Volume 23 — South Carolina Law Reports

TRIED BEFORE EARLE, J., AT YORK, FALL TERM, 1837. Trover for negroes — Andrew, Sarah, Paulina, and ber tbsee children.

<p>'In all civil suits in tills State concerning personal chattels, where the _ title has been acquired, or upon contracts which have been made in another State or country, reference is constantly made to the law of the place, when it constitutes part of the title to the property, or is necessary to the proper construction of the contract.</p> <p>In an action of trover for negroes, by several tenants in common, the circumstance that the recovery of two of them is barred by the statute of limitations, does not make the defendant a tenant in common with the rest, and prevent their recovery without an actual ouster.</p>

<p>Where the probate of a will has been set aside, the property of the deceased vests in the administrator, and he can recover it from any one in possession, or its value, from any one who has sold it.</p> <p>It is no defence to the action, that the defendant is a bona fide purchaser, for a valuable consideration, from a legatee to whom the executor after probate had delivered the property.</p>

<p>BEFORE EARLE, J., AT LANCASTER, FALL TERM.</p> <p>Trover for a mare, a colt, -and a cow.</p> <p>The mare and cow, with other chattels, were sold in North Carolina, as the property of one William Newell, and bought by the plaintiff ñve or six years ago. They passed into bis possession, and be, after a short time, hired them again to Newell and took a note for ten dollars, each year, for their hire. Newell, brought them on his removal to Lancaster, and they remained in his possession ever afterwards; the mare having produced a colt. In March, 1834, they were sold -by Williams, under an execution-in favor of Crockett, and some other executions: the plaintiff forbidding* the sale. The plaintiff’s son purchased the colt, Crockett purchased the mare, and some one else the cow. The colt and the cow were not removed at all from the possession of Newell, and the son of the plaintiff satisfied Crockett for his bid, and the mare went again into his possession — so that he'had the mare and the colt and the cow, at the time the action was brought.</p> <p>His Honor"overruled a motion for a nonsuit, which, as he stated in his, report of the case, he afterwards thought should have been granted. For the defendants, the executions were produced. It was proved that Newell’s circumstances were desperate; and there was strong proof that the claim of the plaintiff was colorable only. A short time before the sale made by Williams, the plaintiff said to one witness, he wished he (the witness,) would take Newell’s property off his hands— that he (the plaintiff) found it troublesome, and he was tired of it — that he wanted to get rid of it, and said nothing about paying for the property. . Newell also had applied to him to take the right of his property, saying, at the same time, that it was in the plaintiff. Another witness deposed that the plaintiff offered to Newell the papers he held on him, and said he would rather Newell should take them up; Newell replied, he would rather the plaintiff’would keep'his property than any one else ; the witness heard nothing said about payment.</p> <p>His Honor regarded it a clear case óf a pretended title, to, protect property from creditors, and thought that the plaintiff should not recover. The jury found for the plaintiff a verdict of five dollars.</p> <p>The defendants appealed, and moved for a nonsuit on the following grounds.</p> <p> For a nonsuit. </p> <p>1st. Because the plaintiff could not maintain an action of trover ; as, according to his own showing, he was not entitled to the possession of the property, having hjred it to Newell, in whose possession it was when levied on.</p> <p>2d. Because the property was in possession of Newell, the bailee of the plaintiff) before suit brought, and had remained there ever since.</p> <p>3d. Because the plaintiff had sustained no damage.</p> <p>If the motion for a nonsuit should not prevail, they moved for a new trial on the same grounds, as well as on the following:—</p> <p>1st. Because the sale to the.plaintiff, by the constable in North Carolina, was fradulent, and conferred no title- — Newell still continuing in possession and claiming the property as his own.</p> <p>2d. Because the sale was. fraudulent as to the defendants, who were subsequent creditors without notice of the plaintiff’s claim.</p> <p>3d. Because there was no conversion proved.</p> <p>4th. Because, from the proof, it was clear that the property belonged to Newell.</p> <p>5th. Because the verdict, in other respects, was contrary to evidence and'the charge of the presiding judge upon the case.</p>

<p>BEFORE EARLE, J„ AT YORK, FALL TERM, 1837.</p> <p>This was a summary process for a bag of cotton.</p> <p>One Hemphill had bought some cotton at a gin, from one Hudson, and took an order from him for it, to the defendant, who had hauled it there. He refused to deliver it. Hemp-hill went to the sheriff’s office, and obtained an execution against Hudson, and perhaps a deputation, with which he returned to .the gin. He said he intended to levy on the cotton, which was then in the act of being packed — the bagging was under the screw and there yet remained a portion of the cotton to be put in. Hempbill testified that be went up, laid bis band on the bag, and made known that be levied on it. The owner of the gin said that he went up, intending to levy, but a controversy arose, and he thought Hempell forgot to levy.</p> <p>It was clear that Strait resisted the levy, refused to acknowledge it, and to give up the cotton, which, as soon as packed, be removed with other bags of bis own. Hudson bad sold the cotton to one Moss, and the agreement between Moss, Hudson, and the defendant, was, that the defendant should have the cotton packed with bis own, haul it to Columbia, and sell it.</p> <p>The presiding judge stated that be thought it clear that the sheriff did not have possession of the cotton, for which reason the levy was incomplete, and vested no title in him. He accordingly decreed for the defendant.</p> <p>The plaintiff appealed, and moved for a new trial.</p> <p>1st. Because bis Honor erred in deciding that there bad been no levy on the cotton by the plaintiff.</p> <p>2d. Because plaintiff bad levied on the cotton, and was entitled to maintain trover against the defendant, for taking it out of bis possession.</p>

<p>BEFORE GANTT, J., AT NEWBURY, FALL TERM, 1837.</p> <p>These cases were brought before his Honor, on a motion by the plaintiff in the foreign attachment, (B. Reily,) to have the books of account of the absent debtor delivered over to him, upon bis entering into the recognizance required by law.</p> <p>The domestic attachments bad been taken out, and the person in whose bands the books of account were, bad been garnisheed; the foreign attachment was then taken out, and the same person was again garnisheed.</p> <p>On the motion, objections were made to the form and substance of the domestic attachments. His Honor decided that they were substantially correct — that they were entitled to the books of account; and overruled the motion of the plaintiff in foreign attachment.</p> <p>The plaintiff, B. Reily, appealed, and moved to reverse the decision of the presiding judge, ón the following grounds, viz:</p> <p>1st. Because the plaintiffs in the domestic attachments cannot attach the books of account of the absent debtor, in the bands of a garnishee.</p> <p>2d. Because B. Reily, the plaintiff in the foreign attachment, is entitled to the books of account of the absent debtor — and they ought to have been delivered to him, on bis entry into the recognizance required by law.</p> <p>3d. Because the domestic attachments were defective in substance.</p>

<p>BEFORE Mb. JUSTICE O’NEALL, AT SUMTER, FALL TERM, 1837.</p> <p>These were actions of trespass to try title.</p> <p>The land in dispute once belonged to Mary Simmons, and the plaintiffs were her children. She and her husband Peter Simmons, on the 25th October, 1821, conveyed it to the defendant, Sarah Hodge; on the 31st of the same month she (Mary Simmons) relinquished her inheritance; Seven days not having expired from the execution of the deed, the relinquishment was void. She died soon after, leaving her husband Peter Simmons, and the plaintiffs, her children, surviving her. The defendant Baker was’in possession under Sarah Hodge; but when she conveyed to him did not appear, as the defendant’s defence was not gone into. A trespass was proved.</p> <p>A motion for a nonsuit was made, and sustained on the ground that the plaintiffs and defendants were tenants in common, and that therefore the action could not lie.</p> <p>His Honor was of opinion that the defendant Hodge, under the deed of Peter Simmons and wife, was entitled to his interest in the land; which was of the whole of the land during his wife’s life, and at her death, of one third to him surviving, as his distributive share. An interest of one third in the land by purchase from one of the distributees of Mary Simmons, made the defendants Hodge and Baker (who held under Mrs. Hodge), tenants in common with the other distributees, the plaintiffs. He thought there was no ouster. For to the death of the wife Mary Simmons, the defendant Hodge was rightfully in possession of the whole land. Since her death, she and the other defendant holding under her, had the right to actually occupy and cultivate one third part of it. She and the other defendant had the only possession in fact; the plaintiffs never had actul possession; hence there could be no ouster.</p> <p>That it was idle to talk about the conveyance by Peter Simmons and wife of the whole land being an ouster. At the time that deed was executed, Simmons and wife could have legally conveyed the whole land; indeed, Simmons alone could have conveyed it, and his deed would have been good and legal for the life of his wife. Until her death, the plaintiffs had no rights, and a conveyance before the accrual of a right never could be regarded, in law or fact, as an ouster from a possession not yet had, under a right in expectancy.</p> <p>But if it was true that Mrs. Hodge conveyed, after the death of Mrs. Simmons, a part o'f the land to the other defendant Baker, still that could not be regarded as an ouster. She had the possession in fact; she conveyed the land and delivered the possession; her deed in law, could have no other effect than to convey her interest: her delivery of possession, or rather, the possession of Baker under her deed, did not remove any one of the plaintiffs from an actual possession; and without a disturbance of an actual possession it was difficult to conceive of an ouster.</p> <p>The plaintiffs appealed, and moved to set aside the nonsuits on the ground,</p> <p>That a tenant in common conveying away the whole interest in the premises, commits an ouster, and his co-tenant has a right to bring trespass to try title against the alienee.</p>

<p>A written agreement to pay the debt of another, as required by the statute of frauds, need not contain the consideration upon which it is founded.</p> <p>Were it otherwise, the words “ value received” are a sufficient statement of a consideration.</p> <p>The defendant had endorsed on two notes of one Williamson, to the plaintiff “ I guarantee the payment, &c., for value received.” This promise is not nudum pactum. The words “ value received” import a consideration.</p>

<p>A partner who was not present, and against whom there was no proof that he knew of, or in any wise assented to, the trading of his co-partner with a slave, cannot be made criminally liable for such act of the latter.</p>

<p>BEFORE GANTT, J., AT LEXINGTON, FALL TERM, 1837.</p> <p>Assumpsit on note given for the hire of a negro. A discount was filed for loss of service by sickness; and under the circumstances presented by the evidence, the court, charged the jury that it should be allowed. He did not think that any sickness on the part of the negro would justify a discount, but such an indisposition as lessened materially the value of bis services; the jury made the deduction accordingly.</p> <p>The plaintiff appealed, and moved for a new trial, on the ground that the loss of service was improperly allowed as a ' discount.</p>

BEFORE GANTT, J., AT EDGEFIELD, FALL TERM, 1837. The first two of these oases were summary processes against theBank as a body politic; and the last three were appeals from the judgments of a Magistrate against the Bank.

BEFORE EARLE, J., AT YORK, FALL TERM, 1837. This was a summary process for a trespass in levying on and selling the horse of the plaintiff. The plaintiff bought a horse from one Peter Coonrod, and paid fifteen dollars, part of the price, to Jameison, a constable, on a note which be held on Coonrod for collection. Coonrod owed the plaintiff something, which was also to be deducted out of the price.

BEFORE EARLE, J., AT ABBEVILLE, FALL TERM, 1836. There were three separate indictments against the defendant, depending on the same proof. He was indicted for trading with a slave without a permit; secondly, for retailing spirituous liquors without license; and thirdly, for suffering his slaves to be employed in vending spirituous liquors. There was but one instance proved, and that was the selling of half a gallon of whiskey to a negro.

<p>BEFORE EARLE, J., AT LANCASTER, FALL TERM, 1837.</p> <p>This was a sci. fa. to revive a judgment. The judgment originally was against several defendants, E. Williams, E. Williams, and G-. Williams, and was signed 14th January, 1825, execution lodged 14th February of the same year, for two hundred and thirty dollars/the amount of the penalty, and thirty-three dollars and sixty cents for costs.</p> <p>The defence was, that the execution bad been; satisfied ; that funds bad come into the bands of the sheriff, which ought to have been applied to it. The defendants offered in evidence four other executions against the same defendants, and at the suit of the same plaintiff, lodged 12th of January,. 1826, and levied on three negroes, viz: Washington, Pelina, and Jailey, on the 13th of the same month. Of two of these last executions, B Lanier, and D. W. Faris were the real plaintiffs and the sheriff, John Sims, was'indemnified in the sale of the negroes, by A. Perry, B. Lanier, and D. W..Faris. They were sold — Jailey and Pelina were purchased by Lanier for two hundred dollars ; Wasbington was purchased by Perry, for four hundred and sixt,y three dollars. The money was not paid into the sheriff’s office, as they were the plaintiffs in the executions. An action was subsequently brought against the sheriff, by George Williams, sr., for selling the negroes, and a recovery bad of one thousand seven hundred and fifty dollars; which sum was finally paid by the plaintiffs who indemnified, and they retained the negroes.</p> <p>The amount of Perry’s purchase, if paid into the sheriff’s office, as it would have been if be had not been the plaintiff, would'much more than have discharged the judgment sought to be revived; and bis Honor thought that the plaintiff should submit to the operation of the same rule, that he could not occupy any better situation than a stranger, who might have bought what the sheriff at bis instance offered for sale.</p> <p>The jury, under the instructions of the court, found for tbe defendants.</p> <p>The plaintiff appealed, and moved for a new trial on the following grounds:</p> <p>1st. Because bis Honor erred in charging the jury that the amount for which the negroes were sold should have been applied by the sheriff to the satisfaction of executions against the defendants; as it was in evidence that they belonged to another person, who bad recovered their value from the sheriff since the sale made by him; and besides, it was also in evidence, that the purchasers at the sheriff’s sale, were those who indemnified the sheriff, did not pay their bids, being the real plaintiffs in the executions, and those who paid and satisfied the recovery against the sheriff.</p> <p>2d. Because as the defendants were not the owners of the negroes sold by the sheriff, they cannot legally insist that they should have a credit on executions against them for the amount of the sales.</p>

BEFORE EARLE, J., AT FAIRFIELD, FALL TERM, 1837. Sum. pro. on the balance of a note. Since tbis note fell due a number of the creditors of the defendant, of whom the plaintiff was one, during bis temporary absence from borne took out attacbments against bis effects. On the defendant’s return, an accommodation was effected among the creditors, and the attacbments were dissolved.

<p>The widow of a deceased occupant of land, may set up a title in herself by her own possession after her husband’s death, though he in his lifetime acknowledged that he held under another.</p> <p>The acceptance of a deed poll by one in the possession of land, does not preclude the grantee from denying the title of the grantor, and relying upon her own possession.</p> <p>A parol understanding by the plaintiff in execution who bought the defendant’s land, that it should be reconveyed on payment of debt and costs for which it was sold; carried into effect after the death of the defendant, by a conveyance to a third ¡person, by him to defendant’s son, and by him immediately to his mother, who had remained in possession; does not vest such an interest in the son to subject the land to the lien of an execution against him.</p>

BEFORE EARLE, J., AT UNION, FALL TERM, 1837. Trover against the defendant for three bales of cotton. During the winter preceding the trial, the defendant ginned, and hauled to Columbia for the plaintiff, three bales of cotton, with instructions to sell if he could get eleven cents, and if not, to store it. Being unable to sell it at the price demanded, he stored it in his own name with one Crawford, without demanding the freight.

BEFORE RICHARDSON, J„ AT SUMTER, JUNE TERM, 1837. This was an action of trover, brought by the plaintiffs to recover two negroes, Dinah and Bob, which were levied on and sold by the defendant, as the property of John B. Singleton, in February or March, 1836, under executions against John B. Singleton lodged in the sheriff’s office in 1828. The plaintiffs claimed under the following circumstances.

