Volume 2 — South Carolina Law Reports

This was a special action on the case, against defendant, for oppression in the execution of his office, as a justice of the peace, by committing the plaintiff to prison, and depriving him of his liberty, &c. &c. It came out in evidence, on the trial of this cause, that one James Duncan had been guilty of a breach of the peace; and that upon an application to Mr. Bentham, as a magistrate, by the person injured, he issued his warrant against the offender, in order that he…

<p>THESE were two cases under the attachment act of this state, against the effects of the absent debtor, which were in a warehouse or store belonging to the corporation of the c¡ty Qf Charleston, under the care of the city treasurer,</p> <p>R was admitted, that Callahan's writ of attachment was lodged in the sheriff’s office about one minute before Lenox’s, but the sheriff’s officer served a copy of Lenox’s attachment on the city treasurer, under whose charge the goods were, before Callahan’s.</p> <p>So that the point made and submitted to the court, by the counsel on both sides, was, which of these two plaintiffs should have the preference ? The officers of the corpora-lion also prayed the opinion and advice of the court on the game point, in order that they might know how to make a proper retui'n to these writs, as garnishees, that they might not be entrapped by giving an improper preference to either of them.</p>

<p>Misrepresentations on the plat of lands tlie^tíme and ]fc ° s ”/e,a Paré f™<Ia8™e^'M1g3 siorl of the contraet. As where a fine tei. ‘ ¡s ^id goodiniu-seat 'of^a tract of tim-her land, fit only for lum-her,and which upon exami-out to be only Siree^uftlui without uny running water in^ it. Such misrepresentation may bo given in evidence against a bond given for the consideration money, by way of discount, under the terms of the discount act, in a court of common law.</p> <p>See Public Laws> P-2iG"</p> <p>1 Domat. 80, 81.</p> <p>A court of common law jg equally competent with a court of equity, to rescind and get aside contracts on the grounds of fraud, where such grounds can he traced out by common law rules of evidence.</p> <p>J3onUtt. 81.</p> <p>Public Laws, 5546,</p> <p>1 Domat. 8i„</p> <p>a sound price sound^com-uierknownor unknown t#</p>

<p>A note of between^thc original parties to the 'transaction, is absolutely null and void even "f ^ thouiiftíie05 holder ma>" recover against an indorses”, on a count lor mo-received. an< negoiia-^^butweeii borrower and lender though the payee °‘ competent witness to prove the usurious transaction. Sending notes into mailcet, under pretence of sale, to raise money, is a shift to elude the statute, if the money is to be returned. Wherever a return cf the money is contepipiated by the parties, it will constitute a loan and not a sale.</p> <p>4 Burr. 2251. '</p> <p>B. The reduced™ 'and shewn to him.</p> <p>Bay's Rep fs p. 480 Racy's edit ‘</p> <p>e»i>. 4o, -it, Cv‘¿>4 9,fí'</p> <p>i ¡¡'ill sdi„</p> <p>ibid,</p> <p>^ • 2 Htr. 124.!. Zefi, sts</p>

<p>Where * ma* is convicted of an infamous a jury, and movesarfbr a fne,iari'est’ of'' judgment, he is no longer bailable ; for the eommu-nity has no foi-C1 tim Upu-man'11 for a*a crimen falsi, than the four walls of a prison.</p> <p>Though in minor offen-ces, such as assaults, batteries,'&c. See. it is usual to admit persons after conviction, to bail, to appear at the constitutional court of appeals, in cases where motions for new trials, or in arrest of judgment are made, and to abide the final judgment of áuch court.</p>

UPON a motion for a prohibition to restrain the com» . . .. , . , . , , missioners irom making the said street, and assessment on the lot owners to defray the expense* stated, that they were the owners of the soil over which this new street J was to pass, and also owners of the lots on the Bay to the eastward and westward of the said intended new street, and therefore prayed the court to grant a prohibition to restrain, the commissioners, appointed by a late act of…

<p>Oa not guilty pleaded to an indictment for an assault and battery, evidence of extenuating circumstances is improper to go to a jury on the trial, but ought to be submitted to the court on affidavits before sentence is pronounced. And in order to compel a witness to attend and give such kind of testimony, (if ■necessary) the defendant is entitled to a subpoma in same manner as on the trial of an issue..</p>

UPON a motion to shew cause why a mandamus should , , . , not issue to compel the corporation to make an assessment on the city, to pay for a house pulled down in order to open Meeting-street. ' The facts in this case were not disputed. Mrs. Shool-1 ' bred had inherited through her maternal ancestry a lot of land at the upper end of Meeting-street, on which the house in question had been built by one of her ancestors.

UPON a rule on the sheriff of Charleston district, to shew cause why he did not return the execution of fi. fa. which had issued in this case, and also why he did not pay into court the money he had levied thereon.

<p>Upon entering up a judgment on a set fa, the ptainúffis entitled to his execution in-sia,ntei\ and is not to be delayed 30 days, ■where service of the original writ was not personal, as in the original suit.</p> <p>See Bay9s tfep. vol. i. p. 483. Utley's edit.</p>

<p>A judge either supreme or subordinate is not liable in an action for damages, . for any opinion he maj* deliver as such; but 1, Hable by impeachment if lie is guilty ia misconduct *</p>

<p>SPECIAL action on the case, for beating the plaintiff’s negro man. r.</p> <p>It came out in evidence on the trial, that the negro in question, had the care of his master’s fishing canoe on Sulli-varfs island, when the defendant went down to the landing P^ace where it was, and said he would take it, and go out fishing in it. The negro told him he could not have it, as a ° his master had given him orders to let no one take it away, as he was in the constant habit of using it himself, and he expected him down every minute to go out in it. The defendant, however, persisted in taking it away, and the negro in obeying his master’s orders in refusing to let him have it, upon which some high words passed between them on both sides, whereupon the defendant struck him a blow with his fist, and then took up a paddle, which was in the canoe, and knocked him down, and afterwards beat him very severely, which laid him up for several days before he was able to go about his master’s business again.</p> <p>It was therefore for this injury done to his servant, that the master brought the present action.</p> <p>The defence set up by the defendant was, that the negro was insolent to him, and that the beating was not more than proportioned to the nature of such insolent language. And further, that from the evidence offered in this case, the plaintiff could not maintain this action for a personal injury offered to the person of a negro, though it was admitted that if the plaintiff had declared, per quod servithnn amish, he might have supported the action for the loss of his la-bour, but not for any violence offered to his person ; for it is this loss of labour, which alone entitles the master to his right of action. That the plaintiff had declared for the per-* sonal injury done to his slave, and not for the loss of his services.</p> <p>Upon the first ground of defence, the defendant alleged, that from the great number of slaves in this country, and their proneness to rudeness and improper behaviour, it was necessary that the freemen of Carolina should, at all times and in all places, possess a power to check them, whenever they were disposed to be forward or unmannerly, and to chastise them for insolent language whenever it was offered by them. And unless this speedy and summary mode of redress was allowed, this class of people could never be kept in order and due subordination. And that m the present case, the defendant had done np more than give the plaintiff’s negro a moderate chastisement for a very great degree of insolent and abusive language, which he had given on the occasion.</p> <p>Upon the second ground of defence, the defendant’s counsel contended, that a master could not maintain this action for a violence offered to a servant. A personal action could only be maintained by the party suffering the injury. It could not be transferred to a third person. And for the same reason it died with the party injured : it did not survive to his executor.</p> <p>It was true, he admitted, that a servant might by the ... . , common law maintain an action for a battery, at the same time, that the master brought his for the loss of labour. But in this state, slaves possessed no civil rights. They could support no action in their own rights either by the common law, or any statute in existence here.</p> <p>For the plaintiff it was argued in reply, that if the doctrine contended for by defendant, was to be established in this state as law, it would place the slaves of the planters and householders, at the mercy of every violent or vindictive man who might choose to give vent to his brutal resentments against this class of people.</p> <p>. That the policy of our laws admitted of slavery, but the ■wisdom of our laws, at the same time required that the slaves of the country, should have every degree of protection, that their situation would possibly admit of. It was admitted, that they could not maintain actions for injuries in their own rights, so that they could no: defend themselves, by civil actions for redress of injuries offered to their persons. But this, it was urged, imposed an additional obligation on the part of their owners to step forward and afford them that protection. That the common law of England, from whence we borrowed our common law system, never had contemplated the condition of slavery, and therefore never had provided a remedy for injuries done to slaves. As, however, the laws of our state do allow and tolerate it, a redress ought to be established in all cases, proportioned to the evil.</p> <p>It is a well known maxim, that there can be no injury without a remedy. Negroes are obliged to obey the orders of their masters in all lawful occupations. If, therefore, any violence or injury is done towards them, while they are fulfilling this duty, reason and justice require that their owners and proprietors should shield them from the unlicensed abuse of their persons, which can only be done in a peaceable way by civil suits, for this offence offered to their masters, through their slaves.</p> <p>As to the necessity of enforcing due subordination among them, and compelling them to behave with due submission to their superiors, the law had provided a remedy, by application to a civil magistrate, who was authorized, in a very summary manner, to call to his assistance two freeholders, who had a right to order a slave to be chastised in a reasonable degree, to repress all improper conduct on the part of unruly and turbulent charac¡ers among them ; and that was the line of conduct, which every peaceable citizen should pursue in such case for insolence or improper conduct. And as this was generally done with temperance and cool deliberation, the example was more likely to have the effect, than by a freeman’s putting himself upon a footing with a negro, and taking satisfaction with his own arm.</p> <p>But in the present case the plaintiff denied that his negro had behaved amiss on the present occasion. He had only obeyed his orders in keeping the canoe from being taken away, so that the defendant was the aggressor in the first instance, and as to the ill language alleged from the negro, there was nothing but the bare allegation of the defendant for it, which was no evidence in this court, in this action.</p>

<p>Failure of eonsideration, a good ground of defence against a bond given for the consideration money of a tract of lanfl. Defendant in such case, may shew that the land at the6 time of sale ■was in a third thou°h there has been no eviction by title para-</p> <p>ff'^ 1 s0f ^</p> <p>Yavgh. J l ss mi.i IFooirc Conveyance)!? "°J‘</p> <p>State i>»se •</p> <p>Gray and casc^vór” * Jale^s</p>

<p>SPECIAL action on the case, for money had and received to plaintiff’s use.</p> <p>It appeared in evidence in this case on the trial, that in the year 1778, Joseph Ashe, the father of John Ashe the plaintiff’s testator, had sold a tract of land at HaddrilPs Pointy in Christ Church parish, opposite the city of Charleston, to one John Berwick, now deceased, for the sum of 31,000/. current money, for which Mr. Berwick gave his bond, and a mortgage of the land to secure the payment of the consideration money. It happened in the hurry and confusion of the war at that day, that this bond and mortgage by some means or other got mislaid, and never were put upon record, (while on the contrary Mr. Berwick had his deed of conveyance for the land, duly proved and recorded,) and they were not found till the year 1790, or 1791, near thirteen years afterwards ; when they were discovered in a trunk among a number of old papers, which had been thrown by as useless trash.*</p> <p>In the mean time, however, John Berwick died, and be-i'ng considerably indebted to the estate of Abraham Livingston, Nathaniel Russell, the executor of Livingston, brought a suit against Berwick’s executor, and obtained a judgment against the estate in April,. J787. In January, 1788, Thomas Rivers, another creditor of the estate of Berwick, obtained another judgment against said estate, and under this junior judgment an execution issued; by virtue of which, the sheriff of Charleston district seized the land or plantation at Haddrill’s Point, which had been mortgaged to Joseph Ashe in 1778, and which then appeared to be without any incumbrances whatever, except Mr. Russell’s prior judgment as the executor of Livingston. Under this-execution the land in question was, in April, 17, 8, sold at sheriff’s sale, for the sum of 1,62Si. 2s. 6d. sterling, ljut as Mr. Russell had the prior lien on the land, in consequence of his first judgment, the sheriff paid the money over to him, towards the satisfaction of the debt due to the estate of Livingston; and Mr. Russell, in his turn, paid away this money in discharge of the debts due from the estate of Livingston tq its creditors.</p> <p>Upon the discovery of this bond and mortgage from Berwick to Joseph Ashe, in the trunk of old papers in 1791, •the present plaintiffs, who were the executors of John Ashe, who was the executor of Joseph Ashe, the mortgagee, thought it advisable to relinquish their right under the mortgage, of foreclosing it, and proceeding to resell the land; and, therefore, commenced the present action against the executor of Livingston, for the proceeds of the sale which had been paid over to him, as for so much paid by .mistake to their use.</p> <p>In support of the action it was briefly contended, that the plaintiffs, on the discovery of the bond and mortgage, had their choice of two remedies j either to proceed in equity and foreclose the mortgage and resell the land, or to relinquish their equity, and sue at common law for the proceeds of the sale, or value of the land in the hands of Livingston’s executor. That thej had preferred this latter mode of proceeding in order to prevent a multiplicity of suits, and avoid a heavy expense on the one hand, and to quiet the purchaser in the peaceable possession of the land on the other : and the rather, because he had made considerable improvements upon it since his purchase. They admitted, that the defendant, Mr. Russell, had an apparent right to receive this money at the time it was paid over to him by the sheriff of Charleston district, but still it was paid over under a mistaken idea, that there was no prior incumbrance on the land ; whereas, it since appeared most unquestionably, that it had been mortgaged to Joseph Ashe, the former proprietor, for the original purchase-money ; not one shilling of which either principal or interest had been paid. It would therefore be manifestly unjust for the defendant to retain this money to the prejudice of the plaintiffs, as they were, upon every principle of justice and good conscience, entitled tq the same ; and in support of their claim they relied on the great and governing principle laid down by Lord Mansfield, in Moses and Macfarlane’s case, and in . mail}7 other cases to the same point.</p> <p>Thai this action will lay wherever money has been paid by mistake, or upon a consiaeration -which fails, or for money got through fraud, or imposition, or extortion, or oppression, or in one word, it lies for money which the defendant ought ex ceqno et bono to refund.</p> <p>Here they observed, they did not mean to insinuate that this money had ever come unfairly into the hands of Mr. Russelthe executor of Livingston, but as it was obviously paid to him under a mistaken idea that he was justly entitled to it; when in fact and in truth, it was the right of the plaintiffs'' testator : he ought, therefore, in justice, now to refund it and pay it back, as the mortgage has fully evinced the plaintiffs’ right to it; and that defendant ought not e>r aequo et bono to retain it any longer in his hands.</p> <p>For the defendant, the counsel admitted the general prir> eiples of law in support of the action for money had and received, as laid down on the behalf of the plaintiffs; contending, at the same time, that there were several strong circumstances in this case, which took it out of those general rules, and made it a very different one from any of the cases relied on. In the first place, it was observed, here tvas very great laches in the mortgagee himself in not recording his mortgage, which had occasioned all the confusion on the present occasion.</p> <p>Also on the part of the executor after the death of Joseph Ashe, in not looking for this bond and mortgage, and producing it at the sheriff’s sale of the land ; that it had been said, and said justly, that diligence is the life of die law, and here was a very culpable neglect.</p> <p>That the executor of Ashe knew of the sheriff’s sale, and did not forbid it, but stood by and saw it go on.</p> <p>And lastly, it was contended, that the defendant had paid away this money out of his hands to the creditors of Living-stores estate, and had it not to refund 5 and that it would be unjust to make him chargeable, after having done his duty in paying off the testator’s debts. They compared this conduct to that of a man standing by and seeing another build on his land, knowing his right, and not forbidding the builder from going on : also to a first mortgagee, per-xnitting a mortgagor to keep his title deeds till a second mortgage was made, without giving notice of his first mortgage.</p> <p>Again it was urged, that Mr. Russell was to be considered as an agent in this business, in receiving and paying away this money without notice of this mortgage, in which case he was not liable. They also relied on Lady Wind? sot’s case,'* where it is laid down, that this action will not ^01' money paid to an agent, who pays it to his principal without notice.</p> <p>They also relied on the case of Jacob Jacobs, a vendue . , , J ,. master m Char íes ton, who had paid away money to his employer, which was claimed by a third person, who after-wards proved that the property sold belonged to him ; yet the court held, as it was paid to the person having the apparent right without notice, he was not liable.</p> <p>acknowledged the doctrine as laid down between principals and agents, that an action would not lay against an agent, who paid away motley for his principal, without notice ; but insisted that Mr. Russell, in the present case, could not be considered as a mere agent acting for a principal. The money was paid to him as the executor of Livingston, who stood in his testator’s shoes, as one receiving all his testator’s rights, and went to pay off his debts. The action in this case, is not brought against Nathaniel Russell in his own right, so as to make him, or his estate liable in his own private capacity, but it is brought against him, as the representative of Livingston. The judgment in this case would not bind him, or his estate, but the estate of Livingston ; there was, therefore, no similitude or analogy between him, and a mere agent of a third person in esse. On the ground of laches or neglect, which had been so much relied on, that was owing to an accident arising in the hurry and confusion-of war, which raged in this country at that time, and owing to a man’s packing up his papers in the midst of tumult and arms, and afterwards dying, before he had an opportunity of explaining the transaction, or probably before he himself could recollect where he had deposited them, or how he had disposed of them ; but how-' ever the accident happened, or by what means soever it was occasioned, it did not deprive his representatives of a legal right; for the law has fixed no time, nor limited any period, ■within which he was bound to record a mortgage, as laid down in the case of Ashe v. Ashe:* the only risk he ran, ’.vas that of another mortgage being given for the same land, by Berwick ; which, if it had been first recorded, would have had a preference. As to the cases quoted from Atkmis and P. Williams, thev had no bearing on this case, , , ,.; . . , , ’ because they are predicated on a knowledge oj the right. and standing by and seeing a man go on upon mistaken principles, and not giving him due notice. Here the executor did not know of this mortgage at the time of the sheriff’s sale, and therefore was ignorant of the right, of his testator. He had no authority to forbid the sale.</p>

<p>Where lands have been mortgaged hy a testator in liis life-time, and there are judgments against him, some before and others after the mortgage, any moneys in the sheriff’s hands arising from sales of his</p> <p>personal property, sliall be appropriated in the first place to the satisfaction of the elder judgements, so as to leave the mortgaged premises, unincumbered, to go towards satisfaction of tli£-mortgage money.</p> <p>gee cas£ v‘ JceP-, /¿¿fey* «lit. Snipes and ^le,'ibid. ¶. 295‘</p>

UPON a rule on the sheriff of Charleston district, lit return a fi. fa. and to pay over moneys received thereon» The sheriff on shewing cause, stated to the court, that ^ money ln this case, was paid by the defendant to a c}erk }n his office, who was not authorized to receive money, ’ J1 and that he had made use of it.

