Volume 21 — South Carolina Law Reports

Before Earle, J. at Edgefield, Fall Term, 1835. His Honor, the presiding Judge, made the following report of the case : “ The defendant was indicted for negro stealing. The charge was contained in a single count, which set forth that the defendant, on the — day of February, 1834, feloniously stole, &c., three negro slaves/named Alick, Kitty and Rhene, the property of David Payne, the prosecutor.

<p>Before Buteer, . J. at Marion, Fall Term, 1835.</p> <p>The presiding Judge made the following report:</p> <p>“ This was a sei.fa. to revive a judgment recovered on a sum. pro. Pleas, •ml tiel record, and payment. The question involved in this case, is of some importance to the suitors and people of Marion. The Clerk of Marion has not, until within the last year, entered on the minutes of the court any specific sum, for which judgment was recovered in the sum. pro. jurisdiction ; and as there is no regular judgment entered up by the attorney in such cases, of consequence there is no judgment to authorize an execution. The entry of the clerk is a transcript from the docket, and in the words of the Judge who ordered the judgment. This, according to the case of McCall vs. Boatwright, 2 Hill, 439, is no judgment. Many titles íq lands and other rights depend on a judgment in sum. pro., and might be defeated for the want of such judgment. In the case under consideration, the original writ in sum. pro., the entry by the Judge, decree by default, and the execution, were produced, but no judgment; it was objected to the revival of the execution, that there was no judgment to authorize its being originally issued. I suggested that as there were many cases in the same situation, that the counsel for the plaintiff should make a motion to amend, so that a judgment might be entered up, as it should have been at the time it was ordered. I sustained the motion thus made. •Where judicial proceedings are imperfect, the court to which they belong will amend thepi, as long as there is any thing to amend by. In this case there is enough to amend b)'. There is the original process, the writ upon which it was issued, and the Judge’s order, authorizing the clerk to enter up judgment. Upon these data, judgment can be as well entered up now, as it ever could,”</p> <p>The defendant appealed from the order of the presiding Judge.</p>

<p>After exceptions have been filed to the.schedule of aa insolvent debtor, and he has been put on his trial, the plaintiff has no right to object that legal notice has not been given that the defendant would apply for his discharge.</p> <p>Where, on the trial of an insolvent debtor,’ under the Act of 1833, the jury could not -agree, and were discharged, the Commissioner of Special Bail may impannel another jury to try the case.</p> <p>The words “ neighboring freeholders,” (in the Act of 1833,) of which the jury must consist, may properly be construed to mean freeholders of the district. But be this as it may, the Commissioner of Special Bail has the right to select the names from which the jury is drawn.</p> <p>Where a juror had been sworn, but heard no testimony, and the case was-.adjourned to another day, on which the juror did not attend, the Commissioner of Special Bail may call and swear another.</p> <p>And the Commissioner of Special Bail may also excuse a juror from serving, on the ground that he had previously lieard the case and formed an opinion, and substitute another.</p> <p>This Court will not interfere with the discretion of the Commissioner of-Special Bail, in regard to the notice and time of trial.</p> <p>The verdict of a jury impannelled to try an issue on a debtor’s schedule, in these words: “We find for the defendant, pot guilty,” is subsfantially a fincj-, ing that the schedule is true.</p> <p>The defendant, being in the custody of the Sheriff of Union district, by virtue of a ca. sa., at the suit of the plaintiff, rendered a schedule of his estate, and petitioned a Commissioner of Special Bail for his discharge. The plaintiff filed exceptions to the schedule, and the Commissioner of Special Bail summoned and impannelled a jury, according to the provisions of the Act of 1833, to whom the case was submitted. The jury not being able to agree were discharged, and subsequently another jury was impannelled, and returned the following verdict: “We find for the defendant, R. Sims, not guilty.” On which, the defendant was ordered to be discharged.</p> <p>The plaintiff appeals from the verdict of the jury, and the order of discharge, on several grounds, which, with the facts on which they are predicated, are set forth in the following opinion of the Appeal Court.</p>

Before Earle, J. at Marion, Spring Term, 1835. The following is the report of the presiding Judge : Assumpsit against an attorney for negligence and misconduct. The plaintiff having demands, by notes; &c.; to the amount of #366, on one A. Marvin, who resided in Georgetown, placed them in the hands of the defendant, who lives in Marion, for collection, as an attorney.

Before Mr. Justice Butler, at Sumter, Fall Term, 1835. Action on the case for breach of warranty, in the sale of a negro. To Jirove his case, the plaintiff offered the depositions, by commission, of a wit* ness resident in another State, which were objected to, on the ground that there had been no personal service of the interrogatories on the defendant himself, but only on his attorney, who required, at the time, the service to be made on his client.

<p>Money in the hands of the Ordinary, arising from the sale of real .estate for partition, is not the subject of attachment. The Court of Ordinary, having possession of the fund, has the exclusive right to dispose of it.</p> <p>The Court may, in its discretion, - permit a garnishee to amend his return.</p>

Before Earle, J., at Charleston, May Term, 1835. Assumpsit on open account, for medical attendance. Pleas, statute of limitations, and general issue. The declaration contained counts, 1st, for services as a physician, surgeon and apothecary, for medicines, &c.; 2nd, quantum meruit; 3d, inJ serml conyputassent.

<p>Motion for prohibition, before Mr. Justice Bay, at Chambers, 28th February, 1835.</p>

<p>A.n agent must so disclose his principal at the time of the contract, as to entibie the opposite party to have recouise to the principal, in case the agent had authority to bind him; but it is not necessary that the agent should name every one of a class or company of his principals, who are usually designated by some brief descriptive term; such a designation as “the owners of the Brig Encomium” would be sufficient to exonerate the agent, at least until he is called on for a more precise specification, and refuses to give it.</p> <p>Defendant, as agent of the Brig Encomium, contracted with plaintiff to transport a number of slaves from Charleston to New Orleans, received $100 and signed his name to a receipt therefor, “for the owners.” The vessel was wrecked on her passage, and the slaves never reached their destination, or were returned to the plaintiff. On action brought against the defendant to recover back the $100, and which, on demand being made of him for payment, he said he had paid over to his principals, it was held that he was not liable.</p> <p>Where the failure of the voyage is owing to the fault of the captain of the vessel, the owners are not entitled to an apport’onment of freight or passage money, pro rata ilineris. Ob. die.</p>