<p>A written request from A to B, to pay a sum of money for tlie former, will not authorize C, who advances it, to recover the same from A, in an action brought in B’s name for money paid, laid out, and expended, Nor would the action derive any additional support from the declaration of the defendant, that he would have settled it if the plaintiff had not sued him,</p>

<p>BEFORE GANTT, J., AT ABBEVILLE, FALL TERM, 1837.</p> <p>In each of these cases a rule was issued at a preceding term of the Court, requiring Wiley H. Berry, a witness, to appear at the succeeding term and show cause why be should not be attached for a contempt of the Court, in neglecting obedience to its process. Berry failed to attend in obedience to the rule, which was served personally, and no excuse being offered for him, an attachment was moved for against the said Wiley H. Berry, and was refused by the presiding Judge, as the cases were then disposed of, and no application bad been previously made for an attachment under the rule.</p> <p>From this decision an appeal was taken, and a motion made to reverse it, on the ground,</p> <p>That as the absence of Berry was unexplained, the contempt was manifest, and the termination of the case’ could not relieve the witness from its consequences.</p>

<p>BEFORE EARLE, J., AT YORK, FALL TERM, 1837.</p> <p>Summary process by the plaintiff against the defendant for jail fees.</p> <p>John Evans was in confinement by virtue of a capias ad satisfaciendum, at the suit of Wm. M. Kerr; and also on mesne process, at the suit of Samuel Burns. While he was thus in confinement, the defendant, Ellis, lodged a bail writ with the sheriffj against Evans, on the 7th January, 1837, entitled “Wm. 0. Oeage vs. John JBJvms.” B. E. Ellis was endorsed on the writ as the real plaintiff. On the 17tb of March, 1837, Evans exhibited bis petition, with a schedule, for the benefit of the Prison Bounds’ Act, in all of the cases by which be was confined. At March Term, bis motion to be discharged was refused; and be remained in confinement, under the execution obtained in Burns’ case — some property was sold, and the proceeds applied to older executions: nulla Iona was returned as to the residue. The sheriff brought this action for the whole amount of the jail fees. Decree for the defendant.</p> <p>From this decree the plaintiff appealad, on the following grounds:</p> <p>1st. Because the plaintiff was entitled to recover under the Act of 1817.</p> <p>2d. Because be was entitled to recover from the defendant independently, of that Act.</p> <p>3d. Because where a debtor is confined in jail, at the suit of several creditors, and refuses to pay for bis board, the sheriff has a right to elect from whom be will demand payment, and can recover from one, the whole amount, although the debtor may have been previously arrested and confined at the suits of the others.</p>

<p>BEFORE O’NEALL, J., AT ABBEVILLE, SPRING TERM, 1837.</p> <p>This was an action on the case on the clause of warranty of title of a slave, contained in a bill of sale and executed by the defendant to the plaintiff; the declaration also contained a count in trover.' The slave once belonged to Col. Richard Griffin, who sold him to Barker, and to secure the payment of the purchase money, took from him a writing by way of mortgage of the slave; it was not recorded until after the plaintiff bad the slave in possession. It appeared very clearly from the proof, that the defendant, as the. agent of the plaintiff, bought the slave from Barker, who executed to him a bill of sale; and be, to give effect to the sale, executed to the plaintiff a bill of sale, on which this action is brought. After the sale the defendant and the plaintiff were apprized by Col. Griffin of the existence of bis mortgage, and the defendant, under the belief of bis liability as to the title, by. bis son-in-law Beasly, purchased the mortgage from Colonel Griffin and procured him to assign it to Beasly, by whom the negro was seized and delivered to the sheriff at Abbeville district, who, under bis authority, sold the slave to the defendant at public auction, and received and paid over the proceeds to Beasly, by whom the amount was repaid, to the defendant.</p> <p>The plaintiff objected generally to verbal evidence which might contradict the written warranty; but this objection was understood by the Court to be intended merely to give the plaintiff the right to stand on his written warranty, and not to exclude any of the evidence.</p> <p>His Honor was of opinion, and so instructed the jury, that if the defendant acted merely as the agent of the plaintiff in making the purchase from Barker, and if his bill of sale was in consideration of that fact, and not of money paid to him, that then he was not liable.</p> <p>His reasons for that opinion and instruction were, that the measure of damages to be recovered by the plaintiff was the purchase money paid to the warrantor, the defendant, with interest thereon. Furman vs. Elmore, 2 N. & McO. 188. If he received no pecuniary consideration, and was not, in fact, in any shape benefitted by the sale, no damages could be found against him, and not being liable to damages, it followed that the plaintiff could not have a verdict.</p> <p>In Ourry vs. Lyles, 2 Hill, 404, it was held that the parol evidence might be admitted to show that the consideration was greater than that stated in the deed. So in Qarrett vs. Stewart, 1 McC. 514, it was held that notwithstanding a money consideration was stated in a deed, it might be shown that it was executed on an exchange of negroes. From these cases it was plain that the consideration stated does not conclude the warrantor: and it might now be safely said, that the consideration is always examinable. If this were not so, a fraud might thus be covered up, and could not be examined at law. This would be the effect of the principle contended for by the plaintiff in this case. His Mend and agent was to be made liable by an act done merely to give legal effect to his own purchase. Such a result cannot follow from any principle of the common law. The bill of sale executed by the defendant to the plaintifíj to give effect to his purchase, made as agent for the plaintiff, was nothing moré in law than a conveyance by the plaintiff to himself. The purchase by the defendant for the plaintiff, made the property that of the plaintiff. '</p> <p>Under the count in trover, he thought the plaintiff might recover, if any of Ms objections to the defendant’s title under the mortgage were valid. His Honor, however, was against him on all of them.</p> <p>First, as to the form of the mortgage: it was not in the usual form, but be thought it substantially a good mortgage.</p> <p>Secondly, as to notice of the mortgage: the circumstance of its not being recorded until after the sale, could not affect its validity. The provision of the act of 1698 is, “ that the sale or mortgage of negroes,’goods or chattels, which shall be first recorded in the Secretary’s office in Charleston, shall be taken, deemed, adjudged, allowed of, and held to be the first mortgage,” &c. That it was enough that no other sale or mortgage of the slave was recorded. As between a volunteer and a Iona fide purchaser, the rule was, that unless notice be brought home to the latter his title must prevail; but as between conflicting legal titles supported by a valuable consideration, no such rule had ever been laid down in a court of law.</p> <p>Third, as to the satisfaction of the mortgage by operation of law. This, he thought, depended upon the issue in fact,, whether the defendant was the agent of the plaintiff in making the purchase from Barker. If he was, then his warranty of title was the act of the plaintiff, and did not bind the defendant to make it good; and hence that he might acquire and enforce an adverse title. If, however, the title proceeded, from him by a sale to the plaintiff, his Honor held, and so instructed the jury, that Ms subsequent purchase of the mortgage, and the assignment of it to .his agent, was in law, a satisfaction of it; or that the title thus acquired would inure to the benefit of the plaintiff.</p> <p>The jury found for the defendant, and the plaintiff appealed on the following grounds:</p> <p>1st. That the express warranty in writing should not have been contradicted by parol proof of defendant’s agency, or of any other fact inconsistent with the legal effect of the writing.</p> <p>2nd. That the paper called a mortgage, did not, under the circumstances, authorize the assignee to seize the negro in possession of the plaintiff.</p> <p>Undér this ground the plaintiff gave notice that he would (inter alia) contend, that -the paper was defective in form: that it was void against an innocent purchaser without notice, who (as the mortgage knew) had acquired possession before the paper was recorded; and that it was extinguished or discharged, ipso facto, as soon as it became the property of the defendant.</p> <p>The following is a copy of the mortgage:</p> <p>South OaroliNA,</p> <p>Abbeville District.</p> <p>Know all men by these presents that I, Richard Griffin, have bargained and sold, and by these presents do bargain and sell, in consideration of the sum of six hundred dollars, to Laban Barker of the said district, a negro man called John, about forty-five years of age, and I do hereby warrant and defend the title, in and to the said property, to the said Laban Barker, against every lawful claim.</p> <p>Nevertheless, the true intent and meaning of this instrument is, that whereas the said Laban Barker is justly indebted to the said Richard Griffin in the said sum of six hundred dollars on his promissory note of this date, due on the first of October, eighteen hundred and thirty-five, with interest from date. Now it is expressly understood, that if the said Laban Barker should fail in the payment of the said note, the said Richard Griffin shall be, and he is hereby authorized, to take the said slave into his own possession immediately thereafter, and after fifteen days public notice, shall be and is authorized to sell the said negro at public outcry, and apply the proceeds of such sale to the payment of said note.</p> <p> In witness whereof I have hereunto set my hand and seal, this first day of October, one thousand eight hundred arid thirty four. </p> <p>(Signed) LABAN BARKER, [t. s.]</p> <p>Sealed and Signed in the presence of SAMUEL SROWBRIDGE.</p>

BEFORE O’NEALL, J., AT ABBEVILLE, APRIL, 1837. In the two last-named cases, the sheriff of Abbeville District was ruled to show cause why he had not paid over to them the money in his hands, arising from the property, real and personal, of the defendant, sold under the execution in the case of Martin vs. Bowie.

<p>BEFORE O’NEALL, J., AT ABBEVILLE, SPRING TERM, 1837.</p> <p>This was an action of trespass (by way of sum. pro.), against the defendant, a captain of patrol, appointed by the intendant of the village of Abbeville, for whipping a slave, belonging to the plaintiff, within the limits of the corporation, before the hour of nine o’clock at night, at and after which time the Act authorizes the patrol to take up and whip slaves, found outside of their owner’s premises without a pass.</p> <p>It appeared that the plaintiff had hired the slave to Samuel Branch, from February^ until December, 1886; and'that the whipping took place within the time for which the negro was hired. The negro was whipped severely with twenty stripes.</p> <p>The defendant moved for a nonsuit, on the ground that the hirer and not the ownep ought to have brought this action. The presiding Judge ruled otherwise.</p> <p>There was no proof that tbe hirer sustained any loss. His action could only have been maintained by showing a per quod servitum amisit. This could not be shown, and hence he could have no action. The act of the defendant was an illegal one, and was an injury to the property of the plaintiff. It did not, however, materially injure her reversionary rights, and hence case could not be so properly brought. He {thought that the right of personal protection, which was affected by the act of the defendant, belonged to the owner— and was not transferred by the contract of hiring; and for a violation of this right by the defendant, that trespass would lie for the plaintiff, the owner of the slave. The case of Belton vs. Gaston, 2 Bail. 92, was, in his opinion, decisive of the point, and rendered any other remarks by him unnecessary.</p> <p>The motion for a nonsuit was overruled,' and the plaintiff had a decree. The defendant renewed the motion for a non-suit in the Court of Appeals, on the ground,</p> <p>That the plaintiff having, without reservation, transferred to the person-who held the slave'at hire, both the possession and the right of possession, cannot maintain this action for an injury direct to the tenant for a year unaccompanied by consequences detrimental to the plaintiff, and free from all outrage, wantonness, or evil motive, on the part of the defendant.</p>

<p>BEFORE O’NEALL, J., AT UNION, OCTOBER TERM, 1836.</p> <p>This was an action of trover for the recovery of the value of a negro man named Mingoe. The defendant relied on a parol gift from the former owner of the slave, Isaac Harlan, to his natural daughter, Nelly Johnson, afterwards the wife of the defendant. The plaintiff proved possession of the slave for four or five years before the defendant obtained possession. He also proved the re-execution of a bill of sale from Isaac Harlan to the plaintiff, in May, 1832, which had been previously executed, but the attestation cut off because he did not like the witness Geoffrey Palmer. He proved the conversion, and the value of the slave and his hire to be one thousand one hundred and fifty dollars. The defendant proved by a witness, that about ten years ago, the witness was at Isaac Harlan’s, in company with -the mother 'of the defendant’s wife, for the purpose of making some clothesthe negro woman of Harlan was sick, and he wished the mother of defendant’s wife to stay with him and take care of the negro. The child Nelly (Mrs. Eaucett), began to cry: upon which Harlan told her if “ she would go along, and let her mother stay, she might take the two negroes Mingoe and Jesse, whom he had given to her, home with herand he called up the negroes and sent them with her. The mother of Nelly Johnson, made clothes for.these negroes. Harlan was an unmarried man; he had by the same woman, Sally Johnson, two children, Nelly and another, whom he always acknowledged : at the time of this gift he had five negroes : these two boys, Mingoe and Jesse, and two others, Bill and Luke, (whom he gave to his other daughter Sally,) and a woman. In corroboration of this account of the gift by the witness, it was proved by another that the negro boy Mingoe was backwards and forwards at Nelly Johnson’s mother’s: and also by Dr. Nance, that he attended on Jesse, when sick at Harlan’s; that subsequently getting better he went to Sally Johnson’s, the mother of Mrs. Eaucett, when he relapsed, and he attended him there: Harlan was there while the negro was sick: that he had heard the plaintiff say he “ did not want Harlan to squander his property, he wished to prevent Mm from so doing: he wished him to keep it for his children:” and also by another witness, that the plaintiff told him "he knew 'that Harlan had given the negroes to his children that after he bought Jesse, the witness said to him if he had bought the negroes he would run them off: the plaintiff asked why? the witness replied that there would be law about them; upon which the plaintiff said, “ they (meaning the defendant’s wife and her sister,) will never be able to law with meand also by another witness, that between ’25 and ’30, he had heard the plaintiff say, that “Mingoe belonged to Nelly Johnson,” he', the plaintiff, also said that he "had the negroes, Mingoe and Jesse, in possession, and he intended, to keep them, if he had to law them; the girls, he said were not able to law for them ;” and also by another witness, that in ’26 or ’27 he heard the plaintiff say he “was sorry for Isaac’s children, that they should lose the property; he was trying to save it for them.”</p> <p>It was contended by the plaintiff that, admitting the gift, still it could not prevail against him on account of Harlan’s present or subsequent indebtedness. The proof was very clear that from 1826, when the gift was first proved, to his death,'Harlan had been much in debt. To this the defendant replied, that conceding this to- be so, still that the plaintiff acted as Harlan’s agent through all this time, in selling his crops and paying his debts, and that independent of the slave Mingoe, he had abundant funds in his hands to pay all his debts. This the presiding Judge thought was fully made out; and that comparing the debts, proved to have existed, and which were paid by Bogan, with the funds in his hands arising from the land' bought of Harlan, crops sold by him, and a note of five hundred dollars, given by him to Harlan, when he took a mortgage from him, the balance of which is included in the estimate of debts, that they were so nearly equal that the gift ought not to be affected for either existing or subsequent indebtedness.</p> <p>It was also contended by the plaintiff that he was a purchaser for valuable consideration without notice of the gift. The defendant denied that he was a purchaser for valuable consideration; and if that was so, then he contended that he had notice. The proof of purchase for valuable consideration on the part of the plaintiff, depended upon the bill of sale, and the acknowledgment made by Harlan in the presence of the witness Taylor, (who proved the re-execution of the bill of sale,) that he was paid for the negro except one hundred and twenty dollars, which the plaintiff was to pay, by giving up some evidence of indebtedness for that amount which he had, which was done in a subsequent settlement, proved by ¥m, M. Thomson. His Honor reported that it seemed from the proof that the whole consideration for Mingoe arose from payments made, or to be made, by the plaintiff, for Harlan, and hence if he had abundant other funds of Harlan’s, to reimburse him for past, and to enable him to make future payments, which he did, independently of the price of Mingoe, that the conveyance or bill of sale' was without consideration. This was his conclusion from the evidence. It appeared that the plaintiff did exercise great influence over Harlan; that when tbe bill of sale was at first executed no money was paid: and that when re-executed, tbe same thing occurred: that tbe plaintiff obtained from Harlan tbe.execution of a mortgage of two other negroes, Luke and Bill, by suffering him to drink, without any consideration of past or present indebtedness; for subsequent to its execution, and on the same day, he gave Harlan his note for five hundred dollars. To procure the execution of this, he sent for whiskey to induce Harlan to execute it; and when executed, he refused to let him have more, saying “he had got what he wanted.” These facts were proved by Geoffrey Palmer and William Hays: the character of the latter was-assailed, but the result of the attack showed he was entitled to credit. The question of notice depended upon the. facts, which have already been detailed in corroboration of the gift: it seemed if the witnesses were believed, that the plaintiff had notice. The character of Aaron Pruett, one of the witnesses, was attacked ; John Grist and Will Sumner gave him a good character and said he was entitled to belief. In the course of the ifivestigation and in the examination of Charles Bogan, a witness introduced to impeach Pruett, in reply to the cross-examination, he was allowed to say that he had heard one Wilburn (the friend of the defendant, his bail and agent, in defence of this case,) and Geofffy Palmer say, they would not believe Pruett. The defendant’s attorney objected to this answer — his Honor at the time of the trial thought it of little moment, made no note about it, and did not remember the distinct ground upon which it was put: but supposed it was to enable the witness to show, that his opinion of his character was well founded.</p> <p>He was of opinion that the case depended upon the gift: if that was satisfactorily made out, the defendant was entitled to a verdict; otherwise the plaintiff should recover. He remarked to the jury, that if the gift failed, the plaintiff was entitled to recover, no matter how fraudulent his title might be. Until the defendant could show a title to the possession of the slave, he had no right to disturb the possession of the plaintiff or question his title. He thought the gift made out by unimpeached and uncontradicted testimony; and that the defendant ought to have had a verdict. The jury found for the plaintiff. His Honor farther stated in his report of the case, that be should not have been disposed to disturb their verdict, had it not been that at the Extra Court at Union, then just over, he tried a case between these parties for a slave Jesse, depending on the same gift, and where the plaintiff relied on Harlan’s indebtedness and a purchase; and in that case the jury would have most correctly found for the defendant, had not the plaintiff, when they were about to deliver their verdict, submitted to a nonsuit. He, therefore, thought the Court of Appeals ought to order a new trial in this case.</p> <p>The defendant appealed, and moved for a new trial, on the following grounds:</p> <p>1st. Because the Court instructed the jury, that if they should find against the gift relied on by the defendant, made by Harlan to'his daughter, then it mattered not how much soever the plaintiff’s title might be infected with fraud, still the plaintiff was entitled to recover as against the defendant, he not being the rightful owner of the negro in dispute.</p> <p>2d. Because the gift was clearly and fully proved; the testimony being uncontradicted and unimpeached; and it should have been sustained.</p> <p>3d. Because the Court permitted the plaintiff’s counsel to ask the witnesses called to impeach the character of Aaron Pruett, what persons they had heard say they would not believe him on his oath.</p> <p>4th. Because the verdict was contrary to law and the weight of evidence, and to the opinion of. the presiding Judge.</p>

BEFORE BUTLER, J,.AT LAURENS, FALL TERM, 1837. This was an action of trespass for breaking into plaintiff’s close, with force and arms, against his express prohibition. The defendant owned two plantations, distant from each other one and a half or two miles. One of these, (his residence,) was about a half or three-quarters of a mile to the north of plaintiff’s house; the other was a plantation on Mudlick Creek, formerly owned by James A. Williams.

BEFORE BUTLER, J., AT LAURENS, FALL TERM, 1837. .This was an action of debt on a sealed note for eleven hundred dollars, given by defendant’s intestate for two negroes, Robin and Lucy — upon which intestate in his life-time had paid five hundred dollars. The defendant filed a discount, and contended that if he succeeded in his defence he was entitled to a verdict for seventy-five dollars.