DEBT on bond to make titles to land. This was a case tried in Georgetown district, before Bay, J. It appeared in evidence, that the defendant was, by the condition of the bond, to make good titles to three tracts of land, but no time was mentioned within which they were to be made.

<p>THIS was a case taken up from Columbia to Camden, on a . 1 motion for a new trial, on the ground of misbehaviour in the jury.</p> <p>From an affidavit made by Daniel Brown, it appeared ^at jur7 after they had left the court and retired into their room, had taken upon them to send for and examine a witness, who had not been sworn and examined in court, without the leave of the court, or consent of the parties, or their attorneys ; though this was not known at the time their verdict was received and recorded in court, but came out after they had been discharged.</p>

<p>Where arbi-upoífthem'to ■wardonother those1 submh-te't of submission it is a good to set aside, the award. No parol proof should be admitted to vary the import of the terms of submission mentioned in the condition of such bond.</p>

UPON an indictment for a misdemeanor, * Doctor Fraser being a royalist in the course of the revo-kttiónary war, was put upon the confiscation list, and return-et^to Carolina, where his family and friends were, without name being taken off this list, contrary to one of the clauses of the act of confiscation and banishment. . t Sometime after his return, information was given to the governor, who caused him to be taken up and imprisoned, for this return contrary to the terms…

<p>UPON an indictment for receiving stolen goods, in the sourt of sessions.</p> <p>The defendant was convicted on this indictment, and Mr. Marshall gave notice of a motion for anew trial at the next constitutional court of appeals, on the grounds that the jury had found a verdict against law and evidence.</p>

<p>Where serví-•ginaiiy ren-tenrards01' be All contracts must be good or valid at creation, J7nd upon6” contingencies.</p> <p>See 10 ¿Mod. 67. Vin. tit". Contract, vol° 5. p. 507-</p>

UPON a motion to have defendant discharged frond prison, he being in custody on a ca. sa.

<p>ASSUMPSIT for goods sold, and for work and la-bour, &c.</p> <p>Plea in abatement.</p> <p>This case came before the court upon a plea in abatement, which pleaded that plaintiff was himself a member of the company, and therefore could not maintain any action against it in his individual capacity.</p> <p>argued, that there was a wide difference between a copartnership in trade, anda cor* , r r i poration. Copartners, he admitted, must sue and be sued jointly; that they were jointly and severally liable, &c. But a corporation (as in the present case) must be sued in its corporate name ; that the private property of its members were not liable, only the corporate property ; so that there. was a wide difference between a corporation and a copart-nership, both as to the mode of bringing an action, and as to the effect of any judgment or decree against them.</p> <p>That by an act of the legislature, passed in the year 1792, corporate bodies are expressly authorized to recover and receive from their members all fines, forfeitures, and other debts, dues and demands, arising in any manner howsoever. Surely then, he argued, if corporate bodies have a right to! recover from their members, in their private capacities, any 1 debt or demand, such members, in like manner, must have/ an equal right to recover from such corporate body any debt or demand due or owing to any individual of that body ; or they might set off in discount any such demand against the corporation, in a suit against them, justice must be reciprocal in its nature, or it ceases to exist; for to say that one man, or body of men, shall have a power to pursue a right against another, and that other should not have a right to prosecute his claim or remedy in his turn against the body corporate, would be a perversion of principles.</p> <p>But, he said, he conceived that this point had been settled by a number of adjudications in our own courts, at different times. The Mount Zion Society, the Library Society, the City Council, all corporate bodies, had been in the habits of recovering moneys from their members, and members in their turn had recovered money from them. The cases of Bourdeaux and Stephen Drayton against 7 he Santee Canal Company were cases in point; in both which cases they were allowed to maintain actions, and to recover their salaries from the company, upon the foregoing principles, although they were both of them members.</p> <p>said this company ought to be considered as an association for gain, or the emolument of its members, and therefore in law should only be considered as a kind of copartnership, and not as a public corporation. That the act of 1792 should be construed literally, and confined to its letter, in which case it would then be found to give a right only to a corporation to sue its own members, but that it gave no right to a member to sue the corporation, and it should not by any construction be carried further than it expressed.</p>

UPON a motion to discharge Mrs. Rippon from the custody of the sheriff, on a ca. sa. In this case, judgment was taken against Rippon and wife, on a bond signed by both of them, in consequence of which an execution, a ca. sa. issued, on which she was taken and imprisoned.

<p>TRESPASS to try title to land.</p> <p>The defendant pleaded in bar a nonsuit obtained in 1788, in an action of ejectment brought in the name of the lessee . . of Thomas Smith, who claimed the land in question ; and also a verdict for the defendant and others, in 1789, in another action of ejectment, for recovery of the same land, brought by Robert Smith, the heir at law of the said Thomas Smith.</p> <p>It appeared from the pleadings, that Thomas Smith, the lessor ot the plaintiff, in the first action, at the time of bringing it, was dead, and that it was brought at the instance of his executors, who were directed by his will to sell the land jn dispute, and to give titles for the same ; and that they also procured the second action to be brought in the name of the heir at law. The plaintiff’s counsel contended that the first suit was a nullity, because brought in the name of a person who was dead at the time, and because the executors had only a bare power to sell the land, uncoupled with any interest; that the right of freehold was in the heir at law until a sale, and also the right of possession ; and that, therefore, this nonsuit could not be binding or operative on him, or those claiming under him ; consequently, as the present plaintiff, Withers, held under Robert Smith, who was the heir at law of his father, Thomas Smith, and had brought only one action of ejectment, it was contended the plaintiff was entitled to this second action, to try the right of freehold, under a fair construction of the act of assembly.</p>

UPON a rule to shew cause, why an execution fi. fa. J ¶ J should not be set aside, on the ground, that more than a year and a day had elapsed before it was issued, without the judgment being renewed by a sái. fa. 1^® ju<%meilt was entered up in this case against defendant on bond, on the 7th of August, 1795 ; fi. fa. was ’ a 1 7 a J lodged the 1st of February, 1796; and on the 22d of March, 1796, the sheriff made a levy on a tract of land, t i and sundry negroes.

CASE on attachment. The attachment in this case, had been issued by a justice of the peace, under the act of 1788, and returned into the clerk’s office of the court of common pleas, and a judgment obtained against the garnishee, for not making a due return to it, agreeably to the terms of the old attachment act.

<p>TRESPASS to try title to land.</p> <p>This was an action of trespass to try title to a tract of land , r . . . . _ _ near Georgetown^ before Mr, justice Burke, in which there was a verdict for the plain tiff,</p> <p>The present was, therefore, a motion for a new trial, oh Srounc^s : That the judge ought to have ordered a nonsuit on the trial, and should not have permitted the case . to have gone to a mry; and, 2dly. That the verdict or fina* . . . . , mg was without evidence to support it.</p> <p>From the report of the judge, it appeared that the titles of both the parties in this case were of an ancient origin, and were traced down through a number of claimants and proprietors, to the parties in this suit, and both claimed by; deeds of conveyance either actually produced or accounted for.</p> <p>They both claimed under Landgrave Thomas Smith, who had a barony of 24,000 acres of land granted to him, by the former lords proprietors of South Carolina, in that part of the country, and the land in question was a part of this barony, which had been by him, or his heirs or representatives, divided and subdivided into a great number of portions or subdivisions among the numerous branches of his family, who, on their parts, again sold out their proportions to various, purchasers, at different periods, as best suited their convenience.</p> <p>The defendant, on his part, produced regular conveyances down from the landgrave to the party under whom he claimed, but was not able sufficiently to fix the location, or shew in what part of the barony the land he claimed was situated.</p> <p>'f he plaintiff, on the other hand, was more fortunate in ascertaining his location, and in shewing where the land he claimed within the barony lay, by different surveyors, and also by witnesses who proved and identified the land in possession of several of the parties through whom he claimed his title. But in the course of the evidence offered on the trial, it appeared that the deeds which formed one of the links of his chain of title was wanting ; that is to say, the conveyance from the landgrave to his son-in-law, Benjamin-Waring, through whom the plaintiff claimed, was not to be found ; all the others were regular and substantiated, agreeably to the rules of law. As soon as this defect in the evidence in. support of the plaintiff’s claim was discovered, the defendant’s counsel, Mr. Edward Rutledge, moved for a nonsuit, which was opposed by the plaintiff’s counsel, who stated to the court, that his client would prove the existence and loss of the deed wanting, to the satisfaction of the jury. The presiding judge, therefore, refused the motion for a nonsuit, and permitted the plaintiff to go into this kind of testimony. The plaintiff then proved by one or two witnesses, that Mr. Allston, who was executor of one of the ancestors of one of the parties under whom he claimed, during': tbe revolutionary war, had his dwelling-house destroyed by fire, and among other things lost a number of valuable papers; (though some of them were saved ;) that he complained much at the time of the loss of his papers, and of some of his title deeds for his lands. Among the few saved and preserved from the fames, one deed was found and produced, which recited this deed of conveyance wanted, from the land-grave to his son-in-law, Benjamin Waring. Upon this testimony to the jury, the plaintiff said he was willing to rest his cause.</p> <p>At this stage a nonsuit was again called for by the defendant’s attorney, but the judge a second .time refused it, and permitted the cause, under all the circumstances of the case, to go to the jury, who found a verdict for the plaintiff.</p> <p>that the judge should have ordered a nonsuit to have been entered, as so material a link of the chain of title was wanting. That from the plaintiff’s own shewing, he said he proved the land originally to have belonged to Landgrave Thomas Smith, and as n® conveyance was produced from him, the law would infer that the land was still vested in his heir at law. That every man in this action must recover by the strength of his own title, and not by the weakness of his adversary’s ; and if he shews himself, or it is proved by the defendant, that the title is in another, it is sufficient to destroy his right of action. That, therefore, upon this ground, the judge who tried the' cause should, in the first instance, have directed the nonsuit moved for. But admitting that he had a right by law to go into the suppletory evidence contended for, he had totally failed in proving the existence or loss of the deed wanting. It was hardly necessary for him, he said, to urge the rules of law, which were so well and universally known, with regard to the loss'of deeds. That the party must prove, 1st. That such a deed once existed ; 2d. That it has been lost of destroyed, and that diligent search has been made 'for it in a proper place, and that it cannot be found ; or, 3d. That it is in the hands of your adversary, who refuses to deliver it. After this is done, you may give a reasonable proof of the contents of such deed, or offer a copy in evidence. But, he asked, had this been done in the present case ? He was bold to say it had not. No proof was offered by any person who ever saw this deed. That a house was destroyed by fire, he admitted ; and that some tide-deeds for land might have been destroyed, he also admitted ; but there was no proof that this deed (wanting) was among those which were so destroyed. It was true, he said, that a deed said to have been among those saved, contained a recital of a deed from Landgrave Thomas Smith to Benjamin Waring; but this, he contended, was too vague amt indefinite even to raise the slightest presumption upon. No copy was offered in evidence from the records, nor the least testimony of the contents of it. It was a bare recital of Benjamin Waring himself, under whom the plaintiff claims. There was nothing, therefore, from the whole oí thio suppie-tory testimony offered, to raise a presumption strong enough in law to justify the judge in leaving it to the jury to determine whether this deed ever existed or not ? or whether it was destroyed or not ? or even whether its contents amounted to a transfer of the land in question from the landgrave to Benjamin Waring or not ? If, therefore, the whole of this unsubstantial fabric vanishes in air, what was there to submit to a jury ? Not one circumstance of sufficient solidity had been offered, that came within any one of the rules of evidence.</p> <p>A nonsuit, therefore, upon the second motion, ought clearly to have been ordered, as soon as this suppletory evidence closed. And the judge, in refusing it, and submitting to the jut-y this kind of unsubstantial testimony, was guilty of misdirection. And for this purpose he relied on Cowp. 214. where the judge (Baron Eyre) left it to the jury to determine, whether 37 years non-payment of quit-rent did not amount to presumptive evidence that it had been released or extinguished ; and the jury found that it did» This was deemed a misdirection in the judge, and a new trial was ordered on the ground of this misdirection, and because the verdict was against law.</p> <p>Again, he said, a verdict -without any evidence at all, as in the present case, ox against plain evidence, or against law, ought not to stand; there ought to be a new trial. 3 Burr. %S-2S.</p> <p>observed, that it would have been denying the plaintiff a manifest right, to have deprived him of the benefit of the evidence offered, to prove the existence and loss of the deed in question, by ordering a nonsuit in the first instance ; and still more so, after it was offered, to have taken it from the jury, and cut him off from the bene* fit of their verdict, by granting the second motion, without submitting it to their consideration. He admitted, that in cases where there was a total defect of evidence, the court would and ought to order a nonsuit. But, in this case, a great deal of evidence had been offered to the jury, both oral and written. In the first place, a regular chain of titles had been traced up from the plaintiff in this action to Benjamin Waring, the son-in-law of the old landgrave. All these had been delivered over to the plaintiff by the party from whom he purchased, which was strong presumptive evidence of the right, because ancient title deeds generally accompany the right to the freehold ; and only a single link was wanting to carry it up to the landgrave himself. In the next place, it was proved, that the dwelling-house of the executor of one of the ancestors of one of the parties under whom the plaintiff claims, had been destroyed by fire, and among other things, a number of deeds and papers, and that the owner of the house complained, at the time, of the loss of some of his papers and title deeds for his lands, at a time when he was smarting under his losses, which could not have been intended to bolster up an unfounded claim at some future day, but expressed with the utmost sincerity of soul to his neighbours at the time of his calamity. And, lastly, it appeared from one of the deeds saved from the flames, that this deed from the landgrave to Benjamin Waring was particularly mentioned and recited, as a deed which had been made and executed with all due and legal solemnities. This was also an ancient deed, and could not be supposed to have been fabricated for the purpose of supporting the plaintiff’s present suit.' All these circumstances, he said, formed such a mass of testimony, as could not well be resisted; and ifc would have been the height of injustice to have withheld it from the jury, by ordering the nonsuit. The presiding judge did, therefore, what was proper and right in submitting the whole to the jury, to form their conclusions upon, them; and having done so, there are no grounds to call their verdict in question.</p> <p>It cannot, therefore, be said to be a verdict without evidence, for there was a great deal of evidence offered. Nor one against evidence ; that is not alleged. Nor is it a verdict against law ; for if the jury were of opinion the deed in question ever existed, and was lost, it was a finding warranted both in law and in fact. They were the constitutional judges of facts, and where law and facts are blended together, their finding is conclusive and binding; and having done so, there are no legal grounds for setting their verdict aside.</p>

<p>TRESPASS to try title to land.</p> <p>This was a second trial at Georgetown, for the same tract of land mentioned in the foregoing case, in which defendant was the principal actor, the plaintiff in the former case having had a verdict in his favour. This second action was tried before Mr. Justice Grimke, and the circumstances varied little from those mentioned in the former trial.</p> <p>The same evidence was offered, and the same motions for nonsuits were made, at different stages of the case, as had been made on the former trial, but overruled for the same reasons, as the presiding judge did not wish to deprive the plaintiff, in his second trial, from an opportunity of going fully into the case again. But anew ground was taken, which had not been urged on the former trial, to wit, that this action would not lay, because the plaintiff had lost his right of entry, as he had never‘commenced any action, or made any entry, either himself or by those under whom he claimed, for more than sixty years last past. That the plaintiff is bound to allege seisin of the lands and tenements in himself, or in some one under whom he claims, and then derive the right from the person so seised to himself, and that too within sixty years, otherwise the demandant and his heirs, and all claiming under him or them, are perpetually barred of their claim.</p> <p>To this it was replied, that the writ of right never was in use in this country; it was a remedy for the recovery of lands, which had never been extended by our ancestors to Carolina ; therefore, never could have been considered as a part of the common law of Carolina. The only action in use from the first settlement of the country, till the year 1791, was the action of ejectment; when that act changed this fictitious action into the action of trespass, to try titles to lands. That our limitation act passed in 1712, had altered the common law of England in this respect, even if it could be said, that it had ever extended to it, and had fixed no time or limitation to the commencement of suits for the recovery of lands in this country, except in cases where there was an adverse possession : in such case it required that the action should be commenced within five years, otherwise the plaintiff as against such actual possessor, would be forever barred; but even in such case, the law did not make it necessary that the plaintiff should enter and gain actual seisin, before suit brought; the right and title, alone, is sufficient to maintain the action.</p> <p>The cause was afterwards submitted to the jury, and a second verdict was given for the plaintiff</p> <p>The present was therefore a motion for a third trial; when all the grounds which had been taken on the first and second trials, were again urged by the counsel on both sides; on this motion, the only material difference was, the last ground taken on the second trial, to wit, that the plaintiff had lost his right of entry, as he had not commenced his action within sixty years ; this was a new ground, and the first time it had been taken in the judicial history of this country.</p>

DEBT on bond of indemnity. Judgment by default. Motion to set aside this judgment, in order to let the into a defence, that he was not liable on this bond till the plaintiff had actually paid the money.

