meet this defence, the plaintiffs divest the title of one of the grantees, by a conveyance from the sheriff to Alexander Juhan, who offers, in open Court, to confirm the defendant’s title; and whose title was barred by the statute of limitations independently of any confirmation. It is true, that neither the judgment nor execution were produced, but that did not remove the doubt thrown upon the title set up by defendant : since it was far easier to account for the loss of an old record, than for the existence of a sheriff’s deed, which had been acquiesced in for nearly thirty years, if there had been no judgment to warrant it. Besides the dismissal of the bill filed by the heirs of M'Lewrath was a strong circumstance to show that they had no title; although the decree having been mislaid, the grounds of it were not precisely known. The plaintiffs next prove, by the highest evidence, that there had been a partition of lands between Bordeaux and Juhan ; and although it did not appear distinctly, that this partition was of the lands mentioned in the grant, or that the traetsold to the defendanthad been allotted to Juhan ; yet all the presumptions were in favor of that conclusion, and there could not be a moral doubt on the mind of any one, that such was the fact. But yet, notwithstanding all this, the jury were called upon to say, by their verdict, that the defendant holds by a title so precarious, and the danger to his possession is so palpable and imminent, that in common justice he ought not to be compelled to pay for the land ; although he has had undisturbed possession of it for nearly ten years, and has,, most probably, consumed all the timber found upon it that was valuable, and even exhausted the soil itself.</p> <p>If the title were in Juhan, a verdict for the defendant would give the latter both the land, and the money he had agreed to pay for it. The jury could not restore the land, nor compel the defendant to account for the rents and profits : and he had acquired a title by possession against Juhan, who could have no relief from any Court. On the other hand, a verdict for the plaintiffs could work no injustice to the defendant. It would simply establish against him the contract, which it is both proved and admitted that he entered into ; leaving him at full liberty to avail himself of' any defence to which he is in right and conscience intitled, by an application to the Court of Equity, where the whole matter might be deliberately investigated, and equal justice done to both parties.</p> <p>There was one view of this case, however, which was conclusive for the plaintiffs. It was proved that the defendant had purchased land from the testator, and it might be, that this note was given for the purchase money; but it was not proved that the land had been sold with warranty of title. The conveyance was not produced ; and it was quite possible that the testator had sold only his own right, title, and interest, whatever that was; or, and that was most probably the truth of the matter, he had simply agreed to procure a title to be executed by Juhan. It was incumbent on the defendant to produce the deed. He could not at the same time withhold it, and insist upon a presumption of its contents in his favour. If there was no warranty of title express or implied, then a want of title was no defence, and the plaintiffs must have a verdict.</p> <p>Tiie Presiding Judge charged the jury, that theevidence was sufficient, in his opinion, to authorize the conclusion, that the note had been given for the price of the land ; but that the defendant had failed to establish the existence of a paramount outstanding title, so far as the heirs of M‘ Lewrath were concerned. The sheriff’s deed had conveyed all his interest to Juhan: and although the proof of title under that deed was defective, inasmuch as neither the judgment nor the execution had been produced ; yet after an acquiescence by all the parties interested for nearly thirty years, the existence of both might be presumed, particularly in the present action, where the plaintiffs were not required to prove a good title, but the defendant himself was under the necessity of showing a better title in third persons. That if the title were in Juhan, it could not be questioned, that the defendant’s possession was safe; but there had been no sufficient evidence to divest the title of Mrs. Julian’s heirs to one fourth of the land contained in the grant. It might be that Juhan had a good title to the whole : but it had not been made out, even prima fa-cie. Courts of justice could not act upon mere conjectures, however probable; but every legal presumption must be based on facts, which lead, if not necessarily, yet with at least reasonable certainty, to the inference suggested. The evidence in this case could hardly be said to raise the. probabilities in favour of a complete title in Juhan higher, than to exhibit the inadequacy of Court of Law to administer equal justice to both parties; and to induce a regret, that the jurisdiction of this sort of defence to a legal demand had not been left altogether to its appropriate tribunal, the Court of Equity. His Honor left it to the jury to determine, whether, under the circumstances, the defendant was justly intitled to a rescission of the whole contract; or otdy to a discount for the value of so much of the iand, as appeared to be still liable to the claim of Mrs. Juhan’s heirs.</p> <p>The jury found for the defendant, generally ; and the plaintiffs moved to set aside, their verdict, and for a new trial, on the grounds taken on the circuit.</p>

<p>Where a purchaser of laud has gone into possession, and been in receipt of the rents and profits, he cannot set up a defect in the title of the vendor ás a defence to an action upon a note for the purchase money; although it be such as to affect the whole title, and to intitle the purchaser to a rescission of the contract. As a Court of Law cannot do equal justice to both parties, nor place them in statu quo, it will not interfere, but leave the purchaser to his remedy in Equity. Vide, Carter ». Carter, ante, p. 217, and Bordeaux i>. Cave, ante, p. 249.</p>

Tried before Mr. Justice O’Neall, at Columbia, Spring Term, 1829. This was an action of assumpsit; the defence to which was, first, payment; secondly, a discount exceeding the plaintiff’s demand. When the evidence had closed, the plaintiff moved for leave to discontinue; which was opposed by the defendant on the ground, that her discount having been established by the er-idence, she was infilled, under the act of 1759, to a verdict for the excess.

Tried before Mr. Justice O’Neall at Columbia, Spring Term, 1829. This was a rule on the coroner, to shew cause why he had not returned the writ in this case.

<p>Tried before Mr. Justice O'Neall, at Columbia, Spring Term, 1829.</p> <p>This was an action of assumpsit, upon a promissory note, for $300, due the 1st Jan. 1824. The defence,relied on was payment. In support of which, the defendants gave in evidence a receipt for $150, on account of this note, dated 19th Dec. 1824, and signed by Col. Eldred Simkins, who was admitted to have been the attorney of plaintiff; and another receipt, also signed by him, which was as follows.</p> <p>“ Cartwright v. Nagel.</p> <p>Marshall v. Same.</p> <p>23d. Dec. 1825. Received of Augustus G. Nagel two hundred and seven dollars 87 cents, on account of the foregoing eases. The costs subject to a further settlement.</p> <p>Eldred Simkins, Sen.”</p> <p>It was.proved,' that subsequent to the date of the last receipt, in a conversation between Col. Simkins and the defendant Nagel, the latter admitted that there was still a balance due on the note, although he differed from the former as to the amount of that balance.</p> <p>No evidence was adduced by either party as to the nature or amount of the debt to Cartwright, which is referred to in the receipt.</p> <p>The presiding Judge instructed the jury, that in the absence of all other means of doing justice between the parties, they might apply one half of the sum mentioned in the receipt, to the payment of the note now in suit, and find a verdict for the residue. Or, if they could discover any thing in the evidence to satisfy them that the debt was fully paid, they might find for the defendants.</p> <p>The jury found-for the defendants generally ; and the plaintiff moved to.set aside their verdict as contrary to law and the evidence.</p>

Tried before Mr. Justice Nott, at Sinister, Fall Term, 1829. This was an indictment, under the act of 1817, for trading with a slave without a ticket. The only witness for the prosecution was Reuben Scott, a brother of the defendant; and a witness was introduced for the defence, to impeach his credit. The jury, however, found the defendant guilty.

<p>When commissioners for the admeasurement of dower assess a sum of money to be paid in lieu of dower, they must return the appivised value of the land, as well as the sum assessed, in order that the Court may know the basis of their assessment, vide M'Creary v. Cloud, 2 Bailey, 343.</p> <p>In this State it has been usual to assess one sixth of the value of the entire fee, as equivalent to the widow’s estate for life in one third of the land; and, as a general rule, the same proportion should always be adhered to in the assessment of dower, except in extreme cases, of youth on the one hand, or of age and infirmity on the other.</p> <p>At common law no damages were allowed on a judgment'in dower ; nor can interest be now recovered in a Court of Law, on a sum of money assessed in lieu of dower, where the husband died seized. The acts of 1824 and 1825, giving interest on the assessment, are confined to cases where the husband aliened during coverture, vide Heyward ». Cuthbert, 1 M‘C. 38G. M'Creaiy v. Cloud, 2 Bailey, 343. S. P.*</p> <p>It seems, that where the husband died seized, the value of the land, at the time of his death, is the proper basis for an assessment of the widow’s dower.</p> <p>Act of 1786. P. JL. 409. .</p> <p>Acts of 1824, p. 24. and of 1825, p. 20.</p>

Before Mr. Justice Richardson, at Kershaw, Fall Terift, 1829. The defendant, at Spring Term, 1821, was convicted under the act of 1754, of stealing a slave, and received sentence of death ; but was pardoned by Governor Bennett, on condition that he would remain in close confinement in the, gaol of Ker-shaw District, until the 1st of January, 1823, and would then, within fifteen days, leave the State, and never return to it.

