Volume 24 — South Carolina Law Reports

<p>Before BUTLER, J., at Kershaw, Fall Term, 1838.</p> <p>On Monday, the twenty-second of October, the first day of the said term, the grand jury returned a true bill against Franklin H. Ray, for the murder of Henry W. Purse. On Wednesday, the 24th of October, the prisoner was arraigned, pleaded not guilty, and put himself for trial on God and his country. A jury was impanelled, the prisoner exercising his right of challenge. The jury were charged — lists of witnesses were handed to the sheriff to be kept separate, and the solicitor had,called his first witness, ■who was not sworn. One of the impanelled jury then called the attention of the solicitor to the fact, that the felony charged in the indictment was laid to have been committed on the twenty-third day of October, 1838, the day succeeding the finding of the bill, instead of the preceding month. The court was thereupon advised of the error, and suspended further proceedings until the next morning, Thursday, 25th October; and upon this day, to wit, Thursday, the 25th of October, the jury were called to their places, the prisoner placed at the bar, and the court heard argument from the solicitor and the counsel for the prisoner- No motion being made, and the court being left to exercise its discretion as to further proceedings in the aforesaid case, looking to the rights of the prisoner on the one hand and public justice on the other, plainly seeing that no judgment could be rendered against the prisoner upon the indictment aforesaid — satisfied that the prisoner is in no jeopardy of life on a trial upon an instrument void, or so utterly defective, and before any evidence had, been offered— orders that the record be withdrawn from the jury, and that they be dismissed. Whereupon, the prisoner moved for his discharge. Ordered, that the motion be refused, and that the prisoner be remanded to answer for his offence at the next term of this court.</p> <p>The defendant appeals from the order of the judge, and renews his motion for discharge, on the following grounds:</p> <p>1. Because, the prisoner having been put on his trial for a capital offence, and the jury charged, he was entitled to his trial or discharge.</p> <p>2. Because, the trial having been arrested and the jury dismissed, the prisoner should have been discharged.</p> <p>3. Because, the prisoner was entitled to his discharge by the law of the land.</p>

<p>Under the .statutes of limitations, of 1712 and 1824, P. L. 101, a. a. 1824, p. 24, the settled construction is, that the right or title to lands, and the consequent remedy by action for an injury to the same, by withholding the possession, can only be barred by an actual pedis possessio, for the time fixed by the acts. The reason of this seems to be, that until there is an actual permanent possession by some claimant, the party to whom the right or title to the land accrued, cannot prosecute it.</p> <p>The principle that an actual possession of a part of a tract of land, by color of title, for more than five years, under the act of 1712, would bar the right of a claimant to prosecute the same, has been irrevocably settled since the case of Reid v. Eifert, reported in a note to 1 N. & M’Cord’s Rep., 874; the subsequent cases on this subject reviewed. These cases clearly show that the operation of the act of limitations depends upon an actual possession of the land in dispute, and not upon a mere rum claim by the plaintiff.</p> <p>They also show that the plaintiff’s right of action for the locus in quo, must have existed against some one for more than the time allowed by the law, or he cannot be barred. If, therefore, any one, before the defendant, had an actual possession for more thanjfive or ten years (as the case may be), it would bar the plaintiff as well as if it had been in the defendant.</p> <p>But, unconnected possessions, each being for a shorter time than that limited by the statutes, but when joined together making jive or ¿ere years, cannot be united so as to bar the plaintiff.</p> <p>In actions of trespass to try title to lands, the bar of the statute of limitations can only be interposed to prevent the plaintiff from recovering where he has had a right of action against the defendant, or some one, for the locus in quo, for five or ten years, as the case may be, and has during that time failed to prosecute it.</p> <p>A defendant, who has been in possession of lands for a less time than the statutory period, cannot unite his possession with that of a previous tenant, from whom he purchased, in order to make out the five or ten years required by the statute, to bar the plaintiff’s right of recovery ; for, until that period has run out, they are both to be regarded, as it respects the true owner, as mere trespassers. A conveyance from the first to the second tenant, under such circumstances, conveys nothing.</p> <p>If both possessions could be referred to one entry, as in the case of landlord and tenant, or in the case of a descent from a disseisor to his heirs, and a continuance of possession by them, then the operation of the statute would commence, it seems, from the entry by the landlord or ancestor.</p> <p>Note. — The question involved in this ease seems to have been settled by an early decision in this State, that of Mazyck v. Wright, Brev. MS. Rep., (not yet published,) in entire conformity with the principles laid down by the Court. The following note of that case may be found in Rice's Digest, 2d vol., p. 320, tit. “ Trespass to try Title “Any transmission or mutation of possession of land, during the time required by the limitation act, to bar the true owner’s right of possession, breaks the continuity of the possession required by the statute, though the succeeding tenant should derive his possession from the tenant who immediately preceded him, and should claim through him by the same concurrent title.” R.</p>

