Volume 22 — South Carolina Law Reports

Tried in May Term, 1835, before his Honor Judge Earle. Verdict for plaintiff. The declaration contained a count for services and work as a phy. sician, surgeon and apothecary, medicines, &c.; 2d, quantum meruit; and 3d, insimul computassent. The debt was barred by the statute of limitations ; to avoid which, the following proof was made.

<p>Tried before his Honor Judge Bay, at Chambers, 28th February, 1835.</p> <p>Motion for a prohibition to restrain the Sheiiff of Charleston District from levying militia fines, &c.</p> <p>The suggestion states that on the day of December. 1834, he was summonel to do militia duty as a private in Beat No. 4, of the Charleston militia.</p> <p>That believing himself to be exempt from such duty, and not liable to turn out, lie did not attend the parade — and that afterwards on another day he attended a Court Martial at the City Hall, and made; his excuse for not attending on parade, on the following grounds :</p> <p>1st. That the act of 1794, declares that any citizen who has held a commission in the militia for seven years shall be exempt from mili» tia duty, except in cases of insurrection or alarm — That the relator had held a commission for seven years prior to the passing of the militia bill of the last Legislature, the performance of the condition upon which the privilege of exemption attached, being consummated prior to the act — That the said privilege became a vested right, which the Legislature had no right to divest relator of.</p> <p>2d. By the aforesaid act of 1794, this State offered to her citizens who were liable to the performance of ordinary militia duty, that those of them who were liable to perform ordinary militia duty, who would assume responsibilities to perform extra duties, and incur additional expense by accepting a commission, and holding the same for seven years, should after that period be exempt from ordinary militia duty.</p> <p>The relator avers that the offer so made, was accepted by him and duly performed by him at great pecuniary sacrifice on his part. And as the Legislature by virtue of the constitution of this State, has no power to pass any liw impairing the obligation of this contract, the relator claimed this right of exemption.</p> <p>This relator further shews, that he was summoned to attend a regimental parade on the day of November last. That he did not parade as ordered, and on the 8th day of December last attended a Court Martial, and offered as his excuse the same reasons as above stated, which reasons and excuses so offered, as aforesaid, have been adjudicated insufficient for your relator, and execution has been lodg. ed in the sheriff’s office for the purpose of enforcing the collection thereof.</p> <p>Believing the said proceeding of the Court Martial to be a violation of the rights of a citizen, and a breach of contract solemnly entered into by the State, the relator respectfully prays the interposition of this honorable court.</p> <p>From the foregoing statement, I am clearly of opinion, that the clause in the militia bill of 1794, held out an offer of an exemption to the military officers, who served for seven years, that they should be thereafter exonerated and exempted from ordinary duty for and during their lives.</p> <p>The faith of the State became pledged for such exemption thereafter. It became in my opinion a contract between the State and the individual, which became sacred and binding on both parties.</p> <p>I do not perceive any substantial difference between this exemption, and that article in the constitution, which declares that there shall not be any post facto laws ever passed against the citizen.</p> <p>When the time of service was consummated of seven years services, the State could never withhold the privilege afterwards.</p> <p>The act of 1833, says nothing about the clause of exemption mentioned in the act of 1794 ; that clause and the privilege contained in it remains unmolested and unrepealed — and this is the universal opinion of all the military officers on the subject.</p> <p>• In the course of the argument in opposition to this exemption, it was urged, that the constitution does not embrace the contracts of the State, because there is no mode of enforcing them.</p> <p>In my opinion the contracts of States become more binding and obligatory ia proportion to the dignity of the party contracting, and particularly the supreme tribunal of the nation — and it appears then that there is no feasible mode of enforcing the nature of obligations. The State ought to enforce a system of good morals by voluntarily enforcing the punctual observance of contracts of all kinds.</p> <p>Upon the whole of this case, I am of opinion that the Court Martial had no right to summon the relator for attending on a common drill muster ; or to fine him for non-attendance.</p> <p>Let a prohibition issue to restrain the sheriff from levying the fine.</p> <p>The respondent appeals from the order for a prohibition, and move» to set. it aside on the following grounds, viz :</p> <p>1st. That the act of 1794 exempted from ordinary militia duty only such officers as had held commissions for seven years before the passing of that net.</p> <p>2d. That if the act of 1794 exempted officers holding commissions for seven years, since that time such exemption is taken away by the act of 18,33.</p> <p>3d. That the provisions of the act of 1833, by which the said exemption is abolished, does not conflict with the constitution of this State, or with the constitution of the United States.</p> <p>4th. That the order for a prohibition in this case is contrary to law.</p>

<p>Tried before Judge Eakle, Charleston, May, 1835.</p> <p>Assumpsit to recover back money which had been paid to the defendant, on a contract which had not been performed, in January, 1834.</p> <p>The defendant, as agent of the brig Encomium, for which he Was' authorized to engage freight, entered into a contract with the agent of the plaintiff, to transport twenty-five or thirty slaves from Charleston to New Orleans, at twelve and half dollars round. Defendant delayed the sailing oí the vessel until the 1st February, at which time the slaves were placed on board. The plaintiff’s agent at that lime paid one hundred dollars on account, in advance, to the defendant, who gave a receipt in these words : “ February 1, 1834. Received from Mr. Waddell, one hundred dollars, on account of passage of •laves-on board the brig Encomium. For the owners, M. C. Mor-decai.”</p> <p>The vessel sailed on ¿Saturday, and on Monday night was wrecked on one of the Bahama Keys. “They went down,” said the witness, “ direct on the reefs, although there was no difficulty in avoiding them; the captain on deck, very pleasant weather, no moon but a clear starlight night.l’ The loss of the vessel was clearly owing to the neglect or want of skill of the captain. The passengers were conveyed on shore, and'the captain contracted with a sloop and schooner to convey them to Nassau. He there abandoned them, made no offer to convey them to New Orleans, said he had nothing to do with it, and, after getting his protest signed, dtd not care a damn for them. The slaves were taken in charge of the authorities of the island, and were liberated. Seven of them escaped, and returned to Charleston, whence they were sent to the plaintiff, at an expense of two hundred dollars.</p> <p>After intelligence of the wreck, and the fate of the slaves, a demand was made of the defendant, on the part of the plaintiff, of the sum paid him in advance, on account of the passage money. Defendant refused to pay the money, saying he had no funds, having settled the accounts of the vessel with the owners; that he was not responsible,' inasmuch as the money was in fact paid to the captain, although the receipt was given by him. There was no other proof of these facts except the declaration of the defendant, when the demand was made upon him. After a motion for non-suit, which was refused, the case was submitted to the jury, on the foregoing evidence. I think on reviewing this case, that the verdict for the defendant can hardly be sustained ; although I do not perceive that the charge to the jury was liable to the precise exceptions taken to' it.</p> <p>It is clear enough, that the defendant in the first instance contracted to cany the slaves, as agent of the brig. But there was no proof of his disclosing the names of his principals, either then or afterwards. The receipt is only evidence of money paid on the contract, and on the failure of the voyage, even from a fault not imputable to the captain, the party paving would be entitled to recover back, much more when the failure was obviously his fault. The money in advance being paid to the defendant, although he gave a receipt “ for the owners,” yet as he did not disclose their names, on the failure of the voyage, who is to refund 1 This may be tested by enquiring who was responsible on the first contract to b-ausportl Whoever was liable to the plaintiff for the performance &/ the contract, would be liable to refund. Suppose the money paid to the defendant at the time the passage was engaged, and he had permitted th.„ vessel to sail without the slaves — He would surely be liable in that case to pay back the sum advanced. The facts relied, on in part, as a de-fence, that he had settled' with the owners, and paid over the funds, and in fact that the captain had received the sum paid, were stated by the defendant himself, on the demand being made, as a reason for refusing to pay, and were admitted as part of the res gestas, at the instance of his counsel, and against the wishes of the counsel for the plaintiff. It seems to me as matter of discharge they should have been proved.</p> <p>As to the defendant’s personal liability, it is in part a question, of fact for the jury, as well as of law, for the court. Whether he contracted as agent, and disclosed the names of his principals, were questions of fact. If he did not make known their names, although he contracted as agent, he was personally liable, and I think I so. instructed the jury. Whether he intended to make himself responsible, seems immaterial.</p> <p>The defendant set up a defence for an apportionment of freight or passage-money, “pro rata itineris.” I do not think from any remarks of mine, the jury could have allowed that claim, or have supposed that I favored it. If the vessel without fault, and by inevitable necessity, had been forced to put into a port short of her destination, and the plaintiff had there accepted and received the slaves, or they had been rescued by the authorities of the island, from the master, and liberated, or perhaps if he had offered to proceed on his voyage, he would have been entitled to an apportionment “ pro rata.” But I thought it clearly proved, that the loss of the vessel, and therefore the necessity of putting in at the intermediate port, were produced by the fault of the master and captain. And to this cause, also, was owing the final loss of the slaves. Nor should it be overlooked, that he refused to proceed on the voyage. At least, he made no effort to proceed.</p> <p>I think there was sufficient evidence to charge the defendant, and that the grounds of defence were not made out. Grounds of appeal annexed.</p> <p>(Signed,)</p> <p>B. J. EARLE.</p> <p>1. Beeause'his Honor charged the jury, that it was for them to determine, whether the defendant intended to make himself personally responsible on the contract entered into with the plaintiff’s agent. Whereas he should have charged that thenames of his principals not being disclosed, it was no longer a question of it tention or fact for the jury, but a question of law, by which the defendant was responsible, whether he intended to make himself so or not.</p> <p>2. Because his Honor charged, that if the slaves were forcibly taken out of the possession of the captain, and he was thus prevented from performing his voyage, freight “ pro rata itineris,” could be retained ; whereas, he should have charged, that the act of carrying the slaves to Nassau, being the act of the captain, no freight could be retained on account of the captain’s own wrong, by which the property was lost to the plaintiff, and the voyage entirely defeated.</p> <p>3. Because no passage money being due until the voyage was performed, and the voyage failing, the defendant, whether principal or agent, who received the money, was bound to return it; and in this respect the verdict of the jury was contrary to the charge of his Honor, the law, and the evidence.</p> <p>4. Because the verdict was in other respects contrary to the law and the evidence.</p>

