Volume 2 — Nott & McCord's South Carolina Reports

The defendant in this case was indicted for inveigling, stealing, and carrying away, a negro, from his owner and employer, N oah Michau. It appeared, in evidence, that the prosecutor, Noah Michau, the owner of the negro, lived in Williamsburgh district. He had entered into an agreement with his brother, Alexander Michau, to let the negro work with him that year, and to divide the proceeds of their labor. The negro was in that situation when he was taken or absconded.

This was an action, on open account, for the freight of rice belonging to the defendant, sent from his plantation to Charleston, in a vessel of the plaintiff’s, and consigned to Messrs. Gadsden and Morris, the defendant’s factors.

<p>This case was tried before Mr. Justice Nott, at Charleston, January Term, 1819. Defendant was indicted for sending a challenge, accepting a challenge, and fighting a duel.</p> <p>'On the trial, three witnesses were called up, and the question was successively put to them, by the attorney general: “ Have you, at any time, heard the defendant acknowledge or admit, that he had sent a challenge to the late Mr. Dennis O’Driscoll, or accepted one from him, or fought a duel with him? The witnesses objected to answering this question, oil the ground that the answer would tend, to criminate themselves. It was 'contended, on the part of the State, that the answer to this question could, in. no way, criminate the witnesses, and that it would be time enough when such a question should be put, for them to object; and that the Court, and not the witnesses, must judge of the tendency of the question. It was also urged, that if the witnesses were thus permitted to shield themselves from giving testimony, the law '^against duelling would obviously become a nullity. The presiding r*-, . Judge sanctioned the refusal of the witnesses, to answer, and rested L satisfied with the opinion of the witnesses themselves, as to the tendency of the question. The witnesses being thus excluded, the defendant was acquitted</p> <p>A new trial was moved for, by the State, on the following grounds ,</p> <p>1. Because his Honor the presiding Judge, mistook the law, in refusing to compel the witnesses to answer the question put by the State.</p> <p>.2. Because the answer to the question could not criminate the witnesses, and of this the Court (and not the witnesses) was to judge.</p> <p>3. Because the operation of the decision must not only destroy the duelling law, but will protect all reluctant witnesses,) in every criminal case.</p>

This was an action commenced in the City Court .of Charleston, for the wages of a black bricklayer, the property of Mrs. Barksdale, and employed by the defendant. At the trial, the defendant produced a small memorandum Book, which contained an account of the days work of all the hands employed, and, among the rest, of the slave of Mrs. Barksdale. It also stated the lost time of each slave or hand hired by the day, as was the slave in question.

This was a special action on the case against the defendant, as a common carrier. Mr. Gourdin was the owner of a ferry on Santee river, commonly called and known by the name of Murray’s Ferry. And Oook, the plaintiff in this action, was a citizen of North Carolina, who lost two wagon horses by the unskilful management of the! boatmen, who had the charge or direction of the boat' or flat, in which the plaintiff, with Ms wagon and horses, was crossing the river.

This case came before the Circuit Court, on a rule to show cause why a writ of fi. fa. issued in this case should not be set aside, as to the defendants Charles and Thomas Drayton, their names having, as was alleged, been illegally inserted therein. The circumstances which gave rise to the motion were these: The plaintiff had sued out a writ of replevin against Montague Jackson and-Levy, the other defendants, and thereupon declared against all of the present defendants.

Tried before William Ellison, Esq., at Coosawhatcliie, sitting for Mr. Justice Grimke. *This was an indictment against the defendant, for trading with a slave i-.j™ without a ticket, under the Act of December, 1817, which forbids all L trading with slaves without permits or tickets.

This was a rule on the sheriff of Charleston district, to show cause why he had not levied money and paid it into Court, conformably to the exigency of the execution issued in this case. Held: that an indorsement on a bond, that interest on the principal (if not paid) should be added to the principal, and the whole to bear interest at five per cent, was not deemed usurious.

<p>One of several co-devisees conveyed away the land devised to a third person. He cannot become a co-plaintiff with, the other devisees in an action to try titles against the purchaser to whom he sold, and thereby defeat the title of his own creation, (a)</p>

This case was tried before Mr. Justice Oolcock, at Colleton district, Spring term, 1818. This was an action for malicious prosecution. It appeared that the defendant had presented to the grand jury a memorial, complaining of the conduct of the plaintiff, who was a public officer; that it had been '^received by r*gg the grand jury, but not acted upon, and by them returned to the plaintiff *- as clerk of the Court. Upon this a nonsuit was granted.

<p>A deed cannot be admitted, as an ancient deed, by only giving an account from whence it came, &c., but there must have been possession under it. (a)</p>

<p>After judgment liad been entered up, and execution issued, without the costs being inserted in either, the Court may gire leave to the party to amend, by inserting the costs.</p>

<p>The slightest acknowledgment of a debt is sufficient to take the case out of the statute of limitations.(a)</p> <p>Defendant, referring the examination of the accounts to her agent, or to one acting as mutual agent, is thereby to be understood as saying whatever shall be found due, X will pay.</p>

<p>This was an action of debt on bond, tried before Mr. Justice Nott, at Georgetown, Spring Term, 1819, brought by plaintiff, as administrator of John Smith.</p> <p>The defendant had pleaded non est factum, on -which issue was joined.</p> <p>The first day of the Court, next after the proceedings were thus made up, the defendant’s attorney moved for leave to plead that the plaintiff was not administrator. That motion was refused, and the plaintiff had a verdict.</p> <p>This was a motion for a new trial, and that the defendant might have the benefit of his motion made in the Court below.</p>

This was an action of indebitatus assumpsit, brought in the City Court, to recover back seventy-three dollars sixty-three cents, which plaintiff had paid for four bags of coffee, *purchased at auction as good coffee, which was found afterwards to be damaged. L It appeared in evidence that the coffee had been advertised previous to the sale, as 'prime coffee, and that a sample was exhibited at the time of sale, which was sound and good.

' This was an action of trespass, tried before Judge Nott, at Georgetown, April Term, 18 Í 9. The plaintiff proved that a negro, the subject of this dispute, was in his possession. That the defendant, with two other persons, overtook him on the Georgetown road. One of the persons, a Mr. Davis, claimed'the negro, and the defendant took him away. No violence, either by word or action, was used by defendant.

This case was tried before Mr. Justice Johnson, at Barnwell, April Term, 1819. *The testator, Ambrose Gordon, made his will in Georgia, and died J there, appointing the plaintiff executrix, and two others executors. A copy of the will was lodged in the Ordinary’s office, in Edgefield district, and the plaintiff alone qualified in this State. She commenced this action without naming the other executors, for the recovery of certain negroes in the possession of defendants.

This was an action brought for the value of four barrels of bread, together with the freight to Havana, and the duties there paid. Oaptain John Pratt was the only witness produced. He proved that he, with Oaptain Orocker, was called *on, in Havana, by Mr. Drake, a merchant of that place, to examine twelve barrels of bread, which the defend- L ‘ ‘ ants admitted were purchased of them.

<p>"Where the sheriff summoned a person as a talesman, who had not been drawn, but who sat on the trial, it was held to be a good ground for a new trial.</p>

Tried before Mr. Justice Johnson, at Columbia, October Term, 1819. This was an action of slander, in which the plaintiff obtained a verdict for §500 damages.

This case was tried before Mr. Justice Johnson, at Edgefield, October Term, 1819. It was an action of trover for a horse, in which the plaintiff had a verdict. Property in the plaintiff, and a conversion by the defendant, M’Carty, was satisfactorily proven ; but there was no evidence whatever of a conversion by the defendant, Smith, and this circumstance furnished the only ground of a motion for a new trial.

This was an action for an assault and battery, tried before Mr. Justice Johnson, at Columbia, October Term, 1819.

Tried before Mr. Justice Johnson, at Newberry, October, 1819. The plaintiff had shipped sixty-five bales of cotton on board the defendant’s boat, to be carried from a landing on Broad river, in Newberry district, to Charleston-, for him. .The boat upset in the Hantee canal, and threw the cotton into the water.

<p>-Tried before Mr. Justice Johnson, at Columbia, October Term, 1819.</p> <p>The prisoner was tried and convicted for stealing a horse, the property of John Tidwell, under the following circumstances: The prisoner was known in the town of Columbia by the name of Pleasant Gorman, and had the care of a wagon and team then employed there, belonging to a Mr. Johnston, of Chester district; and Strother Tidwell, the son of the prosecutor, had also under his care a wagon and team belonging to his father¡ which was employed at the same place. On a Saturday evening Strother Tidwell applied to the prisoner, to lend him a horse to ride up into Fairfield’ district, to procure some fodder for his horses. He obtained the horse, and went away, leaving his own team in the care of a Mr. Gandy. On Sunday, the prisoner applied to Gandy to borrow’ one of Tidwell’s horses, to go a few miles below Granby, as he pretended, to obtain hay for his horses; and Gandy lent him the horse, charged to have been stolen, and he went directly off with him to Barnwell district, where he was before known, and was there recognized by the name of William Turnage, and there sold the horse to a Mr. Seigler. In passing through the street in -x-oii ^Columbia, ho told one witness that he had just swopped for the horse ; Ji-l and he told Seigler that he got him as part of his dividend of his father’s estate, who had lately died in North Carolina.</p> <p>One of the witnesses stated that he was employed by Johnston, of whose team the prisoner had the charge, to provide for them, and that the prisoner was under no necessity of troubling himself, on that account.</p> <p>Two witnesses, on the part of the prisoner, stated that they had known him from his infancy, until within the last six or eight years, and they had not then heard anything against his reputation ; but since that time they knew nothing of him ; and that his true name was Pleasant Gorman, but that he was sometimes called Turnage. They never heard William added to it before, nor did they know why he was called Turnage.</p>

Tried before Mr. Justice Johnson, at Newberry, October Term, 1819. This was an action of trover, brought to recover the value of a female slave. She was described in the declaration as a certain female slave, called and known by the name of --■.