<p>Before EARLE, /., at Chesterfield, Spring Term, 1838.</p> <p>This was an action, by way of summary process, on a judgment and execution, obtained before a justice of the peace, in North-Carolina.</p> <p>It was proved that John Grady, who granted the judgment and issued the execution, was an acting and reputed justice in Anson county, and his signature to the proceedings was proved to be genuine. The defendant had given legal notice of appeal, and had entered into bond to prosecute the same; but the execution having been placed in the hands of the officer, no return of the proceedings was made to the county court, and the appeal had not been heard, and no further steps to prosecute the same by the defendant. The judgment was obtained in January, 1838, on a merchant’s account made in Chesterfield.</p> <p>The presiding judge was of opinion, that such a proceeding before an inferior court, not of record, in another state, could not be the foundation of an action here, and recovered on as such, independent of the original cause of action, and nonsuited the plaintiff, with leave to move the court of appeals to set it aside.</p> <p>The plaintiffs now moved to set aside the. nonsuit, on the ground, that his honor erred in deciding that a judgment by a North-Carolina magistrate is not a sufficient foundation for an action in the courts of this state, and that the party was driven to his original cause of action.</p>

<p>A letter of guaranty was given by the defendant to the plaintiff, by which the defendant consented to be liable for the amount which a third person, whom he recommended as a customer to the plaintiff, might, at the time of the delivery, receive. The party received goods to the amount of $ 225 03J. Defendant repeatedly acknowledged, his liability to pay this amount, and afterwards promised to pay the same. Held, that, in-1 asmuch as interest was not recoverable by our law, against the principal debtor upon the open account, in this case, the obligation imposed by the guaranty making defendant liable only to the same extent, interest could not be recovered from him.</p>

<p>Before E VANS, J., at Spartanburg, Fall Term, 1838.</p> <p>This was an action on the following paper: “ I promise and agree to execute a good and legal mortgage to A. W. Thompson, for any piece of land he may wish, that will be sufficient to pay him a debt of one hundred and fifty dollars, which we owe him for defending a case in the court of equity, James Tollison against us. Given under our hands and seals this 12th April, 1828. It shall be as much as one hundred and fifty acres, and no more, except we wish it.” Signed and sealed by defendants.</p> <p>Solomon Crocker, subsequently, did execute a mortgage to the plaintiff, which was accepted by him. The- circuit judge was of opinion, that the agreement above recited was only executory, and was subsequently executed and discharged, by the delivery of the mortgage. Under this view, the plaintiff submitted to a nonsuit, with leave to set it aside.</p>

<p>By the act of incorporation of Anderson, power is given “ to the Town-Council to impose fines for the violation of their Ordinances, and, if for less than # 20, to try the offender.” The plaintiff was alleged to have committed a breach of an ordinance, by exhibiting certain shows. For this, he was summoned before the council and fined. He paid the fines, and brought an action, before a magistrate, to recover them back. Held, that if the “ Council” had not jurisdiction of the subject, the plaintiff’s remedy was bj prohibition; and, that after paying the fines imposed, an action to recover the money back would not he ; and, that if they had jurisdiction of the subject, their judgment was Anal.</p> <p>The judgment of a court of competent jurisdiction, on a matter within its cognizance, is conclusive.</p>

<p>Before GANTT, /., at Greenville, Spring Term, 1838.</p> <p>This was an action of assumpsit, to recover from the defendants, as Executors of Ransom Cobb, the proportion of debt for which the said Ransom Cobb was liable, as security, on a note, paid off by the plaintiff, Duncan, to William Choice, to which note Duncan alleged himself and Ransom Cobb to have been co-securities. In the investigation of this case, it became a primary question to ascertain who was the principal in the above note. The plaintiff alleged that James M’Daniel was principal, and the other signers securities. The ground of defence was, that Duncan, the plaintiff, was himself the principal, and being so, he had only paid off his own debt, and could have no recourse against defendants, to recover against them.</p> <p>The jury found for defendants. Thomas M’Daniel was the first signer to the note. The presiding judge overruled the offering in evidence the declarations of M’Daniel, that he was the principal.</p> <p>The plaintiff now moves for a new trial on the following grounds: — 1. Because, his honor, the presiding judge, refused to permit the plaintiff to offer in evidence the declarations of James M’Daniel (who is dead), that he, M’Daniel, was the principal in the note to Choice, and that Duncan and others were his securities. 2. Because, his honor decided that the declarations of the principal in a note — although he is dead — could not be given in evidence on a trial between his securities to the note. 3. Because, the verdict of the jury was contrary to law and evidence.</p>

