Volume 20 — South Carolina Law Reports

The Legislature, at an extra session, on the 26th October 1832, passed an Act to provide for the call of a Convention of the people of this State, the preamble and first clause of which are as… Held: that the oath required by the Act was unconstitutional, and made the rule absolute. The defendant appealed, and moved this Court to reverse that order, on the following grounds: 1.

<p>Before Mr. Justice Evans, at Georgetown, Spring Term, 1931.</p> <p>This was an indictment for a conspirary to destroy the last will and testament of Christopher Watts, deceased, and thereby rlpIVítiifl the ftevirtpe^i ueiraua me devisees.</p> <p>It appeared from the evidence that the defendants, one of whom is the son and the other' the son-in-law of the testator, on after his death went secretly to the house of another son, who had the custody of the will, and no one being present ^ut some httle negroes, broke open the box in which it was deposited, and destroyed or concealed it.-</p> <p>At a former Court these defendants were put on their trial; after sorBe °f the witnesses had been examined, the case was, at the suggestion of the judge, withdrawn from the juiy, ant* continued. Among the witnesses examined was one (Hartly) who drew the will, and proved that it had been duly executed. He is since dead, and tlie Court permitted a wit. ness who was present and heard his examination, to prove what he swore to.</p> <p>His Honor charged the jury that the defendants were guilty of the offence charged, if they confederated together for that purpose, and destroyed the will, in order to defraud the devi-SCCS.</p> <p>The jury found a verdict of guilty; and the defendants appealed and move for a new trial, on the ground, that the evidence as to what the deceased witness, Hartley, had sworn to, was inadmissible : — and in arrest of judgement, on the grounds:</p> <p>1. lnat a conspiracy at common law is repugnant to the principles of our constitution and government, and does not exist in this State.</p> <p>2. Admitting it does exist, the acts charged and proved do not constitute the offence.</p> <p>argued that the Stat. 33, Ed. I. which is of force m this State, defines the offence of conspiracy, and restricts it to the acts enumerated, of which the act charged is not one; and that to constitute the offence, the act must be such as to affect public justice, or in some way prejudice public interest. And they cited and relied on King v. Robinson, 1 Leach, 38 ; Queen v. M’Carty ; Ld. Ray. 1179; 14 John. 371; 9 Cowen, 578 ; 2 Camp. 358 ; 1 Mass. Rep. 473; 13 East, 238.</p>

Before Mr. Justice Richardson, at Coosawhatchie, Spring Term, 1833. The defendant was indicted for assaulting and beating his wife.

Tried before Mr. Justice Martin, at Charleston, Spring Term, 1833. This was an indictment for perjury in an affidavit filed with petition, by the defendant to the Court of Common Pleas, '^01' naturalization under the Acts of Congress. The peijury was assigned on the defendant’s oath, that he had resided in ^be ®tate two years previous to his application.

Horry—Fall Term, 1833. The defendant obtained a rule against the plaintiff, to shew cause why satisfaction should, not be entered on the judgement in this case ; and in support or the rule produced a receipt m full from Wm. Rogers, for whose use and benefit, it appeared, the judgment was obtained. In answer to the rule the plaintiff, Stevenson, shewed that Wm.

<p>“Where an. agent shall be personally liable on a contract, and where not.</p> <p>Where one, being the agent of another, drew a promissory note, in common form, and signed it with his own name, “for 1.1.” his principal:— Held, that the agent was !ia> ble. (a)</p>

Tried before Mr. Justice Gantt, at Williamsburg, Fall Term, 1833. Assumpsit on an account for lumber. The defendant con-traded with the plaintiff, who is the owner of a saw mill, for a quantity of sawed lumber of a particular description. The plaintiff sawed the lumber accordingly, and soon after gave the defendant notice that it was ready. The defendant said he would remove it shortly, and the plaintiff, at his request, piled i t up and covered it with slabs.

<p>Charles Besseleu, who purchased a lot of land in Graham-ville, of the defendant, which was subject to the lien of the plaintiff’s judgement, and which was afterwards sold under the plaintiff’s execution, to one R. M’Neill, made his motion Circuit Court, before Mr. Justice Richardson, to set aside the levy and sale, on the ground, that Screven, the defendant, had in his possession, at the time of the levy, other lands, a^s0 personal goods, of value sufficient to satisfy the plaintiff’s execution; and that the plaintiff, sheriff, and purchaser, had notice, at the sale, of Besseleu’s claim. The motion being refused by the circuit judge, the actor, Besseleu, appeals, and moves to reverse the decision, and to have the relief he claimed below; or if the Court should entertain doubts concerning the racts, he prays that an issue maybe ordered, or *-^at be allowed the privilege of his audita querela.</p> <p>insisted that the conduct of the sb-ei'iff and plaintiff was unlawful. It was their duty to have levied on the real and personal estate of which the defendant was then seized and possessed, and not on that of which .the purchaser was seized. That the right of the purchaser to relief is a legal right, and the Court should not refer him to the Court of Equity for relief against the abuse of its own process by its own officers. And that the purchaser is not compelled to resort to his audita querela, but may have relief on motion, upon the hearing of which, if a question of fact is presented, an issue, or audita querela, would be proper: which proceeding he prayed, if the Court should decline to grant relief in this form : and in support of these grounds he cited and relied on 3 Coke’s Rep. 14; 2 Bacon Ab. tit. Exon. 696, B. 4; 1 Bacon Ab. 307 tit. Aud. quer. ; 3 Black. Com. 403; 1 Salk. 934 ; 4 Johns. Rep, 190.</p> <p>contended that the proceeding by audita querela is obsolete — it was intended to afford relief against an unlawful execution, under the statutes, merchant, staple and elegit, where the execution is of all the land, and of one half of each parcel the creditor must receive possession until the debt is paid. But here the execution is against the lands generally, and when they are sold it is properly executed, and the lands are sold to a third person whose rights are not to be affected by any act done under the execution. The statute of Geo. 2. puts land and personalty on the same footing here, and no case can be found where relief has been granted to a purchaser of personal property on audita querela. This is not a case where the Court will relieve on motion; there must be something apparent on the record to authorize relief in that mode : and where it is matter in pais, the party will be put to his writ, 1 Salk. 264. If the purchaser has any relief, it must be in Equity.</p>

<p>Tried before Mr. Justice Martin, at Charleston, Spring Term, 1833.</p> <p>Assumpsit. The plaintiff held a due bill on one Levy, for ¶>40, and was his indorser to a note m the Union Bank tor Levy was also indebted to the defendants, and on being pressed for payment, he wrote to them that he would place goods in their hands to sell, and pay themselves. After plaintiff called on Levy to pay the due bill and note in Bank, and Levy representing the goods to be of sufficient value> ^ was agreed between all the parties, that he should send the goods to the defendants for sale, and they agreed, out the proceeds, to pay the plaintiff the amount. Of the due bill and note. The goods were sent, and the defendants sold them and applied the proceeds in the first place to their own demands, and the balance not being sufficient to pay the amount or the due bill and note, they refused to pay the plaintin, and action was brought.</p> <p>The counsel for the defendants, contended that this was a promise to pay the debt of a third person, and not being in writing was void under the Stat. frauds — that the defendants were deceived by the representations of Levy, as to the value of the goods, and the promise was nudum pactum, as the consideration has failed by the insufficiency of the funds; that as regards the note it was the property of the Bank, no cause of action accrued to the plaintiff, as there was no debt on that. account due from Levy to him; and that the letter of Levy previous to the promise, was an assignment in writing which gave a prior right to the funds.</p> <p>His Honor, however, charged the jury that the promise was an original undertaking by the defendants, and not within the statute, that there was sufficient consideration to support it, and that defendants were bound to pay the plaintiff, although they were deceived as to the value of the goods, and they had proved insufficient.- The jury found for the plaintiff.</p> <p>on the grounds taken below, and cited and relied on Com. on Cont. 20, 291; 1 Dane, 109 ; 6 Cowen, 346 ; 2 Bur. 1886, Roberts on Frauds, 235 ; 2 N. & M’C. 208; 2 M’C. 208; 4 Johns. 422; 12 Johns. 291; 4 M’C. 410; 4 Johns. Ch. 235.</p> <p>cited 4 M’C. 544-449; 3 M’C. 484; 1 M’C. 187; 7 Johns. 470; 1 Johns. Cas. 205; 3 Johns. 534; 4 Johns. 235 ; 6 East, 227; 4 Camp. 291; 4 Wheat. 225; 4 Johns. Ch. 05 ; 1 Ves. 416 ; 1 Hill, 172.</p>

<p>Tried before Mr. Justice Martin, at Charleston, Spring Term, 1833.</p> <p>These were actions of assumpsit on merchant’s accounts for cloths and casimeres &c. furnished the defendant through one Lane, who, as the plaintiffs alleged, was his agent. The cvidence being the same in both cases,they were tried together.</p> <p>It appeared that the defendant, who is a merchant tailor, just before sailing for Europe, employed Lane as a cutter, and gave, him the general superintendence of the shop in his absence. At the same time he appointed Mr. Seymour his attorney, gave public notice of this fact, referred Lane to him for money and for advice in the management of the business, and expressly forbade Lane from purchasing on credit. Mr. Seymour paid Lane money every week, to discharge the current expenses of the shop, and either went with him to buy cloths &c. for the shop, and paid the money, or gave orders. Lane believing (according to his own testimony) that his slation in the shop gave him the authority, and inducing the plaintiffs to the same belief, purchased the goods for the defendant and on his credit, and worked them up in the shop for the customers. The question was, whether under these circumstances the defendant was liable ; tlie presiding judge charged the jury that, he was not; but they found for the plaintiffs, and the defendant appealed, and now moves for a new trial, oil the ground that the verdict is contrary to law, evidence, and the charge of the presiding judge.</p> <p>stopped by the Court.</p> <p>The master is bound by the representations of his servant found in his service and transacting his business, 22 English Com. Law Rep. 435 ; 12 lb. 281; and it is a question for the jury, whether the contract was for the agent or principal. Proof that the goods were used by the defendant, subjects him to an action, 2 Siarkie Ev. 635. And where one derives a benefit from goods delivered, a request will be presumed, 1 Saund. 264, note. The naked use of the goods will imply a promise to pay for them; 3 Eng. Com. Law ° - * - Rep. 470. The defendant as the foreman of the shop, had a general authority in the absence of the owner, to conduct the business, and it was sufficient to authorise such purchases as he thought necessary. Paley on Agency, 162.</p> <p>Pettigru, in reply. Putting Lane into the shop, did not of itself give him credit, and his agency there was confined to cutting and superintending. 1 Liv. on Agency, 38, 50. The law will not allow one man to make another his debtor without his consent; and it is not enough that the goods have come to defendant — there must be either an express promise, or some act affirming the conduct of the agent.</p>

Tried before Mr. Justice Earle, at Beaufort, Fall Term, 1883. Trespass to try titles. The land in dispute had been conveyed to the wife of defendant, and her infant children, George, John and Edward Cabbage, as joint tenants. By virtue of a judgement and execution against the defendant, the land had been sold, or his interest in it, and purchased by the plaintiff, who brought this action to dispossess him.

<p>Against an administrator “iC¡¡‘-í&wkey;s"t his surety, but "nd inan Son tSaoSufaSdmi-nistration bond, ¿eñce3'toT*shcw that a prior de-0 admmSto?6 in of6 tho* aímlnfe--t1hReto¿te”a“eotof</p>