<p>Tried in Charleston, 9th June, 1835, before his Honor Judge Eakle.</p> <p>David Sealy gave Sears Hubbell his note, dated April 4th, 1828, for money due him, and died intestate. S. Hubbell brought an action on this note, and another demand against Fogartie and wife, as executor and executrix, in their own wrong. The defendant pleaded non assum. test, and ne unques ex: the cause was tried June, 1831, and a verdict found for plaintiff. The defendants appealed, and the Court of Appeals dismissed the motion for a new trial. The plaintiff entered up judgment and took out execution against the goods of Sealy, or of D. Fogartie, and Ann, his wife. Under this execution the sheriff took two negroes, Die and Tom, and advertised them as ne-groes of the estate of Sealy. In ^pril, 1832, the negroes were sold, and bought by Hubbell. The defendants, at April term, 1832, obtained an order for leave to pay into court $214 — and moved to have satis, faction entered on the judgment, or the execution set aside. The plaintiff moved for leave to amend the judgment, and execution, so as to require the sheriff to levy the debt and costs of the assets of D. Sealy, in the hands of defendants, et si non, de bonis 'propriis. His Honor refused permission to enter judgment for the -debt de bonis propriis. and granted the order to set aside the execution. The plaintiff appealed — and the Court of Appeals reversed the judge’s order to set aside the judgment, and gave leave to amend the judgment and execution, as prayed by the plaintiff. See the case 1 Hill 167. The plaintiff took out of court the residue of his judgment-, and also the amount of a small- judgment against the same parties, which had been assigned to hi».</p> <p>This action was brought in the natóe of D. Fogartie, and Eliza Ann, his wife, to recover from the defendant the negroes boughi of the sheriff.</p> <p>The plaintiffs examined James Allen, who swore that the plai'. tiff, Eliza Ann Fogartie, asked him to accompany her to the saleon Tuesday, 3d April, 1882 ; that she forbid the sale, and said the negroes were not the estate of Scaly’s, but her’s. That they were put up and bid in by her at 249 dollars. That she said she would pay the money in ten or fifteen minutes. That the sheriff wailed ten or fifteen minutes, and put them up to sale again, and they were bought by defendant at $115. That she told him she had the money, or was to get it at the court-house. That he could have lent her the money, and would have given $250 for Tom, oi.e of the negroes.</p> <p>Mrs. Allen said that she called on fiubbell, with E. A. Fogartie, soon after the sale ; and E. A. Fogartie offered to pay him, hut he refused to give up-the negroes, but admitted he had promised to do so. Said he had had a great deal of trouble, and there was another judgment.</p> <p>William Arms proved a demand and refusal.</p> <p>The sheriff’s books were produced, in which it was entered that the negroes were sold as the estate of Sealy — bought in by E. A. Fogartie, and re-sold at the expiration of fifteen minutes. First, sale, $245 — second, 115.</p> <p>A deed from David Sealy to James M. .‘Lowry, dated-December, 1827, was produced, by which Die and Tom, with other property, were conveyed by David Sealy to James M. Lowry, in trust, for the sole and separate use of E. A. Sealy ; and after her decease, to the children of D. Sealy and E. A. Sealy, if any ; and if none, to the said E. A. Sealy and her heirs; riot subject to the debts, of her present or any future husband; and also, the judgment and execution, and all the orders made in the case of Hubbell vs Fogartie.</p> <p>W. Meacber proved the value of Tom, 250 dollars ; and that he was hiring him of plaintiff for upwards of a year before the sale, at 8 dollars a month.</p> <p>Mr. Hunt testified that he had a note of plaintiff, E. A. Fogartie, on which he could raise the money. That the mteution was to for. bid the sale ; and as a last resort, buy ii the property. That- Ilub-bell’s debt was intended to be paid out of Lord’s debt, when the estate ®t Sealy was settled. That the case with Lord was settled about six weeks ago ; and a sum of about 100 dollars, exclusive of costs, recovered. The property in dispute with Lord was included ih the deed of 1827. A notice tolhe sheriff, stating- tint the negroes taken in execution, were included in the deed of 1827, and not liable to the execution, was attached to the execution.</p> <p>E. A. Fogartie is the widow of Sealy, and married to the otbet plaintiff since his decease. This suit is brought for her benefit; anil Fogartie required an indemnity against the costs, for which security was given.</p> <p>Dr. Irving Was called by defendant. He proved that E. A. Fo-gartie called on him, April, 1832, on Monday,, and requested him to postpone the sale till Tuesday, to which he assented. That on Tuesday the negroes were put up to sale, and when E. A. Fogartie had bid to the amount of the debt, Hubbell said all he wanted was his money,,and stopped. That they were knocked off to E. A. Fogar-tie, and she requested time to pay the money. That he told her the time allowed was fifteen minutes, and that he must sell again the same day if she did not comply; and advised her to look out for the money. That he waited more than fifteen minutes, and asked her what she was going to do. That she told him she could raise the money in ten or fifteen days, but could not pay it that day. That he then resold — put them up at the former bid, and no one offered $ that he put them lower and lower, till at last there was a bid, and they were then bid up again to 115 dollars, and at that price were knocked off to Hubbell. They were sold separately. After the sale, Hubbell said if she would pay the debt in ten days, he would take his money and give up the negroes.</p> <p>His Honor charged the jury, that the execution did not authorize the sheriff to take the negroes of E. A. Fogartie; and that no title passed by the sheriff's bill of sale.” The jury found for the plaintiff</p> <p>The defendant appeals, and moves for a new trial:—</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 separate use of the wife: Whereas* it is respectfully submitted—</p> <p>First. — That the bona fides 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 precluded 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>On the general and well settled principles of the law of Baron and 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 cover-ture, although for a debt or default of the wife before marriage. That was she only question seriously 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 ac* qaíres 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 makes 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 coverture. 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 enly for conformity, and on the ground of the legal union which is sup. posed to exist. A technical rule of pleading, not sustained, perhaps, by any good reason; but the husband only is liable in person or property. 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. I subjoin the authorities on which I rely, to sustain this view. But on another ground, the plaintiffs are entitled to recover ; at least the negro was not 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. Fo'. gartie,) 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,j 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 dis. cussion of the form of action, and whether the cestuy que trust can maintain the action in his own name, which I shall avoid here, remarking only, that being in possession, with the permission of the trustee, the cestuy que 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 tides of the deed was not made a 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>B. Jl EARLE.</p> <p>If baron and feme are sued on the wife’s bond, entered to by the féme, before marriage, and judgment is had thereupon, and the wife die? b 'fove execution, yet the husband is liable, for the judgment hafíi altered the debt. — Sid. 337 — Bacon, Barea and Feme.</p> <p>• So ii' the husband and wife had recovered in right of the wife, and bad judgment, the husband might sue out execution after the death of the wife_Cro. Car. 208.</p> <p>If there be judgment iu debt upon a bond against a feme sole, and she marry, and after upon sci. fa. against Ihe baron and ferae, and nihil returned, and thereupon judgment be had against the baron and feme, and so it rest for a year and a day, and then the wife die, a sciri Licias will lie against the baron, to shew cause why execution should not go against him upon the first judgment, for the award of execution lies absolute against the baron and feme; and so it became his debt; whereas, belore it was only the debt of the wife. — , Caith. 30,</p> <p>If a man marries an administratrix to her former husband, and iu her widowhood wasted the assets of her intestate, the husband is liable to the debt of the intestate, during the life of the wife ; and this, shall be deemed a devastavit in him. — Cro. Car, 603.</p>

<p>Tried in Charleston, May Term, 1835, before his Honor Judge Eakle.</p> <p>The defendants made a contract with the plaintiff to build and de. liver to him a ship of 330 tons, of which they were to furnish all the materials. To secure the faithful performance of their contract, they executed to the plaintiff, on the 24th April, 1882, a bond of indemnity, with condition to deliver the said ship to the plaintiff, furnishing themselves all the materials, at their own charges ; and with the further condition to “ indemnify and fully save harmless the said Jonathan Lucas, his heirs, &c .from, all and every damage or loss, charges or expenses, which he shall or may incur, or be put to, from or by reason of any moneys which he has paid, or which he shall hereafter pay, or cause to be paid, to the said O'Neale and Bird, and either of them ; and also from all and every damage or loss which shall or may arise or accrue to him, the said Jonathan Lucas, his heirs, &c., from or by reason of the negligence, omissions, or misfeasances of them, the said O’Neale imd Bird, or either of them, in and about the building, or finishing of the said hull, or ia and about accounting for, or pay. ing, or making good any sum or sums of money to the said Jonathan, ■which have been paid, or which shall hereafter be paid by him, to the said O’Neale and Bird, or either of them, or upon their account, or by their direction.”</p> <p>Upon this bond judgment was confessed at the time of its execution, and afterwards a rule was taken out by the defendants to submit its condition to a jury, whereupon the following case was made.</p> <p>On the 20th March, 1832, the defendants went to the lumber yard of Thomas Bennett, and ordered the lumber necessary for the ship. Mr. Bennett informed them that the lumber would be furnished, but that as the ship was for his son-in-law, Mr. Lucas, he intended to make him a- present of the lumber which would be required to build it; that as the defendants, O’Neale and Bird, were bound to furnish the lumber, he, Mr. Bennett, would have the items entered separately « for the new ship,” so that they and Mr. Lucas could settle lor the Same, and that the amount of this lumber bill should be considered an advance of that amount of cash by Mr. Lucas. To this arrange* ment the defendants assented, and upon the faith oí it the lumber Was furnished.</p> <p>Before the vessel was finished, the defendants became insolvent, and made an assignment. Shortly thereafter, the clerk of Mr. Bennett called on them with an account, in which he had entered, by mistake, the materials for this ship in common with the other articles of lumber furnished O’Neale and Bird. The defendants objected to the account on the ground that they were to settle with Mr. Lucas for the lumber for the ship, and insisted that it should not have been charged against them in Mr. Bennett’s bill. The clerk reported this to Mr. Bennett, who informed him that O’Neale and Bird were correct, and that he, the said clerk, had erred in uniting both accounts. That accordingly the clerk again saw the defendants, struck out the said lumber bill, amounting to $1435,10, took the defendants' note for the balance, and gave them, in behalf of Mr. Bennett, a receipt in full.</p> <p>The plaintiff, Mr. Lucas, claims that the said sum of $1435,10, was an actual advance by him to the defendants, by their own assent; that the gift of the lumber to him by Mr. Bennett, made the property his ; that it was so much money paid by him for the use of O’Neale •and Bird, for materials which they had bound themselves to furnish; and that by their own agreement, and (to use the words of Mr. Bird, the defendant himself, while giving testimony in the case,) “ they ex. pected to have it to pay to Mr. Lucas and that under these circumstances it comes within the condition of his bond of indemnity.</p> <p>The following is the testimony in the case copied from the judge’s notes:—</p> <p>Thomas Bbnwett deposed as follows—</p> <p>Mr. Lucas was to pay for the ship by the ton ; $40 per ton. This was to defray all the expenses of the hull. Defendants were to furnish all the materials. Witness’ mills furnished a portion of the plank, witness having na interest in the account for himself, Defendants had long been customers at the mill. When the defendants began to give orders at the mills for the lumber, they were informed that the lumber procured at the mills was a gift to the plaintiff. The defendants assented to this arrangement. They could have no motive to do otherwise. (The lumber bill being produced, is verified by Mr. Bennett.) The defendants have never been considered responsible for the bill, and never have been called on for it. It was kept separate from the other accounts for this especial purpose, else it would have been put down in their general bill. The amount is $1435,10.</p> <p>A. Trouche testified upon a matter which was subsequently yielded by the defendant’s counsel, so that his evidence is now immaterial.</p> <p>Wiixiam Bird, one of the defendants, was produced in behalf of the defendants, by consent. He deposed, “ that the actual tonnage of the ship was 830 1-2 tons, from the entry at the custom house. The contract was $40 per ton, custom house measurement, {The witness produces the order for the lamber, or an exact copy? date 20th March, 1832, signed by O’Neale and Bird.) Had been customers and purchasers ou credit at the mills; never requested plaintiff to pay this bill, and never heard of O’Neale’s doing it. Never heard that plaintiff had paid the bill. (The witness examines another bill for some lumber, which was rendered in to defendants for payment, by Bennett’s clerk or collector.) Lanneau, (Mr. Ben,nett’s clerk,) presented the bill. Witness requested him to leave it a day or so for examination. Witness had heard from O’Neale that the plank was a present from Mr. Bennett to Mr, Lucas, and then told Lanneau of it, and asked why he had brought the bill for the whole, including that presented by Bennett to Lucas. Mr. Lucas never informed whness that he would call on defendants for that bill,- and he never heard that they were to be made responsible to the plaintiff for the same, until after the failure of defendants. Alter the ship was finished and delivered, the plaintiff frequently said he would enter satisfaction on the judgment. Often promised to do so, but put it off from time to time, without making any objection. 'Defendants are insolvent. Knew that they would be so, before the lumber was all furnished. Mr. Bennett must have known it. No doubt that the lumber was furnished on the faith of the arrangement with Lucas; but he does not know how it was. Supposed so only from what O’Neale said. After the lumber was furnished, witness declined pay* ing Bennett, ejecting to have it to pay tor, to Lucas; but was in hopes, rather thought, that as they had made a losing bargain, that it would be turned over to witness, and would not be exacted from them. The lumber was to be paid for. The final settlement was made after the assignment. The failure of defendants was anticipated from the loss on the contract. If Mr. Bennett, himself, had brought the account, and demanded the note, he would have given it."</p> <p>Mr. Lanxeaxt, called in reply, stated, that he was the clerk of Mr. Bennett, was privy to the furnishing the lumber from the begivni ig. Does not know what the contract was, but charged the lumber accord, ing to the directions of Mr. Bennett.</p> <p>Thomas Beotostt recalled. When the lumber was about to be delivered, witness called at the ship yard, and said to Mr. Bird, “ this lumber will be charged to you, but it was a gift to Mr Lucas, and was not to be paid, but was to be settled out of the ship.” On the failure being about to take place, the defendants com mnicated the fact to witness — and he was about to furnish them aid, when it was found that they could not go on. They were distinctly informed of the amount necessary to complete the ship, including the lumber in. question. They said about ¡¡¡>7000, and witness supposed that they both fully understood it, and that the sum for the lumber was to be allowed Lucas out of the sum to be paid by him for the ship. They were still engaged in framing the ship when the conversation took place. When witness first communicated the arrangeme it to' the defendants, it was at a time when he had a perfect confidence that they would pay him.</p> <p>Upon this evidence the judge charged the jury, that the iefe dents bad been originally liable to Mr. Bennett; that that liability still con Sinned, and Mr. Bennett might yet maintain his action for the account ; that this liability to.Mr. Bennett could not be transferred by him to Lucas ; and that if the defendants were ever liable to Mr. Bennett for the lumber bill, the plaintiff could not recover. He further in. structed the jury, that putting the bond out of the question, Lucas could not now have maintained an action for this demand, and that there was no consideration moving between Lucas and the defend, ants ; that if the plaintiff could not recover in an action of assump. sit on the original demand, he could not recover the bond.</p> <p>The jury found for the defendants, and the plaintiff moved for a new trial, on the following grounds :—</p> <p>1. Because his-Honor instructed the jury, that upon his construetion of the bond, the plaintiff could not recover.</p> <p>' 2. Because his Honor further instructed the jury, that if the de. fendants were ever liable to Mr. Bennett for the lumber bill, the plaintiff could not recover.</p> <p>3. Because his Honor further instructed the jury, that Mr. Bennett might now maintain his action against the defendants, and could not transfer the liability; whereas,' it is respectfully submitted, that the evidence proved a discharge of the defendants bj Mr. Bennett, and a settlement of the claim by Mr. Lucas, at the request, -and for the account of the defendants.</p> <p>4. Because the judge further instructed the jury, that an action of assumpsit was a fair test of the plaintiff’s right to recover, and that putting the bond out of the question, the plaintiff could not recover in such an action.</p> <p>5. Because the judge further instructed the jury, that there was no consideration between the plaintiff and defendants.</p> <p>6. Because the verdict is contrary to law, in not allowing the amount of the said lumber bill.</p> <p>Debt on bond. The defendants were ship builders, and undertook to build a ship for the plaintiff, to whom they gave this bond, to indemnify and save him harmless for all advances he had made, or might make for and on their account. The bond was dated 24th April, 1832. Judgment had been confessed on it, and the condition was now submitted to a jury to assess damages. The question sub. mitted, was, whether the defendants were liable to the plaintiff for $1435,10, the value of certain lumber furnished by Mr. Bennett to them, as an advance, by the plaintiff, under the stipulation in the bond. The defendants were customers of Mr Bennett at the mills. They had a running account there, and gave their first order for the lumber in question, on 12th March, 1832 ; which was furnished, and delivered to them from that time forward, as they needed, and charged to them at the mills. The defendants, in the contract, were to sup. ply- all the materials. The lumber in question, was a gift by Mr. Bennett to the plaintiff, his son-in-law. But it was not proved that there was ever any express understanding in relation to this lumber, between the plaintiff and the defendants. The respectable witnesses, Mr. Bennett and Mr. Bird, who were both examined, did not entirely concur. Had the lumber been sawed for the plaintiff, had he delivered it, or had it been delivered on the order of the defendants, in pursuance of any understanding with him, it must have been considered an advance as much as if he had paid money for it. But it was delivered to the defendants by Mr. Bennett, as a gratuity to the plaintiff, and was charged to the defendants, and seems to have been marked on the books, “ for the new ship.” Mr. Bennett testified, when the lumber was about to be delivered, he-mformed the defendants that it was a gift to the plaintiff, that it could be charged, to them, but they were not to pay him for it, but it was to be settled out of the new ship, and that they assented to this arrangement, Mr. Bird testified, that Mr. Bennett’s clerk presented them a bill for payment, including the lumber in question. It was left for examination, and he was informed by his partner, O’Neale, that it was a gift to Lucas. It was then withdrawn, and another bill made out. They never assumed the payment ef the price of this lumber to Lucas, who never ir.iormed them that he held them liable, and they never heard they were to be responsible to the plaintiff, until after their failure. (N* B. They had failed, I think, during the progress of the work, and had made an assignment. T'sis was, in fact, a controversy between the plaintiff and the assignees.) On the contrary, after the ship was finished and delivered, the plaintiff frequently said he would enter satisfaction on the judgment, and promised to do so ; but put it off from time to time, without making any objection. But there was no doubt the lumber was furnished on the faith of the arrangement with Lucas. Supposes so, only from what O’Neale said after the lumber was furnished. He expected that he would have to pay Lucas for the lumber, but was in hopes as they had made a bad bargain, that it would not be exacted of them. And if Mr. Bennett had brought the account, and demanded a note, he would have given it. I charged the jury, that the question was, whether the plaintiff in relation to the value of this lumber, had made an advance to the defendants, or on their account, within the true meaning and intent of the condition of the bond ; that if the understanding and agreement existed at the date of the bond, that the lumber in question was to be ¿onsidered an advance to the defendants, for which they were to account to the plaintiff, and the bond was executed in reference to that as well as other advances, then the plaintiff was entitled to recover. That it was therefore important to ascertain the time when such understanding took place. If the defendants were liable to Mr. Bennett originally, then the demand could not be transferred by parol, as a gift or otherwise, so as to constitute a debt to the plaintiff; and in. that case, the plaintiff must sue in Mr. Bennett’s name. If they were not so liable to him, and the plaintiff could have recovered in his own name on the original demand, then he was entitled to reco-yer on the bond, not otherwise. The jury found for the defendants. The plaintiff appeals on the grounds annexed. What I have stated of the charge, will render further remarks unnecessary.</p> <p>B. J. EARLE.</p>