<p>BEFORE HIS HONOR, CHANCELLOR JOHNSON, AT COLUMBIA, 1836.</p> <p>The case made by the pleadings and evidence, is thus concisely stated by him.</p> <p>In 1831, Janies H. Adams, now colonel of the sixth regiment of cavalry, obtained permission from Brigadier-general Blair, to raise a troop of borse witbin Ms brigade; and Having recruited and organized the said troop, they were inspected by Major Reese, on the 17th of March, 1832, and upon his reporting favorably, the said James H. Adams, having been before elected, was, on the 25th"of June, 1832, commissioned captain, to take rank as of the 17th of March, the day on wbicb they were inspected. The troop was afterwards supplied with arms from the public stores, and from that time have constituted a part of the regiment of cavalry attached to the said brigade; mustered with it and discharged all other duties required by law. In reference to the question whether this troop was or was not dissolved, and the commissions of its officers vacated by the" act of 1833, it is stated that the said troop was not re-organized, and its officers re-elected on the 11th of April, as provided in the said act; but that in the month of June following, the said troop was re-organized, and the said James H. Adams re-elected captain, and continued in command until the summer of 1835, when be was promoted to the command of the regiment, and' thereupon the relator, James U. Adams, was elected captain of said troop, and bas ever since continued in the command of the same, performing with the said troop all the duties required by law. The relators, James 17. Adams, Henry W. Adams and Elisha Carter, were enrolled in the said troop about four years'ago, and Andrew P. Yinson some time after: and'from the times at which they were respectively enrolled, all of them have mustered with the said troop, and in common with it have discharged all the duties required by law.</p> <p>In showing cause'against the prohibition, the respondents state, in justification of the proceeding of the court-martial, that the relators all reside within the limits of the militia beat company No. 4, of tbe twenty-third regiment of infantry; and that in addition to these, five others (in all nine persons), also residing within said beat, have been enrolled in the said troop, and that by means of raising and keeping the said troop on foot, the said beat company is reduced below the number of forty men, rank and file, in violation of the Act of 1833; and it is conceded that the said beat company consists now of only twenty-seven, rank and file.</p> <p>Before and at the time of the raising and organization of this troop,' another troop of horse (the Richland Light Dragoons) had been recruited from the said twenty-third regiment, and was then, and is still, in existence, properly officered and equipped; and then and now performing the duties of a troop; which the respondents insist rendered the raising and organization of this troop unlawful, as the Act of Congress of 1792 limits the number of troops in a brigade to one to each regiment of infantry</p> <p>By the Act of Assembly of 1815, it is provided that no beat company shall be reduced below thirty men, rank and file, by reason of the raising of any volunteer companies; and the Act of Congress of 1792, provides that the number of artillery and horsemen should not exceed more than one-eleventh part of the infantry of each brigade; and the respondents state, in their answer, that by means of raising this troop in 1832, the beat company No. 4 was reduced below thirty men, rank and file, and the number of horsemen were made to exceed one-eleventh part of the infantry, and therefore, they insist also that the said troop was improperly’raised. But these facts-are not sustained'by any evidence, and from.’ what transpired at the argument, I suppose do not exist; in any event, I regard them, for reasons which will hereafter be seen, as wholly immaterial.</p> <p>Under these circumstances, the relators were summoned to attend the muster of 'the beat company No. 4, on the 5th of March last, to do duty as infantry; and refusing to perform that service, they were summoned to appear before an infantry regimental court-martial, consisting of the respondent, Major Hopkins, and four other officers, to show cause why they should not be fined for the said default. They appeared before the court and submitted the facts before stated, in the form of a plea to the jurisdiction of the court. The plea was disallowed, and the relators sentenced to pay the fines imposed by law for the supposed default, and executions have been awarded therefor. The relators pray the writ of prohibition, to restrain the said court in the collection of the said fines, on the ground that they are not liable to perform militia duty in the said beat company, nor subject to .the jurisdiction of the said court; but are bound to serve in 'the said troop of horse to which they belong, and liable for neglect or disobedience, only to a cavalry court martial.</p> <p>The Act of the State Legislature of 1815, under the authority of which . this troop was raised, authorizes the officers commanding brigades to permit volunteer companies of cavalry and artillery to be raised within their respective commands, provided no beat or district company shall be reduced below thirty men rank and file, by the formation of any volunteer company or companiesand the Act of Congress of the 8th of May, 1792, which constitutes a part of the militia system, as a further limitation of this power, prescribes that there shall not be more than one company of each, to.a regiment of infantry, and that the whole number shall not exceed one-eleventh part of the infantry of the brigade. Now, it does not appear that any one of these limitations was violated in the original organization of this troop; and I am led to conclude that the reduction of the beat compány No. 4 has originated in causes arising subsequently by the death or removal of persons liable to do duty therein, or what is still more probable, by the re-organization of the beat company itself under tbe Act of 1833, wbicb provides-for-a new division of tbe districts, and that tbe beat companies should not be reduced below forty men, rant and file, by tbe raising of volunteer companies. But this I regard as immaterial to tbe matter in issue, for, if in tbe organization of tbe troop, every restriction imposed both by tbe Acts of Congress and tbe-State Legislature, bad been even wilfully violated, yet so long as the relators remain, enrolled in the troop, they were not liable to do ordinary militia duty in tbe beat company, nor were they answerable to tbe infantry court martial for any neglect of militia duty.</p> <p>The warrant or order of an officer having legal authority to make it, is, upon the plainest principles of law, a justification to the agent authorized to carry it into execution. Thus a ministerial officer will be justified in carrying into execution the sentence of a court of competent jurisdiction, although it may be founded on the grossest ignorance or the vilest corruption. Tbe interpretation of the law is confided to the court, and the agent who is entrusted to carry its judgment into effect is not permitted to inquire into its correctness.</p> <p>What is this case ? General Blair, the officer commanding the fifth brigade, issued bis order authorizing James H. Adams to raise a troop of horse within the brigade, a power expressly delegated to him by law. On the faith of this order the rela-tors enrolled themselves in the troop; were inspected, received, and incorporated with the regiment of cavalry attached to the brigade, and have from thence continued to serve in that character.. Tbe effect necessarily was to discharge them from ordinary militia duty, because it imposed on them other duties wbicb are sometimes necessarily incompatible with it, which no longer remained a matter of choice, but wbicb they were bound to perform at their peril. Here then is the precise case of persons acting under the authority and in obedience to the orders of the brigadier-general, to whom the Act of 1815 expressly gave the authority to make the order; and to punish the relators for acting upon it, is to use the law as a trap to ensnare them.</p> <p>Again; it is not controverted that this troop was raised, inspected and incorporated with the regiment of cavalry; nor is it denied that the power of ordering it, is by law confided to the brigadier-general. In determining, therefore, whether the relators were or were not liable to ordinary militia duty, directly and necessarily involves the question whether the general had or had not violated the law in permitting the troop to be raised, and the relators to be enrolled in it. And will it be claimed for a regimental court-martial, that they have the power of examining and reversing the orders of their general, and punishing those who act under them? Such a principle of insubordinacy will not be found in any code, civil or military, and I am satisfied that this court-martial must have overlooked this difficulty, or they never would have overruled the plea of the relators.</p> <p>It is, however, well ascertained that this beat company is now reduced below the number of men, rank and file, which it is entitled to by law, and it is asked, is there no remedy ? If, as I suppose, it has been so reduced by causes arising subsequently to the organization of the troop, it may be well doubted, whether those before enrolled could be disbanded and ordered to the ranks of the beat company; for the prohibition is, by the terms of the Act of 1815, expressly limited to the reduction of the beat companies by the “formation of any volunteer company or companies,” and would not apply to a reduction of the beat company by subsequent or other causes; and the same phraseology is used in the Act of 1838; and besides this, there would' be manifest impropriety as well as hardship, in compelling men trained to one branch of the military service, and equipped at their own expense, to abandon that and engage in another. But if the brigadier had assented to the enrolment of the relators in the troop, knowing .at the time that by this means the beat company would be so reduced, he would be answerable to a brigade court-martial, for such a violation of the law; and that court would unquestionably have the power of making the necessary orders to compel those enrolled in the troop, in violation of the law, to return to the ranks of the infantry. If, in raising the troop, the beat company had been so reduced without his knowledge or concurrence, he himself doubtless has the power, and it certainly is his duty, to make such orders as may be necessary to correct the airases practised in executing his own orders; or if he should think it advisable, might call in the aid of a court-martial.</p> <p>From this view of the subject, the question whether the whole number of troopers exceed one-eleventh part of the infantry, or whether it was admissible to raise more than one troop in a regiment, is wholly immaterial. 'I will remark, however, that the fact assumed in the first proposition, has not been shown to exist, and in relation to the second, it will be (observed, that according to the Act of Congress of 1792, troops of horse are to be raised or formed by “volunteers from the brigade,” and unless it should infringe some other legislative enactment, there is no reason, except that of mere policy, why all the.cavalry of the brigade should not be recruited from one infantry regiment.</p> <p>I have thus noticed these grounds from respect to the respondents and their counsel, but I intend it to be distinctly understood that my judgment, on this branch of the case, rests entirely on the ground that the brigadier-general, who was clothed with ample legal authority, did permit this troop to be raised, and the relators to enrol themselves in it, and incorporated jt with the regiment of cavalry attached to his brigade; and the court-martial before which the relators were tried, having ascertained the fact that the relators had been so enrolled, were not competent to decide whether the order given by the general was legal and proper, or whether it had been properly or legally executed.</p> <p>There are, however, other questions in the case, which require to be noticed. This troop, it is said in behalf of the respondents, was dissolved by the Act of 1833, and not having re-organized and elected its officers on the 11th of April thereafter, as provided for in the Act, it ceased to exist, and the relators were therefore bound to perform ordinary militia duty.</p> <p>The 3d section of the Act declares that all volunteer companies of light infantry, riflemen and grenadiers, in existence at the passing of the Act, except such as had been incorporated by an Act of the Legislature, should be dissolved on tile first of.March then ensuing, and the commissions of their officers vacated. This, it will be observed, does not include cavalry; but in the 17th section it is enacted “that artillery companies, troops, squadrons and regiments of cavalry, which were organized according to law, previous to the Act passed in December last, entitled, ‘ an Act to alter and amend the militia laws of this state,’ shall be allowed to re-organize themselves and elect their officers on the 11th day of April next; and when no such companies, troops, squadrons or regiments have been raised as now provided by law, the brigadier-generals are hereby authorized to permit the raising of such corps within their respective commandsand I have understood that the construction of those two clauses which was received' and generally acted upon at the time, was that the troops, squadron and regiments of cavalry were dissolved and the commissions of their officers vacated; and such was probably the intention of the Legislature; but the correctness of that construction, judging from the Act itself, may well be doubted, for the cavalry are not within the letter of the 3d section, and the 17th section, standing alone, cannot, I am inclined to think, by any reasonable construction, have the effect of dissolving the troops or vacating the commissions of the officers; for allowing them “to re-organize and elect their officers on the 11th of April,” does not by any necessary implication, involve a dissolution of the troop. ' But this question is irrelevant, and therefore it is unnecessary to decide it, supposing the company dissolved both in law and in fact. The re-election of James H.-Adams to the command of it in the June following, and of the relator James U. Adams in the course of the last summer, his commission as captain, and the incorporation' of the troop with the regiment, is a sufficient re-organization of it, although it had not existed before the Act of 1833. The sanction of the brigadier general to this new organization, (so to express it,) was as effectual as if it had been raised anew under his order.</p> <p>There is yet another ground opposed to the prayer of the suggestion of the relators. It is that this court-martial were competent to determine whether the relators are or are not liable to ordinary militia duty. If they decided erroneously, the relators had the right to appeal to the officer ordering the court, and having neglected to do so, their judgment is final.</p> <p>That this court-martial were competent primarily to determine whether the relators were, or were not liable to ordinary militia duty, cannot admit of a question; for the right to determine the jurisdiction is incident to every court, in the first instance; but when the facts'are ascertained, and the subordinate tribunals exercising judicial power err on the question of jurisdiction, that is ground for probibition; and so if they err in tbe construction of a statute, for unless there was some common controlling power over these subordinate jurisdictions, it is probable, and we know from experience, that there would be no uniformity in their decisions; to-day the law must be one thing and to-morrow another in the same place, and different things in different places at the same time. Ex parte Brown, 2 Bailey, 823. The State vs. Bedgell, lb., 560; State vs. Iludnal, 2 Nott & McCord, 419. So prohibition will lie to restrain the proceedings of an inferior court, where, as in this instance, a collateral matter arising out'of it does not belong to that jurisdiction. The State vs. While, et al., 2 Nott & McCord, 176.</p> <p>The relators were not entitled to an appeal from the sentence of the court. The only case in which it is allowed by the Act of 1815, is when the appellant shall accompany his appeal by an affidavit that he could not attend the court by which he was fined, and that' he does not appeal for delay. The relators did attend and made their excuses, and could not therefore bring themselves within the rule. It is true that this Act was repealed by the Act of 1833, and the right of appeal expressly denied, but this last Act was repealed by the Act of 1834, and the right of appeal as before used restored, thus' restoring the Act of 1815 without alteration or amendment. This is, however, also an unimportant and irrelevant question, for whether the right of appeal existed or not, or whether the relators availed themselves of it or not, if the subject matter, as I have before shown, was not under their cognisance, every step in the proceedings was coram non judice, and prohibition would lie before or pending an appeal, and even after final judgment and execution. Com. Dig. Prohibition, D.</p> <p>It is therefore ordered, that a writ of prohibition do issue from the office of the Commissioner in Equity for Bichland District, to be directed to the respondents, and to all and singular the sheriffs, constables and other officers of the State, commanding and requiring them forthwith to desist and forbear from the collection of the fines imposed on the relators by the said sentence of the said court-martial.</p> <p>DAVID JOHNSON.</p> <p>Columbia, 29ih Aug. 1836.</p> <p>The respondents appealed from the order for prohibition made by his Honor Chancellor Johnson, upon the grounds :</p> <p>1st. That at the time of the formation of the lower troop of Richland Dragoons, there was already more than one troop of horse to a regiment in the brigade.</p> <p>2nd. Because A. P. Yinson, Elisha Carter, James H. Adams, and Henry W. Adams, were not members of the lower troop of Richland Dragoons at the time of the formation of the said troop, and the commissioning of its officers— but became so at a period long subsequent thereto.</p> <p>3rd. Because if the raising and commissioning of the said troop was legal, the addition of subsequent members, whereby beat No. 4 was reduced, was illegal, and they continued liable to do duty in said beat. ' •</p> <p>4th. Because by the Act of Congress, of 1792, troops of horse are to be formed of volunteers from the brigade, at the discretion of the commander-in-chief of the State, and not at the discretion of the brigadier.</p> <p>5th. Because the troop was dissolved by the Act of 1833, and the commissions of its officers vacated — and it was not re-organized and its officers re-elected on the 11th of April following.</p> <p>6th. Because beat company No. 4 has been reduced to twenty-seven men rank and file, by the raising or keeping up of the troop, whereof the relators are members, and residents in the beat.</p> <p>7th. Because the Act of 1815, which authorizes volunteer companies of cavalry to be raised, provided expressly, that the beat be not reduced thereby.</p> <p>8th. Because the authority of the brigadier to raise the troop, cannot excuse the relators if the beat be reduced by the raising of the troop, or by subsequent recruits, or by subsequent events.</p> <p>9th. Because the authorizing of another troop to be raised, did not imply an authority to reduce the beats.</p> <p>10th. Because the court-martial had jurisdiction of the question.</p> <p>11th. Because the relators submitted the question of jurisdiction to the decision of the court-martial by formal plea ; and the decision of the court thereon is final and conclusive.</p>

BEFORE GANTT, J., AT COLLETON, SPRING TERM, 1837. This was a rule against the sheriff to stow cause wby certain moneys collected on executions taken out in the name of Samuel Jamison, should not be paid over to Charles Theodore Oark.

<p>BEFORE EVANS, J., AT BEAUFORT, FALL TERM, 1837.</p> <p>This was a suggestion alleging that certain judgments against Bona were void for fraud, and on account of his infancy.</p> <p>An application had been made at a former Court before Judge Butler, for leave to file’ a suggestion alleging these facts, which was granted. At this term an application was made before Judge Evans, to set aside the filing of the suggestion, because it was not sworn to. He refused the motion, as the fact had been sworn at the time the issue was ordered; nothing remained for him to do, but to try the issue which had been already ordered.</p> <p>From this decision, the defendant gave notice of appeal, on the ground that it was contrary to law.</p>

BEFORE RICHARDSON, J„ AT GEORGETOWN, FALL • TERM, 1837. This was an action on a promissory note for one hundred and nine dollars, payable one day after date, to Eleazer Waterman or bearer, and transferred to the Winyaw Indigo Society. The action was commenced at Spring term, 1837; to this, the statute of limitations was set up as a defence, and the plaintiff replied a subsequent promise.