<p>Before O’NEALL, J., at Edgefield, Fall Term, 1838.</p> <p>These . actions were brought on a bond, given to Oliver Fowles, Sheriff of Edgefield District, and conditioned for the appearance of one Thomas N. Davis, in the case of William Chiswell against him. It appeared that, to the return term of the writ, Davis gave bail, who, during the pendency of the suit, surrendered him; and thereupon, these defendants, with Davis, executed the bond now in suit, conditioned for his appearance at the term next succeeding the date of the bond. There was some evidence that these defendants surrendered Davis to the sheriff’s deputy, in Hamburg; but, as the case was decided on another ground, that is now unimportant to notice.</p> <p>The presiding judge was of opinion that, after the sheriff had once let the defendant to bail, he had no authority after a surrender by the bail, again to permit him to enter bail to the action. That the statute of Henry requires the bond to be conditioned for the appearance of the defendant on the day named in the writ, and if otherwise conditioned, it is declared to be void. This bond was conditioned for the defendant’s appearance at a day subsequent to that named in’ the writ, and hence was void, and non-suited the plaintiff in all the actions. The plaintiff now moves the court to set aside the nonsuits in these cases, on the following grounds: 1. That the sheriff, upon the surrender of the principal by his sureties to the original bond, has the right to let the principal to bail again, and that the plaintiff can legally maintain these suits. 2. That there was no legal and sufficient surrender of the principal by the sureties, or either of them, in these cases. 3. That, according to law, on the facts proved, the plaintiff ought to have recovered.</p>

<p>Before O’NEALL, /., at Abbeville, Fall Term, 1838.</p> <p>The plaintiffs were the sureties of the defendant, in a promissory note, to Mr. James S. Wilson. They were requested to pay it (perhaps sued). They gave to Mr. Wilson their joint and several promissory note for the balance due, which he accepted as payment, and gave up to them the original note. They brought jointly this action, by way of summary process, to recover the sum so paid. A motion was made for a nonsuit, on the ground that their cause of action was several and not joint. The presiding judge inclined to take that view; but after hearing Mr. Martin, and considering the authorities to which he referred, (1 C. P. 8, 5 E. 225,) was induced to change his first opinion : the motion for non-suit was then overruled, and a decree given for the plaintiffs. The defendant appealed from this decision, and now renews his motion for a nonsuit, on the ground that the note of the plaintiffs, with which the note to Wilson was paid, was the several note of the plaintiffs, and the payment was not made with the joint fund of the plaintiffs.</p>

<p>Before EVANS, J., at Greenville, Fall Term, 1838.</p> <p>This was an appeal from the decision of the ■ ordinary. The executors had been cited before the ordinary, to prove the will of Alexander M’Kinney, in solemn form. The ordinary heard the case, and decided in favor of the will. The parties protesting-against the will appealed to the court of common pleas, and assigned, for error, in the ordinary’s decision, 1. That the testator did not read or hear the vyill read. 2. That there was no evidence of instructions. 3. That the will was void. At the moment the trial began, the appellants moved to make other issues: that the testator was insane, and that the will was obtained by undue influence. The presiding judge refused to allow this amendment, unless the other side consented: this was refused. The appellants then contended that the appellees should go on and prove the will. The judge decided that the appellants were the actors, and entitled to open the case, and to the reply, both in evidence and argument. The case was tried; no evidence was given to impugn the will in any way, and the jury decided for the appellees. The appellants now moved for a new trial on the following grounds : 1. Because, his honor ruled that the appellants were bound to go on as the actors in the issue, without the executors proving the will in the first place. 2. Because, the court confined the parties to the specific ground.s made in the suggestion. 3. Because, the court refused to permit the protestants to insert the grounds that the will was obtained by undue influence, and that the testator was of unsound mind.</p>