This was an action of assumpsit for goods sold and de» Uvered, to which the defendants filed a discount, for the amount of a bill for painter’s work, done to the house of Mr. Powric, one of the copartners.

<p>UPON a motion, to have the defendant admitted to the ’ benefit of the insolvent debtors’ act, and discharged from gaol.</p> <p>mi • • 'it v r * \ j *i lms motion was opposed by the Aitornctj^eneval and Mr. Ford, on the ground that defendant had conveyed away a large stock of goods, and other valuable property, to one Charles Baugniett, who had formerly been his clerk, with a view of defrauding the plaintiif and other just creditors of their lawful debts ; and therefore they said he was not entitled to the benefit of the insolvent debtors’ act, on the ground of fraud. At all events they contended, thajt they ought to have a fair opportunity of investigating and trying this fraud, if it had been committed ; and that it had, they had no doubt, from the information they had received from the plaintiff, as well as from sundry others of his creditors. They observed, that the act had not prescribed any precise form, for trying and ascertaining fraudulent conveyances J ° ° « and transactions of the kind alleged against the defendant ° ° in the present instance ; and therefore suggested to the , . ,- .... . „ , court the propriety or sending this case to a jury of the country, as most congenial to the principles of the common law, upon a suggestion to be filed for that purpose, containing the specific charges of fraudulent conduct on the part of the defendant; by which means he would be apprized of the particular allegations against him, and would have an opportunity of pleading to them, and of preparing for his defence.</p> <p>on the part of the defendant, insisted, that such a kind of investigation would be attended with great delay, as well as expense and trouble, contrary to the spirit and design of the act; which was to give speedy and effectual relief to unfortunate debtors, who were willing to give up their all to their creditors, in order to be relieved from confinement; that the defendant had been confined within prison walls for some time, and to detain him any longer, would not be affording him the privilege allowed to persons in his unfortunate situation. Besides, they said, the first clause of the act contemplated a summary way of examining into the matter contained in an insolvent debtor’s petition, by the judges, who were authorized to discharge the insolvent debtor, if they were satisfied of the truth of his petition, without detaining him for the slow process of a jury trial, which the act did not contemplate. They further observed, that all that had been alleged against the defendant was mere surmise . and allegation, unsupported by any affidavits, or other document to establish such fraud.</p>

MURDER. Motion for new trial. The prisoner had been convicted, on very clear testimony, in the court of general sessions of the peace, &c. of the murder of one —-, by stabbing with a shoemaker’s knife ; and a motion was now made for a new trial, on the ground that John Love, who sat on the petit jury who tried him, was an alien Englishman.

^MISDEMEANOR in sending a challenge to Colonel Fishburn. I MISDEMEANOR for a libel in posting him for not accepting of the challenge. Motion for a new trial in each of the above cases. The defendant had been convicted on both of the above indictments, at the instance of the prosecutor, who did not conceive himself in honour bound to accept of the challenge, for reasons which were very satisfactory to the court and jury, before whom the cases were tried.

<p>Four years5 peaceaLÍe possession of ne-groes or oilier chattels* under a bona fde sale for valuable consideration, gives the possessor a good title against a sheriff who may attempt to levy on them, as the property of a former proprietor, &c. under the pretence that they were hound by a former execution in liis office.</p> <p>Trespass will lay against a sheriff who seizes negroes as the property of a third person, after t hey have been 4 years in the possession of a bona fide purchaser.</p> <p>j^cutians °? 15-2 Saund 47. Lex>. 282.</p>

ASSUMPSIT for goods sold and delivered to the wife, a sole dealer, In this ease it appeared, that Mrs. Pillans had for 1Tian)' years acted as a sole dealer, with the knowledge and approbation of her husband, who was a schoolmaster ; that r 1 she had been in the uniform practice of keeping a shop, and . , , . , , , , . selling out goods, keeping books, and rendering account? in her own name only ; and short, of carrying on aft «nrctoanffise in her way solely, without ever…

MOTION to set aside a judgment, and ca. sa. against an administrator, for costs. The defendants in this case, were sued by the administrator of Hunt, for the balance of an account which was apparently due to the estate ; but owing to a discount which was brought in against this demand, the plaintiff did not think proper to proceed in the action, and suffered a nonsuit.

<p>UPON a rule on the sheriff to bring money into court, to be paid over to the plaintiffs, on their executions, &c.</p> <p>The cause shewn by the sheriff in this case was, that he had sold a house and lot on East Bay-street, the property of the defendants Thayer and Sturgis, which had been bought in by John Duncan, at.and for the sum of 1,800/. sterling, but that he had refused to pay the purchase-money unless he had an abatement of 400/. sterling, for the dower which the wives of the defendants might claim, in case of their surviving their husbands ; and therefore prayed the aid and advice of the court, before he made his return, or proceeded to resell the house and lot, at the risk of the purchaser.</p> <p>On the part of the creditors it was urged, that this dower, which was made the pretext of non-payment of the money by the purchaser, was a mere possibility, which depended upon a contingency which might or might not happen. That it was very uncertain whether these ladies would survive their husbands or not; and that even if they did, it might be at a very late period of their lives, when their right of dower would be worth very little, if any thing. That, at all events, there was no rule at the common law for ascertaining uncertain and contingent damages; and the dower act only related to widows who had lost their husbands, and whose rights had actually accrued, and which did not depend on possibilities. It was further urged, that this was a case of considerable importance to the public, and merited the serious consideration of the court.</p> <p>This sale was made by operation of law, in consequence of a judgment obtained in a court of justice, in which the plaintiffs in the different suits were not bound to warrant- or in-^emnify ^16 purchaser against any such claims; it differed widely from private sales, where the seller was bound to warrant and defend the property free from all incumbrances, or where the payment of the consideration money raised an implied covenant in law. That the right of property of the defendants in the action was the thing seized and sold by the sheriff, more or less ; whatever that might be, the purchaser had a right to by virtue of this sale, and the sherifF could convey no more. It was the duty of the purchaser to examine into the nature of the estate, and the quality of the thing sold, before he made his purchase. Caveat emptor was the proper rule in such a case, and unless that was laid down as the true rule in sheriffs’ sales, it would render them, uncertain in all parts of the country, and constant shifts and pretences would be conjured up, by purchasers, in all cases where after purchase they did not like their bargains, more especially where the wives of defendants were living at the time of such sale.</p> <p>On the part of the purchaser, who did not wish to give up his bargain, it was said, a case had been determined in this court in 1793, (Blake’s case,) where a contingent claim of dower had been sent to a jury, to determine what deduction out of the purchase-money ought to be made for her possible claim, which the jury allowed, and which, it was urged, ought to make a precedent in every? case. That although the purchaser had demanded an abatement of 400/. in this case out of the purchase-money, yet he w?as willing to submit it to a jury, as in Mrs. Blake’s case, to ascertain a reasonable deduction in this case.</p>

SPECIAL action on the case, for taking insufficient bail, per quod., plaintiff lost his debt. From the report of the presiding judge, the circumstances of the case appeared on the trial to be substantially as follows. That a writ on which an order for bail was endorsed, for 211/. sterling, was delivered into the sheriff’s office, against one Powell, who resided in North Carolina, at the' suit of the present plaintiff, Mr. Teasdale.

<p>CASE on a note of hand. Defence, usury.</p> <p>, . iir, i On the trial before the jury, the defendant, under the se- , , ,. , . ,, , cond clause of the act against usury, was called upon as a witness, to prove the usurious transaction. And after his counsel had stated what was intended to be proved by him, the plaintiff’s counsel then moved, that his client might be . . . sworn under tne proviso mentioned in said clause, to i'ebut the testimony proposed to be given in evidence by the defendant. The proviso is in the following words : “ provided, a that if the person or persons (i. e. the lender or lenders of “ the money) against whom such evidence is offered to be “ given, will deny on oath in open court, the truth of what “ such witness (i. e. the defendant or borrower) offers to “ swear against him, then such witness (the defendant) “ shall not be admitted to be sworn; and if the plaintiff “ shall forswear himself, he shall be subject to the pains and “ penalties of perjury.” Upon the construction of this proviso, it was insisted on the part of the plaintiff, that he should barely be confined to the denial of the single fact of usury, or not usury ; and that he should not be asked, or bound to answer, any other question or questions touching the transaction. To this it was replied, that such a rigid construction of the proviso would be stifling the truth, and suppressing all the means of coming at the ends and de~ signs of the act, in detecting usurious contracts, and preventing the evils it contemplated. The presiding judge, Bay, observed, that this was the first time this point had come before the court, and it appeared to him, that the strict construction of the proviso contended for by the plaintiff’s counsel, would render the act nugatory, for these kind of transactions are generally in secret, and depended upon circumstances, concerning which, men differed widely in their opinions; some forming one conclusion of what constituted usury, and others again, a very different one respecting it; so that the bare affirming or denying the fact of Usury, or not usury, would by no means answer the ends of justice. That the true construction must depend upon facts, and oftentimes a long train of them ; and there was no coining at the real truth, but by a full, investigation of those facts : and the words of the act by no means precluded this examination, for the words are these, if the plaintiff, the lender, will deny on oath, the truth of what the defendant, the borrower, offers to swear against him, he, the defendant, shall not be allowed to be sworn as an evidence. What then is meant by the truth of what the borrower offers to swear, but the truth of all the circumstances of the transaction, and these are what the plaintiff is bound to answer or deny on oath. This, he said, appeared to him to be a fair construction of the proviso in the act. The common law renders both plaintiffs and defendants incompetent witnesses in their own causes, in all cases. This law, however, removes their incompetence in cases of usury. When this incompetence is removed, they then stand upon the footing of competent witnesses on both sides, and may be examined on both sides fully.</p> <p>The plaintiff, Mr. Luyten, was then sworn, and so far iraní denying what the defendant, Mr. Haygood, offered to swear, that he corroborated every circumstance; upon which the jury found for the defendant.</p> <p>A new trial was moved for, on the ground that the presiding judge had mistaken the law, and that the plaintiff had been compelled to answer questions, which he was not bound by the act to answer.</p>

<p>UPON a motion for a prohibition.</p> <p>This was a motion for a prohibition, to restrain the in-^er*or court; °f the city of Charleston, from proceeding in a case, which it was alleged exceeded the jurisdiction of the court of wardens ; which was authorized to hold pleas in ctytl suits, to the amount of 201. sterling, equal to 88 dollarS> but n0 fur£her-</p> <p>The note on which this suit was brought, was originally c-iven by the defendant for 115 dollars, on which the holder. 0 J . ' Mr. Ehrick, liad written a receipt for 30 dollars, which reduced it down to 85, in order (as it was said) to give jurisdiction to that court. This court sat monthly ; the recovery of small sums, therefore, in it, was much more speedy than in the court of common pleas, which sat but twice a year; and it often happened that the courts could not go through the docket of civil causes, during the term.</p> <p>On the trial before the wardens, the defendant took exception to the cause of action, as exceeding the jurisdiction of the court, but they ruled that a plaintiff had a right to give what credit he pleased on the note ; that it was no injustice done to him, by giv ing such credit, but a favour conferred, by giving up a right pro tanto ; and therefore gave judgment for the balance; and the plaintiff was about taking out an execution against defendant’s goods for the amount. This, was therefore, a motion for a prohibition, to stop the court of wardens from proceeding any further in the cause.</p> <p>In support of this motion, it was said, that if a court of inferior limited jurisdiction exceeds its authority, or over-leaps the boundaries prescribed to it, this court ought to restrain it by a prohibition. 4 Bac. Abr. tit. Prohibition, p. 253.</p> <p>That the original debt in the present case was 115 dol-?ars, not one shilling of which had ever been paid by defendant, though he was ready and willing to pay every farthing when called upon in a court of competent jurisdiction. That the plaintiff, Mr. Ehrick, knowing that this sum was above the jurisdiction of the court of wardens, had voluntarily, and without the knowledge or consent of the defendant, wrote a receipt on the note for 30 dollars, in order to give the wardens’ court conusance of the cause. This, it was urged, was not a bona Jide transaction, but a colourable one, contra Jidem, for the express purpose of creating a jurisdiction, in a case which the policy of the law had forbidden that court to intermeddle with. The law is therefore very clear, that if a credit is given for a shilling, in order to give an inferior court jurisdiction, where it had none before, it is a legal fraud, and a prohibition will lie. As in the case of Clarke v. Clarke, Palm• 564. where a suit was brought in the hundred court for forty shillings, in which action the plaintiff confessed that he was satisfied one shilling, which being done to give that court jurisdiction, (having jurisdiction only of all sums under forty shillings,) and to defraud the superior courts, a prohibition was granted. 4 Bac. 253.</p> <p>So also, a contract where divers small sums of money were to be paid at different times, under forty shillings each, the plaintiff proceeded in divers plaints on each part separately. The court restrained him by prohibition, because though there be several contracts, yet inasmuch as they were all due, and plaintiff might have brought one action, he ought to have done so, and sued here for his money, and not put the defendant to unnecessary vexation, any more than he can split an entire debt into divers, to give an [inferior court jurisdiction, in fraudan legis.</p>

AT a special meeting of the Judges at chambers, at Charleston, 17th of March, 1798. Present, Burke, Waties and Bay. This was a cause originally depending in the court of equity, out of which an attachment for a contempt had issued against the defendants, for not putting in their answers agreeable to the rule of that court. Upon this attachment, the defendant, Mr. Bowman, was taken and im* prisoned.

TRESPASS to try title to lands. In support of the plaintiff’s title, a grant was first produced to James Moore, for 350 acres of land, on Sandy river, dated 4ih November, 1763.

CASE from Camden. This was an action of debt on a judgment in trover, in which the jury under the direction of the judge, refused to allow interest.

THIS was an action of assumpsit. Plea non assumpsit infra quatuor annos. J 2 Verdict for defendants under the direction of the court.

<p>A reserv~tifln of lands f~r the use of ~t town, ~s a eO~ Veriant Iii law between the sthte and p00-pie, that tigne lands sh~dl be apprOprnttai only tor the n,e of the iii. habitants ~~i: said town, and fOr )I0 (1 her pui'~ pise ~) th~t any giant obtained for the sal..! lands af-tcrwarda, ~s null and coid no much as a junior grant for hum'ts which had been previ-Ousir granted away</p>

<p>In a declaration. for slander, where there are some counts good and others bad, a general verdict orfinding will support the good counts. A man may insert as many counts as he pleases, and if any one is good, it is sufficient.</p> <p>Unless damages are very outrageous, court vvill not grant a new trial in slander.</p> <p>See tie ease of Neabiggin Wife, ante, p.</p>

DEBT on bond. Judgment by default. ■ Motion to have the judgment set aside. This was an action on a bond given by the defendant, under the prison bounds act, as security for Mr. Kennedy, who had been taken on a ca. sa.

DEBT on bond. Plea, duress„ It appeared that the plaintiff in this action had sonie claim against the defendants, which they refused to admit of or pay, as an unjust demand ; and he did not think proper to bring any action against them, till they were on their way removing to Georgia, with their families, negroes, and other property.

UPON an indictment for a misdemeanor. This was an indictment at Orangeburgh, for branding a negro with a hot iron, contrary to the form of the act of the legislature, in such case made and provided, which inflicted a fine of 100/. for such an offence.

ASSUMPSIT on five notes of hand, for SOL each, against defendant as indorsor of Moses Sarcedas, who had lately become a bankrupt. The defence set up. was want of due notice on the part of the holder that the notes had not been duly paid off.

CASE on a policy of insurance. The vessel in this case was insured on a voyage from Charleston to the Cape de Verd Islands, and from thence to the coast of Africa, at the rate of eight per cent, for ,->ni months, and one per cent, a month after that time, during her stay on the coast.

CASE on attachment. The sheriff of Charleston district, by virtue of this attachment, seized the ship Sophia, in Charleston harbour, as the property of the absent debtors, the defendants, which had been consigned to Mr. John Potter, a merchant in this city, with a cargo on board, of considerable value. This was therefore a motion for the sheriff to restore the possession of the ship to Mr. Potter the consignee, and to the master who was part owner oí the vessel.

