Volume 18 — South Carolina Law Reports

<p>Tried before Mr. Justice Richardson, at Columbia, Fall Term, 1830.</p> <p>This was a suit by sum. pro. brought by the indorsee against the indorser of a promissory note for $80. The indorsement was in these words: “I guarantee the payment of the within to Barrett & Dunlap, for value received: — James May.” This indorsement was dated 16th October, 1826, and the note became due the 1st of January, 1827. Barrett & Dunlap the indorsees, subsequently indorsed to the plaintiff. At the trial the execution of the notes and the indorsements was admitted: It was likewise admitted, that the maker died insolvent within three months after the note became due, and previous to the next succeding session of the Court of Common Pleas. There was no proof of a demand upon the maker, or notice to the indorser; and his Honor held sueh proof indispensable, and decreed for the defendant. The plaintiff appealed; and now moved to reverse the decree of his Honor.</p> <p>Chappell, for the motion. Cited Chitty on Bills, 5. & Warrington v. Furbor, 8 East. 242, and contended that this was a case of commercial guaranty, and not an indorsement within the custom of merchants; and therefore, that the strict rule as to demand and notice did not apply. The utmost that could be required of the holder of the note, was to shew that the remedy against the maker had been exhausted. This, had been done: the maker had died before he could have been sued, and his estate was insolvent. This rendered the case parallel to Wilson v. Mullen, 3 M’C. 236. The statute of frauds does not apply, for the consideration of the guaranty is expressed in the words, “ for value received;” and were it not, the doctrine of Wain v. Warlters has been denied to be law in this State — Lecat v. Tavel, 3 M’C. 158. Nor can the abjection avail, that the guaranty was not made to the plaintiff; he had a right to bring the action in his own name under the act of ’98 — 2 Faust, 215.</p> <p>W. F. Desaussure, contra. The insolvency of the maker does. not excuse demand and notice — Course& McFarlaneu. Shackle-ford, 2 N. & M’C. 283. Page «.Loud — Harper, 269. There is nothing in this case to distinguish it from a common indorsement within the custom of merchants. It contains merely an expression of what is implied in every indorsement in blank. To call it a guaranty changes neither its intrinsic character nor its legal effect — Philips v. Astling, 2 Taunt. 206. But it would not mend the plaintiff’s case, to say that this is not an indorsement within the custom of merchants. If it is not, neither could he sue upon it in his own name, nor would the defendant be .liable upon it to any one; the consideration is not expressed, and it would be void under the statute of frauds. Wain v. Warlters. 5 East, 10.</p>

<p>An executor sueing in his representative character, on contracts made with his testator, is not liable for costs, unless he be guilty of wilful default or negligence, as when he suffers judgment of non. pros, to pass against him, or knowingly brings an unfounded action. Nor will the court before such default, require a plaintiff-executor, who is absent from the State, to give security for costs : His having committed a devastavit makes no difference, for if liable at all, it is de bonis propriis.</p> <p>Although a judge cannot rescind an order made by his predecessor, yet -when upon a change of circumstances an application is made to him to enlarge or enforce it, he has jurisdiction over the subject matter to refuse his aid in carrying it into effect.*</p>

Justice Richardson, made at Columbia, Fall Term, 1830. This was a rule upon the sheriff, to shew cause why an attachment should not issue against -him for not executing a writ of habere facias possessionem,. To this the sheriff made return: “ That according to the exigency of the writ, he had dispossessed the defendant Jane Steel, of the premises in controversy, and pntthe plaintiff, John Black, into possession of them.

Tried before Mr. Justice Huger, at Kershaw, Spring Term, 1830. Assumpsit on the implied warranty of a slave, sold by defendant to plaintiff, with a count for money had and received: Pleas, general issue, and statute of limitations. The slave was sold in May, 1821, and died in January, 1822.

Tried before Mr. Justice Johnson, at Darlington, Fall Term, 1830. Debt on bond for the payment of money. The bond had been made to “ Benjamin Dubose, Sheriff of Darlington District, and his successors in office.” And the declaration alleged that the plaintiff was successor in office of the said Benjamin Dubose. On general demurrer judgment was rendered for the plaintiff; and the defendant now moved to reverse the decision of the presiding Judge.

Tried before Mr. Justice Johnson, at Sumter, Fall Term, 1830. Assumpsit for money had and received to the use of the plaintiffs. Mrs. Elizabeth. Carson obtained judgment against William G: Richardson, sometime in 1821, sued out a ft. fa. and directed her attorney forthwith to enforce it.

<p>Every indictment must contain a direct positive allegation of the act which constitutes the offence charged: An indictment, charging that the defendant “ did take upon himself to retail spirituous liquors” without a license, held bad, upon motion in arrest of judgment.</p>

Tried before Mr. Justice Johnson, at Sumter, Fall Term, 1830. Assumpsit for the price of certain slaves sold by the plaintiff as sheriff of Sumter District, and purchased by the defendant. The slaves were sold as the property of Randal Praeey, and under execution against him.

<p>The Court of Common Pleas has no jurisdiction to investigate an alleged fraud in obtaining a grant of lands from the State, except where such jurisdiction has been expressly conferred by act of the Legislature. In all other cases, this Court can declare a grant void only where it is actually void ab initio, either by the rules of common law, or by statute. As a Court of Caveats under the act of 1791, its jurisdiction is confined to an examination of the rights of parties, before the grant has passed the seal of the State.</p> <p>Where a grant had been obtained for a large body of land, covering several smaller parcels already granted to other persons, but which were not noticed in either the grant or plat: Held, that it was not actually void, and could only be avoided by the parties interested, or by the State.</p> <p>An order granting or denying a rule of survey in an action of trespass to try titles, is interlocutory, and not the subject of an appeal until the final determination of the cause.</p> <p>uts of 1807 p. 60;</p>

<p>It is not necessary, in an indictment against an accessary before the fact in a felony, to set out the conviction or execution of the principal,</p> <p>In organizing a jury for the trial of a prisoner, the rule is to commence with jury No. 1, calling the foreman first, and then the other jurors in the order in which they have been drawn; then to calljury No. 2, in the same manner ; and if both lists are exhausted by challenges without completing a jury, the supernumeraries in the panel annexed to the venire are to be drawn from a box or glass in the manner prescribed by the act of 1731.</p> <p>A prisoner is not intitled to examine a juror on his voire dire as to his having formed and expressed an opinion of his guilt. The case of the State v. Baldwin, 1 Treadw. 289, on this point, considered and approved.</p> <p>The record of the conviction of a slave, before a Court of Magistrates and Freeholders, as principal in a felony, may be given in evidence on the trial of an indictment against a free white-man as accessary before the fact.</p> <p>The confessions of a slave of his own guilt as principal are admissible in , evidence on the trial of a free white-man as accessary before the fact.</p> <p>A new trial will be granted where the verdict is manifestly against evidence ; but not where it is doubtful or inconclusive merely, and particularly where the presiding Judge reports, that he concurred with the jury.</p>

Tried before Mr. Justice Evans, at Edgefield, Fall Term, 1830. The defendant was indicted and convicted of uttering and publishing a counterfeit bank-note; and the presiding Judge reported, that he was satisfied with the verdict.

<p>Tried before Mr. Justice Evans, at Laurens, Fall Term, 1830.</p> <p>The defendant was indicted for knowingly littering and publishing a forged bill of exchange or order, purporting to have been drawn by the president of the branch of the bank of the United States, at Charleston, on the cashier of the principal bank : The bill was drawn payable to A. G. Rose, or order, and his indorsement was likewise forged.</p> <p>The indictment contained four counts : Tbe first describing the instrument as a bill of exchange : the second as an order; the third as a bank bill; but neither of these recited the indorsement on the paper : The fourth count charged the prisoner with uttering and publishing a forged indorsement.</p> <p>The instrument was clearly proved to be a forgery, and the proof of uttering under suspicious circumstances was positive and uncontradicted. To make out the scienter more fully, several other bills of other banks, which were found on the prisoner, at tbe time of his arrest, were produced; and his Honor, the presiding Judge, notwithstanding objections on ' behalf of the prisoner, admitted in evidence the opinion of a witness, that these bills were counterfeit, although the witness was not an officer of any of the banks, and was not legally competent to testify to the hand-writing of all the officers whose names appeared on the bill, there being some whom he had never seen write, and whose signatures he recognized only by his general acquaintance with the bills of those banks.</p> <p>Verdict guilty — Defendant appealed, and now moved—</p> <p>In arrest of jfStigment, on the following grounds — 1. That the State Courts have no jurisdiction to punish with death, forgeries and false utterings of the bills and drafts of the Bank of the United States : another punishment, and another tribunal having been provided. 2. That the instrument set forth in the indictment, is not one of those provided for in our acts of Assembly. 3. That the three first counts are defective in not setting out the indorsement.</p> <p>And for a new trial, on the grounds — 1. That the paper produced did not correspond with that set out in the indictment. 2. That incompetent testimony was admitted to prove that other bills found in possession of the defendant were counterfeit. 3. That the verdict was contrary to evidence.</p>

Tried before Mr. Justice Evans, atNewberry, Fall Term, 1830. The defendants had been convicted of unlawful trading with a slave, under the act of 1817; and were now indicted under the act of 1829, for receiving goods stolen by a slave. Both charges were founded on the sainé act; and a plea of the former conviction in bar to the second indictment, was sustained by the presiding Judge. The solicitor appealed from the decision of his Honor, and now moved to reverse his judgment.

<p>Where a demand on the defendant, or other collateral thing is requisite to give the plaintiff a right of action, the statute of limitations does not commence to run until demand made, or thing done.</p> <p>An action does not lie against a sheriff for money made under execution, until demand; nor does the statute of limitations run in his favour until such demand made.</p> <p>A sheriff is not liable for interest on money made by him under execution, but from demand made, vide 1N. & M. 214.</p> <p>L. 102.</p>

<p>Ii the borrower, after a loan made, and without any previous agreement to do so, confess a judgment for money lent on usury, he is forever concluded: Nor can the indorser of a note made in consideration of such judgment avoid his own liability by reason of usury in the original loan.</p> <p>1\ L. 286.</p>

Tried before Mr. Justice Evans, at Edgefield, Fall Term, 1830, The defendants, by their writing obligatory, contracted “ to deliver to Joseph McClintock, as agent and attorney for Richard Allen, of Georgia,” a certain slave, and in default thereof, “to pay to the said McClintock” the sum of one hundred dollars. The slave was not delivered, and Richard Allen brought debt for the penalty.

Tried before Mr. Justice Evans, at Newberry, Fall Term, 1830. This was a suit by sum. pro. on a promissory note, in these words, “ One day after date I promise to pay S. J. McMorris, or bearer, sixty dollars, for value received, in payment of my part of Patience T. Herndon’s estate, which estate is indebted to S. J. McMorris, administrator” — signed, John N. Herndon. Defence — 1. St. frauds — 2. Want of consideration.

Tried before Mr. Justice Evans, atAnderson, Fall Term, 1830. This was a suit by sum. pro. on a magistrates judgment. Plea of statute of limitations overruled by the presiding Judge, and decree for plaintiff. Motion to reverse decree.

Tried before Mr. Justice Evans, at Abbeville, Fall Term, 1830.

Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830. This was an indictment for the murder of Stephen Crank, the father of the defendant. The indictment contained five counts: The first charged the prisoner with having dealt the • deadly blow; the second charged Mary Crank, the wife of the deceased, as principal in the first degree^ and that Thos. Crank was present, aiding and abetting; the third, that Thos.

<p>Course and distance are less to be confided in than any other of the evidences of location, and must always yield to natural or artificial marks, stations, or boundaries, where the latter can be ascertained with a reasonable degree of probability : Thus, where a corner, called for by a plat, was found within a few chains of the spot indicated by course and distance •, and the line from that corner was identical with a boundary called for by the plat, although on a different side of the tract: Held, that the location must be governed by the corner and boundary; anda verdict founded on course and distance-alone, was set aside.</p> <p>Vide 2 Mill, 999]3ftfC&167 215, 232, 255. ftrC^E^Harper 454.</p>

<p>In trespass to try titles, the defendant, by a plea filed conformably to the rule of Court, set up a title in himself to the whole of the land claimed by the plaintiffs, as set out and described in their declaration ; and at the trial he established his title to all of the land, except one quarter of an acre, on which he had never trespassed, and to which he had never pretended any claim : Held, that the plea of the defendant did not dispense with the necessity of proving a trespass on the soil of the plaintiffs before action brought.</p>

<p>The defendants hired of the plaintiff two slaves at certain monthly wages, and the plaintiff agreed to permit defendants to transport his crop of cotton to market, at a certain stipulated rate of freight per bale, in payment of the wages of the slaves. Held, that the stipulations of each party were independent, and that the plaintiff might recover the wages of the slaves, without averring that he had tendered his cotton to be transported to market by defendants.</p> <p>Mutual contracts are not mutual conditions, when each goes only to part of the consideration of the other, and a breach of either may be compensated by damages.</p> <p>So where plaintiff has performed in part, and defendant has received past of the consideration, the contracts shall be construed independent.</p>

<p>Where a plaintiff sues upon several causes of action, and recovers only on one of them, which is for a sum within ail inferior jurisdiction; yet, if it appear, that the superadded demands were made bona fide, and not colourably, and merely to carry the suit into the higher jurisdiction, he is intitled to the costs of the jurisdiction in which his action is brought.</p> <p>It is doubtful, whether in any case the Court of Common Pleas can award magistrate's costs in a suit brought in that Court. At law, costs are not discretionary, but abide the event of the suit.</p> <p>A nonsuit is never granted after verdict for plaintiff. Nor can a defendant by admitting a sum to be due, which is within the exclusive jurisdiction of a magistrate’s Court, reserve to himself the right to move for a non-suit, in the event that the jury do not render a verdict for a larger sum. His course is to obtain leave to pay into Court the sum which he admits to he due.</p> <p>of 1824,</p>

Tried before Mr. Justice Gantt, at Spartanburgh, Fall Term, 1830. This was an appeal from the decision of a magistrate. The cause of action arose in 1823, and the statute of limitations was relied on as a defence. It appeared, that in 1830 the defendant was requested to give his note for the amount of the debt, and refused to do so ; but said there was a great deal of money due him, and when he. collected it, he would pay the plaintiff.

<p>Tried before Mr. Justice Johnson, at Union, August Term, 1830.</p> <p>This was an action of assumpsit upon a promissory note, given in consideration of an assignment by plaintiff of the unexpired time of an apprentice of his intestate. The defence set up was, that the assignment was made in the presence of a single justice of the peace, and that one not a resident in the same district with the assignee ; whereas the act of 1740, requires the assignment of an apprentice by the administrator of his master, to be made with the consent of two justices of the peace of the same district in which the assignee resides; wherefore it was contended that the assignment was illegal, or at least a nullity, and that in either case the note was without consideration, and void. His Honor charged against the defence, and the case went to the jury upon evidence, that the assignee had in fact enjoyed the services of the apprentice for the greater portion of his unexpired time. Verdict for plaintiff. Defendant moved for a new trial on the grounds taken on the Circuit.</p> <p>Cited Welborn v. Little, 1 N. & M.'263. in which the indentures not being made conformably to the act, were declared void, and it was held that the assignee might recover back the consideration money. It was true that the jury found only nominal damages, and that the Court refused to open the verdict; but that appears to have been sanctioned, rather by the particular circumstances of the case, and the reprehensible conduct of the assignee, who had attempted to sell the apprentice into slavery, than by the general rules of law. The decision on that point seems to have gone on the ground, that the assignee had forfeited his right to recover et m(jil0 e¡ !)0uo.</p>

Tried before Mr. Justice Gantt, at Lancaster, Fall Term, 1830. This was an action of trespass for cruelly beating the plaint tiffs slave. It appeared in evidence, that the slave, who was a female, had been hired to the defendant for twelve months, under a stipulation in the contract, that he was not to beat or abuse her; and that she was severely beaten by the defendant, and in consequence returned to her master.

Motion to discharge defendant from arrest under a ca. sa. made before Mr. Justice Gantt, at Lancaster, Fall Term, 1830. The ground of the motion was, that at the time of the arrest, afi.fa. was in existence, on which proceedings had been had, and had not been returned, and on which further proceedings were afterwards had. A fi. fa. and a ca. sa. were lodged at the same time on the 16th Nov. 1829.

<p>After twenty years possession of lands a grant will be presumed, but in the absence of other evidence, the date of the grant cannot be referred to an earlier period than the commencement of the possession.</p> <p>Recitals in a deed are evidence only against the maker, and those who claim under him. So where an old deed under which plaintiff claimed, recited aNorth-Cavoiinagrant of a specified da'e ; and there was proof that the public records of North-Carolina for that year were lost, so thht an office copy could not he produced : Held, that it was insufficient, as against third persons, to raise the presumption of a grant of that date.</p> <p>It is no objection to the admission of a deed at the trial, that it was not produced at the survey. Vide Frean, ads Cruikshanks. 3 M’C. 84.</p> <p>Where there are interfering claims to land without any actual possession of the disputed parcel, the rule of law is that the possession shall be adjudged in him who has the right.</p>

<p>Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830.</p> <p>Trespass to try titles. Defendant pleaded that her husband died seized of the locus in quo, which was his freehold, and that her dower had not been assigned to her. And on demurrer, judgment was rendered for defendant. Plaintiff appealed.</p>

<p>At Lancaster, Fall Term, 1830, before Mr. Justice Gantt.</p> <p>In trespass quare clausum fregit, the defendant, under the general issue, was permitted to give in evidence, in mitigation of damages, certain deeds, which vested in him an apparently good paper title; and on appeal, a motion for a new trial on this ground was refused. Vide 3 M’C. 66.</p>

<p>A creditor having notice of the death of his debtor, and of the grant of administration, is bound to render in a statement of his demand within twelve months, although the administrator may have neglected to advertise forcreditors to render in a statement of their demands, conformably to law.</p> <p>. , P. L. 494.</p>

<p>Tried before Mr. Justice Gantt, at Union, Fall Term, 1830.</p> <p>This was a suit by sum. pro. to recover a sum of money, which plaintiff had been compelled to pay as surety on a promissory note made by Green Bobo. The defendant was also a surety to the same note; and the plaintiff offered parol testimony to shew, that defendant had undertaken to indemnify him, and that plaintiff had signed only in consideration of that undertaking. This testimony was objected to; but his Honor overruled the objection, and decreed for the plaintiff.</p> <p>The defendant now moved in'arrest of judgment, for a non-suit, and for a new trial, on the several grounds: — 1st, That the liability of defendant and Bobo, was joint and not several, and a separate action could not be maintained, at least not against this defendant. 2d, That the evidence was insufficient to establish defendant’s liability for the whole debt. 3d, That the agreement, not being in writing, was void under the statute of frauds. 4th, That it was not competent to plaintiff to prove by parol testimony, an agreement varying from the face of the note.</p>

<p>Tried before Mr. Justice Gantt, at Union, Fall Term, 1830.</p> <p>The question in this case was as to the liability of one of the defendants for money, received by his co-defendant to the use of the plaintiff. The defendants were co partners in the business of transporting goods by water between Charleston and Columbia, on freight. The defendant R. W. Hughes, contracted with the plaintiff’s agent to carry a certain quantity of pig-iron to Charleston, and to deliver it to a certain merchant there to whom plaintiff had sold it, and it was agreed at the same time that, R. W. Hughes should receive the price of the iron from that merchant, and reserving the freight, bring home the residue of the money, and deliver it to the plaintiff. The iron was safely delivered, and the money received by R. W. Hughes, but was never delivered to plaintiff.</p> <p>His Honor charged, that under the decision of the Court of Appeals in the case of Galloway v. Hughes, at Columbia, in May, 1830, the plaintiff was intitled to recover against both, defendants. The jury found accordingly ,• and this was a motion for a new trial, on the ground, among others, of misdirection upon this point.</p> <p>There is no rule of law more consistent with reason, or better settled by authority, than that one partner is not bound by any contract, made without his knowledge, by his co-partner, unless it be in relation to a matter, which, according to the usual course of dealing, is embraced within the business transacted by the firm. See the authorities collected in a note to 3 Kent. Com : 17. In Galloway v. Hughes, it was distinctly proved to be the usage that the carrier should sell and receive the money; and the decision turned on that prec;ge point. Here there is neither evidence nor pretence of an7 special usage, and the decision must therefore be different.</p> <p>It is admitted that the decision in Galloway v. Hughes, turned upon the usage: it was not, however, a local usage, but a general custom in that particular business, which is the very same in which the present defendants were engaged. The decision in that case ascertained the existence of the custom, and being settled by the public acts of the Courts, it could no more be necessary to prove it again, than it is necessary at this day in an action on a bill of exchange, to prove what is the custom of merchants. 2 Stark. Ev. 4 part, 445, 452. The custom in question is not peculiar to this State: Kemp v. Coughtry, 11 Johns: 107. And its'existence has been recognized in our Courts before the case of Galloway v. Hughes, vide Mooreman v. De Graffenread. 2 Mill, 195.</p>

<p>The only exceptions to the rule, that parol evidence of the contents of a written instrument, in the possession of the opposite party, cannot be admitted without proof of notice to produce it, are — where the party is charged with the possession by the nature of the proceedings; or he has fraudulently obtained possession of a written instrument belonging to a third person ; or it appears that the writing is in Court, and the party refuses.to produce it.</p>

Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830. Tins was an action of slander, for saying of plaintiff, “ she is a strumpet.” Verdict for plaintiff.