<p>Before Earle, J. at Charleston, June, 1835.</p> <p>Trover for iyv° negroes, Die and Tom. The negroes once belonged to David Sealy, the former husband of the plaintiff, Mrs. Fogartie, and duping covert,ure, (in 1827,) he conveyed them, by deed, to J. M. Lowry, in trust for the sole and separate use of E. A. Sealy, now Mrs. Fogartie, and after her decease, to the children of their marriage, if any, and if tioile, to the said E. A. Sevly and her heirs, not subject to the debts of her present or any future husband. Seaiy was indebted to the defendant by note, and he brought suit thereon against the present plaintiffs, since their intermarriage, and obtained judgment against them as executors de son tort, on which execution issued de bonis testatoris, vel si non, de bonis propriis. On this execution, the negroes were sold, and the defendant purchased them.</p> <p>The jury found a verdict for the plaintiffs : and the defendant moves for a new trial, on the following grounds :</p> <p>Because his Honor instructed the jury that the judgment and execution against husband and wife, for a debt or default of the wife, dum sola,did not authorize the sale of the negroes conveyed by the deed of 1827, to the- sole and repárate use of the wife: Whereas, it is respectfully submitted— ■ ■ '</p> <p>First. — That the bona Jides of the deed of 1827, should have been left to the jury.</p> <p>Secondly. — That the judgment and execution authorized the sale of the negroes in question, as the property of E. A. Fogartie.</p> <p>Thirdly. — That the plaintiffs, by the form of their action, were preclude ed from saying that the negroes in question were not the property of Fogartie and wife, and the Court should have instructed the jury that the’ plaintiffs were not entitled to recover. On which grounds, defendant insists, that the verdict should be set aside, and the plaintiffs non-suited; or else that a new trial should be granted.</p> <p>The presiding Judge thus reports his views of the law :</p> <p>“On the general and well settled principles of the law of Baron and1 Feme, I was of opinion that the separate property of the wife, secured to her by deed, could not be sold under execution, against husband and wife,' upon a judgment against both, during the coverture, although for a debt or default of the wife before marriage. That was the only question seri j ously made or argued. By the marriage, the husband acquires an absolute interest in the personal estate of the wife, and the rents and profits of her lands. Whatever she acquires during coverture, by gift or bequest, by labor or otherwise, is his. The law thus transferring to him the fund to which creditors looked for the payment of their debts, also thakes him liable for them. And he is thus liable, whether he obtains a portion with her or not. In consequence of his thus becoming liable, she is discharged, during the overture. He is answerable -for all actions for which his wife stood attached, and for all debts or defaults for which she was liable at the time of the coverture. As this liability of the husband arises from the' coverture, it subsists only during the coverture; and although the wife must be joined, yet they are not sued as two persons jointly and severally liable, but as one person in law. They ' must plead jointly, and will not be allowed to sever in pleading. But a judgment thus recovered against both as one person, in law, can only be enforced upon the property of the husband. It would be a total departure from the principle which regards the legal existence of the wife as extinct, or rather as merged in that of the husband, if her separate estate were held liable for a debt, from which, by the act of coverture, she is absolved and discharged, during its continuance. She is sued only for conformity, and on the ground of the’ legal union which is supposed to exist. A technical rule of pleading, not sustained, perhaps, by any good reason; but the husband only is liable in person onpioperty. I apprehend if the debt were not, actually levied during the coverture, and the husband should die, the execution might in that case go against the wife. But during the coverture; both in life, I held, and so charged the jury, that the property of the Wife, separate and sole, was not liable to be taken in execution. And on that ground the plaintiffs were entitled to recover. Bac. Abr. Bar. and Feme. Sid. 337 ; Cro. Car. 208; Carth. 30; Cro. Car. 603. But on another ground, the plaintiffs are entitled to recover; at least the negro was hot liable to be' sold under the execution. The conveyance is “ to James M. Lowry, in trust, for the sole and separate use of Eliza A. Sealy, (now Mrs. Fogartie,) not subject to the debts of her present or any future husband ” — ■' without regarding the further limitations over — “ and after her decease, to the children of D. Sealy, (the donor,-) and E. A. Sealy, if any,” &c.— It is clear that the legal estate is in the trustee. The property is his for the uses declared; and.therefore could not be sold for the debts of Fogartie and wife.- This view might lead to a discussion of the form of action, and whether the cestuigue trust can maintain the action in his own name, which I shall avoid here, reriiarking only, that being in possession, with the permission of the trustee, the cestuigue trust may maintain the action against a wrong doer. As to the circumstances under which the deed was executed, there was no proof on either side. The bona Jides of the deed was not made á serious question even in argument, and there was no ground to submit it specially to the jury. A verdict was rendered for the plaintiff. The defendant appeals, on the grounds above stated.”P</p>

<p>P. being indebted to the plaintiff, on a book account for,merchandize, and the account being presented for payment, the defendant came to the plaintiff, produced the account and assumed to pay it, in consideration that P. should be discharged from the debt; tfie account was accordingly credited in full, and the amount charged to defendant by his own direction •.■held that the debt of P. was discharged, and being a detriment to the plaintiff, was a sufficient consideration for the promise of defendant, which was an original, and not a collateral undertaking within the statute of frauds, and need not therefore be in writing.</p>

<p>Before Evans, J., at Coosawhatchie, Spring Term, 1835.</p> <p>Assumpsit on a special agreement.</p> <p>John H. Jenkins, the son-in-law of the defendant, was indebted to the plaintiff one hundred dollars, by note, dated 3d February, 1824. On the 28th Aug., 182S, on the note’s being presented to him, defendant, said if it was sued, the plaintiff would probably lose the debt, but if it was indulged on, he would settle or pay it. In consequence of this, the plaintiff forbore to sue Jenkins. On the back of the note, when presented, the defendant wrote as follows : “Indorsed by Charles Givens — due 1st January, 1829. Beaufort, 20th Aug., 1S28. • Charles Givens.” The case was also taken out of the statute of limitations, by proof of a promise of defendant in 1831.</p> <p>moved for a non-suit, on the grounds:—</p> <p>1st. That the consideration of the undertaking by Givens, being to pay the debt of a third person, should be in writing : and</p> <p>2nd. That the testimony did not prove any sufficient consideration for the promise.</p> <p>The presiding judge granted the motion, and the plaintiff appealed, and now moves to set aside the non-suit, on the grounds :</p> <p>1. Because if the promise to pay is in writing, the consideration need not be expressed, but may be proved by oral testimony.</p> <p>2. Because the evidence did prove a sufficient consideration for Givens’s undertaking, and the plaintiff ought to have been suffered to go to the jury.</p> <p>The presiding judge thus reports his views of the law :</p> <p>“The question arising on this case, is whether this is a promise binding on the defendant, under the 4th section of the statute of frauds; which requires that every agreement to pay the debt of another, should be in' writing, signed by the party to be charged. In Wain v. Walters, 5 Bast; 10, it was decided that the requisition of the statute was riot complied with; unless both the promise to pay and the consideration of the promise were in writing. This decision, at the time, was not entirely satisfactory to the profession. Its correctness was denied by the Chancellor, Lord Eldon, but it has since received the sanction of all the law courts in England.</p> <p>“The case of Stevens, Ramsay Go. vs. Winn, was decided on the authority of Wain vs. Walters, and such has been the current of decisions ever since, although in Lecat vs. Taval, 3 M’C. 158, the principle of these cases is discussed, and an opinion intimated, that by refining too much; the true import of the statute had been mistaken.</p> <p>“My great respect for the judge who intimated this opinion, led me into a more thorough examination of the principles of these cases; than I had heretofore made. The result of which has been a full conviction, that the admission .of parol evidence, to prove the consideration, would correct only half the evil which the statute intended to correct. The agreement is composed of the thing to be done, and the consideration which induces the undertaking. It is no valid contract if either of these be wanting. Both must be proved; And it will hardly be supposed .that a statute, the manifest object of which was to exclude the uncertainty of parol evidence, should defeat half its end, by requiring only a part of the agreement or contract to be in writing, leaving the other part open to all thé uncertainty of human memory, and all the dangers of frauds and perjuries, which the statute intended to prevent.</p> <p>“On the hearing of this case, I non-suited the plaintiff, relying on the authority of Wain vs. Walters, and Stevens, Ramsay Sf Go: vs. Winn. It was enough for me to know, that such had been the decision of our highest court.</p> <p>“The best discussion on the subject of the foregoing casé, that I have any where seen, will be found in Long on'Sales, 28 — 36, where all the cases are collected and discussed.”</p>

<p>Before the City Court of Charleston, April Term, 1835.</p> <p>This was a suit for foul- penalties, each of twenty dollars, for hiring out negroes within the city, without the necessary badges, and contrary to the Ordinance, City Laws, ÍS5. The jury found a verdict for the plaintiffs, and the defendant appealed.</p>

Tried before his Honor Judge Bay, Charleston, October Term, 1835. Indictment for selling spirituous liquors to a slave without a ticket from the master or owner. Judge's Report of testimony. — Mr. J. A. Miller, City- Marshal, sworn.