<p>Tried before Mr. Justice Johnson, at Granby, October Term, 1819.</p> <p>This was an action of trespass, to try the title to a tract of land, part of a tract originally granted to John Struck, in 1734, and was usually called the White House Tract. Struck conveyed to Henry Kartell, who died in 1768Í and, by will, devised the land to his widow, who, before the war of the revolution, intermarried with William Arthur, The defendant was one of the issue of this marriage. William Arthur conveyed the land to Joseph Kershaw, in 1777, by lease and release, in which his wife joined. But there was no written evidence that she ever renounced her estate or inheritance in the land, before a judge or any other person, authorized to take the same, in the manner prescribed by the Act of the Legislature ; and in 1810, she conveyed all her lands, without particularizing these, to the defendant, on the consideration of natural love and affection. So that the question was, whether, under the circumstances, the jury were ^authorized to presume that she had so renounced her p^q-r estate or inheritance, as to perfect the plaintiffs ? That being the only *■ objection to her title.</p> <p>The circumstances relied on to support this presumption were these : William Arthur, the husband, died in 1786, and his widow remained on the adjoining tract until within a very few years, and never pretended any claim to this; and it was universally recognized in the neighborhood as the land of Kershaw. Jesse Arthur, one of her sons, who lived in the family, negotiated a purchase of tlie land from John Kershaw, into whose hands it had fallen, and for his uncle, Hargrove Arthur, in 1800, as he believed, with the knowledge of his mother and the defendant; and no dispute about the title was then heard of. And Hargrove Arthur, from that time to his death, in 18U7, although he did not plant it, nged the timber on it, and it was known as his ; and Elisha Daniel was put into possession by him, about 1808, who cleared and planted a few acres, and remained there two years; at whose house both the defendant and his mother were accustomed to visit frequently, and were aware that he had contracted to purchase it. Vet, under all this evidence of a hostile claim, the right of the defendant or his mother was never asserted, until after the death of Hargrove Arthur. There were some circumstances which, when connected with the general deed of the defendant from his mother, who was very old and infirm, for all her lafids, without describing these lands, and considerable personal estate, in exclusion of her other children, and that founded,- too, on the consideration of love and affection, that she was not conscious of having conveyed them.</p> <p>The jury found a verdict for the plaintiff; and a motion, founded on the evidence, was made for a new trial.</p>

<p>On a question of location, the course and distance of one line extended ten chains beyond a creek, and its parallel line also extended five chains beyond the creek, which creek (or river) formed a semicircle, with the circumference turned from the centre of the tract in dispute ; the plat represented the whole of the creek in its course, as included in the tract. Upon this evidence, the jury found a verdict to the following effect, and it was supported by the Court, viz.: That the line should be closed by running a straight line from one point to the other, until it encountered the river, and then to follow that until it arrived at where such straight line would cross the river, and then to pursue it until it arrived at the other point.</p> <p>Location is a question of evidence, and cannot be reduced to fixed and definite rules.</p> <p>Course and distance must yield to actual marks, whether natural or artificial; but in the absence of these, course and distance must determine the location.</p>

<p>Where the defendant gave the plaintiff a note of hand on a third person, in payment for property pnrohased, which note had "been, given for money won on a horse-race, therefore void. Held, that the plaintiff may recover the value of the property from defendant, although the note was never presented to the maker for payment.</p>

<p>The Act of 1785, for recording conveyances, embraces sheriff’s as well as other deeds ; therefore a deed from the sheriff, if not recorded within six months, is void as to subsequent purchasers.</p> <p>Qucere. Whether notice will dispense with recording ? (a)</p>

<p>Neither of the attachment Acts has prescribed the form in which bonds shall be given, previous to the issuing of the writ; and any will do, so that the condition be such, that the plaintiff can be made to respond in ddmages to the defendant, in case of any illegal conduct on his part.</p>

<p>Tried before Mr. Justice Richardson, at Newberry, March Term, 1819.</p> <p>This was an action to recover damages for unlawfully whipping the plaintiff’s negro. It was proven that the defendant Keller, styling himself captain of a patrol, and the other defendants, acting under his authority, did whip the plaintiff’s negro, who had a pass from his master. The' number of stripes was not many, nor '-were they severely laid on. Defendant attempted to justify under the patrol law, and on the ground that the pass was not according to law, because it did not state to'what place the negro was going. One of the witnesses said each one gave him some stripes, and that this was the usual mode of whipping by patrols.</p> <p>The presiding judge charged the jury that the case was already made out, and that the only question was, what should be the amount of damages.</p> <p>The jury thought proper to find a verdict for the defendant; and a motion was now made for a new trial, on the ground that the verdict was wholly contrary to law, and without any evidence whatever, on the part of the defendant.</p>

<p>Marriage is a fact to he left to the jury, (a)</p> <p>In a question, whether there has been a marriage, proof that two persons have lived together, as man and wife, will be conclusive, if not rebutted; but, like all other presumptive evidence, may be rebutted by circumstances or positive proof. (b)</p> <p>The declarations of either husband or wife, as to the marriage, are admissible.</p>

<p>The. defendant had been indicted and convicted of perjury. The circumstances of the case were as follows :</p> <p>Shackleford was indicted for stealing a cow. On that indictment he was acquitted, or the prosecution terminated in som'e other manner, which gave him an‘^opportunity of bringing an action for a malicious prosecution -j.,-» against Smith, the prosecutor. In that action it became material for L 1 Shackleford to show that he had purchased the cow in question of one Carter. That fact he proved by this defendant, Hattaway. • He swore he was present when Shackleford made the purchase. He was asked where he lived at the time. He said he lived near Carter’s, perhaps within a few hundred yards of him. It afterwards appeared that he did not live near Carter’s at the time. Indeed it appeared that he did not live in the State, until some time after this transaction was said to have taken place.</p> <p>The perjury assigned was, that he swore he lived in the immediate vicinity of Carter, when, in fact, he did not live there.</p> <p>The cause was tried before Mr. Justice Nott, at Marion Court House, Fall Term, 1818, who instructed the jury that the words laid in the indictment, were not of such materiality as to constitute the crime of perjury. They, however, took a different view of the question, and found the defendant guilty.</p> <p>This was a motion to set aside that verdict, and to grant a new trial, -on the ground that the verdict was contrary to law. 1 VUL1U uumu uuo tvuuvu tVU>0 wmiionj' llU IttlYV.</p>

<p>Where a person, against whom a bill of indictment has been found for a forcible entry, traverses the force, a writ of restitution will not be granted, till the question of force be tried; but the defendant will not, as a matter of course, joe allowed a term, as in other misdemeanors.</p>

This was an action on the case, within the summary jurisdiction of the Court, tried before Mr. Justice Bicbabdson, at Pendleton, Pall Term, 1819, against the sheriff for not taking bail. Held: that the sheriff, not having taken bail, became himself bail, and was entitled to all the privileges of bail to the sheriff; one of which privileges being an exemption from process until a ca. sa'. should be issued and returned. The plaintiff was nonsuited.

This was a case tried before Mr. Justice Gantt, at the Spring Term of 1819, for Fairfield district. Aft.er the plaintiff had gone through with his evidence, the counsel for the defendant moved to quash the proceedings, on the ground that no bond had been given by the plaintiff in the attachment, according to the Act of Assembly. It appeared that the clerk had filed a half sheet of paper, to which was annexed the name of the plaintiff, and another, but otherwise blank.

This was a summary, process, brought upon a note for $25. Defence thereto, a gambling consideration. The plaintiff was called on by the defendant to give testimony in the case, and he testified that one Murdock Ochiltree was indebted to him for property sold, in the sum of $25.

<p>Those were two attachments, one returnable to Kershaw District Court, the other to Abbeville District Court.</p> <p>The plaintiff in the first case made oath before a justice of the quorum, that the defendant was justly indebted to him in the sum of fifteen dollars and seventy-five cents; and that he was privately removing out of the district, or so absconded and concealed himself that the ordinary process of law could not be served upon him, whereupon the attachment issued, and was levied upon the goods and chattels of the defendant.</p> <p>Levy, for defendant, moved to quash the attachment, on an affidavit made by the deputy sheriff) that at the time the attachment was obtained, and also when the same was levied upon the goods of the defendant, he was within the reach of the ordinary process of the law, and could have been arrested. Other affidavits tending to show the same facts were offered, but not read, inasmuch as the presiding judge, Mr. Justice Gantt, overruled their sufficiency in law, to set aside the attachment. - An appeal was made, and the defendant contended for a reversal of the decision below, on the following grounds:</p> <p>1. Because the presiding judge mistook the law, in supposing the attachment could not be set aside, when it clearly appeared that the party was within the reach of the ordinary process of law. ■</p> <p>2. Because the attachment laws were only intended as a remedy in those cases where the party was remediless by the ordinary process of law; and that whenever it clearly appears that the ordinary process of *law will avail idJ-J the party, an attachment issued in such case should be set aside.</p> <p>In the last mentioned case of Grisham and Deale, an appeal was also made from a decision made by Mr. Justice Richardson, at Abbeville, on the last Western circuit, when a similar motion to quash a writ was made, and was sustained by the presiding judge. In this case the oath of the plaintiff was that the defendant intended to remove Ms effects, &c. (ilA/V O/Ctí U.O/ O/tiAlU/IVO Wt'l/C'/C'U/C'U/ U\J IK/IIWW IOOO KjJJ OlyOC</p>

This was a summary process, tried at Marion, Fall Term, 1819, to recover the sum of fifty dollars, due by note. The handwriting of defendant was proved. Defence, usury; and a discount.

<p>This was a motion, on the part of S. E. Kenner, to be discharged from his liability, as bail for the defendant in this case. The plaintiff-had obtained judgment against the defendant, at March Terra, 1819, in an action, wherein S. E. Kenner was bail. An execution against the property of defendant was issued, and returned that nothing was to be found. A ca. sa. was subsequently issued, upon which the sheriff returned that the defendant was not to be found in his district. Whereupon the plaintiff procured the bail bond to be regularly assigned to himself, and commenced his action of debt upon it, against S. E. Kenner, the bail. During the sitting of the Court, at the first terra, the defendant, counsel, appearing, Mr. Kenner, the bail, made his motion, and the presiding Judge granted an order, that the sheriff of the district do take the defendant into custody, in discharge of the said S. E. Kenner, the bail.</p> <p>The plaintiff now moved to rescind the order, on the grounds:—</p> <p>1. Because, upon the return of the ca. sa. the defendant was not to be found, whereby the bail became fixed and liable for the judgment of the plaintiff.</p> <p>2 Because the plaintiff had proceeded to recover the judgment by an action of debt upon the bail bond, before the bail had made his motion to be discharged.</p>

<p>This was an action for trespass guare clausum fregit, tried at Union Court House, Spring Term, 1819, before Mr. Justice Gantt.</p> <p>The plaintiff proved that he resided on the 'land in question, and that the trespass consisted in cutting trees on an unenclosed and uncultivated part of the land, some distance from his house. The witness, who proved the trespass, said he knew that it was within the plaintiff’s lines, because he was present when the land was surveyed. "When the testimony on the part of the plaintiff was closed, the, defendant moved for a nonsuit, on the ground, that the plaintiff proved no actual possession of the part trespassed on, *nor any evidence r*-, „„ of written title. But the Court overruled the motion. L</p> <p>The defendant then offered parol evidence of a license from the plaintiff to cut the trees. The evidence was objected to, on the ground that a license should be specially pleaded, and could not be given in evidence under the general issue. That objection was overruled, and the defendant obtained a verdict.</p> <p>A motion was now made by the plaintiff for a new trial, on the ground that the evidence of license ought not to have been admitted under the general issue. And on the part of the defendant, the same ground was relied on that was taken for a nonsuit in the Court below.</p>