. CASE on a special verdict found at Beaufort. This verdict stated substantially, that sundry negroes therein named,, which formerly belonged to a Mr. Knox, a British subject in Georgia, had been confiscated during the revolutionary war, and sold; but that some time in the year 1778, when the British repossessed themselves of Georgia, and overrun that country, Knox, the original owner of the negroes, regained possession of them, and when at the close of the war, the British…

<p>SLANDER. This was a case tried at Cambridge, iu which the jury gave 1,000 dollars damages. J J o i o</p> <p>. A motion was made for a new trial, and by consent it was argued at Charleston, instead of Columbia. The prin-ciPal Srounds were, 1st. Excessive damages ; and, 2d. 1 hat t^eÍur3' &d not deliver in their verdict until Sunday morning, There was another ground, to wit, misconduct in the iury . d J m eating and drinking at the expense of the plaintiff, after they had gone out to consider of their verdict,. Rut the ground on which the defendant chiefly relied, was the second ground ; that the-verdict was not delivered into court until a considerable time after the hour of adjournment; and to substantiate this fact, a certificate of the clerk was produced under the seal of the court, which stated that the verdict was not delivered in by the jury until some time on Sunday morning, a considerable time after twelve o’clock, the hour limited by law for the conclusion of the term.</p> <p>It was then urged in support of the motion, that this ver» diet ought to be set aside, on this ground alone, if there was no other to support the motion j that the act of the legisla* ture authorized the court to meet at Cambridge, in Ninety-Six district, on the 16th days of April and November- in each year, and to set ten days, or until the business of the court was ii.ashed. But it is a well known rule of the common law, that the Lord’s day, commonly called Sunday, is not a day in law, dies dominicus, non est dies juridicus ; consequently, ail temporal business transacted on that day, is null and void, as it is set apart by our holy religion, for the worship of the Almighty, and the necessary preparations for that purpose. The court it was s.aid, might sit till the last minute of the twelfth hour, but no longer»</p>

<p>ASSUMPSIT for the use and occupation of a house.</p> <p>In this case, the jury assessed a sum for the annual rent of the house in question, but allowed no interest on the dil-1 7 ferent sums so fixed for the rent after the expiration of each , 1 year, although the presiding judge, Waties, charged them to that effect.</p> <p>This was a motion for a new trial, on the ground, that the interest was recoverable on each year’s rent, after it became due; and also, because it was a finding against the direction and charge of the judge.</p>

<p>i.jhvom 'jjl-iti'or5 ¡«xlcompeiL-d ¿>r auoiiiA Ln1v.li'ik' oía ^ vi!I m,t ‘‘X0I>-dervrit.-iv. of tÜo Íiuaoi-j? jv-md _ ovi-|i!,“pcatuoM»1' vessel to bear away or de* part from her trTheiasured have a right to abandon on caPtai*e> aiu* every endca-vour t0 reco-ver ship and cargo after-wards shall be intended for the benefit of tjltí underwriters.</p> <p>The only evidence necessary to shew the capture is the protest of the master and mariners, though the condemnation afterwards is undeniable corroborating evidence of the fact.</p> <p>7J/;/*s XU.</p> <p>Park) 3481 Marshall^ 279, 2S0</p>

<p>RULE on sheriff to shew cause why he should not pay-over moneys he had in his hands, arising from the safes of defendant’s estate, towards satisfaction of a judgment he had against the defendant.</p> <p>shewed cause and claimed the moneys in the sheriff’s hands on behalf of the state, for the arrears of several years’ taxes due from defendant, amounting to 220/. 8.9. 9d. sterling, on the ground that the state had a prior lien on defendant’s estate, and must be paid in preference to all private individuals; he quoted the act for regulating the duty of collectors and assessors of taxes, &c. passed in 1788, which “ imposes dou- “ ble taxes on all persons, who should refuse or neglect to “ make a due return, on oath, of all their taxable property ; “ and authorizes the assessors to make the said assessments “ according to their judgments, and the best information “ they can get of a defaulter’s property.” That the defendant, Mr. Baily, had been a defaulter for many years, and had neglected to make a return of his taxable property, until his arrears ran up to 110/. 4s. 4 l-2<r/. when the assessors doubled that sum to 280/. 8s. 9d. agreeable to the terms of the act; for which sum, the collector of the district issued his warrant under his hand and seal, which was lodged with the sheriff for collection district. The sheriff had, however, seized and sold the property of defendant in the mean time under Major Butler’s execution, and had the money in his hands, so that the question was, whether the state,or the plaintiff, Major Butler, should have the money.</p> <p>that the state had a lien on a man’s property for the payment of taxes, paramount to any other claims whatever, or demands of any private.individual whomsoever. That it was the price of protection, which originated in the very nature of the social compact, and without which, government could no.t subsist a moment; withdraw that support and government was at an end. It was, therefore, upon these principles, that the state claimed a preference for taxes to all claims or demands whatever.</p> <p>argued, that admitting that defendant’s property was bound in the first instance for the payment of taxes, it could be only for one year; as the tax collectors were bound to settle with the treasury annually, under a penalty of 300/. sterling. That the tax collectors were appointed under the authority of the state, and were to be considered as its officers, and they were punishable for neglect of duty, in not selling the defendant’s property annually, or so much thereof as was sufficient to pay off the taxes every year ; otherwise purchasers and creditors might be deceived by an indefinite lien on a man’s property for any length of time, and that, too, to an amount that cannot be well calculated upon. That the arrears of taxes in this case were for a number of years back, and a great part of them were due on property which the defendant had since sold and disposed of; and it would be very hard indeed, to make the little pittance he had left, liable for the whole of those arrears ; at all events, he said, it should be made liable only for a just and due proportion of the property the sheriff had sold. He further argued, that even admitting that the lien had an indefinite retrospective operation, and that the portion of defendant’s estate left was considered as liable, it should not be construed so as to make the estate chargeable with more than the sum really due, 110/ 4s. 4 l-2t/. That the double tax was only intended as a penalty on defaulters, in not making their returns agreeably to law ; and that like every other penalty, it should be discharged upon the performance of the condition annexed to it, which he said, in the present oase, would be the payment of the surá. actually due, and any expenses which had accrued.</p> <p>observed, that what strengthened the construction given by his colleague, of the lien not binding longer than one year, was, that the tax bills of this state were passed annually at every session of the legislature, and were intended to operate only for one year, and that the tax collectors were in duly bound to compel payment, and settle with the treasury every year ; and it would be wrong to permit the state to take advantage of the laches of its own officers, to the prejudice of bona jide purchasers and creditorsthey ought to be made liable out of their own estates for their omissions or neglects, and the de Sciences of taxes made good from them ; that this kind of secret indefinite lien on all a man’s property, might, if once established, be very dangerous to the community ; as by that means, a. tax collector may take away the property of a judgment creditor, at the moment when he was about to reap the fruit of his execution ; when by due and reasonable diligence before, the taxes might have been collected, or probably there might still be property left, which might be found out by due diligence ; and what made the inconvenience of purchasers and creditors greater, was, that there was no public office established wher e creditors or purchasers could get the necessary information.</p> <p>There is nothing in the tax act, or any other act or law whatever, which limits the lien for taxes to one year only ; this lien, therefore, from the very nature of it, must be indefinite, or in other words, it . must remain until paid, as long as there is any thing to pay with ; the limitation act, however it may run against individuals, will never run against the rights of the state. It is true, that what is called the tax bill for the supplies of the state, is passed annually, but this annual tax bill only fixes the quantum, and on what species of property the taxes shall be raised. The general tax act of 1788, regulates the mode and manner of making the assessments and collections of the taxes, and this is a permanent law which comes in aid of the fundamental principles of government, and declares how and in what manner, all persons concerned in the laying on, and getting in the taxes, are to be chosen and appointed, and how their conduct is to be regulated ; and also the mode and manner of making the returns of taxable property to the collectors, an-i in general regulates the principles by which ail future taxes are to be collected, and the conduct of the officers are to be governed : but this act fixes or lays on no tax on any property whatever; it only regulates the general principles of apportioning, collecting and bringing into the tieasury, those contributions which every man was previously bound to pay, for the support of the government of the country un der which he lives, and is protected. By the mode established by the general tax law, the assessment is made on the whole of a man’s estate, real and personal, on the aggregate, and not on each particular part of it. It would be very inconvenient, if not entirely impracticable for the assessors and tax collectors, to be riding over the state, hunting out every particular specific portion of a man’s real and personal estate, which might from time to time be liable to taxation, in order to fix an assessment on each part; hence it must be evident, that the assessment must be on the whole or aggregate ; and hence it results, that the whole or any part which can be most conveniently found, or come at, must be liable for the whole amount due. As to the inconvenience, which it was s?,id purchasers or creditors might be subjected to, this might easily be removed, by going to the tax office, or the treasury or comptroller’s office ; in all which, they might easily satisfy themselves whether a man’s taxes have been paid off or not, and if they did not take that trouble, it was their own fault. That with respect to the tax collectors not doing their duty, they might either be made liable by a suit on the behalf of the state, on their bonds, or any private individual might have his private remedy by a special action on the case, for any damages he might suffer by their neglects or omissions. But their laches in not performing their duties, was not to deprive the state of this high prerogative right of doing itself justice, whenever an opportunity presented it for that purpose. • That so transcendant was this right, that neither length of time, nor the act of parties, can ever bar it of so high and necessary a power. He further contended, that the double tax for neglect of making a due return, imposed by the act of IV88, could not be construed as a penalty, defeasible on the paying what was originally due ; but an increased tax, which becomes absolutely and unconditionally due and payable, after the day limited by law, for making the necessary return. It was like a fine imposed on refractory citizens, for doing, or not doing, what the law prohibits or enjoins ; and the policy of this law was wise in itself, as it was easy to see, that it might frequently happen, that many designing citizens would conceal their property for a long time before they made a proper return on oath, and then at last, only pay what they ought annually to have done; by which means, the revenue of the state might frequently fall short of the exigencies of the government. This part of the act was to compel every man to come forward once a year, honestly and fairly to bear and pay his proportion of the public burthen, whatever it might be, more or less ; that they might not fall partially on the punctual part of the community, but on all without distinction, agreeably to the property he possessed. That this had been found from experience, to be one of the best clauses in the act, as it had a tendency to enforce itself, by the nature and certainty of the penalty, that hung over every delinquent’s head, and if he incurred it, he had himself to blame, and what made it the more efficacious was, that there was no defeasible clause in it, or power given to the courts of justice, or any of che public functionaries-to remit a dollar of it; the collectors under a large penalty xvere bound to pay it into the treasury, and nothing could draw it out, but a public law of the state.</p>

<p>CASE on a special verdict.</p> <p>This case came before the court on a special verdict, which found substantially, that the plaintiff obtained his judgment in the court of common pleas, against the defendant David Ramsay, on the 2d of March, 1797, on which an execution issued, and a levy was made on a house and lot in Meeting-street, in Charleston. When this house and lot were advertised for sale, John M. Ehrick, produced title-deeds to the sheriff, for the lot in question, dated I4th of January, 1797 ; but these deeds to Ehrick were not recorded till 11th of January, 1798. Upon the production of these deeds to the sheriff, he refused to proceed in the sale of the house and lot; whereupon the present action was commenced against the sheriff for not doing his duty. The special verdict then concluded in the usual manner, referring the construction of the law to ihe court, and finding accordingly.</p> <p>argued, that although EhricRs deed was prior to the date of plaintiff’s judgment, yet it was not recorded until near twelve months after; therefore void as against creditors and bona fide purchasers ; and for that purpose, relied on the 45th section of the county court act, passed in 1785, and on the clause in the act of 1789, allowing twelve months to record deeds, which had been made before the passing of the county court act, which he said,' proved that it was considered as a general law throughout the state, and that thereafter, all deeds should be recorded within six months after their execution.</p> <p>urged, that the county court act was local in its nature, and was restricted to those portions of the country only, where county courts hac! been established, and did not extend to the lower divisions» of' the state, the districts of Charleston, Georgetown and Beaufort, or any other parts where those inferior courts had never prevailed. He likewise contended, that the act of 1789 was retrospective, and not prospective; that the recital of the act as well as the enacting clause, proved it to be so without doubt; the recital stated the mischiefs which might' arise by so great an alteration in the law respecting real estates, by a clause concealed in an act, purporting to be for the purpose of establishing and regulating the proceedings in the inferior county courts only ; a clause which might defeat the titles of many, who held deeds and conveyances of lands, who might be totally ignorant of such a clause in the body of an act, for so different a purpose ; it then goes on and enacts, that persons holding such deeds, should record them in the county courts within twelve months after the date of that act. That this was not making it a general law, but left its locality where it found it, still attached to county court jurisdictions.</p> <p>insisted» that ever since the passing of the act in 1785, establishing county courts, this clause, requiring deeds to be recorded within six months after their execution, had been considered as the general law of South Carolina, by most, if not all of the practising lawyers at the bar. It was true, he said, there had not been any judicial decision to his knowledge on the subject, but he himself for one, and many others of longer standing than himself, and whose opinion he bowed down to with respect, had considered it so also ; and it would be a very dangerous thing at this day, to call it in question after such a construction had for fourteen years been generally given to this clause ; that the whole of the state had been divided into counties, and Charleston was made a county also, although no county courts had ever been held in it; yet the act attaches itself on Charleston, as well as upon the other counties; that there was no express clause in the act to confine this regulation to those counties only where county courts were established, and held that it was general throughout the state.</p> <p>concluded the argument by observing that it was unreasonable to construe this to be a general law of the state, and although it may have been considered as such by some gentlemen of the bar, yet he had never conceived it as extending generally throughout Carolina; for the very regulation itself, upon an attentive consideration, would appear to be a local one in its nature. In the first place, it related to lands lying in those counties only where county courts were established, and being within the limits of those counties, and to no others ; for deeds for lands lying in one county, could not be recorded in the clerk’s office of any other county ; but were to be recorded in the office of the county where the lands were situated, or if they were recorded in any other county, it was of no avail. Secondly, it requires that the deeds should be proved before the judges of the county court, where the lands lay, previous to their being recorded; he insisted, therefore, it was impossible to prove deeds before judges where none were appointed, or to record them in offices where none were established ; so that from the necessity of the case, the regulation must be confined to those portions of the county only, where these inferior jurisdictions had been established ; he admitted, that Charleston was nominally one of the counties mentioned in the act of 1785, and that counties had nominally been laid off in all the lower divisions, but it was notorious to every man in the state of common observation, that the lower divisions of the state were utterly opposed to county courts, and the. whole county court system, as inconsistent with the true interests of the country, and believed that they would prove a curse rather than a blessing wherever they might be established. Under this idea, then, the act passed ; that those portions of the county which wished them should have them, and those which did not wish them should be exempted from the plague and burthen of them ; consequently, the lower parts near the sea coast, Charleston, Georgetown and Beaufort, never had them ; while Cherccw, Camden and Ninety-Six districts had them established ; but finding from sad experience the bad effects of them, have come forward almost to a man, and had them abolished in the upper divisions of the country, so as to free South Carolina entirely of such useless and troublesome jurisdictions. From this view of the case, then, it was most evidently a partial regulation, which was in force only where those courts were established ; that it was coexistent with them, and ceased with’their existence.</p> <p>Deeds for lands in Charleston district, did then, as they do now, depend upon the general law of the land, as they did before the passing of that act; and as the law stood before the pássing of that act, and as it does now, there was no time fixed for recording of deeds : every man recorded them as it suited his convenience, or omitted to do so if he thought proper; the only risk he ran was* the chance of another man’s getting another deed from the same grantor, and putting it first on record ; in which case, the younger deed recorded, would have a preference under the “ act for u preventing double conveyances and mortgages.” But if he was not afraid of another conveyance being put on record he might omit recording it entirely if he pleased. He quoted the case of Ashe v. Ashe, v. 1. p. 304. Riley’s edit, as in point, where a mortgage was found among the papers of a deceased man,.twenty years after his death, without being recorded which had the preference of a judgment entered up many years after, although the land had been sold by the sheriff, and the money paid over to the plaintiff in the action at law ; he also said, the construction contended for, went to defeat the vested right of a freehold estate in lands by implication, which was against law and common right.</p>

TRESPASS to try title to a house and lot in Meeting-street, in the city of Charleston. This case came before the judges on a special verdict, founded on the last will and testament of Daniel Heyward, deceased; as the right and title to the premises in question, depended on a true construction of that will.

FORGERY. Case from Camden, in Kershaw district. 1'he prisoner in this case had been convicted of forging an order, purporting to be an order drawn by Charles Evans on Mr. Coleman, a shop-keeper in the town of Camden, in favour of one John Adner, or bearer, for the delivery of goods, and which he desired to be charged to his, Charles Evans's account, and for which, the order expressed, he would be obliged to Mr. Coleman for so doing.