<p>This was a motion to reverse, the decision of Mr. Justice Richardson, at Sumter, Fall Term, 1829, on an application for the discharge of the defendant. The circumstances under which the application was made, and the grounds on which it was urged, sufficiently appear in the opinion delivered by the Court of Appeals.</p>

<p>In an action of debt, on a sealed note, the plaintiff declared as “ indorsee,” instead of styling himself, “assignee” of the'payee, as directed by the act of 1798. Held to be no ground for a nonsuit, but that defendant should have demurred specially.</p> <p>An indorsement by the payee of a sealed note, in these words, “I guarantee the payment of the within note to P. M., for value received.” held a sufficient assignment to enable P. M. to maintain an action against the maker, in his own name, under the act of 1798.</p> <p>Vide 2 Faust ^4-</p>

<p>Before Mr. Justice Gantt, at Columbia, Fall Term, 1829.</p> <p>The plaintiff sued out a writ of foreign attachment against the defendant, returnable to Fall Term, 1827, and a copy was duly served on Peter M’Bonnell, as garnishee. At the fifth term the plaintiff obtained judgment against the absent debtor, and moved for leave to enter up judgment by default against the garnishee, who had failed to make a return: the presiding Judge, however, permitted the. return of the garnishee, to be then filed, and the plaintiff’s motion was refused. No reason was assigned for the. return’s not having been made in time, except that the. garnishee was ignorant that a return was necessary.</p> <p>The plaintiff now moved to rescind the order, allowing the return of the garnishee to be filed ; and renewed his motion for leave to enter up judgment by default.</p> <p>cited the cases of Greagh v. Delane, 1 N.& M. 189, Durant v. Staggers, 2 id. 488, Foster v. Jones, 1 M’C. 116, Richardson v. Whitfield, lb. 403, and Gracy v. Coates, 2 Id. 224.</p>

Tried before Mr. Justice Gantt, at Columbia, Fall Term, 1829. TRESPASS for breaking plaintiffs’ close, and cutting and carrying away a crop of rye and oats there growing. The presiding Judge ordered a nonsuit, the grounds of which, as well as ■ the facts in evidence, sufficiently appear iu the opinion delivered by the Court of Appeals. The plaintiff now moved to set aside the nonsuit.

<p>Tried before Mr. Justice Gantt, at Columbia, Fall Term, 1829.</p> <p>The cause of action and the defence relied on in this case are sufficiently set forth, at. page 266, ante, in the. report of an appeal from a verdict for the defendant at a former trial. At the present trial, Col, Simkins was introduced as a witness for the plaintiff, and testified, that the defendant Nagel agreed, at the time when the money mentioned in the receipt was pa'id by him, that it should be applied in the first place to extinguish Cartwright’s execution; and that the residue only was to be applied to plaintiff’s note. The competency of this witness, was objected to on the ground, that he was not admissible to contradict his own receipt; but the objection was overruled by the Court.</p> <p>¶/he defendant’s counsel then proposed to execute a release from the defendant Thompson to his co-defendant Nagel, and to withdraw the plea of the latter, and then to examine him as a witness. The presiding Judge held that he would not be .competent even under these circumstances.</p> <p>The jury found for the plaintiff, allowing the defendants credit for no more of the sum mentioned in the receipt, than re-j»ained after satisfying Cartwright’s execution.</p> <p>The defendants now moved to set aside the verdict, and for a new trial, on the grounds : 1. That the evidence of Col. Sim-kins was incompetent, and should have been excluded : 2. That the execution of the release, and the withdrawal of his plea, rendered Nagel a competent witness, and he should have been examined.</p>

<p>la an indictment for horse-stealing, the property may be laid in one who had merely the lawful possession.</p>

<p>Tried before Mr. Justice 0‘Neall, at Laurens, Fall Term, 1829.</p> <p>This was a summons in dower, to recover the wife’s dower of lands of which her first husband, Joel Wins, had been seized in his life tune, and which were. now in possession of the defendant. The defendant pleaded n'unques seisie que dower ; Trun-ques decouples en loyale matrimonie ; and that the wife had (doped, and lived in adultery during the life of the husband. On all of which pleas issue was taken.</p> <p>At the trial, the marriage, seisin of the husband, and his death, were fully proved, and the only question was upon the third’ issue. It appeared in evidence, that the wife was compelled by the ill treatment of her husband to fly from his house ; but that lie afterwards, and frequently, solicited her to return and live with him ; which she refused to do, saying that she never had liked him. A year or two afterwards he married a second wife, and she then married onti Graham, with whom she lived and cohabited during the life of her first, husband ; and after the death of both of them, married her present husband.</p> <p>The presiding Judge was of opinion that the wife was barred of her dower. By the St. Westm. 2. 13 Edw. l.c. 34. “if a wife willingly leave her husband, and go away, and continue with her advouterer, she shall be barred forever of ucth./i w demand her dower, that she ought to have of her husband’s lands, if she be convict thereupon, except that her husband willingly, and without coercion of the Church, reconcile her, and suffer her to dwell with him ; in which case- she shall be restored to her action.” And this statute having been expressly made of force in this ^tate, P. L. 30. the only question was, whether the de-mandant in this case came within its operation.</p> <p>Ill-treatment will justify the wife’s leaving her husband,- and, in this State, alimony will be decreed to her, by the Court of Equity: but if the husband offer to take her back, and give sufficient assurance of his treating her kindly, she is bound to return ; and if she refuse to do so, because “ she never liked him,” she would certainly lose her alimony. The refusal to return, when no good reason exists for it, goes far to shew, that the original separation was not altogether involuntary, and did not originate entirely in necessity. It was clear upon authority, ho wever, that although the elopement of the wife was not voluntary, hut her departure had even been compulsory, yet if she voluntarily remain with her adulterer, when the husband is willing to take her back, she is barred by the statute.</p> <p>Thus it is laid down, in 2 Bac. Abr. 384, Dower. F.- “Although she does not go away sponte sua, but is taken against her will, yet if after she consents and remains with the adul terer, she shall lose her dower; for the remaining with him without reconciliation is the bar of dower, and not the manner of her going away.”</p> <p>And again, on the same page. “ If a woman be ravished, and remain with the ravisher against her will, she shall not lose her dower ; but if after such ravishment she consent to remain with him, she shall lose it: so if she voluntarily go away from her husband, though she remain all her life time with the adulterer against her will, or if she remain not with him, but he turn her away, yet shall she lose her dower.”</p> <p>And in a subsequent passage. “If a man grants his wife with her goods to another, and she lives with the grantee all the life lime of the husband, yet she shall lose her dower, by reason of liviug with him in adultery. And where such grant was pleaded, it was holden. 1st, That the grant was void. 2d, That it did not amount to a licence; or if it did, that it was void. And, 3d, That after the elopement there shall be no averment admitted quódnonfuit adulterium, though the grantee and the woman married after the husband’s death.”</p> <p>In the present case the wife had cohabited with Graham during the life time of her husband ; and it was not the Jess adultery, that she had gone through the ceremony of marriage with him. She could not be lawfully married, and her cohabitation with him was living in adultery, and she was, therefore, barred of dower.</p> <p>The jury found for the defendant, and the demandants moved to set aside their verdict on the ground of misdirection.</p>

<p>A salef to an infant, by a person of full age, divests the title of the latter; nor will bis retaining, or afterwards coming into possession of the property, as guardian of the infant, authorize him to rescind the sale.</p> <p>The property of a defendant, who has come of age. may be levied on whilst it remains in the possession of bis guardian: if the latter has any claims upon the property, for advances to his ward, his remedy is in Equity.</p>

Tried before Mr. Justice O’Neall, at Greenville, Fall Term, 1829. This was an action of assumpsit upon a promissory note for $1750, drawn by James L. M’Kinney in favor of the defendant, or bearer, and indorsed by him to plaintiffs. The note was payable on the 18th September, 1826, and was negotiated tor plaintiffs a short time afterwards, to wit, on the 10th October, in the same year.