<p>The Court, in its discretion, may give leave to one of several plaintiffs to discontinue, where it appears he has no interest in the cause.</p>

<p>*1441 This ^8,3 an action for a malicious prosecution, tried before Mr. Jus-J tice Nott, at Winnsborougli, August,* 1819. -The declaration, after setting forth the prosecution in the usual form, went on to state, “ That the said John Thomas was, in due course bf law, acquitted of the said premises, &c., whereupon the Judges of the said State, considered and adjudged that the said John should depart thence without day, in that behalf. And the said John was and is duly discharged of and from the premises, in the said indictment specified, as by the records and proceedings appears.”</p> <p>In support of the allegation in the declaration, that the defendant had been acquitted, his counsel produced a copy of the indictment on which it appeared that the grand jury had returned “ no bill.”</p> <p>The counsel for the defendent moved for a nonsuit, on the ground that the evidence did not support the declaration.</p> <p>The presiding Judge, being of that opinion, ordered a nonsuit.</p> <p>This was a motion to reverse that order, and to reinstate the cause.</p>

<p>Where a husband died, leaving a widow and children, and the widow took possession of his property, as administratrix, and before partition she married and died, though her second husband be in possession of the property, as administrator in right of his wife, yet it is not such a possession of his wife’s dioses in action as to vest in him the one-third coming to his wife ; but he will be entitled to the one-third of her third.</p> <p>And though, he administer upon his wife’s estate, and obtain possession, yet he will be compelled to make partition.</p>

Motion to reverse the decision of the Court below. This was an application by James Hood, for an order of Court, directing the sheriff to pay over certain ^moneys to him which he had received, under r*p5o the following circumstances:— *• William Archer died intestate, seized and possessed of a tract of land, and leaving several children, of whom the wife of this petitioner was one.

<p>This was a summary process, on a promissory note, given to plaintiff’s wife, as administratrix of James Ooit, for a horse bought at the sale of the estate of the said James Coit, made pursuant to an order of the Court of Ordinary. The cause was tried at Lancaster, Spring Term, 1819, before Mr. Justice Gantt.</p> <p>The defence was, that the horse was unsound at the time of the sale, of which unsoundness he died shortly after.</p> <p>It is unnecessary to detail the evidence on the part of the defendant. It is sufficient to state that it went to show the unsoundness of the horse at the time of the sale. But it was not pretended that the plaintiffs had any knowledge of the fact, or that there was any misrepresentation or deceit practised by them.</p> <p>When the evidence was closed on the part of the defendant, the plaintiffs contended, that in a sale under an order of the Court of Ordinary, by an ad-ministratrix, there was no implied warranty of the article sold.</p> <p>*1541 *That on an implied warranty, there could be no recovery or defence J without an offer to return the property, or evidence to show that such return was impracticable.</p> <p>These positions being overruled by the Court, the plaintiff called Allston Coit to rebut the evidence given ón the part of the defendant, with regard to the soundness of the horse. He was sworn on his voire dire, and said he had sold the horse to the plaintiffs’ intestate, in May preceding the January when he was sold by the plaintiffs to defendant. He was asked, whether he would not be liable if the horse was unsound when he sold him ? He said he supposed he might be. He was then objected to as incompetent; and the objection was sustained by the Court, and a decree given for the defendant.</p> <p>This was a motion to set aside that decree, and to grant a new trial, on the two grounds above mentioned, and also on the ground, that the testimony of Allston Ooit ought to have been admitted.</p>

<p>An action of assumpsit, for use and occupation, cannot be supported when the possession is tortious.</p>

Tried before Mr. Justice Johnson, at Columbia, October, 1819. Held: that a bond of indemnity to one among several obligors was no defeasance; but it was also held that an undertaking to indemnify a sole contractor, was. There can be no distinction between an indemnity to a sole contractor, and to all the contractors, for they are the sole contractors.

Tried before Mr. Justice Richardson, at Pendleton, October Term, 1819. The defendant, Burdine, being a justice of the peace, had issued an attachment at the suit of the other defendant, Hood, against the plaintiff, Reid, by virtue of which the plaintiff’s horse, saddle, bridle, &c., were taken from him, and out of his immediate possession. The proceeding was founded on that clause of the Attachment Act of 1785, P. L. 3G8, 1 Brev.

This was a motion at Chambers, before Mr. Justice Johnson, for a prohibition against the magistrates *and freeholders, who had tried and con- rxi 75 victed a negro man slave, named Billy, the property of Hugh Hershaw. *• The negro was charged: 1st. With stealing a negro woman slave, named Hannah, the property of-. 2d. With enticing the said negro woman to leave the State. 3d. With aiding the said negro woman to depart from the service of lie? master.

'Phis was a special assumpsit, on a warranty of soundness of a negro. On the trial a written warranty, not under seal, was produced by the plaintiff. The defendant’s counsel moved for a nonsuit on the ground that the warranty should have .been stated to have been in writing. For this supposed defect in the declaration, the presiding Judge, Mr. Justice Johnson, granted a nonsuit. The case was tried at Columbia, October Term, 1819.

Tried before Mr. Justice Richardson, at Spartanburg, November Term, 1819. This was an indictment for a challenge to fight a duel, against the Act of the 18th December, 1812.1 It was proven that in a quarrel between the prosecutor and defendant, defendant, as the prosecutor expressed it, bantered him to go into the old field to fight a duel; to which he replied he did not fight in that way. Defendant had a gun in his hand, and prosecutor said to him he had no gun there.

<p>This was an action of assumpsit on a note of hand, given for a part of the purchase money of a tract of land, sold by plaintiff’s testator to the defendant.</p> <p>The cause was tried before Mr. Justice Nott, at Winnsborough, at a Special Court, August, 1819.</p> <p>The defence was a deficiency of land, by reason of titles paramount in other persons; for the value of which the defendant claimed a deduction. The amount of deduction contended for was eighty-eight acres, taken off by a grant to Ogilvie, on one part, and also a hundred acres included in a grant to Genot, now belonging to Knighton, in another part of the land. The question with regard to Ogilvie’s, depended upon the manner of closing the lines. Knighton’s depended merely on the relative value of the land, If the lines were closed from A to B, Ogilvie’s land was included. If from A to 0, then it would be excluded, and the defendant would be entitled to no deduction.</p> <p>Previous to the sale to the defendant, there had been a resurvey of the lands, and the lines closed according to the manner represented by the line, A 0, which resurvey was present when the deed was made, and referred to as the metes and bounds by which the plaintiff’s testator sold. The presiding judge instructed the jury, that if it had appeared clear and manifest that there was a mistake in the former resurvey, and that the line, A B, was actually the true ‘^line, he should have been of opinion that the defendant would be enti- r*ioK tied to a deduction for the Ogilvie tract.2 But as it was extremely *- doubtful which was the most correct method, he thought the parties ought to be concluded by the deed and plat referred to. The plat was by reference made a part of the deed, and the metes and bounds there exhibited were the lines to which the warranty extended, and no farther.</p> <p>With regard to the value of the Knighton tract there were various opinions. Most of the witnesses, however, thought it more valuable than the other parts of the land.</p> <p>The jury found a verdict for the plaintiff, making a deduction for the Knighton tract. It is not known upon what principle the jury ascertained the amount to be deducted. But it is supposed that they took the average value, and not the relative value of the land.</p> <p>This was a motion for a new trial, on the ground that the jury ought to have allowed a deduction for both parcels of land, according to their relative value.</p>

<p>Defendant, by deed, granted, bargained, sold and released, to the plaintiff a tract of land, to hold in fee, and by the said deed bound himself, his heirs, executors, &e., to warrant and forever defend the premises to the plaintiff, his heirs, &c., against every person whomsoever, lawfully claiming or to claim the same, or any part thereof. The plaintiff may maintain an action for the breach of such covenant, before eviction, by showing a paramount title in a third person, (a).1</p>

<p>To say of a woman, “I caught Lucy W-in bed with Ephraim M-,” is not actionable. Words charging a woman with a breach of chastity are not actionable, unless special damages be proven.</p>

Tried before Mr. Justice Johnson, at Lexington, October, 1819. This was a summary process, brought to recover the value of some cotton, charged to be the property of the plaintiff, which the defendant had converted to his own use.

This was an action of assumpsit, founded upon the following written memorandum : “ I hereby engage to deliver J. K. Douglass & Co., seventy square bales of cotton, all in good order, ten days from this date, at Sumter’s landing, they allowing me twenty-five cents per pound, payable sixty days from date of delivery ; as many of the bags as are rent, I engage to have all mended before delivery, and if the sample sent does not meet Mr. Douglass’ approbation, this agreement is…

Tried before Mr. Justice Richaedson, at Spartanburg, Fall Term, 1819. This was an action of trover to recover damages for two negroes, and some other property, levied on by the sheriff, as the property of John Brown, by virtue of a foreign attachment. It was proved that Brown made a deed of conveyance to the plaintiff for the said property, a few days before the attachment issued, and that the plaintiff gave his note for the payment.

This was action brought in the name of John Simkins, as Ordinary of Edge-*91 Ai district, against *the defendant, surviving obligor on an adminis-J tration bond. The estate had not been finally settled up in the Ordinary’s office, nor had any citation issued to call the defendant into that Court previous to the institution of this action on the bond. The ease was tried at Edgefield, March Term, 18 — .

The defendant was indicted in the Circuit Court of Charleston, in January Term, 1816, for an assault and battery. A plea to the jurisdiction of the Court was interposed on the ground that he was the French Consul, and therefore not amenable to the laws of the State. The plea was sustained by the presiding judge, and now a motion was made to reverse that decision.

<p>The Act of 1818, increasing the jurisdiction of the Inferior City Court of Charleston, is constitutional, (a)</p> <p>The proceeding by indictment is authorized by the Act to prevent retailing spirituous liquors without a license, and is the proper remedy. Bill, plaint, or information includes bill of indictment.</p>

This was an action of debt on a bond given by Mrs. Wood, a sole trader. The cause was tried in Charleston, Spring Term, 1819, before Mr. Justice Colcock, when a verdict was found for the plaintiffs. The several grounds taken on the part of the defendants, in the progress of the trial, were: 1. That the obligor being a married woman, could not bind herself by a deed of any kind. 2.

There were several attachments issued against the defendant by the plaintiffs and others. These were what are usually denominated domestic attachments. The sheriff by virtue of, and under the authority of, the said attachments, levied on the goods of the absconding debtor, and took them out of the possession of his wife and a relation, who, it was said, lived in the house which had been the usual abode of the defendant.

This was an action of assumpsit upon a check for $120, tried before the Be-corder of the Inferior City Court, July Term, 1819. The check, upon which this action was brought, was given by defendant to the plaintiffs for a horse purchased by him from them.