<p>In trespass to try titles, if one, alleging himself to be the real owner of the land, comes in under the rule of Court, he may shew title in himself, and defend the possession of his tenant: But he is not intitled to the privileges of an original defendant to the action ; nor is the plaintiff driven by the substitution, to the necessity of producing any further, or other evidence, than wouid have intitled him to a recovery against the original defendant, until the alleged owner shews title paramount.</p> <p>88th Rule ot Court.</p>

Tried before Mr. Justice Gantt, at York, Fall Term, 1830. This was an action of trover for a negro slave. The plaintiff claimed under a bill of a sale from Henry Meacham, dated 15th March, 1823, which included this and other slaves. The defendant claimed under a bill of sale from the sheriff of a later date: the sheriff had sold the slave in question under executions against Meacham ; and the question was, whether the prior conveyance was valid, or void for fraud.

<p>Tried before Mr. Justice Gantt, at York, Fall Term, 1830.</p> <p>Trover for a negro slave. The plaintiff claimed, as purchaser at a sale, made by the sheriff, in 1825, under an execution in favor of M. Nash against James J. Sutton: the defendant' claimed by deed of gift from his father, the said James J. Sutton, dated in 1819 : and the question was, whether this latter deed was valid.</p> <p>The debt on which Nash’s execution was founded, was not in existence at the date of the gift to defendant; but the plaintiff relied on the following circumstances to avoid the gift for fraud. At the time of the gift, James J. Sutton, the father, was indebted to the amount of six or seven thousand dollars, being, at least, one half the value of his whole estate; and, independently of the gift to defendant, had made gifts to each of his other children, being six or seven in number. These gifts were said to be secret, but the evidence was contradictory: they seem, at least, not to have been generally known, and the donor remained in possession of the property. The subsisting debts were all paid, but this appears to have been effected chiefly by contracting new ones; for the amount due by James J. Sutton, at the date of the gift, was never diminished, but progressively increased, until he died utterly insolvent. No less than sixty-seven executions against him were produced in evidence.</p> <p>The defendant proved a gift by parol previous to the execution of the deed: The deed, however, was introduced, and proved by evidence of the death and hand-writing of John Veil, the subscribing witness, and of the hand-writing of the donor. The plaintiff offered testimony to prove that Veil had frequently said, and even made affidavit, that the deed had been antedated, in order to protect the property; but this testimony his Honor rejected.</p> <p>His Honor also refused to admit evidence of the gifts made by James J. Sutton to his other children.</p> <p>The jury were charged by the presiding Judge, that there was no fraud in the case; and they found accordingly for the defendant. The plaintiff moved for a new trial on several grounds, of which the following alone were considered by the Court of Appeals.</p> <p>First, That Veil’s declarations and affidavit were improperly excluded.</p> <p>Second, That plaintiff ought to have been permitted to shew the number and amount of other gifts by plaintiff’s donor.</p> <p>Third, That the indebtedness of James J. Sutton was sufficient, under the circumstances, to render the gift void.</p>

Tried before Mr. Justice Gantt, at Union, Fall Term, 1830. The defendant who was in confinement under divers writs of ca. sa. applied for his discharge under the act of 1788, commonly called the Prison Bounds Act. The creditors filed a suggestion charging him with fraud, in the removal of certain slaves, which were his property, out of the State. The plea denied the fact: and issue was taken upon the plea.

<p>Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830.</p> <p>Debt on a sealed note. John Crosby the subscribing witness was examined on his voire dire; and testified, that the son of defendant having obtained credit at his store, he repaired to the house of the defendant, to have the debt secured by her mark and seal to a note; that no other person being present to attest the note, he made it payable to his brother, the plaintiff, and subscribed his own name as a witness: He further testified, that the debt was his at the time of its creation, but that he had since transferred his interest to the plaintiff. A release, by witness, to plaintiff-was then produced: But his Honor held that the witness was not only incompetent, but incapable of being rendered competent by a release ; and ordered a nonsuit.</p> <p>The plaintiff now moved to set aside the nonsuit, on the ground that the witness had been rendered competent by his release, and ought to have been examined in chief.</p>

Tried before Mr. Justice Gantt, at Union, Fall Term, 1830. This was a suit by sum. pro. for the value of eight thousand shingles, which plaintiff had cut for the defendant, under an express stipulation to pay for them in cash.

<p>The act of 1800, authorizing any person to seize, and convert to his own use, a slave emancipated contrary to the provisions of that act, is not repealed by the act of 1820, prohibiting the emancipation of slaves except by act of the Legislature; but both acts are to be construed together as parts of one system.</p> <p>The right of seizure by strangers is inconsistent with a right of property, or a right of possession, in the former owner: Therefore, where the latter has emancipated a slave contrary to law, although he may have the right to reclaim him by seizure and conversion, under the act of 1800; yet without such seizure he has no right on which he can maintain trover, although the slave has not been formally seized, and converted by any other person.</p> <p>So, if the owner, without a formal act of emancipation, permit his slave to go at large, and to exercise all the rights, and enjoy all the privileges of a free person of colour, the slave becomes liable to seizure as a derelict, and the owner cannot maintain trover for him, without previously reclaiming him by seizure and conversion under the act of 1800.</p> <p>„ „ 1 B1 Com. 89. Doug. 30.</p>

<p>Tried before Mr. Justice Gantt, at Spartanburgh, Fall Term, 1830.</p> <p>This was an action of debt on a bond, reciting the advance 0f certain sums of money by plaintiff to the defendant Lemasters> anc* purporting by the condition to be a bond of indemnity : Pleas, non est factum, and non damnificatus; on both of which ‘plaintiff took issue. It appears that Collins was guardian of certain minors, and had advanced the moneys in question for their support, to the defendant Lemasters, with whom they resided, he having intermarried with their mother; and the object of the bond was to indemnify Collins against the consequences of these advances. The first sum advanced was $200, the amount of a debt which Collins supposed he could recover for his wards, from one Foster; and intending to commence an action against Foster, he had advanced the amount to Lemasters, for the use of the wards, on his indemnifying him against the consequences of a failure in the action intended to be brought. It seems that the action was never instituted, it turning out that there was no ground for it; for which reason Collins, by the advice of counsel, had declined bringing it. The second advance was of $459, which belonged to the wards, and the object of the indemnity was to protect Collins from future claims by them : No evidence was introduced of Collins’ having been compelled to pay this amount a second time to the wards.</p> <p>The case was defended principally by the defendant Lee, who had signed the bond as a surety merely. Two questions were made: The first under the issue of non est factum. The plaintiff called Josephus Tollison, a subscribing witness to the bond; who testified as follows : He admitted the signature to the bond to be his ; but had no recollection of having seen the obligors sign. Thought he could not have signed as a witness, unless he had seen the obligors sign as parties. Had forgotten that he was a witness; but recollects it now. The parties were all present, but he does not recollect the object of the meeting. Cannot say that there was any signature to the bond, when he and Stone, the other subscribing witness, signed; has no recollection that Lee’s name was signed to it at the time. Has no recollection of the bond having been read; but thinks the paper'lay open, when he signed it. Does not recollect any acknowledgment by the obligors of their hands and seals to the bond ; or that they delivered it as their bond. Has never said that Lemaster’s name was signed, and Lee’s not, when he subscribed the bond. Is acquainted with Lemaster’s hand-writing, and takes the signature to the bond to be his ; does not know in whose hand-writing-is the name of Lee opposite to his mark; but thinks it is plaintiff’s. Does not know what became of the paper after it was executed.</p> <p>The plaintiff having closed, a nonsuit was moved for, on the ground, that there was no proof of the execution of the bond by Lee. His Honor, held the evidence sufficient to go to the jury; and overruled the motion.</p> <p>The defendant then called Tilman Stone, the other subscribing witness. He testified that Lee’s name was not on the bond, when Tollison and himself subscribed as witnesses ; nor has he any recollection that Lee was in the house at the time. Lemasters acknowledged his signature; but witness understood the paper to be a will. Did not sign but the one paper. The plaintiff then produced a will of Lemasters’, to which the names of Stone and Tollison were subscribed as witnesses. The witness did not think that the signature of his name to the last paper, was in his own hand-writing; has no recollection of having-witnessed the execution of two papers between Collins and Lemasters.</p> <p>Josephus Tollison was recalled, and reiterated his previous testimony. He and Stone had witnessed two papers, the bond, and the will; does not remember which was attested first; but they were both attested on the same day, and witness thinks within five minutes of each other.</p> <p>The second question was made under the issue non damnificatns. A nonsuit was moved for, on the ground, that plaintiff had offered no evidence of his having been damnified: His Honor thought no such evidence necessary in this case; and refused the motion.</p> <p>The defendants offered evidence with a view to establish a claim by Lemasters, for the board and maintenance of plaintiff’s wards ; but no notice of discount having been given, his Honor excluded the evidence. Much other testimony was introduced, which it is unnecessary to detail m this place. The condition of the bond is set forth in the opinion of the Court of Appeals; which embodies so much of the facts in evidence, in addition to the foregoing, as is necessary to illustrate the case. His Honor charged the jury, that he thought the evidence sufficient to establisli the execution of the bond, but it was for them to decide. jjn(jei. the second issue he charged, that it was unnecessary for the plaintiff to prove that he had been damnified ; he was damnified in the outset by advancing the money, and it lay with the defendants to shew, that they had so expended it, as to be intitled to discount it against the bond. They could not do this under the present issues, without notice of discount, and as they had not given such notice, the plaintiff was intitled to a verdict.</p> <p>The jury found for the plaintiff, the principal and interest of the sums advanced : And the defendants now moved to set aside their verdict, with leave to enter a nonsuit, on the grounds taken below; and for a now trial, on the grounds of misdirection, and erroneous exclusion of evidence.</p>

<p>Tried before Mr. Justice Richardson, at Walterborough, Fall Term, 1830.</p> <p>The indictment charged, that the defendants “ being persons of ill-fame and reputation, and of wicked, corrupt, and depraved dispositions, and wholly lost to all sense of morality, decency5 and religion, and intending, as much as in them lay, to corrupt and vitiate the morals of the good citizens of this State, and to bring into disgrace and disrepute, the honorable estate of matrimony’ wd;h f°rce and arms at Salkehatchie, in the district of Colleton and State aforesaid, on the 27th day of June, A. D. 1829, and at divers days and times, before and since, did, and still do live in open lewdness, whoredom and adultery, to the great displeasure of Almighty God, the evil example of all others in like cases offending, to the great corruption of the morals and manners of the citizens of this State, and against the peace and dignity of the same State aforesaid.”</p> <p>Upon this ■ indictment the defendants were convicted: And now moved in arrest of judgment,</p>

<p>Tried before Mr. Justice Richardson, at Charleston, January-Term, 1830.</p> <p>' The declaration, which was in assumpsit, contained two counts: The first set forth, that defendants were common carriers, and plaintiffs put on board their boat or box, one hundred and thirty-one bales of cotton, in good order, to be carried to Charleston, and delivered to Boyce & Henry, which for reasonable reward defendants promised to do: The second, that in consideration plaintiffs had put on board, &c. defendants promised to carry, &c. The breach in both counts, was, that by negligence of defendants, one bale was lost, and fifty-six damaged.</p> <p>The plaintiffs gave in evidence a paper signed by defendants, acknowledging receipt of the cotton, and promising to carry, and deliver it to Boyce & Henry, “ they paying freight for the same, $1, 25 cts. per bale, deducting from the same one hundred and fifty dollars, already paid, also premium of insurance to be paid, and insurance made by Boyce & Henry on receipt hereof.” The damage was proved; and there was evidence, that Boyce & Henry had endeavoured to effect insurance, but without success, the insurance offices having recently come to the resolution to take no further risks on the species of river craft called boxes.</p> <p>His Honor sustained a motion for a nonsuit, on the ground that a special agreement being proved, it ought to have been set out iñ the declaration, and performance of the stipulation for insurance, or an excuse for non-performance, averred. The plaintiffs now moved to set aside the nonsuit, and for a new trial.</p> <p>Was the stipulation to insure any part of the consideration of the undertaking to carry 1 Insurance would only have been against the risks of the river; not against the negligence of the carrier. 2 Com. Con. 320. Park, on In. 82. Paley on In. 20. The defendants, then, could not have been benefited by insurance, and therefore it could not have been a consideration for their undertaking.</p> <p>If the insurance was intended for their benefit, still it was not a condition precedent: It was not to be effected prior to the departure of the box. The cotton was already on board ; and it came out in the evidence, that the box had left Columbia, and had actually sunk, before orders of insurance did, or could have reached the agents who were to effect it. Where one thing is to be done after another, it cannot be the cause or consideration of that other, and performance of it need not be averred. Com. Dig. Pleader. C. 52. 54.</p> <p>But admitting that insurancehad been a condition precedent. It might have excused the defendants for not carrying the cotton at all, but does not excuse their carrying it negligently. The .distinction is between non-feazance and mal-feazance: In an action for the latter, it is unnecessary to state any consideration. Coggs v. Barnard. 2 Ld. Raym. 909. Lawes’ PI. Ass. 57.</p> <p>The nonsuit can only be sustained on the ground, that every part of an agreement must be forced into the declaration, however immaterial to the cause of action. This is not the rule. It is in all cases sufficient to state the promise, the breach of which is complained of, the entire consideration of that promise, and lastly the breach. Lawes’ PI. Ass. 79. Matters collateral, and which do not constitute the consideration of that part of the contract, which is declared on, may be omitted. Ib. 80-1-2.</p> <p>The liabilities of the carrier and the underwriters are not always distinct. The carrier is in some cases regarded in law in the character of an insurer. 1 T. R. 33. The insurer is liable as well as the carrier for barratry : Cowp. 143, 8 East, 135. And, in one case, the insurers were held liable for a loss, occasioned by the mere negligence of the master and mariners, without fraud. Walker v. Maitland, 5 Barn. & Aid. 171. This may have been a similar case; and if so, the insurance would have availed the defendants: But at all events, it was a question, which the plaintiffs had no right to decide against them. The object of the stipulation for insurance, was obviously to limit the undertaking of the defendants, and to protect them against the harshness of the rule of law as to common carriers. Insurance, therefore, or at least an endeavour to effect insurance, was a condition precedent to the attaching of the liability of the defendants; and a statement of the condition, accompanied with proper averments, was necessary to fix that liability.</p> <p>The plaintiffs assume that insurance could not have benefited the defendants : But that is the very question in debate. It belongs to the Court to decide it; and the defendants had aright to require, that it should have been made by the pleadings. It is admitted that the plaintiffs were bound to allege the entire consideration : 2 East, 2, 3. 2 Bos. &..Pul. 116. Lawes’ PI. Ass. 57.-; but it is urged, that because the insurance was not to be effected until after the defendants’ liability had commenced, therefore it could not have been a consideration for their undertaking that liability. This is to confound the agreement to insure with the insurance itself. The agreement to insure, at least, was a condition precedent to the defendants’ undertaking; it was part of the consideration, and according to the rule, it ought to have been stated. It should have been set out in the declaration, as well to enable the Court to judge how far it was or was not necessary for the plaintiffs to have also averred performance, or excuse for non-performance; as to apprize the defendants themselves of the case they were to meet, and the contract they were sued for.</p> <p>It is not contended, that the plaintiffs were bound to set out the contract in hcec verba; but they were bound at their peril to set out the whole effect of it. This they have not done. They have declared generally against the defendants as common carriers; and they have proved a special agreement limited with a condition. The allegations and the proofs do not agree: The plaintiffs have neither set forth the whole agreement proved, nor set forth any part of it truly; and the nonsuit was therefore properly ordered.</p>