<p>Tried before Mr. Justice O’Neall, at Newberry, Fall Term, 1829.</p> <p>This was an indictment for stealing a bale of cotton. It was proved, that a bale of cotton, the property of Edmund Kelly, the prosecutor, had been taken, privately, and without his knov/ledge, or consent, from a gin house in Newberry District, on. Wednesday, the 31st December, 1828. It was not missed, however, until the Friday following, when search was imtnedi-tely made, and on Sunday morning, at a short distance from the public road, a wagon track was discovered, which being followed up, led to a place in the woods, where a bale of cotton appeared to have been unpacked, and loaded again into the wagon. On Monday the pursuit was commenced, and the wagon, which was distinguishable by the shape of the tire, was traced to the residence of the-defendant, in Spartanburgh District. On approaching his residence, the party in pursuit, observed him in his field,- and went up to him, and stated their business. He immediately led them to a warehouse near the road, and exhibited a parcel of cotton in bulk, which had evidently been packed, and which Kelly, the prosecutor, believed to be his own. There was some evidence of the defendant’s having been seen on the road, on the 31st December, 1828, going in the direction of the place from which the cotton was stolen ; and again, on the next day, returning from the same quarter. The jury found him guilty of petit larceny; and he now moved for a new trial, on various grounds, which, with such facts, in addition to the foregoing, as are necessary to a full understanding of the case, will sufficiently appear in the opinion delivered by the Court of Appeals.</p>

<p>Tried before Mr. Justice' O’Neall, at Laurens, Fall Term, 1829.</p> <p>These were actions of debt on the guardianship bond of Charles Pitts, who had been appointed, by the Court of Equity, guardian of the person and estate of Frances Bell, a minor. The defendant in the first case, and the testator of the defendants in the second were sureties to the bond; but, shortly after it had been executed, applied to the Court of Equity to be relieved from further responsibility, and were discharged by an order of that Court. In the mean time, however, Pitts had received $1500, for his ward ; and subsequently to the order of discharge received an additional sum, also the property of his ward. The ward afterwards intermarried with James Wright, who filed a bill in Equity, in the name of himself and wife against Pitts, for an account of his guardianship, and obtained a decree for $2749, including the sums received by Pitts both before and after the discharge of his sureties. Execution was sued out on this decree, and a considerable sum was'made under it by the sale of Pitts’ property; but there still remained due, a large balance, for the recovery of which these actions were brought.</p> <p>The presiding Judge instructed the jury, that under the decision of the Court of Appeals, in the case of Cureton v. Shelton, 3 M’C. 412, the defendants were protected by the order of discharge, from any responsibility for the subsequent acts of their principal; but that they were still liable for the money, which came to his hands before that order was made. That they were intitled, however, to have' a rateable proportion, of the sum made by a sale of Pitts’ property, applied to the credit of their liability. That sum had been made on an execution for an entire debt, for only a part of which the defendants were liable; and there was just as much reason to have the whole applied in exoneration of the sureties, as to have it applied only to that for which they were not liable. The true rule was, that where two have equal claims to a fund, they must take it rateably, and in proportion to their respective demands.</p> <p>The jury found for the plaintiffs, in each case, in accordance with the views of the Court; and the plaintiffs now moved to open the verdicts, and for a new trial, on the ground of misdirection.</p>

<p>Where the donor was indebted at the time of the gift, and retained possession of the property afterwards, using it as his own, and still continuing in debt, up to the period of insolvency, the gift cannot be supported, even against subsequent creditors, without notice ; although the antecedent debts have been paid off, or liquidated by the substitution of securities of a later date, if the actual amount of his debts has not been reduced: nor does it make any difference-, that the donee was the child of the donor, vide M’Elwee v. Sutton, 2 Bailey, 128.</p> <p>Where the donor retains possession after a gift, using the property as his own, the circumstance, that the donee is his child, is in no case sufficient to repel the presumption of fraud, and to support the gift against subsequent creditors, who have trusted him on thefaith of such property, ob. diet.per Nott, J. vide Howard v. Williams, post, contra, sed vide Smith v. Henry, 2 Bailey, 122.</p>

<p>A bond may be avoided by the obligor, by proof that be was so drank, at the time of the execution, as to have been incapable of contracting : but too ready an ear should not be lent to such a defence ; and it should never be all'owed, where the subsequent conduct of the party is such, as to have . the appearance of his having confirmed his contract. If, for instance, l?e does not return what he received as the consideration of his contract, the instant he is restored to his senses, the jury may infer, that he intends it to bo confirmed.</p>

<p>An action cannot be maintained against a guardian, for necessaries furnished to his Ward, except upon his own express contract.</p>

<p>An attorney, who has received the amount of;a nóte left with him for collection by a client, and applied it conformably to his instructions, although the note was not negotiable, and was payable on its face to a third person, and no assignment to the client indorsed, is not liable to the party who was apparently intitled to the note, but of whose actual claim to the money due on it the attorney had no notice, if it appear, that the party himself had , placed., the note in the'hands of the client, with authority to collect it: and it makes no difference, that the attorney was surety for the debts, to which, by the direction of his client, he had applied -the amount collected.</p>

Tried before Mr. Justice Huger, at Spartanburgh, Fall Term., 1829. Debt upon a joint bond. The defendant Lemasters suffered judgment by default. His co-defendant pleaded a former recovery by plaintiff against Lemasters for the same debt, to which the plaintiff demurred.

Tried before Mr. Justice O’Neall, at Chester, extra August Term, 1829. This was an action of trover for a negro girl, the slave of plaintiff’s testator, which had been hired by him to the defendant. The period of hiring expired on the 14th Dec. 1826, as appeared by a note in writing signed by the defendant. The testator died in September, 1826, and the plaintiff, and another, since deceased, were appointed executors of his will, aud duly qualified soon after his decease.

Tried before Mr. Justice Richardson, at Fairñeld, Spring Term, 1829. This was an action of special assumpsit upon a written agreement, by which the defendant contracted to sell to the plaintiff, 30 bales of cotton, to be delivered at the defendant’s gin-house, on the 1st February, 1825 ; and the plaintiff, on his part, stipulated to pay certain specified prices for the cotton, but no time was mentioned for the payment.

<p>Tried before Mr. Justice Huger, at Spartanburgh, Fall Term, 1829.</p> <p>This was an action of assumpsit upon a promissory note, dated in December 1820, and which became due in June 1821. The suit was not commenced until April 1828, and the defendant pleaded the statute of limitations. . The plaintiff replied, that the note was made in Richmond, Virginia, where both the defendant and herself resided at the time, and where she had continued to reside ever since; that, before the note became due, the defendant removed from beyond the limits of the State of Virginia, and that the plaintiff had no notice, of the place of his residence, or that he was residing in this State, until within y(>ars next before the bringing of this action. To this re* • plication the defendant demurred, but the demurrer was over-i Tit ruJetJ by the presiding; Judge, who, however, permitted the de-£.e))(jaut t0 pjeH(j a ri.loase puis darrein continuance. This plea was verified by affidavit, but. the defendant, being unprepared with proof, moved for a continuance, on the ground oí the absence of witnesses. The, presiding Judge refused the motion, and the jury found a verdict for the plaintiff, which the defendant now moved to set aside.</p>

Tried before Mr. Justice Huger, at Fairfield, Fall Term, 1829. The plaintiff in this case intermarried with Samuel S. Taylor, pendente lite, and, at the succeeding term, the defendant moved for leave to plead the coverture in abatement, which the presiding Judge refused. After verdict for plaintiff, the defendant moved for a new trial, upon this, among other grounds.