<p>BEFORE GANTT, J., AT CHARLESTON, MAY TERM, 1831.</p> <p>The plaintiff brought an action of assumpsit against the defendant, as the executor of Desportes, who was the executor of one Doyen, on a due bill which was unnegotiable, and was given by Doyen to Metivier, the assignor of the plaintiff, on the 21st of April, 1814. This action was commenced on the 2d of January, 1830, and the assignment of the due bill to the plaintiff, was made just before the commencement of the action. It was proved that Doyen died about six years before the trial — and six months before his death, had promised the plaintiff to pay the due bill. After the death of Doyen, Desportes acted as his executor, and he also frequently promised to pay it, stating that he had a negro belonging to the estate of Doyen, to sell — and that as soon as he was sold, he would pay the debt. Desportes died about three years before the trial, and had promised payment about three months before his death.</p> <p>To this action the defendant pleaded the general issue, and the statute of limitations.</p> <p>The presiding Judge was of opinion, and so charged the-jury, that the promise by Desportes to the plaintiff being-made before the assignment, could give him no right of action, though, at the time of the promise, he had the due bill in possession; and that the promises made by Doyen and Desportes, successively, did not remove the bar of the statute, which he thought was a good defence to the plaintiff’s action. His Honor recommended that they should find for the defendant, that the case might receive the consideration of the Court of Appeals, and the questions of law involved in it, be finally settled. He was of opinion that the current of decisions in this State, as to subsequent promises which would remove the bar of the statute, were radically wrong, and was anxious that the whole subject should be re-considered, and a more reasonable construction of the statute be adopted. The jury found for the defendant accordingly, under the plea of the statute.</p> <p>The defendant appealed, and moved for a new trial on the following grounds:</p> <p>1st. Because his Honor erred in charging the jury, that the promise made by Desportes, to pay the due bill sued on, was nudum pactum, although Doyen, his testator, had promised to pay it six months before his death.</p> <p>2d. Because his Honor erred in charging the jury, that although Doyen, the testator, promised to pay the due bill sued on, six months before his death, and Desportes, his executor, also promised to. pay it three months before his death — which last promise was within four years next preceding the commencement of this suit; yet, under the statute of limitations, the plaintiff was not entitled to recover.</p> <p>3d. Because his Honor erred in charging the jury, that, admitting all the facts sworn to by the plaintiff’s witness, to be true, yet on the law of the case, the plaintiff was not entitled to recover, he being barred by the statute of limitations. '</p> <p>4th. Because his Honor erred in charging the jury, that the due bill sued on having been once barred by the statute in the lifetime of the testator, Doyen, it could not be revived -by the promise of his executor, although he (Desportes) acknowledged it, and promised to pay it three months before his death.</p> <p>5th. Because bis Honor erred in charging the jury, that the written assignment of the due bill sued on, having been 'made to the present plaintiff) after the promises and acknowledgments made by Doyen and Desportes, and although the due bill was at both of those periods, in the possession of Reigne, the plaintiff, or his agent, the said promises and acknowledgments, could not inure to the benefit of the plaintiff, and he was therefore, on that ground also, not entitled to recover.</p> <p>6th. Because the charge of his Honor was, in other respects, contrary to law.</p> <p>7th. Because his Honor recommended to the jury, to find a special verdict in this case, in order that the Court of Appeals might decide, that no subsequent promise can revive a debt once barred by the statute of limitations.</p> <p>8th. Because it having been proved by a witness, whose credit was not impeached, that Doyen, the testator, acknowledged the due bill to be a subsisting demand, and promised to pay it six months before his death, and that Desportes, the executor, repeatedly made similar promises and acknowledgments during the year, and as late as three months before his death — and this last promise having been made within four years next before the commencement of this suit, the verdict of the jury should have been for the plaintiff.</p> <p>9th. Because the verdict of the jury was contrary to law and evidence.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1831.</p> <p>This was an action on the case for obstructing the air and light of the plaintiff’s windows. The declaration contained counts for obstructing them as ancient lights, and also forobstructing the sweep of the shutters so that they could not be opened.</p> <p>It was ‘proved that the plaintiff’s house had been built for fifty-five or fifty-six years; that during that time it had on the side. next to the defendant’s lot, .three windows with shutters. There was a space of from four to five and a half feet between her house and that which stood on the defendant’s lot. The defendant, in 1832, put up a building as a blacksmith’s shop, which just left free the eaves of the plaintiff’s house, and prevented the opening of her windows. The defendant was requested by plaintiff’s son to leave a sufficient space for that purpose, and nothing more would be required; but the proposition was declined. The defendant afterwards changed this building into a dwelling house. The space left between the plaintiff’s and defendant’s houses was from four to eight inches, and in this space tbe defendant placed an upright plank, so as to obstruct it completely.</p> <p>A motion was made for a nonsuit, on the grounds,</p> <p>1st. That the counts in the plaintiff’s declaration for obstructing ancient lights, were not supported by the testimony.</p> <p>2d. That the counts for obstructing the window shutters, set forth no legal cause of action.-</p> <p>The presiding Judge was of opinion that the proof sustained the counts for obstructing ancient light, and that it was not necessary to refer to the counts for obstructing the window shutters; that if they were available at all, they were mere variations of those for obstructing ancient lights.</p> <p>The motion for a nonsuit was overruled, and the case went to the jury. They were instructed, that if one be possessed of a house, having windows unobstructed in light or air, for twenty years, that this constituted a prescriptive right, the enjoyment of which could not be interrupted so as to deprive the owner of the light and air, to which he was accustomed; and that any obstruction of the light previously enjoyed by the plaintiff, would entitle her to maintain the action. The jury found for the plaintiff.</p> <p>The defendant appealed, and renewed his motion for a nonsuit; if that should fail, he moved for a new trial, on the .following grounds:</p> <p>1st. That the presiding Judge charged the jury that any diminution of the light previously enjoyed by the plaintiff, was sufficient to sustain the right of action.</p> <p>2d. That the verdict was contrary to law and evidence.</p>

<p>BEFORE RICHARDSON, J„ AT CHARLESTON, JANUARY TERM, 1838.</p> <p>By an Act passed December, 1827, The South Carolina Canal and Railroad Company were incorporated, and authorized to construct a railroad from the city of Charleston to the Savannah river, at or near Hamburg. By an Act passed January, 1828, the powers of the company were farther defined. By the ninth section they are authorized to cross any public road, or navigable river, so as not to obstruct the same — by the thirteenth section, to farm out the road, to prescribe the form of the vehicles, and the locomotive power. By an .act dated the 20th December, 1832, the company were authorized to construct a tract from Line street to the boundary line of the city of Charleston, through any public streets, roads, or squares, on Charleston Neck, provided, no locomotive engine be used below Line street, and that the railroad do not impede the ordinary passage along the roads, streets, or squares.</p> <p>In 1834, the company constructed an avenue, and laid down a railroad from Line street to Mary street, near, but not on the city boundary.</p> <p>Horse power was used in 1834, on the avenue. In 1835, the company placed locomotives on the avenue, and have continued to run them until this time. v</p> <p>The indictment charged the defendants with a nuisance, in running locomotives between Line street and Mary street.</p> <p>The prosecutors gave evidence of abundance of sparks from the engine, which the witnesses considered dangerous. The witnesses differed as to the increased or decreased value of property on the Neck, since the railroad. The defendants gave evidence of the caution used in the management of the engines, and the opinion of other witnesses, that there was no danger.</p> <p>His Honor charged the jury, that under the Act of 1827, the defendants had no right to build or use any railroad, except from Line street, where the company originally placed the road, to wards.the Savannah river, at Hamburg. That the Act of 1832, which authorized their extension into the populous neighborhood between Line street and Boundary street, subjected them to a condition by which they were bound to employ horse power only. That this condition had been' violatedand that if the use of the steam engines, without the sanction of public authority, in such a place, was a nuisance, the company were liable. The jury returned a verdict of‘'guilty.”</p> <p>The defendants moved for a new trial, on the ground,</p> <p>That his Honor charged the jury .as above mentioned, •whereas, they insisted, that under the Acts of 1827 and 1828, they had the privilege of running a locomotive to Boundary street. And that even if the locomotive was dangerous, or inconvenient to the neighborhood, the privilege granted by the public, precluded the charge of a common nuisance.</p>

<p>The entry of a sale by an actioneer in his book, according to the vendue Act, is, a sufficient memorandum of the contract within the statute of frauds.</p> <p>Such entry is also the evidence of the sale, and is admissible to prove it, in an action brought by the auctioneer himself, to recover the difference between a first and second sale.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TEEM, 1837.</p> <p>This was an action on a policy of insurance of the schooner Harriet, at and from the port of Charleston to Mobile ; sbe was insured in the policy at three thousand five hundred dollars. Her cost a. short time before the insurance, was three thousand dollars; her sea stores, wages of her seamen, insurance, &c. amounted to four hundred and twelve dollars and fifty-two cents.</p> <p>She sailed on the voyage insured, encountered heavy gales which materially injured her hull and rigging; she, however, reached her port of destination — was then surveyed, condemned as no longer fit for sea, and not worthy of repair, and recommended to be sold, which was accordingly done.</p> <p>The cost of repairing her, was stated by the ship-carpenter, at Mobile, thus: “to repair her hull, the carpenter’s work would be from one thousand seven hundred to two thousand dollars; to refit her rigging, would cost five hundred or six hundred dollars.” An average result of this estimation would have made the repairs two thousand four hundred dollars. All the witnesses concurred that the vessel was not worth more than three thousand dollars, when she sailed from Charleston.</p> <p>She was proved, by one witness, not to be sea worthy when she left Charleston; he said she ought to have been condemned at least two years before she sailed on this voyage. He had once seen her run on shore some time before she sailed. The other witnesses concurred in ascribing her situation, when she reached Mobile, to the storms which she had encountered. One of the plaintiff’s witnesses- proved that be bought the vessel for the plaintiff at three thousand dollars; that he examined her minutely; that she was seaworthy when she sailed. It was also proved that the company had inspectors, whose duty it was to inspect vessels before they were insured.</p> <p>His Honor instructed the jury, that to be sea-worthy, a vessel must be staunch, and well found for the voyage before her; in other words, that she must be capable in ordinary circumstances -of reaching in safety her port of destination.</p> <p>The question in this behalf was a mere question of fact, submitted to the jury after a recapitulation of the testimony, and after their attention had been pointed to such parts of it as seemed to be material.</p> <p>The insurance of the vessel was for a greater sum than she wras Worth; it, however, included the value of the vessel, her sea-stores, seamen’s wages, and insurance, which approached within .a few dollars of the sum set clown. _ But the policy was an open one; and in the opinion of the Court, the value of the vessel set down concluded-neither party, and did not affect its validity.</p> <p>His Honor ruled that notice of the condition of the vessel when she reached her port of destination, was not necessary to have been given before the vessel was sold, for and on account of all concerned. There was no offer on the part of the insurers to repair, and hence, the assured could not be affected by a right to do that which was not done.</p> <p>In relation to the question, whether the assured had the right to abandon for a total loss, it depended upon the cost of repairs. The rule seemed to be, that where the repairs would amount to one-half, the vessel was unworthy of repair, and it was a total loss. It was questionable, whether in estimating the value of repairs, in a case of total loss, one-third new for old was to be deducted. In this case, allowing the deduction, the repairs would still have been one thousand six hundred dollars, exceeding the half value of the vessel.</p> <p>The jury found for the plaintiff the value of the vessel, at three thousand dollars, deducting therefrom the net sale in Mobile; and two per cent, discount under the policy, with interest from sixty days after notice of the loss to the company.</p> <p>The defendants appealed, on the grounds,</p> <p>1st. That the evidence established that the vessel was unsea-worthy when she sailed from Charleston, and the policy therefore became vacated.</p> <p>2d. That it was clearly proved, that the vessel was overvalued.</p> <p>3d. That the underwriters ought to have had notice of the state of the vessel on her arrival at her destined port.</p> <p>4th That the amount of repairs required, did not authorize an abandonment, and that the charge was contrary to law on this point.</p> <p>oth. That it was a case of partial loss, which the assured had no right to convert into a total loss.</p> <p>6th. That the. insurer had a right to offer to repair, which would have deprived the assured of the right to abandon.</p> <p>7th. That the direction to the jury, by the presiding judge, and the verdict, were in other respects contrary to law and the evidence.</p>

<p>There is no difference between Justices of tlie Quorum, and of the Peace, as to the territorial extent of their jurisdiction: in this respect they are both limited to the District or Parish, in and for which they were appointed.</p>

<p>BEFORE RICHARDSON, J., AT CHARLESTON, JANUARY, 1838.</p> <p>This was an action against John Magrath, the owner of the steamboat Augusta, and Brooks the captain, as common carriers. The intestate, Patton, had shipped on board the Augusta fourteen bales of cotton, to be carried from Augusta to Charleston, consigned to Boyce & Co.</p> <p>The protest was ruled to be properly admissible in evidence.</p> <p>The cotton had been delivered by a lighter, and remained in it alongside of the Augusta. The captain and hands had gone to rest; when, at about one o’clock the next morning, the cotton was discovered on fire. No one could find out how the fire originated; and there was no proof of negligence, in the management or discipline of the steamboat. She remained unhurt by the fire, but the cotton was all burnt.</p> <p>The defence set up, was, that by general usage, the owners of steamboats were not holden liable for losses by fire.</p> <p>The witnesses on the alleged usage, held the owners of such boats irresponsible for such losses, unless negligence be proved; and gave several instances of such losses occurring, and no demand of damages having been made by the shippers. Sometimes the owners insured the cotton, and demanded higher prices for freight on that account. One witness said, that eight or ten years ago, the difference in freight, made by the insurance, was 72^ per bag. Another believed the point given up by the shippers, unless this extra price for freight was paid; but thought the practice of having two rates of freight was not well settled. The railroad, he said, paid such losses. The usage was, of course, modern, having come in practice with steamboats. But the reason for the usage was that steamboats being propelled by the means of fire, such losses were incidental, and fall upon the shipper, who risks his goods on board of such a boat.</p> <p>His Honor charged the jury—</p> <p>1st. That the case presented a clear instance of loss by the carriers. That the law recognized no such exemption, in favor of steamboats. Their fire was to propel the boat, not to burn the cargo ; and if the carriers permitted it to spread, they must bear'the consequent loss. Their vigilance was to prevent such losses; and it was not incumbent on the shipper to prove negligence, or remissness, on their part, in order to recover.</p> <p>2d. That although a general usage, so long practiced as to indicate the assent and concurrence of all parties concerned, might form such an exception to the legal liability of carriers for losses by fire; yet, that the .understanding and practice, now set up, was evidently too recent — too confined in instances ; and he thought too little supported by just reasons or necessity, to have already constituted a usage, authoritative enough to make an exception to the established law, against common carriers. And he thought the practice of paying such losses by the railroad company, illustrated the true rule of law.</p> <p>3d. That, supposing the usage had been esatablished, of which the jury were the final judges, yet, still, it did not appear that the burning of the cotton in the lighter had any connection with the fire-engine of the steamboat. It was simply burnt, after delivery, and near the steamboat; the boat, and cargo in her bull, being unhurt. He thought the usage, taken in any latitude, could not be extended to such a loss.</p> <p>4th. The place of'the burning put the particular case out of the reason assigned for the usage; which would seem to be, the risk of burning, inseparable from the use of the fire-engine, which is indispensable in propelling the steamboat. But the usage could in no view be extended to a case where the loss was untraced to, and disconnected with, the fire necessary to the engine.</p> <p>The jury found for the defendants, and the plaintiffs appealed, on the grounds,</p> <p>1st. That the protest was not admissible.</p> <p>2d. That the law so well established as to common carriers, rendered the defendants liable, upon the non-delivery of the cotton, for which no excuse but the act of God or the public enemy would avail.</p> <p>3d. That the pretended custom was without evidence, as all the witnesses admitted it was disputed from the beginning, and avoided, in many instances, by extra charges; and finally, that the risk is openly admitted by two large companies, who secure themselves by counter policies.</p> <p>4th. Because the protest, if good evidence established such a case of negligence, as independent of any custom, would make the carrier liable; especially, as the loss was independent of the use of steam, occurring when at anchor.</p> <p>5th. Because the custom is not a reasonable one; is in derogation of the wisdom of the common law, and places the freighter at the mercy of the carrier, as all cases of neglect must depend on interested testimony. It is ill-defined, uncertain, and impolitic; and lastly, the verdict was arbitrary, against the charge of the Court, and unsupported by evidence, and against law.</p>

<p>Where a new forum has been created for the trial of cases which belonged to another, it has a superseding and paramount jurisdiction, and thereby deprives the old tribunal of all authority.</p> <p>The 2d section of the Act of 1821 repeals the 29th section of the Act of 1740, in relation to the trial of a free negro, mulatto, or mustizo, for harboring a runaway slave. V</p> <p>Where a subsequent Act either increases or diminishes a penalty, it operates as a repeal of any former law upon the same subject.</p>

<p>The prosecutor, in an indictment for an assault and battery, has a right to proceed both criminally and civilly; but the Court will not give a severe judgment upon the criminal conviction, unless the prosecutor will agree to relinquish Ms civil remedy.</p>

BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837. This was an action on a policy of insurance, made in Charleston, on sixteen thousand seven hundred dollars in gold coin, at and from Charleston to Philadelphia, in the brig Langdon Cbeves. The brig put to sea, and after being some time out, was driven back by stress of weather to Charleston, where she was detained some time, in effecting repairs.