Tried before Mr. Justice Johnson, at Golleton, April Term, 1819. This was an action on a note of hand given by William Jones, deceased, to the plaintiff, for ,§229 68, payable on the 1st January, 1809. Jones died on the first of October, 1811, and this suit was commenced on the 30th March, 1813.

Tried before Mr. Justice Goi.cock, at Charleston, May Term, 1819.

The plaintiff purchased a grey horse of the defendant at $250, but being dissatisfied with his gait, he proposed to the defendant, a few days after, to exchange him for another, and the defendant told him, that he would let him have choice of three others which he had, in exchange, and the defendant took, in exchange, a bay horse, the subject of this action.

Tried before Mr. Justice Bay, at Charleston, October Term, 1819. *This was an action to recover damages for criminal conversation, by rS9fi8 the defendant, with the plaintiff’s wife. L °° It is sufficient to state, that testimony was given to support the important allegations of the plaintiff, both as to his own intermarriage with the supposed wife, and her criminal conversation with the defendant. This connection was at least as early as August, 1815.

This was an appeal from the Ordinary of Charleston District, to the Circuit Court, where, on a feigned issue being submitted to the jury, the following special verdict was found, viz.: “1st. We find that the late William Johnson, duly made and executed his last will and testament, in the words following: “ ‘ South Carolina: “ ‘ In the name of God, Amen.

This was an indictment for retailing spirituous liquors without a license, tried at Charleston, May Term, 1819, before Mr. Justice Colcogk. It appeared from the 'evidence of Mr. Samuel Dubose, that a negro of his went into the store of the defendant, with some corn and an empty bottle; that after he entered, the door was closed ; that he heard the corn poured out, and he heard the liquor poured into some vessel.

<p>Tried before Mr. Justice Nott, Spring Term, 1819, at Georgetown.</p> <p>This action was brought on the endorsement of a note of hand, given by Davis & Evans, the 18th of ^'July, 1809, to William M'Kenzie, or order, paya-2841 ble sixty days after date. * W</p> <p>It was endorsed in blank, by William M’Kenzie to Robert Oooper, and in April, 1810, came into the hands of defendant’s intestate by delivery, and not by the endorsement of the then holder, In the fall of the same year, defendant’s intestate endorsed it to the plaintiffs.</p> <p>Robert Oooper swore, that Davis & Evans failed some time in the year 1810, after he had passed the note to Shackleford. Major Oarr swore, that some time in the year 1813, or 1814, the plaintiff commenced an action in Georgetown, against Mr. Shackleford, on this endorsement. He was employed by Shackleford to defend the suit. After the action was commenced, and while it was pending in Court, Davis, one of the firm of Davis & Evans, came into Georgetown. Shackleford then applied to Major Oarr, to issue a writ against him, which he did, but whether that writ was actually served, or whether Davis ever knew that it was issued, did not appear.</p> <p>The evidence being closed, a motion was made by defendant’s counsel for a nonsuit, on the ground, that no notice had been given to the defendant’s intestate, or to herself, of a demand on the drawers of the note, and a refusal to pay by them, which was granted by the presiding Judge, and a motion was made to set aside that nonsuit; in support of which, the following positions were taken :</p> <p>1. That when a note in endorsed after it became due, no demand of payment from the maker is required, nor notice to the endorser, that it has not been paid.</p> <p>2. If such demand and notice are necessary in ordinary cases, the insolvency of the parties rendered it unnecessary in this case.</p> <p>3. That the issuing of a writ by defendant’s intestate was sufficient evidence of a demand, and of his knowledge that Davis & Evans had refused payment.</p>

<p>Where a defendant has placed the copy of a Sum. Pro. with an attorney, with instructions to make a defence, and the attorney neglects to enter an appearance, and judgment goes against defendant by default, the Court will not set aside the proceedings, and permit him to enter an appearance after the adjournment of the Court.</p>

<p>This case came before the Court of Common Pleas, upon the claim of the demandant, for her dower, in a lot of land, in King street in the possession of the defendant, of which, it is alleged, her husband had died seized.</p> <p>Upon the return of the summons which had issued upon the petition, the defendant came in and pleaded that the demandant was not entitled to dower in the lot of land in question, as her husband had not, at any 'x'time during r. coverture, been seized or entitled to the premises in question. L</p> <p>Upon which an issue was made up, and the cause went to the jury, in October Term last, to try that fact.</p> <p>Upon the trial, the certificate of the Rev. Doctor Plinn was produced and admitted, that the demandant was married to Wm. Scott, Jr., in the month of -, 1809. It was then stated and proved, that William Scott, the uncle of the demandant’s husband, emigrated to America, and settled in South Carolina, not long after the Revolution, where he became a naturalized citizen, and acquired a considerable real and personal estate, of which the lot in question, in King street, formed a part. That after residing in South Carolina several years, the said William Scott returned again to Ireland, leaving his nephew, William Scott, the younger, who had likewise become a naturalized citizen of the United States, his agent in South Carolina, to receive the rents and profits of his lands, and to manage his other concerns, during his absence in Ireland. That soon after the return of the said William Scott, the elder, to Ireland, he departed this life, having first made his last will and testament, in writing, by which he devised a large estate in Ireland, to and among his brothers and sisters, in that kingdom, and their children and their legal representatives, and bequeathed divers legacies to and among them, as stated in said will. And in the residuary clause of his said will, (after the specific devises in his said will mentioned,) he devised all his other property to and among his brothers and sisters, and their children, share and share alike ; leaving Thomas Scott and John Scott, his executors and trustees under his said last will and testament. That after the death of the said Wm. Scott, the elder, in Ireland, the above-named Wm. Scott, the younger, who was also one of the legatees mentioned,in his uncle’s will, claimed the whole of the real estate of his said uncle, in this country, as the only naturalized citizen in South Carolina, who could take the lands of his uncle by ^descent, and entered upon them, aDd received the rents r*0Qf¡ and profits of them to his own use. That the trustees and legatees in <- Ireland, finding that the said Wm. Scott, the younger, after the death of his ■uncle, had claimed the whole of his uncle’s landed property after his death, the said executors and trustees, above mentioned, on behalf of themselves and the other legatees and devisees in said will mentioned, filed their bill in the Court of Equity, in the said State of South Carolina, to compel the said Wm. Scott, the nephew, to account for the rents and profits of the said lands, and to have the whole of them sold, and the proceeds divided among the said legatees, share and share alike, agreeably to the terms of the said will. To this bill of complaint filed against him, the said Wm. Scott, the nephew, came in, and by his answer, admitted, that after the death of his uncle, he had entered into and upon all his said uncle’s landed estate, in South Carolina, and had received the rents and profits of the same, but contended, that, by law, he was entitled to the same, as the only naturalized citizen in America, capable of taking by descent, and that the residuary clause of his said uncle, as to all the lands in South Carolina, was null and void, as it regarded or related to the devisees and legatees in Ireland, who were aliens. Whereupon the said Court of Equity, after hearing all the parties, and their counsellors and solicitors, by their solemn decree, adjudged and declared the said lands, which had belonged to the said Wm. Scott, the elder, in his lifetime, did not pass under the residuary clause in his said will, but, of right, did descend to, and go over to the said Wm. Scott, the nephew, as a citizen of the United States of Americs, and therefore the said Court dismissed the said bill filed by the executors and trustees, in the said will mentioned. After the said decree had been pronounced and adjudged in favor of the said Wm. Scott, the nephew, he generously came in, and voluntarily offered, (out of respect to the memory of his uncle, and his affectionate regard for his relatives in Ireland,) *and consented that the said lands J should be sold and divided among the said legatees, agreeably to the intentions of his said uncle; which consent and agreement was afterwards confirmed by the said Court of Equity. In consequence of which, a decretal order was made, for the sale of the said lands which had belonged to the said Wm. Scott, in his lifetime, and the proceeds to be divided according to the agreement of the said Wm. Scott, the nephew. In pursuance of which decretal order, the master in equity did proceed to sell nine lots of land in King street, which had belonged to the said Wm. Scott, the elder. At which sale, the defendant, Mordecai Cohen, became the purchaser of the lot of land in question, No. 292, in King street, at and for the sum of $4,500 ; this sale was made in the month of January, 1817, and some time in the said year the said Wm. Scott, the nephew of the said Wm. Scott, the elder, departed this life.</p> <p>To the jury, it was urged by the demandant’s counsel, Mr. Dn Saussuee, that it was evident from the foregoing premises, that the above-mentioned William Scott, the younger, held the land in question by a two-fold title.</p> <p>1. By the rules of the common law, as he was the only person in Carolina who could take by descent, being the only naturalized American citizen ; and,</p> <p>2. That he held under- a decree of the Court of Equity, which had confirmed the title in him, consequently, he was, in his life time, seized and possessed in law of the premises in question, so as to give his widow a just claim to dower; and there was nothing in the whole case which deprived her of it. That his consent and agreement, afterwards confirmed by the Court of Equity, could not amount to anything more than a gift or a sale, which would not, in either case, bar the demandant of her claim of dower.</p> <p>Mr. Lance and Mr. Simons contended, that as Thomas Scott, one of the brothers of William Scott, the elder, had been in Carolina some years before his *2971- brother, William Scott, the elder, went to Ireland, and *had returned -* again, and was believed to be an American citizen, he would have taken by the rules of common law, in preference to William Scott, the younger. But there was no positive proof that he had ever been made a citizen; only belief. That the decree of the Court of Equity was not conclusive on points not submitted to it, nor between parties not before them, when the case was determined, and therefore that this case was still open for investigation. That the estate was a trust estate, and not absolute, and therefore never could vest in 'William Scott, the younger, further, than that he held in trust for the legatees; and it was clear that a widow is not entitled to dower in a trust estate.</p> <p>The case then went to the jury, under the charge of the judge in the Court below, and the jury found a verdict for the demandant, with costs.</p> <p>The present was a motion for a new trial for misdirection in the judge, who charged in favor of the demandant, both upon the rules of the common law and the confirmatory decree in equity, and as a verdict against law and evidence.</p>

Tried before Mr. Justice Oolcock, Charleston, May Term, 1819.