<p>Tried in the City Court of Charleston, at January Term, 1830.</p> <p>The defendants were owners of the ship Lafayette; and this was an action against thpm, to recover the damages sustained by plaintiffs’ goods oil board that ship, on her voyage from New-TorÉ to Charleston. The plaintiffs proved, that the goods were put on board in good order, and that when they were landed, they were found to have been damaged by water.</p> <p>On the part of the defendants, it was proved, that the La Fayette was a staunch, sound, and sea-worthy, vessel ; that she was properly stowed, that she leaked but little during the voyage, but was nevertheless regularly pumped, and in all respects prudently and faithfully navigated. There was some evidence that she was nine inches by the head; but it seemed doubtful, whether this was not a mistake; and she was proved to be so uncommonly well dunnaged, that no injury to her cargo could possibly have been occasioned by this defect in her trim. She arrived at Charleston in September, and hauled into Vanderhorst’s dock: and the weather threatening a gale, she was, by the advice of the pilot, moored with her bows to the river. The bottom of Vanderhorst’s dock has a considerable declivity, and vessels grounding there on the fall of the tide, do not lie on an even keel. For this reason they are generally moored stern out: but all the witnesses agreed, that in the event of a gale the position of the Lafayette was the more judicious. At the fall of the tide the Lafayette grounded, and the witnesses were of opinion, that the plaintiffs’ goods, which were stowed in the bows, were damaged at that time. A number of witnesses were examined; but there was a difference of opinion among them, as to the damage having been occasioned by water, already in the ship, settling towards the bows in consequence of the declivity of the dock: or whether in taking the ground, the stern of the ship had not rested on a log, or other hard substance, by which she had been strained, and made to leak, so as to admit water from the dock. Most of them, however, thought, that from some cause, the ship had sprung a leak whilst in the dock. The dock had been searched, as far as it was practicable, but no logs had been discovered. The ship after leaving the dock never touched ground again, until on her return to New-York, she was hauled up on a marine rail-way for examination and repair. It was then discovered, that a large portion of her false keel, towards the stern had been broken off. This the witnesses thought must have occured from her resting on some hard substance in Vanderhorst’s dock; but they admitted, that if the keel were in a state of decay, it might have been crushed in hauling on the railway.</p> <p>His Honor, the Recorder, charged the jury, that all the evidence of the . sea-worthiness of the vessel, went for nothing in opposition to the fact that the plaintiffs’ goods were damaged. That it was incumbent on the defendants to account for that damage ; and if they could not shew, that it had been occasioned by inevitable accident, the presumption of law was, that it had arisen from the unsoundness of the ship, or the negligence of those who navigated her. That if the Lafayette had sprung a leak in consequence of her grounding on a log, not known to be in the dock, the defendants might perhaps be excused. But there was no evidence of any such log. Its existence was merely surmised, and as far as the proof went, it was the other way. It went, indeed, very far to shew, that the ship was not seaworthy, that she should spring a leak, merely from grounding on the mud in the dock. If, in fact, there was no leak, and there was no more water in the Lafayette, than will at times be found in the tightest ships, it was no excuse for the defendants, that the damage arose from the water settling towards the bows in consequence of her being moored with her bows towards the river, to meet an apprehended gale. They were bound to foresee and guard against the consequences of the position in which they moored her; and were responsible for the damages which ensued. .</p> <p>The jury found for the plaintiffs; and the defendants now moved to set aside their verdict, and for a new trial, on the ground of misdirection by the Court, and that the verdict was against law aud evidence.</p> <p>Contended that the case had not been fairly submitted to the jury; and if the Court could see that justice had not been done by their verdict, a new trial ought to be awarded.</p> <p>The evidence had been full and uncontradicted, that the Lafayette was a staunch vessel; and that the damage to the plaintiffs’ goods could have proceeded from no other cause than a leak, produced by the strain which the vessel received in the dock. It was greatly immaterial whether this strain was occasioned merely by the unevenness of the dock, or by a log or other hard substance lying in it: the latter would seem to have been the true cause, from the injury sustained by the keel. But either way it was analogous to the case of a ship striking on an unknown shoal or rock, in which it had always been held that the carrier was not liable. Williams v. Grant, 1 Conn. Rep. 447. Abbott on Shipping, part 3, c. 4, s. 6. Roecus, Not. 54, Strac. da nautis,pars. 3, num. 33. Other vessels had lain in Vanderhorst’s dock without injury, and the damage must be regarded as one proceeding from a danger unknown.</p> <p>It is true that carriers are liable by law for many accidents which are inevitable, such as for fire, theft, robbery: But this is only where human agency might be concerned, and the rule is founded on rigid principles of public policy. It is every where conceded, that if the injury was not produced by human agency, but by what is technically called the act of God, and there is neither misfeazance, nor malfeazance, negligence, nor default of any kind, the carrier is not liable. Forward v. Pittard, 1 T. R. 27. Garside v. Trent, 4 T. R. 581. Jones on Bailments, 120.</p> <p>In Amies v. Stevens, 1 Str. 128, a hoy was sunk by a flaw of wind in attempting to shoot London Bridge: In Colt v. M’- ■ Mechen, 6 Johns, 160, a sloop beating up the Hudson River, ran aground in consequence of a sudden failure of wind, and sunk: In both cases it ivas held that the owners were not liable, it ireing proved that they had used all diligence, although the danger might have been avoided by waiting for better weather. The present case is much stronger, for whilst all diligence and care were used, there was nothing that could have been done to avoid the danger.</p> <p>The case of Bason v. The Steam Boat Company, Harp. 262, is not in point. Had half the diligence been proved there, that was proved to have been used here, the decision must have been different. Had the depth of water around the Steam Boat been ascertained by sounding, the danger of her position would have been discovered, and might immediately have been avoided. Every precaution, that human prudence could suggest was resorted to in the present case, and the owners ought not, therefore, to be made responsible for an accident, which they could neither foresee, nor avoid.</p> <p>The only question is, whether the verdict is contrary to law. The plaintiffs proved that their goods went on board sound, and came out damaged. That is their whole case, and it entitled them to a verdict, without going a step further. In all the cases where the carrier has been discharged, he has been able to tell how the damage was occasioned. This was attempted here, but the proof failed.</p> <p>It avails nothing to prove that the ship was staunch, and the master careful. That would go to shew that no damage did happen; but the plaintiffs’ goods shew the reverse. The defendants must account for the fact; not assert its impossibility. It is said to be a hardship on the carrier to have the onus probandi thrown on him: but it is not so. He hás • all the evidence under his control. If there were a premium for carelessness, it might be different; but so long as it is the interest of every one on board to prove that he did his duty, it can never be difficult to prove that a loss did occur by inevitable accident, if such was the fact. Unless the carrier is bound to render a reason for the damage, the freighter is without protection.</p> <p>The cases relative to unknown shoals and rocks do not apply. There was neither shoal, nor rock, nor log, in Vanderhorst’s .dock: if there was, it was not in evidence, and the jury have not found it. Even if there had been, the defendants were bound to have known and guarded against it. Abbott, part 3, c. 3. s. 9. The case of Bason v. Steam Boat Company, and that of Smith v. Shepherd, Abbott, 3 part, c. 4, s. 1, are in point. They are indeed much stronger; for in both cases grounding on a shoal was the cause of the damage, and in the latter of them, besides a recent change in the declivity of the shoal, occasioned by a flood, there was an actual log in the way: and yet in both cases the carrier was held liable.</p>

Tried in the City Court of Charleston, at July Term, 1830. This was a suit by sum. pro. for goods sold and delivered to the defendant, and by his directions charged in plaintiff’s books to the “ Estate of John Stock.” There was no proof that a demand had been made upon the representatives of the estate of Stock; and his Honor the Recorder held such proof indispensable : the charge in plaintiff’s books being an admission of the agency, at least so far as to make it incumbent…

<p>Tried before Mr. Justice Evans, at Charleston, January Term, 1831.</p> <p>This was an action of replevin: The defendant avowed the taking as a distress for rent in arrear; to which the plaintiff pleaded, 1, Tender to the plaintiff’s bailiff before distress made: 2, Tender to the bailiff after distress, but before the goods were removed: 3, That plaintiff was ready on the land, to pay the rent, on the day it became due. The defendant demurred to the second and third pleas, and took issue on the first; andón a former trial the jury found a verdict for the plaintiff on this issue. The verdict however was set aside by the Court of Appeals, on the ground that the damages were excessive, and that evidence of old quarrels between the plaintiff and defendant had been improperly admitted, to aggravate the damages: At the same time the demurrers to the second and third pleas were overruled, and a respondeos ouster awarded. The defendant now took issue on the second plea ; and replied to the third, that after the day on which the rent became due he demanded the rent of plaintiff; to which plaintiff rejoined a tender to plaintiff’s bailiff at the time of the demand. Issue was taken on the rejoinder, and the cause came on for trial on the three issues.</p> <p>It appeared in evidence, that plaintiff was tenant of the defendant, and his rent being in arrear, the latter caused a distress warrant to be issued, directed to one Green, a sworn constable, who proceeded as the bailiff of defendant to distrain the plaintiff’s goods. When Green came upon the premises the plaintiff tendered him the rent, but it did not appear that the tender was made before the distress was at least commenced. It was, however, very fully established, that after the goods were dis-trained, but before they were removed, the plaintiff did tender Green the amount of the rent, together with $3, costs; and that Green refused to restore the goods, unless $6,50 were paid for costs: They were accordingly removed and impounded. Plaintiff immediately replevied them, and they were returned to him within a few hours after their removal. It appeared further that the goods distrained consisted of furniture, and had been somewhat injured by the removal.</p> <p>His Honor, the presiding Judge refused a motion for a nonsuit, and charged the jury, that the sole question made by the issues was as to the fact of a tender; and under the evidence they were bound to render a verdict for the plaintiff on the issues : But he thought the plaintiff intitled only to nominal damages. The rent being .in arrear, the defendant had a right to distrain, without going upon the land to demand the rent: His conduct, therefore, was legal throughout, and he was not responsible for the misconduct of Green, who had acted beyond his authority in demanding costs, to which he was not intitled, and in doing so had ceased to act as defendant’s agent. The jury found for the plaintiff the sum of $13, being sufficient to carry costs.</p> <p>The defendant now renewed in the Court of Appeals, his motion for nonsuit; and, moved also, in arrest of judgment, or for a new trial, on the following grounds:</p> <p>1. That the distress being lawful at the time of distraining, replevin would not 'lie, but plaintiff’s remedy was trespass, or detinue.</p> <p>2. That defendant was not responsible for the unauthorized acts of Green, and the goods having been restored, plaintiff could maintain no action whatever against him.</p> <p>3. That if plaintiff could maintain replevin against the present defendant, he was not intitled to more than nominal damages.</p> <p>4. That the verdict was against law and evidence, and the former decision of the Court of Appeals in this case, and contrary to the charge of the presiding Judge.</p>

<p>Interest, is not recoverable on the common count for goods sold and delivered. The agreement to pay interest, or circumstances from which such an agreement may lie implied, must be set out In the declaration; and the absence of a count, selling forth such agreement, express or implied, is not supplied by a charge for interest in the bill of particulars.</p>

Tried before Mr. Justice Evans, at Charleston, January Term, 1831. Trover for a slave named Shakespeare: Plaintiff declared as administratrix, and made profert of her letters of administration. Held: that the words describing the plaintiff as administratrix, might either be regarded as descriptio persones, or rejected as surplusage.

<p>Tried before Mr. Justice Evans, at Charleston, January Term, 1831.</p> <p>Feigned issue. In 1820, the present defendant Toomer, recovered judgment against Barksdale, the present plaintiff, in an action on the case for obstructing the passage of water from liis plantation ; and in 1821 they agreed to reconcile their differences, and entered into the following covenant: Barksdale on his part covenanted to dig and keep open through his land, a canal of certain dimensions and locality, and also to open and keep open, a trunk of similar capacity, through his dam near the river: Toomer on his part covenanted that all suits in relation to their dispute should cease and determine. In 1827, Barksdale took out a rule against Toomer, to shew cause why satisfaction should not be entered on the judgment recovered by him in 1820 ; and upon cause being shewn, this issue was ordered to be made up, on the question, whether the judgment had been satisfied.</p> <p>At a former trial, the presiding Judge held, that the covenant was of itself a satisfaction of the judgment; and under his instructions, the jury found for the plaintiff. But upon appeal the verdict was set aside: The Court of Appeals holding, that the covenant was not of itself a satisfaction, but that digging the canal and opening the trunk were conditions precedent. A new trial was accordingly awarded, and the cause was brought on before Mr. Justice Evans.</p> <p>On the part of the plaintiff, the digging the canal and opening the trunk were established; though there was conflicting testimony, as to the work having been completed according to the true intent and meaning of the covenant. The defendant offered evidence to prove that the trunk and canal were in a state of decay and dilapidation ; and had both been so much neglected, as to be utterly useless for the objects contemplated : His Honor however held, that keeping the canal and trunk open was not a condition precedent to the entry of satisfaction on the judgment; and he rejected the evidence as irrelevant to the present issue. The defendant then offered a number of surveys, with the view of shewing, amongst other things, that the canal had not been dug on the site intended by the covenant, and that its failure to answer the end proposed by it, was in great part owing to this departure from the covenanted locality. This object, for which the surveys were offered, was not however made known to the Court at the time, although subsequently disclosed in the notice of appeal: and his Honor excluded them as irrelevant but stated in his report, that if he had been apprised of the use intended to be made of the surveys, he would have admited them. The jury, upon the evidence, found a verdict for the plaintiff; and the defendant now moved the Court of Appeals to set it aside, and to award a new trial.</p>

Tried before Mr. Justice Huger, at Charleston, May Term, 1830. Assumpsit by the holder against the indorser of a promissory note. The chief question in the case was as to notice. The note had been lodged in one of the banks of the city for collection ; and not being paid within banking hours, on the day on which it became payable, was handed over to the notary of the bank for protest.

Tried before the Recorder, in the City Court of Charleston, at April Term, 1830. Summary process to recover the penalty of one hundred dollars, for retailing spirituous liquors without license, contrary to the city ordinances.

Tried before Mr. Justice Evans, at Charleston, January Term, 1831. Debt, on a bond for the prison bounds, under the act of 1788, P. L. 456, against the defendant, as surety of one Williams, a debtor in execution at the suit of the plaintiffs.

<p>A count on promises to the plaintiff as administrator, may be joined with a count on promises to his intestate, if the debt, or duty, on which the promise is founded, -were in right of the intestate, and arose without the act or consent of the administrator.</p>

Motion to reverse the decree of Mr. Justice Huger, at Charleston, May .Term, 1830. The reference in the opinion delivered by the Court, to the facts on which the motion was grounded, renders any detail of them unnecessary.

Before Mr. Justice Bay, in Chambers, 18th February, 1831. Held: that the application was premature. Ten days notice had always been required by the practice under the act; and the practice itself was reasonable. He therefore refused the application. The defendant now moved to reverse his Honor’s decision.

<p>Tried before Mr. Justice O’Neall, at Coosawhatchie, Spring Term, 1829.</p> <p>This was an action of debt on a bond executed by John M‘Nish, the defendant, and others, of which the condition was., that M'Nish should faithfully discharge the trust of committee of the person and estate of John Dupont, a lunatic. The obligation commenced in the usual form: “ Know all men by these presents, that we John M‘Nish,--, are held, &e.” but the blank for the names of the sureties, was not filled up. Tho due execution of the bond by the defendant was admitted; but a nonsuit was moved for, on the ground, that the name of the defendant not being mentioned either in the obligatory, or the conditional part of the bond, it was not his deed.</p> <p>His Honor held, that to constitute the bond the deed of the defendant, it was only necessary to prove that he sealed and delivered it as his deed. Bac. Abr. Obligations, C. 2 Stark. Ev. 4 part, 475. That these acts were the only solemnities required by law ; and that they were the legal evidence of the defendant’s assent to bo bound by the paper, so by him sealed and delivered. It is laid down, that “ if A. by bis bill obligatory, acknowledges himself to be indebted to B. in the sum of £10, to be paid at a • day to come ; and binds himself and his heirs, in the same bill, in £20, but does not mention to whom he is bound, yet is the obligation good, and he shall be intended to be bound to B. to whom he acknowledged before, the £10 to be due.” Bac. Abr. Obligations, D. 3. Here, it is obvious, that the decision turns upon the fact, that there is enough upon the face of the bill to authorize the conclusion, that B. was intended to be the obligee. And so in the present case, there is enough to warrant the conclusion, that the defendant intended to become a joint and several co-obligor in the bond of M'Nish. But independently of the very conclusive facts of signing, sealing, and delivering, the bond itself could never, according to its letter, be regarded as the single bond of M‘Nish: It recites that, “ we” are bound, and can only be satisfied by shewing, that at least one more than M.‘Nish is bound ; and then it would embrace all who have, by any sufficient legal act, indicated that they intended to be bound. If M'Nish’s name had not been mentioned in the obligation, but it had begun, “ we are held, &c.” and, as in this case it had been sealed and delivered by four persons; it could not have been pretended that it was not the deed of all of them: and no substantial difference exists between such supposed case and the present.</p> <p>The motion for a nonsuit was therefore refused: And the condition of the bond being submitted to the jury, under the Act of Assembly, the following facts were found by special verdict.</p> <p>In January, 1823, JohnM’Nish was, by a decree of the Court of Equity, directed to account with the commissioner, for Ms actings and doings as committee of the lunatic, John Dupout; and upon talcing the account, he was reported by the commissioner, to be indebted to the estate of the lunatic, in the sum of $8802, 97, and the report was duly confirmed, and made a decree of the Court. In the amount, thus reported to be due, was included the sum of principal and interest of a bond for $1200, on which M‘Nish was indebted to the estate of the lunatic, prior tb his appointment to be committee: This bond was past due at the date of M'Nish’s appointment, and was transferred to, and accepted by him, from Thomas Dupont, his predecessor in the office of committee; and it remained in the hands of the attorney of M‘Nish, uncancelled, at the trial of the present issue. After the report was confirmed, M‘Msh was removed from his trust; and his successor instituted a suit on his bond as committee in the Court of Common Pleas, and recovered judgment upon it for the whole amount of the decree in Equity. Execution was sued out, and the property of M‘Nish levied and sold by the sheriff, to an amount, more than sufficient to satisfy the sum due for principal and interest of the bond, on which he was indebted prior to his appointment, but not sufficient to discharge the whole amount of the decree in Equity, which remained in full force for the residue. If, upon the whole matter, the Court should be of opinion, that the sureties of M'Nish are liable for the debt due by him before his appointment, the jury found for the plaintiff the amount of the decree in Equity, deducting the proceeds of the sale by the sheriff: But if the Court should be of opinion, that the sureties are not so liable, then the jury found for the plaintiff, the amount of the decree, deducting the amount of sales by the sheriff, and also deducting the amount of the said debt.</p> <p>Upon this verdict, the plaintiff moved for leave to enter up judgment for the larger sum, with interest: which motion was opposed by the defendant, on the ground, that for the debt due by M*Nish prior to his appointment, he was liable personally, and not as committee; and therefore the defendant was not liable.</p> <p>His Honor, the presiding judge, delivered the following opinion:</p> <p>The defence set up involves two inquiries: 1. Whether the defendant has the right, to re-examine the accounts made up by order of the Court of Equity, and confirmed by its decree, and to contest the allowance of any item in that account: 2. Whether, conceding to him that right, John M‘Nish was properly charged, as committee, with the amount of his own debt, as so much money received by virtue of his trust.</p> <p>Upon the first of these heads, the rule, I apprehend, is that the security to the bond of an administrator, guardian, or committee, may look into the decree of the Court of Equity against his principal, in order to see that he is charged only for the accounts, or duties, the faithful discharge or performance of which the security has undertaken to guarantee. In every other respect the decree is conclusive against him.- Shelton ads. Cureton, 3 M‘C. 412. If this were not the case, and a general license of re-examination were afforded to the surety, it would necessarily lead to the result; that the Court of Law would undertake to revise and correct the proceedings of the Court of Equity, in every case where it became necessary to sue the bond of an administrator, guardian, or committee: and that too in a matter which the Court of Law has decided itself incompetent to examine, either originally, or on appeal. Anderson v. Maddox, 3 M‘C. 237. Harrington v. Cole, Ib. 509. Wallis v. Gill, Ib. 475. But under the rule laid down, it is only necessary to look to the proceedings in Equity, and if from them it appears that the matter, or thing objected to, is not within the duties of the trust, then it is clear, that the defendant has never undertaken for the act of his principal in this respect, and it is no decree against him, in that capacity for which the surety is bound. For example, if on making up the accounts of an administrator, he is charged with rents of land ; this charge, not arising from his authority as administrator, does not fall within the scope of the surety’s undertaking, and hence does not render him liable for it.</p> <p>The question in this case, is whether the item now disputed, is manifestly one that is not chargeable to the committee, as not being within his trust. It is manifest, that it is a part of the funds of the lunatic, which the committee, by virtue of his authority, received. How then can it be pretended, that this Court ought now to examine the propriety of its allowance in the decree of the Court of Chancery % It was for that Court to say, whether it should be charged to him, as committee, as cash, or should still stand as his private individual debt. Having made him accountable for it as money received in his trust capacity, this Court has no power to review that decision.</p> <p>But concede to the defendant the privilege of reviewing it, and then as to the second head of inquiry, I should have no hesitation in saying, that the defendant is as much answerable for the bond of M‘Nish to the former committee, as he is for any other part of the decree. The former committee, Thomas Dupont, upon taking the bond of M'Nish, was liable for the amount, if he did not take sufficient security; or if he indulged until the principal and his securities were in failing circumstances. Smith v. Smith, 4 Johns. Ch. R. 284. John Odell, Guardian, v. Executors of James Young, decided at Columbia, Spring Session, 1829, of the Court of Appeals. These liabilities on the part of Thomas Dupont, have been discharged by M'Nish receiving his own bond; and it follows that M'Nish, the moment he reduced it into his possession, became liable for the amount, in all events, as so much money received by him in his trust capacity. The debt due by an executor or administrator to his testator or intestate, is regarded as cash in his hands. Hall v. Hall, 2 M‘C. Ch. 304. So, where a person received moneys belonging to infants, and afterwards was appointed their guardian, it was held, that he was chargeable, in his character as guardian, with the amount so received, and that his surety was liable. for it. M'Dowell v. Caldwell, Ib. 55. These cases are so perfectly analogous to the one now before us, that it becomes unnecessary to reason further on the subject. I regard the point as settled, that where one owes a debt to a trust, and afterwards assumes the management of the trust, the amount of his debt shall be considered as so much cash in his hands. I am of opinion therefore, that the plaintiff is intitled to recover the whole amount of the decree in Equity, with interest, deducting therefrom the amount collected under the execution of the same plaintiff against M‘Nish, and leave is granted to enter judgment accordingly.</p> <p>The defendant gave notice of appeal from this decision on both the grounds taken on the Circuit; but the motion for a non-suit was subsequently abandoned, on the authority of the decision in Stone v. Wilson, 4 M’C. 203, which had been recently published. A motion, however, was now made to reverse the decision of his Honor upon the special verdict.</p> <p>Did not intend to contest the decision in the cases cited from 2 M’C.'Ch. 55, and 304. But an obvious distinction existed in the case, where the debt due by a person assuming a trust, was, or ought to have been secured by his predecessor in the trust. It was the duty of Thomas Dupont to have had the debt due by McNish fully secured;' and he was responsible, if it was not so. He could not release himself from that responsibility, by transferring the bond to McNish. He ought rather to have surrendered it to the commissioner. But most assuredly he could not, by this means, shift the liability from himself to the sureties of McNish as committee. In this view of the case, the persons responsible to the plaintiff, were, first the sureties to the first bond, if there were any, and secondly, Thomas Dupont, or his representative, if there was either no security, or such as was insufficient; but the present defendant was not liable at all, unless the money were actually in hand, and the bond cancelled.</p> <p>The Commissioner in Equity has no authority to act as receiver, without special appointment: and if he had, it was superseded in this case by the appointment of McNish. There was no person, therefore, to whom Dupont could lawfully transfer the bond, but McNish himself; and it was his duty to transfer it to him, for his own authority was determined. If McNish had objected, Dupont might have been liable; but then he might also have secured himself by compelling payment of the debt. He has lost the opportunity of doing so by McNish’s acceptance of the bond; and therefore, he is discharged.</p> <p>If some other person had been appointed committee instead of McNish, it would have been his duty to have sued both McNish and Dupont; and the debt would have been secured. Now, the defendant, by enabling McNish to become the committee, has rendered this impossible; for his acceptance of the bond discharged Dupont, and he could not sue himself. McNish might have declined taking the bond; and so he might have declined taking the trust: but he chose to do both, and his securities are responsible for his acts. They have undertaken that no act done by him, under the authority of his appointment, should prejudice the trust; such an act of his has prejudiced the trust, and that is all that the defendant is now sought to be made responsible for.</p> <p>If we could suppose an authority in the Commissioner to receive the bond, we must suppose also an authority in him to put it in suit. And if the bond had been sued, the sale by the sheriff in 1827, shews, that it would have been paid ; and whether the property would have sold at first, for more or less than it did at last, yet the bond must have been first paid out of it, and the defendant would have been precisely where the judgment of the Court has left him now.</p>