ASSUMPSIT for goods sold, &c. 96/. sterling. Tried at Georgetown, April, 1800, before Bay, J. In this case it appeared, that Pourie, one of the plaintiffs, did business as a factor, in the sale and disposal of crops, &c. independent of the mercantile transactions of the house of Pourie and Dawson ; and that the defendant had consigned rice to him for sale, to a much larger amount than the debt claimed in this suit; and that while the rice was in his hands, he took up goods…

<p>CASE on attachment.</p> <p>Upon a rule on the sheriff, to shew cause why he should not Pay over monies, arising from the sale of a house and lot, to the plaintiff in attachment, as the first attaching creditor,</p> <p>This was a case which turned upon the construction of attachment act. Mr. Taylor, as attorney for the plain* ^ smtt moved that the money arising from the sale of this house and lot, might be paid over to his client as the first attaching creditor. ° °</p> <p>who was a second attaching creditor, claimed this money, and moved that it might be paid over to his client, as having the jfirst judgment.</p> <p>Upon looking over the proceedings, it appeared that Mr. Taylor had issued out his attachment on the 6th day of July, 1796, but as the sheriff had mislaid the writ of attachment, the declaration was not filed within two months after the issuing of the writ. On the 22d of June, 1797, Mr. Taylor obtained an order for the substitution of a new writ of attachment, in lieu of the old one lost or mislaid ; on the 20th of 'July, 1797, he filed liis declaration; on the 31st of July, 1798, he obtained an order for judgment; ou the 2d of August, 1798, he executed his writ pf inquiry, and on the 20th of August, 1798, he got his final judgment signed.</p> <p>Mr. Darrell issued his writ on the 6th of October, 1796, filed his declaration the 31st of January, 1797, obtained an order for judgment on the 5th of February, 1798, and executed his writ of inquiry, and signed his judgment on the 26th of March, 1798, nearly five months before Mr. Taylor's final judgment; so that the great question in this case was, who should have the preference, the first attache ing creditor, or the first judgment creditor.</p> <p>On the part of Rogers, the second attaching creditor, it was contended, that the main object of the attachment act, and the attaching a part of the absent debtor’s goods, &c. was to make the absent debtor a party in court, so as to bind him with a judgment, as in ordinary and common cases, where a copy of a writ or process was left at the defendant’s most notorious place of abode ; but that the judgment when obtained, operated by common law principles, and bound the property real and personal of the absent debtor, and had all legal priorities in the same manner as if defendant had been served personally with the original process, or as if it had been left at his usual residence. It was admitted, that the' first attaching creditor would have had the preference if he had been diligent and obtained his first judgment; but as he did not, but lay by, it left an opening for Mr. Rogers to step in and get the first judgment; by Which means Stephen lost, and Rogers gamed the priority. That Stephen should have filed his declaration within two months after the return of the writ, which was on the third Tuesday in August next after it was issued ; that if the sheriff did not return the writ, he should have been ruled to, that purpose, and if on being called on, he had shewed for cause that it was lost or mislaid, he might then have got an order of substitution as well as in June, 1797, which was such a nc-gtect or omission as forfeited his right to a preference.</p> <p>Mr. Moultrie claimed the money for his client, Mr. Stephen, the first attaching creditor, on the ground that this was not a common law right, but one expressly given by the statute, which was bottomed on the civil law; the proceedings were in rem and not ad personam ; that the main end and design of it was not so much to bind the person of the absent debtor, and to make him liable, as to get possession of his goods and chattels to satisfy the demand of the plaintiff. The very title of the act, and all the clauses of it, were predicated upon this idea. The act at the first blush, presumes that the defendant is absent and out of the state, so that a common law process could not be served upon him, but that he had goods and chattels, rights and credits within its limits sufficient to satisfy the demand. It was therefore to make these liable in the absence of the defendant that the act was framed, and every clause of it is so constructed, as to answer the ends contemplated.</p> <p>The first clause of the act is express and positive; it declares that the attaching of any part of the ahsent debtor’s goods and chattels, &c. &c. in the name of the whole, shall secure the whole, and make it liable in law, to answer any judgment which should be recovered upon such process ; this, he contended, was a statutory assignment, or transfer to all intents and purposes, as effectually in law as if the defendant himself had made a formal assignment under hand and seal, or given a mortgage of the property to secure the debt. It was much more extensive in its operation than any judgment or execution, as the latter can only extend to tangible property which the sheriff could seize and sell, but this statutory transfer under the act, gives the plaintiff in attachment a right to moneys in the hands of third persons, and to bonds, notes, book debts, and all other kinds of dioses in action which belong to the absent debtor.</p> <p>It also compels a discovery on oath, of all such debts;, dues and demands from third persons, as are due and owing to the absent debtor. It likewise authorizes the attaching creditor, to sue for, recover and receive all such moneys as are due and owing to the absent debtor, and to give receipts and acquittances for the same, which are de¿ dared to be binding and conclusive against all parties whatever ; no assignment, therefore, he said, could be more conclusive or extensive than this created by this act, yet none of them so far depended on the judgment. This act likewise authorizes the sheriff to seize and take into his power all the tangible property of the absent debtor, and appraise and sell the same, and pay the proceeds into the hands of the plaintiff in attachment, and this also without any judgment; all which extensive and operative clauses in this act, he said, prove most manifestly beyond all contradiction, that it is the issuing out and lodging of this attachment in the hands of the sheriff which creates and establishes this extensive lien on the goods and chattels, rights and credits of the absent debtor; because all this is done under the different clauses of the act, long before any judgment oftentimes can be obtained against the absent debtor. Indeed, the end and design of getting final judgment in an attachment case, was more for preventing fraudulent demands against an absent debtor, than for any other purpose whatever; because the act requires that such debts and demands shall be proved to the satisfaction of a jury by the ordinary rules of evidence, and that after a notice of a year and a day to defendant to come in and plead to the suit, in order to prevent surprise in establishing a demand against the absent debtor ; but this judgment seems intended only to liquidate and establish the amount of the plaintiff’s demand, but not to give him a right to the absent debtor’s effects, which had been previously disposed of for the use of the plaintiff in attachment, agreeably to the foregoing clauses of the act.</p> <p>With regard to the supposed laches on the part of Stephen, in not filing his declaration within two months after the return of the writ of attachment, it did not deprive him of any right which he had acquired by his first attachment 5 the suit was not discontinued thereby, and if the suit was not discontinued, then the first attachment did not lose its lien. He admitted, that the second clause of the attachment act, did require a plaintiff to file his declaration within two months after the return of the writ, unless sufficient cause was shewn to the contrary. Now the cause shewn here, was the loss of the original writ by the sheriff, which was deemed a good cause for further time to file it; and this was no laches or neglect on the part of Mr* Stephen the plaintiff, or his attorney Mr. Taylor, but owing to an accident happening to the sheriff, who is a public officer, and unavoidable accidents are always allowed to take cases out of any general rule.</p> <p>The act has fixed no precise time for filing a declaration after the expiration of two months; that is left entirely to the discretion of the judge, who makes the order for further time. If, then, no time is mentioned, either by the act or any rule of court, which allows a year and a day before the cause is out of court, unless the party was forced by a rule to declare in a shorter time, and it is not alleged in ¡this case, that any such rule was ever obtained, either by the defendant or the second attaching creditor; and long before a year and a day had expired from the return of the writ, the order for substituting a new writ in lieu of the one lost by the sheriff was obtained, which he said fully cured all defects and omissions about filing this declaration; and the party immediately afterwards filed his declaration, and proceeded on regularly to final judgment. But whatever cause there might have been for taking advantage of any delay while the proceedings were in transitu, it was now t'po late after judgment. 1 Bac. 95. 3 Burr. If25. 1728». The statute of jeofails will cure all omissions or mistakes, if there were any, after verdict and judgment.</p>

MOTION tq set aside a nonsuit, on a summary process. In this case, Mr. Parker, who appeared for defendant, filed a discount; but as a knowledge of the items in the discount, and some other material circumstances, rested only with the parties, he gave the plaintiff’s attorney, Mr. Taylor, notice that he would call on the plaintiff on the trial to answer on oath touching the payment of certain sums of money, which were known only to the parties themselves } upon the ground,…

• MOTION for new trial. This was an actiop to try title to certain portions of land within the defendant’s enclosure near Georgetown, claimed by the commissioners as part of the public streets belong-, ing to the town; tried before Bay, J. in Georgetown, April, 1800.

UPON a summons to shew cause why a writ of partition should not issue, to divide the intestate’s estate among the petitioners, according… Held: that the law had been settled in Pett’s case, and he did not think proper to call that decision in question. contended, that upon the death of John Poaug, the nephew of the intestate, a sixth part of the intestate’s estate, vested in his grand nephew John Poaug\ an It has been determined, that a bi-other of the half blood should be…

<p>The insured have a right to abandon g“pUp^ ture, though not obliged to do so imme-ff there iíany recovering °f ^rivards^ therefore, it is not too late for the owners; make their election to a-after°afidec£ of "admiralty* °f prizeUorno t)rize-"W here an appeal is made tors^and^e-dered to be f^thcomin»16 of vessel a,N cargo, or the appraised \a-lue thereof by the claimants on getting possession of them, this is not to be considered as a restitution, onh* an interlocutory decree which may be compared to property seized for rent at common h w and replevied. It is not conclusive or definitive on the parties; the debv and uncertainty of decision are risks within the policy.</p>

The ground upon which this motion was made, was, that certain commissions which had been issued in this cast, in order t0 examine witnesses in Virginia, and also in Georgia, ha¿ not been permitted to be opened, and the depositions ; ... 1 read on the trial by the presiding judge ; because, it did not ¡ . . . appear that the commissioners named m said commissions, or one °f them, had deposited the said commissions and de«-Pos^ons after the examination of the witnesses in the…

ASSAULT and battery. Verdict for the plaintiff. Motion for a new trial on the ground of misconduct in the jury. This was a case tried in Edgefield district, in which the jury gave a verdict for 1,000 dollars, for a most violent and atrocious assault.

THIS was a qui tam action, which was submitted to the court on a special verdict.

<p>The sale. t>y «in iidmmis-trator of ¡my part of (lie intestate’s ‘'ibl f’ 'Y such admhiis-have had "no the^ordinarv sut^</p> <p>Office o f Executors) 566.</p> <p>2 JSac. Jlbr. m. \ Roll 010.</p> <p>Went. Office of Executors} '4U.</p>

THIS was an action to recover the penalty under the act of assembly, for cutting a rice dam contrary to law. Penalty 100/. Verdict for defendant. * J This suit was commenced under the act of assembly J against cutting rice darns, except under certain regulations mentioned in the act, under the penalty of 100/. one-half to the informer, the other half to the state ; in which the jury gave a verdict for defendant.

<p>MOTION for a new trial.</p> <p>This was an action against defendant as endorsor on a note of hand, in which there was a verdict for defendants The note of hand in question was given by David Bush, of Camden, to the defendant Kiddell, for 473/. sterling. Kiddell afterwards made the following endorsement, viz: “ I assign “ over to Hudson Hughes, the sum of 1,930 dollars and 50 “ cents, as part of this note of hand.</p> <p>“ Signed,</p> <p>“ Benjamin Kiddell.”</p> <p>Afterwards he made another endorsement, and assigned over the residue of said note. (Signed, Benjamin Kiddell.')</p> <p>contended, that both these endorse ments ought to be taken together, and considered as one endorsement, as it appeared to be one transaction, done at the same time, on the same day, and made to the same person. He admitted, that an endorsement of part was not good, but that the two parts in this case, to the same person, made the whole good ; and as such, the coui'i was bound to give it a reasonable and liberal construction, as it would not subject the party to different actions ; which, was the reason, why the law of merchants would not admit of the splitting up contracts, and allow of different endorsements on bills and notes.</p> <p>contended, that from the very na» ture of the transaction, it must have been the intention of the defendant to restrain the negotiability of this note, as jvell as to exempt himself from responsibility ; taking these endorsements either severally or jointly, they amount to no more than a bare authority to receive the money, or a relinquishment of the defendant’s right to the note. It is not expressed for value received, so as to raise an implied assumption at law ; but the law is clear that an endorsement for part is bad. Bailey on Bills, 34.</p> <p>For if it were allowable for a man to endorse for part, he might endorse 100 dollars to A. another 100 to B. and so on ; and by that means, defendant might become liable to twenty different actions on the same bill. For these reasons, and to guard against this monstrous inconvenience, the law of merchants has established it as a rule, that a bill cannot be endorsed for part. Gunn, on Bills, 37.</p> <p>Now it is clear, from the gentleman’s own acknowledgment, that the first endorsement for 1,930 dollars and 50 cents in part, is bad ab initio ; and if so, then the subsequent endorsement for the residue never can give the first, legal validity; as it is most evident to reason and common sense, that two vitious or bad endorsements can never constitute a good whole^endorsement.</p>

MOTION to set aside a nonsuit. This was a case from Camden, on a summary process, in which the defendant had been called upon by Mr. Mathis, the plaintiff’s attorney, to declare on oath, whether he owed the debt in question, or not. And resting on what he supposed to be the rule under the authority of Dillon and M-Cue's case, (ante, p. 280.) was not prepared with any other kind of evidence to support his demand.

<p>CASE from Union district.</p> <p>Motion to reverse the decision of the circuit court.</p> <p>This was a case upon a summary process, m which defendant had regularly entered an appearance, and claimed an imparlance to the second court, but the presiding judge ('Grimice') refused to allow it. Plaintiff then went on, proved V ' ' 1 his case, and got judgment; and this was a motion to re- . verse the decision of the circuit court at Union district.</p> <p>In support of the motion, it was urged, that under the fourth clause of the circuit court act of 1789, the plaintiff was entitled to it as a matter of right. This clause declares. iC that all process issuing from said circuit courts shall be “ returnable to the next court, and that all proceedings should “ be made up thereon and ready for trial at the next court “ afterand that it had been the practice of the circuit courts to allow imparlances in all cases where appearances had been regularly entered, under the authority of the above clause, which is general in its nature, and not confined to any particular class of proceedings in our courts of judicature, and extended to cases on summary process, as well as to cases on mesne process.</p> <p>To this it was replied, on behalf of the plaintiff, that the above recited clause only extended to and meant cases on mesne process, which were generally cases of importance, and where all the proceedings were in writing, and the pleadings in due form of law. In all such cases, the act allowed an imparlance in order to give the parties an opportunity of drawing up and preparing their pleadings, and filing them within the rules of court, and in many cases of intricacy and doubt, justice could not be done without such indulgence.</p> <p>But in cases on summary process, which were generally for small sums, and determined by the court without the intervention of a jury, and where all the pleadings were ore tenus, and where parties were heard on both sides, without reducing them to legal form, this indulgence was.not necessary ; and so far from being in furtherance of justice, it would only amount to a delay of justice. That as to the practice of the circuit courts on the construction of the above clause, some judges had conceived themselves bound by the law to allow the imparlance, while others again refused it, so that it had really been fluctuating and uncertain ; but the best rule was, to give the clause such a construction as would rather expedite than delay justice.</p>

TRESPASS to try title to a lot of land in King-street, in which there was a verdict for defendant. Motion for a new trial. The case was as follows.

UPON a motion to set aside a judgment on the ground, ,that the bond on which this judgment was obtained, was given bv defendant while she was under coverture.

This was an action of trespass to try the title to a lot of land in the town of Camden, before Waties, J. in which there was a verdict for the defendant. Plaintiff moved for a new trial, on the ground of misdirection, and as a verdict against law. The case was as follows : CoL Thomas JJde., in his lifetime, to wit, in the year 1786, obtained a judgment against Fielding Woodroof, then an inhabitant in Camden, to whom the lot in question belonged.

This was a special a'.tion on the case, tried at Columbia, in Richland district, for the value of three hundred bushels of rorn, which was burned in a crib, owing to the misconduct of defendant’s negroes, as alleged. 1 he case was briefly as follows : Trice, the defendant, had hired a field, which had been planted the year before with corn by the plaintiff Snee, in which stood a crib or corn-house, where the plaintiff had stored his crop of corn the preceding year.

■MOTION for new trial. This was an action of debt on bond, tried at Colleton district, before Bay, Justice. It appeared that this bond had been given for the purchase of a number of negroes, and that the defendant had given a mortgage upon them to secure the consideration money.

UPON an indictment for a forcible entry and detainer. Verdict guilty. Motion for a new trial. The defendant had been indicted for a forcible entry and detainer of lands belonging to the honourable Judge Grimke, in Union district.

UPON an indictment for trading with a negro, without a ticket from his master or person in whose charge he was, contrary to the act of the legislature in such case provided. Verdict, guilty. Motion for new trial. .

CASE on a policy of insurance. Verdict for plaintiffs. Motion for a new trial. This was an action on a policy of insurance on the brig Susannah and cargo, on a voyage from the port of Charleston to Cadiz. The vessel proceeded on her voyage till she was near the place of her destination, when she was boarded by an English privateer called La Mouche, and sent into Lisbon.