<p>Tijover for $2500. The plaintiffs proved that one Alexan-tier Main was their clerk, and had in his hands 2500 dollars of their money, which the defendants won from him at a gambling house in Augusta, Georgia, at a faro table, of which the defendants were the proprietors. The demand and refusal took place in Charleston.</p> <p>_ _ On the argument of the case, the presiding judge refused to allow the plaintiff’s counsel to read from Prince’s Digest of the Laws of Georgia, to show that gambling is illegal bv statute, m that State ; and on their then tendering it as evidence, refused to receive it as such, and charged the jury that they must find for the defendants, unless the defendants knew when they won it, that the money belonged to the plaintiffs. The jury found for the defendants, and the plaintiffs appealed, and moved for a new trial, on the following grounds :</p> <p>1. Because His Honor refused to let the plaintiffs read from rnnees Digest.</p> <p>2. That the failure of the plaintiffs to introduce the law of Georgia as evidence, if the Court decide that it should have been introduced, was an error arising merely from the inadvertence or misapprehension of counsel, not affecting the merits of the case, and the plaintiffs should have been allowed to introduce the book after the evidence had closed.</p> <p>T_. ... . _ . 3. i hat His Honor misdirected the jury, that Mam could transfer the plaintiff’s money, and the defendants acquired a right to it without the plaintiff’s consent; — and</p> <p>4. In charging the jury that a wager at faro is not against public policy, and that defendants were entitled to the plaintiff’s money unless they knew when they won it, that it belonged to the plaintiffs.</p> <p>argued that although if the plaintiffs themselves had lost the money at play, they could only recover it back under the statute, it is different when it has been lost by an agent; in such case trover is the proper remedy. Assumpsit will not lie as it is not founded on contract. 1 Atk. 128 ; Buller N. P. 130. And trover lies in all cases, for money illegally obtained before it has gone into currency for value. 1 Bur. 452. As where a wife lost money at play, 6 Bacon 687 ; Siderfin, 122 : or where the son gives away his -father’s money, Buller, 35. If the agent exceed his autj10rand the transfer is without value, it confers no right; and in this view it is not important whether gaming in Georgia was lawful or not. But until the contrary is shown it must presumed unlawful. A gambling house is a nuisance at common law, and excessive gaming is immoral and unlawful, 1 Hawk. P. C. 362; 1 Russel, 433. In matters of contract the lex loci governs, in tort, the lex fori; 3 Dallas, 370, note from Hub. As regards the evidence — Prince’s Digest was compiled and published ‘by authority’ and is notoriously received as evidence of the laws of Georgia. A pamphlet containing the statutes of Virginia, has been received in evidence in Pennsylvania, 1 Dallas, 463. See also 2 Hay. 360; Peake 55. And if the Digest is evidence, the mere fact that it was not formally introduced at the proper time, was an inadvertence of counsel, which the Court will not permit to prejudice the case, 3 M’C. 259.</p> <p>A wife is not capable of making a contract, nor is an infant; trover may therefore lie for money lost or given away by them, and this is the ground on which the cases cited proceed; but in general, money lost at play cannot be recovered back, 4 Johns. Rep'. 426 ; 2 lb. 333 ; 8 lb. 113 ; 2 Com. on Cont. 120 ; Cowp. 7297 T. R. 535 ; IN. & M’C. 273-8. As to the evidence — the common law is proved by1"’parol, the statute law by certified copy, and the Act of Congress prescribes the mode in which it shall be authenticated. The laws of foreign nations must be proved as other facts. 1 Cranch, 38; 2 lb. 236 ; and in a late case it was held that the printed revised code of Virginia could not be given in evidence, 4 Cranch 384.</p>

<p>Before Mr. Justice Martin, at Charleston, May, 1833.</p> <p>This was an action of trover for a negro named Rosanna, to the plaintiff, Mrs. Robertson, before her mar-riage- The plaintiffs were married in Virginia, in November, 1824, Mrs. Robertson, the legatee, being then in her sixteenth Yea1'- They have resided there ever since, nor has either of them been in this State since. The defendant obtained possession of the negro in 1822, and has held her ever since. This action was brought in 1830. The defendant pleaded the statute of limitations, and the question was whether the action Was barred. The presiding judge held that it was; and the jury, under his charge, having found for the defendant, the plaintiffs appealed, and now move for a new trial, on the ground of misdirection of the presiding iudge. 0 r e J o</p> <p>The statute runs against a feme covert, when the cause of action accrued during coverture, and (¡oes no(: apply where, as in this case, the cause of action was before. Mrs. Robertson was not of age when the negro was sold; the statute could not run during her minority, but only from her coming of age. And he cited 3 Cranch. 177; 4 M’C. 507 ; 3 Johns. Rep. 263 ; 3 Wilson, 145; 4 Taunt. 826; 1 M’C. 555 ; 2 N. & M’C. 296.</p> <p>referred to Southgate v. Goldwaite, 1 Bail. 367.</p>

<p>is oarroa uy mo statute of limita-tíons, there must mise 'to^pay^or an unequivocal existfng°debt,un-any°qua!iíication showing an in-pay,10in order to revive it. being'caScd on barrodb thest? tute,e said'eShis toPhave pahl8it! a. (plaintiff)’ pafá” — acknow-ifainfcverai^ears beforo^promised to pay $30 of the note, and pro» posed to pay tho Singüiointwcsti by giving auoth-toaiaccedoefto°-d Had, that those weirdo'1"suffi-cientto take the statute!'1 °f the Where a note</p>

<p>Before Mr. Justice Earle, at Beaufort, Fall Term, 1833.</p> <p>Trover for negroes. Pleas. Gen. issue and Stat. of Lim.</p> <p>The jury found the following verdict:</p> <p>“We find that 1 homas Bell, oí the parish ot bt. Helena, on the 16th day of August 1795, duly made and executed his ^ast and testament, and devised and bequeathed as follows; “I give and bequeath to my beloved daughter Elizabeth Bell half of the tract of land containing two hundred and fifty acres, being half of the tract formerly my mothers, the westerly part adjoining lands of Keatings, to her and the lawful issue ¿f her body forever. I also give her one fifth part of all my negro slaves, including the issue or increase of those mentioned my Wlth their issue and increase, to her and the lawful issue of her body forever. I also give her one sixth part of my stock of cattle, hogs, &c., and one fifth part of my stock of horses to her and the lawful issue of her body forever. The estate to be divided whenever she gets married, or at the age twenty one years.” And in a subsequent clause he devises in the words following; “And it is my will and desire that if any of my sons or daughters should die without leaving lawful issue of their bodies alive, then their part of their estates to be equally divided among iny then surviving childrenand died, ieaving this will unrevoked as his last will and testament. “We further find that some time in the year 1801, the above named Elizabeth Bell intermarried with John Talbird, and that upon such intermarriage the said John Talbird was put in possession of the portion of lands and negroes, stock, &c., bequeathed to her by the will of her father. We further find, that sometime in the year 1819, Elizabeth Talbird, formerly Elizabeth Bell, died, leaving issue, Sarah, John, and Elizabeth, We further find that sometime in the year 1822, John Talbird, subsequently to the death of his wife, by a-bill of sale regularly executed, conveyed to Robert Means,T the testator of the defendants in this case, certain negro slaves, and among others, Die, Judy, Harry and Lucy, which were a part of the personal estate received by him as the portion of his wife, Elizabeth Bell, under the will of her father, Thomas Bell; which he and the defendants have held adversely ever since. We further find that John Talbird, the son of John Talbird and Elizabeth his wife, died a widower and without children, sometime in the year 1824, after attaining the age of twenty.one years, and that John Talbird his father, has administered on his estate. That Sarah Talbird, the daughter of John and Elizabeth Talbird, intermarried with W. II. Henry, who died intestate in the year 1827, leaving the said Sarah, his widow surviving him, and that she had attained her age of twenty-one years more than four years prior to the commencement of this action; and that Elizabeth Talbird, the other daughter of John and Elizabeth Talbird, is still a minor under the age of twenty-one years.-</p> <p>“We further find that during the period from the death of his wife Elizabeth Talbird formerly Elizabeth Bell, John Talbird remained in full possession of the property included in the will of Thomas Bell, as in -Iris own right until the execution of the bill of sale to the testator of the defendants. We find that there has been a demand and refusal of the negroes. If upon the foregoing statement of facts, the Court be of opinion that the plaintiffs, Sarah, Henry and Elizabeth Talbird, be entitled to recover the negroes, or that the plaintiff Elizabeth Talbird be alone entitled to recover, we find for the plaintiffs or plaintiff. If the Court be of opinion that neither of them are entitled to recover, we find for the defendant.”</p> <p>The presiding judge, on the facts thus found, awarded judgement for the defendants, and ordered the postea to be delivered to them; and the plaintiffs appealed.</p> <p>The word issue will be construed a word of limitation or of purchase, as may best effectuate the intention of the testator. 13 Yes. 340; 2 Fonb. 48, note. The reason that a limitation over after the words “ heirs of the body,’ is not good, is that it contemplates an entire failure of issue. \ Ves. sen. 133; Fearnc, 464, 492-9. And so the words „ iawfui {ssue 0j fie l0dy” in general are words of limitation; connected with the words “ having lawful issue alive” their generality is restricted, and the Court will take hold of any circumstance to restrict them, and thus to effect the testator’s intention. 1 T. Rep. 597; 2 Bro. P. C. 509. By the will, the estate was not to be divided until Elizabeth comes of age; and until then it may be regarded as an executory trust. 2 Atk. 89; 6 Ves. 158 ; 3 Atk. 398. And the counsel also referred to and commented on the following authorities, in support of the devise to the plaintiffs; Fearne, 384; 1 M’C. Ch. Rep. 88 ; 2 Roper, 354. And as to the statute of limitations, he referred to P. L.' 455 ; 4 T. R. 516 ; 7 Cranch, 156 ; 2 Taunt. 441.</p> <p>cited 2 M’C. Ch. 66; Treville v. Ellis, (MS); Patterson v. Stephens, (MS); Zella ■V, Leith, (Col. 1822) ; 2 Eq. Rep. 259 ; 2 Bailey, 231; Jcr. Eq. 56 ; 6, T. R. 307.</p>

<p>goods vvithout Óf°her husbamf and gave her hSbaniMs not liaWe-</p>

<p>decSuoS l>in an action on a out according^ the decisions m this State, the particulars in which the condition is broken, the plea of performance generally is immate-</p> <p>The acts of 1735 and 1809, havoturned bail to the sheriff in» to bail to the ac» tion or special bail.</p> <p>The word “appear’'in the condition of a bail bond to the sher-iffmeans thattho defendant shall remain within the reach of the process of the Court, to satisfy the judgment which may be rendered against</p> <p>Where the declaration on a bail bond sets out the facts necessary to fix the bail, a pica that the defendant in the original action appeared, according to the condition of the bond,is not good. The act of 1791 (1 Faust 40) has dispensed witli appearance by recognizance of bail to the action.</p> <p>An appearance at the return day of the writ, aud a pica by defendant to action, will not discharge the bail.</p>

<p>whore on the d tosíate^ *onéa" Possession ofthe oash^on” "hand it^safe keeping* n” a’imd1 and're" cefved may gahlsulimby the administrator, & diSneihftws respect that the wP^present'and made no objec-money was ta-</p> <p>administrator, ns against a not^rendered^'in a statement of the time prescribed by law,is en-for his whole areinsuffleienuo</p> <p>^ administrator is iu funds,the debt duo to himself must bo consid-oand noPaionger boar interest.</p> <p>to^'may,'under Üadmüástmvlte give in evidence hiinsclf. due *°</p>

<p>Before Mr. Justice Bay, Charleston, June, 1833.</p> <p>This was a rule against the plaintiff, to shew cause why satisfaction should not be entered on the judgment in this case. On the facts submitted, his Honor held, that the judgment had been overpaid, ordered the rule to be made absolute, and that the excess after satisfying the judgment, should bo refunded by the plaintiff. From this order the plaintiff appealed. The facts, and the questions presented for the decision of the Court, áre fully stated in the following opinion.</p>

Before Mr. Justice Martin, at Charleston, Spring Term, 1833» This was an issue on an appeal from the Ordinary of Charleston district, revoking the plaintiff’s letters of administration on the estate of J. L. Sompeyrac, and granting letters to the defendant.

<p>Under what hondhithehands of one aoting'as executor of the obligor win 6 a c sp 1 "</p>

Before Mr. Justice Butler, at Charleston, February, 1834. Assumpsit. In May, 1831, the defendant purchased of the plaintiff 201 bales of cotton at a certain price per pound. In ^le February preceding, the cotton had been weighed at public scales and put in store, and the weights entered on the scale house books by the wharfinger, and according to these, 201 bales weighed in the aggregate 63,043 lbs.

<p>UmJer a count f“[ed0efci“““ *e parol evidence aatethe defendant faise-thenegi-otobea gg°Jb; of sale contains 1“ °£1 'that™? title,</p>

<p>Before Mr. Justice Bay, Charleston, May Term, 1833.</p> <p>A writ of Habeas corpus had issued requiring Mrs. Mary Thompson to produce the person of Frederick Kottman, a minor of about fifteen years of age, who, it was alledged, was illegally detained by her. On the return of the writ, the boy being brought up, Bailey, on the part of Frederick Kottman, the father moved, that the minor should be taken out of the custody of Mrs. Thompson, by whom, as it was charged, he had been enveigled away and detained against the will of his father, and delivered to. his father, on the ground that the father, as the natural guardian, has the legal right to the care and custody of his children until they attain full age.</p> <p>submitted affidavits showing that the father being a poor man, Mis. Thompson had, at his request, taken the boy to her house and furnished him boarding and lodging gratuitously, that he has been treated kindly while under her roof, and that she never has used any means to induce him to remain with her against his father’s will, and that he is now, and always has been, at perfect liberty to go where he thinks proper. And to shew that the Court ought not to- interpose in favor of the father, affidavits were read, that the father had beaten this son in a cruel and unusual manner without any just cause.</p> <p>His Honor refused to make any order, the boy not appearing to be under any restraint, but informed him that he was at liberty to go where he pleased. Inasmuch,, however, as he had been abused by his father, as it seemed without any cause, His Honor ordered the father to give security for his good behaviour towards his son.</p> <p>The petitioner appealed, and now moves this Court to- reverse the decision below, and to grant the order then moved for.</p> <p>argued that the father had a right to the custody and government of his child until he is of age. 2 Kent. Com. 163, 183 ; Reeve’s Domestic Rel. 288, 293 ; 1 Black Com. 453 ; Co. Lit. 88, b. note, 66 ; 7 Mass. Rep. 145 ; 2 lb. 109 ; 2 Bailey, 497. That habeas corpus lies to restore a child detained by a private person to the. possession of the parent, and it is immaterial whether the child assent or- not, for an infant is not capable of a legal as-ent< j Wm. Black Rep. 386; 7 East, 579; 5 East, 221, note, 2 Johns. 375 ; 4 Bos. & Pul. 148 ; 5 T. R. 278. And it is the duty of 'the Court to, deliver the child to the father, 2 Strange, 982; 1 Lord. Ray. 673; 3 Bur. 1434; 3 Eng. Con. Chan. Rep, 1, Wellesley’s case. Jurist No. 4, p. 66.</p> <p>In the case of a very young child incapable of choice, it is a matter of discretion whether the Court will deliver the child to the parent on writ of habeas corpus; 1 Bur. 542 ; 3 Bur-. 1434 ; 1 Str. 444. Where the child is old enough to exercise a will, all that the Court can do is to see that no restraint is imposed on the person, 4 Bur. 1991; 1 Com. Black. 386 ; 1 Str. 579 ; 7 East. 577 ; 8 John. 253 ; 13 John. 418 ; 5 Bur. 520 ; 3 P. W. 152.</p>