<p>The words, “ free Indians in amity with this government,” employed in the fourteenth section of the Act of 1740, are applicable to one who has no connexion with any tribe, and is domiciled in this State.</p> <p>The term “mustizo,” used in the same section, is confined to admixtures of the Indian and negro races.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.</p> <p>The facts of this case, so far as they are necessary to be stated, were these:</p> <p>The defendant agreed to lease to plaintiff bis house and lot in Meeting Street, at an annual rent of nine hundred dollars, or one thousand dollars, for three years, commencing on the 1st January, 1836, subject to a condition, if at any time during the lease be should sell, that upon giving the plaintiff six months notice to quit, she was to leave the premises. The defendant sold before the day on which the plaintiff was to have possession; on the 8th of December, 1835, be gave her notice of his sale. The plaintiff was the keeper of a female boarding school, and was put to great trouble, in procuring a suitable house for her purposes, and was not at last so conveniently situated as she would have been at the defendant’s house.</p> <p>The plaintiff claimed damages for the defendant’s breach of contract.</p> <p>It was submitted to the jury, who found for tbe plaintiiff five hundred dollars damages.</p> <p>The defendant appealed, and moved for a new trial, on the ground that no damages were proved, and such as were awarded were purely arbitrary.</p> <p>1st. Because, under the pleadings in the case, and on the evidence given, the plaintiff could not recover, as the contract, if in writing, was under seal: and if not in writing, it was not a contract to charge the defendant in law.</p> <p>2d. Because no damages were proved.</p> <p>3d. Because the damages awarded by the jury, were not warranted by the evidence, and were purely arbitrary.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.</p> <p>The following is the report of the. presiding Judge:</p> <p>In this case an information, in the name of the attorney general, is filed against the Bank of Charleston, to inquire by what warrant or authority they have exercised the liberty or franchise of apportioning their increased capital stock of two millions dollars among the stockholders.</p> <p>On Thursday, the 2d of February last, the Bank, at a full meeting of the stockholders, adopted the following resolutions, to wit:</p> <p>1. “ Resolved, that the stockholders of the Bank of Charleston have a clear right to increase the capital of the bank to four millions dollars.</p> <p>2. Resolved, that the stockholders have a clear and well defined, legal right, to divide the new stock among themselves.</p> <p>3. Resolved, that it is just and proper to declare a dividend on the respective payments made on the increased stock, as the same fall in.</p> <p>4. Resolved, that the president of the bank be authorized to pay into the public treasury the sum of fifty thousand dollars, as a bonus, for the right of increasing the capital, in pursuance of the provisions of the Act incorporating the bank.</p> <p>5. Resolved, that in the event of the stockholders refusing or neglecting to subscribe for their portions of the increased stock, at the regular time advertised, the same shall be sold at public auction for the benefit of the stockholders generally, at the discretion of the president and directors of the bank.”</p> <p>These resolutions are now about being carried into effect; public notice haying been given in conformity thereto, for the payment of the increased stock by the stockholders, to commence on the 5th July next.</p> <p>The power of the stockholders to increase their capital is not denied: but it is contended that the second resolution, dividing the increased stock among the stockholders, is without the warrant of law.</p> <p>In cases of quo warranto, the burthen of proof title rests upon the defendant: the State has a clear and unquestionable right to demand of every one who is found in the possession of a public office, by what warrant he discharges its duties. The same rule I suppose applies to this case. The bank must show a legal authority to divide the increased capital among the stockholders. For whatever act is done by them, must be done under and by virtue of the charter ; and if any act be done outside of it, it is void; and hence the State, in the capacity of the law-maker, by which the corporation acts, has the right to claim that every act should be tested by the charter. But in doing this, I do not understand that any other rules than those which are ordinarily resorted to in the construction of statutes, are to prevail. If, upon a construction of the charter, the power claimed by the bank is found to exist, the information must be discharged ; otherwise, it must prevail.</p> <p>I do not understand that banking is a liberty or franchise belonging to the State in her sovereign capacity. It is, beyond all doubt, a private right,' and may be exercised by any man or men, according to his or their means or credit. Corporate banks were created to prevent liabilities attaching to the stockholders beyond the corporate assets. Latterly, this has been wisely guarded against by the charters fixing the liability of the stockholder as individuals: and so far they are of course bound. The right of the public to participate in the stock of a bank, depends upon the charter. For the legislature may, if they choose, incorporate an existing company as a bank: or they may throw open the stock to a general subscription. This last course is comparatively of modern origin — and its wisdom may well be doubted, after the recent stock speculations, which have been carried out in the subscriptions to the stock of the banks of Charleston and Camden. A corporation is, however, a liberty of franchise, belonging to the State, and granted by her. The body corporate is created by her act, and derives its, rights and privileges from her. Any act done by the corporation is in the exercise of a franchise granted by the State ; and hence it is that a quo warranto lies at her instance, for an usurpation of any power not conferred by the charter.</p> <p>In giving construction to the charter, we have the right to look to all its provisions, and to read the fifth section under which the stockholders passed their second resolution, with all the lights which other parts of the Act may afford.</p> <p>The fourth section provides, “that at any time before the expiration of their charter, the said company may, by paying a bonus of two and one-half per cent, and by advertising at the places and for the periods above mentioned, 'extend the amount of capital stock subscribed, to a further sum of two millions of dollars, to be paid in the same manner and subject to the same conditions with that herein already provided for.”</p> <p>On reading this section by itself it would seem to be tolerably plain that the bank might “ extend the amount of capital subscribed,” in any way which they might think best calculated to produce the deposit in their coffers, of the additional millions dollars. This might be done in three ways.</p> <p>1st. By opening books for a public subscription.</p> <p>2d. By a sale of the increased stock.</p> <p>And 3d. By a division of the increased stock among themselves. The two last modes equivalent: for if the increased stock be sold, the profits or loss must be enjoyed or borne by the stockholders.</p> <p>But according to the rule which I have stated, we are not confined to a reading of the clause from its own words: they may be controlled by the sense and meaning of the Legislature, to -be collected from other parts of the charter. Indeed there is some ambiguity in some of the words used in the clause, and to ascertain clearly their precise import, it is necessary to look beyond the fifth section.</p> <p>“ At any time before the expiration of their charter, the said company may,” &c., are the first words used; the corporation is to have existence until the 1st June, 1856, according to the first section. During this time, therefore, at the discretion of the company, they have the right to extend their capital stock, upon the conditions: 1st, By “ paying a bonus of two and one-half per cent.” Looking back to the first section, we find that the company, as a bonus for their incorporation, were to pay two and a half per cent, “on every hundred dollars of the stock so described.” Each of these clauses impose the payment on' the company. In the first clause it is plain that the company to pay, were the -persons constituting the banking company, according to the shares apportioned to each of them by the commissioners: there is nothing in the fifth section which varies this meaning; instead of varying it, the words, “ the said company,” plainly mean an existing company which had been spoken of in the preceding clauses. It was conceded by my learned and eloquent friend, who last argued this case for the relators, that if the payment of the bonus had been a sum in gross instead of a per centum,, it would have been a strong argument in favor of the bank. When it is found that the sums to be paid as a bonus, in the first and in the fifth clauses, are to be ascertained in the same way,'I think no argument can be deduced from the fact, that it is not a sum in gross. In the fifth, clause as in the first, it may be said, that the capital on which the bonus was to be paid, is fixed and ascertained ; and to say that a bonus of two and a half per cent, on each should be paid, was the same as saying that a bonus of fifty thousand dollars on each should be paid. Generally speaking, the bonus is paid for an exemption from taxation ; and by the sixteenth section the bank is exempted. Yet there is no doubt on referring to the first section of the charter, that the bonus was, in this instance, paid for the incorporation of a banking company, with a capital of two millions of dollars, as well as exemption from taxation. The payment of the bonus is a condition precedent to the existence of the corporation. The words are, “ and such said subscribers, paying them subscription moneys respectively, and all persons who may thereafter become stockholders in the said company, shall, upon the payment of a bonus of two and a half per cent, on every hundred dollars of the stock so subscribed, be, and they are hereby incorporated,” &c.</p> <p>The additional bonus is to be paid by the same company. For what purpose ? The answer is, for the privilege of extending the capital to two millions of dollars more. For the company, as a bank, had been already exempted from taxation by the sixteenth section. Here we are compelled to say, with the bank, that if they are to pay for the privilege, they ought to have the benefit.</p> <p>The second section, on which the company might increase their capital, was, “ by advertising at the places and for the periods above mentioned.” What is meant by these words ? In the first place, what may be their general object? It will be remembered, that the Act fixes the original capital of the company at two millions dollars. So far, it was only necessary to look to the act of incorporation, and every one could be informed of the capital. The fact of an increase of the capital and an extension of it to two millions of dollars more, depended on an act to be done by the company. How were the public to be informed of it? The Act answers, “by advertising at the places and for the periods above mentioned.” This public avowal was to be equivalent to an enactment extending the capital. The importance of this provision, in this point of view, will be perceived by referring to the twenty-third section, which makes every stockholder, in case of failure, liable individually to the extent of his interest in the corporation.</p> <p>By whom are the advertisements to be made ? It cannot be that the original commissioners are to advertise, for their duties were ended so soon as the banking company was formed. At any time before 1856, the capital of the bank may be extended. Could it have been intended that the commissioners were to act, in opening books and receiving subscriptions, at any time in the next twenty-one years? The Act answers the question, by defining the duties of the commissioners appointed by it. They were at Charleston, Columbia, Cheraw, Camden, and Hamburg, after six weeks notice in all the public gazettes, to open subscriptions on the first Monday and Tuesday in June next ensuing the act; and on the succeeding Wednesday, the commissioners at Columbia, Cheraw, Camden, and Hamburg, were to make out and forward, to the commissioners in Charleston, correct lists of the shares subscribed and “ the moneys paidand the commissioners in Charleston were to apportion the stock subscribed, and return lists thereof to the commissioners. Here ended their duties. It is plain, on the words of the fifth section, that it was the duty of the company to advertise the fact of an extension of the capital. What is meant, “ at the places and for the periods above mentioned?” Do these words relate to the places at which the original subscriptions were taken, and to the periods for which the advertisements for subscriptions are directed by the first section ? -1 think not! It is curious, that the writer of the Act should have made such a blunder, as it is manifest he did, when he required advertisements at “the places above mentioned,” when there is no direction in any part of the Act for an advertisement at any place. The fourth clause, speaking of the last in-stalment of fifty dollars, to be paid on each share, within six months after the first Monday in November, 1835, at the discretion of the directors, says, “ they giving one month’s notice in the public gazettes of the. State, before said instalments shall be required to be paid into this institution.” It must be that it is to this provision that the words of the fifth clause refer: for it immediately precedes, and may be considered as that which is meant by the words, “ above mentioned.” It will satisfy the words of the fifth clause better than any other provision in the other preceding clause^. In reference to the stockholders, the object of both would be identical, to prevent them from being called upon unexpectedly for the payment of money on their stock.</p> <p>Upon complying with these requisites, the company may “ extend the amount of capital stock subscribed, to a further sum of two millions dollars.” What is the meaning of these words ? It seems to me, clear, that an increase of an existing amount of capital is all which can be fairly attributed to the words used. Ho w that increase was to be made, is not pointed .out by the Act, nor are there any words used in this or any other section, which in terms, or by implication, point us to the mode or manner of increase. It is left where it ought to be, to the discretion of the company.</p> <p>This increased sum is to be paid “ in the same manner, and subject to the same conditions, with that herein already provided for.” The fourth clause directs the manner of payment, to wit, twenty-five per cent, on each share at the time of subscribing, and the remaining seventy-five per cent, at some intervals of time. This provision is satisfied by subscriptions by the stockholders, for the increased stock, or by an equivalent act, the division of the increased stock among themselves, and the payment of twenty-five per cent, at the time fixed by them for -the increased stock to be taken; and the remaining seventy-five per cent, at similar intervals of time to those pointed out by the fourth section.</p> <p>The words, “ subject to the same conditions with that herein already provided for,” plainly point to the provision in the last of the fourth section, which declares, “ all shares on which the payment due shall not be punctually made on the days above mentioned, shall be forfeited, with whatever moneys may have been paid thereupon.” The condition of forfeiture of the stock for non-payment, is the only one in the charter to which these words can appropriately refer.</p> <p>Having thus gone through the fifth section and compared it with the Act, I am satisfied that the bank has acted within the charter ; and that the stockholders have the right to divide the increased stock among themselves.</p> <p>The motion for a quo warranto is refused.</p> <p>JOHN B. O’NEALL.</p> <p>Charleston, May 22d, 1837.</p> <p>From this decision there was an appeal, on the following grounds:</p> <p>1st. That his Honor erred in deciding it to be the intention of the Legislature, as expressed in the Act of incorporation, to authorize the stockholders to extend the capital without multiplying their shares, and to refuse all participation in the added capital, to all but the present stockholders. Whereas, the true meaning of the statute is, that the additional two millions should be raised by subscription, on the same conditions, and in the same manner as the first, in all respects, and to all intents whatsoever, viz: by twenty thousand additional shares, for which the whole public might be allowed to subscribe, subject to the reduction pointed out in the Act. 2d. That even if the subscription was not intended to be opened to the public, jet the addition to the capital was authorized to be made only on the performance of a condition precedent contained in the fifth clause, which condition being void for uncertainty, the executory interest could never arise or vest at all in the corporation.</p>

<p>To constitute false imprisonment, there must be an unlawful restraint of personal liberty, against the will of the person so restrained ; but it is not necessary that it should be effected by actual assault or corporal touch.</p> <p>If a person voluntarily places himself in a situation where another may do that which has the effect of restraining his liberty, he cannot complain that he is unlawfully imprisoned, especially if he refuses to depart when he may.</p>

<p>The sheriff, in attaching property in the hands of a garnishee, would not be justifiable in taking it out of his possession, where the garnishee claimed it either in his own right, or in the right of another.</p> <p>A judge at Chambers may issue a warrant for any offence.</p>

<p>In an indictment for harboring deserted seamen, under the Act of Assembly, 3836, it must be alleged and proved that the defendant harbored a seaman who had signed an agreement to proceed on a voyage, or that had deserted from a captain of a vessel to which he belonged, under an agreement.</p> <p>The agreement forms an essential part of the allegation, and must be proved by the highest competent evidence.</p> <p>And where the only evidence on this point was that of a consul, who stated that the instrument relied upon as an agreement was lodged with him in his official capacity as the shipping articles of the vessel, it was held insufficient; and the defendant having been convicted, a new trial was granted.</p>

<p>BEFORE EVANS, J., AT COLLETON, FALL TERM, 1837.</p> <p>The plaintiff, Brissac, issued a writ against one Tardy. There was an affidavit of the debt amounting to three hundred and thirteen dollars and thirteen cents, but not stating the nature of the indebtedness. On this an order for bail was signed by Campbell, the clerk, and the .plaintiff’s writ was lodged with Moorer, the sheriff', and Tardy was arrested. Whilst he was in the custody of the defendant, the clerk obliterated the order for bail which he had signed in the plaintiff’s case, believing that the affidavit on which it was founded was insufficient. The sheriff supposing that he then had no authority to detain him, served him with a copy of the writ and permitted him to go at large. The plaintiff obtained judgment against Tardy, but he had previously removed from the State, carrying with him whatever effects he had. The present action on the case was then commenced against the sheriff for an escape. It was contended for the defendant that the affidavit on which the order for bail was predicated, being insufficient, and the clerk having rescinded the order, that the sheriff' no longer had any right to detain Tardy in custody, and therefore had acted properly in discharging him.</p> <p>The presiding Judge was of opinion, and so instructed the jury, that the order for bail having been granted, the sheriff was bound to obey and could not look beyond it, — that the clerk had no authority to rescind an order which had been delivered to the sheriff and executed by him.</p> <p>The jury found for the plaintiff the whole amount of his demand.</p> <p>The defendant appealed, and moved for a new trial, on the following grounds:</p> <p>1st. Because the affidavit annexed to the writ in the case of Brissac vs. Tardy, was illegal, and did not empower the sheriff to arrest him.</p> <p>2d. Because there was no order for bail.</p> <p>3d. Because the verdict was in other respects contrary to law and evidence.</p>

<p>The City Court of Charleston has no jurisdiction in cases of attachment.</p>

BEFORE RICHARDSON, J„ AT BARNWELL, OCTOBER, 1835. The defendants were indicted for stealing the corn of John Brunson. John A. Brunson, the son of the prosecutor, testified, that being suspicious of bis father’s corn having been stolen, be watched 'on the night of the 15th of May, 1834. That be saw the defendants speaking to Paris, one of bis father’s negroes, and beard them inquire if be could get them some bacon.

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.</p> <p>This was an action on a policy of insurance of thirty-eight slaves, valued at twenty thousand dollars, belonging to the plaintiff, shipped on board the Enterprize, from Alexandria, in the district of Columbia, to Charleston, South Carolina.</p> <p>Eor such a voyage, the crew and the passengers on board, from twenty to twenty-five days’ provisions ought to be laid in. The vessel sailed from Alexandria on the 22cl January, 1835; on the 30th, she left the capes of Yirginia — immediately thereafter, she encountered heavy gales, which drove her off her course — and, as was proved by the captain, his mate, and two passengers, they were driven far beyond the Gruff stream; that the vessel was injured in her rigging and sails, and had sprung a leak in consequence of the storms; that it was impossible to reach any port in the United States, and especially her port of destination, from the state of the weather, the condition of the ship, and tbe probable want of provisions before they could have reached Charleston. In consequence of this, on the 5th February, the captain bore away for Bermuda, and on the 11th came to anchor in the port of Hamilton.</p> <p>The log book of the voyage was produced, and condemned by Captains Wellsman and Lacoste, as badly kept; the main objection to it, however, seemed to be, that the distances made by the ship each day, were not set down, except the first; in the same book, the log of the first voyage of the Leonidas, commanded by Captain Smith, (the captain of the Enterprise) was highly commended by these witnesses. Several other voyages of the Leonidas, and one of the Enterprize, before the one now in hand, were set down in the book in the same way with the one before the Court. Captain Wellsman and Lacoste said, that on the 5th of February, when the Enter-prize bore away for Bermuda, she was nearly in the latitude of Charleston, not being more than twenty miles north of it; her longitude could not be ascertained. On the log book was mentioned, on a day previous to that on which the Enter-prize bore away for Bermuda, that a vessel from New Orleans to Baltimore, (the barque), had been spoken. Captain W ells-man thought, from the prevailing winds, that that vessel was probably driven out of the Gulf stream; Captain Lacoste thought she was in the Gulf stream when spoken by the Enterprize; if so, the latter was much nearer then to Charleston than to Bermuda. Captains Wellsman and Lacoste thought most of the winds registered in the log book, from the 30th January to the 5th February, were fair for Charleston ; but they spoke of the winds with which each day’s log was headed, in the margin: the account given in the body of each day’s log, showed that the winds were various, and and generally in squalls.</p> <p>On the 5th of February the entry in the log book was, as to provisions, "short;” the same fact was mentioned in the protest, and return to a writ of habeas corpus. Mr. Tucker, the consular agent, stated, on the 12th of February, to the officers of the custom house in Hamilton, that the slaves were in want of provisions. Captain Smith had been ten years a sea captain. The captain, his mate, the two passengers, all concurred in saying, that when they sailed from Alexandria, they had thirty days’ provisions on board; that a part of their provisions were washed overboard in the stress of weather which they encountered; that it was in consequence of this accident, and the fact that they were driven far from their port of destination, and were baffled in all their attempts to reach it by head winds, that their provisions were short.</p> <p>Soon after they reached Hamilton, the vessel was seized or detained by the officers of the custom house; while thus detained, and while she was refitting, a writ of habeas corpus was issued by the Chief Justice of Bermuda, directed to Captain Smith, requiring him to bring before him the seventy-eight slaves on board his vessel, the Enterprise; he obeyed the writ, and the slaves were told by the Chief Justice that they were free, and at liberty to remain if they chose. All except six (not included in this policy), chose to remain, and were discharged from the custody of the captain. With the six, who chose to come with him, the captain, after repairing his vessel, reached his port of destination. The assured gave notice of the loss to the company, who declined to pay it.</p> <p>The question was submitted to the jury, whether the vessel was seaworthy, tight, and staunch, and well found in provisions, and a skilful and competent crew.</p> <p>The presiding Judge ruled, that under the risks enumerated in the policy, viz: “arrests, restraints, and detainments of all kings, princes, or people, of what nation, condition, or quality soever,” the bringing up of the slaves, under the writ of habeas corpus, and the discharge of them lay the Chief Justice of Bermuda, was included.</p> <p>The act done was under and by the authority of the government of Bermuda — and was, therefore, the act of the people, which means nothing more than “ the supreme power of the country.” So, too, the act was to be regarded as done by the king of Great Britian, inasmuch as the government of Bermuda emanated from him, and was administered in his name, and by his authority.</p> <p>The jury found for the plaintiff.</p> <p>The defendants appealed, on the following grounds:</p> <p>1st. That the evidence showed that the vessel was unsea-worthy for want of provisions.</p> <p>2d. That the evidence showed that the vessel either was not tight and staunch when the insurance was effected, or that she was too deeply laden, and therefore not seaworthy.</p> <p>3d. That the ignorance and incapacity of the captain and mate, as appeared by the evidence, amounted to unseaworthiness in the vessel, and that on these three points the verdict is erroneous, and ought to be set aside.</p> <p>4th. That his Honor erred in charging the jury, that the facts proved amounted to an “ arrest, restraint, or detainment, of any prince, potentate, or people.”</p> <p>5th. That if there was no arrest or detainment, within the meaning of the policy, the loss was occasioned by an escape, which was an excepted peril.</p> <p>6th. That the charge of the presiding Judge, and the verdict of the jury, were, in other respects, contrary to law and evidence.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TEEM, 1837.</p> <p>This was an action of assumpsit, to which the defendant pleaded the Statute of Limitations. A motion to strike it out, on the ground, that the defendant bad taken the benefit of the Insolvent Debtor’s Act, was made, and overruled. The plaintiff bad not perpetuated the evidence of bis demand at the Court when the defendant was discharged; and the presiding Judge ruled that this was necessary to be done in order to take away the bar of the Statute of Limitations and to entitle the plaintiff to bis motion — tenth and eleventh sections of the Act of 1759, P. L. 251. The defendant bad a verdict.</p> <p>The plaintiff appealed, on the ground,</p> <p>That his Honor erred in not granting the motion made to strike out the defendant’s plea of the statute of Limitations, as the insolvent debtor’s Act does not require, it only permits, the creditor to prove bis debt before the clerk, for the purpose of perpetuating evidence, when the petitioner applies for bis discharge.</p>