<p>■. , , .Awards and - umpirages are not to be set aside unless o°ro°misbeha-a¡ biiratorsthe Exeeptoniym cases of gross errors or mistakes, courts •will always tband too Sceiy^so as to «¡treat the ends ot the reference, hut will lend every aid to into* exec™ tl0n-</p> <p>2 Vex. jun. 22; *</p>

<p>A formal protest by a notary is not necessary on an inland bill of exchange or promissory note, though reasonable notice is required, In order to charge an endorsor, that such note qr bill has not been duly l>aid-</p>

CASE on a bill of exchange drawn by the defendant on himself. Verdict for plaintiff. Motion for a nev? trial. This was an action upon a bill of exchange drawn by the defendant, in the island of St. Croix, on himself, payable in Charleston, and accepted by the defendant.

<p>deserves a sound commodity. of</p> <p>recovering back money which had been paid by mistake, MOTION for a new trial. This was a special action on the case, to recover back thirteen hundred pounds sterling, for a ship which was stated to be unsound and not seaworthy. There was a wr’tten agreement in this case, by which the defendant agreed to sell, and the plaintiff to purchase, the ship in question, at and for tne price of thirteen hundred pounds sterling, which sum was duly paid to the defendant agreea- hly to a bargain between them. Soon after the conclusion agreement, and the payment of the money, the plain- alleged that he had discovered that this was an old and ° unsound ship, not seaworthy, and that it would require more to repair her than she would be worth when repaired, Whereupon, he demanded a return of the money, and of- fered to rescind the agreement; but the defendant refused t0 §*ve UP contract5 and insisted upon holding the plain- t0 bargain. Upon which he brought the present action,</p> <p>law, that a sound price Mr. Parker, for the plaintiff, contended, that this doctrine or where the consideration had failed, was so well established in our courts of justice at this day, that he would not dwell upon it, but would state it as a settled rule of law. He then offered to prove the payment of the money ; it was, however, admitted. He then produced sundry estimates made by ship-carpenters and masters of vessels, by which he said it would appear, that it would cost more to repair this old ship, and make her fit for sea, than she would be worth when all these expenditures were laid out upon her. That, therefore, upon every principle of justice, the defendant ought to refund him the money he had paid him, with interets for the use of it</p> <p>stated, that this ship was not sold to the plaintiff as a new ship, but as one which had run some years, and performed many voyages ; and consequently as a vessel which would stand in need of repairs. It was then proved, that the plaintiff was desired to go on board and examine her himself; that he did so, and took with him persons of skill and knowledge in naval affairs, particularly a captain Hunter, an experienced seaman and commander; and it was not till after a full examination of the state and condition of this ship that the bargain was closed. It was also proved by two merchants, Mr. Adam Tunno and Mr. William M-Whann, that if this ship had been new, she would have been worth two thousand five hundred guineas, more than double the sum she sold for.</p> <p>The presiding judge left this cause to the jury, as matter very proper for their consideration, under all the circum- , stances, and they found a verdict for the defendant.</p> <p>This was a motion for a new trial, on the ground that the verdict was against law, and the justice of the case.</p> <p>said, that as the doctrine he had contended for on the trial was now considered as the fixed and established law in this country, to wit, that a sound price deserves a sound commodity, he would go one step further, and lay it down as a principle equally sound, and as well deserving the support of this court, that a fair price raises an implied warranty of the adequacy of consideration ; and for that purpose cited Wooddeson, 415. Men, he said, paid their money in order to get an equivalent ; and if they were deceived, they ought at least to be restored to their former condition, even if no damages were allowed them, which was all that his client wished on the present occasion. And if the court would order a new trial, he had little doubt but that another jury would restore the money he had paid away, and place the parties where they originally stood before the bargain took place.</p> <p>The Attorney-General. The plaintiff cannot possibly recover on any special warranty in this case; if he recovers at all, it must be on the implied warranty. He admitted that a sound price required a sound commodity, but denied that a sound price had been paid in the present case, in the sense in which the counsel for the plaintiff wished to place it. Only thirteen hundred pounds had been paid for this ship, and it was proved that if she had been new and sound, she would, from her size, capaciousness and construction, have been worth double the sum, which shews she was sold as a half-worn ship, and, consequently, only half the price of a new, sound ship was paid for her. That the doctrine urged on behalf of the plaintiff, that.a fair price raises an implied warranty of the adequacy of consideration, was a novel doctrine, unknown to the common law, and had never been broached in any of our courts of justice before. Such a doctrine, he said, if once admitted in the formation of contracts, would leave no room for the exercise of judgment or discretion, but would destroy all free agency; every transaction between man and man must be weighed in the balance like the precious metals, and if found wanting in this adequacy, must be made good to the uttermost farthing ; it never was, nor never could be, of practical use in society. The thing might at first sight appear to be plausible, but when, brought to the test of experience, it would be found to go too far, to prove too much, and at last to destroy itself by the extravagance of its theory. The true rule respecting contracts he took to be this, that whenever a man paid a sound price to the seller for a commodity which turned out to be unsound afterwards, without the seller’s knowledge of the unsoundness at the time oí sale ; or where there was a knowledge of the unsoundness, and a concealment on the part of the seller; in all these, and similar cases, a sound price raises an implied warranty to repay the money paid, and in all cases of fraud, the party was liable to smart money by way of damages besides. - But in all other cases, where there is. an equal knowledge of all the circumstances, and where each party has an opportunity of informing nimself, and the means of procuring information, and a man makes a contract or bargain with all such advantages before him, and with his eyes open, he ought to be bound by it; otherwise, good faith and mutual confidence would be atan end. In the present case, the ship sold to the defendant was sold as a half-worn ship. The plaintiff was desired to go on board and examine the vessel; he did so, and took trusty and confidential men with him for that purpose, and after all this examination made his bargain. Was there any thing like concealment of circumstances here ; any knowledge of facts on one side, which was not freely communicated to the other ? None. Was there any latent defects which the seller knew of, and the purchaser was not informed of ? None. Every thing was open to him within the knowledge of the defendant, and he ultimately made the purchase upon the strength of his own judgment, and that of his friends; and not upon the recommendation or representation of the defendant. To suffer such a man to get rid of such a contract, under all these circumstances, would establish a principle which would undermine and blow up every contract, which could be made by any man, who wished to get rid of it afterwards. But the real truth of the case, he said,. was this: The plaintiff had found out, that the bargain he had made was not likely to turn out to be an advantageous one, as freights which had been high, had fallen considerably ; and therefore it was he wished to get rid of his bargain. He did not wish to be at the expense of repairing this ship, and putting her in a condition for sea, but thought it more advantageous, as things had turned out, to get back his money by rescinding this Contract.</p>

UPON an indictment for oppression in office, hy committing one Rachel Hart to prison. Upon this indictment, the defendant Mr. Johnson had been convicted. This was a motion íor a new trial, on the ground that the conviction was not warranted in law.

CASE on a policy of insurance. Verdict for plaintiffs, 1 _ . 1 Motion for a new-trial, This was an action on a policy of insurance on the ship' . 1 . * John, and cargo, from the port of Charleston to Cadiz, in . which a verdict was for the plaintiffs*. The present is a motion for a new trial on the part of the defendants. The following is the brief state of the case, as reported Johnson, J. who tried the cause.

<p>Upon an escape for negligence, if defendant is in on a capias ad satisfacien-dum, the debt becomes the debt of the sheriff; bul if in on mesne process, where the dii« mages are uu-a'xert ained, the jury may give v. hat they think just and reasonable, although it be less than the demand, as in cases of insolvency, or the like, &c.</p> <p>Insufficiency of the gaol not a sufficient excuse for a sheriff inan action for an escape»</p> <p>¶§,'j^s jjurnf. ^ Bast, s,~• 2 Dnvnf & East, 126. ;»</p>

DEBT on bond, given in part payment for the consideration money of a tract of land in Georgetown district. In this case, the defendant, who had purchased the land in question, and had given his bond for the purchase-money, being apprehensive that the plaintiff’s title might not prove to be a good one, refused to pay the money until he had the . . . opinion oi the court upon the subject.

TRESPASS, to try a title to a tract of land in Pendleton district. The plaintiffs in this action were nonsuited for the want of the original will of the deceased John Vanderhorst. Upon the trial, the plaintiffs produced a certified copy from the office, which they thought would have been sufficient ; but the defendant insisted on the production of the original, which the plaintiffs had not to produce; whereupon they were nonsuited.

ASSUMPSIT for work and labour in building a house on Sullivan's island. Verdict for the plaintiff. Motion for a new trial.

In this case, the plaintiff had obtained an interlocutory order for judgment, and gave out his case to the jury on a writ of inquiry, who found a verdict for the defendant.

<p>DEBT on bond. Verdict for plaintiff. Motion for a new trial.</p> <p>The bond on which this action was brought, was a joint and several bond, given by the defendant and his brother William B. Mitchell. The latter was a member of the legislature, and the suit was commenced at a time when he was privileged from arrests, on account of his being a member of the legislative body ; he pleaded his privilege and it was allowed him ; upon which his brother, the present defendant, claimed a similar privilege, on the ground that he was only security to the bond, and that the privilege extended to him as well as the principal; and that the privilege of the other co-obligor, would be illusory if it was not extended to him also ; but the presiding Judge (Waties) refused to allow the privilege to him, which had been extended to his brother the member of the legislature, or to postpone the trial, as the bond was joint and several, and the law did not know the defendant as security but as one of the principal debtors. The case then went to the jury, who found a verdict for the plaintiff against him.</p> <p>This was therefore a motion for a new trial, as it was alleged the judge had mistaken the law, in not allowing the defendant the same privilege which had been allowed the other co-obligor.</p>

MOTION to reverse a decision made by a judge at chambers. A motion was made at chambers, before Mr. Justice Trezevant, for leave to plead double, and an order was . signed by him for that purpose, as one of course ; and this . , was a motion to reverse it.

The presiding Judge (Bay) told the jury, as the law did not appear to be clearly settled on this point, that the best general rule in his opinion, would be for the jury to give the amount of the rent in arrear; as the act of replevying the goods seized, interposed between the landlord and his right to the goods, and prevented his common law remedy by distress ; and as the delay was occasioned by the act of the tenant, he ought in justice to pay interest.

<p> A notary public making out a protest from the information of~ clerk, is not a t,uffi-~ient ground for his enter-lug it up in dut~ form ; it should be founded on his own personal knowledge,he must aot depend On hearsay, Though the clerk himself wOu~d be a competent witness to prove clue dhligence~ in attempting to give due notiQe DI' non-payment by a drawer, </p>

<p>A t>are ac-knowledgment of the justice of a debt by a defendant where no sum is mentioned, is not sufficient to warrant a jury to found a verdict upon. There must be a sum certain men-tí >ued, or some document shewn to him, by which it may be rendered certain, before aj nry can give any specific sum.</p>

MOTION to reverse a decision in the circuit court. Mr. Simons stated, that in March, 1793, the writ in this case had been issued, served and duly returned, but for various reasons, the plaintiff was not prepared to file her declaration till May term, 1802 ; and that he had given the defendant’s attorney one term’s notice, agreeably to the rule of court; and therefore had moved the circuit court of Charleston district, the beginning of the last term, for leave to file his…

ASSAULT and battery from Sumter district. Verdict for plaintiff. Motion for a new trial. This appeared from the report of the judge who tried the cause, to have been a very violent and outrageous assault, and without provocation on the part of the plaintiff, in which the jury gave heavy damages, to wit,-dollars ; and the present was a motion for a new trial, on the ground of excessive damages.

<p>Where a ?ent»íby ac-attending*'°5 y oa|l of lha (locket, and his witnesses do not attend according to !.he™se’ are ’n-í» ™f3ble for seitm£ .as,tie a nonsuit ordered ior not being ready to proceed to trial*</p>

MOTION in arrest of judgment. ryhe defendant was indicted on the statute of S Philip' an It appeared, from the report of the judge who tried the ■cause, (Tkezevant,) that the parents of the girl were poor people, and upon observing too great a degree of familiarity between the defendant and their daughter, forbad him. their house, and desired him to have no kind of intercourse with her, as she was a child incapable of judging for herself, and much too young to think of…

TRESPASS to try title to an island in the Catawba river, in Lancaster district. Motion to set aside a verdict, and for leave to enter a nonsuit. This action was brought to try the title to a small rocky island in the Catawba river, adjoining an island called Fishing Island, near Rocky Mount, a place celebrated for a shad fishery ; the island was good for nothing else ; the whole of Jt was a rock, but a very advantageous place for catching ghad-fish in the spring of the year.

TROVER for a negro, Sam* Marion district. Verdict for defendant. Motion for a new trial. This was an action of trover, tried in Marion district, before Mr. Justice Brevard, who reported that the plaintiff claimed under the will of his grandfather, William Cock-field, deceased, which was produced, and the defendant claimed under a parol gift from the same William Cockfield to his daughter whom defendant had married several years before the publication of the will.

<p>Where there ibrtheSsame one’shaiMü-amiS although the younger grantee might have lapsed the right of the elder one ¿veat^1 "'anil heTad'losthí right to pre-the passing of grant, yet it terThe'great ttTthe elder §1't1iÍs eo cannot take into consideration the me-grantees; that the "coma fof «ayeats, be-passed.</p>

TRESPASS to try title to land in Fairfield district, Verdict for defendant. Motion for new trial. The land in dispute was granted to the plaintiff’s father more than 20 years ago, and it was proved that the father was dead, and that the plaintiff was his heir at law.

TRESPASS to try title to land in Union district. Motion to set aside nonsuit.

CASE from Union district. Upon a motion to have -the costs of an action tried by a jury reduced to the same costs as on a summary process. 1'he plaintiff in this case, had a verdict for a sum under 20i. sterling, within the summary jurisdiction of this court, and, from his own books, the demand was plainly within the summary jurisdiction after all just credits were given. moved, that the plaintiif should only have the same costs taxed him as are allowed on a summary process,…

<p>In an action to try the freedom of ne-groes; an order for security for their production and forthcoming on the trial, may be time during ofS the' suit3; goodalS,° usage ume'ek™&"1</p>

TRESPASS to try title to land. Motion to set aside nonsuit. When this cause was called for trial, a Mr. Dubose, a surveyor, was offered as a witness to prove a plat and resurvey of the land m question ; and upon being ashed whe- , , , , ther he was a sworn deputy under the surveyor-general, - . . . , answered m the negative; whereupon, objected to his being sworn, contending, that none but regular sworn ° u deputies under the surveyor-general of the state could regularly…

SLANDER. Verdict for plaintiff. Motion in arrest of judgment. stated, that the plaintiff’s declaration contained three counts ; one for calling the plaintiff a hag thief, another for calling him a damned hog thief and a third for calling him a forsworn rascal.

<p>- VERDICT for plaintiff. Motion for a new trial.</p> <p>In this case, it was alleged as a ground for this motion, the defendant was hurried on to trial by surprise, when he was not ready ; and that after an agreement between “ ° him and the plaintiff, that the cause should not be hurried or pressed on to trial, till both parties were ready. But it was admitted, that none of the affidavits stating these facts had been offered or submitted to the circuit court as grounds I°r putting °ff the trial, but all made since as grounds for pne motion for a new trial.</p>

TRESPASS to try title to land. Motion to set aside nonsuit. This was a case from the former district of Pinckney, in which there had been a former nonsuit on account of the plaintiff’s failure in proving a deed ; (see that case, ante, 187.) and on the second trial after the former nonsuit was set aside, the plaintiff was nonsuited a second time for not producing the fi. fa. by virtue of which the sheriff of Old Camden district, had sold the premises in question to the…

TRESPASS to try titles to land in Pendleton district. Motion to set aside nonsuit. This case turned in a great degree upon the will of the testator, °f. Dickson, deceased, but all the witnesses to the execution of it were legatees, and were to take a beneficiary interest under it.

UPON a claim of dower. Motion to reverse the order of the circuit court, setting aside the return of the commissioners, &c. In this case the commissioners made a very uncertain, return to the writ of dower issued to them, and it was apparent that the)’' had given the widow more than one third of the land she was entitled to, according to their own calculation, to the injury of the heirs and others claiming the residue ; upon which the presiding judge directed all the…

MOTION to reverse the order of the circuit court at Sumter district, confirming an award.

MOTION in arrest of judgment on a conviction at Camden, upon an indictment for an assault. stated that the ground upon which he meant to rely, was an error in the caption of the indictment, as it did… Held: that the mind of man could not possibly be mistaken in it, or suppose it was held in any other place than in Kershaw court-house. There is no ambiguity or uncertainty in it; it is as descriptive of the place as language can possibly make it.