<p>Where executors, or administrators have pleaded plane administmvit to au action against them for a debt incurred by their testator, or intestate, and the issue on that plea has been found for them, they are not liable for costs, de bonis propriis, although they may have put the plaintiff to proof of his debt by also pleading the general issue, which has been ibund against them.</p> <p>vide Acts of</p>

<p>The costs of a criminal prosecution constitute a mere debt to the officers of the Court, for which the defendant becomes liable upon his conviction ; and although it is made part of his sentence, “that he stand committed until the costs are paid,” he is intitled to the benefit of the insolvent debt- or’s and prison bounds acts, if he is unable to pay them.</p>

Tried before Mr. Justice Bay, at Charleston, October Term, 1829. The indictment charged the defendant, who was a justice of the peace, and one of the quorum for' Charleston District, with being a common barretor; and alleged, in general terms, that “ divers quarrels, strifes, suits, and controversies, among the honest and-quiet citizens of this State,” he, the said defendant “ did move, procure, stir up, and excite, to the evil example, fee.” The defendant pleaded not guilty.

<p>Before Mr. Justice Gantt, at Coosawhatchie, Fall Term, 1829.</p> <p>The defendant, Le Cerf, who was charged with keeping a-disorderly house, had been admitted to bail, and the other defendants became his sureties. He was indicted, tried, and convicted, and sentenced to pay a fine of $500, and to be imprisoned ; but failing to appear, a scire facias was issued upon his recognizance. His sureties returned, on oath, and offered to prove, that they had surrendered their principal to the lawful deputy of the Sheriff, from whom he had escaped.</p> <p>The presiding Judge held the surrender to the deputy insufficient, and ordered the recognizance, to be estreated. A motion was now made to reverse his decision as contrary to law.</p>

Tried before Mr. Justice Gantt, at Coosawhatchie, Fall Term, 1829.- Trespass for false imprisonment. Plea, not guilty. The defendant-offered to prove, that he was a constable, and had arrested and detained the plaintiff by virtue of a legal warrant. This evidence was objected to, as inadmissible under the general issue; and that the justification ought» to have been pleaded specially.

Tried before Mr. Justice Colcock, at Georgetown, Fall Term, 1829. This was an action of assumpsit upon two promissory notes, drawn by Solomon Cohen, and indorsed by defendant’s intestate ; one' of them for $2,800, dated 24th April, 1826; the other for $1,350, dated 26th June, 1826 ; and both payable at ninety rlays after date.

Tried before Mr. Justice O'Neall, at Coosawhateliie, Spring Term, 1829. Summary Process upon an open account for a frock coat furnished by the plaintiff, a tailor, to the defendant’s ward.

Tried before Mr. Justice Gantt, at Coosawhatchie, Fall Term, 1829. This was a summons in dower. The defendants, who were infants, appeared by guardian, and pleaded a renunciation by the demandant, in the life time of her husband ; on which plea issue'was taken. The defendants gave in evidence a conveyance of the land, of which dower was claimed, from the husband to William B. Johnson, in trust for the defendants.

Tried before Mr. Justice O’Neall, at Coosawhatchie, Spring Terna, 1829. This was an action of trespass to try titles, in which the fol lowing facts were found by special verdict. Held: that the limitation over was de-fcated by the devisee’s attaining the age of twenty-one, although he afterwards died without issue. But then, it is urged, it was also decided, that the estate reverted to the heir at law of the testator. This was obviously the only course the estate could take.

Tried before Mr. Justice O’Neall, at Walterborough, Spring Term, 1829. Assumpsit upon an account for tolls incurred by the defendant at the Jacksonborough ferry, of which the plaintiff was proprietor.

Before Mr. Justice O’Neali,, at Walterborough, Spring Term, 1829. Held: that although the assignment was pot valid as a conveyance of the judgment, it was good as an authority to receive the money when it was collected; and that it furnished evidence, that Jamison did not intend, that the payment made by him should operate as a satisfaction of the judgment against Noonan.

Tried before the Recorder in the City Court of Charleston, at July Term, 1829. Trespass for false imprisonment. The defendant pleaded in justification, that he had caused the plaintiff to be arrested under a bail process from the City Court, which was the same supposed trespass, &c. The process, and affidavit annexed to it, were set out in the plea, and both stated that the plaintiff was a transient person, the debt sued for being under 4250, currency.

•Tried before Mr. Justice Gantt, at Georgetown, Spring Term, 1829. Assumpsit upon a promissory note to plaintiff’s intestate. Plea, general issue. The plaintiff made profert of his letters of administration in the declaration, but did not produce them at the trial, although called for. A nonsuit was moved for on that ground, but was refused by the presiding Judge. The motion was now renewed in the Court of Appeals.

Tried before Mr. Justice Gantt, at Georgetown, Spring Term, x 1829. The defendant objected to the plaintiffs’ taking a verdict in this case, on the ground, that no warrant of attorney had been filed with the declaration, pursuant to the st. 4 Ann. c. 16.. P. L. 94. The presiding Judge overruled the objection; and after verdict for the plaintiff, the defendant moved for a new trial, on the same ground.

<p>Execution may be sued out upon a judgment in a Magistrate’s Court at any time within a year and a day; and a new action cannot be brought upon ' the judgment within that period.</p> <p>Act of 1747, P. L. 214.</p>

<p>A knowledge, by the indorser, of the insolvency of the maker of a promissory note, does not dispense with the necessity of a demand and notice, in order to charge the former.</p> <p>An agreement by an indorser to dispense with demand and notice must be express and unequivocal; nor will an express promise to do so, made to a third person, although accompanied with a knowledge of the insolvency of the maker, bind the indorser.</p>

Tried before Mr. Justice Bay, at Charleston, October Term, 1829. This was an action of trover, brought by summary process, to recover the value of a horse. Damages laid at $^5. The plaintiff’s title, and the conversion by defendant, were established. A witness, called by the plaintiff to prove the value of the horse, testified that he. was worth from $95, to $100. On which thé defendant moved for a nonsuit, on the ground that the cause of action exceeded the jurisdiction.

<p>Tried before the Recorder, in the City Court of Charleston, al November Term, 1829.</p> <p>This was a suit, by summary process, against the defendant, as administrator of the late Dr. John Ramsay. The defendant pleaded to the jurisdiction, on the ground, that the City Court possessed no authority to take cognizance of actions against executors, or administrators, in their representative character.</p> <p>His Honor, the Recorder, overruled the plea, and the defend- . .. ant now moved, to reverse Ins decision.</p> <p>An act creating a new and limited jurisdiction, must be strictly construed; and it is the duty of the superior Courts to take care that the jurisdiction is not. extended by-implication. Bac. Abr. Statute, I. 10, 1 Str. 258, 260.</p> <p>Neither the act of 1801, 2 Faupt,, 392, which created the City Court, nor that of 1818, see acts of 1818,,p. 26, which greatly enlarges the jurisdiction, contain any grant of jurisdiction of suits against executors or administrators; and, by the established rule, such a grant is not to be raised by construction. It is clear too, for obvious reasons, that this omission was intentional: for suits against executors and administrators, being open to the plea of plane administravit, involve the marshalling of assets, and the settlement of estates, which could rarely have failed to exceed the pecuniary amount of the jurisdiction of the City Court, under the act of 1801 ; and which, without reference to the amount, could never have been intended to be committed to a tribunal of inferior, and limited jurisdiction.</p> <p>The cases of Wells v. Newkirk, 1 Johns. Ca. 328, and Way v. Carey, 1 Gaines, 191, are decisions on the very point. And although, it is true, they arose upon the construction of a New-York statute,, yet the principle of the decision is directly applicable, and conclusive in support of the plea in this case.</p> <p>Both the acts of 1801 and 1818, give the City Court concurrent jurisdiction with the Court of Common Pleas, in all cases arising on contract, within the city, to a limited amount, with certain specified exceptions. Suits against executors and administrators are within the grant, and not within any of the exceptions. The grant therefore .remains.</p> <p>The New*York cases cited are upon a statute not at'all analogous, and they have no application to, or bearing upon, the present question.</p>

<p>The authority of the Court of Common Pleas, under the act of 1808, to appoint guardians of the estates of minors, is limited to the guardianship of property, of which partition or distribution is made by that Court.</p> <p>Although a voluntary bond is, in general, binding on the obligor, yet where sureties have entered into an obligation with reference to official duties and liabilities of their principal, which are prescribed and defined by law, they cannot be made liable beyond such prescribed duties and liabilities, although they have undertaken, in terms, to a greater extent.</p> <p>Sureties to a bond for the performance of covenants are not concluded by a decree in Equity against their principal, in relation to a breach of the covenants, if it appear, that other matters, to which the liabilities of the sureties does not extend, have entered into the decree. The Court of Law will not, however, undertake to review the judgment of the Court of Equity, or to correct alleged errors in matters of account settled by the decree. — vide Joyner v. Cooper, 2 Bailey, 199.</p> <p>1 Faust, 213.</p> <p>vide Cross Hinit,b anísí* 211.</p>

Tried before Mr. Justice Richardson, at Williamsburgh, Fall Term 1829. Trespass to try title. The land in dispute, consisting of two hundred acres, had been sold by the sheriff as the property of the defendant, under a fi. fa. at the suit of the present plaintiff, John D. Singletary, and others, and purchased by the plaintiff, for the price of $25.