<p>The building called the Medical College, in Queen street, Charleston, standing on a part of the lot connected with the Marine Hospital, was erected by the Faculty of the College, from the matriculation and graduation fees, by one appropriation by the City Council, and two by the State. The City Council gave the lot and the Medical College buildings to be erected thereon, for the use of the Medical College, for twenty years, and appropriated ¡$15,000 to-the use of the Medical Faculty, to be “ solely applicable to the erection of a suitable building for a Medical School.” The appropriations by the State were for “ the Medical College,” to be drawn by or paid to the order of the Faculty. The Medical Society of Charleston appointed the professors constituting the Faculty of the College, and conferred degrees on the candidates for graduation ; the professors as individuals giving their bonds for the performance of the conditions on which the appropriajion by the City Council was made. For about seven years the College building was used bjr the Faculty to deliver lectures, and by the Medical Society to confer degrees. Some discontent then arising, the gentlemen composing the Faculty withdrew from the government of the Medical Society, and together with the Trustees, were, by an act of the Legislature of 1832, incorporated as a Medical College. The Medical Society appointed another Faculty. A janitor was appointed by the former Facility, and another was appointed by the Society, who was directed to demand possession. He did so, and found Senft, the Faculty’s janitor, armed and in possession of the buildings and property, and by ^1*3 comrnand °f Dr* Prioleau, the dean,he refused to surrender the possession ; and Dr. Prioleau, on being applied to, said that ^ ®r. P°rcher, the President of the Medical Society, wanted possession, “ he must fight.” A Court of magistrates and freeholders, convened to try the forcible entry and detainer, found Past Possess^on t0 be *-’ae Medical Society, and that the defendants, Senft and Prioleau, detained possession by force against the right of possession by the Society, and awarded the writ of restitution of possession. An application was made to his Honor Judge Bay, at Chambers, and afterwards in Term time for a writ of certiorari, which he denied. A motion is now mac¡e f0 reverse his decision, on the grounds : j</p> <p>1. That the writ of certiorari was the proper remedy.</p> <p>2. That on the facts stated, it ought to be granted to reverse the decision below.</p> <p>argued these grounds ela- and cited 4 Black. 321; 1 Salk. 146; 6 Mod. 17, 61; 6 Johns. Rep. 334 ; 4 Black. 323 ; 1 Russel, 288-9 ; 1 (jain’s Rep. 126; 13 Johns. Rep. 340; 8 Cowen, 226 ; 1 Dallas, 68 ; 1 N. & M’C. 231 ; 2 Bacon Ab. 13; 5 E. 240 ; 2 N. & M’C. 126 ; 4 Johns. Rep. 198; Com. Dig. Fore. En. try, D. 7; 10 Johns. Rep. 304 ; 3 Pet. 444 ; 1 Sch. & Lef. 123, 326 ; A. A. 1825, p. 14; A. A. 1830, p. 12, 56 •, 10 Co. gg . i yes. 462, 475 ; 2 Bay, 338; A. A. 1829, p. 30; 8 T. R. 542 ; 16 Eng. Com. Law Rep. 133.</p> <p>cited Hawk. 64 ; 8 Johns. Rep. 365 ; 9 Johns. Rep. 155-6 ;' 2 Const. Rep. (Treadway) 479-80 ; Acts 1812, 1816 and 1824; Fitz. N. B. 145 ; Bac. Ab. tit. Certiorari, M ; 4 Black. Com. 321 ; 6 T. R. 145 ; 13 E. 411; 7 T. R. 373; 2 Root. Rep. 411.</p>

<p>Before Mr. Justice Earle, at Greenville, Spring Term, 1834.</p> <p>The defendants in these cases were tried and convicted of trading with slaves. At the trial no objection was made to the jury, either to the array or to the polls.</p> <p>The defendants appealed, and now move to set aside the verdicts and for new trials, on the grounds:</p> <p>1. That the jury list had not been made from the tax returns, according to the act of 1799.</p> <p>2. That several of the panel were not freeholders entitled to vote according to the Constitution of this State as it was in 1799, and consequently were not qualified to serve as jurors.</p>

<p>Talesmen are as^nc“v¡uS</p> <p>lRw“oftUfasS the court has no venirVfacittsCol</p> <p>a net of'the «rare thejurynot formed, resort must ccssívedrawfngs box' each ties' juror eas° ’drawn ami if he ap pears he is to be pro-iiMgsoracespt-anee; if ho does caicdfanothoris to bo drawn and manner, and so fsnmiedlthe ^ury</p> <p>But an objection which Jio°tScs- and* summoned” must bomade to fs^rosmtea^u L too Tate after</p> <p>cause of chai-jurfr, that since 'iulhc Talcs’box’ he has removed', i‘i’4'Vmoreeth!m five miles from</p> <p>designates the aiuTout ófwhich bc town TndTf at the timo a town,jcíXedhi! to Court and pre-. prisoner,’Tie’!! lufis entltiedTo’ be sworn. The ?u'rorfirriat”s0fto the tíme when he js cllJcJ t4 serve; andawant cause'1ofa,ciml-tenge t°tho poll,</p>

Before Mr. Justice Evans, at Darlington, Spring Term, 1834. This was an indictment for a nuisance in. obstructing a road leading from the public road to a Methodist church», The lot on which this church is built is at the distance of about two hundred yards ox more trom the public road. All the immediately in front* or directly between the church and the public road, are enclosed.

<p>An indictment cS|“j c. 7, for killing. contains’ n"gene™* description the words of the statute, win be tlie^manner^of scribra]1'0</p>

<p>Before Mr. Justice Earle, at Nemherry, Spring Term, 1834.</p> <p>'The defendant in these cases was indicted as -one of the Commissioners of the Roads ; in the first case for not repairing a road, and in the other for not repairing a bridge. Both were in his road division, but in different sections, and both indictments embraced the same period of time. The proof was, that both the road and bridge had been grossly out of repair for six months preceding the commencement of these prosecu-lions. '</p> <p>The bridge was built by contract in 1827, let at public outcry, and the contractor was to keep it in repair for seven years, and gave a bond to this effect ’to the Commissioners, as also to save them harmless. It became impassable in the winter of 1832 — 3, the defendant had notice then given to him of this tact, and again m the spring. ¡I he bridge'Continued so much out of repair during the spring and summer, that loaded waggons could not pass. The defendant gave notice of the' condition bridge to the board of Commissioners in January 1833 ; _j.jjgjjoa.rd appointed a committee to examine and report, and a new j,r¡¿|ge was put up in the fall. The defendant never attempted to have it repaired, but it did not appear whether it coujd be repaired by ordinary labor, or required skill and expense, or whether it was capable of thorough repair,</p> <p>Qn tjle triai 0f the last case the counsel for the defendant insisted on the following grounds :</p> <p>1. That both indictments being given out and found at the same Term, for a neglect of duty in the same period of time, and one penalty covering the whole offence during that time, both cannot be sustained.</p> <p>t*lfi defendant *s KOt bable to indictment alone for not repairing the bridge; it having been built by the general Board, and remaining under their supervision and controul, the Commissioners should have been joined in the indict-menu.</p> <p>These grounds were overruled, and the defendant convicted. He now moves for a new trial or in arrest of judgement, 011 same grounds.</p>

Before Mr. Justice Richardson, at Union, Spring Term, 1834, Trespass to try titles. The plaintiff claimed under-a deed from the sheriff of Union. The land had been levied on and sold by John Anderson, the immediate predecessor in office the present sheriff, whose term of office expiring before the title was executed, the deed in question was executed by the present sheriff, and it contains a recital that the land had been seized and sold by him.

<p>The rule of caveat emptor iff’s sales, ami a Furslaieagafnst whom there has of°the property b°usht hy title emítíedU1'toS re-?«ion at whose s"ie“cacs mad“ although the loti ter had given a bond of indem-t0 .tb0 sho_</p>

Before Sir. Justice Richardson, at Fairfield, Spring Term, 1834. This was an action to recover part of the purchase money of a tract of land sold by the plaintiff, as sheriff, to the defendant, under the following circumstances: Osmond Woodward contracted with G. B. Dunkley for the sale of a tract of land, and gave his bond for titles to be executed when the purchase money was paid.

<p>Before Mr. Justice Richardson, at Chester, Spring Term, 1834.</p> <p>This was a summary process to recover fifty dollars, the balance of the purchase money of a tract of land which the plaintiff had sold to the defendant, as he contended, for $1150, but the consideration expressed in the deed was but $1100. Whether the true consideration was expressed in the deed, or the plaintiff was entitled to $50 more, was the question, and on tins point evidence was received by the Court, which it is unnecessary to state. His Honor, after hearing the evidence, held that a consideration greater than that in the deed, could not be established by parol ; and admitting that it could, that the evidence given did not prove it; and accordingly gave a decree for the defendant. The plaintiff appealed, on the ground of error in this decision.</p> <p>cited 8 Starkie, 995, 997 ; 8 T. R. 474; 4 Johns. 210; 1 M’C. 514.</p>

<p>Where theshe-riff sold nesroots gage after con-dltion broken; the Court held, that the sale by afan''agent Wof the mortgagee “Sida”"capacity; et»sed on a toorder’the suri pJ“s satisfying the executions,</p>

Orangeburgh, Fall Term, 1838. Mr. Justice Earle, who tried the case, made the following . ° TSpOrt l This was an action of debt on bond.

Before Mr. Justice Earle, at Newberry, Spring Term, 1834. Trespass for assault and false imprisonment. The plaintiff with several others had been indicted for a riot and assault and battery by two women in the neighborhood, and the defendant who is a justice of the peace, had issued the warrant. The plaintiff and two others of those indicted, before their arrest, called at the defendants house and inquired if the warrant could be taken up and the prosecution dropped.

Spartanburgh, Spring Term, 1834. Appeal from a judgement of a justice of the peace. The plaintiff was engaged in vending liquids, compounded of vegetables, according to what is usually termed the “ Thompsonian ®ystem >” ar>d s°ld to the defendant a concoction oí roots and herbs which he had gathered, and compounded himself, for which he charged eight dollars. He had no license either to practice physic or to sell drugs. The justice gave judgement for the plaintiff.

<p>York, Spring Term, 1834.</p>

Before Mr, Justice Richardson, at Spartariburgh, Spring Term, 1834. This was an action of assumpsit on a joint and several promissory note) given by the defendant and F. Silman. The defendant relied on the statute of limitations. About six years a^er note ^ due, F. Silman paid about half the amount then due ; the action was brought within four years from this payment; and the single question was, whether the payment ^us ma cited 21 Eng. Com.

York, 1834. The defendant having been arrested on a capias ad res-pondendum. at the suit of the plaintiff, and intending to apP^ f°r benefit of the of which it is only necessary to notice the following l That the defendant has, within three months before his arrest’ Patd or assigned his' estate, or a part thereof, to some creditors in preference to the plaintiff; to wit, to A. S. Hul-chison, D. S. McNeol, —— McGregor and others.

Before Mr. Justice Richardson, at Spartanburgh, Spring Term> 1834. This was an action of trover for negroes.

<p>Before Mr. Justice Richardson, at York, Spring Term, 1834.</p> <p>This Was an action on a replevin bond. The bond purported on its face to be joint only, and not joint and several,, and t0 ^e executed by the defendant Bell, and Dennis Crosby and Wm. Ratchford. Ratchford had left the State, and the action was brought originally, under the act of Assembly,* against the other obligors, Bell and Crosby. The subscribing witness ou being sworn, proved the execution of the bond as to Bell, but ^lat otbet’ obligors were not then present; he was not acquainted with their handwriting; but their signatures wore affiKed afterwards, and at a different timo, whether by any previous understanding did not appear. On this evidence being given, the counsel for the plaintiff' conceiving, on the authority of the case of Ives v. Pickett, 2 M’C. 271, that the bond was not jointly executed, moved for leave to amend his declaration by striking out the name of Dennis Crosby, and the motion was granted. The counsel for the defendant then moved for a non-suit, on the ground that the bond offered in evidence purported to be joint, and the action (as amended) was several. The presiding judge sustained the motion, and the plaintiff now moved to set the nonsuit aside, for error in this decision.</p> <p>The case of Ives v. Pickett decides the point that where a note was executed by two at one time, ami by a third at a different time, but by previous agreement to this effect, that it is not joint as to ail the makers, and a joint action against them cannot be sustained. This is a case in point. This bond then was not jointly executed, and the joint action could not have been sustained ; and unless this action is sustained, the plaintiff holds a bond executed by competent parties and on a legal consideration, without any remedy to enforce it.</p> <p>cited 1 Chitty PI. 29 ; 1 B. & P. 73 ; 2 East, 313 ; 5 East, 85 ; 1 Saund. on PI. & Ev. 145-6.</p>

Before Mr. Justice Richardson, at Spartariburgh, Spring Term, 1834.