<p>TRESPASS to try title to land in Lancaster district. Verdict for defendant. Motion for new trial,</p> <p>This was an action of trespass to try title to land. There were two grants for the same tract of land, and the question was, which of them should have the preference.</p> <p>who held the junior §rant> *n suPPort of this motion, stated, that there was a mistake in the dates of the grants ; that the grant to his client was at first filled up in 1785, and afterwards altered to the 1st of June, 1786, which was a mistake or fraud practised on the plaintiff. That in the mean time, between the first date of the plaintiff’s grant and the 1st of June, 1786, the day of the alteration, the defendant had obtained a grant, which was dated before the 1st of June,i78Q, by which means he had obtained a priority in point of time, This, he contended, was either a gross mistake, which ought to be corrected by a verdict of a jury, or a palpable fraud committed upon him, which was equally within the province of a jury. That although mistakes and frauds were originally branches of the jurisdiction of the courts of chancery, yet our courts had liberalized the doctrine of late, so far, as to suffer them to go to a jury, where they could be traced out, or made to appear in a court of common law as well as in a court of equity. He therefore prayed, that this case might be sent back to a jury, in order that the fraudulent circumstances of the case might be more fully investigated.</p> <p>For defendant, it was insisted, that this was neither a mistake or fraud committed upon the plaintiff, but the result of deliberate justice done to the parties, by a court of competent jurisdiction. It was admitted, that there was an alteration in the plaintiff’s grant, but the justice of the case rendered it necessary, that such alteration should be made. The plaintiff had included in his survey a part of defendant’s land, and the matter had been submitted to the court of caveats before either of the grants passed, where the case had been depending till the 1st of June, 1786, when the go--vernor and council who then formed the court, decided in favour of the defendant, and gave him the priority. That in consequence of this decision, a note or memorandum was made by the secretary of state, assigning this dispute about the lines as the reason why the plaintiff’s grant had been so long delayed, and that it had not been finally determined till that day ; consequently, the defendant’s grant by that means gained the priority, as in the mean time his; grant had been signed and passed under the great seal of the State.</p> <p>The plaintiff, however, still insisted upon going into the merits of the original surveys, alleging he had a right to the priority, notwithstanding the decision of the governor and council to the contrary. But the presiding Judge refused to permit him to go into any evidence of that kind, holding, that he was precluded by a court of competent jurisdiction, which had determined the point; and the jury under his direction, found for the defendant.</p> <p>This, therefore, was a motion for a new trial, on the ground of misdirection.</p>

<p>TRESPASS to try title to land, in Sumpter district. Nonsuit ordered. Motion to have the order for nonsuit rescinded.</p> <p>The plaintiffs deduced a regular title to the premises in question, to one James Dickey, deceased, the former husband of Mrs. MiFadden, from Arthur Graham, who obtained a grant for the same on the 8th of February, 1773 ; and it appeared in evidence, that the said James Dickey died intestate, leaving behind him his widow and three children; and that after the death of Dickey, his widow intermarried with the plaintiff, Robert Af-Fadden, before the commencement of this action.</p> <p>The defendant set up a title to the land, under a grant to one Doughty, in June, 1786 ; but could not make out any title to himself. He then moved for a nonsuit, oa the ground, that it had appeared in evidence from the plaintiff’s own shewing, that his wife was only entitled to one undivided third part of the land, under our act of distribution of intestates’ estates ; whereas, by the declaration, it appeared he had sued for the whole.</p> <p>The defendant’s counsel observed, that the plaintiffs’ writ demands the whole land, when in fact he had proved himself entitled only to one undivided third. He then contended, that a joint-tenant, or tenant in common, could not maintain a separate suit without summons and severance ; and it was not even alleged, that there had been any partition made in the present case.</p> <p>The presiding Judge (Johnson) was with the defendant on the first ground, being of opinion, that if the plaintiff had intended to claim only an undivided third, he should have sued for that third and no more; and upon this ground the nonsuit was ordered.</p> <p>This, therefore, was a motion to set aside that nonsuit.</p> <p>in behalf of the plaintiff, contended, that if the defendant had meant or intended to have taken advantage of this point, on which the nonsuit was ordered, he ought to have done it in pleading; and that it was too late after the general issue pleaded. For it is clearly laid down, that one joint-tenant, or tenant in common, cannot maintain an action against another, because possession of one is possession of both, and if he does, it is good evidence upon not guilty. But if one joint-tenant or tenant in common, brings an action against a stranger, in that case a defendant may plead it in abatement, but cannot take advantage of it in evidence. Salk. 290. 2 Lev. 113. Cro. Eliz. 544. But he urged, that although one joint-tenant could not bring an action of trover against another, he might against a stranger. So he might maintain quare. clausum fregit against a stranger, because the damages in such case shall enure to the benefit of the whole. Tenants in common may bring separate actions for their shares. Sunnington, 94. So where a man sues for the whole, or one half, he may recover according to the extent of title or right, a third, a fourth, or one half. Sunn-103. 1 Esp. 117. So also it is laid down in the case of Denn v. Purvis et at. 1 Burrows, 326. that a part may be recovered on a demand for the whole. This last case, he said, was so full upon the point before the court, and referred to so many authorities on the subject, that he would not dwell longer on it, but submit the case to the court.</p> <p>observed, that as the plaintiff in this action, had not stated himself to be a joint-tenant or tenant in common with others, it was impossible for him to plead it in abatement. It would have been pleading to a matter which did not appear to be on the face of the proceedings ; and there was no way of taking advantage of it, but upon the evidence offered on the trial; for it was upon the close of the testimony that the fact of his being a joint-tenant appeared. That until the plaintiff’s testimony ended, the defendant could not tell but that he might have made out a title to the whole. It was at that stage that he availed himself of the advantage which he conceived that the law gave him of moving for the nonsuit, which he trusted had been very properly ordered.</p> <p>With respect to the action itself, he said, he was Under strong impressions that it could not be maintained by the present plaintiff. In this action, every man must recover according to the strength of his fair title, and if he claims the whole, and only proves himself entitled to a third, fourth or fifth part, he fails in his claim to the premises mentioned in the declaration. He admitted, that if he had claimed as joint-tenant or tenant in common one third or one fourth, he might have recovered his proportion according to the extent of his right, but as he had stated that he was seised in fee of, in, and to the whole of the premises in question, he must therefore recover the whole or none. He next contended, that no judgment could be entered on this record, because the plaintiff did not claim as a joint-tenant or tenant in common, nor could any writ of possession issue to the sheriff, to give him possession of an undivided third part, which had never been designated or laid off.</p>

TRESPASS to try title to 323 acres of land in Lancaster district. Nonsuit ordered. Motion to rescind the order of the circuit court, and to restore the cause on the docket. The plaintiff produced a grant to one John Hoad, dated 6th June, 1736, for 323 acres of land.

<p>TRESPASS to try title to land in Lancaster district, Nonsuit ordered. Motion to set the order aside.</p>

In this case a witness for the plaintiff, who was supposed' to be interested in the cause, hada release executed and tendered to him, in order to make him a competent witness.

<p>SPECIAL action on the case for the value of a negi’o boy. Verdict for plaintiff. Motion for new trial,</p>

ASSAULT. Verdict for plaintiff. Motion for new trial. - From tne report of the Judge who tried this cause, (Mr. Justice Waties,) it appeared that this was a most wicked, cruel and unprovoked assault on the part of the defendant, w^° ^ad fired a Stln at the plaintiff, loaded with buck-shot, which had nearly taken off an arm. And for this iniury, the iüry had only given him one dollar damages. .

<p>DEBT on bond. ■’Verdict for plaintiff. Motion for siew trial.</p> <p>This was a case tried at yacksonborough, in Colleton district, and brought up and placed upon the. docket or paper of causes for argument at Columbia.</p> <p>moved, that this case should be struck off the docket at Columbia, and transferred to the docket of causes in the court of appeals in Charleston, on the ground, that as Colleton district is' on the sea-coast, in the vicinity of Charleston, the merits of the motion ought to be argued there and not at Columbia.</p> <p>This case was only important, as the present motion was the means of bringing forward and settling an important point, relative to the administration of justice in this state, which had been frequently agitated, but had still remained undetermined.</p> <p>It turned upon the construction of the third section of the. tenth article of the constitution, which declares, “ that at “ the conclusion of the circuits, the judges shall meet at “ Columbia, for the purpose of hearing and determining all “ motions for new trials and in arrest of judgment, and all “ points of law which shall be submitted to them there; and “ that from thence they shall proceed to Charleston, to hear “ and determine all motions for new trials and in arrest of “judgment, and all law points which, might be (in like “ manner) submitted to them there.”</p> <p>This article in the constitution, he concluded, evidently contemplated two places ill the state for the ultimate and final hearing and determining of all disputes, and,to which the citizens of Carolina, in the last resort, were to appeal for justice upon the true construction .of legal principles. This point, he observed, had repeatedly been before the judges, but no ultimate decision had ever yet taken place, and indeed there had been a great diversity of opinion among the gentlemen of the bar upon the subject; some holding they had a right to argue their cases either at Columbia or Charleston, as they pleased, that it was entirely optional with the party appealing from any decision, to carry such case to either of these tribunals, as he thought proper ; others, that the article in the constitution, had in view the convenience of the citizens in the upper and lower divisions of the state, and therefore directed and ordained, that there should be two places in the state for the sitting and holding this court of appeals ; one at Columbia, for the convenience of the suiters in the upper country, and the other at Charleston, for the convenience of suiters in the lower division.</p> <p>Amidst these conflicting, opinions of parties and their counsel, causes from the upper extremity of the state, had been carried down to Charleston, near three hundred miles, to be argiied; and in like manner, causes from the seacoast had been taken up to Columbia for a final determination, which had occasioned much inconvenience, trouble and expense to suitors, and all others concerned in the causes ; and what made the trouble and inconvenience the greater, was, that the counsel best acquainted with the nature of the merits, seldom could attend at so great a distance to argue the cases, by which means, new counsel on both sides were to be retained and instructed to the great delay, as well as expense of the suitors on each side of the question. For these reasons, he said, it was high time that some determination should be made on the point, that the citizens might know with certainty where their law cases were to be determined.</p> <p>contended, that as the article in the constitution was silent upon the subject, the citizens had a right of taking their causes, or making their appeals from the inferior courts to either of those grand tribunals of appellate jurisdiction, which they thought pro per ; there was no article in the constitution, he said, to control, or abridge this right or privilege, and therefore the citizens were at perfect liberty to carry them either to Charleston or Columbia, as they thought proper ; and it was not in the power of the judges to refuse to hear any case submitted to them at either place, or to order ov direct the party bringing forward the motion, to transfer or argue it elsewhere.</p>

<p>A settlement made by a father on his daughter for life, and after her death to her children, share and share alike, but limited in the habendum of the deed to the heirs of her body, deemed loo remote,so that the whole rests in the first taker and liable to the husband’s debts.</p>

TRESPASS to try titles to land, in Spartanburgh district. Verdict for defendant. Motion for a new trial. The land which was the subject of this controversy, was originally the property of Reynolds the defendant, who being pressed for money, borrowed it of one Alexander, and made him an absolute conveyance of the land ; which was to be reconveyed again to him on payment of the sum borrowed.

DEBT on bond. Verdict for the plaintiff. Motion for a new trial. The bond on which this suit was brought was a joint and several obligation given by the defendant in this action, and his brother, TV. B. Mitchell. On the trial several discounts which TV. B. Mitchell had against this bond were offered in • •• t . » , r evidence, which, it was urged, were, payments on account or, and should be credited on, the bond.

<p>UPON a.writ of partition of lands, under the act of dis~ ributions. &c.</p> <p>To this writ the defendants, who were Sons of ~osiah Woods by a former ~vife, came in and pleaded ne unques ac~ eoupk in loyal rnatrzrnony, and upon issue taken thereon, the claimant, Mrs. W~ods, proved her marriage to the deceased ~osiah Woods in 1785, by a ir~agistrate in Yewberry county, George Root. Esq~ and that she had lived with him from that time till the day of his death, (luring which time she had four children by him, who also claimed a disir~butive share of the deceased's estate.</p> <p>The defendants, in order to rebut the effect 0 this marriage before the niagisirate, gave in evidence that the claim~ ant, styling herself Mrs. Woods, had been married to one Ta~j1or in TTirg~nia, who, they alleged, was alive wher~ this pretended marriage took place between her and theirfather; consequently, they contended, that neither she nor her children were entitled t~ any share or proportion of the de~ ceased's estateq</p> <p>In reply to this testimony offered by the defendants, it was admitted by Mrs. Woods that she had been married to Mr. Taylor, a former husband, but she proved that he had gone off and left her soon after the marriage, and gone into remote parts of the western country ; that he had been absent for seven or eight years before she married a second time, and that a report had prevailed that he was dead, and died some time before her second marriage, which she verily believed at the time of her second marriage, though no actual proof of the fact was produced.</p> <p>It also came out in evidence, that after the death of Jo* siah Woods, the intestate, the defendants and the widow quarrelled about the division of the estate ; that they had refused to allow her or her children any part thereof ; that very high words had passed between them on the occasion, and that she had been heard to say, in the heat of passion and debate, that she would have “ all she took with her “ when she was Taylor's wife, as she supposed they would w not allow her her thirds.” She afterwards rendered in an account against them, and called herself Mary Taylor. Upon reflection, however, afterwards, she was induced to give up this account, and make her demand regularly for her distributive share of her husband’s estate, which she had now done in behalf of herself and children.</p> <p>The defendants now urged against her claim, that she had herself admitted that she had been married to a former husband, who had gone off to the western country, and who, for aught that appeared on this trial, might be alive at-this day. That there was no proof of his being dead, or having been drowned, but a flying report to that purpose, and that common rumour was by no means a sufficient justification of a woman for marrying a second time, w'ithout some stronger or better proof of the fact. That she herself had admitted she was Taylor’s wife since the death of the intestate, Josiah Woods, and had rendered in an account against the estate by the name of Mary Taylor.</p> <p>For the demandant it was replied and argued, that she ' had very candidly admitted that she had been married to a former husband, who had gone off, left, and abandoned her f°r seven or eight years before she married a second time i that she did not even think of the second marriage until a report was current and generally believed that Taylor, her first husband, was dead, having been drowned. This, it was contended, was a sufficient justification to her in taking a second husband. By the law of England, if a man or wo» man is absent seven years from the kingdom, and has all that time been continually abroad, whether the party living in England have notice or not, it is a sufficient excuse for marrying a second time, and will exempt the party so marrying from all the consequences of bigamy. So, in like manner, if the parties are absent from each other within the kingdom, and one of them having no notice of the other’s being alive at the time, it will be a justification for marryinga second time.</p> <p>The case under consideration was still stronger in favour of the present claimant. Her first husband had left her and gone off into remote parts out of the state in which she was first married, and out of the limits of the state in which she was married a second time, and had been absent more than seven years, nor did it appear that she had ever heard from him during ail that time ; and what strengthens her case still more is, that it was currently reported and believed that he was dead, having been drowned, and it was not till after this report of his death that she married a second time. This, it was contended, completely removed every circumstance, of suspicion or imputation of her misconduct, and left her perfectly at liberty to take a second husband, without imputation either upon her honour, her chastity, or her marital duties.</p> <p>It was further urged on her behalf, that common fame and repute would prove and establish a pedigree, an heir at law to an estate ; and, therefore, it ought to be admitted as proof to establish the death of a husband abroad in another country ; and unless this kind of proof was admitted, one half of the widows whose husbands died in foreign countries, and who married a second time, might be deemed prostitutes, and their issue bastardized.</p> <p>With respect to her own imprudent declarations to the defendants, they were words of heat and passion, expressions used at a time when her resentments had so far got the better of her reason, that she really did not know what she was saying, and, consequently, they ought not to be regarded. As to the account she gave in, that must have been done under an ignorance of her right, and her want of legal knowledge on the subject, which ought not to prejudice her. Under all these circumstances, it was said, that it ill became the defendants to endeavour to make a prostitute of their mother in law, and it became them still less, if possible, to attempt to bastardize four innocent half brothers and sisters, the issue of their father’s second marriage.</p> <p>The presiding judge, (Bay,) in his charge to the jury, told them, that the only point of any dilhculty in the present case was, whether the claimant, Mrs. TVooch, at. the time of her second marriage, had good ground to believe her former husband, Taylor, dead ? If she had, then all her legal rights followed such marriage. That seven vears’ absence of a husband in another country, without his wife ever hearing from'him, was reasonable ground in law to presume that he was dead ; but when, added to this, a report was current and believed that he was dead, it removed every imputation of improper conduct from her. That general repute and information was, in many instances, as much as could be obtained in a matter of that kind ; and as no actual proof was offered in evidence that he was alive, it seemed to be a fair presumption that he was dead. If so, then the second marriage before the magistrate was good and lawful, for it has often been determined “ that a marriage before a magistrate “ in this country was good,” and all her marital rights would follow as a legal consequence of the marriage.</p> <p>As to the loose declarations of the widow, when she was enraged at being about to be turned out of house and home without a shilling, and lies- four young children at her back, he thought that the jury should pay no attention to them, they appearing to have been words of passion uttered with* out a knowledge of her right, which ought not to prejudice ller or her innocent children ; and so with regard to the account rendered, for if she pretended to make an illegal demand upon the administrators, it was no reason why she should be debarred of her just claim.</p> <p>The jury, however, contrary to the opinion of the judge, found a verdict against her.</p> <p>This was a motion for a new triaL</p>

<p>DEBT on bond, 1,000/. Verdict for plaintiffs. Motion for new trial.</p> <p>This action was brought upon a bond given by defendant to plaintiffs’ intestate. Defendant pleaded the general issue, and gave notice that he meant to offer in discount, a bond assigned him by William Cunnington, for a sum equal in amount to the amount of the bond sued for, viz. 1,000/. given by the intestate in his life-time to the said- William Cunnington.</p> <p>Upon the trial, this bond from Compty to Cunnington was produced, with a regular assignment to Aiken, the defendant in this case.</p> <p>To this bond, however, the plaintiffs objected, alleging that it had been paid off; and for that purpose, offered a receipt to the full amount of the bond offered in discount, to the following effect: “Received May the 20th, If 94, of “ John Compty, sundry goods by Richard Bolán, to the “ amount of 200/. also some time before, a note of Cornelius “ Vanderhorne, for 600/. ■ also an order on John Rutledge, “ for. 200/. which I shall be accountable for.</p> <p>(Signed,)</p> <p>“ William Cunnington.”</p> <p>contended, that this receipt not being on the bond, nor specifying on what account these goods and the note and order were delivered to Cun-nington, they could not be considered in any other light than as an open account against Cunnington, and as such, the whole was barred by the statute of limitations. For that purpose he quoted Espinasse’s N. P. 239. where it is laid down, that a debt barred by the statute of limitations, eould not be admitted in discount, and the plaintiff might object to it on the general issue. That although Aiken was not plaintiff in this action, yet as this receipt went to destroy his discount, he ought to be considered as standing in the shoes of a plaintiff, in rebutting any discount set up against the bond he offered in evidence against the present plaintiffs’ claim.</p> <p>He next contended, that a discount could not be set off against a discount. That the act never contemplated any such kind of transactions, only mutual demands between the parties litigant.</p> <p>In reply to this, it was urged on the part of the plaintiffs, that this receipt was evidence of payments made to the amount of the bond offered in discount, and was to be considered as made for the express purpose of satisfying this bond, as no transaction whatever appeared between the deceased in his life-time, and Cunnington, who assigned this bond, excepting the one under consideration. It was admitted that the statute of limitations would bar open accounts, but that the statute never could run against payments, or discharges given by a man xvho has a demand against another.</p>

<p>TRESPASS to try title to land in Chester District. Verdict for plaintiff. Motion for new trial.</p> <p>In this case the brief stated that the plaintiff claimed under a devise from his father, John Hopkins, deceased. The will was produced, but all the subscribing witnesses were dead. The hand-writings of two of them were proved by a witness produced, but the signature of the third either was not, or could not be proved. Upon this proof, however, the presiding Judge (Brevahd) thought proper to send the cause to the jury, who found a verdict for the plaintiff.</p> <p>This was, therefore, a motion to. set aside this verdict on the ground of misdirection, and as being against law.</p>

This case was tried before Mr. Justice Johnson, at Camden, in the District of Kershaw, in order to trv the free- . , , r. J „ dom. oi the plaintiff s ward, a negro named Ben. On the trial, a record of a judgment from the state of Virginia was produced, by which it appeared that the negro Ben had es-jpls rjg[,t to h¡s freedom in that state.