<p>Tried in Charleston, May Term, 1835, before his Honor Judge EaRle.</p> <p>Trover for a negro man, Neptune.</p> <p>Plaintiff claimed under a paper purporting to be a bill of sale from Richard Connelly to John W. Murray, in trust for his wife, who was the daughter of Connelly, dated 23d September, 1826, recorded 27th January, 1827. Murray died in April, 1829, having made a will,appointing his wife sole legatee and executrix, dated 18th April, 1829, and Mrs. Murray qualified the same day, and soon after intermarried with the plaintiff, Thompson. The defendant claimed as purchaser at sheriff’s sale, as the property of Richard Connelly, under an execution against him, in his, defendant’s, favor, lodged 2d October, 1829, on a judgment of the same date, founded on a note of recent date. He also gave in evidence, a judgment in favor of the ordinary of Charleston district vs. Richard Connelly, 14th February, 1829, on a bond, dated 14th January, 1828. Shortly before the sale by the sheriff, Thompson had placed the negro in the hands of an auctioneer, who sold him to Wagner ; the sheriff levied on him when in Wag. ner’s hands, or after he had returned him on account of the dispute in the title, as the property of Connelly, and sold him to the defendant on the 8th June, Í83G. The.plaintiff, Thompson, by some means ■obtained possession of the negro in January, 1835, and lodged him in jail for safe keeping, directing the jailor not to lock him up, to give him the liberty of the yard, and every indulgence. The defendant -on the same day lodged & detainer, directing the jailer not to giv® him up to the plaintiff, not to lock him up, and whip him if necessary. The plaintiff did not apply for him afterwards, but the jailer deposed that he would not have given him up if he had. On the 23d February, 1835, the plaintiff commenced this action, and on the 5th March, the negro escaped from jail. The pleas were not guilty, and the statute of limitations.</p> <p>1st. I held, and so charged the jury, that the exception in favor of femes covert allowing them five years, operated in favor of Mrs.Thompson, and that the plaintiffs are not barred in four years.</p> <p>2d. It was clear, that the conveyance, purporting to be a bill of sale, was voluntary, .the plaintiffs themselves had, in a bill filed, called the paper a deed of gift, and Connelly, the donor, deposed that there was no consideration paid or received.</p> <p>3d. Was the gift duly perfected by delivery of the negro, or what would have been equivalent, the delivery of the conveyance 1 On this point the testimony was conflicting.</p> <p>William Burrell deposed that Connelly lived with Murray before his death ; that the negro was frequently at Murray’s, and was considered and called Murray’s property; abroad, he attended Connelly,-at home, Murray’s family.</p> <p>James Duffie said Connelly and Murray lived together, and the' negro was about the yard; understood and considered him the pro-. perty of Murray ; heard so from both parties; heard Connelly say he had given him the negro, and did not own any property; their premises were adjoining, and communicated by a gate. And on his cross-examination by the defendant’s counsel, Murray told him Connelly had done something handsome for him, had given him two negroes.</p> <p>On the part of defendant, Connelly testified that he never lived with Murray; that he, Murray, never had the negro in his possession, and if he wished the use of him, always applied for it; that the deed was never delivered to Murray, and was not intended to be, unless he was pressed by his debts. Murray so understood it, and never set up any claim to the property ; he came one day into the shop and got the deed out of the desk, and told him afterwards he had put it away safe enough, and did not consider it of any account. Thompson seized the negro and tried to sell him.</p> <p>Mrs. Murray, another daughter of Connelly, deposed, that her father always had possession of the boy until Murray’s death, after that he had lived with her, and still had the negro in possession.</p> <p>The circumstances attending the execution of the deed of gift, were stated by these two witnesses. Connelly said he was then in debt, had been burnt out at the fire, and was apprehensive of a bond he had signed as security for Mr. Gannahan, who had failed; was endorser on some "notes for M’Guire, on which judgment was obtained in 1829, and not yet paid. He made the deeds, this and one to his daughter Elizabeth, with the intention of securing something to himself in case these debts should come against him. He owed the debt at the time and before the bills of sale or deeds of gift were made ; owed for money borrowed after the fire. Owed him at that time the largest portion of the judgment which he confessed. Mrs. Murray said when the deeds were executed, her father said they v/evo not intended to take effect until after his death, as he was gob g to sea. Mr. Perry, who drew Murray’s will, deposed that Murray did not enumerate this negro with his other property, and made no disposition of him. Mr. Elford siated that Connelly confessed a judgment to him for $1600 or $1700, to protect him from some debts he owed as security. This Mr. Elford liad entered as satisfied, when Connelly was sued. 3d. The question as to the delivery of the negro, or the delivery of the deed, was submitted to the jury with proper instructions. The counsel, in his second ground, has mistaken what was only a suggestion, by way of argument, for a positive instruction. The deed was obtained by Murray clandestinely; and this was a strong argument that it had not been delivered, but the donor permitted it to remain in his custody ; he had also recorded it, Which io of itself, strong, if not conclusive evideucc of delivery ; and but for the recording, I should incline to think the weight of evidence was against the delivery of the deed. 4th. The next question was, whether the deed was fraudulent and void as to creditors ; and on this point the counsel has mistaken, in part, the charge. I instructed the jury, that the defendant to avoid the deed, could not avail himself of ether debts which had been paid off; only such creditor as was delayed, hindered, or defrauded, either existing or subsequent, could impeach the deed ; that however fraudulent, as to ex. isting debts, if they were paid off, the deed is good. That if the defendant was an existing creditor, and all the donor’s property was conveyed, and he has been, or will be hindered or defrauded of his debt, the verdict must be for the defendant; that as the defendant also claims to be a subsequent creditor, it was material to enquire, whether the donor continued in possession, as in that case the conveyance was void. But if there were no existing debts that remained unpaid, and the possession bars accompanied the deed, then it. is good against the subsequent creditor, unless made with a view to future indebtedness ; in' that case it was a question of intention for the jury. But if the donor remained in possession, it is void against the subsequent creditor, notwithstanding the recording. Oa the whole, I thought the defendant ought to have a verdict. But the case was submitted to the jury on the facts. I think the evidence, as to the delivery of the negro, was very slight. That he was in possession of Con-nelly from the death of Murray, until January. 1830, was clearly proved; this, in connection with the fact, that Murray made no disposition of him by will, would afford a strong presumption that the deed was colorable merely. The jury found for the plaintiff the full value of the negro. If the title was with the plaintiff, I thought the-defendant liable for the full value. His acts while the negro was in jail clearly constituted a conversion, and as there was no proof that the negro came again to the possession of the plaintiff, I thought the defendant liable for the full value. The defendant appeals on the grounds annexed.</p> <p>B. J, EARLE.</p> <p>1. Because his Honor charged the jury, that Jane Thompson, one of the co-plaintiffs, being a feme covert, the action in behalf of the estate of Murray was not barred until five years after the cause of action had occurred.</p> <p>2. Because his Honor charged the jury, that the donor, not recovering possession of the deed in dispute, from Murray, was equivalent to a delivery by him ; whereas, it was clearly proved, that the possession of the deed was obtained fraudulently, and kept by force in opposition to the will of the donor.</p> <p>3. Because his Honor charged the jury, that only creditors existing at the time, a voluntary deed is made, would impugn its validity, and if these debts are paid, that the deed is good as to all the world.</p> <p>4. Because his Honor charged the jury, that the defendant was liable for the value of the slave in dispute ; whereas, it was proved, that he was taken out of his possession by the plaintiff, and that he has never had him in possession since.</p> <p>5. Because the fraud ulency of the deed was clearly established, and the verdict of the jury was contrary to law and evidence.</p> <p>6. Because by the deed relied on by the plaintiffs, no interest in the property conveyed, is transmitted to the plaintiffs as representatives of the testator, John Murray.</p> <p>7. Because it was not proved, at the trial, that the estate of John Murray, the testator, had any property in the slave in dispute.</p>

<p>Tried in Charleston, May Term, 1835, before his Honor Judge Earle.</p> <p>Assumpsit on merchant’s account, for goods sold and delivered. ■</p> <p>The books were produced and proven by a clerk of the plaintiff, who made the entries. So much of the demand as embraced articles delivered to the defendant himself, not disputed. This sum was $92,96. The plaintiff also claimed the further sum of $407,69, for goods charged originally to Mary C. Pellott, a free colored woman, lbut delivered to her daughter, or furnished for her here, with whom the defendant had some connection. On this point, the testimony was, in addition to the books, which established the original charges to Mrs. Pellott. as follows: — After the death of the young woman* the daughter, and after the account was rendered in to the mother, the defendant called on the plaintiff, with the accounts in his hands, and promised to discharge the demand against Mrs. Pellott, by having the amount charged to himself; her account was accordingly credited in full, both in the day book 'and ledger, by his assumpsit, and the amount was charged to the defendant, thus :—</p> <p>1881 — November 25, Mrs. Mary C. Pellott, Cr.</p> <p>By J. C. Cochran’s assumption, $407 69</p> <p>Same day — J. C. Cochran, per self, Dr.</p> <p>Mary C. Pellotl’s account, $407 69</p> <p>The defendant promised to pay both demands by instalments of $100. After he assumed the payment, plaintiff demanded a note, which defendant refused to give; saying he should not .be able to meet it. But if plaintiff would forbear, and wait with him awhile, he would pay by instalments. No length of time was specified for the forbearance, Action was brought 28th April, 1832.' The recovery of the plaintiff was resisted on the ground of the statute of frauds, which requires the promise to pay the debt of another, to be in writing. I thought the proof made a case to which the statute did not apply. If the goods had been delivered, originally, to Mrs. Pellott, or her daughter, on the parol direct undertaking of tire defendant to pay, and they had been debited to him, the debt would have been his, and the undertaking not collateral, and not within the statute. After the goods were debited to Mrs. Pellott, and the credit given to her, it was competent for the defendant, by parol, to make himself liable on an undertaking to pay; if, at the same time, the debt and liability of Mrs. Pellott were entirely released and discharged. In such case, the promiser becomes the substitute of the original debtor — (2 Con. Rep. 115 ; 3 M‘Cord, 162) — and his undertaking is original, not collateral; as it would be, if the original demand were allowed to subsist. In this case, it seemed to mo, that the liability of Mrs. Pellott, was extinguished as completely as if the plaintiff had executed a release. It was clearly the intention of the defendant to make himself directly, and absolutely, liable. 1 N. R. 124 — 5 Taunt. 450 — 1 B. and Á. 297. And a parol undertaking for another, on a new consideration, raised by the' promiser, would be g®od. The discharge of Mrs. Pel-lott, and the forbearance to herself, would together form a sufficient consideration, uniting an inconvenience to the plaintiff, and a benefit to the defendant, as well as to Mrs. Pellott. I instructed the jury, that the defendant was liable, on his undertaking, and they found plaintiff the amount of his demand. B. J. EARLE.</p> <p>The defendant appeals from the above decision, and moves for a new trial, upon the ground—</p> <p>That his Honor erred in charging the jury, that the credit having been given by the plaintiff in his books, to Mrs. Pellott, for the amount of her account, and the same transferred to the debit of the defendant, was a discharge to Mrs. Pellott, and therefore took the case out of the statute of frauds.</p>