<p>This was an action brought before the City Recorder, John Bee Hoi,mes, Esq., in the City Court, to recover a penalty incurred by a breach of one of the by-laws of the city.</p> <p>The only witness called to establish the fact, was Mr. Levy, the deputy marshal. After he was sworn, and had given evidence, it was discovered that he was entitled to half the penalty.</p> <p>An objection was then made to his competency, and sustained. He offered, however, to release his interest; but the judge was of opinion that it was too late after he had given evidence.</p> <p>'A verdict was found for the defendant, and a motion was made for a new trial, on the ground that the Recorder was mistaken in the law, in refusing to permit the witness to release his interest, and then give evidence to the jury.</p>

<p>This was an action of trespass to try title. Tried before Mr. Justice Richardson, at Ooosawhatchie.</p> <p>The plaintiff claimed under an old grant for 5635 acres ; he established the identity of the land, and deduced a regular title from the grantee. He also proved a continued possession in part, of the premises, from the year 1783, down to the commencement of this action, which was brought in the year 1811.</p> <p>The defendant claimed under a grant for 120 acres, dated in 1799. She established the lines of this tract, deduced a regular title from the grantee, and proved the exclusive actual possession of the whole, from the date of the grant.</p> <p>The judge charged the jury, that though the possession of a part by the plaintiff was constructive possession of the whole; yet, that the exclusive actual possession of a different part by the defendant, would rebut the plaintiff’s constructive possession of so much as the defendant had had an exclusive, actual possession of.</p> <p>The jury found for the defendant.</p> <p>The plaintiff moved for a new trial, on the ground of misdirection of the judge, in stating that the continual possession of the plaintiff from the year 1783, did not entitle him to recover against the defendant, the parcel of the same lands of which the defendant had *had actual possession for twelve r.x.q., years, prior to plaintiff’s action. L'</p>

<p>Where a writ of foreign attachment has issued against a defendant, who, at the time, was within the State, the Court will, on motion at the first term after the return of the writ, quash it, although it appear that there was great reason to suspect that the defendant had gone abroad, and that suspicion arising from defendant’s own conduct.</p>

This was an action of assumpsit, on a blacksmith’s account, amounting to $438 43. *To this, non-assumpsit, and a discount, amounting to $372 05, were r*aoQ pleaded. The plaintiff proved his account. The defendant then produced several orders drawn by the intestate on his factor, in favor of the plaintiff, on which were receipts signed by him.

<p>Where a person, who is a witness to a particular transaction, Ras made a memorandum, at tRe time, of certain facts, for tRe purpose of perpetuating tRe memory of tRem, and can, at any subsequent period, swear tRat Re Rad made tRe entry at tRe time for tliat purpose, and tRat Re knows from tRat memorandum tRat tRe facts did exist, it will be good evidence, altRougR tRe witness does not retain a distinct recollection of tRe facts themselves, (a)</p> <p>Where, on an indictment for gaming, the prosecutor was unable to testify to particular facts, except from seeing them in an affidavit made by himself at the time that he had seen the offence committed, the evidence was Reid admissible. Where the prosecutor acknowledged that Re did not know the defendant, but that two persons, with whom Re was gaming, called Rim by a particular name, to which Re answered, and Re pleads to the indictment by that name, and is found guilty, the Court will not grant a new trial on the ground that Re has not been sufficiently identified.</p> <p>TRe rules of evidence are the same in criminal as in civil cases.</p>

Motion to reverse an order made by Mr. Justice Nott, Spring Term, 1820, at Columbia. The Act of Assembly, of 1818,1 requires the Court of CommoD Pleas or Equity, upon application to them made, to appoint five appraisers, to value any lands which may be required by the Board of Public Works, for canals, &c., when they and the owners of the soil cannot agree.

<p>Tried before Mr, Justice Colcook, at Sumter, Spring Term, 1820..</p> <p>This was an action of trespass quare clausum fregit, in which the jury found for the plaintiff $300 damages.</p> <p>The circumstances were substantially these: The defendant, and several others, were out on a hunting *party, and rode into an old uncultivated pggg field, around which there had been a fence, but which was then down in L many places. The plaintiff came up, while they were in the field, and ordered them off. The defendant replied, that he did not know the field belonged to him, and that they would go out, and did so accordingly. While they were yet in the field, and before they could get out, the plaintiff seized the gun of one of the party, (Mr. Moore,) and, in the end, took it from him, but the witness did not know what led to it, as'they were scuffling for it when he first saw them, and while they were engaged, the defendant cried out to some one to “ shoot the plaintiff.” The plaintiff then fled, as the witness said, in a great fright, and one of them pursued him a short distance. The plaintiff had before forbade the defendant to hunt on his land, but he had very recently purchased this place, and it was proved as clearly as negative evidence could make it, that all of the party were ignorant that he then owned it. Several others were joined with the defendant in this action, and the Circuit Court sustained a motion for a nonsuit, as to them, when the plaintiff had closed his evidence, but refused it as to the defendant, on the ground that he had been forbidden by the plaintiff to hunt on the land, and it was left to the jury to decide, whether he knew the land was his or not.</p> <p>The defendant now renewed his motion for a nonsuit, on the ground that the hunting was on the uninclosed grounds of the plaintiff, and, by law, he was authorized to hunt there, and the plaintiff’s forbidding him did not take that right away.</p> <p>If this motion failed, he also moved for a new trial:</p> <p>1. Because there was full proof, that the defendant was ignorant that the lauds belonged to plaintiff. The trespass, if any, was therefore involuntary, and no injury was actually sustained.</p> <p>2. Because the verdict is excessive, and the result of the prejudices of the jury-</p>

Tried before Mr. Justice Non, at Newberry, Spring Term, 1820. This was a rule upon the sheriff, calling on him to show cause why he should not be ordered to pay over to the plaintiff, money which he had collected for him on an execution against Isaac Seymore and Lewis Disher. The sheriff showed for cause, that he had levied an execution which he had in his hands against Somers, on the money, and had paid it over to the plaintiff in that execution.

<p>In an action of trespass to try title, the occasional cutting of timber and the exercise of such other acts of ownership over it, as men are accustomed to do over woodland, is not such a possession as will divest the owner of his right to the soil under the statute of limitations.</p> <p>The possession that will give a title, under the statute of limitations, must be an actual occupancy, a pedis possessio, definite, positive and notorious, (a)</p>

<p>Where a sheriff’s deed recited that a fi-fa., under -which the land was sold, had issued from a particular, when, in fact, it has issued from another; this misre-cital will not he fatal, as a ground of nonsuit, (a)</p> <p>In a sheriff’s deed, a recital of the authority under which he has sold is not indispensably necessary.</p> <p>A bare recital in a deed is not a substantial and efficient part of it.</p> <p>A vested remainder in fee of land may be levied on and sold during the continuance of a life estate, and while the tenant for life is in possession.</p>

This was an action of trespass to try title, tried at Pendleton, Spring Term, 1820, and both plaintiff and defendant claimed through William Richards, who died intestate, in 1809. The title in the intestate was clearly proven, and the only question was, whether the late E. M’Daniel, through whom defendant claimed, was legally naturalized?

Tried before Mr. Justice Richardson, at York, March term, 1820. On the part of the defendant, his counsel moved for the writ of prohibition, in order to prevent the execution of the sentence passed by the Oourt of Justices and Freeholders, who tried and condemned Billy under the Act of 1740, P. L. 163, 229-44.2 The motion was predicated upon the following allegations : 1. That the presiding justices had not been commissioned by the governor. 2.

Tried at Greenville, Spring term, 1820. The plaintiff brought an action against the defendant, who was his tenant, for waste committed on the premises during the term, and the declaration contained also a count in trover for the wrongful conversion of a quantity of plank and scantling. It was admitted that the plank and scantling were a part of the materials of a house, the pulling down of which was the waste complained of.

Tried before Mr Justice Richardson, at Edgefield, March term, 1819. In this case the plaintiff proved that the defendant said “he swore a d-d lie before ’Squire Lamkin,” and that “ the plaintiff was forsworn, and he, the defendant, would overthrow his oath, so that it should never hurt a negro.” It was also proved that Lamkin was notoriously an acting magistrate. On this evidence, the judge nonsuited the plaintiff, which nonsuit he moved to set aside: 1.

The defendant in this case was indicted under the Act of 1816,1 entitled “An Act the more effectually to prevent the pernicious practice of gaming.’’ The Act provides, that if any person or persons, *shall play, &c., “ at any game or games, with cards or dice, &c., except the games of billiards, bowls, chess, backgammon, drafts, or whist, when there is no betting on the said games,” &c., such person or persons, upon being convicted thereof, shall be imprisoned, &c. The Act…

This was an action of trover, for a negro, Joe, tried before Mr. Justice Johnson, at Pendleton, Spring Term, 1820. The plaintiffs claimed under a gift from their father, John Crow Poster, made in 1808, who had sold Joe to the defendant, in March, 1816, for a full and valuable consideration.

This was an action of assumpsit, tried at Camden, Spring Term, 1820, before Mr. Justice Oolcook, on the following note or instrument in writing: South Carolina, Kershaw District : Know all men by these presents, that we, the undersigned, are held and firmly bound, unto William Aiken, of Charleston, in the sum of fourteen hundred dollars, which has been for value received, this 28th day of August, 1819.

<p>Where the maker of a promissory note had made his mark to it, and the subscribing witness was out of the State, proof of the handwriting of the subscribing witness was held sufficient.</p>

This was an action of trespass, tried at Newberry, before Mr. Justice Nott, Spring Term, 1820.

<p>Tried before Mr. Justice Colcock, at Richland, October Term, 1818.</p> <p>This was a motion to set aside a judgment and execution for costs, upon the ground that the plaintiffs were not authorized to enter up such judgment, or tax any costs in the case. It was an appeal from the decision of the Ordinary, on the validity of a will. The case was tried by a jury, and a verdict given, which went to establish the will, and consequently ought to have gone back to the Oourt from whence it came. But the appellant’s counsel entered up judgment in this Oourt, no damages having been given by the jury, and taxed his costs, and issued his execution. The presiding Judge ordered the proceedings to be set aside, and a motion is now made to reverse that decision, on two grounds:</p> <p>1. That the plaintiffs are entitled to costs.</p> <p>2. That defendants, taking no steps to levy proceedings after such a lapse of time, and money actually paid to the sheriff, have concluded themselves, unless they can show improper taxation, which is not pretended.</p>

This was a summary process brought to recover the amount of gaol fees, which accrued upon the confinement of one Thomas Busby, by virtue of a ca.sa., at the suit of the present defendant.

Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1820. This was an action of trespass, for taking the plaintiff’s horse, The defendants were officers in a troop of cavalry, and had holden a Court Martial in November, 1817, to try defaulters at a regimental muster; and had fined the plaintiff in $7 21, for his absence therefrom, had issued execution and taken the horse, and had him sold to pay the fine.

This was an action of trespass quare clausum, fregit; plea, liberum tenemen-tum. Verdict for plaintiff. Mr. Gist, on behalf of the plaintiff, stated that the defendant, or some one nnder him, continued on the land, and moved for leave to issue a habere facias *possessionem, and relied on the case of Sumter v. Lehre,2 as authority for the order, which was refused. A motion was now made to reverse the decision below, and for leave to issue the writ. [*383

This was an action of trespass to try title, in which the plaintiffs claimed as heirs at law of William Howell, Sen., deceased. The defendants claimed under Robert Howell, a devisee, under the will of the said William Howell. If Robert Howell took a fee under the devise to him, the defendants were entitled to hold the land; if he took only a life estate, the plaintiffs were entitled to recover.