Grounds of Appeal. In arrest of judgment. — 1. Because neither the name of the slave, nor of his owner, is given in either indictment. 2. Because even if the rule of law, relative to persons whose names are unknown, be applicable to a case of delivering liquor to a slave, the de» scription in the present indictments, to wit, a slave of a person and name unknown,” is an insufficient compliance with that rule. 3.

<p>Where the verdict does not conform to the indictment, the judgment will be arrested.</p>

Tried at Beaufort, Spring Term, 1836, before Mr. Justice Earle, who made the following report: This was an issue devisavit vel non, on an appeal from the Ordinary of Beaufort district, who had admitted to probate a paper purporting to be ,tbe will of William T. Kirkland. It was dated 17th August, 1815 — and .was attested by three witnesses, Elizabeth B. Griffith, Thos. J. Griffith and William Deloach. The two last were dead, and their hand writing was proved.

In City Court, January, 1836. In this case process was issued against defendant for selling liquor to a slave “ whose name and owner are unknown.” The testimony was that the name of the slave, as well as the name of the owner, were both known to the prosecutor and city attorney.

Tried, Charleston, May Term, 1835, before Mr. Justice Evans, who made the following report. “ In this case, the note was lodged in the branch bank at Camden, for ■collection. The note was drawn by Joseph Goodman, payable'to Black, and indorsed by him and William Thompson, dated at Camden, 24th February, 1829, for $170 42-100. The note was lodged in bank by'Shannon, who had received it from Flemming & Ross.

Before Richardson, J., at Coosawhatchie, Fall Term, 1835. The presiding judge made the following report: “This was an action of slander, for words charging the plaintiff with peijury. The declaration contained several counts, in all of which the words charged were laid to have been spoken in reference to the testimony given by plaintiff, in an action between George Goettie and the present defendant, which was tried at Coosawhatchie, at spring term,-1834.

<p>Tried before Mr. Justice Butler, Charleston, January, 1836.</p> <p>The defendants were indicted under the Act of 1834, for buying rice from a slave. It appeared from the evidence that the rice was received in the shop by Peters, the .clerk, at a time when Berhman, the owner of the shop, was not present. There was no proof of the privity of Berhman, nor any evidence of a trading, except that of the receiving. The jury found both the defendants guilty,</p> <p>A motion for a new trial is made on the following grounds :</p> <p>1. That there was no evidence of any dealing, with the privity and consent of Berhman, but on the contrary, the evidence was conclusive jthat he kne.w nothing of it.</p> <p>2. When the acts of the clerk are visited upon the employer, the offence .in the statute relates to trading and trafficking, and there was no evidence .of such trading by the clerk.</p>

Before Mr. Justice Richardson, at Marion, April Term, 1836. The presiding Judge made the following report: “ This was an indictment for retailing spirituous liquors. The witness stated that the act of retailing was committed at the store' of d'eféndant, by his clerk, who sold a pint of rum to the witness in August last, without stating where the store was situated. The defendant was himself not present at the time.

Before Mr. Justice Bay, at Charleston, October Term, 1835. The case is so fully stated in the following opinion of the Appeal Court, that any other report is unnecessary.

Georgetown, Fall Term, 1835, before Mr. Justice Evans, who made the following report: /‘By an Act passed in 1794, it was enacted, that “every surveyor who shall have wilfully and knowingly violated'the instructions of the Surveyor General, in not maiking out the boundaries of all lands formerly granted, and which are within, the survey by him or them made, shall be prosecutéd by the Attorney General and Circuit Solicitors of the respective .Districts, on proper application…

<p>The Legislature has the right, consistently with the Constitution, to order roads to be opened, and to use so much timber, earth or rock, as may be necessary to keep them in repair, and this without the consent of the owners of the land, and without making compensation. This tight of eminent domain is a tacit condition of every grant of land in the State.</p> <p>The Act of 1825, authorizing the Commissioners of Roads “to cut down and make use of any timber, &c. near any highway, for repairing the same,” is not ?n infringement of the 2d sec. of the 9th art. of the Constitution of this State.</p>

Before Mr. Justice Butler, at Charleston, January Term, 1836, who made the following report: Trespass for destroying the cargo of the brig Amelia. Held: that salvors, in possession,- had a right to recover the' value of property taken from them, against all the world, except the true' owners. They were to be regarded as a carrier, or any other bailee having the legal custody of the goods.

<p>This was an appeal from the judgment of Mr. Justice Eaklü, at Williamsburgh, rendered on a special verdict on a feigned issue.-</p>

<p>Wragg square on Charleston Neck had been dedicated by the owners of the land to the public use as an open square. The defendants, as commissioners of roads on the Neck, erected a railing round the square, leaving gates at convenient intervals, and for this they were indicted as for a nuisance: held, that it was incumbent on the prosecution to shew that the act of the defendants violated the public uses of the square, which not having been done, the verdict against defendants was set aside and a new trial granted.</p>

Before Mr. Justice Butler, at Charleston, January Term, 1836. The presiding Judge reported the case as follows : “ Trover for negro Neptune. This case has been once before the Court of Appeals; but as it assumed somewhat a different character from what it did on the former trial, I will repeat the case. Plaintiff claimed under a bill of sale from Richard Connolly, dated 23d September, 1826, and recorded 17th January, 1827.

Before Earle, J. at Edgefield, Fall Term, 1835. The presiding judge reported the case as follows : “ A large number of judgments had been obtained against the defendants, as sureties'of Thurmond, a former sheriff. The judgments, I suppose, had been entered up either for the whole amount of the penalty, or for the sum actually due to each plaintiff.

Before Mr. Justice Gantt, at Fairfield, Fall Term, 1835. The following opinion of the Appeal Court presents the facts of the case, and the question arising thereon.