Before Mr. Justice Earle, at Edgefield, Spring Term, 1834. This was an action of trespass for cutting and breaking the plaintiff’s mill dam. The plaintiff and the defendant, Brooks, were the proprietors of adjoining tracts of land, separated by Horse Creek, which was their common boundary. The mill an d dam were on that stream.

<p>Spartanhurgh, Fall Term, 1833.</p> <p>Mr. Justice Evans made the following report:</p> <p>The defendant, Vernon, had been arrested in these cases and confined in goal. The first was a writ in trover, with an ordcr, conformably to the act of 1827, requiring the defendant to enter into bond and security for the production of the chattels sued for, in satisfaction of the plaintiffs’ judgement, if they should recoverthe other cases were writs of ca. sa. He filed a schedule, and after the usual notice, applied to be dischav-ged under the Prison Bounds Act of 1788. T he plaintiffs, by their attorney, Mr. Bobo, appeared before the commissioner of special bail, and filed a suggestion, alledging that the schedule was fraudulent. Witnesses were examined on both sides, and the commissioners, as they state, finding no reason for disbelieving the truth of the defendant’s schedule, discharged him. Mr. Bobo gave verbal notice at the time, and some time after a written notice, that he would appeal from their decision to , ~ 7 „ ,t/¥,v r the Circuit Court. 1 he first difficulty which the case presented was, that Mr. Henry, who was the defendant’s attorney in the first case, and Mr. Thompson in the two last, refused to accept the notice, alledging that they were employed to defend Vernon only before the commissioner of special bail, and when that was decided they were no longer his attornies. No notice had been given to the defendant personally. I was in-dined to think that notice ought to be given to defendant, but as Mr. Bobo seemed desirous of getting all the points before the Appeal Court, I suffered him to make his motions, that the whole matter might go up together. His first motion was to docket the cases, on an issue to be made up on the truth of the schedule, under the supposition that an appeal lay to the Circuit Court, from the commissioners of special bail. This motion was refused, on the ground that the act gives no such right. Appeal docs not lie from an inferior jurisdiction, unless expresslv granted.</p> <p>I am inclined to think that as to this matter, the commissioners of special bail have concurrent jurisdiction.</p> <p>His next motion was to re-capture the defendant, on the ground, that when a suggestion of fraud is filed, the commissioners of special bail are ousted of their jurisdiction, and have no right to decide the case and discharge the defendant. This was also refused. I have looked into the act, and my own construction of it is, that the commissioners of special bail have a right to discharge, unless the plaintiffs show what to them seems probable -reason to discredit the schedule. The commissioners thought there was no such ground in this case. But even if they had no such power, I can find no authority for granting the order requested. If the schedule be false, the plaintiffs under the act may arrest him again, unless in this case they may be precluded by appearing and contesting the schedule.</p> <p>AH these various points are stated, that they may be decided if the Appeal Court will consider them without notice to the defendant.</p> <p>The plaintiffs appealed and norv renew their motion before this Court.</p>

Before Mr. Justice Evans, at Marion, Spring Term, 1834. Trespass to try titles. The plaintiff claimed under a purchase at sheriff’s sale, and as evidence of the judgement under which the sale was made, he produced an original summary process against the defendant, on the back of which the clerk hM made a statement of the decree and costs.

<p>Tried before Mr. Justice Richardson, at YorJc, Spring Term, 1834.</p> <p>This was an action of trespass to try titles. The plaintiffs claimed under Thomas M’Daniel who purchased the land in question at sheriff’s sales as the property of John Pratt. The plaintiffs proved that John Pratt purchased the land and received titles from Benj. Dowdle on 1st. January 1821, and on the 2d. January 1821, the day following, executed a conveyance to the defendant, who is his mother. The judgment under which the land was sold was prior to the deed to the defendant, and the sale under it was valid if the title was in John Pratt at the time of the sheriff’s sale. The plaintiffs traced the title back no farther than to Dowdle, how he acquired title did not appear. In the evidence given by the plaintiffs it appeared that William Pratt* the husband of the defendant and father of John, occupied the land from 1809 until his death in 1819, from which time to the present the defendant has continued to rós^e I’1 1817 Wm. C. Davis bid off the land at sheriff’s salo as the property of Wm. Pratt; whether he receiv-od a deed did not appear. Frequently after this Wm. Pratt was heard to acknowledge that Davis was the owner of the land» After the death of Wm. Pratt, and in 1820, John Pratt paid rent for this land to Benj. Dowdle. Thos. M’Daniel died in 1826, leaving the plaintiffs, some of whom are minors, his devisees, action was commenced in February, 1831.</p> <p>The plaintiffs rested their right to recover on the grounds; that unt*l conveyance by John Pratt to the defendant in 1821, her possession was the same of her husband, permissive and conferred no right 5 and that by accepting the title from John Pratt, she was estopped from denying his title, and the judgement under which M’Daniel purchased being prior to that con-veyance> the plaintiffs were consequently entitled to a verdict,</p> <p>The defendant relied on her possession and that of her hus-hand to confer title, and insisted that the acceptance of a deed John Pratt was not such an estoppel as would prevent her from setting up a distinct and independent title by posses-sjon.</p> <p>The presiding judge charged the jury that they were to determine on the character of the possession ; that in his opinion it was not adverse, as in its first stage it was in Win. Pratt, who after 1817 had often acknowledged that he was not the owner. That as regards the personal possession of the defendant and her children from the death of Wm. Pratt in 1819, it did not appear to be adverse from the fact that John Pratt paid rent to Dowdle in 1820 ; and that by taking title from John Pratt on the day after he purchased from Dowdle in 1821, the defendant recognized the title of John Pratt, and was estopped from denying it up to that time ; and the period of the statute of limitations being enlarged by the Act of Dec. 1824, from five to ten years, a sufficient time had not elapsed to confer title, from January 1821 until the death of M’Daniel in 1826, after which the rights of the plaintiffs were protected by the minority of some of them, from the operation of the statute.</p> <p>The jury found for the plaintiffs, and the defendant appealed on the grounds of error in these particulars in the charge of ■the presiding judge.</p>

<p>Before Mr. Justice Earle, at Orangeburg, Fall Term, 1834»</p> <p>This was an appeal from the Ordinary ; and the purpose of the proceeding before him, and here, was to set up and establish, as the last will and testament of William Wacter, dec’d. a paper which was offered for probate before the Ordinary and the Circuit Court. The original will, of the execution of which according to the act there was abundant proof, was lost or destroyed; and it was proposed to establish the contents as alledged to be contained in the copy produced. Several witnesses were examined; but the principal witness offered by the plaintiffs, who wrote the original will, and who prepared the copy exhibited, was William M. Myers. He was objected to on the ground that he claimed an interest, there being a legacy to himself. For the purpose of restoring his competency, ,he assigned and transferred in writing (which was produced) his interest in the legacy in question, to William C. Preston, without compensation and without warranty. It was objected that this was not sufficient to render the witness competent,’ than an assignment or gift was not a release or relinquishment ; and that the witness should relinquish or abandon his interest under the will, so that the legacy would fall back into the estate.</p> <p>The presiding judge overruled the objection, on the ground that the assignment was equivalent to a release and restored the competency, and admitted the witness. The paper, was established to be the copy of the original will, and the plaintiff had a verdict. The heirs appeal, on the ground that the witness, Wm. M. Myers, was incompetent, and that the assignment did not restore his competency.</p>

<p>A party is arc incompetentwitness to increase a fund out of which lie is to receive a dividend^ and where the plaintiff was in*, solvent, and had assigned his estate, under the Prison Bounds Act, to all his creditors, and a creditor was offered as a witness who said that if the plaintiff recovered he expected to be paid, otherwise not: Held, that the witness was-incompetent.</p>

<p>Actions of assumpsit had been brought by the several plaintiffs against the defendants, and the general issue pleaded. In the case named, (Ex’ors of Brown, plaintiffs) plene administra-vit praeter was pleaded, in which it was alleged that there were judgements against the testator in his lifetime, in favor of Clifton, Hall & Co. still unsatisfied amounting to $5139, 75; that the physicians’ bill for the last illness still due and unpaid amounts to 250, 25 ; that the costs and charges of administration amount to $134, 64 ; and that other debts against the estate not in suit amount to $1053, 85 ; and that the choses in action, the only estate of the testator in the hands of the defendants, amountto only $1397, 42, most of which are regarded as desperate debts. The replication to this plea alledged that the judgement m favor of Clifton included that of Iiall & Co. and that both had been paid by the testator in his and that besides the choses in action, the defendants have in their hands assets sufficient to pay the plaintiffs’ demand after sat-the remainingjudgement's, the physicians’ hill, the costs and charges ofadministration,and other debts against the estate. No written or formal rejoinder or similiter was put in to this replication; but on the trial it was agreed that all technical pleading should be dispensed with, and the simple question bo submitted and tried by the jury, whether certain furniture and other articles belonged to the testator’s estate or to the defendants individually, and the value thereof; and that all other matters in the plea should he waived; that the same plea should j-,e considered as pleaded in all the cases: and that if the jury should find any amount it should be assessed pro rata among</p> <p>The general issue having been withdrawn in all the cases, the jury found the property of the testator in tho defendant’s hands to amount to $3000, which sum ’was assessed among the plaintiffs pro rata by verdicts in the following form, viz : rjn tj)e caseof Ex’x. of Brown v, Ex’ors. of Williamson] “We l . . , _ . . . J ,. find that the defendants had goods and chattels which were or said C. E. Williamson at the time of his death, in their hands to be administered, to the value of one thousand and forty dollars and sixty three cents, and we assess the damages of the plain-10 ^le amoun,; °f one thousand and forty dollars and sixty three cents (something less than the entire demand,) and like verdicts and assessments were made in all the other cases*</p> <p>Tho judgements entered up on these verdicts, set out that defendants had assets in their hands, to the several amounts assessed, out of which the plaintiffs should recover their debts, ygf jn defendant’s hands, otherwise the costs to be recovered or tlie proper goods ot the defendants. 1 he executions on these judgements commanded the sheriff to levy the debt of the goods and chattels of the testator in the hands of the defendants to bo administered, if so much be found, and if not, then to levy the costs of the goods chattels &c. of the defendants,</p> <p>The sheriff not finding any of the testators property on which to levy, made the costs in these several cases, of the goods of the defendants, and made a return of devastavit, severally, upon all the executions. On this return being made, the present executions were issued, directing the sheriff to make the several debts of the proper goods and chattels of the defendants. By virtue of these executions the sheriff of Richland district levied on eight negroes. On a motion being made before the late Mr. Justice Martin, at chambers, his Honor ordered that all the executions should be set aside for irregularity, on the grounds that the finding of the jury did not decide the questions submitted by the pleadings, and tho verdicts did not support the judgements and executions.</p> <p>From' this order the plaintiffs appeal, and move to reverse it, on the ground that there was no irregulariy, at least none which could be taken advantage of in this manner; and that they should be permitted, nunc fro tunc to amend any which may exist.</p> <p>cited 1 Salk. 310; 2 Tidd. 933,1019; Bing, on execution, 152 ; 2 Arch. Prac. 134 ; Toller, 466 ; C Com. Dig. 96 Pleading, C. 87 ; 1 Hill, 210,</p>

<p>An assault with deVa siavoSin-d‘cta,ile-</p>

<p>Before Mr. Justice Richardson, at Sumter, Fall Term, 1834.</p> <p>This was a suggestion for a prohibition to restrain the col-le ction of a double tax execution against James E. Graham, a free man of color. The tax collector of Sumter issued his execution which set out that Graham had been assessed four dollars and forty cents for the general and poor tax for the year preceding, which he had neglected to pay, and commanded the sheriff to demand the same from him, and in case of his refusal, to seize and sell him for a term of time sufficient to satisfy the same not exceeding one year. On this execution the sheriff seized on the defendant and advertised him for sale, and he filed this suggestion for a prohibition. His Honor granted a prohibition for the collection of the. poor tax, but refused it for the balance, and the relator appealed, and now renews his application before this Court.</p> <p>contended the execution was defective in not setting out the character of the tax imposed. If a capitation tax be intended, as is supposed, then the act of 1833, which imposes a capitation tax of two dollars on free negroes, does not authorize a double tax, which could only be imposed for not making a return ; and if it be for a property tax, the law does not authorize a sale of the person to satisfy it; and he referred to A. A. 1808, p. 39 ; A. A. 1791, 1 Faust.</p>

<p>Tried before Mr. Justice Earle, at Chester, Fail Term, 1834.</p> <p>Indictment for the murder of a slave. Verdict guilty. The prisoner appealed, and moved the Court in arrest of judgement and for a new trial* on the grounds which appear in the opinion of the Court.</p> <p>_ in arrest of judgement, cited 2 E. P. C. 641; Foster,. 484 ; 3 M’C. 533. On the ground for a new trial, they contended that there was error in the charge or the presiding judge ; for the homicide or a slave, owing to our peculiar policy, is so far different from that of a white man, that the law should not of itself imply malice, but express malice should be shewn. And on the facts they contended that this did not amount to a case of murder, as contemplated by the act of 1821. S’Starkie,, 948, note 1; 4 Tucker’s Black. 192 ; 2 Starkie, 948 ; 6 Bacon’s Ab. 380, tit. 1 Russ. 631. Statute 1. 2 ; 4 Black. Com. 81</p> <p>As to the sufficiency of the indictment-, referred to 1 E. P. C. 224 : 1 Russ. 613, And as to the grounds for a new trial, commented on the facts, and insisted that the prisoner having placed himself on a footing of equality with the slave, could not claim that a slighter provocation should reduce the offence from murder to manslaughter.</p>

<p>where the til?butueverhad entered or had premises,0 °fshe tresposs1”1'mire cimfsum fregit acthaf possession. (a)</p>

Before Mr. Justice Eatle, at Fairfield, Fall Term, 1834. This was an action of debt on the administration bond of John and James Ellison* administrators of Thomas M’Gready, deceased, brought for the benefit of S. Oates, a creditor of the estate, against the defendant, the surety.