Tried before Mr. Justice Huger, at Charleston, Spring Term, 1829. This was an action of covenant for rent, reserved on a lease of the ferry on Santee river, known by the name of Nelson’s ,Ferry.

<p>A surety of a deceased debtor is admissible as a witness to disprove a demand against the estate of his principal: and it makes no difference, that he believes the estate to be insolvent, and that the demand, which he is called to disprove, is of superior degree, and will exhaust the assets. His interest to increase or preserve the fund, out of which the debt, for which he is surety, is to be paid, is not that certain, direct, and immediate interest, which affects the competency of a witness.</p> <p>® ^au3t’</p> <p>^ct 0j. P. L. 286. ‘</p>

Tried before Mr. Justice Richardson, at Charleston, January Term, 1829. This was an action of debt, on a bond for the prison bounds, to which the defendant was surety, brought in the name of the plaintiff, as sheriff, by, and for the bent fit of Bills, survivor of Hdls & Hayden, at whose suit defendant’s principal had been taken in execution.

Tried before Mr. Justice Richardson, at Charleston, May Term, 1829. Assumpsit asainst the indorser of a promissory note: de-fence, usury. Several witnesses were examined, who testified to usury in the inception of several notes of the same makef, tj)e defendant as indorser, and which were afterwards found bi l^le bands of the present plaintiff, none of which however were perfectly identified with the note now in suit.

Tried before Mr. Justice Richardson, at Charleston, January Term, 1830. This was an action of assumpsit upon a promissory note, of which the defendant was indorser. The note became payable on Friday the 20th February, 1829, on which day the notary of the Bank of South-Carolina, in which it had been lodged for collection, presented it for payment to the executor of the maker, and payment not being made, protested it, and returned it to the bank.

<p>A wager upon the result of the election for President of the United States, laid before the College of Electors had been chosen by the Legislature, although the members of the Legislature had already been elected by the people, is contrary to public policy, and no action can be maintained for its recovery.</p>

Tried before Mr. Justice O’Neall, at Fairfield, Spring Term, 1830.

Tried before Mr. Justice O’Neall, at York, Spring Term, 1830. These were actions of trespass for taking seven head of cattle, the property of the plaintiff in the first mentioned case, and a horse, the property of the plaintiff in the other case. The defendant justified the taking as a distress for rent in arrear, due by William Reeves, the cattle and horse being found on the demised premises.

Tried before Mr. Justice O’Neall, at York, Spring Term, 1830. Held: that there being no evidence of assent by the executors, until more than four years after the conversion by defendant, such subsequent assent could not operate by relation to divest the title acquired by the defendant under the statute of limitations. His Honor therefore ordered a nonsuit, which the plaintiff now moved to set aside.

<p>The Court of Common Pleas will entertain jurisdiction of an appeal from the ordinary, on the question of the allowance of an administra'or’s commissions. ^</p> <p>Wherever the grounds of an appeal from a decree of the ordinary present one or more propositions, that are, from their nature, susceptible of proof according to the forms of the common law, the Court of Common Pleas may hear and determine them On an appeal. — vide Wallis v. Gill, 3 M‘C. 475, and Mitchell ». Connolly, ante, 203.</p> <p>Where a person, who, if living, would have been intitled to a distributive share of an intestate’s estate, had been absent from the State for more than seven y.ears previous to the death of the intestate, without having been heard of, such person is presumed, in law, to have been dead at the death of the intestate, and the administrator is compellable to make distribution accordingly. Nor does any legal presumption arise, that such person left issue; but the other distributees are intitled to the whole estate, without negativing such presumption either by pleading, or by proof.</p> <p>’ ’ Act of 1789.</p>

Tried before Mr. Justice O’Neall, at York, Spring Term, 1830. The slave had been the property of defendant’s father in his life time, but after his death was sold by the sheriff, and subsequently purchased by the plaintiff. After remaining in plaintiff’s possession a few days, the slave ran away, and was seen for some time lurking about a place rented by the defendant, and where he and his mother resided.

Tried before Mr. Justice O’Neall, at York, Spring Term, 1830. Debt on a bond for the purchase money of a tract of land, sold, for partition, by order of the ordinary, pursuant to the provisions of the act of 1824. Previous to the sale, the land r ’ had been appraised by commissioners at $1000, being the extent of the ordinary’s jurisdiction in such cases ; but at the sale, it was purchased by the defendant for $1500.

Tried before Mr. Justice O’Neall, at Spartanburgh, Spring Term, 1830. Tims was an action of trespass to try title. The plaintiff claimed by purchase at a sale by the sheriff, made under an execution against Elias Palmer at the suit of William Palmer.

<p><?n .the trial of a suggestion falsifying the return of a garnishee in attachment the jury are limited to finding the truth or falsity of the return, upon the allegations contained in the suggestion. The plaintiff cannot recover his debt againsi the garnishee; but upon a verdict in his favor, he is intitled to his reasonable costs, to be awarded by the Court, and he may have the property of the absent debtor, which has been ascertained by the verdict to be in the possession of the garnishee, applied to the payment of the debt, in the same manner as if it had been contained in the original return.</p>

<p>The plaintiff by a deed, executed in his own name, but reciting that he. was attorney of the patentee of a certain invention granted, sold, and conveyed to the defendant, a right to use the said invention. Held, that the deed could not bind the patentee, not being executed in his name; but that in an action on a promissory note for the purchase money, it lay upon the defendant to shew, that the plaintiff himself had not the interest which his deed purported to convey to the defendant, or that the latter had been disturbed in the enjoyment of the rights intended to be conveyed to him by the deed.</p> <p>A deed executed by an attorney does not bind bis principal, unless it is executed in the name of the principal. - Although it recite the authority, yet if it is executed in the name of the attorney, it is his own deed.</p> <p>Where the defence to a promissory note is a failure of consideration, the onus lies on the defendant to shew the failure, although it involve the proof of a negative: and if the consideration consist of covenants, the defendant must prove a breach.</p> <p>If one grant a right to use and vend a patented invention, within a certain State, except in fourteen counties, and undertake to furnish a list of the counties to be reserved, the grantee is at liberty to make the selection, until the list is furnished.</p>

<p>A written undertaking to accept a bill of exchange, to be drawn by a third person, is binding in favor of any one to whom it is shewn, and who purchases the bill upon the faith of such undertaking; but the bill must be presented, or notice given of its existence, within a reasonable time.</p> <p>If letters, written by one partner, in his own name, and containing no express reference to liabilities of the copartnership, are introduced in evidence to charge all the partners, the onus lies on the party, by whom they are introduced, to shew that they do, in fact, relate to the business of the partnership.</p> <p>The admissions of one partner, after a dissolution of the partnership, in relation to transactions of the firm during, its continuance, are admissible in evidence against all the partners.</p> <p>Where admissions of a defendant were improperly rejected, and the plaintiff in consequence e <ainined him as a witness by consent, held, that such examination was no waiver of the plaintiff’s right to give the admissions in evidence.</p>