<p>Before Earle, J. at Edgefield, Fall Term, 1835.</p> <p>Case for words — plea, general issue — verdict for plaintiff, $500. The defendant gave notice of appeal, and of his intention to move the Appeal Court for a non suit, and failing therein, for a new trial. On the argument, the grounds for a non suit were not-insisted on. The grounds for a new trial, and the facts connected ' with them, will be understood from the following opinion of the couit.</p>

<p>Tried before Mr. Justice Earle, at Edgefield, Fall Term, 1835.</p> <p>The following opinion of the Appeal Court presents the fapts of the case and the questions arising on them.</p>

<p>An indictment for retailing without license, which charged that defendant “ did sell and retail one quart of rum to a certain W. A., the said defendant then and there not having a license to sell and retail spirituous liquors,” &c. held, to be sufficiently descriptive of the offence.</p> <p>The Acts of 1801 and 1784, in relation to retailing, are to be construed in pari materia, and the latter is unrepeaied, except as to the penalty.</p> <p>A single act of selling, unexplained, is a violation of the Acts prohibiting the retailing of spirituous liquors.</p>

<p>Before -Earle, J. at Barnwell, Spring Term, 1836.</p> <p>The defendant was indicted and convicted for selling spirituous liquors to a slave. It was in proof, that defendant was a retailer of spirituous liquors.</p> <p>Several grounds were taken in arrest of judgment, and for a new trial; but the judgment of the court renders it unnecessary to notice any but the following:</p> <p>The the indictment is so imperfectly and informally drawn, that the court cannot determine whether defendant is indicted under the act of 1817 or 1834, and therefore cannot pass sentence on him.</p>

<p>Testator devised as follows : “ I give and bequeath all that messuage or tenement whereon I now live, to my grand-son, C. B. W., to hold to him during his natural life, aod after his'death, I give the same to his lawful heirs, to ■be equally divided:” Held, that the rule in Shelly’s case (1 Co. Rep. 93,) applied, and that C. B. W. took an estate in fee simple.</p>

.Before Mr. Justice Richardson, at Pickens, Fall Term, 1836. This was an action for malicious prosecution. The evidence of the discharge of the plaintiff from the indictment laid before the grand jury, consisted in the return “No Bill,” and an order of the court to discharge the then defendant, Alfred Hester.

Newberry, March, Term, 1836, before Mr. Justice Butler. The presiding judge made the following report: “Debt in bond given for the purchase money of land, sold as the property of Jacob Epting. Jacob Epting died intestate sometime previous to the year 1822, leaving a widow and several children, and leaving land, and other property, subject to distribution among them.

Before Earle, J. at Newberry, Fall Term, 1835. The presiding judge made the following report of the case : “ Indictment for gaming with a negro under the late Act. The game specified in the indictment was Rattle and Snap. Several witnesses were examined : one, at least, called the game rattle and snap, as stated — a game with cards and dice : one or two others called it raffle and snap. The former is the true name by which it was said to be familiarly known in the country.

<p>The Court pf'Comrpon Pleas cannot give judgment for a sum less than twen-. ty dollars, arising out of a matter ex contractu, except in cases where the plaintiff’s demand has been reduced by defendant’s discount: and, therefore, where the plaintiff brought his action on a contract for the breach of a warranty of soundness on the sale of a horse, ant} the proof was that he was entitled to less than twenty dollars; held to be within the exclusive jurisdiction of a magistrate, and the plaintiff was non-suited.</p>

The following opinion of the Appeal Court is the only paper which has come to the hands of the reporter. It is believed, however, that it contains a statement of all the facts necessary to a correct understanding of the points decided.

Before Mr. Justice Butler, at Coosawhatchie, Fall Term, 1836. Assumpsit for money laid out and expended. The plaintiff’s intestate was the surety of defendant to a promissory note, on which 'he was sued and judgment rendered against him in his life-time. On his death .administration of his estate was committed to Wm. ’ D. Martin. By several payments at different times the judgment was satisfied, and Wm.

Before Gantt, J. 'at Charleston, May Term, 1836. The presiding judge made the following report: “This wás att action of assumpsit, upon a joint and several note fof* ftinety-six dollars and nine 'cents, .payable to plaintiff, made by Samuel Jameson and J¡ H. Avinger. The note was in the following words: “ Charleston, léth December, 1834.

<p>Before Mr. Justice Butler, at Coosawhatchie, Fall Term, 1836.</p> <p>His Honor the presiding judge made the following report of the case:</p> <p>“ Trespass for taking and selling two negroes, George and Frank. It was admitted that the defendant, as sheriff, had levied on and sold the negroes, to satisfy an execution of Ephraim Smith v. William Youmans, sr. The plaintiffs contended that the legal title of the negroes was exclusively in them, by virtue of a deed of trust executed by Wm. Youmans, sr. to them (the plaintiffs Levi and William Youmans, jr.,) on the 24th Feb-r-uary, 1834. The following is a copy of the deed.</p> <p>“ The State of South Carolina, Beaufort District. To all persons unto whom these presents shall come, greeting : — Whereas, I, William You-mans, of Saint Peter’s parish, in the State and district aforesaid, am lawfully seized and possessed of, in my right,, of the following slave negroes, to wit: Tener, Limerick, Yianna, Frank, Liddy, Narow, Bob, Jacob, Caroline, Nancy, Jane ; also my lands and stocks, cattle, hogs and horses, and household furniture. Now know ye, and all men, by these presents, that I, the said Wm. Youmans, for divers good causes and valuable considerations, me. hereunto moving, have thought proper, and as my own right, and for the good will and affection which 1 do bear for my beloved wife, Mary Youmans, and the children I have lawfully begotten by her, as Levi, John, William, Robert, Thomas, Elizabeth, Sarah, Ann, Mary, James, Lavicy, now living, I do hereby give all the abovemeñtioned property to my beloved wife during her natural life, and after her decease to be the property of my children, viz : Levi, John, William, Robert, Thomas, Elizabeth, Sarah, Ann, Mary, James, Lavicy, to be equally divided between my said child:en, to share and shaie alike. I do, by these presents, give, grant, and confirm, unto my loved wife, Mary You-mans, the slave negroes, viz : Tener, Limerick, Wanna, Frank, Liddy, Nancy, Narow, Bob, Jacob, Caroline, Jane, and their increase ; and also my lands, and stocks, cattle, hogs, and horses, and household furniture, to be equally divided, to share and share alike, and to them and their heirs and assigns forever, after the decease of my beloved wife, Mary Youmans. And for the faithful execution of this deed, and the property therein given, as therein described, I do hereby appoint my loving sons, Levi and William Youmans, of the district aforesaid, trustees for my wife and remaining children ; and for the full and sure conveyance of said slave negroes, as abovenamed, to be for them and their use, I do hereby deliver the said slave negroes, and all property herein mentioned, into the possession of my wife, Mary Youmans, and my trusty sons, Levi and William You-mans.</p> <p>In testimony whereof, I have hereunto set my hand and seal this 24th day of February, in the year of our Lord one thousand eight hundred and thirty-four, and in the 58th year of American Independence.</p> <p>■ N. B. The abovenamed Jane is excepted to Levicy, and confirmed by a former gift. (Signed,) William Youmans. [L. S.j</p> <p>Signed, sealed, and delivered, in the presence of us, Stephen Youmans, Levi Youmans, Wm. Stewart.”</p> <p>Two objections were taken to the plaintiffs’ title by the defendant’s counsel : first, that it was not made bona fide, but with a design to defraud Ephraim Smith, and to deprive him of the benefit of a judgment which he would probably recover against the said William Youmans, sr., in ap .action of slander, which the said Smith commenced against the said Wm, Youmans, sr., a short time after the deed was executed; and secondly, that according to the legal effect and operation of the deed, the donor had such an interest under it, as might be the subject of levy and sale.</p> <p>“I thought, myself, from the evidence introduced, that the first objec-, tion was well founded, but it is unnecessary to say any thing further in relation to that, as the jyry have found a verdict, sustaining the second objection alone. They ivere well warranted in finding such a verdict, from 'what I said to them in my charge. I charged them, that assuming the deed to be fair, and unimpeachable for fraud, it secured such an interest to the donor as might be the subject of levy and sale, and they found accordingly ; at least, I so understand it. The verdict is in the following Words : “ We find for the defendant, on the ground that the life interest jn the negroes was liable to sale. (Signed,) Archibald Chaplin, Foreman.”</p> <p>, “The only question, therefore, for the Court of Appeals, is, did I put a legal construction on the deed 1 The donor, the husband, gives by deed a life estate to his wife, and expressly secures the possession to her. The last clause of the deed is as follows : I do hereby deliver the said slave negroes, and all the property herein mentioned, into the possession of my wife, Mary Youmans, and my trusty sons, Levi and William Youmans.” It was, no doubt, the purpose of the donor to convey his property'in such a way that it could not be reached by execution; but at the same time he wished to secure a life estate to his wife, and thereby, a usufructuary interest in the property to himself during his own life. The property was in his possession'at the time of the levy, and had been'in his possession from the date of the deed, although he had made a formal delivery to trustees and his wife, at the time the deed was made. It was contended that the wife’s possession was for herself, by permission of the. trustees, and that the husband had nothing but an equitable interest, which could not be sold; that is, he had a right merely to use the rents and profits of his wife’s interest, which was vested in trustees for her use and benefit. Now, I think the donor had something more ; he had not only a right to the use, but to the possession. The possession of the wife was his possession. And that interest, little or much, I thought was subject to levy and sale ; and I think I am sustained in this view of the case by the case of Fogartie v. Hubbell.</p> <p>The plaintiffs appeal, and move to set aside the verdict, and for a new trial, on the following grounds :</p> <p>1. That his Honor erred in charging the jury, that according to the legal effect and operation of the deed, the donor had an interest under it, which might be the subject of levy and sale under execution against Jiim.</p> <p>2. That the fiuding of the jury was contrary to law.</p>