This was an action of detinue, to recover a negro woman. Tried before Mr. Justice Riciiabdson, at-, May Term, 1816. The plaintiff sued as guardian of Thomas V. Collins, and upon the trial it was proved that John Hogan purchased the negro at sheriff’s sale, and conveyed her to plaintiff. The negro was not present at this sale, but had been levied upon by the former sheriff, who had not delivered her to his successor.

Debt on judgment, tried before Mr. Justice Gantt, at Sumter, Spring Term, 1820. This was an action of debt, brought on a judgment recovered against defendant’s intestate, in his lifetime. After the verdict on which this judgment had been entered up, was first obtained, the defendant appealed to the Constitutional Oourt for a new trial, where the case was suspended for two or three years.

Tried before Mr. Justice Richardson, at Lancaster, Spring Term, 1820. This was a sum. pro., in which the discount was offered within nine months, during which the administrator is protected from suit by the Act of 1789. The presiding judge thought the discount, operating in the nature of an action, could not be pleaded within the time. The plaintiff had a decree, from which the defendant appealed, on the ground that the discount was admissible.

Trespass to try title, tried before Mr. Justice Oolcock, at Abbeville Court House, Spring Term, 1819. Adam M’Kee, claimed to be the real defendant, and was entered as such on the record. Plaintiff’s title — 1. A grant to William Levingston and his associates, dated *4011 ^th ^une> for 50,000 *acres, tract No. 3, by J ames Glenn, governor -1 of the then province. 2.

This was a prohibition, tried before Mr. Justice Richardson, at Chambers who made the following decision : “ It is admitted that A. Hall is a private within the beat company of Oapt. Wakely. It is not denied in the oath verifying the suggestion, that the Court Martial was legally constituted. But it is alleged that A. Hall was not summoned to attend one of the musters, and had a legal excuse for Ms absence at the other.

<p>The captains of militia companies, for defaults of attendance at petty musters, are authorized "by law .to hold Courts Martial, without any order from any of the field officers of the regiment.</p> <p>The captain, ordering the Court Martial, may preside as President; and is the one to approve of the sentence of the Court.</p> <p>A militia man is not allowed to send a substitute.</p> <p>Under the Act of 1808, enacting that ‘ ‘ every private who shall wilfully neglect to turn out at any ordinary muster, shall be fined the sum of one dollar and fifty cents, and fifty per cent, on the amount of his general tax, ’ ’ a sentence in these words and figures, viz., “§1 50, and 50 per cent.,” is sufficiently definite.</p> <p>Every Court, acting clearly within its jurisdiction, in a case legally submitted, is independent of all other Courts, to which no appeal is given.</p>

This was an action to recover damages for a trespass, committed with, force, in taking and carrying away a load of peaches from off the land of plaintiff, of which she was in peaceable undisturbed possession, and from the judge’s report, (Mr. Justice Nora, who tried the case,) had been so for the space of thirty years. Yerdict for plaintiff, with $20(Tdamages. • *416] *The defendant moved for a new trial, on the grounds: 1. Because the damages were excessive. 2.

Tried at Sumter, Spring Term, 1820, before Mr. Justice Oolcock. This was an action of trespass to try title to a tract of one hundred acres of land. On the part of the plaintiff, was produced : 1. A grant to Robert Murphey, dated 29th October, 1776, for one hundred acres. 2. A deed from the grantee to William Dukes, in 1780. 3. A deed from Dukes and wife, to R. Richardson, dated 4th October, 1810. It appeared that Dukes was in possession before the year 1792.

On the 23d day of December, 1819, on application before Mr. Justice Gantt, at Chambers, the following order was obtained, viz.: At Chambers — Columbia. Ex Parte, A. Silliman — In the matter of negro Manuel.

This was an action of debt on a recognizance to support a bastard child, tried at Abbeville, Fall Term, 1819. The declaration was upon “ a writing obligatory, commonly called a recognizance.” Archy Mayson was the only surety to the recognizance. The general issue was pleaded, and a motion made for leave to demur in addition, which was overruled. A motion was made for a nonsuit, which was also overruled.

<p>This case came before the Court on the following report of the Recorder of the Inferior City Court:</p> <p>“ This action was brought against the defendant, as survivor of the firm of Brennan & Stone, upon the ground that Brennan was a dormant partner.</p> <p>“The evidence produced to establish the .partnership, consisted of two letters written by the defendant to Mr. Stone, and the depositions of a Mr. Murray, examined under written interrogatories. The letters merely show the consignment of certain articles to Stone, by the defendant, with some directions respecting their disposition. Mr. Murray said that John Stone kept a store in Beaufort, which was supplied with goods by the defendant; and that he, witness, was present when an agreement was entered into between the defendant and Stone, respecting the articles consigned. The answer of the 6th inter-*A9Rl rogatory being objected to, as containing inadmissible testimony, *and the objection being sustained, no other evidence than the foregoing was offered in support of the action.” He remarks, that he observed to the jury, “ that to render the defendant liable as a dormant partner, it was incumbent upon the plaintiff to prove that the deceased, Stone, and himself, divided the profit and loss of the property disposed of by the deceased; or that the defendant had allowed the deceased to hold him out as jointly concerned with him; that these requisites had not been established, and that nothing more had been shown than that the defendant furnished Stone with goods, as he might any other shopkeeper. I, therefore, thought the defendant was entitled to a verdict.”</p> <p>The jury found for the plaintiff.</p> <p>The grounds taken on a motion for a new trial, were :</p> <p>1. That there was not sufficient evidence on the part of the plaintiff, to prove the existence of any copartnership in business between the defendant and the deceased, John Stone, so as to make the defendant responsible as a surviving partner.</p> <p>2. That if there was evidence of any connection in business between the said parties, there was none to prove the plaintiff’s demand to be on the account of such concern, or within the sphere of their transactions.</p> <p>3. That the evidence, on the part of the plaintiff, consisting of letters written by him, to the deceased, John Stone, proved the transaction to be merely a consignment of the articles by the defendant to J. Stone, to be sold on his (defendant’s) account, disproving an actual sale to the said J. Stone, as alleged by the plaintiff, and showing the transaction to be very different from the species of business attempted to be proved to have been carried on by the defendant and J. Stone, at Beaufort.</p> <p>•4. That the verdict of the jury was against the charge of his Honor the presiding judge.</p> <p>5. That the verdict was generally contrary to law, and the evidence adduced at the trial.</p>

This was an application, at Colleton district, April Term, 1818, for a writ of partition, to divide the real and personal estate of Peter Ulmer, deceased, according' to the disposition of the last will and testament of the deceased. The testator, by his will, left all his property’to be equally divided between his wife, the defendant in this case, and his children, when the youngest child should arrive to the age of fourteen.

<p>Although the drawer of a hill of exchange, between the making and the time at which the hill becomes due, draws all his funds out of the hands of the drawee, this, alone, will not dispense with the necessity of the payee’s presenting the bill for payment when it becomes due, and giving the drawer notice of nonpayment.</p> <p>If the drawer of a bill of exchange has no effects in the hands of the drawee from the date till the time of payment, demand and notice are dispensed with. But there should be a total absence of all effects during all that time.</p> <p>And it should appear that the drawer knew that there would be no effects ; and that where the effects failed from accident, and did not reach the drawee, demand and notice are not dispensed with, ut semble.</p>

This case was tried in the Inferior City Court, at March Term, 1820, where a verdict was found for the plaintiff. *On a motion in arrest of judgment, and for a new trial, made in this Court, the case made by the report of the honorable the Recorder, was L substantially as follows : The defendants had severally obtained licenses as vendue masters, and after-wards entered into a copartnership in that business, and this was an action against them as vendue masters, founded on…

These suits came before the Constitutional Court, upon the following report of the Recorder of the Inferior City Court: “ They were brought upon two promissory notes, one of them for two hundred and eighty dollars, dated 10th April, 1819, payable fifty-five days after date, drawn by Wagner and Cowing, in favor of and endorsed by S. E. Cowing and E. Wagner.

The defendant in this case was indicted for stealing a cow and a calf. There was no evidence with regard to the calf; the jury nevertheless found a general verdict of guilty. This was á motion for a new trial, on the ground that the verdict was contrary to evidence. The case was tried at Colleton, Spring Term, 1820.

In this case the jury refused to deliver the record on which they had found a verdict for the plaintiff, until they were paid five shillings, the sum allowed for a verdict by the Fee Bill of 1791. The plaintiff contended that the Act of 1816, allowing to each juror one dollar per day for his services, had repealed that part of the Fee Bill of 1791, under which the jury claimed their fee.

This was an action of replevin. The property of Thomas M’Colgan, who was the tenant of Huston, was distrained for rent on the 8th of July, 1819. On the 12th, a writ of replevin was lodged with the sheriff, who retook a part of the distress, but not the whole, and on the - day of-, the sheriff made a return of elongata, as to the part of the distress he had not been able to find.

<p>It is unusual for tlie Court to grant a new trial on the ground of excessive damages where injuries have heen done to property under highly aggravated circumstances ; the amount must always he a matter for the sound discretion of a jury.</p> <p>Where, in action on the case for heating a negro, evidence of the defendant’s character is given, to which no ohjection is made on the trial, it will not furnish a ground for a new trial.</p> <p>Where a new trial is moved for, on the ground that one of the plaintiff’s witnesses had heen bribed to swear falsely, to which fact the witness mates affidavit, it will he sufficient ohjection to the admission of the affidavit, that a copy of it was not submitted to the plaintiff; hut waiving that ohjection, a new trial will not he granted on that ground, ut semble.</p>

<p>By the Act of 1797, the coroner is required to issue his warrant to a constable, to summon a jury of inquest; and where a juror is summoned by the coroner in person, the summons is illegal.</p> <p>The Act of 1798 has not changed the manner of summoning jurors.</p>

This case came before the Court, by way of an appeal from a decision which was made by Mr. Justice Bay, at Chambers, on a motion to quash the abovq writ; which motion was sustained, and the same was ordered to be set aside. #.i *The circumstances ■which gave rise to the above proceedings, are briefly the following, viz.: Mr. Gist,the plaintiff in replevin, it appeared had been fined by Oaptain Cole, an officer of the 31st regiment of militia, for divers defalcations, in not…

This was an action of assumpsit, tried before the honorable the Recorder of the Inferior City Court of Charleston, May, 1820, in which the jury found a special verdict, in the following words : “We find, that on the 10th of August, 1819, five halves of five bank bills of the bank of the defendants, payable to bearer, and amounting together, before they were cut, to the sum of one hundred 45.4j.KI and eighty dollars, the property *of the plaintiff, were enclosed by the J…

<p>This was an action to recover a sum of money due for ferriage, from the year 1802, to 1812, tried at Charleston, May Term, 1819.</p> <p>To support the claim, the plaintiff’s books were introduced, and were admitted to go to the jury as evidence. They were proved in the usual manner by those who had made the entries; and as to one who was dead, his hand-*4721 was proven. It was ^proved, that the rates of ferriage had been at different times set up, though there was a portion of the time when the witnesses could not swear that they recollected to have seen them up.</p> <p>A verdict was found for the plaintiff under the direction of the Court; and a motion is now made for a new trial, cm the following grounds :</p> <p>1. Because the books were not evidence under the act of 1721, to go to the jury as evidence of the plaintiff’s claim. .</p> <p>2. Because his honor erred in directing the jury in finding a verdict generally against defendant, for the whole of the plaintiff’s demand.</p>

<p>The city guard of Charleston have the right to arrest persons committing affrays or breaches of the peace, without any warrant.</p>

<p>Where a demand has not been made on the maker of a promissory note, and the endorser, under a knowledge of this fact, agrees to pay it, a presentment to the drawer will be presumed, and it is unnecessary to prove it. (a)</p>

This was an appeal from the Ordinary of Beaufort district, before whom two testamentary papers were produced, each purporting to be the last will and testament of William Taylor, deceased. The defendant was the principal legatee in both wills. But the plaintiff was only a legatee under the first. Other legatees were substituted for him in the second will. The first will bore date in 1810, was signed by the testator, and subscribed by two witnesses.