<p>A voluntary conveyance of the whole of the donor’s visible property is void as to existing creditors, although the only existing debt proved is not of large amount, and the donor is intitled to an interest of much greater extent in an undivided estate, which remains in the hands of executors, and is in litigation in the Court of Equity.</p> <p>Where, after a gilt of his property, the donor retains possession, the gift is fraudulent and void as to subsequent creditors, without explicit notice, unless fully and clearly explained.</p> <p>W.here there is a trustee to the gift, the circumstance that the donees are the nieces of the donor, and live with him, is not, it seems, a sufficient explanation of the donor’s retaining possession of the property, and exercising the exclusive control overit.</p> <p>The registry of a deed of gift of personal properly in the office of the Secretary of State, is not notice to creditors, where the debtor retains p ossession — semble»</p>

<p>The writ of attachment creates a lien on all choses in action of the absent debtor, in the hands, power, or possession, of the garnishee, which is not discharged or affected by any intervening incumbrance or alienation.</p> <p>Where a promissory note was attached in the hands of an attorney, with whom it had been lodged for collection, and who proceeded to recover judgment upon it; and the money was subsequently collected by the sheriff under execution in the name of the absent debtor: Held, that the attaching creditor w'as intitled to it, in preference to a senior execution remaining unsatisfied in the sheriff’s office.</p> <p>. An agreement between the payee and Siaker of a protqissory note, that the latter should apply the amount due upon it in satisfaction of a judgment remaining open against the payee, and that such application should be a payment of the note, cannot be set up in a question between the judgment creditor, and another creditor of the payee, who has attached the note before such payment.</p> <p>One who is neither a party nor privy to a contract, who is a stranger to the consideration, and is not bound by the contract itself, is not intitled to claim any benefit under it.</p> <p>In an inquiry under a rule to shew cause, the affidavit of a person directly interested in the event, is incompetent evidence of a fact involved in it.</p> <p>Third persons cannot take advantage of an irregularity in the proceedings of the plaintiff in attachment, after the lien of the writ has attached.</p> <p>If the declaration in attachment is filed within a year and a day after the return of the writ, the lien of the attachment is preserved, provided satisfactory cause can be shewn for not filing within two months of the return, as required by the act: and it seems, that cause may be shewn as well after, as before the filing of the declaration.</p>

<p>A recovery in assumpsit against the sheriff, for money had and received by him in his official capacity, is no bar to an action on his bond, against the sureties, for the same money.</p>

<p>Tried before Mr. Justice Richardson, at Walterborougli, Fall Term, 1829.</p> <p>Trespass to try titles. It was admitted, that the title was originally in the plaintiff, but defendant claimed the land through a sale by the sheriff, under judgment and execution against the plaintiff, and her husband Peter Duff, who died in 1825. Defendant had been in possession for three years, and the rent was proved to be worth from forty to fifty dollars per annum. His Honor charged, that the sheriff sold nothing but an estate for the lite of Peter Duff, the husband; and as he was dead, the plaintiff was infilled to recover : but inasmuch as defendant had gone into possession under a fair and honest title, he recommended the jury to find nominal damages only. The jury accordingly found for the plaintiff, the land, and five dollars damages.</p> <p>The plaintiff now moved for a new trial, on the ground, that the verdict of the jury for merely nominal damages, was directly against the law and the evidence.</p>

Tried before Mr. Justice Richardson, at Georgetown, Spring Term, 1831. Assumpsit for goods sold and delivered in Philadelphia. Pleas, general issue, and statute of limitations. The goods were sold and delivered in 1819; acknowledgments of the debt by the defendant, as late as the 22d of January, 1823, were in evidence ; and the writ was lodged on the 23d of October, 1828.

<p>Tried before Mr. Justice Evans, at Charleston, January Term, 1831.</p> <p>The first of these cases was an information in nature of a quo vjarranto, praying process against Samuel Champlin, to shew by what authority he held and exercised the office of captain of the magazine guard, on Charleston neck, to which the relator was legally intitled, and from which he liad been illegally displaced by the commissioners of public buildings for Charleston district. The second was a suggestion praying for a mandamus to the said commissioners, commanding them to reinstate the relator in the said office. Process was granted on the information, and a mandamus issued upon the suggestion. To the former, the respondent, protesting that the place of captain of the magazine guard was not an office in contemplation of law, and that he was not bound in law to answer, nevertheless pleaded, that he had been duly appointed to the said place by the commissioners of public buildings, who had full power by law to make such appointment. And a copy of his warrant of appointment was annexed to the plea. The return of the commissioners to the mandamus, contained a similar protestation as to the jurisdiction; and set forth that they were clothed with full power by law, to appoint, or displace the captain of the magazine guard, whenever it should be deemed expedient for them to do so; and that, for divers good causes, they had removed the relator from the said place, and appointed the respondent Champlin thereto, m his stead.</p> <p>Upon the plea and return the relator moved for judgment of ouster on the information, and for a peremptory mandamus to , . . , , _ , the commissioners. The origin, history, and character ol the place in question, as collected from the acts and resolutions of as collected from the acts and resolutions of the Legislature, were fully examined : But as they are recapitulatedin the opinion delivered by the Court of Appeals, it seems to be unnecessary to enter into any detail in relation to them in this place. His Honor held, that the place in question was not an office, the title to which could be tried by information in nature of a quo warranto, or by mandamus ; and lielrefused the motion in both cases, and gave judgment for the respondents.</p> <p>The relator gave notice of appeal, and now moved to reverse the judgment below.</p>

<p>Before Mr. Justice Bay, at Chambers, Charleston, January, 1831.</p> <p>This was a suggestion for a prohibition to be directed to Jas. D. Mitchell, Esq. ordinary, C. J. Steedman, sheriff, and Edward Wood, constable, all of Charleston district, to stay the execution of a certain warrant under the hand and seal of the said ordinary.</p> <p>The suggestion set forth, that in December 1830, and January 1831, the relator became the purchaser for a valuable consideration, of four slaves, of whom he was in peaceable possession, by virtue of his said purchase, until they were attempted to be taken from him, under the authority of a warrant from the ordinary, in the words following:</p> <p>“ South-Carolina, Charleston district. By James D. Mitchell, Esquire, ordinary. To the sheriff of Charleston district, or any of his lawful constables. It appearing to my satisfaction that none of the kindred of Joseph Dorrill and Rachael Dorrill his wife, of Samuel Dorrill and Rachael Dorrill his wife, or of Frederick Steading and Rachael Steading, his wife, will take administration of the estates of the said persons; I do hereby, by virtue of the power vested in me, to grant letters ad colligendum bona defuncti, authorize and direct you to take into your custody and possession, the following negro slaves, belonging to the said estates, and now said to be in possession of one Simon Moses; to wit, Toney, Binah, Peter, and Ciby, and then to deliver the same to John Murphy, who is authorized to hold them for the benefit of the minors interested in them ; and to return to me your actings in the premises. Witness my hand and seal, this 28th January, A. D. 1831.” Which warrant was duly , , . ,, ,, ., ,. J signed and sealed, by the said ordinary.</p> <p>The suggestion further alleged, that the said warrant had been placed by the sheriff in the hands of Edward Wood, one his constables, to be executed, and that the said Wood was attempting to dispossess the relator. Wherefore a prohibition was prayed.</p> <p>The respondents produced and read affidavits of the facts, on the foundation of which the warrant was issued ; and his Honor, after hearing counsel, refused the prohibition.</p> <p>A motion was now made to reverse the decision on the following grounds:</p> <p>1. That their being neither will nor administration, the extent of the authority of the ordinary was to grant letters ad colligendum; which would not authorize an action for the effects, except when they had been taken out of the actual possession of the person, to whom the letters were granted.</p> <p>2. That if an action could be maintained under other circumstances, the fact, that there was a remedy at common law, would exclude the jurisdiction of the ordinary.</p> <p>3. That the ordinary has in no case a jurisdiction to try questions of property; and so no jurisdiction where, as in the present case, a person in possession claims a right of property.</p> <p>4. That the ordinary undertook to condemn a citizen unheard, and to order execution without even a citation to appear.</p> <p>5. That the pretended writ, or warrant to the sheriff, was, in all respects, a manifest usurpation, unprecedented, unlawful, and against common right.</p> <p>was stopped by the Court.</p> <p>Lord Coke observes, in Hensloe’s case, 9 Rep. 38. b. “ that of ancient time, as appears by record, when a man died intestate, and had made no disposition of his goods, nor committed his trust to any, in such case the King, who is parens patriae, and has the supreme care to provide for all his subjects, that every one should enjoy that which he ought to have, used by his ministers to seize the goods of the intestate, to the intent they should be preserved and disposed for the burial of the deceased, for payment of his debts, to advance his wife and children, if he had any, and if not, those of his blood. And this appears in Rot. Claus, de 7 H. 3. m. 16. Bona intestatorum capi solebant in many, Regis, Sfc. And afterwards this care and trust was committed to ordinaries, for none could be found more fit to have such care and charge.” Lord Coke reiterates this opinion in several places in his Institutes; and a number of ancient authorities may be adduced both in support of this power originally in the crown, and its transmission to the ordinary. vide 2 Brev. 88, note, and 2 Bl. Com. 494, where a number of them are cited.</p> <p>The powers of ordinaries in this country have never been accurately defined; but as well in the English statutes made of force here, and the acts of our own Legislature in relation to them, as in the practice in this State, from the earliest times, it appears to have been always taken for granted, that their powers and jurisdiction in regard to the estates of deceased persons, are eo-extensive with those of ordinaries in England. It is true, that since the St. 31 Edw. 3. c. 11, ordinaries are compellable to grant administration; but where there is no one intitled to, or willing to take administration, the ancient power of the ordinary remains unimpaired. 2 Bl. Com. 505, and it is only by virtue of this power that he is authorized to grant letters ad colligendum bona defuncti. Ib. Now, it may be conceded that such letters afford no authority even to maintain an action ; but non constat that therefore the ordinary has lost his ancient power to seize. And it may be admitted even, that the ordinary himself could not maintain an action ; and for this Hensloe’s case is an authority. Still it does not follow that the ordinary in his judicial character may not seize the goods of intestates. The absence of the one authority renders the other absolutely necessary ; for without it the property would be without protection even against robbery.</p> <p>But then it is said, that this is an invasion of Magna Charta, and a violation of common right ; and that it is condemning a citizen unheard. This is surely altogether a mistake. The ordinary decides no question of property ; or if he does, it is only prima facie. It is not pretended that his decision is conclusive ; but the true character of his act is a taking of the goods into the custody of the law for safe keeping. Let it be borne in mind, that the ordinary is a judicial officer, known to, and recognized by the laws and the constitution. It is not to be presumed, that he would act in any case, without adequate information ; and in the present case he did act, only upon the strongest ev^ence" ^£a'ni if the party divested of possession be really Ú'1 titled {0 there are a number of ready and competent modes °f asserting his right : But if in fact he has no right, and the or<^nalT *s not possessed of thp power contended for, then there is a great and gross evil and injury, for which the laws furnish no remedy.</p> <p>Take the present case as an illustration. It appeared by the evidence, that the parties intitled to the slaves in question, are all minors, with the exception of one, who is less or worse than a minor; for naturally weak, almost to idiocy, he is rendered still more unfit for business by depraved habits, and is an easy dupe of any unprincipled knave. Of this man the relator purchased the slaves, as it was most clearly proved, for scarcely a fiftieth part of their value ; having given no more than an average of about ten dollars a piece for four valuable slaves. The minors arc disqualified by law from asserting their rights in the ordinary forum ; and they have no friend who will assume the burden of an administration, and maintain their rights for them. So that they have no means of redress whatever, but that which has been pursued. And if there were not much both of general utility to recommend, and ancient authority to sanction that course, there is in the case itself every argument to strain the law to the utmost for their relief.</p> <p>These views are submitted tp the consideratión of the Court for what they are worth. The warrant in question is perhaps a novel process ; it certainly is not to be found in the Registrum JBrevium. It was an invention of the ordinary’s; but if it is sanctioned by principle and authority, and tends to advance the great object of all laws, the doing justice between parties, that ought to be a sufficient authority for the use of it, and a prohi- ■ bition ought not to be awarded.</p> <p>It is only necessary to remark, in conclusion, that if the ordinary had authority to issue the warrant, it was properly directed to the sheriff, who is required by the act of 1799, 2 Faust, 316, to execute all process directed to him by the ordinary.</p>

<p>Devise to testator’s son S. “ but if S. should die without being married, and leaving issue a sou,” then over to R. another son of testator, for life, remainder to a son of R. in fee. Held, that S. took a fee, defeasible on his dying unmarried and leaving no issue male, living at his death, or born within a competent period afterwards; and that the estate became indefeasible in his heirs on the birth of a posthumous son, although the son died in early infancy, and during the life time of R.</p> <p>Devises are to be so construed, as, if possible, to effectuate the entire intention of the testator, if that intention is not opposed to the policy of the law against perpetuities : And to this all other rules of construction are subordinate.</p> <p>It is to carry the intention of the testator into effect, that an estate-tail is implied by the English Courts, whether it be to enlarge, or abridge, an estate expressly devised: For the double capacity of an estate-tail, as an estate of inheritance to transmit to issue the benefit intended them, and as a particular estate of freehold to support all limitations over, however remote, as contingent remainders, enables the Courts, by implying that estate, to effectuate the intention of the testator in all its parts. Where therefore, to imply a fee simple conditional at common law, would not, under like circumstances, produce like effects, the reason of the rule does not apply; and this latter estate, although analogous toan estate tail, will not be raised by implication.</p> <p>A remainder cannot be limited upon a fee-simple conditional at common law ; and all devises over, limited to take effect upon the natural efflux or determination of that estate, are void as executory devises for remoteness. For this reason, wherever there are devises over, a fee-simple conditional at common law will not be implied, if the will is susceptible of any other construction, which will effectuate the intention of the testator.</p> <p>A fee simple conditional at common law, will never be implied, unless the implication is a direct and necessary inference from the face of the will. It will not, it seems, be implied, where the testator has manifested an express intention to dispose of the reversion.</p> <p>^cts 0f 1824, P- 23.</p>