<p>A sale by a factor contrary to the orders of his principal, may be after-wards affirmed by the receipt of the proceeds by the latter; bnt it would not be an affirmance, if at the time of the receipt, it was understood by both parties, that the right of action against the factor was to be left subsisting.</p>

<p>On tlie delivery of personal property to the Master in Equity for the purpose of a salo under a decree, it is to be regarded as in his possession both for the purpose of sale and delivery ; and it is his duty to see the terms of sale are complied with before he parts with the property.</p>

<p>BEFORE GANTT, J., AT GEORGETOWN, FALL TERM, 1831.</p> <p>This was an action of trover for three negroes, Peggy, Collin, and George. The plaintiff's claim was founded on a bill of sale from Dr. John Wragg, to Mrs. Patterson, now the wife of the plaintiff, bearing date the 25th day of March, 1825. Mr. Dennison proved the hand writing of the maker of the bill of sale, and of the subscribing witnessess, thereto, both of whom were dead. It was recorded on the 2d of July, 1830. The examination of a Mrs. Puche, taken by consent, was read; she indentified the negroes, except George, who was born subsequent to the sale — and proved that the purchaser from Dr. Wragg had the negroes in her possession a year before her marriage with Mr. Singleton, the plaintiff — and here the plaintiff rested his case. The defendant justified the taking of the negroes, as commissioner in equity, by virtue of sundry orders made by that Court, (see below.) By them it appeared that in February, 1825, the Court of Equity made an order for the sale of the real and personal estate of Thomas R. Mitchell, the negroes in question constituting a part of said estate; the terms were, that the estate should be sold on a credit of one, two, and three years, with bond, mortgage, and personal security — the title, to be made, but not to be delivered until the payment of the first instalment of the purchase money, and in default of sucb payment, tbe commissioner was directed to re-sell, for cash, &c., vide the order, on the 14th March, 1825. The commissioner sold the property in pursuance of said order, and the negroes in dispute were bid ofl by Dr. Wragg; on the 25th March, 1825, he executed the bill of sale before mentioned, to Mrs. O. 0. Patterson, who after wards became the wife of the plaintiff. It appeared to be admitted by the plaintiff, that at the time of Mrs. Patterson’s negotiation with Dr. Wragg for the negroes, she was warned by Mr. Herriott of the incumbrance on the property; but on the assurance of Dr. Wragg, that there was no danger in making the purchase, the contract was made, and the bill of sale taken. It appeared also in evidence, that on the 23d of Aprils 1829, an order for the re-sale of the property bid off by Dr. Wragg, was made. The commissioner reported thereon on the 22d of January, 1830 — the report was confirmed — the commissioner again reported on the 22d of April, 1830, that he, in conformity with the order of the 22d of January, 1830, had sold the negroes now in dispute.</p> <p>Dr. Wragg’s bond to the commissioner was dated-as of the 14th of March, 1825, his mortgage of the 14th of February, 1829, and appeared to have been recorded the same day. Mr. North was examined as to the execution of the last mentioned instruments, and said that his impression was, that the bond and mortgage were executed the same day ; but on further recollection, he said from the fact that he was not in Georgetown at the time, that the bond could not have been executed in 1825.</p> <p>The negroes were taken by the defendant from the plaintiff on the 6th of February, 1830.</p> <p>On the part of the plaintiff, it was contended, that personal property will pass by delivery, and that under existing circumstances, the sale by Dr. Wragg and the title acquired under it, could not be disturbed.</p> <p>For the defendant it was urged, that Mrs. Patterson, by virtue of her purchase from Dr. Wragg, could not acquire a better title than Wragg himself possessed, and that by the terms of sale made under the order of Court, the title was not to pass until the first instalment became due and was paid up; that- consequently Wragg could not mortgage the negroes till he had a title for them. That the plaintiff not having had four years possession from the time the first instalment became due, and having been warned by Mr. Herriott of the incum-brance, no adverse title by possession could be set up.</p> <p>The jury were charged, that although Mr. Herriott might have taken the negroes under the terms of sale on the failure of Dr.- Wragg not to pay up the first instalment,* yet this had not been done till after the expiration of four years from the time Mrs. Patterson had acquired her title from Dr. Wragg; that in accepting the title from Wragg, it appeared she intended to hold in her own absolute right; and that from •the time possession of the negroes was delivered to her, she held the negroes adversely to the claims of all others; and that her once defeasible right had been perfected by an undisturbed possession for more than four years from the time of her purchase.</p> <p>The jury found a verdict for the plaintiff with nine hundred and four dollars damages — The following were the orders of the Court of Equity:</p> <p>Mes. Ann Mitchell Mes. R. SmiS, Adm’x of f Wint?r Sittin& A* D*1825' Samuel Smith, et al. J</p> <p>On motion of the complainant’s solicitor, ordered that all -the lands and negroes now in the possession of Thomas R. Mitchell, which were devised to him by his father Thomas Mitchell be sold by the commissioner of this Court, on a credit of one, two, and three years from the day of sale, taking bond with personal security and mortgage to secure the payment of the money, the titles to be made but not delivered till the payment of the first instalment, and on nonpayment thereof, the commissioner shall re-sell for cash at the risk of the former purchaser, — the money arising from the sale to remain subject to the further order of this Court.</p> <p>HENRY W. DESAUSSURE.</p> <p>ANN E. Mitchell, vs. Rebecca Smith, et al. Spring Sitting, A. D. T829.</p> <p>On motion of Bentham and Duncan, solicitors for James Furguson, executor of Nornetto Mitcbell, deceased, — ordered that the commissioner do, on the first Monday of May next, sell the negroes mortgaged by Dr. John Wragg, deceased, to the commissioner, for. the purchase money: terms of sale, one-third cash, the balance on a credit till the 1st January next, the purchaser giving bond and mortgage of the property, and personal security.</p> <p>(Signed,) HENRY W. DESAUSSURE.</p> <p>28d April, 1829.</p> <p>AnN E. Mitchell, ) vs. V Winter Sitting A. D. 1830. S. Smith, dec’d., Adm’x. )</p> <p>The report of the sales being read, on motion of Bentham & Duncan,- ordered that the same be confirmed.</p> <p>(Signed,) HENRY W. DESAUSSURE.</p>

<p>BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.</p> <p>This action was brought to recover money paid by mistake to the defendant.</p> <p>The case proved was that one Hopton was indebted to the defendant in the sum of seventy-eight dollars. The defendant being informed that Hopton had money in the Bank applied to him for a check, and he was told both by him'and another person that Hopton had no funds there. The defendant, however, persisted, and Hopton at last gave the check, and the defendant receipted his account in full. He presented the check at the Bank, and it was paid. On the evening afterwards, it was discovered that Hopton had before the payment of this check, drawn out all his funds. The payment was made on the assurance by tbe book-keeper, that Hopton’s account justified it though he did not refer to the ledger, which would hare prevented the mistake.</p> <p>On the next day notice of it was given to the defendant and he was asked to correct it, and refused to do so.</p> <p>A motion for nonsuit was made and overruled, and the jury were instructed that if a mistake in fact had been made by the Bank in paying the money they were entitled to recover it back; and that there had been a mistake, unless they could infer from the evidence that the money was paid by the bank in honor of the drawer of the check.</p> <p>They found for the plaintiff.</p> <p>The defendant moved the Court of Appeals for a nonsuit, on the grounds:</p> <p>1st. Because the drawer of a bank check, after the same had been paid on presentment, can have no recourse against the payee.</p> <p>2d. Because there was no legal evidence that the drawer had not funds in the Bank at the time it was presented, and in absence of such evidence the plaintiff had no right to recover.</p> <p>3d. Because there was no tender proved of the check to the defendant, and that having released his account, he was deprived of the only proof of his debt by the act of -the plaintiff.</p> <p>4th. Because no credit is given to the payee of a check by the Bank; and there is no privity between them.</p> <p>And for a new trial—</p> <p>1st. because the Judge charged the jury that the plaintiff • was entitled to recover in any event, except they believed that the plaintiff intended to make an advance to the drawer of the check.</p> <p>2d. Because the verdict is contrary to the law and the evidence.</p>

BEFORE GANTT, J., AT BEAUFORT, SPRING TERM, 1837. This was an action on the case for setting fire to the woods and causing the plaintiff’s fence to be burned. The defendant employed one Padget, to work for him on a small farm. Padget was clearing up a new-ground field, and the fire made its escape from a log heap, and was alike injurious to both plaintiff and defendant in burning up their rails.

<p>BEFORE GANTT, J., AT CHARLESTON, MAY TERM, 1831.</p>

<p>TRIED BEE ORE HIS HONOR THE RECORDER, IN THE , CITY COURT OF CHARLESTON, JANUARY TERM, 1832.</p> <p>This action was brought by some 'fishermen to recover damages for the loss of a car full of fish, which was run down in the dock by the defendant’s sloop, navigated entirely by his slaves. The plaintiffs proved their case, and the defendant replied in testimony which rendered it somewhat doubtful whether it was a case of negligence or accident; the evidence was not-reported, as the verdict was probably influenced by the instructions of the Court on a legal point, to this effect; he stated to the jury, that it had been decided in the case of Wingis vs. Smith, 3 McCord, 400, that a master was not liable in damages for any negligence, however gross, or any trespass, of his slave. That the exception to this rule was when the slave was employed by his master’s consent as a tradesman, ferryman, carrier, &c., for then the master was security to the public for the faithful performance of his duty. That the case of Wingis vs. Smith, was one brought for damages sustained by the plaintiff in consequence of being injured by defendant’s carriage, the horses of which had been permitted to run off by the negligence of the coachman, who was the defendant’s slave; and the Court could see no distinction between the driver of a private carriage running in the streets of a city, and the captain of a private sloop sailing in our rivers. That if the sloop had been used in a public capacity, as in the carriage of goods and freight, the owner of the slave-captain would have been liable to the shipper for his mal-conduct towards the goods; but that such was not the case here. His Honor further told the jury that he thought the rule laid down by the Court a very wise one in this country, for if the contrary was established, masters might be ruined by the wilful trespasses of revengeful slaves, committed with a view to the master’s injury; but he said further, that as this question of law had been submitted to them on both sides by the counsel, (to which he had no objections,) they might find for the plaintiff, if they thought there was negligence in the act, and that the captain of a planter’s private boat came within the legal exception as filling a public employment.</p> <p>The jury found for the defendant.</p> <p>The plaintiffs appealed, on the following grounds:</p> <p>1st. Because his Honor erred in charging the jury, that a master was not liable, under the laws of this State, for the unskillfulness and negligence of his slaves in navigating a vessel.</p> <p>2d. Because the verdict was contrary to law and evidence.</p>