<p>Where there is a subsisting agreement between the parties, upon which the plaintiff’s right to the money depends, the action must be on the special contract, and the plaintiff cannot recover on the common counts: but if the plaintiff’s right to the moneyds wholly independent of the agreement, he may recover on the common counts. And therefore, where an attorney, under a special agreement to prosecute a claim and to retain 20 per cent for his trouble, received his client’s money — held that the money might be recovered on the common' count for money had and received.</p>

<p>A confession of judgment under the Act of 1821, before the Clerk of the Court of a district other than that where the defendant resides, will be valid.</p>

Before Mr. Justice Evans, at Charleston, January Term, 1837. His honor the presiding Judge, reported the case as follows . “ This was an action on á' promissory note. The note was payable to John Fort and Joseph' M'aybank', and' end’orséd to the plaintiff, Meacher. The defendant was the maker. There was no doubt as to tbe signattife of the defendant, as maker, or of Maybank, one of the endorsers.

<p>Before his Honor Judge Bay, Charleston, April, 1836.</p> <p>Motion for a rule on the said sheriff elect, to shew by what authority he holds his office of sheriff of Charleston district.</p> <p>This respondent, throwing himself upon the justice of the said court/ comes in and shews for causes the following, as the grounds and authority by which he holds and exercises thé office of sheriff of Charleston' district,- to' wit í</p> <p>That on the 13 th and 12th days of January last past, an election was -held in the said district for a sheriff thereof; that on the 15th day of the said month, this respondent was by the managers of the election de? dared duly elected sheriff; that on the 27th day of said month, a bond in conformity with the requisitions of the Act of Assembly, (in such case made and provided,) in the penal sum of fifty thousand dollars, was exer cuted with twenty sureties, and approved on the 29th day of the same month, by a majority of the commissioners appointed by the legislature to approve bonds of public officers of their district, to wit: Simon Mag-wood, Thomas Blackwood, and Edward Carew, Esquires ; as by a certificate of the treasurer, Wm. E. Hayne, herewith filed, will appear ; that application was made to the Attorney General, to approve the form of the bond, but that officer refused to approve ; that he gave no written opinion, but stated verbally his objection to be, that several of the obligors had attached to their signatures the following words: “for twenty-five hundred dollars, fro rata with the other co-obligors on this bond.” That then this respondent, to wit: on the 29th day of January, tendered the bond to the treasurer, who refused to give a certificate of the bond being' lodged in his office, on the ground that the approval of the Attorney General was not endorsed thereon.</p> <p>That this respondent applied to his Honor Judge Butler, for a mandamus to compel the Attorney General to approve the form of said bond, and the treasurer to receive the same ; that it was held under advisement for some days, the precise time this respondent is unable to say, as his counsel who then appeared for him, is absent from the city. That his Honor Judge Butler refused to order the mandamus, and gave the following judgment. That is to say, “The terms of the condition annexed by several of the relator’s sureties to their signatures being ambiguous, I am unwilling to order a mandamus .on the within suggestion; but 1 unhesitatingly express the opinion, that the sureties on a sheriff’s bond are severally liable, not for the entire penalty, but only for their aliquot proportions thereof: each surety, however,"is liable to the full amount of such aliquot proportions, with the right of compelling contribution from his co-sureties.”</p> <p>That this respondent then prepared and executed another bond, with twenty sureties, as a substitute for the former bond, bearing date the same day and year, to wit: on the 27th day of January, 1836; that the commissioners, to wit: the same before mentioned, approved of this bond also, as will appear from the certificate of the treasurer; that the Attorney General then endorsed his approval, and that it was lodged with the treasurer on the 12th day of February, who accepted the same ; and this respondent was duly commissioned ; by virtue of which said commission, this respondent entered upon, and now holds and exercises, the said office of sheriff of Charleston district. J. D. YATES.</p> <p>Sworn to before me, 21st April, 1836. W. S. Smith, Q,. U.</p> <p>The foregoing are the principal and leading facts of this case, and they appear to me to call loudly for the interposition of the power of this court, to protect the respondent from the injustice aimed at him, by an attempt to deprive him of the office of sheriff of Charleston district, to which he has been duly elected and commissioned, agreeably to the principles of our constitution.</p> <p>I am, therefore, fully and clearly of opinion, that the rule for the information should be set aside and dismissed, and that the respondent should be permitted to serve out the remainder of the term for which he has been elected, agreeably to the rules of law.</p> <p>From this decision an appeal was taken.</p>

These were two cases tried before a magistrate. The plaintiff claimed the sum of $20 in each, as for one month’s rent, due under a certain ágreemerit of leaser, in writing. The magistrate decreed ib favor of the plaintiff, for the sum of $20 in each case. The defendant appealed to the fcity recorder.

Before Mr. Justice Butler, at Charleston, January Term, 1836. Indictment for nuisance. The indictment contained two counts : the first was for obstructing a public street; and thé second for inclosing ^ public square, bounded on one side by the said street.