<p>Tried before the City Court of Charleston, April Term, 1835.</p> <p>This was a suit for four penalties, each for twenty dollars, for hiring out negroes, within the city, without the necessary badges, and contrary to the ordinance, City Laws 185.</p> <p>Solomon Moses, the marshal, was called up as a witness. Defendant’s counsel had him sworn on his voire dire, and he said he had no interest, and could never have any, by an ordinance, when called to give testimony, as he was thereby deprived of all share in the penalty recovered.</p> <p>To avoid all difficulty on this score, the city attorney drew up a release from the witness to the plaintiffs, which the witness signed and handed in.</p> <p>Defendant’s attorney then objected to the release, unless it were made to the defendant, but the court, on the case of Executrix Christie vs. Executor u»v. Furman, November term, 1827, overruled the objection ; and the witness, though still contended to be interested, was sworn in chief. He testified, that he knew the defendant, who resided in town ; that he knew his four negroes, named John, William, Abraham, and Boston ; that the first three were hired by defendant in town, to one Mr. Marshall, and the last to Mr. Dottereau. The witness found these negroes working out without badges, on the 3d February, and called on and informed defendant of the fact; that the defendant admitted they were his negroes, that he had no badges, and he promised the witness that he would petition council to be relieved from the penalties incurred, and witness then, said he would not seize them, as he could wait till defendant had applied. This was on the 3d of February, and the defendant, instead of performing his promise, immediately went and took out badges. The ne-, groes were at that time working in the bake-house. On his cross-examination, he said the bake-house was hired out by defendant, together with the said four negroes, to Marshall and Dottereau, the year before; that badges had been taken out the year before, but they expired on the end of December, and had not been renewed till after witness discovered that the negroes had, been working out without badges; that the bake-house is in defendant’s yard, and is not divided off by any fence from his house, as witness believes.</p> <p>Here the evidence closed, and the city attorney contended that he had proved his case, and was entitled to a verdict of eighty dollars, being twenty dollars for each negro ; for it was clearly shewn, that the negroes were working out from the 1st January to the 3d February, without badges, contrary to the ordinance.</p> <p>The defendant’s attorney, on the other hand, urged that the law had not been complied with so as to entitle the plaintiffs to a verdict. The defendant had taken out badges the year before, to endure till the last day of December, and was thereafter at liberty to renew the same at the beginning of every ensuing year, on payment of the usual fees ; that these badges were accordingly renewed on the 3d February, which was sufficiently near the beginning of the year, and this was done before the negroes were seized; that in fact they had never been seized, and if any agreement had existed between defendant and the marshal on the subject, by which the latter was aggrieved, he had his remedy in another form. That the badge law related, besides, only to such slaves as were employed for hire out of their owners’ houses or families ; whereas, these negroes were employed in the defendant’s bake-house, in his yard, which, though hired to Mar. shall, was still regarded as his premises.</p> <p>I charged the jury, that the first question was, whether the bakehouse was a place out of the house or family of the defendant ? That defendant had admitted it was leased to Mr. Marshall, and the only pretence for this claim of ownership now, was, that the bakehouse was not divided off from defendant’s yard. I thought a partition fence would not alter the rights of any of the parties ; that the bake-house was Marshall’s, and not defendant’s, who had parted with it and the negroes to Marshall, whose they were against all the world, during the existence of the contract of hiring; that the defendant’s four negroes, were, in my opinion, proved to have worked out without badges, from the 1st January to the 3d February ; that, therefore, they were either liable to seizure, or the defendant might be sued for the penalties ; that the defendant avoided their seizure by a promise to the city marshal, which he had not performed; but this trick could not exonerate him from the penalties: that the city council alone could do this: that if the officers of the city allowed the owners of hired negroes the month of January in which to renew their badges, as the city attorney had admitted, still the defendant had transgressed this indulgence, and infringed the law on the 1st and 2d of February, and his obtaining his badges on the 3d, would not relieve him from the violation of which he had been guilty. I left the case, however, to the jury, and they found for the plaintiffs. The defendant appeals on the following grounds annexed.</p> <p>SAMUEL PRIOLEAU.</p> <p>1. That Mr. Moses was an incompetent witness.</p> <p>2. That the case was not proved as laid.</p> <p>3. That his Honor instructed the jury, that the circumstance of Marshall’s earying on the baking business in defendant’s residence^ was immaterial.</p>

<p>Tried before Mi. Justice' Evans, at Coosawhatchie, Spring Term, 1835. .</p> <p>On tbe 3d of February, 1824, one John H. Jenldns being indebted to the plaintiff tor house rent, gave her his promissory note for $100. In August, 1828, Jenkins being pressed on the note for payment, the defendant, his stepfather, made the following endorsement, and procured indulgence : “ Endorsed by Charles Givens. — Due the first of January, 1829. Beaufort, 20th August, 1828. Charles Givens.” The action was on this endorsement. Tlie plaintiff, by clear testimony, took the case out of the statute of limitations; and it was also shewn by oral testimony, that the consideration of the endorsement was forbearance, (for no certain or specified time,) to sue Jenkins on the note.</p> <p>Mr. A. M. Smith, defendant’s attorney, moved for a non-suit, on the grounds : — 1st. That the consideration of the undertaking by Givens, being to pay the debt of a third person, should be in writing. And, 2d. That the testimony did not prove any sufficient consideration for the promise.</p> <p>The presiding judge granted the motion, and tbe plaintiff now appeals—</p> <p>1st. Because, if the promise to pay is in writing, the consideration need not be expressed, but may be proved by oral testimony. ;</p> <p>2d. Because the evidence did prove a sufficient consideration for Givens’ undertaking, and the plaintiff ought to have been suffered to go to the .jury.</p> <p>One 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 February, 1828, 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, he would settle or pay it. In consequence of this, the plaintiff forebore to sue Jenkins. These facts were proved by Mr. Talbird. Mr. Cole, another witness, said the defendant promised to pay it to him in 1831. On the back of the note, when presented by Talbird, in August, 1828, the defendant wrote as follows: “ Indorsed by Charles Givens. — Due 1st January, 1829.”</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 vs. Walters, 5 East. R. 10, it was decided, that the requisition of the statute was not complied with, unless both the promise to pay and the eon»-deration 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 hath since received the sanction of all the law courts of England.</p> <p>The case of Stevens, Ramsay & Co. 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 the uncertainty of human memory, and all the dangers of frauds and perjuries, which the statute intended t® 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 & Co. vs. Winn. It was enough for me to know, that such had been the decision of our highest court. JOSIAH J. EVANS.</p> <p>The best discussion on the subject of the foregoing case, 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>Tried befoie his Honor Judge Bay, Charleston, October Term, 1835,</p> <p>Selling of Spirituous Liquors to a Slave, without a Ticket from the' Master or Owner.</p>

Tried before his Honor Judge Bay, Charleston, October Term, 1835. Selling Liquors to a Slave. Judge's Report of Testimony. James Miller. — On the 13th June last, he gave a slave three cents, and sent him with an empty bottle into defendant’s shop, and he brought him out a pint of whiskey. Witness stood in the street, and saw; the boy go in and come out of defendant’s shop with the liquor. There were fifteen or twenty negroes in the shop. He is a city marshal. Mr. Wish.

Tried before his Honor Judge Earle, Beaufort, Spring Term, 1836. This was an issue denisavit vet non, on an appeal from the Ordinary of Beaufort District,-who had admitted to probate, a paper pur. porting to be the will of William T. Kirkland. It was dated 17th August, 1815 — and was attested by three witnesses,' Elizabeth B„ Griffith, Tho. J. Griffith and William Deloach, The two last were dead, and their hand writing was proved.

<p>[In City Court, January Term, 1836.</p> <p>In this case, process was issued against defendant for selling-liquor to a slave, “ whose name and owner was unknown. ’ The testimony proved that the name of the slave, as well as the name of the owner, were both known to the prosecutor and the city attorney. The jury being charged with the case, and the testimony concluded on the part of the city, the city attorney moved to amend his process to embrace the case proved. The counsel for defendant objected and his Honor overruled the objection.</p> <p>The defendant appeals from the decision of his Honor, and moves for a non-suit, on the following grounds :—</p> <p>1. That after the jury are charged with the case, it is too late to move to amend the process, in a case partaking of the nature of a criminal prosecution.</p> <p>2. That after examination of witnesses and testimony, concluded on the part of the prosecution, the process cannot be amended to embrace a different case, than that charged in the process ; and, it is respectfully submitted, that his Honor erred in permitting it to be done. C. C. STROHECKER, Deft’s. Att'y.</p> <p>The above brief is correct; but in granting the city attorney’s motion to amend, 1 ordered a continuance of the case. No verdict has been taken, and the case is on the docket for trial.</p> <p>SAMUEL PRIOLEAU..</p>

<p>Tried before his Honor Judge Evans, Charleston, May Term'} I83S;</p> <p>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. When the note was payable, as the drawer was insolvent, Salmond the president of the bank, called on Shannon, supposing him the owner, but he was from home. He advised McGee, Shannon’s clerk, to withdraw the note. McGee could give no information where the indorsers lived. The note was delivered'to the bank notary, who protested it for non-payment, but no notice ivas given to the indorsers, they not being residents of Camden, and having no agent there. The object of the action was to charge the bank for this omission,- whereby the liability of the indorsers was discharged. The substance of the testimony of Shannon and McGee is stated above. The statement of Mr. Ravenel, as to the usage of the bank, and some letters from Flemming & Ross, and one from the plaintiff to Shannon, with the protest by the notary, constitute all the evidence given at the trial. I was of opinion, and so charged the jury, that when a note lodged for collection was unpaid at maturity, the bank was bound to demand payment of the drawer, and lo give notice to the indorsers. This, I think, is clearly established by the testimony of Mr. Ravenel, and by what is said by the court in ease of Johnson vs. Harth, 1 Bailey, 482. Except m the case of foreign bills, a protest by a notary is not necessary. The bank may employ one, or the demand and notice may be made and given by a private person. I re'-garded the notary as the mere servant or agent of the bank, and if he had omitted to perform his duty, the bank was liable. I was clearly of opinion, that notice to Shannon, the depositor, was insuffi. cient, provided the bank had any means of knowing who the indor. sers were, and where they resided. Whether the bank had used due diligence in ascertaining this fact, so as to enable them to give the proper notice to the indorsers, was left to the jury to decide, and they found for the plaintiff. My own opinion was decidedly, that the bank had done all they could be required to do. Application was made to McGee, the agent of Shannon, and he could give no information about the indorsers.- I am inclined to think, I ought to have stated this opinion explicitly to the jury, and it may be, that in my anxiety to avoid any expression of opinion on the facts of a case, I omitted to state to them what may be more properly considered a question of law.</p> <p>JOSIAH J. EVANS, Presiding Judge.</p> <p> Grounds of Appeal. </p> <p>1. Because his Honor charged the jury, that although the note in suit was lodged at the bank for collection, the bank was bound to give regular notice to all the indorsers, whereas, it is respectfully submit-» ted, that the note being for collection, the bank was the mere agent of the depositor, and bound to give notice of non-payment to him only, and is in no way respónsible to the indorsers.</p> <p>2. Because his Honor charged, that although it was proved that the indorsers did not live where the note wee-payable, that the bank was bound to ascertain where they weré, and to send the notice accordingly, whereas, under such circumstances, notice is due to the depositor only, whose duty it is to give notice to those whom he in. tends to make responsible to him.-</p> <p>3. Because when the endorsers of a note, do not live at the place where the note is payable, if the depositor wishes notice of non-payment to be extended to the indorser, it is his duty to inform his agent, the bank, where the indorser lives, and where this knowledge is duly sought from the depositor, by the bank, the diligence required by law has been fulfilled, and the bank is not responsible.</p> <p>4. That a notary public, is a public officer, and where the bank, at the agent of the depositor, lodges a note with him for protest, the bank is not responsible for his ignorance or laches, unless his incapacity is-notorious.</p> <p>Smith, Attorney General, for motion.</p>