<p>Tried before Mr. Justice Kichardson, at Georgetown, Spring Term, 18^0.</p> <p>This was an action of trespass on the case. The declaration contained four counts; the two first of which charged the defendant with wilfully neglecting, as sheriff of Georgetown dis~ trict, to make a levy under process of execution from the Court of Equity; the third charged that he combined and confederated with the defendant in the same execution, and with other persons, to eloign beyond the jurisdiction, certain property, which was subject to the execution; and the fourth count was for the voluntary escape of a prisoner, in custody of the defendant as sheriff, under process from the Court of Equity. Plea, not ■ guilty, to the whole declaration. The verdict of the jury having, in effect, excluded the three first counts from consideration in the present appeal, it becomes unnecessary to detail more of the evidence and proceedings in reference to them, than may be necessary to elucidate the case made under the fourth count.</p> <p>In February, 1820, the present plaintiff, by a decree of the Court of Equity for Georgetown district, recovered against John R. Murrell the sum of five thousand nine hundred and ninety-six dollars and thirteen cents, with costs of suit: And, in order to compel payment of this sum, successively sued out of the said Court, and lodged in the sheriff’s office, a writ in nature of a fi.fa. an alias, pluries, and second pluries. The two first of these were returned nulla bona; under the first pluries, which was lodged in 1823, Murrell’s land was levied on and sold; and under the second pluries, which was lodged 26th March, 1825, three negroes were levied on and sold in October, 1825. The sales of the land and the three negroes produced, together, the sum of three thousand six hundred dollars, leaving, at the date of the last sale, a residue of four thousand five hundred dollars due for principal and interest of the decree.</p> <p>Previous to the suing out of the secondpluries, to wit, on the 9th of February, 1825, on affidavit by the present plaintiff, that he* had good reason to believe, and did believe, that active measures were taking, or had been taken, to remove certain negroes of Murrell’s out of the jurisdiction, it was ordered by the Court of Equity, Chancellor Desaussure presiding, that a writ in nature of a ne exeat should issue, to compel Murrell to give good and sufficient security, that none of the property owned by him, or claimed by him, in his own possession, or in the possession of any other person for him, or which had been within one month in his possession or otherwise, and subject to the plaintiff’s execution above-mentioned, should be removed beyond the jurisdiction of the Court. On the same day a writ, intitled a writ in nature of a ?ie exeat was sued out, to take the body of until he should give security conformably to the order; and was lodged with the present defendant as sheriff, who two days afterwards arrested Murrell, and committed him to gaol by . , ,, n virtue thereof.</p> <p>Soon after Murrell’s arrest, a negotiation was entered into with him by Dr. Wragg, a friend and agent of the plaintiff, with a view to an amicable adjustment of their differences ; and articles of agreement were drawn up, in which it was stipulated, that Murrell should, within fifteen days, surrender all his negroes, with the exception of eight, of which it was agreed that he should have the use during his life, but that after his death they also should be subject to the plaintiff’s execution. These articles were signed in duplicate on the 7th April, 1825, both by Murrell and plaintiff, each retaining a copy. Nothing was stipulated in them as to Murrell’s continuance in, or discharge from confinement, previous to his making surrender of his negroes. After the articles had been signed, and on the same day, on Murrell’s stating that it was impossible for him to fulfil the articles by surrendering his negroes, unless he were set at liberty, Dr. Wragg gave a written order to the sheriff, informing him that as agent of the plaintiff he had made arrangements with Murrell, which rendered his further confinement unnecessary to secure any debt due to the plaintiff, and directing, therefore, that he should be discharged upon payment of 1ns gaol fees. Mr. Wilkes, a witness, testified, that in a conversation with plaintiff, the latter stated that Dr. Wragg was fully authorized to make any arrangement with Murrell for the settlement of plaintiff’s claims upon him, and that whatever terms were agreed to by Dr. Wragg would be satisfactory to him. This conversation, however, took place a day or too before the articles of agreement were signed. The sheriff released his prisoner, as directed by Dr. Wragg’s order, without taking security as he was required to do by the writ; and Murrell remained at large until the 14th June, when he returned to gaol of his own accord, and there remained, not having surrendered any of his negroes, as by the articles he had agreed to do.</p> <p>In September, 1825, Murrell applied to Chancellor Desaussure in chambers, either to be released from confinement, or to have the terms of the order modified; but the application was refused. The proceedings on this application were given in evidence on the trial of the present case, his Honor overruling an objection which was made to their admissibility.</p> <p>On the 2d March, 1826,- he was brought before a justice of the peace and a justice of the quorum, under a writ of habeas corpus issued by them, and indorsed “ Per statutum tricessimo primo Caroli secundi Regis, and by the Common Law.” , The sheriff exhibited as the cause of his detainer, the writ in nature of a ne exeat; and informed the magistrates of the former discharge of Murrell by the order of Dr. Wragg, and of his voluntary return to prison, without any new warrant of commitment. The magistrates regarded the further confinement of Murrell as illegal, and ordered him to be discharged. The sheriff discharged him accordingly; and Murrell died shortly after his release.</p> <p>It was very clearly established in evidence, that a large number of valuable slaves, the property of Murrell, and subject to levy under the plaintiff’s fi.fa. were eloigned from the jurisdiction, some time in the early part of the year 1825 ; by which means the. execution was disappointed, and plaintiff’s debt remained unpaid. It was also fully made out, that the removal of the slaves was effected by the agency of-Robert Huggins, a cousin of the present defendant; but the evidence which was .offered to connect the present defendant with a conspiracy to defeat the plaintiff’s execution by the removal of Murrell’s slaves, does not appear to have been satisfactory to the jury. There was also evidence of considerable sums of money being in the possession, or within the control of Murrell during his confinement: This, however, is sufficiently referred to in the opinion delivered by the Court of Appeals, to render any further detail of particulars unnecessary. At the trial of the present issue, there remained due to the plaintiff on the decree against Murrell, a residue of principal and interest to the amount of five thousand seven hundred dollars.</p> <p>His Honor, the presiding Judge, charged in reference to the fourth count, that the discharge of Murrell, in April, 1825, was wholly unauthorized; and that upon Murrell’s return, he was as lawfully in custody, as if he had never been at large. That the magistrates were authorized to issue the writ of habeas corpus, and the sheriff acted correctly in obeying it, and bringing up his prisoner; but that the moment it appeared, that he was in custody> under civd process, their jurisdiction terminated. That their order for the discharge of Murrell was illegal and void, and the sheriff was not justified in obeying it. His Honor, however, remarked, that the sheriff was in some degree excusable, inasmuch as to disobey a legal order under a habeas corpus would have subjected him to heavy penalties: That the sheriff was in fact between two fires, and although he had violated the strict law, yet if he had acted in good faith, the jury were at liberty in this form of action, to give nominal damages ; and as Murrell had died shortly after his release, little injury to the plaintiff could have resulted from his discharge.</p> <p>The jury found for the plaintiff the sum of three thousand two hundred dollars, on the fourth count.</p> <p>The defendant moved to set aside their verdict, and for a non-suit, or a new trial; on the several grounds, that the fourth count, on which a verdict had been found for the plaintiff, contained no cause of action against the defendant; that the proceedings before Chancellor Desaussure were improperly admitted in evidence; that the verdict was contrary to law and the evidence; and that in any case the damages were excessive, and altogether unwarranted by the evidence.</p> <p>Contended, that the writ, under which Murrell had been arrested, was a process unknown to the laws and the constitution, and in the highest degree arbitrary, tyrannical, and unreasonable. It required Murrell not only to exercise a control over property in his possession, but over any which might have been in his possession a month before, and over which he might have lost all control. Independently however, of its unreasonableness and injustice, the writ itself was utterly illegal and void; and neither justified the sheriff in making the arrest, nor rendered him responsible for discharging his prisoner, after he had been arrested under it. The case of Edmonds v. Crenshaw and McMorris, 1 M’C. Ch. 252, in which a ne exeat and commission of sequestration were ordered, is not in point. The process in that case was awarded pendente lite, to compel an answer: but here the defendant, had already answered; the decree had been pronounced, and the suit had become in every respect res judicata. The plaintiff was intitled to nothing more than process of execution; and the only compulsory process for that purpose, under the English practice, was an attachment. 1 Harrison’s Ch. Pr. 442. To which the act of 1785, P. L. 361, has added the writ in nature of a fi.fa. The process in question, therefore, purporting to be a ne exeat, is, on its face, a process which the Court of Equity had no authority to award after decree.</p> <p>If disregarding the title which the Court of Equity has itself given to this process, we were to consider it a legitimate attachment to compel performance of the decree, there is still a fatal objection to it, apparent upon its face. An attachment to enforce a money decree, is in its nature and effect a ca. sa.; and a defendant confined under it is intitled to his discharge under the insolvent debtor’s act. Lowe ads. Blake, 3 Desaus. 269. Exparte Perkins. Ib. 549. No reason can be given, why a creditor should in Equity, any more than at Law, be allowed to proceed upon a fi. fa. and a ca. sa. at the same time. 1 M’C. 176. And yet, the process in this case directs the arrest of the defendant, for the express purpose of compelling him to surrender property, in order that it may be levied on under a fi. fa. whilst the plaintiff is actually proceeding on his ca. sa. and after the debt itself had, in contemplation of law, been satisfied by the arrest of the body of the debtor. 2 Bay, 209. •</p> <p>It will be said, however, that the legality of the writ was not a question for the sheriff; but that he was bound to obey the mandate of the Court without inquiry. This would be true, if the process had been irregular merely: But where the process is illegal, the sheriff executes it at his peril; and of course is intitled to decide whether he will incur the peril or not. In Ray v. Hogeboom, 11 Johns. 433, the sheriff suffered a debtor to escape after arrest. The debtor was a soldier of the U. States’ army, and thereby privileged from arrest; and, it was held, that the process was void, and that the sheriff was not liable. So here the process was not irregular merely, but absolutely void. The Court of Equity had no power to award such process. It possesses no authority to coin new writs at pleasure. Its powers and jurisdiction are derived entirely from the grant of the Legislature ; and the Legislature have provided that its process and practice, shall be regulated by the practice of the English Chan-eery, except where the Legislature itself may direct otherwise-, v^e acts -*-721, P. L. 110. and of 1791, 1 Faust, 29. Now there is neither in any act of the Legislature, or in any precedent, in any of the books, any warrant or authority whatever, for the process now in question. And it issued, therefore, without authority, and was-utterly null and void.</p> <p>Admitting, for a moment, the legality of the process, under which Murrell was originally confined, yet the written order of Dr. Wragg, the agent of the plaintiff, for the discharge of Murrell, not only justified his release, in April, 1825, but rendered the process itself afterwards inoperative. Murrell’s subsequent voluntary return to prison made no difference ; it could not revive the process, nor authorize his being detained against his will. The plaintiff, having consented to the discharge of his debtor, could not afterwards enforce the same process, or any other founded on the same decree. On this point the authorities are clear. Vigers v. Aldrich, 4 Bur. 2482. Clarke v. Clement, 6 T. R. 525, Tanner v. Hague, 7 T. R. 416. Blackburn v. Stupart, 2 East, 243. Murrell was intitled to go away as freely as he had come; and the sheriff could not be liable for an escape. But his Honor charged, that the release of Murrell, in April, 1825, was wholly unauthorized. Whether the plaintiff was competent to authorize the discharge of his debtor, can hardly admit of question ; but even if he was not, it is not for him now to say that he was not. That Murrell was discharged by the authority of the plaintiff, was proved abundantly: Dr. Wragg, in the order given by him, styles himself the plaintiff’s agent; the plaintiff himself acknowledged to the witness Wilkes, that Dr. Wragg was clothed with full power as his agent in the business; and besides all this, the plaintiff by his subsequent acquiescence in the release of Murrell, recognized that it had taken place by his authority, and with his consent. His Honor erred, therefore, both as to the law and the fact, in his charge on this point, and the verdict must be set aside for this misdirection, even if there were no other ground.</p> <p>With regard to the proceedings before Chancellor Dcsaussure, in chambers, in September, 1825, they have nothing to do with the present case. The present defendant was not a party to, nor is be bound by them. Their admissibility was objected to, and the objection ought to have been sustained. It was over ruled, but now, at least, these proceedings will be excluded from the consideration of the Court.</p> <p>If, however, the imprisonment of Murrell had been legal up to the time of his discharge under the habeas corpus, it would not have been so afterwards. Under the act of 1712, P. L. 21, the magistrates had full power to award the writ, and to order the discharge of the prisoner: And the sheriff was bound under the severest penalties to yield implicit obedience to their order. vide 2d. and 3d. sections of the act, P. L. 23-4-5. It will be said, however, that the jurisdiction of magistrates to award a habeas corpus, is confined to criminal cases. Suppose it to be so; yet an attachment is quasi a criminal process. 1 Atk. 58. And the process in this case, if it has any legal character at all, must be regarded as a criminal process ; for its obvious effect and intent was, not to prevent Murrell’s eloigning his negroes, but to punish him criminally for having already eloigned them. Again, it may well be questioned, whether this is not taking too narrow a view of the power of magistrates in relation to the writ of habeas corpus: vide 3 Bl. Com. 130. et. seq. But waiving that question; who, but the magistrates, were to decide whether the case was within their jurisdiction, or not 1 The act gives them the power to decide, and their decision must be conclusive. It is strange, that it should at the same time be contended, that the sheriff had no right to question the legality of the anomalous process, under which Murrell was arrested ; and yet that he was bound to question the decision of the magistrates. Both of these positions cannot be true; and the case resolves itself into this proposition : Either the sheriff had a right to question both, or he had no right to question either; and let the plaintiff choose whichever horn of the dilemma he pleases, he is in neither event intitléd to maintain this action.</p> <p>In any view of the case the plaintiff could only have recovered nominal damages. The gravamaii of the fourth count is, that Murrell’s negroes were eloigned; and as it was proved that the negroes were eloigned more than a year before his discharge, the discharge did not, and could not, have produced the injury complained of. The process purported to be ancillary to the Jifa.; and there was not only no evidence that Murrell’s final release in March, 1826, defeated the f.fa., but it is obvious from the whole case, that it neither did, nor could do so. Indepen°f the other circumstances in mitigation of damages, this v>ew of the case is conclusive to shew, that the verdict must be set aside for excessive damages. The jury have obviously estimated the plaintiff’s damages under the three first counts, which they have said by their verdict, that the evidence did not establish; and the verdict is therefore founded in mistake, and on that ground must be set aside. If the damages are regarded as vindictive, the verdict must equally fail: These actions against sheriffs are always ungracious in their character, and neither receive nor deserve countenance from the Courts. In Feeter v. Whipple, 8 Johns. 369, which was an action against the sheriff for an escape, the Court refused to set aside a verdict for the defendant, although it was admitted to be against the weight of evidence. For the same reason, but on far stronger grounds, a new trial must be awarded in the present case.</p> <p>There are but two questions for the consideration of the Court in this case: Was the sheriff hound to yield obedience to the process from the Court of Equity ? Was he justified in yielding obedience to the order of the magistrates I And the answer to both depends upon the inquiiy, whether those tribunals had, respectively, jurisdiction of the subject matter. If the Court had jurisdiction, the sheriff had no authority to question the regularity of the process; but he was bound to yield obedience. If the magistrates had not jurisdiction, their order was a mere nullity. Bac. Abr. Escape, A. 1. In Ray v. Hogeboom, 11 Johns. 433, the Court did not possess jurisdiction of the person of the defendant. And every case, which has, or can be cited, will be found to turn upon the same plain and obvious distinction.</p> <p>It is not denied that the Court of Equity did have full jurisdiction, of all the matters involved in the suit of Harvey v. Murrell. And yet it is contended, that the process was illegal, and that the sheriff was justified in refusing to obey it. The alleged illegality amounts to this, that the process did not go far enough; but that it should have directed Murrell to be attached until he paid the debt: And because it stops short of this, and directs him to be discharged upon surrendering his property, although it might be insufficient to discharge the whole decree, it is therefore utterly illegal and void. But were the objeotion substantial, according to the rule laid down in all the books, it did not lie with the sheriff to make it. Murrell alone was competent to do so; ■and to have made the objection, he must have gone to the Court of Equity, and moved to set aside the process. The Court of Common Pleas assuredly has no authority to review the judgments of the Court of Equity.</p> <p>Then, as to the order made by the magistrates. It would be somewhat strange, if the magistrates possessed an authority to review the proceedings in Equity, which the Court of Common Pleas does not pretend to. In fact they possess no such autho.rity. They have ho jurisdiction in habeas corpus cases, except that conferred upon them by the act of 1712, to carry into execution the statute of 31st Charles the Second, which is confined in terms to cases of commitment for “ criminal or supposed criminal matters.” P. L. 21. But then it is urged, that the process in this case was criminal process. That is not the question. Was Murrell committed for “ criminal or supposed criminal matter” 1 If he was not, then the magistrates had no jurisdiction. It may be conceded, that an attachment is quasi criminal process, and that, according to • the authority from 1 Atk. 58, the defendant may be taken on a Sunday, and that the process in question is quite as energetic. Still all this does not render the cause of Murrell’s imprisonment a criminal matter. And in fact whatever may be the original character of any process, and how great soever the degree of violence which the sheriff may justify under its authority, if it is used as a civil remedy in a private cause, it is quoad a civil process. 1. Harr. Ch. 176. Gilberts’ Forum Romanorum, 72. Gist v. Bowman, 2 Bay, 182. Exparte Thurmond, decided at Columbia, May, 1830. and see Harberts’ case, 8 Rep. 11. a. and Semayne’s case, 5 Id. 91. a. The process in question was used as a civil remedy in a private cause; and the magistrates therefore, had no jurisdiction. Their order was a mere nullity, and affords no justification to the sheriff. Bac. Abr. Escape. A. 2.</p> <p>It was urged, however, that the decision of the magistrates in favour of their own jurisdiction, was conclusive. The admission of this principle would put an end to the very idea of a limited jurisdiction. But it is a well settled rule, that to render the judgment of any Court conclusive, it must appear in the first place, that it possessed jurisdiction ’of the cause. Rose v. Himely, 4 Crauch, 241,</p> <p>These two questions dispose of the whole ease. Every other, ^ich ¡las jjeen raise¿5 was either one purely of fact for the jury, and their verdict is conclusive; or if it involved any point of law, it was one which did not admit of argument. For instance, whether Dr. Wragg was, or was not, authorized to order Murrell’s discharge in April, 1825, was a question entirely of fact. The jury say, by their verdict, that he was not authorized; and they could not, under the evidence, have said otherwise. That he was the plaintiff’s agent, is not denied; but his agency extended no further than to settle the terms of the compromise with Murrell. The release of Murrell was not one of the terms, and the moment that the agreement was made, Dr. Wragg’s agency was determined. This case bears a good deal of resemblance to that of Kellogg a. Gilbert, 10 Johns. 220; where it was held, that an order by the attorney on record of the plaintiff, to permit the defendant in execution to go at large, no satisfaction having been made, was no justification to the sheriff for the escape. An agency of this kind is never to be implied. As has been shewn, the debt would have been discharged, if the plaintiff had consented to Murrell’s release. 4 T. R. 416. And the agreement itself would have been defeated; unless perhaps the act of 1815 might be held to apply.*</p> <p>Again, as to the legality of Murrell’s confinement after his return, the law is equally plain. As the plaintiff had not consented to his going at large, he had an undoubted right to elect, whether he would again charge the defendant in execution, or the sheriff for the escape. Bac. Abr. Escape, C. Ib. E. 1. This question, however, was decided by the proper tribunal, when Chancellor Desaussure refused the application made in September, 1825. The admissibility of the proceedings under that application has been objected to, on the ground, that it was res iiiter alios acta. If the objection were worth any thing, it would apply with equal force to the decree against Murrell, and the process under which lie was confined, and to the proceedings under the habeas corpus. But the objection is specious merely, the proceedings were part of the res gestee, of which the sheriff was bound to take notice. Stark. Ev. 1 part. 52-3. If the application had been granted, it would have justified the sheriff in discharging his prisoner; and its refusal establishes, that the prisoner was not intitled to a discharge.</p> <p>The .only remaining question, the amount of damages, was also one exclusively for the jury. It is a mistake to suppose, that the amount was estimated by the three first counts, fiad that been the case, the verdict must have been for the whole debt. It is, however, for much less; and it is obvious, that the jury were governed in their estimate of the damages, by the evidence relative to the moneys proved to have been in the possession or under the control of Murrell, during his confinement; and which, the jury may have thought it quite probable, that the plaintiff would at length have received, if the scheme of getting out under the habeas corpus had failed. As to the excuse for obeying the order of the magistrates, that the sheriff acted under compulsion, and with the penalties of the habeas corpus act hanging over his head, it was for the jury to judge of its value. The evidence may not have satisfied them that he acted in good faith: they may have believed from the evidence that there was a collusion with Murrell, which stripped this defence of all merit; and their verdict is conclusive.</p>

Tried before Mr. Justice Gantt, at Georgetown, Spring Term, 1829. This was an action of debt on bond. The execution of the bond was admitted. On the other hand, it was admitted, that it had been given in payment of a tract of land ; and the defendant claimed an abatemeut in the price, for a deficiency in the quantity of tide swamp, which it was alleged, that the plaintiff had represented the tract to contain.

<p>Tried in the City Court of Charleston, at July Term, 1830.</p> <p>Summary process for the costs of plaintiff’s attendance as a witness for the present defendant, and under a subpoena from him, in a suit, wherein the present defendant was plaintiff, and John Gordon defendant. The defence was that plaintiff had waived his claim, and the following facts were relied on as evidence of waiver. Stent having succeeded in his suit against Gordon, and being about to enter up judgment, called upon plaintiff, and the other witnesses, whom he had subpoenaed, to render their bills: plaintiff accordingly presented a bill for one hundred and five dollars, which the taxation of the clerk reduced to forty-eight dollars and fifty cents; but plaintiff refused to abide by the taxation, and insisted that Stent should appeal from it. Stent’s attorney informed him it was useless to do so, as the taxation was in exact conformity with the decisions of the Court of Appeals on the subject; and he advised plaintiff to be satisfied with the sum taxed by the clerk, and to consent to judgment being signed for that sum. Plaintiff still refused, and Stent’s attorney entered judgment without including any sum whatever for the costs of the present plaintiff; and Gordon having immediately afterwards paid the judgment in full, satisfaction was duly entered on it. The plaintiff subsequently consented to receive the sum taxed by the clerk, and upon Stent’s refusal to pay, brought this action.</p> <p>His Honor, the Recorder, held, that plaintiff’s refusal to consent to judgment being signed for the sum taxed by the clerk, amounted to a waiver of his claim. Stent had no means of compelling his consent, nor was he bound to wait for his own money, until plaintiff would consent. The refusal of plaintiff bad deprived Stent of his recourse against Gordon, and it would be unreasonable that Stent should be made the sufferer. Decree for defendant. Plaintiff appealed, and now moved to reverse the decree.</p>

<p>Tried before Mr. Justice Evans, at Charleston, January-Term, 1831.</p> <p>This was an action of assumpsit upon a written agreement, entered into by the parties as a compromise of defendant’s liability upon certain bills of exchange drawn by him, which had been returned protested. Plea of tender as to part, and non assumpsit as to the residue of the sum claimed. It appears, that plaintiffs and defendant differed in their construction of the agreement, as to the sum due; and that on the day appointed for payment, defendant called upon the plaintiff’s attorney, and offered to pay what he admitted to be due, but required a receipt in full. This the attorney refused, insisting that a larger sum was due ; but agreed to receive the sum tendered, and to give a receipt pro tanto. The defendant, however, declined paying without a receipt in full: Whereupon this action was brought for the whole sum claimed by the plaintiffs.</p> <p>His Honor, the presiding Judge, concurred with the defendant, in his construction of the agreement; and the plaintiffs having subsequently acquiesced, any detail' on that head is unnecessary. With regard to the tender, his Honor held that it was void, having been made subject to a condition, which defendant was not authorized to prescribe; and he charged the jury, that the plaintiffs were intitled to recover the sum tendered, with interest. The jury found for the plaintiffs the sum tendered, but without interest.</p> <p>The plaintiffs moved to open the verdict, and for a new trial, on the ground, that the debt having been liquidated in writing, and a day appointed for payment, and no lawful tender having been made, they were intitled to recover interest.</p>

<p>A due bill payable on demand bears interest only from demand made, and not from the date, unless so expressed, although specified to be for a loan of money on the day of the date.</p>

<p>Tried in the City Court of Charleston, at January Term, 1830.</p> <p>Assumpsit by the holder against the indorser of a promissory note: The declaration contained also, counts upon an open account, which, it was not disputed, that plaintiff was intitled to recover. To the count upon the note, defendant pleaded the statute of limitations; to which plaintiff replied a promise within four years. To prove the promise, a witness was called, who testified, that a short time before this action was brought, he called upon defendant, and demanded payment of the note ; to which defendant replied, that “he had not been served with notice of protest, and, therefore, had nothing to do with it; but if he had been legally notified, he would have paid it long ago.” The note, it appears, was already barred at the time of this conversation. Evidence was also gone into of a demand upon the maker, refusal by him, notice thereof to the defendant as indorser, and protest against both, on the day the note became due.</p> <p>Some question was made as to the sufficiency of the proof of notice. His Honor, the Recorder, held it, however, to be complete ; but charged that under the plea of the statute the plaintiff must fail, the acknowledgement testified to, being insufficient to support the replication, and repel the bar of the statute.</p> <p>The jury, nevertheless, found for the plaintiff the amount of both the account and note. And the defendant now moved to set aside their verdict, as contrary to law and the evidence.</p> <p>Submitted the case upon the brief.</p> <p>Cited Burden v. M'Elhenny, 2 IN. & M. 60. and Davis v. Verdier, 1 M‘C. 320.</p>

Tried before Mr. Justice Richardson, at Charleston, January Term, 1830. Assumpsit on a bill of exchange for two hundred and seventeen dollars, drawn by defendant on a mercantile house in New-York, and protested for non-payment. The chief question in the case arose out of the plea of the statute of limitations.