<p>BEFORE RICHARDSON, J., AT MARION, FALL TERM, 1837.</p> <p>This was an indictment for swindling, of which the defendant was convicted. The report of the presiding Judge having been lost, the- following statement was submitted by agreement.</p> <p>The indictment contained three counts, the first of which was in these words: — “ That Dalilah Middleton, late of Marion, in the district and State aforesaid, on the first day of November, in the year of our Lord one thousand eight hundred and thirty-six, at Marion, in the district and State aforesaid, unlawfully, knowingly, and designedly, did overreach one Alexander L. Gregg, by receiving from the said Alexander L. Gregg sundry articles of great value, to wit, one piece of calico of the value of five dollars, one pair of shoes of the value of two dollars, and various other articles of the value of five dollars, in exchange for a certain written paper, commonly called a promissory note, in which said promissory note one L. G. Smith, and one Job Eoxworth promised to pay to certain persons therein mentioned, a certain sum of money, to wit, in these words: “ $10.00. By the first day of June next, we, or either of us, promise to pay Wm. EL Grice and John D. Jones, administrators of Thomas Avant, deceased, the sum of ten dollars, value received. L. G. Smith, Job Eoxworththe said Dalilah Middleton then and there falsely pretending, that the said written paper was of great value, to wit, of the value of ten dollars, and that the said L. G. Smith and Job Eoxworth, mentioned in the said written paper, were indebted to her in the said sum of ten dollars, and would be bound in law to pay, and would pay, the said sum of ten dollars, to any person to whom she should deliver the said written paper; with intent to overreach him, the said Alexander L. Gregg, of the articles aforesaid; whereas, she, the said Dalilah Middleton, well knew, that, in truth and in fact, the said written paper was of no value, and that neither the said L. G. Smith, nor the said Job Eoxworth, would be bound in law to pay, nor would pay, the said sum of money, or any portion of it, to any person to whom she might deliver it — to the great damage and deception of the said Alexander L. Gregg, to the evil example of all others in like cases offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aforesaid.”</p> <p>The second count charged, “ That Dalilah Middleton, late of Marion, in the district aforesaid, on the first day of November, and year last aforesaid, at Marion, in the district and State aforesaid, unlawfully, cunningly, and designedly, did cheat one Alexander L. Gregg, who unwarily gave certain articles, to wit, dry goods of great value, to wit, of the value of ten dollars, in exchange for a certain written paper, by which paper the said Dalilah Middleton falsely pretended that certain persons therein named, to wit, L. G. Smith and Job Eoxworth, were bound to pay her a certain sum of money, to wit, the sum of ten dollars, and which said sum of money the said Dalilah Middleton falsely pretended that the said L. G. Smith and'Job Eoxworth, or one of them, would pay to the said Alexander L. Gregg, after he had received the same; whereas, in truth and in fact, the said Dalilah Middleton well knew, that neither the said L. G. Smith, nor Job Eoxworth, was indebted to the said Dalilah Middleton, by reason of the said paper, and that neither the said L. G. Smith, nor Job Foxworth, wonld pay the said sum of money, or any part of it — to the great damage and deception of the said Alexander L. Gregg, the evil example of all others in like case offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aforesaid.”</p> <p>The third count was as follows : “ That Dalilah Middleton, on the day and year last aforesaid, unlawfully, cunningly, and designedly, did defraud one Alexander L. Gregg, who, ignorantly, gave the said Dalilah Middleton certain articles of great value, to the said jurors unknown, in exchange for a certain written paper, commonly called a promissory note, which the said Dalilah Middleton falsely pretended constituted her evidence of a debt due to her by L. G. Smith, which debt she had a right to assign and transfer to any person to whom she should deliver the said paper: whereas, in truth and in fact the said Dalilah Middleton well knew, that the said L. G. Smith was. not indebted to her by reason of the said paper, and that she could not transfer any debt or claim to any person whatsoever, by delivering the said written paper to such person — to the great damage and deception of the said Alexander L. Gregg, the evil example of all others in like case offending, contrary to the form of the Act of Assembly of the State aforesaid, in such case made and provided, and against the peace and dignity of the same State aoresaid.”</p> <p>The indictment was found by the grand jury at Fall Term, 1836, and there was no evidence that the prosecution had been instituted earlier than the first of November of that year.</p> <p>The prosecutor, A. L. Gregg, having first executed a release of all interest, was sworn and examined. He produced the promissory note described in the indictment; and testified that he had received it from the defendant, Mrs. Middleton, who represented it as her own property, and obtained goods from his store in payment of it. Did not recollect the time precisely. It was some time in 1836, but he was unable to' say at what time. Witness, from some circumstances, was induced to think it must have been m the spring or summer. There was a calculation of interest on the back of the note, in the writing of witness, and if that calculation were correct, the transaction must have occurred in 1835; but in taking a note in this way, witness would not bring down the calculation of interest to the exact time.</p> <p>L. G-. Smith, one of the makers of the note, was sworn, and testified, that he had paid the note to John D. Jones, one of the payees. Witness deposited it in a desk, which was subsequently broken open, and this note, with other papers was taken out by some person to him unknown. At the time, his suspicions had fallen on a young man, who had lived with him. Some time afterwards the defendant, Mrs. Middleton, offered the note to witness in payment of a debt she owed him; on which occasion he informed her that be had paid it to John D. Jones, and referred her to Jones for the proof.</p> <p>Mary Coleman, a daughter of defendant, swore that her mother received the note as a present from one Davis, a young man, who had removed from the country. She knew of the note having been passed to Gregg for goods; and this was a month, or two months, before the 4th of July, 1836.</p> <p>His Honor charged the jury, that unless they were satisfied that the offence had been committed within six months previous to the commencement of the prosecution, they ought to acquit the defendant. The evidence might, perhaps, have sustained a prosecution under the old English statute, 33 Hen. 8; but the indictment in this case was under the Act of Assembly of 1791, which prescribed a pecuniary penalty only; and in all such cases the law was settled, that the prosecution was barred, unless commenced within six months from the time when the offence was committed. On this point his Honor stated that the evidence was uncertain. If the calculation of interest were correct, the prosecution was too late; but that might be erroneous, and it was for the jury to determine the question, after duly weighing all the evidence.</p> <p>The jury rendered a verdict of guilty; from which the defendant appealed and moved to arrest the judgment, on the following grounds:</p> <p>1. That the acts charged in the indictment no not constitute an indictable offence.</p> <p>2. That .the indictment does not set. forth any offence within the meaning of the statute, 33 Hen. 8.</p> <p>3. That it does not charge the act of swindling to have been committed by means of a false token, &c.</p> <p>4. That the indictment is, in other respects, informal and insufficient.</p> <p>And should that motion fail, the defendant further moved for a new trial, on the following grounds:</p> <p>1. That the évidence was not sufficient to prove the offence charged.</p> <p>2. That the offence was not proved to have been committed within six months previous to the prosecution.</p> <p>3. That it was, in fact, proved to have.been committed more than six months previous to the commencement of the prosecution.</p> <p>Argued that, at common law no mere fraud, not amounting to felony, is an indictable offence, unless it affect the public. 1 Hawk, P. C. c. 71. Bac. Abr. Fraud. E. In King ■vs.Wheatley. 2 Burr. 1125, Lord Mansfield said, “ an offence, to be indictable, must be such a one as affects the public as in the case of false weights and measures, in the general course of dealing, &c. See 1 Salk. 379. 1 East. Rep. 185. 2 Stra. 866. ■</p> <p>It was held, that, at common law, -no indictment will lie for giving a check in payment on a banker with whom the party has no funds. 2 Leach, 647. “The cases in which fraud is indictable at common law, seem to be confined to the use of false weights and measures- — the selling of goods with counterfeit marks — playing with false dice — and frauds affecting the course of justice, and immediately injurious to the interests of the public.” 3 .Chitty-s C.rim. Law, 995. “The first three of the above classes, seem to come under the denomination of false tokens, often used in the old authorities. They seem to depend on the principle, that they betoken a general intent to defraud; and support the rule laid down, that tbe injury must be to tbe public.” 3 Cbit. Crim. 995.</p> <p>The indictment in this case was under “ the Act of Assembly.” Can the indictment, by the words, “Act of Assembly,” embrace a case coming under the British statute of 33 Hen. 8, made of force in this State? .The words import, that the defendant was indicted under our own Act of Assembly.</p> <p>Again, is the offence charged in this indictment, indictable under the statute 33 Hen. 8 ? The preamble of that statute recites, as the mischief to be remedied, the frauds committed through the instrumentality of “ privy tokens, and counterfeit letters in other men’s names.” The enacting clause directs the penalty against the getting possession of money, &c., “by any.such false token, (i. e. privy token, see preamble,) or counterfeit letter.” The words, “any such,” make the offence created, the use of privy false tokens in other men’s names. P. L. 56.</p> <p>The offence here charged is not a “ counterfeit letter,” nor is it a “privy token,” that is false. Nor is it a false token, such as that word imports'at common law. For the false tokens that were indictable at common law, were confined to the classes above enumerated, and depended upon their betokening a general intent to defraud. 3 Ghitty Grim. Law, 995. The act here charged is a single act, and was not accomplished by any means which show a general system of fraud. See Gowp. 324.</p> <p>Chitty, in reference to this statute, remarks, that the effect of it was “ to make a fraud on an individual by means of privy tokens, a misdemeanor; whereas, at common law, the deceit must affect the public interests.” 3 Obit. Gr. Law, 997.</p> <p>So letters declaring a falsehood, with intent to defraud, are not privy tokens within the meaning of tge statute. See the case of the King'ys. Wilders, cited 2 Burr. 1128.</p> <p>It seems very clear, that the act charged is not an offence under the statute 33 Henry, 8.</p> <p>Is the act charged in the indictment an offence created by Act of Assembly, 1791 ? If it is embraced in this Act, it must be under the general clause, which reads as follows: “ Or overreach, cheat, or defraud, by any other cunning, swindling arts and devices, so that the ignorant and unwary, who are deluded thereby, lose their money, or other property.” 1 Faust, 79. The language of this clause is so general, that it embraces every act of fraud or dishonesty. If the offence charged be an indictable offence under this Act, then every other imaginable case of fraud would be an indictable offence.</p> <p>It has been held in this State, that a selling a blind horse, as a sound horse, is not an indictable offence under this Act. 1 Bay, 588.</p> <p>The Stat. 14 Geo. 3, c. 6, which made it felony to “ steal sheep or other cattle,” was, in its construction, confined to stealing sheep only; and parliament the next year passed another statute, extending the penalty to all other species of cattle by name. 15 Geo. 2, c. 34.</p> <p>He did not mean to say, that penal provisions may not be expressed in general terms. The true principle on this subject is the rule laid down in the United States vs. Fisher, 2 Oranch, 335, and referred to by our own Court in the State vs. Holman, 3 M’Cord, 306, as superseding all other rules upon this subject. Where a law is plain and unambiguous, whether it be expressed in general, or limited terms, the legislature should be intended to mean what they have plainly expressed, and subsequently have left no room for construction.</p> <p>Does this clause of'the Act of 1791, come under this rule, or within this principle ? Is the law plain and unambiguous in its import ? It will not be denied but that the language of the clause is comprehensive enough to embrace every imaginable case of fraud; and on the other hand it will not be .contended that the legislature intended to make every such case an indictable offence. Of the innumerable species of frauds, which did the legislature intend to make misdemeanors ? This clause does not make the necessary specifications, and consequently, as creating a new office, it is void. If the clause be considered as fixing the penalties of this Act to those frauds that were indictable at common law, then the answer is, that the offence charged does not come under either of the classes of frauds that are indictable at common law, as we have already seen.</p> <p>But suppose the transaction proved on the trial, to have been an indictable offence, the defendant objects that she cannot be convicted under this bill of indictment. In order to make the offence .of the defendant complete, it was necessary to prove, and it was proved, that the note which was given in payment of the goods, bad been previously paid to the payees of the note. This note was a genuine paper; it was not stated in the bill, that it became worthless by such previous payment, yet this was proved. It was not stated that the defendant bad acquired the possession of it in a surreptitious manner; yet circumstances were admitted in evidence, leading to such conclusion. The indictment should have stated this note bad become worthless by being paid, that the defendant bad no right to it, and bad passed it off, &c.</p> <p>The cheat depended entirely upon these two facts; therefore it was necessary to state them. The indictment merely states that the note was of no value, but not the reasons of its being of no value, It may have been of no value from a want, or a failure, of consideration, illegality of consideration, infancy, Statute of Limitations, &c. It was necessary to state why it was of no value.</p> <p>It has been frequently decided, that in all indictments under tbe 30 Geo. 2, it is necessary to set forth the false pre-tences employed by tbe defendant, precisely as they will appear at tbe trial. 2 T. E. 581; 1 Campb. 495; 3 Ohitty’s Crim. Law, 999.</p> <p>Chitty, 3 vol. 999, says, on general principles, it seems necessary, not only to set forth tbe circumstances, so as to show on the record that tbe offence is such a one as the Legislature intended to punish; but also to describe it in. the technical words used in tbe provision. Now, in tbis case, tbe offence is not charged in the words of the Act. The same author proceeds to observe, “ that it has been holden in an act of indictment, under 33 Hen. 8, that it is not necessary to allege that the fraud was effected by means of a privy token, if that be a necessary inference from the facts stated; but at tbe present day this seems doubtful.” It does not appear that any necessary inference arises from the facts stated, that tbis fraud was effected by means of a privy token.</p> <p>There were strong reasons for believing that the prosecution was barred by tbe Statute of Limitations. If tbe prosecutor was correct in bis recollections in regard to tbe quantity of interest then due upon the note, it was unquestionably barred. And his was tbe only evidence that was material as o tbe date of tbe transaction. Tbe prosecutor was bound to sbow clearly that the prosecution was commenced within the time. So far from this, however, he showed that it was the reverse.</p>

<p>BEFORE RICHARDSON, J., AT CHARLESTON, JANUARY TERM, 1838.</p> <p>This was a suggestion filed by leave of the Court, at May Term, 1837, to set aside a judgment which one John Aiken had fraudulently confessed to the defendant; to the injury of the plaintiff's, who were his creditors.</p> <p>■ To this suggestion the defendant, by her attorneys, filed the following plea.</p> <p>“And the said M. Thomas, by Oliver M. Smith, her attorney, comes and defends the wrong and injury: when and so forth, and says, that the said plaintiffs ought not to have and maintain their action aforesaid, in this honorable Court, because she says that the said plaintiffs have heretofore, to wit, on the twenty-first day of March, A. D. 1837, filed their bill in the honorable the Court of Equity of this State, for this district; wherein the said plaintiffs have made the said allegation, that the judgment of this defendant was voluntary, which allegation has been denied in said Court; and the same subject matter is still at issue, and pending in the said Court of Equity. Wherefore the said M. Thomas prays judgment, whether the said plaintiffs can maintain their said action in this honorable Court, touching thé same matter which is already at issue in the said Court of Equity ? and whether she is bound to answer the said allegation in this Court ?”</p> <p>To this plea the plaintiffs demurred, and the defendant joined in the demurrer.</p> <p>His Honor, regarding that the proceedings in Equity rendered the trial of fraud in the Court of Common Pleas, unnecessary, after bearing argument on the demurrer, overruled the same, and granted the following order:</p> <p>"On motion of the defendant’s attorney, the case being beard upon the plea to the suggestion and the demurrer, it is ordered, that the demurrer be overruled, and the suggestion quashed.”</p> <p>From this order the plaintiffs, Hugh Blair & Co., appealed, and moved that the same might be set aside, and the judgment reversed; and that final judgment might be awarded to the plaintiffs on demurred, on the following grounds:</p> <p>1. That the substance of the plea is matter of abatement, and therefore not pleadable to a suggestion filed by leave of the Court; being, in effect, an appeal from the order granting leave to file the suggestion.</p> <p>2. That the plea does not allege that the suit in equity is for the same cause with the action at law, but merely that it makes the same allegation of fraud which is contained in the suggestion; and is, therefore, an insufficient defence, either in abatement, or in bar.</p> <p>3. That the plea, to have availed, either in abatement, or in bar, ought to have averred, that the bill in equity was pending when the action at law was commenced; whilst, on the contrary, it appears, by the pleadings, that the. action at law was commenced first; and it is submitted, that a suit subsequently instituted in equity, even for the same cause, cannot be pleaded in abatement to the prior action at law.</p> <p>4. That the plea was further insufficient, in not alleging that the parties to the suit in equity are identical with the parties to the action at law; without which allegation, another suit pending cannot be pleaded, even in abatement. Tbe fact itself is otherwise, in this case, and the demurrer admits no facts but such as are correctly pleaded.</p> <p>5. That the defendant was bound to plead to the merits, and having failed to do so, the plaintiffs are entitled to final judgment on the suggestion.</p> <p>6. That the defendant having pleaded specially, is bound by the rules of special pleading; and this plea, having commenced and concluded in bar, the plaintiff is entitled to final judgment, and not merely to judgment of respondeat ouster, although, the substance of the plea be matter of abatement only.</p>

<p>BEFORE RICHARDSON, J„ AT CHARLESTON, JANUARY TERM, 1838.</p> <p>The sheriff was ruled, to show cause why he did not pay the plaintiff the money collected on this execution. He returned, 1st. That since the levy, on the effects of John Aitken, certain foreign attachments against the said John Aitken, had been filed in his office. 2d. That there was a suit against him and others, pending in the Court of Equity, touching the validity of the judgment in the case. 3d. That there was a suggestion of fraud filed, by the plaintiffs in attachment, to set aside the judgment.</p> <p>His Honor overruled the causes shown, as sufficient to detain the money in the hands of the sheriff, and made the rule absolute. Whereupon, the sheriff’s counsel moved, that the rule should be absolute, only in case the plaintiffs in attachment did not give security, &c., to indemnify, &ci; which condition was rejected by the Court, no sufficient ground being offered to deny the plaintiff the money which the sheriff had collected.</p> <p>From this order, the sheriff, in behalf of Hugh Blair & Go., appealed, and moved that the same might be reversed, or vacated, on the following grounds:</p> <p>1st. That a suggestion having, by leave of the Court, first had and obtained, been filed by the plaintiffs in attachment, to set aside the judgment and execution of the said M. Thomas, for fraud, which suggestion is yet pending, the Court ought not to have ordered the fund, the right to which was the very matter to be decided by the trial of the suggestion, to be paid over to one of the parties to the suggestion, before the same was tried, or otherwise disposed of.</p> <p>2d. That the order, granting leave to file the suggestion, was a suspension of the plaintiff’s right to require payment of the fund to her, on her execution, and the utmost that she could require was, that the plaintiffs in attachment should give security to indemnify her; which security the plaintiffs offered to give, and to submit to an order for that purpose.</p>

<p>BEFORE BAY, J., AT CHAMBERS, JULY 28, 1837.</p> <p>The defendant was brought up, by a habeas corpus, under the St. 81 Car. c. 2, and the cause shown for bis detention was the following warrant:</p> <p>The State oe South Carolina, ) Charleston District. \</p>

BEFORE BAY, J., AT CHAMBERS, AUGUST' 8, 1837. In this case the defendant was' brought up upon a habeas corpus, and the cause shown for his detention was the following warrant: The State of South Carolina, \ Charleston District. j By Thomas Martin, one of the justices of the quorum, in and for the district aforesaid. To any lawful constable, and to the keeper of the common goal, in the said district.

BEFORE EARLE, J.? AT DARLINGTON, SPRING TERM, Í.83S. This was an action on the case for a libel; the words which constituted the cause of action, were contained in a sealed letter directed to the… Held: to print of a person that he is a swindler, is a libel and is actionable.

The plaintiff in this case (which was an action of trover) had suffered a nonsuit; and on the taxation of the defendant’s costs before the clerk, he made the following objections to the taxation: 1st. That there was a case of William Eaucett, alias White, standing above this case on the docket, and was tried before it — that the subpoenas offered to be taxed, are of the style and title of that case, are applicable to it, and cannot be taxed in this, even regarding the cases…

<p>A partial payment made on a judgment, but not credited, cannot be ' pleaded as a payment, to a scire facias, to revive the judgment.</p> <p>It constitutes an independent demand, which the defendant in execution may avail himself of by way of set off, or by action of assumpsit against the plaintiff, where the former has been compelled by him to pay the whole debt.</p> <p>The circumstance of the judgment having been revived for the whole amount, between the time of such payment and the action brought, was held insufficient to prevent the recovery of the defendant in execution.</p>

BEFORE BUTLER, J., AT CHESTER, SPRING TERM, 1838. This was an action of assumpsit, brought to recover 'the balance of an account alleged to have been due the plaintiff by the defendant’s intestate. The statute of limitations was pleaded, and the questipn was, whether its operation had been obviated by the testimony.

<p>BEFORE EARLE, J., AT SUMTER, SPRING TERM, 1838.</p> <p>This was a summary process on a promissory note given by defendant to the plaintiff, for the hire of a negro for the year 1837. The negro remained in the employment of the defendant, (to whom be bad been delivered at the beginning of the year,) until the 15th July, when be absconded and was out of the service of the defendant for .the remainder of the year. The defendant on that account claimed a deduction from the amount of the note. The defence was overruled, and the plaintiff bad a decree for the whole amount of the note. This the defendant moved the Court of Appeals to reverse, on the ground that the contract being for the entire year, and the negro having absconded from the 15th of July, to the end of the year, there should have been an abatement of the price for the loss of service during that time.</p> <p>-;-, contra.</p>

BEFORE EVANS, J., AT ABBEVILLE, SPRING TERM, 1838. This was an action on a note for one bunched dollars, and the defence set up was, that the note was a part of the price of a negro who was of bad character and utterly worthless; and that the plaintiff falsely represented him as of good, character well knowing such representations to be untrue.