Before Mr. Justiee Earle, at Spartanburgh, Fall Term, 1834. The presiding judge made the following report: Trespass qxiare clausum fregit.

<p>Before Mr. Justice Earle, at Spartanburgh, Fall Term, 1834,</p> <p>This was an issue on a suggestion to try the truth of the defendant’s return as a garnishee. The presiding judge made the following report:</p> <p>“ One Thomas J. Underwood being indebted to the relator on this suggestion, had failed and absconded. The relator sued'out an attachment on 1st October, 1832, which was served on the respondent, as garnishee, on 13th October, 1832. He made his return on 4th March, 1833, on oath, denying that he had in his hands any of the goods and chattels of the absent debtor; and this suggestion alleges that the said return is untrue, for that the garnishee had in his hands certain promi-sory notes which were the property of the said absent debtor. It seems to me to have been purely a question of evidence ; I think it was fairly submitted to the jury. There was no proof that Posey at the time ot the service oí the attachment, or at any other time up to the date of his return, had any note or notes of Underwood or payable to Underwood, except a note on Riley Gentry, which he presented for payment, saying that Mrs. Underwood had been called on for money, and in looking over the notes that had been found, &c. But it was proved by Thomas Poole that he had a demand, and called on her, and she gave him the note on Gentry in discharge of his demand, and that he had placed the note in David T. Posey’s hands for collection. Gentry came to a settlement with Mrs. Underwood afterwards, and gave a new note, payable to Underwood, which was not shewn to have been ever after in the hands of David T. Posey. Other small notes, one on Joseph Peace, one on William Peace, one on David Freyer, and one on James Mason, are proved to have been in his possession after he made his return, the earliest of them on the 9th of March ; some were paid to him, and others were renewed, I think, payable to himself. The question was, whether his acquiring possession of these notes after making his return, supposing it to have been by the delivery of Mrs. Underwood, (another gar-n*shee who did not make any return at all) made the respondent liable to the penalty of a false return, or subjected those notes to be adjudged the effects of the absent debtor, in his ^an<^s> so as *-° make him liable for the amount? I thought not; and could not so instruct the jury. The question was wbether they were in his hands, power or possession, at the time of the return or before ? And this I submitted to the jury. They found for the respondent. The relator appealed.”</p>

<p>Before Mr. Justice Earle, York, Fall Term, 1834.</p> <p>This was a rule on the defendant to shew cause why the Clerk should not assess the amount actually due from the defendant to the plaintiff, and that the judgement and execution be amended accordingly, it appearing that the clerk, on the reference to him, had made a mistake in the calculation of interest, by reason of which the judgement was entered up and the execution issued, for a sum less than was due by about $200. On the return of the rule, it appeared that the sheriff had collected the amount stated in the execution, gave a receipt in full to the defendant, and paid over the money to the plaintiff. Th.eji.fa. itself still remained in the hands of the sheriff, endorsed “Satisfied,” but no sworn return thereon. His Honor held that it was too late to amend ; that the case did not come within any of the cases on the subject, and certainly not within the rule laid down in the Bank of Pennsylvania v. Condy, 1 Hill 209. The rule was discharged, and the motion to amend refused. The plaintiff appealed on the ground of error in this decision.</p> <p>The duty of the clerk under the act of 1809, 1 Brev. Dig. 120, in assessing the amount actually ¿¡ue on liquidated demands, is merely ministerial, and any mistake of his may be corrected under the Stat, 8 Hen. 6, c. 12, which authorises the Court to correct the misprisions of its clerks, 2 Arch. Pract. 231. 245. The presiding judge limits the right of amendment to the time of satisfaction. The old cases restrict the right of amendment to the proceedings whilst m fieri, before they are enrolled and engrossed, when they become strictly records. Before this, at common law, the Courts could amend, and they were authorised to amend after that, by the Statutes of Jeofails. But whatever once may have been the practice, it is now settled by repeated decisions here and in England, that the records of the Court may at any stage be amended, so as to subserve the ends of justice. 3 Salk. 31, 4 Taunt. 322, 3 John. 144, 5 John. 89. A ca. sa. was amended by altering the sum in the writ, after the defendant was in execution : 2T. R. 737 ; and by inserting costs which had been omitted, 2 N. & M’C. 58 ; and even after a sale, 3 M’C. 142. ; Giles v. Pratt, 1 Hill, 239 ; and where the sum was too large, 1 Hill, 209 ; andJi. fa. de bonis iestaloris, amended to de bonis propriis, 1 Hill, 167 ; and (a case in point) where an execution tvas amended after it had been returned satisfied: Phelps v. Ball, 1 Johnson’s Cases, 31. See also 18 Eng. Com. Law Rep. 236 ; 2 Ohitty Rep. 24; Campbell & Chambers v. Rochelle, 1 M’C. Ch. 53. There is no limit to the right of amendment except that of time, which, in the case of a judgement, may be twenty years.</p>

Fairfield, Fall Term, 1834. Eakle, J. made the following report: “ Indebitatus assumpsit for overseer’s wages. There was a special contract that the plaintiff should become the defendant’s overseer for one year, and have under his charge a certain number of hands, and be allowed as wages, one share and J a half of the whole produce of the plantation.

<p>An infant part-tho°co™™c* jgetpar^f™lljj age,r 'Tu’bjects 1!!il?.s,?lft0a’ii!“0 firm incurred du- ,™ f' ^ :m infant part-Sfg’ fiSi* age', j””nease<tf firm, received ^S Held, that these ed'amountedtoa “,°“fll”tJie™hi°f' and made Mm til ^ tracted during in's infancy, ai-ignorant* of'tie debt auhe°ftime of such confirm-onbcinginfoml’ ed of it, refused to pay it.</p>

<p>Before Mr. Justice Earle, at York, Fall Term, 1834.</p> <p>This was a summary process on a sealed note, dated 23d August, 1833, payable to E. Wetsel, ancl by him assigned to the plaintiffs, October 5th, 1833. The day after the note was executed, and before it was assigned, the defendant obtained from Wm. M. Kerr a note on Wetsel, payable to bearer, and ■without seal; and Kerr proved that Wetsel agreed to discount this note against the other: Wetsel, however, proved the reverse, that he refused to do so when applied to for that purpose by Hart. Wetsel afterwards took up this note by giving a new note, payable to Hart himself, dated 25th March, 1834, which note was offered in discount.</p> <p>The presiding judge allowed the discount, and the plaintiffs appealed, on the ground that under the circumstances the discount was inadmissible.</p>

<p>The tenant is a competcntwit-landiord"anV'a thM person, to tractfor'rent.011'</p> <p>The landlord for rent-until it nnd^vhere^the sheriff, as tho a-|agee°fin ’fore-cia°TLd hafuffanofS the a warrant ofdis-tress, sold a chat-te&re btho“mt was due, it was landlord was not ofUthBdproceeds of the sale (a)</p>

Before Mr. Justice Earle, at Union, Fall Term, 1834. This was an action for overseer’s wages, on a contract by which the plaintiff was to receive at the rates of $10 per month for one year. The parties separated before the ex. piration of the year, but the jury found a verdict for the plaintiff for the year’s wages, and the defendant now moves for a new trial. The facts on which the questions of law arise are fully stated in the opinion of the Court.

Union, Fall Term, 1834. Before Earle, J. who made the following report: Trespass to try titles. Both parties claimed title under Mill Sumner, deceased. The defendant married the widow of Giles Sumner, a son' of Mill Sumner, and set up title in Giles Sumner by possession, under a parol gift from his father, of five years and upwards, it being before 1824 when the period of the statute of limitations was extended.

<p>Before Mr. Justice Earle, at Yorh, Fall Term, 1834.</p> <p>Trespass to try titles. Both parties claimed the land in dispute as purchasers at sheriff’s sale. The plaintiff purchased ^ as the property of Wiley Jones, and the defendant claimed it under a purchase as the property of Benjamin Jones. It was Pr°ved that it had been the property of Benjamin Jones, the father of Wiley: and the plaintiff set up title in the latter by virtue of a parol gift and possession for inore than five years, it being previous to 1824. Wiley Jones testified on the part of the plaintiff, that his father settled him on the land in question, being part of the tract on which he himself lived, saying he gave or would give him one hundred acres; and he told him where the dividing line should run. T-he witness un-1 , . • n rn ® , , , cierstood it as a gut. I hat he built a house, cleared out a plantation, and occupied it for eight or ten years without interruption, except one year, which his father worked his fields and paid him rent. The dividing line never was run, and when the surveyor, under the rule of Court, went to make a survey, there was some difference of opinion as to the course of the line. During the period of the son’s possession, Benj. Jones, the father, cleared and cultivated a portion of the land claimed, within the boundaries described, without asking permission of the son, who, on being asked on his examination on what terms this had been done, replied, “ 1 suppose he thought he had a right.” He further testified that he always intended to call bn his father for a “ right,” (a deed) and after 'he had been in possession for several years, he obtained from him a written promise or obligation for titles, which had been lost,or destroyed when his house was burnt.</p> <p>His Honor held that there was no proof of adverse possession by Wiley Jones — no act or declaration asserting an exclusive claim in his own right, and in defiance of the right of the father. That admitting that the possession under an actual gift is prima facie adverse, or that the jury would be authorized to presume it so, this presumption was effectually rebutted by the continuing possession of the father ; as also by his intention to call on him for titles, and his procuring a written obligation to make titles at a future day: that the payment of the rent for one year was equivocal in itself, and may have been a mere compensation for clearing the land; or regarding it as an admission of title, it is no more an acknowledgement of a title in fee, than of an estate for life, or a term of years. At most, as the boundaries were never actually surveyed and marked, Wiley could only acquire title to what he had actually cultivated. He accordingly granted a motion for a non-suit, which the plaintiff now moves to set aside on the grounds:</p> <p>1. That the possession of Wiley Jones was prima facie adverse, and sufficient to confer title to the extent of his claim, or at least to his actual possession ; and his Honor erred in his view of the law on this point.</p> <p>2. That the evidence was sufficient to have sent the case to the jury.</p> <p>If the possession was adverse, and under defined boundaries, it is sufficient to confer title. What is adverse possession ? It'is a folding in one’s own light, and not in the right of another. Every possession is prima facie adverse, and is to be regarded as exclusively in the tenant’s own right; and it is only by shewing facts inconsistent with this presumption, that it can be rebutted. The son here held in his own right; the father had given him the land and defined the boundaries ; he had parted with the dominion; — taking an obligation for titles, shews that the son held in his own right;— and a conclusive evidence of right and acknowledgement of title, is the payment of the rent, which cannot (as was supposed) be regarded as a compensation for clearing the land, for the witness said it was for the use of his fields: and as for the circumstance that the father cleared and cultivated over the line, it was a mere privilege which a father might well exercise on his son’s land. But in any event, the evidence was sufficient to have gone to the jury, whose province it was to decide on the character and extent of the possession. Lyles v. Lyles, Harp. Eq. Rep. 288; Roberts v. Roberts, 2 M’C. 268; 1 Binney, 378; Judge Harper’s argument in Williamson v. Watkins, Law Journal, 113.</p>