<p>Under the act of 1789. a debt for rent ranks, in a course of administration, next to judgments, and executions, and béfore bonds and other obligations: and this precedence is not confined to rent, which accrued within a year, or any other period, preceding the death of the tenant; nor is it material, whether the rent was reserved by parol, or by specially. P. L. 494.</p> <p>An executor, or administrator, is not bound, in all cases, and under all circumstances, to litigate his testator’s or intestate’s title to goods found in his possession at the time of his death, but which are claimed by third persons. He is intitled to exercise his discretion on the question of properly, and if he surrender the goods, he cannot be made liable for the value, except upon proof of negligence, or fraud.</p> <p>An executor, or administrator, cannot avoid a gift of his testator, or intestate,, as fraudulent upon creditors. — vide Shelton v. Crosby, cited infra.</p>

<p>Tried before Mr. Justice O’Neall, at Lancaster, Spring Term, - 1830.</p> <p>Trespass quctre clausum fregit. The plaintiffs had formerly''' recovered the locus in quo from the defendant, in an action of trespass to try title, and bad been put in possession by the sheriff, under a writ of habere facias possessionem: after which, the defendant re-entered, and carried off a crop of corn and . fodder, which he had planted whilst formerly in possession.^At the trial of the present action, the defendant proved that the interest, in the land, of one, of the plaintiffs, had been sold by the sheriff under execution, and subsequently conveyed by the purchaser to the defendant. As this conveyance bore date prior t© the former recovery, the plaintiffs objected to the admissibility of this evidence, on the ground, that the defendant was concluded by the recovery from setting up any title, which he had at that time. The admissibility of the evidence was contended for, on the ground, that the title now set up was not in issue in the former suit, which turned upon a question of location, and the extent of the plaintiffs’ lines. The presiding Judge was of opinion, that the recovery concluded the defendant only as to any title adverse to that of the plaintiffs, and did not preclude his shewing that he was tenant in common with them. The objection was therefore overruled: whereupon the plaintiffs submitted to a nonsuit, with leave to move to set it aside.</p> <p>now moved accordingly, on the ground, that the evidence introduced by the defendant ought not to have been received.</p>

Tried before Mr. Justice O’Neall, at Union, Spring- Term, 1830. These were separate actions of debt upon a single bill. The declaration in each case described the bill as the several obligation of the defendant alone, without stating that there was another obligor; whereas, in fact, the bill was the joint and several obligation of both defendants.

<p>Where goods are sold without any time specified for payment, the Vendor has a right to insist upon payment before delivery; and if a time and place aré appointed for delivery, and the purchaser .does not attend to demand the goods, and tender the price, at the time specified, the vendor may rescind , the contract, although he had previously received a part of the purchase money, —vide Pickett®. Cloud, ante, p. 362, and Neil ». Tillman, note (a) p. 538. post.</p> <p>Parol evidence is admissible to shew, that the time, specified in a Written agreement for the delivery of goods sold, was subsequently enlarged by the parties: so, where no time was fixed by the written agreement, evidence was received to shew, that it was aftei wards fixed by parol. Neil v. Tillman, note (a) p. 538. post, et vide Sharp v. Lipsey, 2 Bailey, 113.</p> <p>Where money has been paid to one of two joint contractors, upon a joint contract, which they afterwards rescind, they are both liable to the other party, in an action for money had and received.</p>

<p>A cotton gin attached to the gears in the gin-house, on a cotton plantation, passes by a conveyance of the fee-simple of the land.</p> <p>Whatever is necessary to the full and free enjoyment of a free-hold, sold for agricultural purposes, and which is in any way attached to it, passes, as a fixture by a conveyance of the fee, although partaking of the nature of an. article used for a trade, or manufacture. Nimmons v. Moye, cited infra. ¡3.P.</p> <p>553; vide 3 M‘G.</p>

<p>The best evidence, of which the case is susceptible, must always be produced; and an inferior degree of proof is inadmissible, when it is certain, or even probable, that more conclusive evidence exists, which it is m the power of the party to produce. Hence, where a witness, who could not read, testified, that he saw the party to an alleged contract, sign a paper, about the date, and understood it to be of the purport, of the paper offered in evidence, but was not a subscribing witness, and could not pretend to identify the paper produced, either by the hand-writing, or by any mark; held, not sufficient evidence of the execution of the paper offered to go to the jury, since, for aught that appeared, it was in the power of the party offering it, to have called witnesses to the proof of the hand-writing.</p> <p>Where the' plaintiff declared on a written agreement to carry for freight, with counts on a general undertaking as a common carrier, and failed ill proving the written agreement; held, that he might, nevertheless, recover on the general counts.</p> <p>Where a suit was commenced within the period limited by the statute of limitations, and abated by the death of one of the parties, the bar of the statute is avoided, although the period limited by it may have run out, if a new suit is commenced within a reasonable time; semble, within a year. vide Act of 1712, sec. 7. P. L. 102*</p> <p>It is a settled rule, to which the Court of Appeals invariably adheres, not to interfere with the discretion of the Circuit Judge, as tothe trial, or postpone* - ment of a cause.</p> <p>^1- ^Esp>nas-part, 290-3. 2 &'¡^44^1 N<j M‘C. 281.-Buller’s N.P.</p>

Tried before Mr. Justice O’Ngall, at Union, Spring Term, 1830. This was an action of trover for a horse; wherein the plaintiff declared for a conversion in the life time of his intestate. The defendant went to trial on the general issue.

<p>On appeal from the decision of Mr. Justice O’Neall, at York, Spring Term, 1830.-</p>

<p>Qne justice of the peace cannot supersede a warrant issued by another for the arrest of an individual upon information of a criminal offence. The authority of a single justice of the peace to grant a supersedeas, at common law, was confined to the case of a warrant to compel a party to find surety of the peace; and it is questionable, whether even that authority exists in this State, or whether it is not excluded by the spirit of that provision in ,the act of 1712, which expressly excepts such parts of the common law, as are inconsistent with our particular constitutions, laws, and customs. — side P. L. 99.</p>

<p>Tried before Mr. Justice O’Neall, at Fairfield, Spring Term, 1830.</p> <p>These were informations, filed by Philip Edmund Peareson, Esq. Solicitor of the State, for the Middle Circuit, to try the title to certain lands claimed for the State, into which the defendants had intruded. The relator moved for bench-warrants to bring in the defendants to answer. The presiding Judge was of opinion, that the remedy of the State was by action of trespass to try title, and refused the motion. The cases were also stricken from the docket.</p> <p>Peareson, Solicitor, now moved to have the cases reinstated on the docket; and renewed his motion for process to bring in the defendants to answer.</p>

This was an action of assumpsit, brought to charge the defendants, as copartners, with the proceeds of sale, of five bales of cotton, the property of the plaintiff. Held: that the partners were liable for the defalcation of the master in not paying over the proceeds.

Tried before Mr. Justice- O’Neall, at York, Spring Term, 1830. These were actions of trover, which involved the same question,- and came on for trial, in succession, on the circuit, and were argued together in the Court of Appeals. In the first of them the subject of dispute was a horse, which, it appeared, was originally the property of William Stewart, who sold it to William Reeves, taking his note for the purchase money.