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1831. Assumpsit. At a sale by the sheriff, in April, 1830, defendant became the purchaser, at the price of three hundred dollars, of a slave, which was sold under execution, as the property of the present plaintiff.

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1831.

<p>To intitle the plaintiffs, where there are more than one, to give in evidence a certified copy of an original grant, they must all make the affidavit required by the act of 1803, that the original is lost, or destroyed, or out of their power, &c: the affidavit of one only is not sufficient. The rule would be the same, if the evidence were offered by several defendants.</p> <p>Where the action is by trustees, they, and not the eestuy que trust, must make the affidavit: The legal estate is in them, and they will be presumed to be in possession of the muniments of title.</p> <p>After a verdict for plaintiff founded on evidence improperly admitted, the Court will award a new trial only, and not a non suit; unless it appear, that the whole case is before the Court, and that the objectionable evidence cannot be supplied by such as is competent.</p>

<p>Where possession oi' a promissory note has been obtained from the true owner by fraud, a holder, who took it with notice of the fraud, is not in-titled to the money due upon it, although the note was payable to bearer, and he paid a valuable consideration for it; and payment to such holder will not discharge the maker, if he had like notice, but he may be compelled to pay it over again.</p> <p>Where a woman is deceived into a marriage with a man, who has another wife living, her consent to the alienation of her effects by her pretended husband, she being still ignorant of the former marriage, will not render such alienation valid in favour of a purchaser for a valuable consideration, if the latter, at the time of his purchase, had notice that the effects came into possession of the pretended husband in conseqeence of a fraudulent marriage.</p> <p>The first wife will be presumed to be living, until seven yearshave elapsed from the time she was last heard of, unless her diath, in the mean time, be proved.</p> <p>Where the transfer of a promissory note is taken from a person, not an original party to it, the note’s being past due, at the time of the transfer, is not equivalent to notice, that such person came into possession of it by fraud; unless, perhaps, inquiry of the payee would necessarily have led to a knowledge of the fraud.</p> <p>There being some evidence of notice, and the question of notice not fairly submitted to the jury, new trial awarded.</p>

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1831. This was an action, by foreign attachment, on a promissory note, dated in 1812, and due in 1813, commenced by attaching in the hands of the administrator, the distributive share of defendant’s wife in her father’s personal estate.

Tried before Mr. Justice Richardson, at Anderson, Spring-Term, 1831. Summary process on a promissory note for fifty dollars, given in consideration of plaintiff’s rescinding a contract with defendant for a sale of lands.

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1831. Assumpsit on a promissory note, which had been given for a slave, purchased by defendant at auction.

<p>An action cannot be maintained for services rendered in expectation of a legacy, although the party has been disappointed in his expectation of the legacy.</p> <p>Declarations to third persons by an intestate, in his life time, that he intended to remunerate the plaintiff for certain services by a legacy, are not sufficient to revive the legal demand for those services, after it had been barred by the statute of limitations.</p> <p>The jury are bound to conform to the rules of law; and if they do not, their verdict will be set aside.</p>

<p>Tried before Mr. Justice Earle, at Laurens, February Term, 1831.</p> <p>This was an action of assumpsit for the use and occupation of a mill, which formed part of the estate of J. Boyd, deceased. R. F. Simpson had qualified as executor of a supposed will of the deceased, and demised the premises, by parol, for one year, to the defendant, who entered and enjoyed them without interruption. Subsequent to the demise, the will was set aside, and administration granted to the plaintiff, who, on the expiration of the term, brought this action. The plaintiff was one of the heirs-at-law of his intestate, but he declared as administrator. The supposed will was not produced, and it did not appear, whether it contained any authority to make leases of lands.</p> <p>•, It was objected by the defendant, on a motion for a non-suit, |that the action should have been brought by the heirs, and not i_by the administrator. The presiding Judge, referring to the case of Gregory v. Forrester, 1 M‘C. Ch. 328, observed, that it Swas by no means well settled, how far an administrator might, in this State, interfere with the management of lands. He might, by confessing judgment, enable the creditor to sell even the fee, without making the heirs parties; and that too when there were personal assets to satisfy the debts. Martin v. Latta, 4 M‘C. 128. It was, however, unnecessary to consider the question in this case ; and it was equally immaterial, whether the executor possessed any authority, under the supposed will, to make a lease: The defendant could not deny the title of his landlord; and the contract having been made by Simpson as executor, the plaintiff, who stood to him in a relation similar to that of an administrator de bonis non, succeeded to all his rights and duties. The liability of the defendant was clear, and it was equally clear, that the plaintiff’s intestate was ultimately intitled to the money; and although it might be questionable, whether the plaintiff could maintain this action, his Honor was not satisfied that he could not.</p> <p>The motion was therefore overruled, and the jury found for the plaintiff. The defendant now renewed his motion for a nou-suit, in the Court of Appeals.</p>

<p>A suit may be brought by summary process on the condition of a bond, if the sum due is within the summary jurisdiction, although the penalty of the bond exceeds the jurisdiction.</p>

<p>Commissioners of Roads have authority, under the act of 1825, to make slight alterations in the direction of old roads, for the bona fide purpose of avoiding obstacles and remedying defects, without the consent of the owner of the land, or giving the notice, required by the act, previous to the establishment of a new road.</p> <p>Under the authority to establish such bridges as they may deem necessary, the Commissioners of Roads are not confined to making the bridge on the precise line, where the public road crosses the water course, but may establish it at the nearest suitable situation, and alter the road, so as to afford access to it by the nearest and best way.</p>

Tried before Mr. Justice Richardson, at Newberry^ Spring Term, 1831. Held: however, under the authority of M'Beth v. Smith, 2 Treadw. 67G, that the action would not lie against the present defendant, and he ordered a nonsuit. The plaintiff now moved to set aside the nonsuit, and for a new trial on the following grounds:— 1.

Tried before Mr. Justice Richardson, at Newberry, Spring Term, 1831. This was a summons in dower, directed to a defendant in possession of the land, claimed to be subject to dower. The demandant gave in evidence a conveyance from her husband to one Maxwell; and proved that defendant went into possession, under a bond to make titles, from Maxwell.

Tried before Mr. Justice Q’Neall, at Newberry, Extra Spring-Term, 1831. • This was a suit by sum. pro. to recover a sum ordered by the commissioners of the poor, to be paid by defendant, for the maintenance of the father and mother of his wife, who were paupers. The order was made after the intermarriage of the defendants. The defendant did not receive any portion with his wife, nor has she any separate estate.

<p>Tried before Mr. Justice Richardson, at Laurens, Spring-Term, 1831.</p> <p>Trespass to try titles. The plaintiff claimed by a sheriff’s title, through John Madden; and the evidence in support of his title will be found detailed in the opinion delivered by the Court of Appeals. The presiding Judge ordered a nonsuit; and this was a motion to set it aside.</p>

Tried before Mr. Justice Earle, at Laurens, February Term, 1831. • ‘ Trespass to try titles. Held: that as the witnesses both stated, that the land now in dispute was not included in the deed, the objection was groundless.

Tried before Mr. Justice Richardson, at Newberry, Spring Term, 1831. Trover for two slaves. Held: that the trust became executed at the death of the donor, and the plaintiffs were intitled to maintain this action in their own names. He therefore refused the motion. The case was then submitted to the jury upon the following facts. The donor intermarried with the defendant on the day after the execution of the deed.

<p>Before Mr. Justice Earle, at York, Spring Term, 1831.</p> <p>The defendant was indicted for larceny of corn “ growing" in a field, contrary to the act of 1826: And this was a motion to quash the indictment, on the ground, that growing corn was not the subject of larceny, even under the act.</p> <p>The presiding Judge was of opinion, that the objection was fatal. There is not perhaps a moral doubt as to the intention of the Legislature ; but the Courts are not at liberty to inquire into the intention through any other medium than the settled rules of legal construction. Among these there are none better established, than that penal statutes are to be construed strictly; and that the penal provisions of any statute are not to be extended by intendment. At common law, corn, or other produce of the soil, could not be the subject of larceny, before' severance; but after severance they might. Now the Legislature, in providing by the act of 1826, that “ to take from any field, any corn, &c. fraudulently, with intent to convert the same, &c.” shall be larceny, has not expressed an intention to abrogate the common law distinction; and it would be an act of supererogation in the Courts to do so, upon any extrinsic surmise of such intention. We can only understand the words therefore, in their common law import, of “ corn,” &c. iohich has been severed. It is unnecessary to inquire, whether any alteration of the law was intended by the substitution of the word “ fraudulently,” for the old term feloniously, and by the employment of the phrase, “ with intent secretly to convert, &c.” There may be a fraudulent taking of corn after severance, which might be larceny under the act, although it would not be so at common law. But if the real object of the act had failed, in consequence of a defective expression of the intention of the Legislature ; and it had, in effect, produced no change whatever in the law: still the Courts could not give it meaning, and force, and effect as a penal enactment, by straining the expressions beyond their ordinary legal import. The title, it is true, is, “ An act to make the fraudulent and secret taking of cotton, corn, and other grain, before severance from the soil, larceny.” Blit the title is no part of an act; it affords only extrinsic evidence of the intention of the Legislature, and cannot be resorted to in aid of the interpretation, any more than *■ the testimony of individual members. Indictment quashed.</p> <p>now moved the</p> <p>Court of Appeals to reverse the order quashing the indictment.</p>

Tried before Mr. Justice Earle, at Fairfield, Spring Term, 1831. This was a suggestion to try the right to a sum of money, in the hands of the sheriff, made by him under executions against James Fife, at the several suits of the present defendant, and of the State. James Fife had been prosecuted for two distinct acts of trading with slaves; and on the 1st June, 1827, entered into recognizances to appear and answer to the said prosecutions.

<p>in an action upon an administration bond, the plaintiff may declare for the penalty, without setting out the condition: and after a verdict in his favour upon the issue of non est factum, he may immediately submit the condition of the bond to the same jury, to assess his damages, conformably to the act of assembly, vide 1 Faust, 213.</p> <p>If the defendant go to trial upon the plea of non est factum alone, it is a waiver of any legal defence to the action, of which he might have availed himself under the condition of the bond.</p> <p>An administrator.cannot set up, as a discount to an action on his administration bond, an unadjudicated claim for extra compensation, beyond the commissions allowed by law. vide P. L. 202.</p>

Tried before Mr. Justice Earle, at Lancaster, Spring Term, 1831. This was a summary process by the payee against the maker of a promissory note for sixty dollars, made in the usual form, which had been given in payment of a horse. The plaintiff originally purchased from one Blain, against whom there were unsatisfied executions, to the lien of which the horse was liable.

Before Mr. Justice Gantt, at Chester, Fall Term, 1830. The defendant excepted to the return to a writ for the admeasurement of demandant’s dower — 1. That the return did not specify the entire value of the land, but only the gross sum assessed in lieu of dower. 2. That the commissioners ha'd assessed interest from the death of the husband, although the husband died seized, and it did not appear when the defendant went into possession, or the demandant out of possession.

<p>A creditor compounded with his debtor to receive his bond, with sureties, for part of the debt, in satisfaction of the whole; but, by a private arrangement with the debtor, obtained his individual bond for a further portion of the debt: Held, that although the latter bond might be void as a fraud upon the sureties, it did not invalidate the former bond for usury.</p>

Tried before Mr. Justice Earle, at Chester, Spring Term, 1831. Trespass quart clausum frcgit. The defendant pleaded title in the State, and a licence to enter from the superintendent of public works; and the only question in the case was, whether the title was in the plaintiffs, or in the State. The plaintiffs claimed under a grant to William M‘DanieI, dated November, 1796.

<p>A feme plaintiff marrying pendente lite, may, under the act of 1712, appoint an attorney to prosecute the action in her own name; and the action will not abate, if such appointment be made before coverture pleaded: but the proceedings must be carried on, and judgment signed, in the name in which the action was commenced.</p>

<p>Tried before Mr. Justice Earle, at Union, Spring Term. 1831.</p> <p>This was an action of assumpsit on a promissory note, made by defendant’s intestate, and payable to Charles Gowing, or bearer. Gowing transferred the note after it was due to one Humphries, who subsequently transferred it to plaintiff. The defendant offered in discount certain notes of Humphries, payable to defendant’s intestate; but the presiding Judge held, that under the decision in Nixon ads. English, 3 M‘C. 549, such discount was inadmissible, as Humphries was not the original payee, and the present plaintiff was therefore not affected by any equities subsisting between him and the intestate, although the note was not transferred until after it was due.</p> <p>The defendant then went into evidence to show, that Humphries was largely indebted to the intestate at the time of tbe transfer to him by Gowing, and that he had stated this indebtedness as his motive for taking the note ; that he had made an appointment to meet the intestate and settle their accounts, and deliver up respectively the notes held by them, which appointment he had not fulfilled; and that be had retained the note now in suit for a long time, and only transferred it to the plaintiff when he was on the eve of taking the benefit of the insolvent debtors act. It was further proved, that Humphries was in the habit of paying off the debts of the workmen in his employment, and that the intestate was one of them; that the plaintiff was also in the employment of Humphries, and was intimately acquainted with his affairs. Under these circumstances, it was contended for the defendant, that Humphries’ taking the note from Gowing must be regarded as a payment, and the transfer to plaintiff' could not revive its negotiable character, and deprive the defendant of the right to set-off against it his demands against Humphries: But that in any view of the case, the transfer was a fraud, in which the plaintiff must, under the evidence, be regarded as a participator, particularly as he had not introduced any evidence to show, that he had paid the value, or any consideration whatever to Humphries for the note.</p> <p>His Honour charged the jury, that the question for them was, whether the plaintiff had notice of the nature of the transactions. between Humphries and the defendant’s intestate, at the time of the transfer to him: for however reprehensible the conduct of Humphries might have been, the plaintiff was not to be the sufferer, unless he was cognizant of the circumstances before he acquired bis title to the note.</p> <p>The jury retired, and not having agreed on their verdict when the court was about to adjourn for the day, leave was granted them, with consent of parties, to separate after they had agreed, and to deliver their verdiet on the next morning. When the Court opened on the next day the foreman delivered a sealed verdict; on which one of the jurors stated, that “ it was not his verdict, but he had agreed not to oppose it in order to get outthe verdict on being opened was found to be for the plaintiff, and was ordered to be recorded.</p> <p>Tlie defendant now moved the Court of Appeals to set aside the verdict and for a new trial, on the following grounds.</p> <p>1. That the note having been transferred after it was due, and under very suspicious circumstances, the plaintiff was bound to have shown that lie was a holder for valuable consideration.</p> <p>2. That under the evidence the alleged purchase of the note by Humphries from Gowing was in law a payment, and the subsequent transfer to plaintiff was therefore void.</p> <p>3. That some of the jury having been starved into a seeming acquiescence, the verdict itself was a nullity.</p>

Tried before Mr. Justice Earle, at Chester, Spring Term, 1831. This was a summary process, containing three counts, first, for goods sold and delivered, second on .a sealed note, third on an insimul compulassent. The several counts were for the same amount, and for the same debt.

<p>In scire facias to revive judgment, if the defendant neglect to enter an appearance, the plaintiff may sign judgment and sue out execution, without docketing the case, or entering an order for the purpose.</p>

Tried before Mr. Justice Earle, at York, Spring Term, 1831. Trover for a slave. Held: that the sale to the plaintiff might be referred to the valid levy, notwithstanding the recital in the bill of sale.

Tried before Mr. Justice Earle, at Union, Spring Terra, 1831. Held: that it could only be pleaded in abatement; and was unavailing in any form. The former recovery in assumpsit against Bates, was also pleaded in bar to the joint action against himself and his sureties ; but the Court held, that without satisfaction it was no bar.

<p>Tried before Mr. Justice Earle, at Fail-field, Spring Term, 1831.</p> <p>This was a summary process upon an agreement to deliver a certain quantity of corn and fodder, of the value of seventy-four dollars. Defence, that the agreement had been entered into in consideration of the transfer by plaintiff of a promissory note of one John Gibson, for ninety-four dollars and sixty-three cents, purporting to be indorsed by Tacitus G. Cassity; and that the said indorsement was a forgery.</p> <p>It did not appear that the plaintiff was aware of the forgery at the time of the transfer; nor was there any evidence that he had warranted the indorsement, or that he had referred to it as a security. He had however offered the note, with Cassity’s name indorsed, to two other persons, besides the defendant, and had not expressed to either of them any doubt of the indorsement. It was proved also, that Gibson was utterly insolvent at. the time, and that the fact was known by the defendant, who was selling off his stock of corn and fodder on credit, and had given notice, that in all instances an approved indorser would be required. It was either proved, or admitted, at the trial, that the indorsement of Cassity’s name was a forgery. The presiding Judge gave judgment for the. plaintiff; and this was a motion sjp reverse his decree.</p>

Tried before Mr. Justice Earle, at Lancaster, Spring Term, 1831. This was au action brought by the escheator for Lancaster District, to recover a balance due by the estate of defendant’s intestate on his administration of the estate of Dr. James Claney, who had died intestate, and, as it was alleged, had left no one intitied to claim his estate as next of kin.