<p>Before Mr. Justice Richardson, at Williamsburgli, Fall Term, 1834.</p> <p>This was an action for a malicious prosecution. The defendant made an affidavit before a justice, that the plaintiff had feloniously killed two of his cattle, a cow and a steer, on which a”’warranfíssúed, and the plaintiff was arrested and entered into recognizance to appear and answer to the charge, At the next Court of Sessions, an indictment was preferred against him, charging that he “ feloniously, unlawfully and maliciously, did kill” the prosecutor’s cattle, ancLa true bill was found. On the trial, the plaintiff was acquitted, and then brougllTthis action. On the trial of this'’ case, the presiding judge nonsujted the plaintiff, on the ground that Ihe offence for which the’^plamtiff had been prosecuted was not indictable. From this decision the plaintiff appealed, ancTnowThoves to set aside the nonsuit on the grounds :</p> <p>1. That the offence was indictable under the Act of 1789. fP. ]_j, 486.)</p> <p>2. That the insufficiency of the indictment would not protect the prosecutor from the plaintiff’s action.</p> <p>on the first ground, cited and commented on the Act of 1789,1 Brev. Dig. 103, P. L. 486; and on the second ground, 4 T. R. 247 ; 1 Strange, 691. A wrong assignment of a perjury will not protect the prosecutor — a bacl indictment will subject him to this action. Gilb. 185 ; 10 Mod. 148, 214.</p> <p>denied that under the act any indictment could be sustained, for in the clause creating the offences therein mentioned, this is not included. Where the indictment is defective in form, this action may be sustained, but not where it is defective in substance. Salk. 255; Willes, 520; and in such case express malice should be proved.</p>

<p>Lancaster, Fall Term, 1834.</p> <p>This was a rule on the sheriff, to shew cause why he should not be ordered to pay over the money collected on the execution in ibis case, to Abner Johnston, who claimed it as the assignee of the plaintiff. The payment to the assignee was resisted by Wm. E. Johnston, an execution creditor of the John Johnston, on the ground that his execution was lodged prior to the assignment, and was therefore entitled to money. On this execution John Johnston was arrested, and on his application for a discharge under the Prison Bounds ^-c4 not having returned in his schedule the execution against Shubert, Wm. E. Johnston filed a suggestion, under the Act of 1833, alledging fraud; and an appeal from the verdict in that case came before the Court at the same term, involving m some degree the question, whether the assignment was. bona fide and for a valuable consideration. The assignment of the judgement to Abner Johnston was before the money was collected on it.</p> <p>Mr. Justice Earle discharged the rule, on the ground that fraud was alledged in the assignment, and that question was still pending.</p> <p>The assignee, Abner Johnston, 'appealed, on the ground of error in this decision. ,</p> <p>cited Schroter v. Crawford, 1 Hill, 422; Mazyck & Bell v. Coil, 2 Bail. 101; S. C. 1 Hill, 311, .note.</p> <p>cited Richbourg «. West, 1 Hill, 309 ; Ma-zyck & Bel] v. Coil, lb. 311, note.</p>

<p>tiff^has sustained damages by a tiSío,SwiÜch is capable ofbeing tied to recover to the extent of the damage sustain* ed, altho’ there may be circumstances of extenuation on the pan of the trespasser : but where a party, by his own act, wantonly brings an injury onbim-solf, and the jury refused to indemnify him to the extent of his actual loss, the Court will not grant him a new trial.</p>

<p>oníís own'k:now lodge °any thing material to ti» sssuo, he should disclose it on the nial, aud be OTora as a wit-</p> <p>on acts fi°s"dfad closed in the jury lmd™ buTwhere the jury were in cnonquiíy being made as to the character of a witness, a juror S0 heard1 that ‘she was the kept piXnUfr,’0f the Court win not firaona fidJ ac-it°nía’ have'in*1 iiuenced the o-of'ti" jury¡°Sr the jury must in oii'lethefrCCown ^artTes and°their whnesse" 1011</p>

<p>Tried before Mr. Justice Richardson, at Sumter, Fall Term, 1834.</p> <p>Indebitatus Assumpsit. The declaration contained counts f°r morjey paid by mistake, on a failure of consideration, and on the guaranty of a promissory note.</p> <p>bi 1827, the plaintiff applied to the defendant to become his security to one Williams. The defendant declined doing so, but offered to lend the plaintiff a note for $66 on C. C. Dub°se’ which he represented to be good, and which would enable him to procure H. Breton to become his security. The plaintiff accordingly took this note and deposited it with Breton as counter security, who thereupon joined him in a note to for $145, which the plaintiff has since paid. In May, 1828, the plaintiff gave his own note to the defendant for the amount of the note on Dubose, and paid it, in December following. The note on Dubose became due on first January, 1828 ; Breton commenced suit on it in February or March after, and obtained judgement; but Dubose proved insolvent, and it could not be collected. Dubose was in credit in 1827, was probably insolvent in 1828, and his insolvency was finally established by sale of all his property in 1830, when the plaintiff’s execution was returned milla bona; and he brought this action and relied on these facts to sustain it.</p> <p>His Honor charged the jury that there had been no guaranty of the final solvency of Dubose, by the defendant: that this might be likened to the case of one passing in payment a bank bill where the bank had failed, in which case the receiver of the bill might recover the amount from him who passed it: and so, if Dubose was utterly insolvent on the 1st January, 1828, when his note became due, the plaintiff would be entitled to recover the amount he paid defendant for it, unless he had been guilty of laches in not demanding payment before February or March following, and giving notice of non-payment to the plaintiff, which, by analogy to mercantile rules, he was bound to have done immediately after the note became due, and failing to do which the defendant was discharged.</p> <p>The jury found for the defendant; and the plaintiff,now moves for a new trial, on the ground of error in the charge of the presiding judge.</p>

<p>The ordinary Tslculuf’to an administration biii\yf which tifo administrator) cun-od’^'mdor iío° ma °fat7ttte instance of the tion, or rity be'substitu-these courses wiu discharge those-clirredliabilities" but it will save injurjvand'enU-tie him to contri-subsequent coequally w liable vith him for the previous default tratoí admAnd the instance or ^ ^“adminis! trator ‘ before cOTratssetUed¡& othe'^secif rity, and deliver! bond to the first r<*t afterwards second security, “SeafeVeithi“a“ held, that the ISy nJw^e& lasY wa? charco? the ik5t-(a)</p>

<p>In an action a* gainst the sheriff for negligence in not levying an execution,theju-ry arc at liberty to givetheir verdict for the full amount of the execution, without regard to the valueofthedebt- or’s property; and the more 50, where the debt- or’s property was sufficient to pay the debt, and might, with duo diligence, have been taken.</p>

Chester, Fall Term, 1834. A motion was made before Mr. Justice Earle to set aside the service of the writ in this case, on the ground that the… Held: that as a term had intervened from the return of the writ, it was then too late to make the motion, and refused to grant it. The defendant appealed. submitted the case without argument. cited Lark u. Chappell 1 M’C. 566 ; Pylant v. Townsend, 2 Con. Rep. 158; Cruickshanks v. Frcan 3. M’C. 84: Felder ». Johnson, 1 Bail. 624.

Tried before Mr. Justice Evans, at York, Special Term, September, 1834. Trover for a negro, which the defendant, as sheriff of York, had levied on and sold, to satisfy a decree of the Court of Equity, in favor of Mary Miller, against the Executors of Harmon Alexander, deceased. The plaintiff claimed in right of his wife, the daughter of Harmon Alexander, to whom he was married in 1832.

!Tried before Mr. Justice Richardson, at Chesterfield, Fall Term, 1834. Trespass to try titles. The plaintiff attempted to make out the following chain of title : 1. A grant to James Norris: 2. The death of James before the act of 1791, abolishing the right of primogeniture, and that William Norris was his son andheir: 3.

<p>Before Mr. Justice Richardson, at Marion, Fall Term, 1834.</p> <p>Trespass to try titles. At Spring Terra, 1834, on the application of Charles B. Howard, the landlord, the following order was made in this case : “ On motion of Graham, attor. ney for defendant, ordered that the name of Charles B. Howard be substituted as defendant, in the place of H. Hinds and afterwards, in the same term, an order was made, requiring Howard to pay the costs of that term. Howard died shortly afterwards, and at this term, the counsel for the defendant contended that the case had abated by his death, and moved that it be stricken from the docket, ruled otherwise, and continued it. The presiding judge</p> <p>now renewed his motion before the Court, and cited Crosby v. Floyd, 2 Bailey, 106.</p> <p>cited M’Kie v. Garlington, 3 M’C. 276.</p>

Tried before Mr. Justice Gantt, at Barnwell, Fall Term, 1834. This was an action of covenant on a written agreement, the plaintiff’s intestate of the one part, and the defendants and one David Cave, since deceased, of the other part, by which the defendants and the deceased covenanted, in consideration that the plaintiff’s intestate would drain a certain pond, so as to make it fit for cultivation, that they would pay him a certain sum when the work was completed.

Before Mr. Justice Earle, at Barnwell, Fall Term, 1838. This was an action of debt against the defendant, as survivor of Redfield & Dunbar, a late mercantile firm, on a sealed note, executed by Redfield in his lifetime, to the plaintiff, for $411 20, with a credit of $200, 5th March, 1831.

<p>Tried before Mr. Justice Butler, at Laurens, Fall Term, 1834.</p> <p>This was an action of trespass guare clausum fregit for building a bridge on the plaintiff’s premises. The plaintiff owns a mill on the Enoree river, and the defendant has one nearly opposite on the other side. In 1831, the defendant erected a bridge across the river, a short distance below the plaintiff’s mill, the abutments of which rested on and covered part of her land. The plaintiff gave him permission by parol to build the bridge, with the understanding that it should be free for all the citizens to cross. The defendant, however, after building the bridge, exacted toll from all who crossed, except the plaintiff and customers to his mill. In 1833, the part of the bridge on the plaintiff'’s side of the river was washed off by a freshet. The defendant being about to re-build, the plaintiff objected, and refused her permission, on the ground, that her original license was given for a free bridge which would have been a benefit to herself and others, whereas a toll bridge was for the exclusive benefit of the defendant, who Prevented custom from crossing over to her mill by exacting tribute, and drew it to his own, by permitting persons going to his mill to cross from her side without paying toll. The defendant, in defiance of her opposition went on to re-build, and the plaintiff commenced this action. His Honor charged the jury that Pal'°l license was good whilst it continued, but that it was recoverable by the plaintiff; that she had revoked it, and hav-mg done so, the plaintiff was not justifiable in rebuilding, and was liable for such damages as under the circumstances the jury might think proper to give. The jury found a verdict for t^e plaintiff of two hundred-dollars, and the defendant now moved for a new trial on the grounds :</p> <p>1. That the defendant having erected a bridge under a parol license given by the plaintiff for a valuable consideration, acquired a right which could not be destroyed except by some act of the defendant amounting to an abandonment of his right.</p> <p>2. That the bridge having been originally erected by the plaintiff’s permission, the continuation of it by restoring the part destroyed was not a trespass ; or, if it constituted a cause of action, case and not trespass was the remedy.</p> <p>submitted the case without argument.</p>

<p>fwo i“stioes beingofthoquo* j^eomuutmenT hail a prisoner thoíaSon thore-turn of the wur-hensio°í t ?torse of p“s?mg- counterfeit money.</p> <p>two justices of whom'V’of tie ij“1“'u™;.sonsmarr rested «wmspif offences not haul forbidden to bS bailed br lho (aEdTofis)— Pa.?in? “““i01-an offence therein forbidden to be bailed; and if it were, to exclude one from bail under this stat., he must not only be charged •with felony, but on his examination there must appear a violent presumption of guilt ,* and whether this was the case, the justices are to judge.</p> <p>Objections to the validity of a recognizance come too late aftor it has been estreated.</p> <p>An order es-treating a recognizance omitting the Christian name of one of the cognizors, is sufficiently certain, especially when connected with the sci. fa. in which tlie names are fully set out, and to which no answer was filed.</p> <p>Where it is the usage of a Court to affix a wafer to its process as a seal, this will be suflicient to give validity to a fi.fa., until the usage is changed by order of the Court, adopting a different seal.</p> <p>When the original deed can be produced the grantor cannot prove the execution : but where the original deed Ims been destroyed, and the witnesses to it are dead, or without the ¿3tote,thegrantor will be a competent witness to prove the execu-</p>

<p>A gift of certain negroes was made to C. P., and the negroes delivered to her father Z.P., who at the time of delivery signed an acknowledgement in \v riling thatho held them for the use of his daughter,&if she should die with-outchildren,they wore to return to the sons of the donor; C.P.j the doaen, married, and her husband, on receiving her property, alto signed an an-kuowledgemneot that he held thu negroes on the terms of the writing sigood by 7~.P. C. P. died without issue. In an action by the son of the donor, to recover the negroes, it was held, that the paper signed by Z. P. was adiniaei-ble against Umone milaimning under C. P. or her lies-haim,1.</p> <p>Pemonal j3t~O party may bo ii-flhitC~oOer in any Way by wh~eli it call 1,e trallOlilit-led from ona permit to another ; and there-~,re, in a gift of personal properly,the donor may by writing not niidm' seal, 01 vorbally, create a limitation oval', cithor by way of trust, or as a direar gift.</p> <p>Although there it iso substantial legal dis-tiection in the construction of his words `dyin~ without issue,' so applied to real or personal estate; yet the Court is not so strictly bound ,lowii to an firti-~icia1 rule of eon-struetion in i)O1•-sonal, as in coal rstste, and in the ibriner, will lay hold of words ho lie up the gone-sshity of the cx-pressioli `dying without italic,' A ~onfino it to dy-isp wetlioutiwne Jiving at the death of the first taker, which would not have that effect in the</p> <p>Where negroes were delivered to a father “ for the use of his daughter C. P. and the heirs of her body ; but should the said C. P. die without children to heir the said negroes, then the said ne-groes are to return to llie sons” of the donor: Held, that this was uot a limitation over on a failure of issue generally, but of aparticularclaspj children of the fisrt taker capable oftaking;and therefore that the limitation was</p> <p>The term ‘ children’ is not equivalent to ‘issue;’ the latter extends thro’ the whole line of descendants, the former does not extend beyond grandchildren.</p>