Assumpsit upon notes, tried in the Inferior City Court. The report of the Recorder is, that “the plaintiffs in these cases, took verdicts for the principal sums due upon their causes of action, which were promissory notes, releasing their right to all interest. If the interest had been added, the verdicts would have exceeded the amount to which the Court had jurisdiction.

In March Term, 1818, on application to the honorable Justice Grimke, who presided, leave was granted to the plaintiff in attachment, to cause a notice to be served upon the garnishee, requiring him to make his return to the attachment, on or before the sitting of the next Court: and allowing to the plaintiff-leave to file his declaration. The garnishee having failed to make such return, a motion was made, Spring Term, 1820, for leave to enter up judgment against him.

<p>This was a summary process to recover $30, for so much money had and received, to the use of the plaintiff.</p> <p>Bichard Bryan proved, that defendant was about going to Charleston, and received $50 from plaintiff, inclosed in memoranda of articles to be purchased for her, by him, which he had in his pocket-book ; that the same day they left home, some cotton, belonging to a brother of defendant, was levied on by the sheriff, and to redeem that cotton, defendant paid the debt with the plaintiff’s money, and his own; that when he reached Charleston, the cotton was delivered *to the factor ; and defendant received a check for the amount r#4qn of the money paid to the sheriff on account of the cotton ; that this *■ u check was paid at the bank to defendant, who put the money in his pocketbook, where he kept his own money ; that defendant went afterwards to purchase the articles for the plaintiff; but his pocket-book and all his money had been stolen in the meantime from his pocket.</p> <p>This was all the evidence, and the Court gave a decree for defendant. From this decree the plaintiff appealed, and moved to reverse the same.</p> <p>1. Because the defendant having applied the plaintiff’s money to his own use, or a different purpose than what he had undertaken, it created an implied promise, or personal obligation, on his part, to pay the amount, which the loss of his pocket-book, and a different sum of money, in no wise discharged.</p> <p>2. Because the decree was contrary to law and the facts of the case. 'CLauoo we ucucc wao ucuiituj ou xoiVY</p>

<p>Where a rule is served on the sheriff for not making money on a ji. fa., he cannot defend himself "by objecting to the manner in which the verdict against the defendant was recorded.</p> <p>Where a defendant pleads non, est factum to an arbitration bond, the amount of damages is not put in question.</p>

Tried before Mr. Justice Huger, at Colleton district, April Term, 1820. This was a summary process, brought to recover the amount of costs, say $26 59, incurred, as was alleged* by plaintiff, as the security of de- ._. fendant, to a joint note given to David Frier, of which the following is L a copy, viz., “ On or before the 25th December next, I promise to pay to Mr. Frier, or order, the sum of $110, being for value received, this 19th March, 1806. Witness, ■ Jacob Stevens.

<p>A war suspends the operation of the statute of limitations between the citizens of the two countries for the time during which it continues.</p>

<p>This was an action of slander, tried before Mr. Justice Huger, at Granby, Fall Term, 1820, for charging the plaintiff with having stolen iron and steel from the defendant. In one count of the declaration, the defendant is charged with having spoken the words by way of interrogation, and in the other of having accused him directly with the felony. The words were proved to have been spoken interrogatively.</p> <p>And when the plaintiff had closed his testimony, the defendant moved for a nonsuit, on the ground, that the words proved were not actionable. That motion was overruled.</p> <p>*5121 defendant then moved for leave to give in evidence* the general J character of the plaintiff, by way of mitigation of damages. That motion was also overruled.</p> <p>He then moved to give in evidence the record of his conviction for perjury, and that was also refused, and the plaintiff obtained a verdict.</p> <p>This was a motion for a nonsuit, or new trial, on the following grounds :</p> <p>1. Because the words proved were not actionable.</p> <p>2. Because the presiding judge refused to let the evidence which was offered, go to the jury.</p>

<p>Where a vendor gives a written warranty of soundness of a negro, which after-wards is found to he unsound, it is immaterial whether the vendee knew of the unsoundness or not; it is a mere matter of contract, and the vendee is entitled to recover the difference between the value of the negro, if sound, and his actual deterioration by the unsoundness.</p> <p>Where a warranty of the soundness of a negro is given, which afterwards proved to be injured from twenty-five to thirty per cent, by disease, and the jury give mere nominal damages, a new trial will be awarded, (a)</p>

<p>Nothing But gold or silver is a legal tender, under the Constitution of the United States.</p>

This was an action of assumpsit, on a promissory note, for ninety dollars, to which the general issue was pleaded. It appeared from the evidence, that the note was given for a horse ; that at the time of the purchase, the defendant was a minor, and had married and lived on a piece of land, where he supported himself by farming. The horse purchased, was the only one owned by the defendant, and was not worth more than half the price given for it.

This was an action of trespass, guare clausum fregit, brought in the Circuit Court, at Sumter. In this case it appeared that John W. Rees was the'owner of a plantation, from which there was a way long established, leading to the public road, between Camden and Charleston. A way, however, through the plantation of the plaintiff would have been shorter and more convenient to Mr. Rees. He accordingly applied to the Commissioners of the Roads, for such a way.

<p>Motion to reverse judgment on demurrer.</p> <p>This was an action to try the title to 350 acres of land, in Lexington district.</p> <p>-x--oqi The defendant pleaded the general issue, and a '^special plea in bar. >pjle Specja] p]ea stated, that the defendants were the purchasers of the land in question, from-, who recovered it in an action of trespass, to try title, instituted by them against the present plaintiff, in the Court of Common Fleas, for Lexington District, and that on an appeal to the Constitutional Court, that recovery had been confirmed.</p> <p>To this plea, there was a general demurrer, on which the present question arose.</p> <p>The presiding Judge overruled the demurrer, and gave judgment for the defendant in the action.</p> <p>A motion was made to reverse that decision, on the ground that the defendant in an action of trespass to try title, is not prevented by a recovery against him, from becoming himself in turn the plaintiff, and sustaining a second action to try the title.</p>

This was an appeal from the Ordinary to the Court of Common Pleas. Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1820. The Ordinary refused to admit to probate the paper proposed, as the last will and testament of Arromanus Lyles, deceased, upon the ground, that as it purported to be a deed, it ought to have had all the forms of a perfect deed, or it could not operate as a will.

<p>This was an action of trespass to try title.</p> <p>The plaintiff produced a grant to Joseph Tiller, for the land, dated 1st March, 1802, and a deed of conveyance from Joseph Tiller, to the plaintiff, dated 3d August, 1818. On the part of the defendant, a grant to himself was produced, dated 3d May, 1802. No question arose as to the genuineness of the title on either side, nor in the location. The defendant proved that John M’Orory went into possession, as his tenant, 'x'in 1718, and continued in the occupation of the land until 1819, living in a house on the land, and L cultivating a small field. Davis proved that he built a house on the land in 1816, and went into possession as defendant’s tenant, and continued about a year. He said the land had been well timbered, but since the year 1802, the defendant had been cutting timber for his saw mill, and the greater part of the timber had been cut down and used. The timber had proved very valuable to the defendant, and the land had been principally valuable on account of the timber, inasmuch as it was not well suited for cultivation. No person had cut timber but the defendant. Joseph Kincaid had been in possession under White, in 1802. Dr. Charles Boyd, defendant’s surveyor, proved that almost all the timber was cut down, the land is very poor and stony, and but a small portion of the whole fit for cultivation. The cutting appeared to have been at different periods, and long continued. The land lies convenient to defendant’s mill, which is not far from it. One witness said it was more advantageous to use the timber for the mill, than to cut it down all at once for cultivation. James Hamilton proved much the same as Dr. Boyd. The verdict was for the plaintiff. The judge charging in his favor, that the mere trespasses, however repeated and continued, could not constitute a title by possession.</p> <p>The motion was for a new trial, on the following grounds:</p> <p>1. Because the defendant’s title being a grant from the State to himself, supported by a short anterior possession in his father, and a subsequent occasional possession by his tenants, and the defendant’s exercising for a long time, acts of ownership, acquired a legal title in himself..</p> <p>2. Because the presiding Judge misdirected the jury in expressing the opinion, that such a title and such a possession could not overthrow the plaintiff's title, though his grant was never accompanied by a concurrent possession.</p>

Special action on the ease. In this case the plaintiff brought his action against the Commissioners of the Roads for Edgefield district, for the injury done to Ms wagon and horses, from the insufficiency of a bridge over Wilson’s creek, which it was alleged they were bound to keep in proper order, and had not done so. A verdict was given for the plaintiff.

Tried at Orangeburg, Spring Term, 1820, before Mr. Justice Nott. This was a special action of assumpsit, to recover damages upon the sale of eleven bales of cotton, said to be fraudulently and falsely packed, by having the cotton in the centre of the bales wet. The cotton *was sold by the r*jrqq defendant to the plaintiffs, in Charleston, and by them shipped to their L 0 a correspondent in Liverpool.