<p>Tried before Mr. Justice Earle, at Lancaster, Spring Term, 1831.</p> <p>The plaintiff and defendant were proprietors of adjacent plantations ; and this was an action of trespass quart clausum fregit, for the removal of a fence, which had been erected on the dividing line, at the joint expense of the defendant, and a former proprietor of the adjacent plantation, of whom the plaintiff had purchased. It did not appear that plaintiff had sustained any injury in his crops, or otherwise ; and the fence was decayed, and of little or no value. The presiding Judge held that the action would lie. The fence having been erected jointly by both proprietors, neither could remove it without the consent of the other: but they were not joint-tenants, or tenants in common ; for the fence when erected, became a fixture and part of the freehold, and each proprietor was seized in severalty of so much of it as stood on his own land. His Honor however charged the jury, that a case had not been made for damages : the plaintiff had sustained no injury unless in the loss of the rails; and they had not been proved to be of any value.</p> <p>The jury found for the plaintiff a sum sufficient to carry costs: and the defendant now moved to set aside then verdict, and for a nonsuit, or new trial.</p> <p>If this action had been brought against a stranger, the defendant might have pleaded in abatement that Vaughn was intitled to a moiety. Fox v. Hanbury, Cowp. 445. Smith v. Oriel!, 1 East, 368. Holliday v. Camsell, l.T. R. 658. If so, then this action cannot be maintained. Marty n v. Knowllys, 8 T. R. 145, is a case in point. If the plaintiff has any cause of action it is in case, not trespass.</p> <p>Admitting the fence to be joint property, defendant was guilty of an ouster; and this action will therefore lie against him. 1 Ch. PL 66. Harman v. Gartman, Harp. 430. But the property was not joint: the reasoning of the presiding Judge on that point is conclusive.</p>

<p>If defendant in summary process, being examined on interrogatories, charge himself by his answer, he must discharge himself by proof.</p>

Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830. This was an action of assumpsit upon a merchant’s account, on which the plaintiffs claimed abalance due them of $123.79.

<p>A magistrate may entertain jurisdiction of a suit for contribution, by one surety to a sheriff's bond against his co-surety, if the sum demanded for contribution is within his jurisdiction.</p> <p>On an appeal from a magistrate, the Court of Common Pleas is not restricted to a simple affirmance or reversal of his judgment; but may remand the case for a new trial, with instructions.</p> <p>Where the sheriff has been required under the act of 1820, to procure additional security, and has at different times entered into new bonds, with new sureties, all of the sureties to all the bonds, the old and the new, are liable to contribute equally, in the ratio of the aggregate number of such of them as are solvent, for the defalcations of their common principal.</p> <p>The doctrine of contribution among sureties is not founded on contract, but on the general equity of equality of burthen and benefit: And therefore sureties for the same principal, and the same engagement, are liable to contribute, although bound by different instruments, executed at differ ent times.</p> <p>vide acts of 1820, pp. 42, 43-4.</p>

Tried before Mr. Justice Earle, at York, Spring Term, 1831. This was an action of assumpsit for contribution. Held: that plaintiff’s liability was fixed by the decree, and that he was not bound to wait until costs had been incurred by a judgment against him: nor was it necessary to wait until there had been a judgment at law against the administratrix; the liability of the sureties was fixed by the decree, and a judgment against the administratrix…

Tried before Mr. Justice Earle, at Chester, Spring Term, 1831. This was an action on the case for inducing and enticing plaintiff’s wife to live apart from him. Dr. Park, the plaintiff, married in February, 1825, and remained with his wife in the house of her parents, the present defendants, until July, 1826, when he removed, and took lodgings at the house of one Roden.

<p>Tried before Mr. Justice Earle, at Chester, Spring Terra, 1831.</p> <p>This was an action similar to the last, but brought against the father of plaintiff’s wife, alone. When the verdict in the former case had been entered, the defendant, by leave of the Court, pleaded it in bar puis darrein continuance ; but on demurrer the plea was overruled by the presiding Judge. The defendant now moved to reverse the judgment of the Circuit-Court.</p>

Tried before Mr. Justice Q’Neall, at Spartanburgh, Spring Term, 1830. ' Indebitatus assumpsit for money had and received to the use of plaintiff.

Tried before Mr. Justice Gantt, at Darlington, Spring Term, 1831. This was an action of debt, brought by the plaintiff as assignee of the sheriff, on a bond taken under the prison bounds act. The defendant Segur, being in custody on final process, at the suit of the plaintiff, had entered into the bond in question, with Ingram as his surety, in order to be admitted to the rules; and the condition was in the usual form, to observe the rules, and to render a schedule.

Tried before Mr. Justice Gantt, at Camden, Spring Term, 1831. This was an action to recover the freight of cotton, transported by plaintiff’s boat, from Camden to Charleston. The defendant gave notice of a discount, exceeding the amount of freight, for damage sustained by the cotton during its transportation. The damage, it appeared, was occasioned by the boat’s running foul of “ a snag” in the river.

Tried before Mr. Justice Johnson, at Darlington, Spring .Term, 1831. Summary process on a note, given for the hire of a slave for one year. The slave died within the year, and the defendant claimed a proportionate deduction from the amount of the note, by way of discount. The presiding Judge held the defendant intitled to an abatement of the wages, and decreed accordingly. The plaintiff now moved to amend the decree in this particular.

Tried before Mr. Justice Gantt, at Sumter, Spring Term, 1831. Assumpsit. The declaration contained a single count upon a promissory note payable 1st January, 1822. The defendant pleaded actio non accrevit infia quatuor annos; to which the plaintiff replied, that the action did accrue within four years, and issue was taken thereon.

<p>Tried before Mr. Justice Gantt, at Sumter, Spring Term, 1831.</p> <p>This was a suit by sum. pro. on a lost note. The existence of the note having been established, the presiding Judge permitted Davis, one of the plaintiffs, to prove its loss; and gave a decree for the plaintiffs. The defendant now moved to set aside the decree, on the ground that Davis was not a competent witness.</p> <p>cited Sims v. Sims, 2 Mill. 225.</p>

<p>Tried before Mr. Justice Gantt, at Kershaw, Spring Term. 1831.</p> <p>This was an action of debt against the defendants, as sureties to the official bond of Thomas P. Evans, Clerk of Common Pleas and General Sessions for Kershaw District. The bond was executed the 20th January, 1824, and the condition recited that Evans had been elected for four years from the 9th of February then next ensuing, and until a successor should be elected. The undertaking was, that Evans should well and faithfully discharge and perform the duties of his said office, until a successor should be elected, and commissioned, duly qualified, and enter upon the duties of the said office. To which was added the proviso required by the act of 1820", “ that the foregoing bond shall enure and be good against the aforesaid obligors, for and during the whole period the said Thomas P. Evans shall or may continue in the said office.”</p> <p>Evans was re-elected for another term of four years from February, 1828, but did not qualify on his re-election, nor enter into a new bond, although he remained in office, and continued to discharge its duties, and enjoy its emoluments. The breach assigned in the declaration, was an official defalcation of the defendants’ principal in November, 1829. The defendants demurred, and plaintiffs joined in demurrer. The presiding Judge held, that defendants were not liable either under the acts of assembly, or by the terms of their deed, and gave judgment for defendants. Plaintiffs now moved to reverse the judgment.</p>

<p>Plea by an administrator, that he had fully administered all the goods of his intestate, which had come to his hands in this State, held bad on demurrer : An executor or administrator is chargeable with assets received by him in any part of the world. It is a diiferent question, whether, if he administer in another State, and by virtue of that administration receive assets there, he can be charged with them here.</p> <p>The following-views suggested as to the liabilities of an administrator, who’ has taken out administration in another State as well as in this. If the other State were the domicil ofthe intestate, the administrator is not at all accountable at Law, in this State, for assets received by virtue of his administration in the other State. If the intestate’s domicil were in this State, then his liability in our Courts would depend upon the inquiry; whether his taking posession of the surplus assets in the other State, as administrator of the domicil, would be regarded by the laws of that State as a discharge of his administration there. These matters, it seems, may be investigated under the plea of plene administravil generally, per Haupcr, J.</p> <p>Demu'rrer to replication sustained, but the plea itself being defective, the demurrer goes to the plea.</p>

Before Mr. Justice Gantt, at Darlington, Spring Term, 1831. This was a motion to set aside the proceedings, for irregularity in the writ. The plaintiff’s surname had been omitted in the original capias; but after service it was interlined, and the writ, with a new copy, lodged again iti the sheriff’s office, and duly served on the defendant, previous to return-day.

Before Mr. Justice Gantt, at Sumter, Spring Term, 1831. Proceedings in foreign attachment.

<p>Testator bequeathed shares of his estate to his son J. and his daughter S. for life, with remainder to their children; and added, “if they, or either of them should leave no children or child, or either of their children should die before they should marry, or come of age, it is my will that the part of such deceased should belong to the surviving children of them next in law, if any, and if none, then to belong to my other sons and daughters, to their heirs and assigns forever.” Held, that these words should be construed as if they had been, “ if they, or either of them, should leave no children, or child, then to belong to my other sons and daughters, their heirs and assigns forever: or if either of their children should die before they should marry, or come of age, it is my will, that the part of such deceased child should belong to the surviving children of the same parent, if any, and if none, then to my other sons and daughters, &c.”</p> <p>Where, in a devise to two, their several shares are limited oyer to third persons, on the failure ot issue of either of them, cross-remainders will not be implied.</p>

<p>The defendant in summary process was required to answer on interrogatories, whether he had not verbally accepted an order on him for the payment of money, and whether the debt was not justly due by him. to plaintiff: Held, that on his neglect or refusal to answer, plaintiff was in-titled to a decree pro confesso.</p>

<p>Summary Process against “ William Oliver,” on a note signed “ Willni Olver.” The process contained no allegation that the name “ Willm Olver ” in the note was intended for the defendant; but referred to the copy of the note indorsed on it, in which the signature was truly set out. Held, that there was no variance between the contract sued on, and that offered in evidence.</p>

Tried before Mr. Justice Gantt at Darlington, Spring Term, . 1831. Trespass for breaking plaintiff’s close, and cutting down his trees. The locus in quo, which was uninclosed, had, time out of mind, been used as a regimental muster ground, and no objection had ever been made by the proprietors to this use of it.

<p>Tried before Mr. Justice Gantt, at Chesterfield, Spring Term, 1831.</p> <p>Summary Process on a physician’s bill. The defendant claimed, and was allowed a jury. The account was proved by the intestate’s books, and evidence that the entries were in his handwriting. The defendant objected, that the charges for medicines were too general, not specifying kinds and quantities ; and that the charges for visits were excessive. Physicians were examined as witnesses on both points. On the first they testified, with one exception, that it was usual to specify the kinds and quantities of medicines in making their charges. And they all agreed, that the charges for visits, in the account now sued for, Were double the usual charge in that part of the country.</p> <p>The presiding Judge admitted the entries in evidence; and the jury found for the plaintiff, the whole amount of the account. The defendant now moved to set aside their verdict, and for a new trial, on the grounds taken in the Court below.</p>

Tried before Mr. Justice Gantt, at Darlington, Spring Term, 1831. Summary process on a promissory note payable to A. H. Stewart, or bearer. Cornelius Clements, a witness for defendant, testified that he purchased the note from Stewart, before it. became due; and that having afterwards lost or mislaid it, he made affidavit of the fact before a magistrate, on which defendant, the note being then due, paid him the amount.

Tried before Mr. Justice Martin, at Lexington, Spring Term, 1831. Appeal from a magistrate. The plaintiff called and breakfasted at defendant’s, for which the latter charged thirty-seven and a half cents: the plaintiff tendered a twenty dollar Georgia bill, which defendant was unable to change, but detained as a pledge for the sum due him.

<p>If the defendant in foreign attachment appear and plead to the action, he cannot afterwards move to dismiss the proceedings, on the ground, that there had been no sufficient attachment to make him a party in Court. And it makes no difference, that he had not put in special bail, if the plaintiff permitted him to appear and plead, without making the objection.</p> <p>siide, Vann v. Frederick, e’ p' '</p>

<p>Tried before Mr. Justice Gantt, at Marion, Spring* , 1831,</p> <p>This was an aetion of assumpsit upon a promissory note of James Pouncey, dated 4th March, 1828,and payable one day after date to fhe defendant, “ or bearer,” which was indorsed by the defendant to the plaintiff within a few days after it became due. The plaintiff immediately afterwards, to wit, on the 12th March 1828, brought suit against the maker, Pouncey, in Marlborough Disj trict, obtained judgment in due course, and issued a ft. fa,, which was returned nulla bona; after which this action was brought against the present defendant. The plaintiff gave in evidence an exemplification of the record in the proceedings against she maker. He then examined Col. Legget, who testified, that the defendant informed him, he had indorsed the note, and that suit had been brought upon it against Pouncey. The same witness further stated, that in a conversation with the defendant, he said to the latter that he would have to pay the note, and that he had better do it without suit: to which the defendant replied,, that he would.</p> <p>Here the plaintiff closed, and the defendant moved for :i non-suit, on the grounds : I. That the note was payable to bearér, and the plaintiff had declared against him as indorser. 2. That there had been no sufficient evidence, either of a demand upon the maker, or of notice to the defendant, to charge him as indorser. The presiding Judge ruled, that the • defendant was liable as indorser, and that his liability was therefore properly laid in that character; and that the evidence adduced was sufficient to charge the indorser, where the note was indorsed after it had become due. The motion was therefore refused, and the jury, under the charge of his Honor, found for the plaintiff.</p> <p>The defendant now moved to set aside the verdict, and renewed his motion for a nonsuit, on the grounds relied on in the Court below.</p>

<p>After pleading to the merits, in an action brought by an infant, who declares by guardian, the defendant cannot require proof, at the trial, that the guardian had been duly admitted.</p> <p>A plea to the merits is an admission of the plaintiff’s right to sue in the character in which he declares. The objection goes to his disability, and cannot be taken advantage of but by plea.in abatement. Secus, where he declares in his own right, and the character in which he claims makes part of his title to the thing for which he sues.</p> <p>A variance in the proof from the bill of particulars, as to the amount claimed by the plaintiff, is immaterial; provided, it seems, that the amount proved does not exceed that stated in the bill of particulars.</p> <p>The declarations of a party cannot be introduced in evidence to rebut admissions made by him at a different time. The. rule, that all of the admissions of a party must be taken together, is limited to all that was said at the time, - to which the evidence of the opposite party refers.</p> <p>One who prosecutes a suit for an infant, as guardian, is concluded by a recovery from afterwards claiming the subject matter of the suit, injiis own right, against the same defendant; and therefore, after the liability of the defendant to the infant has been established, evidence of a prior right in the guardian is irrelevant, and inadmissible.</p> <p>An agent cannot question the right of his principal to that which he has received under the authority, and for the use of, the principal; unless he have notice, that some third person claims to be intitledto it.</p> <p>A gift cannot be avoided as fraudulent in relation to creditors, by one1 who is neither a creditor, nor intitled to the rights of a creditor, of the donor.</p> <p>vide Brock-'nStcm .J6' 447, Hutchin456*lnd°Brow-ning •«. Huff,</p>

<p>Tried before Mr. Justice Gantt, at Fairfield, Fall Term, 1830V</p> <p>Trespass for breaking plaintiffs’ close, and carrying away three slaves, Jupiter, Saul, and Anthony. The slaves in question were originally the property of the plaintiffs’ father, Henry Jones, who died in the year 1811: and who by his last will devised and bequeathed the residue of his estate, real and personal, including these, slaves, to his widow Judith Jones “during her life, or widowhood, to raise and educate his children on; and at her death, or should she marry again, to be sold, and equally divided between his children, Nancy Jones, Thomas Jones, Henry Jones, Priscilla Jones, Gilbert Jones, and John Jones.” On the 16th March, 1825, the slaves in question were levied on, under an execution at the suit of William Hall against-Judith Jones, for a debt due by her individually ; and on the sale day in April, 1825, were sold at the sheriff’s sales, in Winnsborough, and purchased by William Hall, for the price of $11,50. In the interval between the levy and the sale, to wit, on the 28th March, 1825, the widow Judith Jones, for the purpose of terminating her individual interest in the residuary estate of the testator, went through the ceremony of a marriage with Samuel Barker; but did not live with him afterwards, and continued to reside at a plantation, which formed part of the estate, and on which all the children above mentioned continued to reside with her, except Nancy Jones, who had intermarried with Henson Barker. The slaves levied on under Hall’s execution were stopped at this plantation on their return from the sale; and there remained until the 21st June, 1825, when the defendants, who were employed by Hall for that purpose, went to the plantation, took possession of the slaves, and carried them to Columbia. To recover damages for this trespass' the present action was brought shortly afterwards : subsequently to which William Hall sold the slaves to Abel Gibson and H. E. Macon for $1150, the price he had given for them ; and took their note for the amount, with condition to be void, if he should fail to establish his title in this action. Gibson and Macon sold Jupiter, one of the slaves, to the plaintiff, Thomas Jones, and took, in payment, his note, with condition to be void, if he failed in this action. Gibson retained one other of the slaves ; and the third was carried to Louisiana by Macon.</p> <p>The action was brought, originally, in the names of Henson Barker, and Nancy his wife, Thomas Jones, Henry Jones, Priscilla Jones, Gilbert Jones, and John ‘Jones, the three last of whom were minors : and they claimed to be the legal owners of the slaves, upon the ground, that the interest of the widow of the testator had determined by her marriage with Samuel Barker, and that previous to the levy, she had surrendered her trust, by delivering the slaves to the plaintiffs.</p> <p>The case came on for trial before Mr. Justice Gaillard, at Fall Term, 1828, when the jury found for the plaintiffs, the full value of the slaves, and their hire from the time of the trespass. On appeal, this verdict was set aside, on the ground, that the right of property was not in the plaintiffs, and that the case had not been submitted to the jury, as it ought to have been, upon the question of the plaintiffs’ actual possession, only. See the opinion of Nott, J. in the report of this appeal. 1 Bailey, 236.</p> <p>A second trial was had before Mr. Justice O’Neall, at Spring Term, 1830: previous to which Henry Jones, Gilbert Jones, and John Jones died ; and the plaintiffs obtained leave to amend the declaration, by striking out the names of Henson Barker, and Nancy, his wife : thus leaving Thomas Jones, and Priscilla Jones, the only plaintiffs on the record. At this trial the presiding Judge instructed the jury, that their verdict depended upon the construction given by them to the evidence which had been adduced, in relation to the delivery of the slaves, by the executrix to the plaintiff, Thomas Jones, and the actual possession of the slaves atthe timeof the trespass. If Thomas Jones wasmerely the manager of his mother, the executrix, his possession was hers, and this action could not be maintained ; but if they had been delivered to him for himself and and his brothers and sisters, and his and their possession was exclusive of the executrix, then the plaintiffs were intitled to recover. They could not, however, recover beyond, the extent of their own interest, to wit, two sixths of the value of the whole ; from which the value of Jupiter should be deducted ; and if the other slaves were within reach of the plaintiffs, the jury would, perhaps, be justified in finding nothing more than the hire of the slaves, for the time they were-in Hall’s possession, without the value.</p> <p>The jury found for the plaintiffs two hundred dollars, for the trespass on the land. Both parties appealed, and the verdict was set aside as insensible. Judge Colcock, who delivered the opinion of the Court, said that the plaintiffs were clearly intitled, by the evidence, to a verdict for the trespass in taking the slaves. It was a high handed and illegal act, and the defence deserved no favour. The surrender and delivery by the executrix to the plaintiffs, if it did not vest the property in them, absolutely, nevertheless unquestionably enabled them to maintain this actiou for a trespass on their possession, and they were in-titled to a verdict for the value of their shares.</p> <p>At the third trial, from which the present appeal was brought up, the jury found a verdict for the plaintiffs, for $2,592,89 ; and the defendants now moved to set aside the verdict, and for a new trial on various grounds, which will be sufficiently understood, from the foregoing statement, and the following opinion of the Court of Appeals.</p>

<p>Tried before Mr. Justice Earle, at Spartanburgh, Spring Term, 1831.</p> <p>The defendant and wife obtained a verdict against one B. Bobo, in an action for slander of the wife ; and the defendant, being indebted to the plaintiffs, by judgment, on which texecutions had been sued out, and were then in the sheriff’s office, by the advice of some friends, assigned the verdict to trustees for the use of the wife. He was shortly after taken, under the plaintiffs’ executions, and applied for bis discharge under the insolvent debtors act; which was opposed by ■ the plaintiffs on the ground, that the assignment of the verdict against Bobo was a fraud, which deprived him of the benefit of the act. The Court directed a suggestion to be filed, and. an issue made up' thereon, to try the question, whether the assignment was made with intent to defraud creditors. This issue came on for trial at the present term, when the jury found a verdict for the plaintiffs. The plaintiffs then contended, that the assignment, having been ascertained to be fraudulent by the verdict of a jury, was therefore void; and that the amount of the judgment against Bobo, having been collected by the 'sheriff under execution, the lien of their executions attached on the money, which was still in the sheriff’s hands: wherefore they moved to have it paid over to them. The presiding judge granted the order; and this was a motion to set aside the verdict, and to rescind the order.</p> <p>cited lleeve’s Dom. Rel. 21, and contended, that the wife being the meritorious cause of the judgment against Bobo, it was a chose in action belonging to her ; and as the husband had not reduced it into possession, the lien of the plaintiffs’ executions had not attached. The husband then might assign it for the use of the wife ; and the Court of Equity would compel him to do so, if the fund were within its control. Whatever one may be compelled to do, he may do voluntarily ; nor are the claims of creditors in the way, for the wife’s equity is paramount to them. The assignment then was valid, and the order for paying the proceeds of the judgment against Bobo to the plaintiffs, must, in any event, be reversed. But the verdict could not stand. To say that a man may lawfully do an act, and yet that that act is a crime, is a solecism. It certainly cannot be fraudulent in a husband to intend, that a fund, which in equity belongs to his wife, shall not be applied to the payment of his own debts.</p>