<p>Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830.</p> <p>This was an action of trespass, brought against the defendant, who was sheriff of Edgefield District, f ir levying on certain slaves, claimed by the plaintiff to be his property. The slaves were levied on as the property of Stephen Terry, under execution at the suit of William Wash, administrator of the estate and effects of Thomas Jones deceased, for a debt due to the intestate’s estate; and the levy was made at the instance of the administrator', who entered into a bond, with sureties, to indemnify the sheriff. The plaintiff claimed under an absolute bill of sale to him from Stephen Terry, dated 22d February, 1828, and recorded in the office of the Register of Mesne Cou-yeyances for Edgefield District, 26th August, 1828. The de-fence relied on was, that this bill of sale was pretensive, fraudulent, and void, on various grounds.</p> <p>The action of Wash, the administrator, against Stephen Terry was commenced more than twelve months prior to the date .of the bill of sale; the bill of sale bore-date only a few days previous to the sitting of the Court, at which Wash re covered judgment; and the levy under his execution was made more than three months before the bill of sale was recorded. The slaves remained in the possession of Stephen Terry, after the date of the bill of sale, and up to the time of the levy. This was explained by evidence, that he had agreed to pay wages for them to the plaintiff; but the existence of such an agreement was disputed. At the date of the bill of sale, Stephen Terry was, in point of fact, utterly insolvent; but this Was not generally known, and it was in evidence, that he might have obtained credit, On the faith of the property in his possession. To prove payment of the consideration recited in the bill of sale, which was $600, the plaintiff relied, chiefly, on a note of Stephen Terry, to Johfi Terry, administrator of the estate of William Terry, for $581, dated in 1817, on which one William D. Cooper was surety. This note, John Terry testified, that he transferred to the plaintiff in February,' 1827, at which time the amount due on it had been reduced by partial payments to $551. No part of this sum had been paid by the plaintiff to John Terry, at the time of the transfer, or subsequently; but the plaintiff had under taken verbally to be answerable for the debt, and it was alleged, that he had accepted the slaves now jn dispute in satisfaction of the amount due on the note. The plaintiff also proved, that he bad paid certain executions against Stephen Terry, amounting in all to $251, the greater portion subsequent to the date of the bill of sale. On the other hand it was in evidence, that he had received from Stephen Terry, other slaves, of the value of $275, which he had taken to Georgia, atid sold.</p> <p>Littleberry Cochran, who was offered as a witness by the defendant, was objected to on the ground, that he was one Of the sureties of Wash, in the bond of indemnity to the sheriff!, The objection was sustained, and the witness excluded,</p> <p>Joseph P. Jones, another of the defendant’s witnesses, was objected to on the ground, that his wife was one of the distri-butees of the estate of Thomas Jones. In reply to the objection, it was shewn, that the witness and his wife lived apart, dealt separately, and were under bonds not to interfere with the property of each other. The witness offered to release any individual interest, which he might be supposed to have in the result of the suit; but declined interfering with the interests of his wife. He was excluded by the Court.</p> <p>William D. Cooper, the surety to Stephen Terry’s note to John Terry, was offered as a witness by the plaintiff; and was objected to on the ground, that if the plaintiff failed in this action, the witness would be liable on the note. The objection was overruled, and the witness examined.</p> <p>Much other evidence was introduced on both sides, and various questions made, which under the disposition made of the case by the Court of Appeals, it is unnecessary to specify. The jury found for the plaintiff, and the case was brought up by the defendant, on a motion for a new trial.</p>

Tried before Mr. Justice O’Neall, at Lancaster, Spring Term, 1830. This was an action of trespass, for taking and carrying away the plaintiff’s slave, a girl named Harriet. The plaintiff claimed by a gift to bis wife, from her father William Beckham.

Tried before Mr. Justice Gantt, at Laurens, Spring Term, 1830. Trover for a slave levied on as the property of John Madden, The plaintiff claimed by a parol gift from John Madden, which gift the defendant contended to be fraudulent, and void.

Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830. The plaintiff had instituted a-prosecution for an assault and battery upon him, against one'Drury Kirksey, and the defendants became sureties for the latter, in a recognizance to appear, and answer to the charge.

<p>in the taxation of the costs of a survey made under a rale of Court, the surveyor is intitled to the allowance of $3 per diem, going and returning, as well as for each day employed in making the survey.</p> <p>Costs cannot be taxed for more than a single plat, although the plat comprise several distinct fields, or tracts.</p>

Tried before Mr. Justice Gantt, at Edgefield, Spring Term, ' 1830. The plaintiff and oneRansom Holloway wagered $200, upon a horse-race, to be run on a stipulated day ; and deposited with the defendant, $ The presiding Judge was of opinion, that the contract was illegal, and void, and made a decree for the defendant. The plaintiff' now moved to reverse the decree; as contrary to law.

Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830. This was an appeal from the judgment of a magistrate. The case will be sufficiently understood from the opinion delivered in the Court of Appeals. ' The presiding Judge dismissed ihe appeal ; and the defendant now moved to reverse his decision.

Tried before Mr. Justice Gantt, at Edgefield, Spring Term, 1830. This was an action of slander, for charging the plaintiff with the crime of perjury.

<p>A promissory note given as the price of admission into a private society, for the purpose of instruction in a new system of medieine. there being neither fraud, nor imposition, is binding upon the maker. Aliter, if a diploma, or license to practise, from a body not authorized, had formed part of the consideration.</p> <p>If one from curiosity, or a. thirst for. information, buy the right of gratifying the one, or procuring the other, he is bound by his contract, although he may be disappointed in the value of his purchase.</p>

<p>The Court will not order a judgment against an executor in his own right, to be set-off against a judgment in his favor on a piomissory note, taken for goods of his testator sold by him, if it appear,, that the creditors, or legatees, of the testator will be thereby prejudiced.</p> <p>Applications to set-off mutual judgments are founded on no positive statute, or fi.ed rule of law, but are addressed to the discretion ofthe Court; which discretion will be so exercised, as to do equity, and not to sanction fraud.</p>

<p>'Fried before Mr. Justice .Gantt, at Laurens, - Spring Term, 1830.</p> <p>Assumpsit upon a promissory note, with a second count for money had and received. Pleas, general issue, and plene ad-mimstravit. The presiding Judge refused permission to the plaintiff to go into evidence, under the second' count, of moiieyÉ paid by the plaintiff to the defendant’s testator, who was co-executor, with the plaintiff, of the will of Joseph Johnson, deceased ;which motleys, the plaintiff, since the death of the defendant’s testator, had been compelled, by a decree in Equity, to pay, a second time, to the legatees of Joseph Johnson. His Honor was of opinion, that such a claim involved an examination of complicated accounts, which was proper for the Court of Equity alone, in which Court the plaintiff must look for his remedy. The plaintiff was also prohibited going into evidence of assets of the defendant’s testator, which came into the defendant’s hands, but were not specified in her inventory, or accounts, or set forth in the plaimiff’s replication to the plea of plane administravit; and his Honor likewise ruled, that as the replication had not averred notice of his demand to the def'eildant, within the time prescribed by law, the plaintiff could pot take advantage of payments, which, it appeared by the defendant’s accounts, had been made tp creditors of equal degree. The jury, under the charge of the presiding Judge, found for the plaintiff on the first count; and for the defendant on the second, count, and on the plea of plena administravit. The plaintiff, now moved to set aside the verdict, and for a new trial, with instructions.</p>

<p>Before Mr. Justice Gantt, at Edgefield, Spring Term, 1830.</p> <p>Th’s was an application for a discharge under the insolvent debtor’s act of 1759, P. L. 247. The petitioner was the late sheriff of Edgefield District, and whilst in office received the money due on three writs of Ji. fa. which had been delivered to him for execution.' These moneys not having been paid over, the several plaintiffs obtained rules against him, to shew cause, why he should not he attached for conten.pt of the process of the Court,-in not paying over to them, respectively, the moneys so collected by him. No cause was shewn m the return of the rules, and they were ire’-de absolute. Attachments were accordingly issued, and he was arrested, and imprisoned; and whilst. in gaol filed his petition, and schedule, in order to be admitted to the benefit of the insolvent debtor’s act.</p> <p>At this term, he moved for his discharge accordingly, but was opposed by the plaintiffs in the executions, on the ground, that a sheriff committed to gaol under an attachment for contempt, is not intitled to the benefit of the insolvent laws. The objection was, however, overruled, and the petitioner discharged.</p> <p>The plaintiffs now moved to rescind the order for his discharge, on the ground urged in the Circuit Court; and insisted, that if the motion were not granted on that ground, the order should, at least, be suspended, and leave granted them to file a suggestion, charging the petitioner’s schedule to be fraudulent.</p>