<p>Tried before his Honor Judge Richardson, Coosawhatchie, Fall Term, 1835.</p> <p>This was an action of slander, for words charging the plaintiff with perjury. 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, whioh was tided at Coosawhatchie, at spring term, 1834. This action was commenced in January, 1835. Plea, general issue. An action for a similar slander was pending between the same plaintiff and Levi Youmans; and by consent of counsel, both actions were committed to the same jury, and tried together.</p> <p>The evidence was as follows:—</p> <p>Record of the action between George Goettie and William You. mans, tried at Coosawhatchie, spring term, 1834.</p> <p>Jacob Bowers. Heard of the suit between Goettie and Youmans,-Ephraim Smith was a witness in that action. Smith and Youmans were brethren of the same church. There was- a difference between them. After the decision in favor of Goettie, the church concluded it was a matter worthy of their consideration, with a view to the excommunication of defendant. Defendant, who was a, deacon, resigned his office. At a church meeting called upon, the subject, witness asked defendant, William Youmans, if he could be in full fellowship with the brethren. He paused, and then said he could not. Witness asked liis reason. He answered, he could not hold full fellowship with Ephraim Smith; because he had just reason to believe that Smith bad perjured, or forsworn, himself, to his injury. Witness asked, when? Defendant replied, in the case between himself and Georg® Goettie. At anote meeting of the church, tte Wife» Xouwans bad been excommunicated, Levi Youmans asked the church, as matter of advice, if they thought it right to hold a man in fellowship; whom they thought had perjured himself to his certain knowledge; - Witness asked him who it was? He answered Ephraim Smith. Witness asked, when? and he stated twice he had done it in this court. Once between Howell and Goettie; He specified, that Smith said he' had got up and ran. This was the perjury. Does not recollect the particulars. This was said in the spring of 1834. There had been a difficulty between Youmans and Smith, before the trial of Goettie and Youmans. William ’'umans told witness, Smith had volunteered to become a Witness for Goettie; and said he believed Goettie had given him a very fine cloak, as a bribe. At the investigation, de-' fendant impeached some one, and Smith took it up. After William Youmans had been turned out, as deacon; a month after, at defendant’s, William Youmans’ house, witness asked hita hdw his feelings were towards Smith. He said they were the same; and all the courts and juries could not make him think otherwise. August, 1834.</p> <p>Cross-examined. — These investigations took place in public, and the charges were in the course of regular examinations in church. As to the Charge about the cloak, witness sought the conversation, as pastor of the church, and a friend of both parties, with a view to heal the difference, or if there was any thing wrong, to have it set right; as to the church. The conversation was private and confidential. The other conversation after the trial, in defendant’s ho'use, was of the same character, private and confidential, and sought for by witness. Witness is pastor of the church, of which the plaintiff and defendants were all members. It is a Baptist church.</p> <p>As regards Levi Youmans, he asked the advice of the church, and spoke, as above related, of the plaintiff. According to the weight of the matter, an adherent of the church ought to state his objections to the members. Witness did not think these objections ought to have been stated, but believes it was done through ignorance, by Levi You-mans. It was after William Youmans had been excommunicated; Levi Youmans spoke as related, and it was at the meeting of the church.</p> <p>Witness spoke with William Youmans, upon hearing that he had made such a report, and he stated accordingly, about the cloak. William Youmans did not urge, that he should be brought before the church. Supposes it was two months after the trial, &c.</p> <p>Henry Hall. Heard William Youmans say that Ephraim Smith had sworn false against him. It was some time after the trial between Goettie and Youmans — At church — Same time spoken of by Bowers. Levi Youmans asked of the church, if it was right to hold fellowship with a man who had sworn false, as he said Smith had done once or twice, in the case of Goettie ads. the State, &c; Many persons were present.</p> <p>Cross-examined. — Concurs with Bowers, ás to the church meeting.</p> <p>Royal Roberts. Was present at the church meeting, and confirms Bowers’ statements.</p> <p>Abraham Ruth. Heard William Youmans say, that Smith could not be an honest man; for he was a perjured man, and a perjured mar* could not be an honest man. Witness was asking for recruits, an<f he wished for every honest man, when William Youmans said this to him. It was in the beginning of 1833, and he was getting up volunteers under the act of the Legislature. Witness stopped defendant at once, and said he did not believe it. This was before the trial between Goettie and Youmans, Plaintiff is an honest man. William You,' mans is morose.</p> <p>George Goettie. Was the plaintiff in the suit against Youmans, He summoned Smith, who was-not a volunteer witness. Witness was in church when William Youmans spoke. Witness never gave Smith a bribe. He is a good man.</p> <p>The plaintiff gave in evidence, an affidavit made by William You-mans, charging Smith with perjury, and sworn to in February, 1835. Also, the record of an indictment founded on that affidavit, upon which, both William and Levi Youmans were examined as witnesses before the grand jury, and which was returned “ true bill.”</p> <p>Here the plaintiff closed; and the defendants called no witnesses.</p> <p>I charged the jury, that to entitle the plaintiff to recover — the slander must be malicious; and that it was not so, if spoken in confidence. Nor would the action lie, if the words were spoken in the performance of a duty, unless they were malicious. As to the affidavit to indict, it would not, of itself, sustain an action for slander.</p> <p>The jury found for the plaintiff in both cases; in the action against William Youmans, $500; and in that against Levi Youmans, $5.</p> <p>J. S. RICHARDSON,, Presiding Judge.</p> <p> Grounds of Appeal. </p> <p>1. That the words charged, were proved to have been spoken under the following circumstances, only, to wit: In one instance, at a church meeting, of a church, of which the plaintiff and defendant were, both of them, members, at which the plaintiff was present, and upon an investigation made by the church, which was neither instigated, nor sought for by the defendant, but was instituted by the pastor and officers, for the purposes of church discipline, and were not spoken by the defendant, until called upon, as a member, by the. church: and in another instance, or instances, confidentially, and privately, to the pastor of the church, when the defendant was called upon by him, as pastor, and requested to converse on the subject. And it is submitted, that no action will lie for words spoken under such circumstances.</p> <p>2. That there was not a tittle of evidence, that these words, or any of them, were spoken by the defendant, at any other time, or under any other circumstances, than those stated in the preceding ground,- and that the jury have no authority, in law, upon the mere suggestion of counsel, and without evidence, to render a verdict founded upon the surmise, that the words were spoken at other times, or under other circumstances.</p> <p>3. That the verdict is, in every respect, without evidence, against evidence, and contrary to law.</p> <p>Cglcock and Baxley, Defendant’s Attorneys.</p>

Tried before his Honor Judge Butler, Charleston, January Tern?, 1836. Trading with a Negro. The defendants were indicted under the act of 1834, for buying-rice from a slave. The evidence was as follows : Solomon Moses said that he suspected the store of Berhman ; that he and others sent a negro belonging to Lucas & Bennett to the shop of defendants. The shop was owned by Berhman.. The boy carried' 3 or 4 quarts of rice, and two bottles of lamp oil.

<p>Tried before his Honor Judge Richakdson, Marion, April Term, 1836.</p> <p>This was an indictment for retailing spirituous liquor. The witness stated that the act of retailing was committed at the store of the defendant, by his clerk, <fcc. &c. 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. The objection taken, was, that the store may have been out ¿Í the jurisdiction of this court, and not in Marion district.</p> <p>I charged the jury, that whether the store of the defendant was within Marion district, or out of it, was an inference of fact for them to decide. That it was not indispensably necessary for the witness' to have said, in so many words, it is within the district; if the truth were so, it is enough ; and if the jury knew the place described, to be within the district, that was enough. For example : If the locus in quo had been Gilesborough, it would not have been necessary for the witness to have added, Gilesborough is in Marion district. But the jury must be first satisfied, that the store of defendant was, in fact, within the district, before they convicted the defendant. The verdict found the defendant guilty, and he appeals on the following ground ;</p> <p>That his Honor, the presiding judge, erred in charging the jury, that, though the store of defendant, where the selling took place, was not proved to be in the district of Marion, they might infer that fact from any facts within their knowledge which would lead to it.</p> <p>J. S. RICHARDSON, Presiding Judge.</p> <p>Additional Ground. — That there was no evidence of any selling by defendant personally, but only that his clerk sold, without proving that it was done by defendant’s authority.</p> <p>P. S. The additional ground required me to report further, that the question, whether the retailing by the clerk, implicated the defendant, and rendered him guilty, by reason of his implied authority to the clerk to retail, was left to the jury, as an inference from the facts' proven, within their competency ; and they, alone, were to decide the question.</p> <p>J. S. RICHARDSON.</p> <p>To the Honorable the Judges of the Court of Appeals.</p> <p>It is a general rule of law, that all material averments in an indictment, must be proved, particularly, those which are necessary to enable the parties to avail themselves of the verdict and judgment, should the same charge be again brought forward. 2d Russell on Crimes, 704. 1 Chitty’s Crim. Law, 557.</p> <p>The reason of the rule is so self-evident, that it is unnecessary to argue it. Now, it seems to me, that the venue in an indictment for retailing liquors without a license, is an important allegation, for if not necessary to state the district in which the unlawful retailing was done, then the defendant might be indicted for the same offence, as often as the malignity of the prosecutor might dictate. It will not, however, be denied, that it is necessary to specify the district in which the offence was committed, and it then follows from the rule laid down, that it is necessary to prove the allegation. The defendant may have a store in each of several districts, and because one of them may be located in the district, in which he was arrested and tried, the jury have no right to presume that the offence with which he is charged, was committed at that one. Men are to be convicted upon facts, and not presumptions.</p> <p>The second ground requires no argument, as the question has already been decided by the supreme judicial tribunal of the State# State vs. Borzman, 2d Nott and McCord, 34.</p> <p>I will here close, with a single remark, that by reference to the judge’s notes accompanying his report of the case, it will be found that there was but one act of selling proved ; that, that selling was by the clerk in the absence of the defendant, and that on a former occasion defendant refused to sell. ’</p> <p>Georgetown, April, 1836.</p> <p> Argument in Reply. </p> <p>1. The witness stated, I understand, that the retailing tools; place nt “ William’s store.” Places are sometimes designated by the names of those residing at them, — As “ Rumph’s Cross Roads,” “ Colin’s Bluff.” So a store situated in the country, sometimes gives the name to that part of the country. The jury have a right to infer from the description and name, -whether the store is in the district or not. Suppose the retailing had been proved to have taken place in Georgetown, would it have been necessary to have proved that Georgetown was in Georgetown district.</p> <p>2. The second ground is more formidable. It is determined in the case of the State vs. Borzman, that the retailing of the clerk will not be considered as the retailing of the employer. But the decision is qualified as follows : “ It is considered,” (said the judge, 2 N. and M’C. p. 35,) “ that circumstantial evidence, for instance, the character or system of doing business, or even the business generally done in the store, forms practices or directions to other agents employed, — these and the like would be received, from which to infer, that the master directed or assented to the crimiual act.” Now, in this case, I understand, that it was proved that the defendant was in the habit of retailing liquors, and'-.hat he had not taken out a license for several years past. But, however strong this case may be, it will be seen by re--ference to it, that the bench was divided upon it, and that it was de. termined by a bare majority. Colcock being absent, and Judges Gantt and Bay dissenting, and Nott not concurring in the reasons, I would submit anew to the court, the question, whether the jury have not a right to infer that the clerk retails with the consent of his employer, when the store and its profits are the employer’s; and from its situation in the country, and the habits of the people who deal with the employer, it is clear, that without retailing liquors, the store could not be supported.</p>

Tried before his Honor Judge Bay, Charleston, October Term, 1835. Assault and Battery.

Tried before his Honor Judge Evans, Coosawhatchie, Spring, Term, 1835.

Tried before his Honor Judge Butler, Charleston, January Term, 1836. 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, agaiust 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>On appeal from the judgment of the Circuit Judge, at the Williams-burgh Court of Law, on a special verdict, on a feigned issue.</p>

<p>In the Court of Appeals, January Term, 1836.</p>

Tried before his Honor Judge Bat, Charleston, October Ternf, 1835. This was an action by summary process, on an open account for $81 32, for goods sold and delivered.

Tried before his Honor Judge Butlek, Charleston, January Terra, 1836. The defendant was indicted for selling spirituous liquors to a slave, contrary to the act of 1834. There was but one witness examined, Richard Wish. He said that he was one of the marshals of the city.

Tried before his Honor Judge Evans, Beaufort, Spring Term, 1835. On the 4th November, 1825, the plaintiff lodged with the late Judge Martin,^ a note of one James Hogg, to John Hogg, dated 13th February, 1821; whereon w,re endorsed divers credits, the last of which is dated in April, 1823, for #68. Toe note was for #200.

Tried before his Honor Judge Rxohakdsoht, at Walterborough, November, 1835. Thin was an action on account, for -divers articles, dated 1822. The aocou it net f Tih several credits, raanirg up to 1832, when Mro. Ferguson died. J, ¡I. FJeapv ¡roved that he made out the account, from several old papers.