<p>Union, Fall Term, 1884.</p> <p>In this case a verdict had been rendered for the plaintiff, On appeal, a new trial was ordered msu 1 he plamtm gave notice that he had complied with the condition, and proceeded to enter up judgement and issue execution. A short time before this term, the execution being still unsatisfied, the defend, ant gave notice to the clerk, that he would appeal from his taxation oí the costs, and move the Court to open and correct it; an^’ accordingly, at this term, he made a motion to this effect, on the grounds: 1. That the clerk had allowed costs for a witness who was not sworn on the trial: and 2. Because he allowed costs for special matter and argument on the motion for the new trial. Mr. Justice EaELE held, that the defendant should have attended on the taxation, to make his objections, especially in regard to witnesses, and having tailed to s0) the objection then came too late ; and refused the mo-tlOXl.</p>

<p>asJ“ssSent“oB”S iirmd^mder the Set of 1809,' the toUorüTécolrt and jury on a and if the defen-tend nndiwom" petoiit"evMonce the clerk* the def fendanteoitidnot judgement^ ^‘a-gainsthim,unless ]les¡louiai,eCOm. peiied to pay ucoiie ought,u¡ñ ^uidhereUevr on the ground of fl</p> <p>clerk may make Ms assess-ÓTthe note "S with the deciara-g™a rulo13or tMn of this court" ginai to bo filed ^Kigcmcntf"1"8</p>

<p>Before Mr. Justice Earle, at Chester, Fall Term, 1833.</p> <p>At September special Term, an order was made in this case requiring the plaintiff (who had removed from the State) to “give security for costs to the clerk of the Court on or before ^ third Monday in October next, or be nonsuited.” On the call of the case for trial the defendant moved for a nonsuit, because security had not been given to the clerk according to the order. Mr. M’Aliley, the counsel for the plaintiff, produced the record on which was endorsed an acknowledgement without date signed by him, that he was liable for the costs, and submitted affidavits to prove that this was done before the time ’™ited by the order had expired, and to sustain a motion then made on the part of the plaintiff, for leave to supply the date or to file the required security nunc pro tunc. His Honor held, that the endorsement of the security on the record was not a compliance with the terms of the order to give the security to the clerk, who was the proper officer to take the obligation and to approve of the security, and that any other mode would be inconvenient and productive of mischief. He therefore refused the motion to amend, and ordered a nonsuit, which the plaintiff now moves to set aside.</p> <p>In Fuman v. Harman, 2 M’C. 442, the security was required to be given to the clerk, and yet the Court held that the endorsement of the securityship on the record was a compliance with the order. The record is presumed to be in the custody of the clerk, and the legal presumption is that the security was taken by him. The entry being without date cannot be material: that was supplied by proof. But if the order has not been literally complied with, it has virtually, and according to the opinion expressed by the Court in M’Collum v. Massey &; M’Neil, 2 Bail. 608, the Court can order the security to be given nunc pro tunc.</p> <p>contended that the order was specific, and not having been complied with, the case was out of Court, and therefore it cannot be restored, for the Court possesses no further power over it. A judge cannot modify or repeal an order made by another judge at a previous term.</p>

<p>The first gen-inff th^accouut-tecs^is tint they shall not mako selves foutofthe trust estate ¡_ and thcmUtoSan Ca5 count for an the theyCSt actually «uve- imtasas-certaining the Ritercstreceivcd anaVottenfflim1,: praeticabi”, the to'diargitoem with interest on al’d'inthe'opera-tííeVundsreceiv° cdiiCthecurront year areconsid-Pred. as “PK0-</p> <p>eral rule that interest aha11 be„ com£>u' tecl on tlie annu-the provision of *reoün°fex^ors’ and mfmrs. to mms0™™cfr ooipts and ex-pendituves. The monies received to ho baian-cedauheond of each year 5 and tu™ becomes an “cc0°“ldh¡íljjlt¡1'|’ “erestilofcourse</p> <p>the foregoing fxecuíorSor a™ mmistrator cha'ged°with in^'“¿tonofthot]^ sale “bin from J-am/díio1 only hora Rio end of the cm-which ubecamo eme.</p> <p>andador or Si-jiiinistraioris li-bill, ami the teifMfrom '*ttíé charge, is on</p> <p>debts an estate paid ad’m” are not to be credited to him with the ¡"teiftorthe saló bid °feU due?— tion, tiie sale be rcgardea as furnishing t“p4 the debt”;' and his account with, ““aTJLadSitó thetime of pay-Erectile4 Se J'i11 "EiT was ínaPdoy after The due, “hen CS interest until</p> <p>‘“¿^docsbiot Sprescnuhóes-^fintcstateld-ministered, and “¿“faireston any funds of hands of his in-Jjs deatiiof the first hf’íTá'iíáTaT'hT-came a debt duo TkiciiTio “prel EJand or receive pay-bear’14 interest! Therefore:</p> <p>miuStratorTiied Jtate™ iuof ^¡° bauds, and ad-Egran“e”dWa-gain for three uEstatfofthc Eiiabtefor'in’ terest,during the waf unrepresented,</p>

<p>Before Mr. Justice Evans, at Charleston, May Term, 1834.</p> <p>Trespass vi et armis. The declaration states that on the 16th February, 1833, the plaintiff was seized and possessed of a house in Market street, in the city of Charleston, and that a fire was then burning and consuming some houses near the plaiutiff’s house, but there was no necessity of blowing up the plaintiff’s house; yet the City Council, wrongfully and negligently, with force and arms, caused the said house to be blown up with gunpowder. Plea, not guilty.</p> <p>An ordinance of the City Counci] concerning fires, was given in evidence, in which the following clause is found : “The supervising committee of fire masters, or, in their absence, any two fire masters who may be appointed for that purpose, or where no fire masters are at hand, the intendant, or one or more wardens, present at any fire, shall and may, and they are hereby authorized and empowered to give directions to the engineers or axemen appointed by this ordinance, to blow up or pull down any house or other buildings, as may be judged necessary to be blown up or pulled down by them, for the preventing the further spreading of the fire.” The plaintiffintroduced evidence, shewing that on the 16th February, 1833, a fire broke out in the plaintiff’s neighbourhood ; that several houses were blown up to prevent it from spreading ; and that afterwards, before the fire was entirely suppressed, the assistant engineers, with the powder of the city, and in a public manner, attempted to blow up the plaintiff’s house, which was shattered and ruined, but not demolished by the explosion ; that the fire was extinguished at the adjoining houses, without reaching the plaintiff’s; and that the order for blowing up the house was given by Mr. Pinckney, the intendant, and, in the opinion of some of the witnesses, was unnecessary.</p> <p>Upon the evidence adduced, his Honor ruled, “ that a corporation aggregate, such as that of a city, could not be sued as trespassers for acts done- by their agents,, under the authority the chy ordinance. The ordinance authorizes the fire masters, or the intendant, to do nothing except what is in conformity with the law of the land, viz : the blowing up or pull-^own any bouse, or other building, which may be necessary to be blown up or pulled down, for the preventing the further spreading of the fire. If the intendant did order a house to be blown up unnecessarily, he did not do- so by the command or authority of the City Council, and the City Coun. Can’ therefore, he no more liable than if the intendant had any other unauthorized act. It is conceded that if t^e C0rP01'af-i°n authorize an agent to do an act lawful in itself, but the agent, in the performance, do it unskilfully or whereby au injury occurs to another, the corporation would be answerable for the negligence in an action on the case; but all the English authorities seem to be clear, that a corPorati°n cannot be sued for a trespass merely; (8 East, 230,) though the doctrine seems to be supported by some authorities, that a private money corporation may be sued in trespass. 2 Kent’s Com.; — 2 East, 284. But these cases seem to be where the agent acted directly under the authority of the corporation.” He therefore ordered a nonsuit, which the plaintiff now moved to set aside, on the following grounds :</p> <p>1. That the rule which makes a party liable for a tort com. mitted by his command, extends as well to a corporation as to a natural person.</p> <p>2. That by the provisions of the ordinances, the city invests the intendant and other officers with authority, in time of fire, to destroy property for the benefit of the city; that although the ordinance cannot alter the law of the land so as to justify the act of the individual in destroying property without necessity, it is a sufficient authority to make the corporate body liable to the party whose property is destroyed by the command of the intendant in time of fire without necessity.</p> <p>cited and commented on the following authorities: King v. Bank of England, Doug. 524; Yarborough v. Bank of England, 16 East, 6; 3 Black. 273 ; Petersdorf, Corporation, G. 4, a; Bro. Ab. tit. Corp.; Desprang v. Davis, 3 M’C. 16; Ang. Corp. 220; Chesnut Hill Company v. -; 4 Serg. & Rawle, 6; Bush v. Steinman, 1 Bos. & Pul. 404 ; Stone v. Cartwright, 6 T. R. 411'; 4 Inst. 114; Burdett v. Abbot, 14 East, 1; Moise’s case, 12 Co. 63; Dyer, 36.</p> <p>cited Kyd on Corp. — 1 Dallas, 263 ; 3 Peters, 409.</p>

<p>Tried before Mr, Justice Martin, at Charleston, Spring Term, 1833.</p> <p>Assumpsit for inoney paid by mistake: — A promissory note, for fifteen hundred dollars, drawn by Matthew Howell, and indorsed by Arthur Howell, Thomas W. Howell, and Halls Kirkpatrick & Co. in the order in which they are mentioned, dated 12th May, 1823, and payable at sixty days, was discounted at the Branch Bank in Columbia. Being unpaid at maturity, it was placed in the hands of a notary of the Bank, for collection. The notary, understanding that the maker and the two first indorsers resided in the neighbourhood of Columbia, left a written demand of payment from the maker, and notices of non-payment, addressed to the two first indorsers, in the post-office in Columbia, and served William Hall, one of the plaintiffs, with notice that the note was then due and unpaid, and demanding payment. 1 he note being protested for non-payment, was paid and taken up by the plaintiffs, who immediately commenced suits against the maker and the two previous indorsers. They obtained judgement against the maker, but he proved to be insolvent. In the actions against the indorsers, the plaintiffs were nonsuited, on the ground that a proper demand had not been made on the maker, and, on appeal, the judgement of nonsuit was affirmed.* They then instituted this action against the Bank, for the money paid by them on account of the note, on the ground that it was paid under a mistake as to their liability.</p> <p>The presiding judge charged the jury that the Bank was bound to show that due notice of non-payment by the maker of the note under protest, was given. The jury found for the plaintiffs, and the defendant appealed, on the ground of error in the charge of the presiding judge.</p>

<p>On tlie con-» struction given to the Stat. 5, Geo.2,c.7,(P.L. 250) lands and personal chattels are equally liable for the payment of debts» and are assets in the hands of the personal representatives of the debtor; and if the lands have not been partitioned, and arc not in the actual exclusive possession of the heirs» they are liable to execution on a judgement against the ex’or. or ad’mr., on the ground that ho has or ought to have the legal possession: but after partition, the heirs are then rightfully in possession, and if they or eithor of them, bona fide aliene, after partition, the title of the alienee cannot be affected by a judgement subsequently recovered against the ex’or. or ad’mr; and a sale of the land so aliened on such judgment would bo void.</p>

Before the Recorder, in the City Court of Charleston, November Term, 1834. Assumpsit for dumber sold to the defendants: — The Recorder granted a nonsuit, which the plaintiff now moved to set as^e. The question made, and the facts connected with it, appear in the following opinion of the Court.

Before Mr. Justice Evans, at Charleston, Fall Term, 1834. This was an action on the case, under the act of the legislature, (P. L. 495,) to charge the defendant for a liability of the late Dr. Ramsay, on the ground that, as his executor, he had not made annual returns to the ordinary. The presiding judge sustained a plea in abatement, for variance between the writ and declaration, and the plaintiff appealed, and moved to reverse this decision.