<p>In an action on a note for the purchase money of a negro slave, the vendor’s title to which was warranted on the sale, the defendants set up, by way of discount, certain defects in the title, and claimed an abatement of the price. The supposed defects depended upon many contingencies; no loss to the defendants had occurred, and it was uncertain whether any injury to.them on that account, would ever result. The defendants, with a full knowledge of the defects in the title, after the first note given for the purchase money fell due, made an arrangement with the plaintiff, giving him a new note by way of renewal, payable in a year after with interest, (which was the nóte now sued on,) during all which negotiation no objection was made on the score of deficiency in the title. The jury found a verdict for the plaintiff, without allowing any abatement, and a motion for a new trial was dismissed.</p> <p>In the sale of personal property, e. g. a negro slave, where there is a warranty of title, the warranty stands as an indemnity against loss from any defect in the title of the vendor; and without loss, there can be no claim for abatement in the price of the thing sold by way of discount, in an action for the purchase money.</p> <p>A discount must be something capable of valuation; something which can be estimated in money.</p>

<p>In an action of assumpsit by plaintiff, as the guardian of two infants, his wards, the counts in his declaration stated, in substance, that the defendant had received the money of the infants, and in consideration thereof, had promised to pay the plaintiff, their guardian. Held, that the plaintiff could only entitle himself to recover by showing, 1st, his guardianship; 2d, the receipt of the money by the defendant; and, 3d, an express promise to pay the money to him as guardian. «</p> <p>Where money has been received by another belonging to an infant, the * promise to pay, which the law implies on the part of the receiver, is implied to the infant and not to the guardian of such infant.</p>

<p>In this case, there had been an appeal to this court from the verdict of a jury, upon a question of fraud, tried before a commissioner of special hail, under the act of 1833. The appeal court ordered, that on the prisoner’s assigning his schedule according to law, he be discharged. The prisoner was subsequently brought before the commissioner, offered to assign over' his property, and claimed to be discharged. His application was opposed by the plaintiff, on the allegation principally, that the defendant had not delivered the property in his schedule to the plaintiff, which it was said he had in his possession after his arrest. The defendant offered to deliver to the plaintiff’s attorney (the plaintiff himself being in another state,) the property and cho'ses in action assigned, except a black horse, which had been seized and taken by -the sheriff in execution, and left in the defendant’s possession, under a bond executed by him and his sureties for the delivery of the horse to the sheriff, for the purpose of sale under the levy. This offer was declined, and the commissioner discharged the defendant, and the plaintiff appealed from the order of the commissioner to this court. Held, .that after an appeal from the verdict of the jury under the act of 1833, has been heard and decided, and the prisoner has been directed to be discharged, upon assigning his schedule, and delivering to the assignee the property mentioned therein, which has been in his power since his arrest, the act of 1833 does not give or contemplate another appeal to this court, ’ for any supposed error in the commissioner’s discharge of this duty.</p> <p>Before the act of 1833, no appeal lay, under any circumstances, from the decision of the commissioner of special hail. The legislature, by that act, have thought proper to give the right of appeal in a single instance, that of the finding of the jury upon questions of fraud and undue preference, or upon the allegation that the prisoner has gone beyond the prison rules. So far, the jurisdiction of the commissioner • of special bail has been divested of its exclusive character; in all other respects, it remains unaltered.</p> <p>If the commissioner of special bail commits an error in matter of law, in the final order of discharge, his error in that respect may be corrected by writ of certiorari.</p> <p>The decision of the commissioner in this case, upon the circumstances stated, said by OTÍealIí, J., to be correct.</p>

<p>In an action of malicious prosecution, the declaration charged “ that the defendant contriving and maliciously intending to injure the plaintiff, &e. procured one F. C. Ruff to appear before the defendant, a justice of the peace, and falsely and maliciously and without any reasonable or probable cause whatever, to make oath,” &c. Held sufficient, after verdict for the plaintiff, on a motion in arrest of judgment.</p> <p>In the above allegation, the act done by Ruff is charged to have been false and malicious and without probable cause, and to have been procured to he thus done by the defendant maliciously. The defendant is liable for Ruff’s act as done by his procurement.</p> <p>If it were necessary in this case to allege that the defendant knew that Ruff had no reasonable or probable cause for the charge, this is in effect charged when the defendant is charged with having of his malice procured a false and groundless charge to be made, and if defective, is aided after verdict.</p> <p>The general rule of pleading is, that all the circumstances necessary for the support of the action should be stated in the declararation ; and in action against one for instituting a groundless and malicious prosecution, through the agency of a third person, the averments 1st, of the agency of the defendant in causing such third person to make a false charge ; 2d, the charge thus made; 3d, the arrest of the defendant, his commitment or enlargement on bail to answer the charge; 4th, the presentation of the bill to the grand jury and their action upon it; and 5th, the discharge of the plaintiff, and that the prosecution was thus ended, are all that are necessary, and are sufficient.</p>