<p>Tried before his Honor Judge Butler, Charleston, January Term, 1836.</p> <p>Trover for negro Neptune.</p> <p>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.</p> <p>Plaintiff claimed under a bill of sale from Richard Connolly, dated 23d September, 1826, and recorded 17th January, 1827. This paper conveys the negro to John Mi Murray, in trust for the sole and separate use of his wife, who Was the daughter of Connolly.. Murray died in April, 1829, having executed his will, in which he appoints his wife sole executrix.</p> <p>The will gives the property to Mrs. Murray during her life; at her death, should he survive her, to his infant son Michael Murray, and should the mother survive the son, to her absolutely. So that' Mrs. Murray was sole legatee for life certainly, and should her son die be-t fore she dies, she will be the entire owner of the property. Mrs. Murray qualified on the will, the day of Murray’s'death, and in November, 1829, married Thompson, the plaintiff. At the time Thompson married the widow, Neptune did not go into his possession. Connolly seemed to have had possession of him at that time. Connolly and his son-in-law quarrelled soon after the marriage. Thompson went to the house of Connolly and took the negro into his possession; as Connolly said — by force. Thompson certainly got possession of of Neptune. He put him in the hands of Mr. Lance to sell him. Lance was examined, and said that in March, 1830, Thompson brought the negro to him, and requested him-to sell him. That he offered him for sale publicly, and Mr. Wagner became the purchaser. Wagner took the negro home, and kept him for three months. Understanding that there was some dispute about the title, he returned him. The sheriff immediately levied on him, and sold him to defendant on the 8th June, 1830, under an execution in favor of defendant against Connolly, for $500. This Fi. Fa. was on a confession of judgment, founded on a note, of same date of the judgment. The defeudant proved by Connolly, that the defendant had been the family Physician of Connolly from 1826, till the note was given, and that the note was given to liquidate the medical account. Defendant had his books in court, and offered them for inspection. Neptune remained in defendant’s possession until January, 1835, when Thompson, by some means, got possession of him. _ He lodged him in jail for safe keeping, and directed the jailer not to lock him up, but to give him the liberty of the yard. Defendant on same day lodged a detainer. The plaintiff never afterwards applied for the negro, because he was told by the jailer, the negro could not be delivered up on his demand, if made. On the 23d February, 1835, the action was commenced. On the 5th March, the negro escaped from jail, and St now understood to be in defendant’s possession.</p> <p>With a view to avoid the statute of limitations, and to show that plaintiffs claimed Neptune, as executor of Murray’s will, they produced in evidence, Fi. Fa. against Thompson and wife, as executor and executrix of Murray, lodged February, 1831. There is yet a balance due on Fi. Fa. of $50. The judgment- was rendered on a bond of $1666. Samuel Seyle proved that he held a bond and mortgage, executed to the Fellowship Society, by Jane Murray and Richard Connolly, as guardian of Michael Murray, to secure the payment of $2000, bond and mortgage, dated 13th July, 1829. The circumstances under which the bond and mortgage were given, will appear from the following extracts of proceedings in Equity.</p> <p>- Bill filed by Michael Murray,0a minor, by his Prochein amy, Richard Connolly, against Jane T. Murray, 13th May, 1829. The bill states that John M. Murray died, leaving considerable property — particularly a three story brick house on South Bay, valued at $5000, a wooden house in King-street, valued at $1500, some personal property, a negro girl, valued at $300. (From the inventory, the estate was valued at $7088.) By the will, filed as an exhibit, the property, both real and personal, is given by the testator to Jane, his wife, for life, and to complainant after her death, should he survive her. That Jane was appointed sole executrix, and qualified. That power is given in the will to sell personal estate to pay debts, and if that is not sufficient, then to sell the real estate. That personal estate is insufficient, consisting principally of a negro girl, valued at $300. The only considerable debt due to Samuel Saylor, of $1400, for which the three story brick house is mortgaged. That executrix can rent the house for $500 annually. If a loan could be effected, the rent of the house would pay off Saylor’s debt. The bill states that executrix cannot effect a loan, as she has only a life estate. Prayer of bill is, that the court, by a decree, will authorize complainant to join said Jane in a mortgage for said loan.</p> <p>The answer admits the facts, and expresses her assent and wish, that the house should be mortgaged for the loan.</p> <p>The Commissioner’s report states, that he had consulted Mrs. Jane Murray. That $480 have been expended in repairing the house— that rent is equal to $500 a year — which, although exclusively defendant’s, (Jane’s,) as tenant for life, under the will of her husband, she desires to be appropriated for the relief of the real estate. The surplus of the loan, say about $200, which will make up the $2000, it is her intention to expend in replenishing the stock in trade left by her late husband, (it seems Murray had a store.) That she is anxious to preserve the stock in the store, for the support of herself and child; that the girl she has, she wishes to retain for family purposes. If the personal property is preserved, defendant will be able to meet the demands of all the creditors of her husband, except the mortgagee, and that a loan cannot be effected without the person entitled in remainder joins in the mortgage. The report recommend* that Connolly, as guardian of the remainder-man, may be authorized ti> join the defendant in a mortgage, to obtain the loan of $2000. Report confirmed.</p> <p>The loan was accordingly obtained, and Mrs. Murray, during her widowhood, and Thompson, after his marriage with her, have been in the entire possession and enjoyment of the real property, and stock in trade, purchased by Mrs. Murray, with the surplus of $200.</p> <p>It is, perhaps, necessary that 1 should state, before I notice the legal positions which I took and maintained before the jury, that Richard Connolly, and bis daughter, to whom he gave three negroes, by a bill of sale, of same date with that of Neptune, were examined as witnesses. The purpose of the testimony, was to show that the deed by Connolly to Murray, in trust for his wife, was fraudulent. Other witnesses were examined to the same point, on both sides; and if it be necessary, their testimony can be referred to in my notes, and in the report of Judge Earle, which I send up with my report. 1 thought Connolly a competent witness to impeach the deed in a contest between third persons. What legal interest had he to support defendant’s title? Whatever interest he had in the negro, has been sold to pay his debt. The defendant purchased at sheriff’s sale, and was bound by the principle of caveat emptor. If he bought nothing, he gets nothing; and the money he paid, will be regarded as paid on the oldest execution in the office.</p> <p>I do not exactly understand the precise objection to Mrs. Murray’s testmony. I cannot perceive her interest. But upon the question of fraud, I was rather with the plaintiff, and concurred pretty much, with the position laid down by Judge Earle, in the former trial.</p> <p>The true question in this case, is on the statute of limitations. Was Thompson in possession of Neptune, before defendant purchased him at sheriff’s sale; and if he were, in what character did he have possession of him? Did he take him as legatee, or executor of Murray’s will? He could certainly have elected to take the negro as legatee. My opinion was, that the facts and law both sustained the position that he took the negro as legatee. It was certainly competent for him to have done so. I must here refer to my opinion, delivered in the Court of Appeals, for my reasons, and the general principles on which I rely. Murray’s estate, at the time of his death, exclusive of this negro, was valued at something over $7000. The exact amount of debts did not appear. The most satisfactory testimony on that part of the case, is the proceedings in Chancery, referred to above. The amount of debt was small, compared with the value of the estate. When Thompson married Mrs. Murray, how was she holding the property? It seems to me, by the proceedings in Equity, she had assented to her legacy, and should be regarded as holding the property, as legatee under the will. She had repaired a house, and had made arrangements to pay all the debts, and was in the enjoyment of the rents and profits of the houses; and selling goods in one of them — goods purchased by money borrowed on mortgage. It is said that a debt of $50 is yet due on an old judgment. That could not prevent her from making her election. Indeed, she could have made her election, at any time, in my opinion, if she had chosen to have done so. If she did not make her election then, has she done so yet? Are Thompson, and his wife, holding the houses, and receiving the rents and profits of them, as executors, or in their own right as legatees? I think it cannot be maintained, that, because, there is yet a small debt due, they are still holding the property, as executors. It would be against the fact, and the implication of law.</p> <p>“ The asseut of an executor to his own legacy, may be either expressed or implied. Such election may be implied from his language or conduct. If he say he will have it according to the will, that amounts to assent to have it as legatee. So if a term be devised to the executor for life, and afterwards to B, if he say that B will have it after him, that will imply that he took as legatee. So if by deed, reciting that he has a term foryears, by devise, he grants it over ; or if he takes the profits of it to his own use ; or if he do up the tenements at his own expense. All these indicate an assent to the legacy.” — Toller 345. Now, has not Mrs. Murray nearly done all these things before her marriage ? And if she has taken one part of the estate, as legatee, she should be regarded as taking the whole of it in the same right; or rather, Thompson should be. — “ An assent to take part as residuary legatee, is an assent to take the whole residue in the same character.” — Toller 345. When Thompson took the negro into his possession, before sheriff’s sale, he should be regarded as taking him as legatee ; and if so, he is barred by the statute. Thompson sold the negro to Wagner, without pretending to do so, as executor of Murray. He sold his interest absolutely. If it •should be decided that plaintiff was legatee, the minor’s interest in remainder will be unimpaired.</p> <p>The jury found for the defendant.</p> <p>A. P. BUTLER.</p> <p> Will of John M. Murray. </p> <p>“ I desire that my personal estate be immediately sold after my decease, and out of the moneys, arising therefrom, all my just debts and funeral expenses be paid ; and should that prove insufficient for the above purpose, then,I desire that my executrix, hereinafter named, may sell my real estate, to wit, my three story brick house on South Bay, the lot of land and premises thereunto belonging, as also, my two story wooden house, now occupied by me as a dwelling house and grocery store, at the lower end of King-street, and out of the moneys, arising therefrom, pay and satisfy such of my debts as shall remain unpaid, out of the sales of my personal estate. After pay, ment of my just debts and funeral expenses, 1 give to my beloved wife, Jane M. Murray, my real and personal estate, which may remain after the payment of my just debts as aforesaid, for and during her natural life ; and after her decease, I give the same to my son, Michael Murray, an infant; to him and his heirs forever ; but should my said son Michael, die before his mother, then I desire that my es. tate, both real and personal, should vest in my wife and her heirs, executors, administrators and assigns, forever. And, lastly, I do constitute and appoint, my said wife, executrix of this my last will and testament, hereby revoking all wills by me heretofore made. In testi-tnony whereof, I have hereunto set my hand, and affixed my seal, this 18th day of April, 1829.</p> <p>JOHN M. MURRAY. [L. S.]</p> <p>Signed, sealed, published, and declared, as and for the last will and testament of the above John M. Murray, in the presence of us, Jo. seph Dougherty, John Bryan, Stevens Pebry.”</p> <p>Grounds of Appeal.</p> <p>1. That the objections to the competency of Richard Connolly and Mrs. Murray, as witnesses, on behalf of defendant, ought to have been sustained, they being interested to defeat plaintiff’s action.</p> <p>2. That his Honor erred in point of law, in his charge to the jury, in stating that an executor, residuary legatee, could assent to his legacy before payment of debts, and could make his election to take as legatee, within nine months, whereas it is respectfully submitted, the law is otherwise.</p> <p>3. That his Honor erred in charging the jury, that the rights of the minor, as remainder-man, eould not be affected by a verdict for defendant in this case, whereas it is submitted, that the subject of this suit, being perishable property, a recovery of the value of the negro, converted by defendant, would better secure the minor’s interest.</p> <p>4. Because there was no evidence of an actual assent by plaintiffs, to take as legatee, and none could be inferred or presumed, inasmuch as testator directed bis personal estate to be sold by his executrix, for payment of his debts, and a large amount of debts still remain unpaid.</p> <p>5. Because his Honor stated to the jury, that the attempt of the husband of executrix, (made within twelve months from testator’s decease,) to sell the negro to Wagner, was an election to take as legatee, whereas such act was necessary on his part, as executor, to fulfil the direction of the will to sell the’ personal estate for payment of debts, and in point of law, the goods of testator do not vest in the husband of an executrix, and if he take them, they are applicable xo the trust to which they were subject in the hands of the wife.</p> <p>6. Because the title to the negro in dispute, was clearly proved to be in Mrs. Thompson, as executrix of Murray, the said negro not having been specifically bequeathed to her, but she being, by the will, .expressly made residuary legatee of a life estate, (her son, still a minor, being remainder-man,) only of what should remain afterpayment of debts, and the debts of the estate being not yet paid — and the verdict should, therefore, have been for the plaintiffs, the action in this case, having been brought within five years from the conversion by defendant.</p> <p>7. Because the verdict was, in other respects, contrary to law and evidence.</p>