Before Mr. Justice Gantt, at Charleston, May Term, 1836. His Honor made the following report : “Thomas Swift Rnd —— Waterman, on the 24th day of November, 1827, executed a deed of trust to the plaintiff, Ford, of two negroes, Minda and her child. This deed was recorded in the month of'November, 1827, in the office of mesne conveyance, and on the 19th of January, 1827, in the office of the Secretary of State.

<p>Before Mr. Justice Gantt, at Charleston, May Term, 1836.</p> <p>His Honor reported as follows :</p> <p>“This action was brought to recover the wages of negroes,- Minda and child, for the time Churr had possession of them. It was agreed that the evidence offered in the action of detinue should be received in this case, and certain additiorfal evidence, which accompanies this report, was introduced. The jury found for the plaintiff.</p> <p>Mr, Thompson moved for a non-suit, on the ground that there was no evidence to support this action as arising ex contractu. I thought the law of implied contracts embraced the case, and overruled the motion’. I have no remarks to make on the nature of the verdict found, the court will judge of its correctness.</p> <p>The defendant appealed and moved for a non-suit:</p> <p>1. Because the case made by the testimony, if it proved any thing definite, proved a conversion by Churr in bis life time.</p> <p>2. Because there was no fact to prove a contract, either express or implied, but the reverse — that the property was held by Churr under his title, and never went into his possession with the assent of the plaintiff</p> <p>And for a new trial — Because the verdict was’ contrary to law and evidence.</p>

<p>Plaintiff’s grand-father took his negro by the hand and put it into the hand of plaintiff, saying, “ this is no longer my property, but this child’s, (plaintiff’s,) .but daughter, you must let her work for grand-father while he livesand the .donor kept the negro during his life, but always spoke of her as the plaintiff’s. The Judge below, on the authority of Pitts vs. Mangurn, 2 Bail. 588, ordered a ■non-suit, which was set aside by this court.</p> <p>Every parol gift must take effect immediately, or at least the donor must part from the title at the time of delivery; and if he reserves to himself a dominion beyond the control of the donee, the title still remains in him. But whether the donor did intend to part with all dominion over the property, and to vest it immediately in the donee, or to reserve the use of it to himself for life, or any other period, is a question which should be left to the jury.</p>

<p>It is not necessary that the Christian name of the owner of the slave should he inserted in an indictment for selling liquor to a slave. An objection of this kind comes too late after verdict; the proper course is by demurrer, or motion to quash the indictment.</p>

<p>Before Mr. justice O’Neall, at Edgefield, Spring Term, 1837.</p> <p>The presiding Judge made the following report:</p> <p>“ This was an action of trespass, to recover the value oí some corn, fieized and sold by the defendant under execution.</p> <p>“ In the year 1835, one Washington C. Hall sold the tract of land on which he lived to the plaintiff, stipulating that he should retain possession during the year. At the time he sold there was a mortgage on the land, of which he did not inform the plaintiff, and which he (Hall,) intended to pay, but did not, and the plaintiff was compelled to. pay it. Hall agreed with one Berry, that he should tend one of the fields upon the plantation. Berry was, for the use of the land, to give him one half of the crop. In May, shortly after the corn was planted, Hall sold to the plaintiff his interest in Berry’s corn crop, in consideration of the amount previously paid by the plaintiff on account of the mortgage. In March and April, 1835, the executions of Sprowll and Langley against Hall, under which the com was seized, were lodged in the sheriff’s office. When the corn was made and ready to be gathered, it was divided as it stood, by Robert Bell, at the request of Hall and Berry, and the plaintiff having also bought Berry’s 'part, gathered the whole field ; the part to which he was entitled under his purchase from Hall, he put up in the barn at the place where Hall lived, and locked it up ; the defendant levied on and sold it.</p> <p>“ The only question made on the trial by the defendant, was, whether the executions had a lien on the corn as the property of Hall. I thought and ruled, that they had not. The case of Rogers vs. Collier, 2 Bail. 531, is full to the point. The jury found for the plaintiff.</p> <p>“ The defendant appealed, and now moves for a new trial, on the ground of error in the charge of the presiding judge.”</p>

Béfóre Richardson, J. at Spartaiilmrg, Fall Term, 1836. The facts connected with the only ground of appeal on which the Court of Appeals expressed an opinion, are stated in the following opinion of that Court.

Before Mr. Justice O’Neall, at Fairfield, Fall Term, 1836. His Honor the presiding judge reported the case as follows: “ This was an action of trespass quart clausum fregit for damages done to a tract of wood-land by cutting down pine timber upon it. ■ The plaintiffs never had possession of the land ; they however showed a title to it, and no other person was in possession of it.

Before Evans, J. at Darlington, Fall Term, 1836. His honor the presiding Judge, sent up the following report of the ease: “ This was an action of debt to recover a penalty, alledged to be asce'r-' tained damages by reason of the non-performance of covenants in the purchase of a tract of land.

<p>Before Mr. Justice O’Neall, Newberry, Spring Term, 1837.</p> <p>The presiding Judge made the following report of the case :</p> <p>“This was á scire fac-ids to estreat the recognizance of John L. Harmon and his securities, entered into before the clerk, after the defendant Harmon’s conviction, on an indictment for bastardy, for the support of a bastard child.</p> <p>“It was contended, that by law, the defendant, Harmon, was only liable for £5 per annum, commencing from his conviction; or at most, only from the time the information was made against him. The terms of the recognizance were sufficiently broad to carry back the allowance to the birth of the child; but the'case was considered by the Solicitor and the defendant’s counsel, on the construction of the Act of.1795, 2 Faust, 74.</p> <p>“The first position of the defendants is contrarary to a plain and ob-. vious reading of the Act; and their second position is overruled by a decision of the Court of Appeals, of which Mr. Solicitor Caldwell has a note; and which he will bring to the view of the Court of Appeals.</p> <p>“ I ordered the defendant’s recognizance to be estreated for the instalments of ¿65 per ánnum, from the birth of the child.”</p> <p>The defendant appeals, on the annexed ground</p> <p>That the defendant is by law liable to pay ¿65 annually, commencing • only from the time of his conviction, or from the time of his arrest, or at all events only from the time the information was given to the magistrate, on which the warrant was issued.</p>

Before Mr. Justice Earle, at Edgefield, Fall Term, 1836. His Honor the presiding judge sent up the following report: ‘•‘Trover for a Yoke of Oxen, by Sum. Pro. “ The plaintiff was sheriff of the district, and had in his hands sundry executions against one Simeon Dean. One of his deputies went with these executions to the residence of the defendant, Dean, and informed him that he had come for the purpose of making a levy.