<p>Tried before Mr. Justice Richardson, at Charleston, January Term, 1835.</p> <p>Detinue for a negro woman named Tenah and her children. Plea non detinet. The plaintiff gave in evidence a bill of sale for Tenah and her increase, from one John Walker to Timo-, thy W. Johnson, dated 20th December, 1828, attached to which was the following assignment:</p> <p>“ Charleston, May 10, 1832.</p> <p>This is to certify that I hereby assign all my right, title and interest, in the annexed bill of sale, to Edward Southworth, as collateral security for a note given him this day for $500, payable on the 1st January, 1833. On the payment of this note, this writing to be null and void.</p> <p>(Signed) Timothy W. Johnson.”</p> <p>The negroes were not delivered to the plaintiff at the time of executing this assignment, but remained in Johnson’s possession. Timothy Johnson being indebted to the defendant Sebring, in January, 1833, confessed judgement to him for $3,000, and in February, 1834, sold the negroes in question to him, in part payment of this judgement, and delivered them into his possession, where they have remained ever since. No bill of sale or other writing passed at the time, and it appeared that the defendant was then not aware of the assignment to the plaintiff, and that the purchase then made was bona fide and for a valuable consideration.</p> <p>His Honor charged the jury that the assignment' to the plaintiff could not be regarded as either a mortgage or a bill of sale, but as merely transferring the paper containing the original bill of sale: and if the assignment should be regarded as a pledge of the property, delivery was essential, and without which it'would be void. The jury, however, found for the plaintiff, and the defendant appealed, and now moved for a new trial, on the grounds :</p> <p>1. That the assignment to the plaintiff was not a transfer of the right of property.</p> <p>2. That if the assignment be regarded.as a pledge, it is void for want of delivery of the property.</p> <p>argued that the assignment attach. ed to the bill of sale, was a pledge of the property, and that delivery was essential. 1 Pow. Mortg. 203 ; Story on Bail. ^ . g Rep. 435 . 15 Jb< 43 . 12 Jb. 300 ; 2 T R 466 . j Atk> 106 . 5 John. Rep. 261. jq John. Rep. 486 ; 12 lb. 146 ; 1 (Jain’s Ca. 200.</p> <p>contended that the assignment must ope. rate either as a mortgage or a bill of sale: if the first, it is sufficient to sustain the action; after condition broken the right of property vests in the plaintiff. This is precisely the same as if Johnson had executed a new bill of sale, with the condition in it; and to'suppose that the parties intended merely to transfer the paper on which the bill of sale was written, would be to regard them as doing a futile act. As for the want of actual delivery, the execution and delivery of the assignment is equi. valent to it. And he cited 5 John. Rep. 258 ; Buller N. P. 258; Pow. on Mortg. 35, 36, 42, 43; Esp. N. P. 140-1; Story on Bail. 197.</p>

Before Mr. Justice Bay, Charleston, October, 1834. Debt on bond. Held: that the action was properly brought in the name of the South Carolina Insurance Company. 2.

<p>Where a negro has been at large and acting as a freeman for more than twenty years, a deed of manumission under the act of 1800, may be presumed.</p> <p>Possession of personal property for four years will raise the presumption of title, and where one purchased property forano-ther which went into the hands of the latter and there remained, after a lapse of twelve years it willbe presumed that the person who made the purchase was paid by him for whom it was</p> <p>The title of an ad’mr. has relation bade to the death of his intestate ; and a conversion after the death and before administration, will enure to the bene*» fit of the atVmr. and’ enable him to maintain tro-</p> <p>WhereP. acted as the general agent of It. and lodged a negro in the workhouse as the property of R., where the negro remained for some time without a disclaimer of the act by R., it was held, that this was sufficient evidence of a conversion by R.</p> <p>damages for the ofsuffid™t°n,It iS To sustain tro-ver it must be shewn that the chattel sued for is of some value; but this need not bedoue by asking1 a witness the value; if tho thing sued for is generally of some value, and is so described as to enable tho</p>

Before Mr. Justice Bay, at Charleston, January, 1835. Foreign attachments. The defendant is the sole surviving partner of the firm of Gable, Cowell & Schepler, late merchants of Bremen; and the debts of the attaching creditors are the private debts of Schepler. The garnishees returned that they had funds in their hands belonging to the absent defendant, as surviving partner of the said firm.

<p>na^r|)c1!')ei*°tc" the negroes ¡o enjoyed them af-[“te‘fell'hi and 1!>° plaintiff’s and’1 a Sami .afVsr,'ia1rd® this<\Vas<! suffi-[rflfconvcrsiorr the demand ovfdencenot^on-]?0®f ahca<m™'¡: from the’ time plaintiff’s sion commonc-piimil wa[[n° titlccI to hire by from ° the'Eh jij*0 tenant for</p> <p>Special ver. t/mtimeo/ími? version, a venire {““ded “ geño-rally.</p>

<p>«nent,<wáslcon-fessed ou a tie-duo bi¡¡,co™td amTthe execul ‘ion directed m-mount of tho d“1'¡oc¡ícd1. to7¡eb| that the direc-cuUooastotoin-that the judge-terest bearing ’onuTo¡ gb“,'”nsdit.eojj“ was improper partyVobj°ctiiig! The clerk and" ^“““eLcuUon^ Whether”s “"the ofiat<¡reJt°a</p>

The plaintiffs being citizens of Indiana, brought their action against the defendant in the State of Kentucky, and obtained a judgement .in April 1820, on which they issued a capias ad satisfaciendum. The defendant was arrested on the ca. sa. and discharged under the insolvent law of that State.

<p>Tried before Mr. Justice O'Neall (sitting for Gantt, J.) at Newberry, Spring Term, 1835.</p> <p>Indictment for a rape on a child under the age of ten years. Verdict guilty, from which the prisoner appealed and moves for a new trial. The child died before the trial, and her deposition was offered in evidence against the prisoner. The presiding judge being under the impression that the deposition was taken on the examination of the prisoner, and in conformity to the Statute, 23 Philip & Mary, no objection being made that it was not, received it in evidence: whereas, it aPPeared that it was made on applying for the warrant against the prisoner, and in his absence. The only question consid. ered by this Court, was, whether under these circumstances, tjle (jep0g¡t¡0n was admissible.</p> <p>contended, that before the deposition could be received, it must be shown that it was taken in the presence of the prisoner, who is allowed the right to cross examine : cited, Stat. 23, Phil. & Mary, P. L. 59 ; 2 Starkie Ev. 485-6-7.</p> <p>cited, 2 Starkie Ev. 485, 493, Leach 512 ; 2 Leach 996 ; 1 East. PI. Or. 440; 5 T. R. 373.</p>

<p>Tried before Mr. Justice Butler, at Union, Spring 'Term, 1835.</p> <p>The defendant was indicted and convicted of perjury. The indictment charged that the oath on which the perjury was assigned, was taken on the Holy Gospels of God ; the magis-irate who administered it, proved that it was made with an up. lifted hand; and the question made, and the only one considered by this Gourt, was whether the variance between the indictment and evidence was fatal. The presiding judge held, that the oath charged and that proved were in effect the same; and the defendant now moved for a new trial, on the ground of error in this decision.</p> <p>cited 2 Chitty Cr. L. 109; Peake’s Ca. 155; Gro. Car. 575.</p> <p>cited 12 Yiner Ab. 244.</p>

Abbeville. The ln'*S0Tle1' was indicted and convicted for murder, at Fall Term, 1834, and sentence of death passed on him. Be-f°re die day of execution arrived the sheriff died, and there was, on the day appointed, no sheriff to execute the sentence. At Spring Term, 1835, the solicitor moved the Court, (Mr. Justice Gantt presiding,) to assign another day for execution.

Tried before Mr. Justice Evans, at Barnwell, Spring Term-1835. Indictment for larceny. On the trial, two of the principal witnesses for the prosecution were objected to as incompetent, on the ground that they were persons or color. An issue was mac^e UP an^ this question submitted to the jury.

Tried before Mr. Justice Evans, at Colleton, Spring Term, 1835. The defendant was indicted under the act of 1819, for not employing and keeping on his plantation called Social Hall, a white man capable of performing patrol'duty, for the years and 1831.

Tried before Mr. Justice Butler, at Chester, Spring Term, 1835. The prisoner was indicted and convicted for the murder of John Rodman. He appealed and moved for a new trial on seven grounds, which, however, resolve themselves into the questions : — 1. Whether the depositions of the deceased Rod-man were admissible m evidence. 2. Whether under the circumstances, the case was one of murder or' manslaughter. - - 3.

Before Mr. Justice Gantt, at Anderson, Spring Term, 1835. Sum. pro. on note, The defence was that the note was given in satisfaction of an assault and battery, and the consideration was therefore illegal. His Honor overruled the defence, and decreed for the plaintiff, and the defendant appealed.

<p>Before Mr. Justice Butler, at Laurens, Fall Term, 1834.</p>

Tried before Mr. Justice Butter, at ’Fairfield, Spring Term, 1835, The defendant was indicted under the act of 1817, for trading with a slave. The prosecution was not commenced until six months after the offence, and the question submitted to the Court, was whether it was barred by the statute of limitations, His Honor held that it was not barred, so far as regards the imprisonment imposed by the act.

<p>Before Mr. Justice Gantt, at Anderson, March Term, 1835.</p>

<p>TUawrit of** at%:feiida™to ““foty that part the state thoh°Coitrt — tiie sureties being iialeftírigiató orderUdthat the defendant* shall aWdeS°by’tyand perform tiiodo. tut0e’fo/tiiUebSncto amt — and an t£eU defendant* but in no case been granted for</p> <p>the terms iso8u°i author*” ityo’f the'comí missioner in cd to granting radioes*1 not extend to the wMchissubstftu1 foro01at;bond1Tñ pursuance of an oomm’rbtLt tile defendant shall tfíe astate'viand decree of tile Court of Equity, isvoid-</p>

Before Mr. Justice Butler, at Chester, Spring Term, 1835. This was an action on the case to recover damages for an injury to the plaintiffs’ mill, by obstructing the water course on which it was erected — The plaintiffs and defendant erected mills about a half mile distant from each other, (defendant’s below the plaintiffs’) on Rocky Creek.

Tried before Mr. Justice Butler, at Union, Spring Term, 1835. Action on the case for obstructing a private way. — The plaintiff lived about two miles from the market road leading, from Union Court House to Columbia, known as the Green Pond road, and on a road which led into it, and in which he claimed a right of way to the main road. The defendant made a fence across the road leading from the plaintiff’s to the Green Pond road, which is the injury complained of.

Laurens, Spring Term, 1834. Mr. Justice Eakle, before whom the case was tried, made the following report: “ The plaintiff, as high sheriff… Held: that the act of Murrell, in accepting the bond from Barksdale, and an assignment by him, was no waiver of his right. 'But there was no proof that the plaintiff ever saw the bail bond; he was not aware of its defects ; and if he has affirmed the act of the defendant, in ignorance of his rights and of the insufficiency of the bail…

<p>nn^unnegotiabie muís not liable menthtoTho°rinI Corsee (or os-mouTáw and°by merchants”* no íais are ’nego-tiabie unless mMítáre^'aiui neither the stat-oil Actanrea jj^aft^of tlíe indorser, as rc-f"0rs*cuu”ite¡f“tia'</p> <p>The ,vhere°tiíc’ vcí-diet is genera}, and one of the JudgOTent^wiii not be arrested, ,®u¿?estaofjud°g. mont>t|le court cretion, order n tlia1,</p>

Fairfield, Fall Term, 1834. The presiding judge made the following report: Eaele, J. Assumpsit on two notes of hand, given for the price of a tract of land sold by the plaintiff to the defendant.

Before Mr. Justice Butler, at Spartanburgh, Spring Term, 1834. Debt on Prison bounds bond. Held: the plaintiff’s sur-rejoinder good on die first plea, and overruled the defendant’s demurrer to it; he sustained the plaintiff’s demurrers to the second and third pl°as > and overruled the defendant’s demurrer to the plaintiff’s replication, on the fourth plea. ‘ , hrom this decision the defondant appealed, and now moved reverse It.

Before Mr. Justice Butler, at Pickens, Fall Term, 1834. This was an action for malicious prosecution. The defendant had indicted the plaintiff for cow stealing. The grand jul7 found a true bill, and the plaintiff was regularly put on trial and acquitted. .%. , , _ . .

<p>Tried before Mr. Justice Gantt, at Newberry, Spring Term, 1835.</p> <p>Sum. pro. on a pedlar’s account. The plaintiffs had employed one Benedict to peddle their goods ;*ánd while thus engaged, he made his original entries in a small memorandum book,for the most part in pencil, which he carried in his pocket. The presiding judge rejected this book as evidence on proof of Benedict’s hand-writing, who was then out of the State, and ordered a non-suit, which the plaintiff’s now moved to set aside.</p>

<p>triíTof™ ™ho° nerfor a capital couidCnot*a«rce on a verdict*3bo-SgUt^f'dieiast day ortho Term, not entitled to but mustCbe'fc’ manded for fu-cordin™to 'thé organization of GeneraiUrtSSes-f dffivfr’ent'in'üiis respect from ofaEngland°Uthe time fixed ’ by skin oTthe Court having expired, od; andtbcTury greed'on'^ver-diet before that tStennpiaoe! and the prisoner had pardy°of nnfe?°"</p>

Chesterfield, Spring Term, 1835. The presiding judge made the following report: Earle, J. Indictment for opening a letter.