<p>Tried before his Honor Judge Butler, at Charleston, January Term, 1836.</p> <p>Trover for five negroes, Hannah and her four children, Lavinia, Adam, Hagar, and Sarah.</p> <p>Miss Elizabeth Chovin lived with John Dutart, the testator, until his death, which took place some time in 1819. She continued to live at the residence of John Dutart, the homestead, after his death, with her sister, the widow of John Dutart, as long as she lived. She, Elizabeth Chovin, died in the spring or summer of 1832, She seemed to have been an inmate in John Dutart’s family all her life. She owned several negroes, and Hannah among others. In January, 1819, she sold her negroes to her brother-in-law, John Dutart, and a* security for the purchase money, she took his bond for about ,$1300. This was the state of things at John’s death. The plaintiff contended, that Hannah and her children, were a part of John’s estate at the time this action was brought. The defendant, who had taken possession. of the negroes, contended that they were not a part of the estate, and rested his defence on two grounds : 1st. That plaintiff could not recover, if he could not shew title in himself; and 2d, that he, defendant, had a right to the negroes, by virtue of a parol gift from Elizabeth Chovin to his wife Jane, a niece of Elizabeth, and daughter of John Dutart. Whether the title was in plaiutiff, depended upon what took place between David Gaillard, the executor of John Ju. tart’s will, and Elizabeth Chovin, in their life-time. It was contended. that Gaillard, the executor, had delivered up the negroes in satisfac. tion of the bond. Whether this was the case, or not, depended on the testimony which was offered on the trial. I took the testimony very iully at the trial, and must refer to it tor the elucidation and decision of the question. David Gaillard and Elizabeth Chovin, both died in 1832. Some of the children of John Dutart, who had become of age, had taken their shares of their father’s estate. Others, who were not of age, had their negroes at work together on a plantation, a short distance from the homestead, the late residence of their father. These negroes were at the homestead, and whether they formed a part of John Dutart’s estate, was a question. To prove that Hannah and the other negroes had been returned in satisfaction, of the bond, David Gaillard’s declarations were principally relied on. I allowed his declarations to be given in evidence, against plaintiff’s title, as he claimed under Gaillard. Gaillard said he had returned the negr oes, and that they had been accepted by Miss Chovin. To reinvest the title to the negroes in her, it was proposed to give in evi. dence, her declarations — declarations, made not in the presence of Gaillard, nor at the time when he said he returned the negroes ; but declarations made at different times, when Gaillard was not present. On one occasion, Gaillard paid $24 on the bond, and sent word to Miss Elizabeth Chovin, to take the negroes back. I allowed any thing she said at the time to the messenger, to be given. But it seems, at that time, she made no reply ; but took the bond back, upon which the credit of $24, was entered. At a different time and occasion, altogether, it was proposed to give her declarations. Any exercise of right, or assertion of claim to the negroes, I allowed to be proved. The whole question m the case, was, whether Gaillard had delivered up the negroes, and she had accepted them in satisfaction of the bond. Plaintiff contended, that this was not the case, because in 1824, long after the time of Gaillard’s declarations, he wrote a paper, purporting to be the will of Elizabeth Chovin, in which this bond is mentioned, and attempted to be disposed of by Elizabeth. The paper had but two witneses, and was not valid at her death. I admit, ted the paper in evidence, not as a will, but as the admission of Gail-lard, in 1824, that the bond was still in existence. Any declaration made by Elizabeth, in relation to her accepting the negroes, before this, might have been qualified by Gaillard, if made in his presence. He might have said that the negroes were delivered up .on condition that they were taken in satisfaction of the bond ; or that they were to work with her till the bond was paid. At any rate, it is a general rule, that the declarations of a party cannot be given in evidence, to establish his own title. To shew the character of possession, they may. And in this point of view, it will be seen by the evidence, they were received in testimony. I did not charge on the statute of limitations, because, if in fact, the negroes had been delivered back, and the bond thereby paid, there was an end of the question. This case depended on evidence, and I cannot undertake to say, which was the truth of the case. From the declarations of Gaillard, and the posture of affairs at his death, the weight of evidence would seem to be against the plaintiff. But in 1832, when Elizabeth Chovin died, she left, what she supposed, her will, written by Gaillard, in which this bond is mentioned. I am inclined to think the bond was left at the Ordinary’s office after her death, by the present plaintiff, according to the testimony of O’Hear. I charged the jury, that if they believed the negroes had been delivered up, and accepted, the bond was paid.</p> <p>Verdict for plaintiff, 1600 dollars.</p> <p>A. P. BUTLER,</p> <p> Grounds of Appeal. </p> <p>1. That his Honor excluded evidence of the declarations of Elizabeth Chovin, that she had accepted the negroes delivered to her by Gaillard, in satisfaction of the bond; and that she claimed, and held the said negroes in her own right, and adversely to the executor of Dutart.</p> <p>2. That his Honor allowed a paper, purporting to be the will of Elizabeth Chovin, to be read in evidence, although it was not duly attested, and had been refused probate by the Ordinary.</p> <p>3. That the evidence of the negroes having been delivered up to Elizabeth Chovin, in satisfaction of her bond, and that they, thereby, became her property, was so full and clear, that the jury were not at liberty to find against it.</p> <p>4. That a title by adverse possession, and the statute of limitations, in Elizabeth Chovin, was fully proved, and his Honor ought so to have charged.</p> <p>5. That the damages found áre excessive, and unwarranted by the evidence, greatly exceeding the highest estimate of the plaintiff’s own witness.</p> <p>6. That the verdict is altogether against law and the evidence.</p>

Before his. Honor Judge Eakle, Sumter, Spring Term, 1835.' The question presented for the consideration of the court, arises’ under the act' of 1827, in relation to the action of trover, which… Held: that the surety is not entitled to the privileges of bail, and that to surrender the defendants, would not be a compliance with the condition of the bond.

<p>Rule to show cause why an execution from a court martial, against C. W. Cade, had not been collected.</p>

Tried before his Honor Judge Butler, at Coosawhatchie, Fall Term, 1836. Report of the Presiding Judge. — Assumpsit for money laid out and expended for defendant’n use. John Cheney, the intestate of plaintiff, was the surety of Hugh Archer in a promissory note to L. Petty, or order, for $3,589.31, dated 12th April, 1826. Petty indorsed the note to John D. Mongin, who brought suit, and recovered judgment on the note against the- makers, Cheney, and Archer, separately.

Tried before his Honor Judge Gantt, at Horry, Fall Term, 1836. Motion to enter up judgments nunc pro tunc.

Before hia Honor Judge Gaktt, at Charleston, May Term, 183f>. Judge's Eff ort. — This was an action of assumpsit, upon a joint and .-uv, it,i r. The plainUli cfiwi.t! ced suit on it:»' 12¡h day o. Muren. 1835, by ls-f-uit.g a tail win apt!, st the two; and the ¡ fib avit to bola to bail, ehniged both J. 1..

Tried before his Honor Judge Butlex, at Coosawhatchie, Fall Term, 183S. Report of the Presiding Judge. — Trespass for taking and sel. ling two negroes, George and Frank, it was admitted, that the defendant, as sheniF, bad levied on, and sold the negroes, to satisfy an execution of Ephraim Smith vs. William Youmans, sen. The plaintiffs contended, that the legal title of the negroes was exclusively m them, by virtue of a deed of trust executed by Wm.

Tried before his Honor J. Axson, in City Court, November Term, 1836. This was an action of assumpsit, on a promissory note for $133.SO, dated 5th November, 1803, and payable sixty days after date. Pleas non assumpsit, and plene adminisiravit prmter. The note was admitted, and defendant required to support certain designated items in her accounts, filed with her plea.

<p>Tried before His Honor Judge Gantt, Charleston,jMay Term,, 183«.</p> <p>Judge’s Report. — In the summer of 1833, the plaintiffs, by the. ■death of Joseph Motte, of New York, became entitled to a portion; wf the real and personal estate of the deceased. Mr. Hunt wats ■employed to actas the attorney of the plaintiffs, under the following written agreement.</p> <p>“ Memorandum of agreement between Benjamin F. Hunt and John Stent for himself and wife -That the said Benjamin F. Hunt shall proceed to New York, and fully investigate the estate of Joseph Motte, deceased, at Harlem, and shall prosecute the claim of us, the said John Stent and wife, to recover all the real and personal estate to which we may be entitled ; and we agree that the said Benjamin F. Hunt, shall retain tor his services twenty per cent, on the nett amount received, ia lieu of all fees and commissions, for investigating, adjusting, and paying over the amount so 'to be recovered. Charleston, 25th July, 1833. John Stent. Witness, John H. Peters.”</p> <p>Mr. Richard Yeadon, jun. being sworn, proved the agreement, arid stated, that in the month, of December, 1835, he was employed by Mr. Stent, to call on Colonel Hunt, abuut this matter. He deposed, that Colonel Hunt disclosed to him every thing that passed between Stent and himself. That he understood from Col. Hunt, that on the 23d of May, 1833, he had received from the administrator of Motte, under a power of attorney from Stent and Wife, $1,400, and that on the 27th of March, 1835, he had received 15584 69 cents, the balance of the personalty. That the real estate, as he was informed by Mr. Hunt, had been sold for something over $16,000, of which one half was to goto the distributees in New York, and the other half to the distributees'in Charleston. That in his, Colonel Hunt’s, opinion, it was questionable, under the laws of New York, whether Stent and wife would receive $4,000 or $2,000, as their share. That Colonel Hunt was of the impression, that the claimants in Charleston, consisted of Mrs. Stent, (a niece of the deceased,) and three grand-nieces or nephews, the children of a deceased niece; and the question was, whether the grand-nieces or nephews were to take per ¿apita, with Mrs. Stent, or per stirpes. The witness further stated, that Mr. Stent authorized him to demand of Colonel Hunt the amount he had received of the personalty, deducting the amount of his commissions, and that Stent demanded the balance, with interest. This, Colonel Hunt was unwilling to accede to, alleging that he was entitled to receive, his commissions om the realty also, which he estimated at $4,000, (Mrs, Stent’s share,) and his commissions at $800. The witness understood from Colonel Hunt, that under the old law of New York, representation as to real estate did not go beyond brothers and sisters children, but under the revised code of laws in operation when Motte died, grand-niece* and nephews would come in, and the question was, whether they would come in per stirpes or per capita, with a niece living. The witness stated, that the interview between him and Colonel Hunt ■took place on return day, in December last, and as they could not come to an agreement, he took an appearauce from Col. Hunt t@ the present suit, with an understanding that they would negotiate further .; that seme negotiations afterwards took place.</p> <p>A note of the 14th January, from Colonel Hunt, was them read, with an account of particulars* Then one in reply from Mr. Yeadon, of January the 18th, 1836. Mr. Hunt’s letter in an* swer to the last. A letter from Mr. Stent to Mr. Yeadon, dated. February 9th, 836, and Mr. Hunt’s answer thereto, were read.</p> <p>Mr. Yeadon further stated, that Colonel Hunt told him that he had been put to a great deal of trouble in investigating this claim, that he had employed counsel, and that he had satisfied witness that the facts were so.</p> <p>Ou the cross-examination of Mr. Yeadon, he said that Colonel Hunt had frankly satisfied him on every point, and that he had no doubt but that the account then shewn him had been presented to him. A map was also exhibited to Mr. Yeadon, who stated that Colonel Hunt had made known to him the difficulties which he had to encouuter about the real estate. Certain notes were exhibited, which Mr. Yeadon said had been shewn to him.</p> <p>Respecting a bill of exchange, drawn on Mr. Hunt, he stated to witness that Mr. Stent had no right to draw alone, and that as the contract was an entire one, Stent could not alter it, and that he,. Hunt, held himselt entitled to take his commissions out of the first monies received. Hunt also had stated to him the impossibility of fixing the amount of his commissions till the sale of the real estate. Hunt also stated that ii would be necessary that Stent should execute titles before the money could be receiyed, that there was a question in relation to th.e real estate,, and Colonel Hunt insisted, that Stent had no right to call on him till he had completed the contract.</p> <p>William Lloyd was sworn, and here it was admitted that Mr. Lloyd,under a power from Mr. Hunt, received in New York,. $1,400, of the administrator of Motte’s estate, and that it was paid over to Colonel Hunt’s agent there, by his direction. Mr. Lloyd deposed, that he liad communicated the, fact to Mr. Stent, in the course of conversation.</p> <p>Edward Newhall, being sworn, said he had intermarried with one of the distributees of Motte. That Susannah North left four daughters, Mrs. Stent, Mrs. Brodie, Mrs. Reynolds, and Mrs. Gradick ; that all were dead and left children, except Mis. Stent, yet alive- That he is tkg aittorney of all the heirs in this part of the country, except Mrs. Stent. That the real estate sold for between sixteen and seventeen thousand dollars. That he claims their fourth part of the real estate coming to the heirs of Susannah, North. That the only delay in receiving the money arises from the powers of attorney to him being illegal. That they were sene back, and new powers were made out by all the heirs. That the last one was sent on about two or thee weeks ago. That he is not aware of any delay ou the part of the Stents. That he has been put to no great expense ; he found every thing strait and satisfactory. That he liad paid three or four dollars. That one of the heirs Jive.d near Columbus, in Georgia, and that his power could not be procured till lately. That he (the witness,) was requested som® tima last spring, to call on Colonel Hunt, to inform him who the heirs were. That ho thinks ho left it in writing with Colonel Hunt. That the paper shewn to witness is the account left. Thai he never heard there was any dispute in New York about it. He’ does not know that any application has been made to the court of •New York about the division of the estate.</p> <p>Mr. Brodie, being sworn, confirms the account of genealogy given by the last witness. Mr. Newhall being called again, it was proposed to ask the witness the following question : “ Whether, in September last, at Mr. Stent’s request, he did not enquire at the surrogate’s office in New York, whether Mr. Hunt had not received money from the estate of Motte 1” This question was objected to, and the objection was sustained by the court. A letter from Mr. Hunt to Mr. Stent, dated at New York, October 10, 1835, was read. This letter shews the terms on which he had undertaken to collect, &o. Mr. Stent’s letter to Mr. Hunt, of September 30, 1835, was read. In this letter he communicates the information he h id received of Colonel Hunt having received money, and that he had drawn on him for $1,700. Another letter from Mr Stent, of October the 16th, 1835, was also read, denying the correctness of Mr. Hunt’s statement in his letter of September 30, 1835, and stating further, that if the draft was not paid he would consider Mr, Hunt no longer his attorney. Mr. Hunt’s reply of 10th November, 1835, was read, as also Mr. Stent’s answer of Novemher 21, 1886, adhering to what he had before said. Mr. Yeadon, after quoting the 1st vol. of the revised statutes of New York, page 762Í, sec. 89,-closed the evidence on the part of the plaintiffs.</p> <p>The defendant offered no testimony, but by his counsel, Mr. Thompson, moved for a nonsuit, on the ground, that the action is a general indebitatus assumpsit, and the evidence produced is a special agreement. After hearing the argument, I sustained the motion for a nonsuit, principally on the ground, that between the parties litigant, a special contract or agreement subsisted, and on which an action could alone be maintained. It appeared that the defendant, under the contract, had taken much pains to ascertain the right of the plaintiffs, and to bring the business to a close. Was it competent for the plaintiffs, at such a crisis to revoke the power, and the re-by defeat the right of the defendant to commissions on all that could be secured' as belonging to the plaintiffs ? See Chitty on Contracts, 276. 13th Johnson’s Reports, 53. That the plaintiffs cannot recover under the money counts, where a special agreement subsists, see 12th Johnson’s Reports, 274 ; and that the action must be on the contract, see 19th Johnson’s Reports, 205,14th do., 326. 1st Hill, 384.</p> <p>RICHARD GANTT,</p> <p> Ground of Appeal. </p> <p>That the cause of action was properly laid in the declaration, and amply sustained by the evidence, and the case should, therefore,have been permitted to go to the jury.</p> <p>Ye ad on & Macbeth, for the motion.</p>