<p>Before Mr. Justice Evans, at Sumter, Fall Term, 1836.</p> <p>The following is the report of the presiding judge.</p> <p>“This was an action on the case. The plaintiff was the owner of a plantation, which he leased to the defendant. The lease contained a clause authorizing Clerry to make “every necessary improvement to suit himself.” On the leased premises was a store house and other buildings, surrounded by a beautiful grove of large oak trees. The place was one of notoriety, and bad been long used- ns a location for a store. The defendant during his lease cut down and killed nearly all the trees which constituted the grove. One witness said two thirds of the whole number were destroyed ; and another said 14 large oaks were cut down, or killed -by cutting round them. One witness said be heard defendant order his negroes to cut down one of the trees for fire wood. There was an abundance of fire wood near the houses, without molesting this grove. Another witness said that Clerry told him be had destroyed the trees to plant the land, and there' was proof that he had made a small potatoe patch where some of the trees were destroyed. The trees were destroyed at different times, and some of them after the plaintiff had threatened to sue for the injury.</p> <p>“On the subject of damages, one witness said the grove was very fine,' and important to the value of the land and the beauty of the place. If he had owned the land he would consider the value lessened $500. Another witness said, if he pwned the land and intended to settle at the place, he would not have had these trees destroyed for $500. All the witnesses agreed that this was a place .of great beauty and notoriety, and the trees large forest oaks. The jury found ten dollars for the plaintiff, a sum, it would peem to me, greatly inadequate to the injury.”</p> <p>The plaintiff moved for a new trial, op the following grounds :</p> <p>1st. That the amount of damages was excessively inadequate, not being sufficient to carry costs.</p> <p>2d. That the verdict was without evidence, inasmuch as the damage done the plaintiff was proved by ’two respectable witnesses, to be fully five hundred dollars, and no evidence whatever offered to disprove, contradict, or render it doubtful in any way j and to find a verdict of $10, upon such testimony, Where it is proved that the damage was wilfully done, is to find directly against evidence.</p>

Before Mr. Justice O’Neall, at Union, Fall Term, 1836. This was an action of trespass by way of summmary process, for selling a horse, the property of the plaintiff; the defendant justified under a magistrate’s execution levied after the expiration of one year and a day from its date.

<p>Where the action is for a collateral sum to be paid on request, aDd by the terms of the contract the plaintiff is to request performance or payment, the request becomes parcel of the contract, and should be specially alleged and proved.</p> <p>' A mere depository, a naked bailee, is not liable to an action until refusal to deliver up on demand.</p>

Before Earle, J. at ‘Orangeburgh, Spring Term, 1836. Several defendants Were Convicted of retailing spirituous liquors without license, and were sentenced to pay' the fine imposed by law. These, fines were collected by the respondent, as clerk of the court, and were in his hands. One Thomas Jones was the informer and prosecutor, and claimed one-half of the penalty under the Act of 1801.

<p>Before Mr. Justice Earle, at Abbeville, Fall Term, 1836.</p> <p>Covenant on the warranty in deed of conveyance from the defendants to the plaintiff. On the trial the following case was made.</p> <p>On the 16th of January, 1826, the several defendants, with five others, of whom three were dead, and two removed from the State, in consideration of one hundred dollars paid to each, conveyed by deed to the plaintiff 264 acres of land, with the usual covenant of general warranty, except as to the interest of Rhoda Hall, who was co-tenant with the others, but did not join in the conveyance. Johnson Hall was one of the grantors in the deed, but not a party in the suit, having removed. Johnson Hall had, before that time, brought a suit by sum. pro. against Leat Hall, another of the grantors in the deed, and one of the defendants. On the trial there was a decree for the defendant, on which execution issued against Johnson Hall, for the costs from October Terra, 1825, lodged 12th November, 1825, and was levied on Johnson Hall’s interest in the land, 8th February, 1826, levy endorsed. A renewal of this execution was lodged 2d April, 1827, on which the sheriff recites the former levy, and the direction of the attorney to stop advertising. This execution was again lodged with the sheriff, a successor of the former, who made the levy on the 8th June, 1831, and enforced. The sheriff, reciting the former levy, makes return that he exposed the land to sale, or the interest of Johnson Hall therein, on sale-day, in August, 1831, when John E. Norris btcame the purchaser for #53. Sheriff’s deed to Norris, dated 7th November, 1831. Norris filed a bill against plaintiff, and one Tucker and wife, who was formerly Rhoda Hall, for partition, in June 1832. Before final decree, plaintiff purchased Norris’s interest for #70, deed dated 13th November, 1833, and under the final decree the interest of Tucker and wife was sold, August, 1833, and also purchased by plaintiff for $40, which sum was applied tq ,the paytpen.t o¡f costs.</p> <p>It was further proved that the plaintiff was informed of the execution against Johnson Hall, and was told, before he purchased, he had better go and settle it. He has never been disturbed in the possession of the land.</p> <p>It was urged against the plaintiff’s right to recover, that the execution ■jinder which the interest of Johnson Hall was sold, was inoperative; that ,the sale to Norris conferred no title ; that there was, therefore, no incumbrance, or out-standing paramount title ; and therefore no breach of the covenant of warranty. The presiding judge held otherwise, although he ^ntertained great doubts, and instructed the jury that a levy having been made and endorsed on the execution, a succeeding sheriff might proceed to sell and convey, even after the lapse of the time within which the execution should otherwise have been renewed.</p> <p>It was also contended for the defendants, that the plaintiff having purchased with the knowledge of the incumbrance, at least having notice before the sheriff’s sale, and not haying requested its removal, c.ould only recover so much ag would have been sufficient to remove it. On this point also, his Honor held'otherwise, and instructed the jury, that the defendants having expressly warranted by deed, were bound to remove .the incumbrance without request. That the warranty constituted a covenant, not only for quiet enjoyment, but of seizure and good title. That actual eviction was not necessary to enable the plaintiff tp maintain the action, but as there was no eviction, the Act of 1824 did not apply, and it became a question of actual damage ; that the plaintiff was entitled to recover the sum paid Norris, in order to perfect his title, and interest from the date of his deed. The jury found accordingly.</p> <p>The defendants moved for a non-suit or a new trial, on the following grounds:</p> <p>1st. That; the sale by the sheriff to John E. Norris, could, under the circumstances, confer no title.</p> <p>2d. Tb^t the plaintiff, having notice of the incumbrance, long before the sheriff ’s sale, and not haying requested its removal hy the defendants* should (even if the breach had been established) haye recovered only the sum which yyoul.d haye been necessary to remove the incumbrance.</p>