<p>In an action to recover damages for the breach of warranty of the soundness of a negro, what he has said to a witness in relation to his feelings, whilst afflicted with the disease, is competent evidence; but the declarations of the negro, as to the time when the disease commenced, are inadmissible.</p>

<p>BEFORE O’NEALL, J., AT COLUMBIA, SPRING TERM, 1838.</p> <p>This was a summary process against the defendant, as an executrix de son tort. The demand against M. Dinkins, the deceased, was proved. It appeared that at his death he was in possession of several slaves, various articles of personal property, besides a crop growing at the time of his death, estimated at from fifty to one hundred dollars. All this property was in the possession of the defendant at the death of Dinkins; she gathered the crop and consumed it. She lived with the deceased, and bad several children by him. In the beginning of the year in which be died, be conveyed to the defendant for life, remainder to her children, in consideration of love and affection, the slaves, horses, cows and calves, bogs, wagon, beds, and household furniture. The deceased stated, that be reserved for the payment of his debts, his land and debts owing to him. Some ineffectual attempts were made by the defendant to prove that the deceased owned land at the time of his death; and there was some evidence of loose accounts, purporting to be due the deceased, and which were seen in his house after his death. One of the negroes had been sold by the sheriff, as Dinkins’ property, after his death, under an execution against him, and there remained a balance of three hundred dollars in the sheriff’s band, after satisfying the execution. The horses were sold under a magistrate’s execution against Dinkins, after his death.</p> <p>The presiding judge was of opinion that the defendant was liable as executrix de son tort, on two grounds: 1st, having gathered and disposed of the crop; 2d, being in possession of property liable to the payment of the debts of the deceased. He, therefore, decreed for the plaintiff.</p> <p>The defendant moved to reverse this decision, and for a new trial, on the following grounds:</p> <p>1st. Because the deed under which she claimed should have been regarded by the Court as a Iona fide transfer of the property embraced in it, in the absence of any evidence of fraud.</p> <p>2d. Because the defendant had possession of the property, before the death of Dinkins, as she lived with him, and from the testimony offered, must be presumed to have exercised all the acts of ownership over it.</p> <p>3d. Because there was no proof of any property having gone into possession of the defendant, except the growing crop, and this was offered to any one who would administer on the estate of Dinkins.</p> <p>4th. Because in the deed from Dinkins to the defendant, provision was made to pay all his creditors, as several debts were owing to the estate, but there had been no administration.</p> <p>5th. Because there was other property pointed out by the deed, which the creditors could have administered upon — the deed was recorded and open to general inspection.</p> <p>6th. Because the decree was contrary to law and evidence.</p>

<p>In a transaction between A and B, the latter entered into an agreement acknowledging the receipt from A of sundry notes, and covenanting to pay the amount of them, when collected, to C, and to account to him for certain losses, &c. — it was held that 0 might maintain an action on the covenant against B, for a breach of it.</p>

BEFORE O’NEALL, J„ AT MARLBOROUGH, FALL TERM, 1837. These two cases thus entitled, were appeals from the decision of William Easterling, late Ordinary of Marlborough district, on the accounts of Colin M’Coll, administrator of Duncan M’Coll, deceased. Colin M’Ooll was dead, and administration on his estate had been committed to M’Bryde, who removed from the State.

<p>A debt due to the plaintiff as a nurse, may be properly included under the denomination of expenses of the last illness, as expressed in the Act of 1789. _</p> <p>_ No rule or limitation for the duration of the last illness, or for the degree of attention to be paid, can be laid down; it will vary with the nature of the disease, and the situation of the patient.</p>

BEFORE MR. JUSTICE GANTT, AT LEXINGTON, FALL TERM, 1837. This was an action of trespass, quare clausum fregit, brought for cutting a crop of wheat growing upon a tract of land claimed by the plaintiff. The land had been sold under an order of the Court of Equity, and purchased by the plaintiff. The defendant was in possession at the time of the sale, and had sowed the wheat.

<p>Where a joint tenancy in a tract of land has been created by deed, on the death of either of the joint tenants, the Ordinary has the power under the Act of Assembly of 1824, to order the sale of the share of the deceased tenant, for the purpose of division among those interested.</p>

<p>Several persons in the same venue, occupying different bouses, and having no community of interest, may he included in the same indictment for keeping a bawdy house.</p> <p>In prosecutions for this offence, particular facts need not he proved— common reputation as to the character of the defendants, and of the houses which they kept, is admissible.</p>

<p>BEFORE O’NEALL, J., AT COLUMBIA, SPRING TEEM, 1838.</p> <p>This was an action of assumpsit, in which the plaintiffs claimed to recover one thousand dollars for services as clerks of the testator in the Post Office, in Oolumbia, from the 16th of March, 1831, to the 16th of March, 1833; and for an account for articles sold and delivered, from the plaintiff’s book store, the greater part of which was prior to the 16th March, 1833 — a small part, amounting to about forty six dollars, was subsequent to that time. Dr. Green, the testator, died 19th March, 1837.</p> <p>The statute of limitations was pleaded, to which the plaintiffs replied a mutual account. The proof was, that in 1832 the plaintiffs being in want of money, received from the testator one hundred dollars, for which they gave him a due bill: this sum was credited on the plaintiff’s account brought into Court, but not on their books: the due bill was never taken up by the plaintiffs, nor was there any proof that the testator ever consented that it should be applied to his account. The latter part of 1834, and the begining of 1835, the plaintiffs had on hire a negro woman belonging to the testator; hex-hire at seven dollars per month they had also credited on the account brought into Court, but no credit was entered on the books, nor was there any proof that Dr. Green consented that this should be credited to his account. During the time, from 1832 to Dr. Green’s death in 1837, it was in evidence that he was the indorser of the plaintiffs in the bank in Columbia. The service of the plaintiffs in the Post Office, and the value thereof at five hundred dollars per year, and the plaintiff’s account for articles sold and delivered, were fully proved. It was also proved by a witness (Glass) that in a conversation with Dr. Green in 1834, be said to the witness, be thought he owed the Messrs. Cunninghams money.</p> <p>His Honor instructed the jury that there was no such mutual accounts between the parties as would prevent the bar of the statute against those demands of the plaintiffs which arose prior to the 16th of March, 1833. They found for the plaintiffs so much of their accounts as was subsequent to that time.</p> <p>The plaintiffs appeal, and moved for a new trial, on the following grounds:</p> <p>1st. Because his Honor should have submitted to the jury whether an account current between plaintiffs and defendants’ testator, had been proven by the evidence offered by the plaintiffs.</p> <p>3d. Because sufficient proof was made by the plaintiffs of a mutual account between plaintiffs and defendant’s testator, in his life time, to bring the case within the exceptions of the statute of limitations, so as to enable them to recover, and it should have been submitted to the jury.</p> <p>3d. Because the accounts between the parties were mutual and current accounts, and the claim of the plaintiffs was not barred by the statute of limitations.</p>

<p>BEFORE BUTLER, J., AT FAIRFIELD, SPRING TERM, 1838.</p> <p>This was a motion for a rule against D. Gr. Wylie, sheriff of Fairfield district, to show cause why he should not be attached for a contempt of the Court, for not having collected in specie the money due to the above stated case — the plaintiff alleging that he had given him sufficient notice to do so, and that the defendant had abundant property from which it might have been raised.</p> <p>The presiding Judge granted the motions, and the sheriff upon oath returned the following answer:</p> <p>“That the moneys required to be made by the two excu-tions above stated, amount to a large sum, to wit, about three thousand six hundred and sixty dollars. That no notice or intimation was given to him by the plaintiff until about the middle of last February, that the said moneys would be required to be made in specie. That the defendant McClintock at the time this respondent received notice to collect said moneys in specie was absent from this district, and did not return, nor did respondent see him until about the beginning of March last, respondent then informed said defendant that the plaintiff bad given him notice to collect said moneys in specie, and respondent believes defendant bas made considerable efforts to get specie, but bas failed to do so; and he believes the specie could not have been procured without a very great sacrifice, if it could have been procured by any means at all. Respondent admits that defendant is a man of considerable wealth, but be does not believe that so large a sum as three thousand six hundred and sixty dollars could have been collected in specie, by levy and sale of defendant’s property, at any time since the middle of February last, without making a sacrifice of defendant’s property to a most enormous extent, and the exercise of a severity (not to say cruelty and tyranny,) by a ministerial officer of the law, which this honorable Court would not even approve, much less order and require.</p> <p>Respondent deems it unnecessary to refer to the suspension of specie payment by the banks. That circumstance alone renders it almost impossible to raise any large amount of specie at this-time. He further states to this honorable Court, that plaintiff was informed that if he would receive the usual currency of the country, he would pay him forthwith; that this offer was made to plaintiff last month, before he left this State for the State of Alabama, to which he has lately removed ; and supposing the payment of the money to plaintiff before he left the State might be some accommodation to him, this offer was made to him in a spirit of accommodation.</p> <p>Respondent further states to this honorable Court, that although he has not, for the reasons above set forth, been able to collect the aforesaid moneys in specie, he has collected the same in the common currency of the country, and is ready to pay the same, to the plaintiff or his agent, or attorney, and that his failure to collect said moneys in specie, is not owing to any want of respect for the process of the Court, but to the condition of the currency; and feels conscious that he has not been' guilty of any contempt or want of respect to the mandates of this honorable Court; and having, in fact, collected the money required by said executions, in the currency usually received in payment of debts, and the same which he has received on other executions, he hopes to be excused and not held to be in contempt.”</p> <p>His honor held the answer to be sufficient, and granted an order discharging'the rule.</p> <p>The plaintiff moved the Court of Appeals for a reversal of that order, because the sheriff was bound to collect the debt in gold or silver after due notice from the plaintiff, the same being the only lawful tender or medium of payment recog-nised by the laws of this State, or permitted by the constitution of the United States; and having neglected to raise the specie by a levy and sale of the defendant’s property, which was amply sufficient for that purpose, he was guilty of a contempt, and should have been punished by attachment.</p>

<p>The general lien of a Circuit Court judgment and execution, will enable the plaintiff in the same to recover the proceeds of sales of the defendant’s property, from a constable, who sold under a magistrate’s judgment of posterior date, after notice of such pre-existing lien, and after having been forbidden to sell.</p>

<p>BEFORE MR. JUSTICE BUTLER, AT ANDERSON, SPRING-TERM, 1838.</p> <p>This was an action of debt. There were two counts in the declaration — one on the following instrument:</p> <p>“ Nine months after date we promise to pay Fleming, Ross & Co., six hundred dollars, for value received. (Signed)</p> <p>Van A. Lawhorn & Co., L. S.”</p> <p>The other count was for the same amount, for goods sold and delivered by the plaintiffs to the defendants. The plaintiffs were merchants, and sold the goods to the defendants, Van A. Lawhorn and Samuel Cherry; who were partners in trade, doing business under the firm of Van A. Lawhorn & Co. Van A. Lawhorn was the partner who bought the goods, and signed the above single bill with the name of the firm, after the bills of articles were made out and receipted. The single bill was given by way of closing the accounts. The goods were furnished to Lawhorn at the instance of Cherry, who was acquainted with the plaintiffs, and wrote to them to let Lawhorn bis partner have goods.</p> <p>Cherry contended that be was not liable on either count in the declaration. As to the first, be took the legal ground that one mercantile partner could not bind another by an instrument under seal; and this position was sustained by the Court. He denied bis liability on the other count, as the account for goods sold and delivered being a simple contract debt, was extinguished by the above specialty, it being a security of an higher order than the account itself. To sustain this ground, be contended that the obligation was a good single bill of Van A. Lawhorn, and that the plaintiffs should be regarded as having taken the paper as exclusively Van A. Lawhorn’s. The presiding Judge overruled the latter ground taken, and decided that the defendants were liable on the count for goods sold and delivered. His Honor in bis report of the case assigned the following as bis reasons therefor.</p> <p>“ It is very obvious that the single bill was not taken by the plaintiffs as exclusively the single bill of Lawborn, as on its face it purports to be joint, and not several; and no doubt when Lawborn signed it, be did so under the impression that be was signing for himself and Samuel Cherrry, and that the plaintiffs so understood it. The goods were furnished at the instance and upon the credit of Cherry. When be disowned Lawborn’s authority to sign such a paper for him, and refused to be bound by it, the main character of the paper was destroyed. It ceased to be what it purported to be — a joint obligation. When Cherry was released from all liability, why should the plaintiffs be compelled to regard and accept it as the exclusive obligation of Lawborn ? The fact is clear that they did not so regard it when they accepted it. If such bad been the case, that is, that the plaintiffs had taken a specialty of Lawborn alone, and discharged a simple -contract debt which they held against Lawborn and Cherry, there can be no doubt but the account would have been extinguished; but until that can be made to appear, I would, under the circumstances, bold Cherry liable on the original demand; and to hold otherwise, would, it seem to me, be straining a technical principle of law, the practical operation of which would be to do a palpable injustice, and to subserve the ends of fraud. When Cherry was released, I think the plaintiffs were discharged from all obligation to regard the bill as exclusively the single bill of Lawhorn.</p> <p>The defendants appealed from this decision, and moved for a new trial, on the ground that the presiding Judge erred in deciding that the account which was the consideration of the single bill was not extinguished by-it, because the plaintiffs did not accept it as the specialty of Van A. Lawhorn, but as the joint obligation of Lawhorn, and Cherry, his partner.</p>

<p>BEFORE EVANS, J., AT ABBEVILLE, SPRING TERM, 1838.</p> <p>The declaration in this case contained counts alleging promises by testator, and some alleging promises by the defendants, as executors, in consideration of the testator’s liability.</p> <p>Pleas — general issue and statute of limitations.</p> <p>The plaintiff’s demands were proved; they were not barred at the death of the testator: they were soon after presented to one of the executors, who acknowledged them and promised payment; they were repeatedly acknowledged by this executor, and another of the executors, before the expiration of four years from the time they became due. This second executor expressly promised payment of them, after the expiration of five years from the time they became due, but within four years from, Ms former acknowledgments. The third executor bad never made any acknowledgment, or promise to pay. The action was brought six years after the demands became due.</p> <p>A motion for nonsuit was refused; and the plaintiff bad a verdict.</p> <p>The defendants appealed, and renewed their motion for nonsuit on the following grounds, viz:</p> <p>A defendant, as executor, cannot be made liable on bis promise as executor, without proof that be is such, even when the general issue only is pleaded.</p> <p>An acknowledgment of the testator’s liability, made by an executor, will not stop the running of the statute of limitations, without an express promise to pay, even although such acknowledgment be made before the statutory term is complete.</p> <p>After the expiration of the statutory term from the accrual of the action, no promise of the executor can be a good reply to the plea of the statute, so as to authorize a recovery on a count alleging only the promise of the testator; and on a count alleging the joint promise of these defendants, as executors, there can be no recovery against any of them, without proof of a promise by all.</p> <p>So that, whatever may be the plaintiff’s rights against some of these defendants, be cannot recover in this action, without proof that all of the defendants are executors, and that all of them expressly promised payment of bis demands.</p> <p>-, contra.</p>

<p>If a debtor appeal from the order of a commissioner of special bail, refusing his discharge under the prison bounds’ act, he must remain in custody, or in the bounds, if still entitled to them, as if there had been no appeal. The Act of 1833 provides for his discharge, on giving bond, only in those cases where the decision is in his favor, and the creditor appeals.</p> <p>Where the commissioner unadvisedly took such bond from the debtor, who was the appellant, and ordered the sheriff, who had voluntarily taken Mm into custody, to discharge him, it was held not to be such a judicial order to a ministerial officer, as would protect the latter from the consequences of an escape, if the enlargement of the debtor, under such circumstances could amount to one. The powers of the commissioner w'ere at an end when he decided against the application for a discharge in the first instance.</p> <p>But the release of the prisoner from actual confinement, under such circumstances, would not be an escape.</p>

<p>BEFORE EARLE, J., AT DARLINGTON, SPRING TERM, 1838.</p> <p>This was a summary process for fifty bushels of corn, in the usual form of an account — “ S. Wilson to C. Parnell, Dr.” &c. The case made by the evidence was, that the defendant had agreed with the plaintiff to put under his charge a plantation and some hands, for a year, for a stipulated compensation, and certain allowances besides. Among other things, the defendant was to furnish him fifty bushels of corn, but as he did not have it himself, the plaintiff was to obtain it where he could, and the defendant was to pay him for it in the ensuing fall. This agreement was in writing, signed by the parties. The plaintiff went upon the premises, procured, the corn at one dollar per bushel, and had it hauled to the place where it was to be consumed, in pursuance of the agreement, and this action was brought for the price of it. The several objections stated in the grounds of appeal were taken to the plaintiff’s recovery, on the circuit, and were overruled.</p> <p>The presiding Judge was of opinion that the plaintiff might recover without declaring upon the written contract, or any special agreement. The action was not for the general nonperformance of an executory contract. The defendant’s agreement to furnish the corn was separate and subordinate to the general purpose of the written agreement, and the plaintiff might either sue for so much corn sold and delivered, or for so much money paid, at the instance of the defendant. His receiving the benefit of the corn bound him to pay for it, without reference to the contract under which the plaintiff agreed to furnish it. Decree for the plaintiff.</p> <p>The defendant renewed his motion for a nonsuit in the Court of Appeals, on the following grounds:</p> <p>1st. That the defendant’s liability, if any, arose on a written agreement, which should have been declared upon.</p> <p>2d. That the plaintiff should have set forth in his process the special agreement, which he proved, and on which he recovered.</p> <p>3d. That the account set forth by plaintiff' in his process was, “ Samuel Wilson to Carma Parnell, Dr.,- to fifty bushels of corn at one dollar per bushel,” when the contract was, that the defendant was by a special agreement to pay for corn to be furnished to the plaintiff by some one else, and to be consumed by the 'plaintiff.</p> <p>4th. That there was no count in the process on which the plaintiff was entitled to recover, upon the proof made.</p> <p>If the motion for a nonsuit should be refused, the defendant gave notice that he would rely upon the same grounds on a motion for a new trial.</p>

BEFORE BUTLER, J., AT UNION, SPRING TERM, 1838. This was an action of trover brought to recover the value of a gun, taken by the defendants under the following circumstances. They were patrolling, and found it in the possession of the plaintiff’s negro, who was living on a plantation without any white person residing thereon. They seized it, and carried it to a neighboring justice, Jeffrey Palmer, for condemnation.