<p>"Where a sheriff, or other public officer, is authorized by a Court of Record to sell lands, he is also authorized to convey; and the validity of the title does not depend on the return, or report of sale, and'confirmation.</p> <p>Where a return to an order of sale is required from the officer, by whom it was executed, the want of it is a mere irregularity, and maybe supplied at any time, so as to conform to the fact.</p> <p>The sheriff was directed, by an order made in proceedings, under the act of 1791, to foreclose a mortgage of lands in a' Court of Law, to sell the mortgaged premises, on a credit of six months, and, if the purchase money were not paid when due, to re-sell, on account of the former purchaser. Held, that the purchaser was intitled to a credit of six calendar months, exclusive of the day of sale, that he was intitled to the whole of the last day of that period to pay the purchase money, and that a re-sale by the sheriff on any pavt of that day was unauthorized, and .void, and passed no interest to the second purchaser.</p> <p>The word month, when employed in statutes, or in judicial proceedings, means, in this State, calendar month: and it is fo be understood in the same sense in all matters of contract, unless the parties have expressly, or obviously, intended it to mean lunar month.</p> <p>Wherever, in the computation of time, a forfeiture would be incurred, or a right divested, by including “ the day of the date,” or “ an act done,” it will be excluded, unless the contrary has been expressly provided.</p> <p>Fractions of a day are not allowable in law, unless it be to give effect to a right, which would be otherwise defeated.</p> <p>One bound to the payment of money on a day certain, is intitled to the wbolo of that day to make the payment.</p> <p>Where the sheriff is ordered to sell upon a contingency, until it happen, he has no authority to sell, and a sale made by him previously is absolutely void.</p> <p>The general rule, as to purchasers at sheriff’s sales, is, that a defect in the proceedings which may be cured by consent, acquiescence, or amendment, does not affect the title; but if it be of substance, as a want of authority from the Court, or where the authority is absolutely void, it vitiates and destroys the sale, and the title under it.</p> <p>43d E 1 1 Mill, xix. ’</p> <p>1 Faust 64.</p>

Tried before Mr. Justice Htjgek, at Kershaw, Spring Term, 1830. Tins was an action of assumpsit, in which the plaintiffs declared upou an open account, for goods sold and delivered, and money lent and advanced to, and paid, laid out, and expended for the defendant, to the amount of $1910.49; with a special count for advances made by them to John B. Maithieu, to the .amount of $1500, upon the guaranty of the defendant.

Tried before Mr. Justice Huger, at Sumter, Spring Term, 1830. This was an action of assumpsit upon an account for medica?, services, rendered by the plaintiff to the slaves of the defendant, The defendant, at the last term, had taken out a rule upon the plaintiff, to shew cause, why the service of the writ, and the proceedings thereon, should not be set aside.

<p>The testator, previous to the act of Í 820, prohibiting the emancipation of slaves except by the Legislature, bequeathed certain slaves to his wife for life, and after her death gave them their freedom. The wife was appointed, and qualified as executrix of the will. Held, that she could not. capture the slaves for her own benefit, under the act of 1800; and that upon her death, subsequently to the act of 1820, they reverted to the estate of the testator.</p> <p>A bequest of freedom to slaves is not void under the act of 1800, prohibiting emancipation otherwise than by deed, &c.,4iut might, previously to the act of 1820, have been carried into effect by the execulors, in the mode prescribed by the former act. Such a bequest, however, vests no right in the slaves, and although made previously to the ac* of 182'". is defeated by that act, if not previously carried into effect by actual emancipation.</p> <p>Slaves are not liable to Capture under the act of 1800,- unless the owner part with the possession, and permit them to go at large, and act for themselves. So where freedom is bequeathed to slaves by will, they are not subject to capture, until the executors have assented to the legacy of freedom, and actually emancipated them.</p> <p>If the e .ecntors a^s. nt to a legacy of freedom to slaves, they are bound to assent in such a manner, as to give it legal effect: and they cannot, by emancipating in a mode prohibited by law, intitle themselves to capture, for theii own benefit, under the act of 1800.</p> <p>Where freedom is bequeathed to slaves, after a bequest of them for life, the assent of the executors to the legacy of freedom will not be implied from their assent to the bequest for life. The rule is uniform, that where any thing remains to be done by the executors, their assent to the enjoyment of the particular estate will not imply their assent to that in remainder.</p> <p>Although the executors may have assented to a legacy of freedom to slaves, after a bequest of them for life, the slaves will not be liable to capture, under the act of 180'), on the death of the legatee for life, until after the period, allowed, by the act of 1789, for the purpose of finishing the Crop, if they were employed in making one.</p> <p>A slave can acquire no right, whatever, which does not, the instant it is transferred to him, pass to his master; and he is incapable, therefore, of acquiring, from his master, a present right to future freedom.</p> <p>A limitation over of personalty, after a bequest for life, which is good at the death of the testator, but which is defeated by a subsequent event, will not enure to enlarge the estate of the legatee for life, but reverts to the estate of the testator.</p> <p>Where one holding slaves for life, dies after' the 1st day of March, leaving a ci.i.i unfinished, the representatives, or those who claim under such tenant for life, nay maintain trover for a conversion of the slaves within the period, allowed by the act of 1789, for finishing the crop on which the slaves were employed; bu: they are limited to the recovery of the value of the services of ¡be “laves, from the time of the conversion to the last day of December, in the year, in which the tenant for life ¡lied, and interest thereon.</p> <p>A conveyance, by an executrix, of personal estate of her testator, of which she was legatee for life, with reversion to the estate of her testator, made subsequently to the act of 1834, without a sale by permission of the ordidary, and nor in pursuance of any direction contained in the will, does not vest the legal estate in the persons, to whom such conveyance was made, for a longer period than the duration of the life estate; although it purport to convey the whole estate: and it makes no difference, thatthe executrix was one of the residuary distributees of the testator’s estate. Semble.</p> <p>The rule partus sequitwr urnlrem applies to the issue of slaves held for life, born during the continuance of the life estate. Semble. . ,</p> <p>2Faust, 357.</p> <p>).24.</p>

<p>Upon the return of a rule against the sheriff, to shew cause, why he had not returned a writ of fi. fa., an order was made, that he pay the money by a given day, or rhat an attachment issue. The money was not paid, and the attachment issued; but, within the time limited, the sheriff sold all the property of the defendant, and applied the proceeds to the satisfaction of older liens. Held, that upon shewing these facts, the sheriff was intitled to dissolve the attachment.</p> <p>If the party suing out an attachment against the sheriff, for neglect, has suffered neither delay, nor loss, the sheriff, on doing what he ought to have done in the first instance, is intitled to have the attachment set aside, vide Ex-parte Thurmond, ante. p. 605.</p>

Tried before Mr. Justice Evans, at Lexington, Spring Term, 1830. This was an action of assumpsit upon a promissory note, given in part payment for a slave, sold by the plaintiff to the defendant. Defence, failure of consideration.

<p>Tried before Mr. Justice Evans, at Coosawhatchie, Spring 'Term, 1830.</p> <p>The defendant was indicted for the murder of a slave, was arraigned, pleaded not guilty, made his challenges, and the jury were charged with his deliverance. The evidence on both sides bad been concluded, and the counsel for the prisoner had closed their argument for the defence ; when the Solicitor stated to the Court, that he had been informed of a declaration by the foreman, made only a few minutes previously, that he “ would not convict the defendant, or any other white person, of murdering a slave.” On inquiry, the foreman admitted, that he had made the declaration: whereupon the Solicitor stated, that it would be a mockery of justice to proeeed with the trial; and he should enter a nolle prosequi^ with the view of giving out another indictment at the next term. It was objected for the defendant, that a nolle prosequi could not be entered at this stage of the proceedings; particularly, as it was not founded upon any at-je^e(j c]efect jn t|]e indictment, which was believed to be unexceptionable. The presiding Judge was of opinion, that the Solicitor might dispose of the indictment as he pleased; but that the rights of the prisoner could not be affected by the disposition made of the indictment. A nolle proscqrd was then entered; upon which the jury were discharged, and the prisoner remanded.</p> <p>On the last day of the term he. was brought up, on motion ; and moved for his discharge, on the ground, that the entry of a nolle prosequi, after the prisoner had been put upon his trial, and the jury charged with his deliverance, upon an indictment for a capital offence, amounts to an acquittal.</p> <p>The presiding Judge inclined to the opinion, that, the prisoner was mtitled to his discharge; but as it was desirable, that the case should be submitted to the Court of Appeals, and less difficulty would attend its being carried up by the prisoner, than by the State, he refused the motion.</p> <p>The defendant appealed, and the appeal was, by consent, taken to Columbia. The prisoner was accordingly brought up; and now renewed bis motion to be discharged, on the ground relied upon in die Court below.</p>