<p>Tried before Mr. Justice Earle, at Spartanburgh, Spring Term, ' 1831.</p> <p>This was an action of debt on the administration bond of David West, and Stephen J. Casey, administrators, with the will annexed, of Osborne West, deceased, to which the defendant was a surety. The action was brought on behalf of Aaron Casey, and Jane, his wife, the latter of whom was a residuary legatee under the will, to recover the sum of $773,99, with interest from the 24th December, 1816, which the ordinary, by a decree, made on the 3rd February, 1818, had ascertained to be due to her by the administrators, for her distributive share of the residue of the estate.</p> <p>The defendant pleaded, in abatement, another suit, for the same cause, pending at the commencement of the present action. It appeared, however, that a nonsuit had been ordered in the former action, prior to the issuing of the writ in this case; and that it was only an appeal from the order of nonsuit which was pending at the commencement of this action, and that this appeal-had been since abandoned. Whereupon the presiding Judge overruled the plea.</p> <p>The defendant pleaded, in bar, that he had been legally discharged, by the ordinary, and John Williams substituted, as surety, on the 16th August, 1816; to which the plaintiff replied, that before the discharge, to wit, on the 24th January, 1815, David West, one of the administrators, at a sale made by them, bid off, and retained in bis possession, goods and effects of the testator to the value of $1753, and averred that this constituted the sums, for which the ordinary made his decree in favor of the legatees, on the 3rd February, 1818. The defendant demurred, and the plaintiff having joined in demurrer, the presiding Judge gave judgment for the plaintiff.</p> <p>Other pleas were pleaded, which it is unnecessary to specify; and upon the issues made by them, the case was submitted to the jury. The defendant opposed the recovery of interest, upon evj,¿ence t;ult tjle legatee, subsequent to the decree, and when she was of full age, in consideration of her having boarded with the administrator for two or three years, and of his having made no charge for commissions for his management of the estate, had agreed, not to charge him for interest on her share of the fund in his hands. The jury found for the plaintiff the amount of the decree, without interest.</p> <p>The defendant now moved to set aside the verdict, and to reverse the decision of the presiding Judge, on the plea in abatement, and on the demurrer : and moved likewise for a new trial, on various grounds.</p> <p>The plaintiff also moved for a new trial, on the grouud, that the verdict should have been for interest, as well as principal: 1st. Because there was no consideration for the promise not to charge interest. 2nd.> Because the promise was not intended to operate prospectively.</p>

Tried before Mr. Justice Earle, Spring Term, 1831. These were suits by summary process, brought, the first of them at York, the other at Chester, upon promissory notes, given by the defendants, respectively, to the plaintiff’s intestate, a solicitor of the Court of Equity, as fees for professional services.

Tried before Mr. Justice Earle, at Union, Spring Term, 1831, Trover for a slave.

Tried before Mr. Justice Johnson, at Union, Fall Term, 1829. In this case the presiding Judge .ordered a nonsuit, which the plaintiff now moved to set aside.

Tried before Mr. Justice Earle, at Spartanburgh, Spring Term, 1831. Trespass, by summary process, for taking plaintiff’s goods. The defendant justified, as constable, under an execution issued by a magistrate against one Sherbut, and the present plaintiff, jointly, for a debt due by the former, as principal, and by the latter as his surety.

Tried before Mr. Justice Earle, at Union, Spring Terra, 1831. This was an action of assumpsit on a written agreement, in the forra of an indenture of apprenticeship, but not under seal, as prescribed by the act of 1740, P. L. 176, which had been entered into by the mother of the plaintiff, and himself, with the defendant.

Tried before Mr. Justice Earle, at Union, Spring Term, 1831. This was an action of debt on a bond for the prison bounds, in which the. defendant was surety for George M’Kuight, who had been arrested at the suit of Hill and Clark.

Tried before Mr. Justice Earle, at Union, Spring Term, 1831. The defendant became bail for Col. Joseph Hughes, in an action brought against the latter by the present plaintiff; and this was an action on the bail bond.

■ • m Before Mr. Justice Richardson, at Laurens, Spring ierm, 1831. The defendant was convicted at Fali Term, 1829, on an indictment, under the act of 1789, P. L. 486, for horse stealing; and a motion for a new trial was refused by the Court of Appeals, in December, of the same year, vide 1 Bailey, 310.

Tried before Mr. Justice Martin, at Lexington, Spring Term, 1831. • This was an action of debt on bond. The jury found a verdict for the plaintiff, which the defendant now moved to set aside.

Tried before Mr. Justice Martin, at Columbia, Spring Term, 1831. Tills was an action of debt on a bond, bearing date the 22nd March, 1828, entered into by the defendant as surety of W. Hilliard, sheriff of Richland District, with the condition usually annexed to a sheriff’s official bond.

Before Mr. Justice Evans, at Sumter, Fall Term, 1831. This was a rule upon the sheriff, to shew cause, why he should not be ordered to pay over to the Commissioners of Public Building^ for Sumter District, the amount of afine imposed on the defendant, upon bis conviction on an indictment, under the act of 1817, for trading with a slave without a ticket, and which he had paid into the hands of the sheriff.

<p>Tried before Mr. Justice Evans, at Kershaw, Spring Term, 1831.</p> <p>This was an action of assumpsit upon the implied warranty of soundness of a slave. Pleas, general issue, and statute of limitations. The character of this case will be sufficiency understood from the report of a former appeal, at page 11, ante. But little additional evidence was introduced on the present occasion. Daniel Motley testified, that about the 1st of October, 1822, the defendant called on the plaintiff for payment of his notes, on which occasion, the latter said to him, “Suppose I find out that you put off this negro upon me, knowing that she was unsound.” To which the defendant replied, “ 1 forever warrant that, and if yon ever discover that I did so, I will pay the money back.” This conversation occurred, confessedly,, more than four years before the commencement of this action ; but it was insisted for the plaintiff, that the statute did not commence to run against the promise, until his discovery of the defendant’s knowledge of the unsoundness of the slave. The presiding Judge was of opinion, that the case came within the principle settled in Lance v. Parker, 1 Mill, 168, and M’Dow-ell v. Goodwyn, 2 Id. 441; and that the statute commenced to run from the time when the promise was made: so that the plaintiff was barred before the commencement of this action.</p> <p>The jury, under the charge of the Court, found for the defendant ; and the plaintiff now moved to set aside the verdict for misdirection.</p>

Before Mr. Justice Evans, at Kershaw, Fall Term, 1831. The defendant gave his note, which was not negotiable, to the plaintiff; who transferred it by delivery, without indorsement, or other assignment in writing, to John Sullivan. Sullivan afterwards died, leaving the note among his papers; and his administrator brought an action upon it in the name of the plaintiff, without his knowledge, or consent.

Before Mr. Justice Evans, at Sumter, Fall Term, 1831. This was a rule on the defendant to shew cause, why the execution, which had been sued otit against the plaintiff for the costs of this action, should not be set aside. The action was upon a note of the defendant, payable to the plaintiff, or order, and not indorsed.

<p>If a party permit his own witness to testify to the existence and contents of a ' * * document, which ought to be produced, and neither object at the time, nor call for the production of the document, he cannot afterwards object, that parol evidence of the existence of the document was inadmissible.</p> <p>Trover will not lie for goods taken out of the possession of the plaintiff under a search-warrant, without proof of a demand and refusal, or other evidence of a conversion subsequent to the taking. The taking itself is not tortious, and trespass would not lie either against the officer executing the warrant, or his assistants. If the party who obtained the warrant acted maliciously, and without probable cause, the plaintiff’s remedy is by special action on the case.</p>

Tried by Mr. Justice Evans, at Marion, Fall Term, 1831. Summary process upon the joint and several promissory note of the defendant and one Drury Thomas. Held: that putting Chesterfield for Marion was a mere irregularity, which was cured by appearance and that the entry of the name of defendant’s attorney in the docket, at his own request, was a sufficient appearance for that purpose.

Before Mr. Justice Evans, at Darlington, Fall Term, 1831. This was an indictment, under the act of 1801, 2 Faust, 379,. for uttering and publishing, as true, a false, forged, and counterfeit note of the Bank of Cape Fear, of the State of North-Carolina, knowing it to be false, forged, and counterfeit. The defendant pleaded, that he was not guilty of the offence charged at any time within six months before the commencement of the prosecution.

These were indictments under the bastardy act of 1795, 2 Faust, 74, tried before Mr. Justice Evans, the former at Sumter, the latter at Marion, Fall Term, 1831. In each case the mother of the bastard, on being offered as a witness, was objected to on the ground that she was a mulatto; and an issue was made up for trial of the fact by a jury. In each case the jury found the mother to be a white woman, and she was accordingly admitted to be sworn as a witness.

Before Mr. Justice Evans, at Sumter, Fall Term, 1831. This was a suggestion for a prohibition, to restrain the execution of judgment of death, which the respondents, who composed a Court of magistrates and freeholders, had awarded* erroneously, as it was alleged, against a slave, for an offence not Capital.

Before Mr. Justice Martin, at Columbia, Fall Term,-183-1-,, This was an appeal from the judgment of Benjamin Rawls, Esquire, a Justice of the Peace, in a suit brought before him to recover a demand for services, rendered by the wife of the plaintiff, in her profession of midwife, to the defendant’s slave.

Tried before Mr. Justice Martin, at Newberry, Fall Term, 1831.

Tried before Mr. Justice Martin, at Newberry, Fall Term; 1831. This was an indictment, under the act of 1754, P. L. 236, for inveigling, and stealing, a slave named Dick, the property of Jacob Súber, with a third count for aiding the said slave in running away, &c. The jury, under the charge of the Court, found the defendant guilty.

Tried before Mr. Justice Martin, at Abbeville, Fall Term, 1831. This was an action of trover for the recovery of certain slaves, which the plaintiff claimed by parol gift from the defendant’s testator, who was her step-father. The only witness to prove the gift was Mrs. Stuart, the widow of the testator; and she was objected to, as incompetent by reason of her relation to the testator.

Tried before Mr. Justice O’Neall, at Newberry, Extra Term, in July,;i831.. Trespass for assault and battery. After tbe plaintiff had elosed his case, the defendant moved for a continuance, on the ground, that .a material-rand important witness for the defence, who was in Court, and bad answered to his name, at the commencement of the trial, had secretly withdrawn during the examination of the plaintiff’s witnesses, and was not now to be found.

Tried before Mr. Justice Martin, at Newberry, Fall Term, 1831. This was an action of slander, for saying of the plaintiff, “ tell him he is riding a stolen horse, and has a stolen watch in his pocket.” The words were proved, but the defendant moved for a nonsuit on various grounds arising out of the plaintiff’s evidence.

Tried before Ml Justice Martin, at Abbeville, Fall Term, 1831. Special assumpsit. The plaintiff was assignee of an execution against one Alexander, who was the defendant’s overseer for the year 1828, and who, by his agreement with the defendant, was to receive a share of the crop, as the compensation for his services.

Before Mr. Justice Richardson, at Newberry* Spring Term, 1831. This was an action of debt, qui tam, upon the act of 1777, P. L. 286, to recover treble the amount of a sum of money loaned, by the defendant to one Satterwhite, upon an usurious interest.

<p>Tried before Mr. Justice O’Neall, at Newberry, Extra Term, iu July, 1831.</p> <p>Trover for a slave. The plaintiff claimed by a parol gift from his father : and it appeared in evidence, that some time in August, 1813, or 1814, the father, in presence of a witness, took the slave by the hand, and delivered him into the hands of the plaintiff; saying at the same time, “ I give you this slave as your own right and property, reserving the use of him during the joint lives of myself and wife.” The father retained possession, and sometime afterwards sold the slave to the father of the defendant, under whom the defendant claimed. The plaintiff’s father, and the wife, were both dead when this action was commenced ; and the conversion by the defendant was admitted.</p> <p>The presiding Judge ordered a nonsuit, on the ground that the plaintiff had shewn no title to the slave. In order to constitute a gift by parol, there must be a delivery of possession, with a view to pass a present right of property. There can be no such thing as a parol gift commencing in futuro. The supposed gift proved was nothing more than a mere promise to give : and if it had been in writing, would have been testamentary, and was revoked by the subsequent, sale.</p> <p>The plaintiff now moved to set aside the nonsuit, on the ground, that the gift proved to have been made to the plaintiff, vested the right of property in him ; and that it was not divested by the reservation to the donor of the use of the slave for a time : but if the gift and reservation were inconsistent, the latter, being subsequent, must be rejected ; and the gift, being absolute in terms, vested a perfect title in the plaintiff.</p> <p>cited Porter ads. Ingram, Harp. 492. Ingram v. Portel-, 4 M’C. 198. Dupree v. Harrington, Harper, 391.</p>

Tried before Mr. Justice Martin, at Abbeville, Fall Term, 1831. Trespass to try title. The' plaintiffs claimed under a grant to Edward Blake, and offered in evidence a certified copy from the records in the office of the Secretary of State, upon affidavit, made by all the plaintiffs, of the loss, &e., of the original, as required by the act of 1803, 2 Faust, 498.

<p>Tried before Mr. Justice Martin, at Abbeville, Fall Term, 1831.</p> <p>This was an action of trover for a slave, claimed by the plaintiff as part of the estate of his intestate. The defence relied upon was the statute of limitations. The intestate died in March, 1824, leaving a widow, who took possession of the property of the estate, sold part of it, paid debts, and retained the residue» including the slave now in dispute.’ The widow subsequently intermarried with the defendant, who thereby became possessed" of the slave, and had been in possesion more than four years subsequent to the commencement of this action. The plaintiff took out administration in April, 1829, and shortly afterwards brought this suit. There was no evidence of any grant of administration, prior to that obtained by the plaintiff: but the defendant introduced evidence to establish, that the sale said to have been made by the widow, after the intestate’s death, was in fact made by the direction of the plaintiff, and conducted in his name ; that he received the money, paid the debts, and held himself out as administrator. Wherefore .it was contended, that he was chargeable as executor de son tort ; and that the grant qf administration must have relation to his acts in that character, so as to render him liable as administrator, from the date of his intermeddling.</p> <p>The presiding Judge charged the jury, that the evidence might warrant the conclusion, that the plaintiff had rendered himself liable as executor de son tort ; but that this would not avail the defendant in the present action. The plaintiff could ,not, as administrator, avoid his own acts, for which he .was previously" chargeable as executor de son tort; but his previously intermeddling with other goods, did not affect his right to property of his intestate, with which it was not proved that he had ever intermeddled.</p> <p>The jury found for the plaintiff; and the defendant now moved to set aside their verdict, for misdirection.</p> <p>cited Mountforda. Gibson, 4 East, 441.</p>

<p>Before Mr. Justice Richardson, at York, Fall Term, 1831.</p> <p>The defendant, who was indebted to the State, and to several other creditors, by judgment, had been admitted to the benefit of insolvent debtors act, and executed an assignment of his estate and effects accordingly; and upon an application to the Court by the creditors for distribution of a fund in the hands of the assignee, a preference was claimed for the debt to the State. The presiding Judge was of opinion, that the State was not intitled to precedence, and ordered a rateable distribution among all the creditors, in proportion to the amount of their respective demands.</p> <p>now moved to rescind or modify the order for distribution.</p>

Before Mr. Justice Richardson, at Union, Fall Term, 1831.- The defendant entered into a recognizance to the State, which he subsequently forfeited ; but in the interval a judgment Was entered against him at the suit of a private creditor.

Tried before Mr. Justice Richardson, . at Spartanburgh, Fall Term, 1831. Trespass to try title. The plaintiffs derived their title from a grant in 1785 to Y. M’Bee, who in 1786 conveyed to Abraham Markley, the ancestor of the plaintiffs. The defendant was tenant of Joshua Richards, who claimed by possession under a grant to himself in 1808. The case made by the evidence will be sufficiently understood from the subjoined opinion delivered . in the Court of Appeals.

Before Mr. Justice Richardson, at Lancaster, Fall Term, 1831. In this case, an order was made at spying term, 1831, requiring the plaintiffs, who resided out of the State, to give security for costs, o.n or before the 1st’September then next, or be non-suited.

<p>Before Mr. Justice Richardson, at Fairfield, Fall Term, 1831,</p> <p>This was an action of debt on a sealed note, and came on for trial upon demurrer to defendant’s plea. The case made by the demurrer is sufficiently stated in' the opinion delivered in the Court of Appeals. The presiding Judge gave judgment for the plaintiff; and the defendant now moved to reverse the judgment.</p>

Before Mr. Justice Bichardson, at Chester, Fall Term, 1831. This was a motion to reform the clerk’s taxation of costs. The plaintiffs brought their action for the recovery of a balance of $143, 16, alleged to bo due to them by the defendant, upon business tranctions between them to a large amount; but obtained a verdict for no more than $43,12. The clerk having taxed full costs for the plaintiffs, the defendant, at the present term, moved to reform the taxation.

Tried before Mr. Justice Richardson, at York, Fall Term, 1831. This was action of assumpsit upon a parol contract for the sale of three slaves by the plaintiff to the defendant.

<p>To an aetioñ oil a promissory note, brought against a surety in the name of the original payee, it is no defence that the latter had obtained judgment on the same note against the principal, and assigned it to a third person,for whose benefit the action against the surety was instituted.</p> <p>A debtor making a payment has the right to direct its application; and the' rule applies equally to a fund which the creditor receives for him.</p> <p>Money in the hands of a third person is not bound by the lien of an execution against the owner. .</p>

Before Mr. Justice Richardson, at Union, Fall Term, 1831. . This was a rule on the sheriff, to shew cause why an attachment should not issue against him, for refusing to pay over to the plaintiff, the money made under the execution in this case.

Before Mr. Justice Richardson, at York, Fall Term, 1831. The defendant James M. Harris, late sheriff of York, having been attached for the non-payment of moneys collected by him, as sheriff, took the benefit of the insolvent debtors act, and executed an assignment of his estate and effects accordingly.

<p>The following case, and that which succeeds it, were argued and determined at the preceding Charleston term; but copies of the _ opinions could not be obtained by the Reporter in time to insert them among the cases .of that term.</p> <p>A mistake of law is a ground of relief from the obligations of a contract, by which one party acquired nothing, and the other neither parted with any right, nor suffere'd any loss, and which ex cequo et tono ought not to be bind- ■ ing; and it makes no difference, that the parties were fully a'nd correctly informed as to the facts, and the mistake as to the law was reciprocal. But there must be evidence of a palpable mistake, and not mere ignorance of the law; nor will the contract be set aside, if it appear to have been the compromise of a' doubtful right, or to have been entered into, by' the party seeking to be relieved, as a speculating bargain.</p> <p>The maxim, ignorantia juris non excusat, applies, in civil cases, only where redress is sought for a wrong done, or a right withheld.</p> <p>Nothing can be inferred upon a special verdict; but what is not' ascertained by it, will be supposed not to exist.</p>

<p>The tax of one per cent on dividends arising from stock in the Bank of the United States, owned by citizens of this State, which was imposed by the act of December, 1830, is not incompatible with the constitution of the United States.</p> <p>The legitimate subjects of taxation by the States, and the validity of a Stale lux, when conflicting with federal legislation, examined, and discussed.</p>