<p>Tried before his Honor Judge Butler, Barnwell, Fall Term, 1836.</p> <p>Judge’s Report. — The plaintiff was a lumber factor in Savannah, and the defendant a lumber cutter living in Barnwell. The plaintiff was in the habit of receiving and selling defendant’s lumber. The lumber would remain on hand for some time, and plaintiff would retail it out to different purchasers ; and during the time defendant would draw on him, the plaintiff accept drafts, forward goods and make advances to defendant. The plaintiff contended that upon a fair settlement of accounts, the defendant was indebted $300, for which this action was brought. The defendant contended that plaintiff claimed too much ; that he had not accounted for all the lumber delivered j that he was not entitled io charge for commissions for acceptances of drafts, or on advances, but that he should be satisfied with his commissions for sale of lumber, and paying over the money, and interest on the advances made, when he had no funds in his hands at the time they were made.</p> <p>The evidence was as follows:</p> <p>Stephen Smith sworn on the part of the plaintiff. Has lived on Savannah river for sixty years, and has been in the habit of sending lumber to Savannah down the river. It is an. invariable custom for factors to charge commissions for acceptance ol‘ drafts, where they have no funds of the drawer in hand at the time. "Where goods are forwarded to the planter or lumber cutter, factors sometimes charge commissions, and sometimes not, on purchases made. The habit is uniform to charge interest on advances. Factors do claim the right to charge commissions on advauees also.</p> <p>Charles Brown was sworn on the part of defendant. Was for several years engaged in the factorage business in Savaunah. When he had lumber on hand he never charged commissions for acceptance of drafts, if he had money in hands to pay drafts at maturity. When he had no funds in hand on account of lumber, at the maturity of drafts, he would advance the money and charge commissions and interest also. Factors claim this as their right, although in fact all do not charge their customers. The practice varies.</p> <p>To shew that plaintiff had received more lumber than he had accounted for in account sales, James Calhoun was sworn. He assisted to carry rafts from defendant’s mill in February, 1831. He and Wilson Huff, delivered 39 rafts to plaintiff, in Savannah. When they received them at the mill, they were supposed to contain 1000 feet of lumber each. Binders were made to contain 1000 feet each. One was actually measured and contained that much, and all the other binders were made like it. The lot was to be paid by the 1000, and he considered each raft to contain "1000 feet.</p> <p>Henry B. Hogg, says he measured two of the rafts that were delivered to Calhoun, near the mill. These two measured together, 2339 feet. He measured but two of a large number, but he thought all the rafts were like those he measured. Binders were made to contain raits of same size.</p> <p>Brown was examined in reply by plaintiff. Lumber is frequently lost in going down the river ; lumber is always liable to deterioration and loss, when it remains on hand a great while. Lumber is in factors possession as soon as he receives it from raftsmen, while it is in water. It may be taken away by stream or tide before it is put in yard. Lumber is usually kept on dock or wharf, in the yard of factor. It is not kept in a house.</p> <p>The principal question in this case, is, how much lumber ought the plaintiff to have accounted fori As it will appear from the account of sales, he had in his possession a great deal moro lumber than the rafts delivered to him by Calhoun in February, 1831. In his account of sales there is no' raft that was estimated beyond 30,003 feet. I mean large raft or fleet. The deiefdai.t toi tends that he should aceou.t toi 42,000 feet, according to the measure-m< nt of Hogg at the mill. Hogg’s measurement was hypothetical, for he measured but two small rails, and said that if all the others Contained as much, in proportion as these two, there would have been 42,000 feet that left the mill: and I suppose that the jury must, have found their verdict on this estimate. The jury did find but a small part of plaintiff’s claim, something over $100 ; and they must have given the defendant credit for 12,000 feet of lumber, not accounted for by plaiutiff. Now what measurement should prevail, that made at the mill, when the lumber leaves it, or that made by factor when he sells it ? Neither may be strictly correct; more lumber may leave the mill than is delivered to the factor, and there, may be less in fact sold by the factor than he received. At the time lumber is delivered to the factor he does not measure it, or give a receipt to the raftsman ; but he takes it in his dock yard, where it is liable to be stolen or destroyed, without his negligence. There is no custom to regulate the thing. I cannot think the measurement at the mill should prevail. And neither ought the factor to have the whole matter und.er his control. I think myself that the lumber ought to be measured when delivered to the factor, and he should account for it with a reasonable allowance for deterioration and loss. But this not being done in this case, I thought the jury might have struck the difference between what left the mill and what was sold. But what did leave the mill ? There is a difference of opinion as to that. The jury took the highest estimate in favor of the defendant. If the measurement at the mill should prevail, the jury had the right to take the estimate of either witness; but ought that estimate to be adopted 7 I thought not, and yet was not able to lay down a satisfactory rule ; and where there is no rule, custom should govern ; but then there was no distinct custom. And the jury was governed by the evideuce.</p> <p>I thought the plaintiff was entitled to interest on the balance of bis account, and commissions on acceptances ; the jury found otherwise. Whether the plaintiff was entitled to commissions on advances, in addition to interest, I was doubtful. 1 rather thought not. The custom was not so universal as to make it a part of the contract between the parties ; and in the absence of custom principle is-against it,</p> <p>A. P. BUTLER.</p> <p>The plaintiff gives notice, that he will make a motion for a new trial on the following grounds :</p> <p>1. Because the jury allowed the defendant credit for 12,000 feet of lumber, with interest thereon, without evidence.</p> <p>2. Because the jury did not allow the plaintiff, his charges of commissions on acceptances and advances.</p> <p>8. Because the jury did not allow the plaintiff, interest on the - balance due on his account;-</p> <p>4. Because the verdict is in these and other respects contrary to law and evidence.</p> <p>Patteeson, for the motion.</p>

Tried before his Honor Judge Gantt, Charleston. Sonne-Term, 1836. Judge’s Report. — This suit was instituted to recover from the defendants, Boyce & Henry, the amount of a bill, drawn by J. B. Clough, on his firm of Crowder, Clough & Co. of Liverpool” for four thousand pounds sterling, on account of Drake & Mitchell. A short statement of facts, will shew the relative situation” of the parties, and the circumstances under which the plaintiffs calculate on a recovery.

Tried before his Honor Judge Bat, at Charleston, October Term, 1836. Judge’s Report. — In each of these cases, which came before meat the Charleston Sessions, October Term, I8ü6,1 directed the indictment to be quashed, on the ground, that the names of the grand jurors were not set forth in the indictment, nor any specification of an offence on the docket, of any kind or nature whatever.

Tried before his Honor Judge Gantt, Charleston, May Term, 1836. In this case a judgment was entered up before the clerk of the court, for Charleston district, under the Act oí 1821, upon which execution had long since been issued, and levied, and sales made. The judgment was confessed by John Bowie, in the form prescribed by the act, for the sum of and was entered up 22d July, 1835.

Tried before R. Emm, Esq. Judicial Magistrate, November 24, 1830. This suit was brought to recover the sum of fourteen dollars, upon what is called a seaman’s duo bill. The duo bill is in the following words : “ Charleston, June 27tb, 1838.

Tried before his Honor Judge Gantt, Charleston, Spring Term, 1836, This was an action of assumpsit, to recover bank one hundred dollars, which had been paid on a judgment, and not credited ; the judgment was entered on the 13th of May, 1833, in the case of William Morris against A. G. Willis for f 287, with interest from the 19th of May, 1832- William Howland was called as a witness, and was objected to on the ground that he is the next eldest judgment creditor of A. G.…

Tried before his Honor Judge Gantt, Charleston, May Term, 183.6. Assumpsit on account for $115.50.

Tried before his Honor Judge Evans, Charleston, January Term, 1837. Judge’s Report. — This was an action on a promissory note. The note was payable to John Fort, and Joseph Maybank, and indorsed to the plaintiff, Meacher. The defendant was the maker. There was no doubt as to the signature of the defendant, as maker, or of Maybank, one of the indorsers.

Tried before his Honor Judge Evans, Charleston, January Term, 1837. This was an action on a promissory note for $900, due 1st December, 1833. The uote was drawn by one John E. Fort. It was payable to the defendants, and purported to have been indorsed by them; The plaintiff was a Iona fide holder, and had made a regular demand of payment, and notified the indorsers of non-payment, when demanded.

This was an appeal to the Recorder, from the decision of the judicial magistrate whose report of the case is as follows : This was an. action brought upon an instrument, purporting to be a promissory note, for $13.

Before his honor Judge Bay, Charleston, April, 1836. ' 'i ¿ion for a rule, on thé said sheriff elect, to shew by what mi' fLcvhe holds his office of sheriff, of Charleston district.

Statement. — 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 agreement of lease, in writing. The magistrate decreed in favor of the plaintiff, for the sum of $20, in each case. The defendant appealed to the city recorder.

Tried before his Honor Judge Axson, City Court, January Term, 1837. This was an action of assumpsit, for work and labor done by the plaintiff, for defendant.

Tried before his Honor Judge Bay, Charleston, October Term, 1836, Larceny. — Paul Renley, the prosecutor, stated that he had lost from his plantation a goat and two kids, and from information received, they were in the possession of Collins, one of the defendants. That he took out a search warrant, and went to the house of Collins, one of the defendants, and found in his possession two Rids, which he identified as his.

Tried before his Honor Judge Axsoir,City Court, January Term, 1837. This was an action of assumpsit on a promissory note, given by George to Richard Shegog. Edmund O’Neal, sworn, proved the hand-writing of defendant, and his residence within the jurisdiction of the court. Here the plaintiff closed his case. The defence stated, was, that the plaintiff had written the note over the name of the defendant, which had been signed to a letter.

Tried before his Honor Judge BUTLER, Charleston, January Term, 1836. At October Term, 1833, the grand jury found the following bill, viz: 1st count. That on the 11th day of September, 1833, and on divers other days and lime&, Elisha Carson, Jas. H. Smith, Wni. A. Hayne, and Wm.

Tried before his Honor Judge Gantt, Charleston, May Term, 1836. Judge’s Report. — Thomas Swift and —.— Waterman, on the 24th day of November, 1827, executed a deed of trust to the plaintiff, Ford, of two negroes, Minda and her cbiid. This deed was recorded in the month of November, 1827, in the office of mesne conveyance, and oti the 19th of January,-' 1827, m the office of the secretary of State. The terms and limitations in the deed will appear by reference to it.

Tried before his Honor Judge Gantt, Charleston, May Term, 1836. Judge’s Report. — This action was brought to recover the wages of negroes Miley 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 as evidence in this case, and certain addiiional evidence which accompanies this report was introduced. The jury found for the plaintiff.

Tried before his Honor Judge Gantt, Charleston, May Term, 1886. Report of the Presiding Judge. — The defendant purchased certain negros at vendue, and the terms of sale were not complied with ; the negroes were, therefore, resold, and the price, at which they were bid off, fell short of the former sale by $100. And this action was brought to recover the difference between the first and last sale. See 2d vol. of Brevard, p. 325, 7th and 8th sections.

Tried before his Honor Judge Richardson, Georgetown, April Term, 1836. Report. — This was an action of trover to recover a negro, Pat, and her two children.

Tried before his Honor. Judge Earle, Charleston, May Term, 1836. Robert Blakely obtained a judgment against Henry Holmes, who took the benefit of the insolvent debtor’s áct; and was discharged on making an assignment of his effects to William Clarkson, in trust, for the creditors.

Tried before ■ his Honor Judge Earle, Charleston, May Term, 1835. , This was an action on the case, brought on the following section of the Executor’s Law : “ Executors and administrators shall annually, while the estate shall remain in their care or custody, at the first court to be held after the first day of January, render to the Ordinary, &c., a just and true account, on oath, of the receipts and expenditures of such estate, the preceding year : which, when examined and…

Tried before his Honor Judge Evahs, Charleston, January Term, 1837. This case was on issue docket, but I do not recollect how long it had been docketed. On the last day of the court, after all the cases on the docket were considered or continued to the next term, an application was niade by Mr. Moise, for leave to withdraw the pleas put in by the defendant, and for leave to plead de novo.

Tried before his Honor Judge Gantt, Charleston, May Term1,-1836. The defendant was found guilty, on the charge exhibited in the indictment, for selling liquor to a slave, named Joe, the property of George W. Egleston, and on evidence which I thought justified the veidict. My notes of the evideuce accompany this report.

<p>Tried before his Honor Judge Gantt, Charleston, May Term, 1836. _</p> <p>Selling liquor to a slave.</p> <p>The fact of the defendant having sold the liquor in this case was clearly proved ; and the only question arises on the '¡ufficioncy of the indictment, viz. whether the omission to insert the cbiistian name of the owner of the slave, in the indictment, is fetal thereto. I thought not, and ruled the indictment sufficient.</p> <p>Signed, RICHARD GANTT.</p> <p>The counsel for the defendant appeals for a new trial and arrest of judgment, because the indictment charged the property as belonging to - Lucas, when it should have set forth his Christian name,</p> <p>as the evidence proved, there were three persons of the same name.</p> <p>Seymour, for motion.</p>

Tried before his Honor Judge Evans, Charleston, January Terra, 1837. This was an action against the defendants, as common carriers, for the value of a negro, Sam, alleged to have been drowned in crossing the ferry. The evidence was, that two negroes came to the ferry landing, and called for the boat. The ferryman went over in a small batteau, very small, leaky, and dangerous. One of the negroes got in the batteau.

Tried before his Honor Judge Evans, Charleston, January Term, 1837. Traverse of escheat. This was a case on the issue docket. An application was mads to try this case, out of the regular order of the docket, on the alie-gation it was entitled to preference of all other cases on the issue docket. The application was refused, and the annexed notice of appeal was presented to me, with a view to settle the practice. JOSIAH J. EVANS, Presiding Judge. Ground of Appeal.