<p>A copy of a the”1 record:? u^'fecretari sls^„^ evidence to shew that the , original grant_once existed ; and length of time and the ravages of the -war, are stron" grounds to raise a presumption of its loss or destruction. °</p> <p>A possessory right under the statute, so as to defeat a prior title, is never to be presumed, but must be clearly proved and shewn.</p> <p>A person who was a minor at the time of the death of his ancestor, lias five years after he comes of age to bring his action for recovery of his lands.</p> <p>Pub. Xj&WSy 4 55* •</p>

TROVER for six negroes, tried in Marion district. Verdict for plaintiff. Motion for new trial. On the trial of this cause, the presiding Judge permitted an advertisement in a George Town newspaper, to be r.ead in evidence to the Jury, in support of the plaintiff’s claim. And it was upon this ground, that the motion for the new trial was made.

<p>A merchan forwarding to his agent abroad a duplí-cate letter enclosing a no-a* bHl ofP>cs-refemág 8 to fetter amfbU? otL of «• particularves-s,el • proof oí the letter-bag of such vessel thrown over. chased by'im ^"sufficient f¡™'ic"s oftioí original, so ac to justify the court to per-be given7 in í0 ^</p>

<p>Itice or any other staple commodity of should* tie ex-shippIngporT on board SPits quality is not to be determined by an examination^ port The neglect on the part of the purchaser to make such examination, is a tacit admission of the merchantable quality of the article, and he thereby takes the risk upon himself.</p>

CASE on a policy of insurance. Verdict for plaintiffs. Motion for a new trial. This was an action on a policy on goods shipped at Savannah in Georgia, to Savannah Le Mar in Jamaica, on board the schooner Thomas.

<p>Where a mer* chantappointS an agent fop a special purpose, as purchasing a cargo, and au-r thorises him to draw bills for the a=* mount, and the agent takes upon him to draw bills for ano* ther purpose» on his own account,heis not, bound to ao« cept or pay such ‘</p>

<p>Where the witness11 to a eannotbe^ro-handwriting vedSt before" plaintiff can prove the hand-writing or maker ofa stamiingW ule aiiowd 1the Proveiffbonds or notes by other persons than the suh-Besses'.5 'nt"</p> <p>Gilb. Lena of JEv. 99.12mm. 260. Lou 205.</p> <p>Tiie case ot* since ,be,en, overruled by thejudges,and plaintiff may prove his note or bond with-0ut proving thfgs^of’the Lt of -Dccernier,</p>

THIS was a question between two mortgages of the same land, to determine the right of priority. Connoly had the eldest mortgage, and Stewart the younger one. But the former was recorded in the secretary’s office, and the latter in the office of the register of mesne conveyances.

SPECIAL action on the case, in nature of a writ of ravishment of ward, to try the freedom of a negro man, named Michael.

TRESPASS to try titles to land in Sumter district. Verdict for plaintiff. Motion for a new trial. This was a case which turned upon the lines of the lands in dispute, and more particularly one line of the tract.

<p>SPECIAL action on the case, tried in Fairfield district. Verdict for plaintiff. Motion for new trial.</p> <p>This action was founded on the special guaranty of a bond, assigned by the deceased Willson in his life-time, to the plaintiff Minor Winn. It appeared, that in the year Í784, the bond above mentioned was given by Adam Fotvler Brisbane, John Winn, Hugh Millings and James Brown, to the deceased John Willson, for 435/. sterling. Some time after the bond became due, John Winn, one of the obligors settled with the obligee Willson, for his one-fourth part or share of the bond, by delivering him a negro and a horse, which Willson accepted of for his full proportion of the debt, and executed a release in due form, for his share of the principal and interest due on the said bond.</p> <p>This bond afterwards, in some transaction between Willson and the plaintiff, Minor Winn, was assigned over to the latter; and at the time of the assignment, Willson, by an agreement in -writing under his hand, agreed to guaranty the payment of the balance due on the said bond. The bond was afterwards put in suit against the other obligors, but nothing could be recovered from them, as they pleaded the release to John Winn in bar of the obligation. In the mean time, Willson died, and this suit was brought against his executors, upon the deceased’s guaranty, when a verdict was given by the jury for the bala- . of principal and interest due on it, after deducting the payment made by John Winn.</p> <p>The present was therefore a motion for a new trial, on the ground, that the presiding Judge had refused, on the trial, to let the defendants go into proof, in order to show that the other obligors were fully able and solvent, and could have paid the balance due on the bond, if due diligence had been used, and that it was the plaintiif’s own fault that the money had not been recovered.</p> <p>For the plaintiff, in reply, against the motion, it was urgedj that such kind of testimony was totally irrelevant, as-it was very immaterial whether the three other obligors to the bond were solvent or not, as the release to one of the co-obligors, John Winn, was a release to the whole, if they chose to take advantage of it. Consequently, the bond had been by the testator’s own act, cancelled and destroyed, which left him responsible on his guaranty.</p>

THESE were two criminal cases, tried in Spartanhurgh ... Á ° district, in which the defendants were convicted of larceny, _ _ . r . , Motions for new trials.

DEBT on an administration bond. Plea in abatement, that there were no such officers in existence, as the judges of Fairfield county, &c. which plea was sustained by the . ,, , Circuit court.

<p>mere a jury themselves'to presumefraud where none is proved, the court will grant a new due execution pends ujona" strict * adha-rence to the rales of eví-denee.</p> <p>See the ease Rutherford v. The Sfieriff of Charleston Ristrictnnte. Where it appears that a witness,sworn andexaminedj, was deeply iu-terestedinihe event of a cause after ifc is tried, (although upon, his voir diret he swore he was not,) it is a good ground to order auew trial.</p>

<p>where there d-nt*1 hasÍCn-right to set ifc aside on motion, ou the call of ihewrifc of inquhydoc-keton thefii'sfc day of ^ the court, with lir berly to pleatE any plea h$ may thin];:, proper.</p> <p>See 2 bumf. U East, 390.</p>

TRESPASS to try title to land in Union district. Veri diet for plaintiff. Motion for nerr trial. The plaintiff in this action claimed under a deed made by one of the sheriffs of the former district of Ninety-Six. ■The deed was in the usual form, and appeared to have been duly executed. And the plaintiff had a verdict.

TRESPASS to try title to land in Abbeville district. Nonsuit ordered. Motion to set aside the nonsuit.

TROVER for sundry negroes, tried in Marion district, before Treeevant, J. Verdict for plaintiffs.

<p>Where one copartner appears, and the other makes default,there-gular mode of proceeding is, for the plaintiff to go oa and get judgment for the whole debt &- gainst the one appearing, audio execute his writ of inquiry against the one making default, for the whole also.</p> <p>A letter written by one co* partner afteF the dissolution of the copart-nership, acknowledging the justness of a debt, wiU hind theotheru And endor&e-s ment of a note by one executor, is good $ hut if the letters testamentary are called for, they must be produced, to shew I)is authority for that purpose.</p> <p>len-ofFart-asr. * “i-.u’</p> <p>3 Salk. 120. ;i Bac.</p> <p>1 Cromp. 3ó:>.</p> <p>See also flic enseof 7VWv/>~ son and Howard ads. Jtd-minisiratcritw ’ Kelly9 post.</p>

TRESPASS to try title to land in York district. Verdict for defendant. Motion for new trial. For the plaintiff in this action it was admitted, that the land in question was originally granted to George Julien, and that he died intestate in the summer of the year 1781, and that Jacob Julien was his eldest son and heir at law, who was an infant at the time of his father’s death.

TRESPASS to try title to land in Lancaster district. J -A7. B. This was a second trial, there having been non- . . suit entered into in the first one. See ante. Verdict for plaintiff. Motion for new trial. In this case, the plaintiff was only entitled to one third part of the land in dispute, as a tenant in common with two * * others.

DEBT on an administration bond. Verdict for plaintiff. Motion for a new trial. In this case, there was a plea of performance generally. To this plea there was a replication that the administrator had not made a just and true inventory of the deceased’s estate, as by law he was bound to do.

<p>CASE on a demurrer, from Edgefield district, which _ 7 Motion to reverse this was sustained by the circuit court, decision.</p> <p>This was an action of assumpsit for goods sold and delivered, and the writ was for defendant to answer unto Andrew Pickins and John Owen, surviving copartners of Andrew Pickins & Co. But in the declaration it was stated» that defendant was attached to answer unto Andrew Pickins and John Owen, who had survived John Lewis Gervais and John Rutledge, called and known by the name of Andrew Pickins &? Co.</p> <p>To this declaration there was a plea in abatement, on account of a variance between the writ and the declaration, and for want of the proper names of persons in the original writ. To this plea there was a demurrer, which was overruled by the presiding Judge, (Bay,) and the plea in abatement sustained.</p> <p>This was a motion to set aside the decision of the circuit court at Edgefeld on the demurrer, and to overrule the plea in abatement, and to permit the plaintiffs to go on and get their judgment on their writ and declaration.</p>

TROVER for sundry negroes, tried in Sumpter district. Verdict for plaintiff. Motion for new trial. This was a case tried before Mr. Justice Grimke, under whose direction the jury gave a verdict for the plaintiff.

<p>A postmaster is liable for money contained in a letter lodged in which^s^ost £®*ves the iet" But if such letter is delivered to his shadífé Hable for his own , „ neglects, and not the principal. The payment of a premium is not necessary to make either of them, liable; th'e general undertaking to deliver safely is a sufficient of action.</p> <p>' Salk. 17.</p> <p>Q Ld. Maym* 909. 3 Will 447.</p>

<p>SPECIAL action on the case, commenced in Chesterfield district, for causing plaintiff' to be imprisoned and tried for murder, without probable cause of prosecution, in North Carolina.</p> <p>To this declaration there ivas a plea in bar, setting forth 1 ’ ® that there was a suit depending in North Carolina, by the . iri r plaintiff against defendant, tor the same cause of action, which was still undetermined; and in support of this plea, sundry papers and certificates, purporting to be the record of the proceedings of one of the supreme courts of record r ° 1 ,. in that state in the said cause, were produced and offered to the court. To these papers and proceedings, Mr. Falconer, as counsel for the plaintiff, took several exceptions, and contended that they should not be read, as, among other things, they were not certified in the manner di« reeted by the act of congress, in that case made and provided.</p>

<p>UPON sci. fa. to revive judgment in Kershaw dis-ICf'</p> <p>Plea, variance between the suit and the original record, . ... inasmuch as the original record produced was against Adam Fowler Brisbane, executor of William Brisbane, deceased, and the sci. fa. in this case was against Mary Brisbane, executrix of Adam F. Brisbane, omitting the words, “ who was executrix of William Brisbane, J 1</p> <p>Whereupon the plaintiff moved the court for leave to . . amend, as- it was evidently a mere clerical mistake, which was granted by the circuit court.</p> <p>The present, therefore, was a motion to set aside this order of the circuit court to amend.</p>

<p>Where there as a defect of title or of the quantity of Sand, it may he given in evidence against plaintiff 9s demand, npon a bond or note, &e. given fdr the consideration money before eviction.</p> <p>Any grant ta-jeen out on an elder survey, rwithin six months after the elder survey is made, is null and void; as every man has six months allowed by law to take out and perfect his grant,after he runs it out.</p>

<p>CASE, on a summary process, in Edgefield district» Decree for defendant. Motion to set aside this decree.</p> <p>This was a case in the summary jurisdiction of the court of common pleas, for the value of a horse, 70 dollars, lent by Carsan, at a tavern where gaming was going forward, to stake on a game of cards. The defendant lost the game, f and the winner took the horse oír, by the consent ot both the parties to this suit. Some time afterwards, the plaintiff ap-pjje(j t0 defendant for payment of the value of the horse, which he estimated at 70 dollars; but defendant refused to pay it, alleging that it was a gaming debt, and that he was not bound in law to pay it. Whereupon he brought this suit.</p> <p>Upon the trial, all the facts were admitted, and the case turned upon the legal responsibility of the defendant to pay this debt. '</p> <p>For the defendant it was said, that the lender was pre-ient and saw the game going forward, and lent the horse for the express purpose of staking on the game, as all His money was gone; which was an encouragement to the defendant to go deeper into the play, and therefore that this ought to be considered as a gaming debt, and put upon the footing of money lost at play, as much as if the plaintiff had won so much from the defendant himself. And it is blear that all contracts and securities for money lost at play, were void both by the British statutes made of force in this state, and by our own act of assembly.</p> <p>On be'. -'5 of the plaintiff it was said, that this was not only a very dishonourable, but a very unjust, conduct on the part of the defendant, to endeavour to defraud the plaintiff out of property he had generously lent him, to enable him to retrieve his losses in a run of bad luck which he had experienced in the course of the day; and that neither the British statutes, nor our act of assembly, had any bearing upon a loan of this kinds It was admitted that if a man. loses money at play, and does not stake it down, or deliver It over to the winner, or if he stakes at ha sard any other species of property which is not immediately delivered up to the winning party, that all promises, contracts, agreements and securities, made or entered into for payment or delivery of the same at any future time or period, are made absolutely null and Void by the statutes and acts against gaming; so that no action can ever be maintained ¶ them.</p> <p>But if such money is actually paid or delivered up at ■"he time to the person winning, there is no law to prevent him from taking it off; nor is there any law to prevent a "bird person not concerned in the play, from lending mo-iey to either of the gamesters, at the time and place of play* That this, therefore, could not be considered as a gaming debt, or as property lost at play, but a loan made to defendant in time of .wed, and in the hour of difficulty j , and as such, he ought in honour and good conscience, ta pay the plaintiff the value of the horse so lent him.</p> <p>The presiding Judge, after hearing counsel, thought that this was a case which came under our act of assembly, passed in 1802, which declares all such games at taverns, inns and public house's, &c. unlawful; and indicts a fine on persons playing and betting, and on the tavern-keepers permitting such games to be played in their houses. And it authorizes and enjoins it as a duty on all magistrates, t® bind over all such parties so offending, to answer for such offences against the public morals, at the next court of ge¿ lieral sessions of the peace, &c. Viewing it, therefore, as a public offence, and considering the plaintiff as participating in it by lending property to bet at this unlawful game, he gave a decree for the defendant.</p> <p>This, therefore, was a motion to rescind and set aside-this decree, as against law.</p>

<p>A person accused of for» geiy, and ad» mitted to baila not entitled to his discharge under the ha-beas corpus act, from, the prosecution at the 2d courts becausehewas not in actual confinement; though if he had been confined In prison, the cou'-t would have admitted him to bail, if no bill had been found agaia& him.</p>

<p>The govern* or’s pardon will not discharge the moiety of a fine for negro-killing, -which goes to the informer, although he may remit the moiety which goes to the state;</p>