<p>Before Mr. Justice Butler, at York; Spring Term, 1837.</p> <p>The defendant was arrested by bail process, for a trespass on the person of the plaintiff, by shooting and maiming him. He was on his way, removing out of the State with his property, when be was arrested. He gave bail, and continued on his journey, and settled in Alabama. At Fall Term, 1836, the action was tried in the absence of defendant, and a verdict rendered against him for $6,000. Hearing of the recovery, tbé defendant returned to this State, and surrendered to the sheriff of York district, in discharge of bis bail. With a view of availing himself of the benefit of the prison bounds Act, be filed a schedule of his whole estate, in which he states that his property, consisting of land and negroes, was' in the State of Alabama; and at this term, moved for his discharge, on making an assignment. Two objections were made by the plaintiff 1. That the defendant being confined for maiming the plaintiff, was not entitled to the benefit of the Act. 2. That the defendant could not be discharged without delivering into the actual possession of the assignee, the personal property contained in his schedule, which he was unwilling- or unable to do. The counsel for the defendant contended, that this was not a case of mayhem excluded from the benefit of the Act; and that it is enough that defendant, under the circumstances of the case, make an' assignment of his property, leaving it to his assignee to acquire possession" by the best means in his power. The defendant offered to prove that the' property had been removed before a recovery against him, and that an action had been commenced in Alabama, on the judgment obtained here. The presiding judge did not think this evidence would vary the case, and therefore rejected it. His Honor sustained the plaintiff’s last objection, holding the' Act of 1833 to be imperative in its térrrik, that the defendant .was not entitled to his discharge until he delivered the property to the assignee. As to the last objection, his Honor overruled it, on the ground that there was nothing in the proceedings in the case, to shew that the defendant was in confinement for a deliberate mayhem; the declaration merely charging the trespass to have been committed by beating, shooting .and maiming the plaintiff, did not give such a character to the act as to amount to a wilful and deliberate mayhem within the meaning of the Act, so as to deprive the defendant of the benefit of the law for the relief of insolvent debtors.</p> <p>The case of Wm. M. Kerr vs. the same defendant, depends on the decision of the second question in this case.</p> <p>The defendant’s motion to be discharged was refused, and he was remanded to prison.</p> <p>The defendant appealed from the decision of the presiding judge refusing his discharge; and the plaintiff also gave notice that he would move the Court of Appeals to reverse the decision of the circuit court, on the first ground taken by him against the defendant’s discharge, provided that court should reverse the decision on the second.</p>

<p>Before Mr. Justice Butler, at Union, Fall Term, 1836.</p> <p>Trespass for taking a negro. Verdict for plaintiff.</p> <p>The-facts' of the case, so far as connected with the only ground decided by the court, áre stated in the following opinion of the court.</p>

Before Mr. Justice Richardson, at Spartanburgh. His honor the presiding Judge sent up the following report of the caset “ This was an action on a note of band. The defendant pleaded specially, admitting the note, ,bu,t alledging that the consideration was a negro Bob, which he lost by title paramount, (iu Eliz. Johnson) whereby, &c. It was upon this plea, that the court permitted the defendant to begin and conclude both the evidence and the argument.

Before Mr. Justice Earle, at Orangelurgh, Spring Term, 1836. This was an application for a writ of prohibition to restrain the respondent from enforcing the sentence of a court martial, convened under his order, subjecting the relator to fine and imprisonment for neglect of militia duty in the 14th regiment of South Carolina militia.

Before Mr. Justice O’Neall, at Lancaster, Fall Term, 1836. His Honor the presiding judge reported the cases as follows: These were declarations in prohibition. The cases made will be understood by referring to the Act of 1830, and the special verdicts.

Before Mr. Justice Evans, at Sumter, Fall Term, 1837. His Honor the presiding judge made the following report of the case : The defendant, J. R. Spann, three or four years ago commenced an action against the plaintiffs for the conversion of certain slaves.

Before Mr. Justice Butler, at Lancaster, Spring Term, 1837. The presiding Judge reported the case as follows : Trover for the running gear of a cotton gin ; to wit, the large post and horizontal which works under the house, and the other machinery that is moved by them.

Before Mr. Justice Earle, at Spartanbwgh, Spring Term, 1837. Under the Act of 1824, the defendant, as Ordinary, made sale of certain real estate for partition. He afterwards collected the money, and made distribution of it among those entitled, retaining five per cent for his commissions ; and this action was brought to recover the sum thus retained.

<p>Before Mr. Justice O’Neall, at Union, Fall Term, 1836.</p> <p>the following is the report of the presiding Judge :</p> <p>- This was an appeal from the Ordinary, on the trial of which,- before me,the jury found a special verdict, upon which I pronounced judgment, directing the decree of the ordinary on the accounts to be corrected in several particulars.</p> <p>The grounds of appeal make it unnecessaiy that the whole case should be reported. The intestate, John McCall, died in 1807, leaving his widow, and the appellee, his only child, not exceeding one year old. The inventory and sale bill were returned in 1807, but no other return ever was made until after the summons from the’ordinary, issued at the instance of the appellee, was served upon the appellants; they then made a return, setting out that several of the debts embraced in the inventory were insolvent. The summons to account was issued in 1834.</p> <p>The appellants contended — 1st. That the lapse of time, 27 years, raised a presumption that regular returns had been made, and that the appellee had been paid. 2d. That they were entitled to commissions. 3d. That the return made after the issuing of the summons to account, was evidence of the insolvency of the debtors named in the inventory. My judgment was against the appellants on all these grounds. The first would have been unanswerable, and must have availed them, had it not been for the rninoiity of the appellee for twenty years. During this time no presumption could arise against him.- It is unnecessary to adduce arguments in support of this position. It was decided by the Court of Appeals, in the case of Boyd Sf Keels ¡ from the Court of Equity for Sum-1 ter, in December session, 1830. The remaining 7 year's could not raise £i presumption in law against the appellee. As to the 2d and 3rd grounds, ] never have been able, from the arguments of the learned counsel, to discover the legal reason why he supposed they ought to prevail. The appellants never made an annual return upon their intestate’s estate; after suit commenced* they made a return ; but this was, or pretended to be, of transactions 25, 26 or 27 years before. To allow commissions under such circumstances, would violate both the letter and sprit of the Act of the Legislature. To allow that return tobe evidence to discharge the defendants, would also be a violation of a first principle, which does not allow a party to manufacture evidence for himself.</p> <p>The appellants moved for a new trial, on the grounds taken below.</p>

Before Mr. Justice Butler, at Fairfield, Spring Term, 1837. Robert McCreight had been declared a lunatic by proceedings in chancery, and the plaintiffs (his sons,) were appointed his committee. They ” brought this action againt the defendant, for certain articles, which it is alledged he has converted to his own use, and which belonged to, and were taken from, the premises of the lunatic.

Before Mr. Justice Richardson,--. This was an action on the official bond of Richard Ingram, against his sureties, to recover monies which he had, as sheriff, collected for several claimants, and had not paid over. There was no proof of demand upon Ingram for any of the several sums of money sued for ; but it was proved that he was out of the State at the time the action was brought.

<p>Before Mr, Justice Richardson, at Darlington, Spring Term, 1837.</p> <p>The defendant obtained an order, in October last, that the plaintiff should give security for costs, on or before the 1st of March thereafter, or suffer a non-suit. In November, the plaintiff lodged with the clerk of the court $50, as security for costs, which sum the clerk regarded as sufficient to cover the costs. At this Term, the defendant moved to enter up judgment of non-suit, on the ground that the order of October Term had not been complied with. His Ho.nor held otherwise, and refused .the motion, $n.d the defendant appealed.</p>

Lexington, Spring Term, 1837. Mr. Justice O’Neall, before whom the case was tried, sent up the following report: This was an appeal from the decision of the ordinary of Lexington district, admitting to probate in solemn form of law, the last will and testament of Thomas Loyd, deceased. It is unnecessary to report the whole .case, inasmuch as .the grounds of appeal present only two questions, both of which are purely legal.

Before Mr. Justice Butler, at Edgefield, Spring Term, 1836. Trover for a negro, Ralph. His Honor the presiding Judge, sent up the following report of the case : Ralph was in plaintiff’s possession at the time he was taken by the defendant, (the sheriff of Edgefield at the time.) The plaintiff bought Ralph from Carr, in Augusta, Georgia. Carr bought him from Dalby, Dalby from John B. Guidron.