<p>Where a person, much indebted, made a deed without consideration to one of his children, out of several, of all. his property, and declared to a witness that he did it to avoid paying a particular debt :• — Held, that the deed was fraudulent and void as to creditors, under the statute 13 Eliz.</p> <p>Where a man owes a sum of money at the time of making a gift to his child, without consideration, and the money is never paid, the presumption of fraud can only be rebutted by showing very abundant property over and above the gift, kept and retained by the donor for the purpose of paying his debts. And if, in the ordinary course of events, such property turns out to be inadequate to the discharge of his debts, the presumption of fraud remains, although the property reserved may have been deemed originally adequate to that purpose, if exclusively so applied.</p>

<p>In this case one of the defendants, who was also an attorney of this Court, accepted the service of the writ. He omitted to enter an appearance at the first Court, after the return of the writ, according to the requisitions of the Act of Assembly, and the practice of the Court. He acknowledged that his reasons for not entering an appearance, were, that he might not thereby cure a supposed irregularity in the copy writ, of which he intended to take advantage at the second Court. The plaintiffs’ attorneys had taken an order for judgment for want of an appearance, and placed the cause on the writ of inquiry docket.</p> <p>At the second Court, the defendant, after an unsuccessful attempt to quash the writ for irregularity, moved to set aside the order for judgment, and to plead to the merits of the action.</p> <p>The presiding judge was of opinion, that as he had not entered an appearance at the first Court, he was not entitled to plead; but as the plaintiffs’ attorneys were not then prepared to execute a writ of inquiry, and it was stated that the practice had been various in that respect, he permitted the plea to be put with leave to bring the ease up, to take the opinion of this Court upon it.</p> <p>The following questions were now submitted to the consideration of the Court:</p> <p>1. Whether a defendant, who has not entered an appearance at the first Court after the return of the writ, is in any, and in what cases, entitled to vacate an order for judgment upon pleading issuably?</p> <p>2. Whether accepting the service of the writ was such an appearance as entitled him to plead ?</p>

This was a summary process, to recover from the defendants the price which the plaintiff had paid for certain lottery tickets.

This was an indictment for horse-stealing, tried at Columbia, October Term, 1820. When tlie prisoner was put to the bar, and the jury called to pass on his trial, the solicitor challenged the first juror without assigning any cause. Bis right to challenge, without assigning the cause forthwith, was questioned, and the presiding judge determined that the challenge on the part of the State, without cause assigned at the time of challenge, was inadmissible.

<p>"Where a defendant gave his note to the plaintiff, on condition that the plaintiff ■would give him a note which he held on a third person, the plaintiff cannot recover on the note given by the defendant, unless he deliver the note on the third person to the defendant, agreeably to their agreement.</p> <p>In a written agreement to pay money on account of a third person, the words, “for value received,” are a sufficient expression of consideration to charge the party under the statute of frauds, (a)</p>

<p>This was a motion to discharge the defendant from his recognizance to appear at October Sessions, 1820, for Richland district, on a charge of libel, wherein the. grand jury had returned, “ no bill.”</p> <p>On reference, as usual, to the solicitor, he suggested to the Oourt his intention of preferring a new bill.</p> <p>The counsel for the defendant contended, that it was incumbent on the solicitor to show to the Oourt some satisfactory reason for pursuing this course, and in default, that the defendant was entitled to a discharge.</p> <p>Mr. Justice Gantt, who presided, overruled the motion.</p> <p>The defendant appealed on the ground that the solicitor has no power to prefer a new bill, without showing to the Oourt some satisfactory reason for so doing.</p>

<p>This was a prosecution by indictment, under the Act of Assembly of 1813, usually called the Gaming Act; tried at Chesterfield, N ovember Term, 1820, before Mr. Justice Richardson.</p> <p>The defendant with three others, Isaac Johnson, William Wells, and John Copeland, were charged in the same indictment with playing at a certain game, *with cards, and did bet money, &c., generally, and without allegiug that r-::-gg]_ they played severally. *-</p> <p>The evidence as to this defendant, was, that he played at cards with one Neil M’Neil, and not with either of the other persons mentioned in the indictment.</p> <p>On the trial below it was objected that this evidence did not support the charge made in the indictment, but the presiding judge thought otherwise, and so directed the jury; and a motion was made for a new trial on the ground of supposed misdirection of the Court on this point.</p>

<p>A new trial will not he granted on the ground of new evidence being discovered after the trial.</p> <p>Where a person purchases property at sheriff’s sale, at which the owner was present, it will not be presumed that he purchased as the agent of the owner, without strong testimony.</p> <p>A sheriff’s sale of personal property need not be evidenced by a return on the fi. fa., or a bill of sale from the sheriff, but may be established by parol testimony.</p>

This was a proceeding against the bail, tried before Mr. Justice Colcock, at Sumter district, Fall Term, 1820. The proof was, a judgment against the principal, a capias ad satis factum, and a return of non est inventus, which the presiding judge decided was sufficient, and a verdict was accordingly given against the bail.

Kershaw, November Term, 1820. This was a rule on the clerk to show cause why he should not tax costs under the following circumstances: Wm. Trapp had brought an action of trespass against Wm. Matheson and the said Jas. M’Kenzie, for entering his enclosed lot in Oamden, and taking away several bales of cotton. The jury had found a verdict in favor of Wm. Trapp, against Wm. Matheson, but had found Jas.

This was an action of debt on judgment of assets, guando acciderint, against Sophonisba E. M. Wingate, now Branham, and Joseph Wingate, administrator and administratrix of Edward Wingate, deceased, taken and signed upon the 26th April, 1810, upon a note given by Edward Wingate, deceased, after his intermarriage with Sophonisba E. M. Wingate, dated the 27th of February, 1807.

Tried before Mr. Justice Joiinson, at Spartanburgh, Spring Term, 1820. In this case it appeared that the Ordinary set aside the will of John Turner, on the ground of insanity, in the testator, and granted letters of administration to Rebecca Turner, who sold the property by order of the Ordinary. Sarah Turner purchased the property in contest, at the sale of the administrator. Rive years after, the Ordinary reversed his former decision.

This was an action of trespass to try title to land, tried at Fairfield, Fall Term, 1820, before Mr. Justice Non. It will be unnecessary to go into a detail of all the circumstances which came out on the trial. It will be sufficient to state, that some time anterior to the year 1799, William Hollis, sen., the defendant, purchased the land in question, of Jesse Havis, and took his bond to make him titles, when the purchase money should be paid.

This was an action of trover, tried before Mr. Justice Colcock, at Columbia, 1818, to recover the value of a number of slaves. Ten of them were claimed by the plaintiffs under a bill of sale from Wm. Fitzpatrick, who had a wife then living, to Mrs. Denton, then Miss Gillespie, dated 27th May, 1798. This Nearly the same parties, ante, 376 ; 2 Mills, 421; 3 Brev. 147. bill of sale was signed and sealed by Fitzpatrick, and money was the consideration expressed.

This was an action of assumpsit, tried before Mr. Justice Richardson, upon an instrument of writing, nearly in the words following: “ Received of Wood-folk, four hundred dollars, tobe returned when called for,-day of-, 18 — . J. K. Leslie.” On the same piece of paper the words “ Borrowed of Woodfolk, ten dollars, J. K. Leslie,” were endorsed, and also an assignment to the plaintiffs. At the trial there appeared likewise endorsed a receipt for $50.

This was an action of trespass to try title and recover damages ; tried at Spartanburgh, Fall Term, 1820. The plaintiffs produced a grant to Thomas Ferguson, for 500 acres of land, dated 9th September, 1774, and then produced the will of Thomas Ferguson, dated 24th June, 1785. The testator died in 1786. The handwriting of the testator and the subscribing witnesses to the will was proven, but there was no proof that the witnesses were dead, or out of the State.

<p>A Court of Common Pleas has no power to order a sale of lands, except in cases of intestacy.</p>

<p>This was an action of assumpsit, to recover the balance of the amount of sales of four bales of cotton, sold by the. defendant for the plaintiffs’ intestate.</p> <p>The defendant, who was a merchant, furnished him with an account current, in which the four bales of cotton were credited, which overpaid the defendant’s store account one hundred and forty-nine dollars, thirty-seven and a half cents, to recover which, this action was brought; opposite which balance the defendant wrote, “ received the above in fulland signed his name, “ R. S. Rice.” The defendant did not deny the account to be in his handwriting.</p> <p>The defendant then proved by Mr. Bernhard, that on the day the account *F¡q71 was dated, the deceased passed *by his store, with whom the deceased 09 J had an account, and told the witness if he had his account made out, that he would pay him ; this was about ten or twelve o’clock. The witness had not his account ready, but set his clerk immediutely to make it out. The deceased had come in a direction, as if directly from the defendant’s store, which was only twenty or thirty yards distant. The witness sent his clerk down the same evening to the deceased’s house, and got his money.</p> <p>The defendant then offered to prove, by this witness, that he, the witness, was owing the defendant, and as soon as he got the money from the deceased, he went to pay the defendant with the same money ; and on sight of the bills, the defendant challenged them, and said you got that money from Darby, to which the witness answered yes; but the Court refused to admit this testimony to go to the jury.</p> <p>The defendant then proved by William Rice, that he, the witness, had left a note of hand, which he had on the deceased, for $24, in tlie hands of the defendant, at the request of the deceased, to be paid on the settlement of their account, and that as the deceased was about to set out for Philadelphia in a few days, with the defendant, he, the witness, also left in the hands of the defendant between fifty and one hundred dollars, in Georgia and North Carolina bank bills, for the defendant to pay the deceased with, as the deceased had some accounts in the village to settle, and those bills would answer as well as any, and that the "said witness had not seen the note or bills since.</p> <p>The defendant then proved by Gerge W. Rice, that in the morning on which the settlement was made between the defendant and the deceased, when the deceased came into the store, he said he wanted a final settlement of his account, as he was afraid he was not long for this world : that defendant immediately got his account, and a settlement was made: that the defendant then went to the drawer,- in which he kept his money, and took a parcel out of it, and was Counting it t° the deceased down on the counter: that the deceased 09°J then had the account in his hands, and at that moment he, the witness was called out of the store on some other business, and did not see the deceased take the money up off the counter: that when he, the witness, came in again, he saw no money, and the deceased observed that if he had two or three more settlements made, his business would be finished : that there was no other person in the store at the time the defendant was counting the money on the counter, but the deceased, to whom he was to pay the money. And the defendant proved by other witnesses, that the deceased died that night, or the next after.</p> <p>The defendant further proved by Mr. Norris, another merchant in the village, that according to the usage and custom of the merchants of that place, in making out accounts, similar to the one on which this action is founded, if this account liad been presented to Mm, be should have concluded that it was settled and paid.</p> <p>To rebut the defendant’s evidence of payment, the plaintiffs proved by one witness only, that the deceased had a paper in his hand, and handed it to the defendant, and asked him to sign, set down, or strike the balance. The defendant took the paper and went to his desk, as if to write or do so, and then returned it to the deceased. But this witness could not, and did not pretend to say that the account on which this action is founded was the same paper; neither did he see or hear any talk of any money at the time..</p> <p>The jury found for the plaintiffs $149 37J cents. From which verdict the defendant appeals, and moves for a new trial on the following grounds:</p> <p>1. Because the verdict is contrary to law and evidence, inasmuch as there was sufficient evidence of payment to have authorized the jury to find for the defendant, as by law they were bound to have done.</p> <p>2. Because the presiding judge refused to admit the declarations of the defendant, as proved by Mr. Bernhard, to go to the jury.</p>