<p>The plaintiffs’.testator devised among other things, as follows . “It is my will and desire that all the rest and residue of landed and real estate, and of such real estate as may hereafter come to the possession of my executors, now in dispute, and to which I have a claim, he sold by my executors,” &c. By another clause, he directs the proceeds of the sales, with other funds, to he applied to the payment of his debts. Held, that by the will, the executors had a mere power to sell the lands, and'could not maintain an action of trespass to try title, the fee itself being in the heir. ■ "</p> <p>The distinction is between a devise to executors to sell, as if the testator say, “ I.devise my land to my executors to be sold,” and a devise that the executors shall sell, as where the testator says, “ I devise or direct that my lands be sold by my executors.” In the first case, the fee passes to the executors; in the last, the fee passes to the heir,, to be divested whenever the power is executed by the executors.</p> <p>A direction to the executors to pay the debts' from the proceeds of the sales will not vary the rule.</p>

<p>Before O ’NEALL, /., at Fairfield, Fall Term, 1838.</p> <p>This was an action of trover, for the conversion of a great many articles of property; but the • case was at last narrowed down to a gig, of the value of #45. The plaintiff was clearly the owner of that, and unless divested by- the defence of the defendant, was entitled to recover. On'the 18th of October, 1834, the plaintiff was found to be a lunatic, and fróm that time forward was in the charge of a committee. To establish these facts, the inquisition and proceedings in chancery were admitted in evidence.</p> <p>In 1835, the plaintiff and his wife removed, against the wishes of the committee, from the plantation of the plaintiff to Winnsborough, and rented a house from the defendant, at the rent of #65. During the year 1835, the plaintiff’s committee was often at the house rented by the plaintiff and his wife ; and on one occasion, said to Mrs. M’Creight, if he had known of her intention to remove, that he would have aided her. At the end of the year, the defendant issued a distress warrant, and under that sold the gig for the rent in arrear, and bought -it himself.</p> <p>His honor, the presiding judge, thought, and so instructed the jury, that the plaintiff being a lunatic at the time of his removal to the defendant’s house, apd so continuing during the time, was not liable to payment; ‘ unless his committee had assented to the contract. This last matter was left distinctly to the jury. They found for the plaintiff, #45, the value of the gig.</p> <p>The defendant appeals, and moves the court for a new trial, on the annexed grounds: 1. Because, inasmuch as the plaintiff sued in his own name and not by his committee, the court should not have permitted the verdict of the jury of inquest finding the. plaintiff a lunatic, to be given in evidence on the trial of the case, to establish the lunacy of the plaintiff. 2. Because, it was substantially established that the plaintiff rented the house from defendant for the year 1835, and was to give him #65, for the rent of said year; apd that the gig, for the value of which the jury found a verdict against defendant, was sold under a distress warrant, in satisfaction of said rent. 3. Because, the committee of said plaintiff, John R. M’Creight, well knew the plaintiff had rented the house from defendant; frequently visited the plaintiff during the year he resided in it, and gave no notice to the defendant of any objection to the contract between plaintiff and defendant respecting plaintiff’s occupancy of said house; but rather, on the contrary, led the defendant to believe he was perfectly 'satisfied with the course pursued by the plaintiff.</p>

<p>Independently of the act of 1827, in relation to the action of trover, the doctrine in this state is well settled — “ that a verdict for the plaintiff, in trover, changes the property and transfers the right to the defendant, and makes it liable to be taken in execution for his debts.”</p> <p>The leading case on this subject in this state, is that of NorreTl v. Corley, decided by the late court of appeals, in December, 1828 (not reported) ; in which the opinion of the court was delivered by the late Mr. Justice Nott. That was a case in chancery, where a bill was filed by the plaintiffin trover, who had, recovered at law, to make the property which was the subject of the action, liable to the plaintiff’s recovery, in preference to other creditors. The court said “ by bringing an action of trover, the plaintiff trusts to the personal credit of the defendant, in the same manner as by taking a note or bond in payment of property sold: the property is changed, even though the money should never be recovered.”</p> <p>The trover act of 1827, is not a declaratory act. The very title of the act, (which is “ an act to alter the law in relation to the action of trover,”) shows conclusively that the legislature supposed the law to be otherwise before, and the whole tenor of the first and important section demonstrates, that the purpose was to provide a new remedy in actions after-wards to he commenced. The act therefore does not apply to an action of trover commenced before the passing of the act.</p>

<p>If a person having a possessory title to land enters by force, and turns out a person who has a naked possession only, the latter cannot maintain trespass against the person so entering under color of title ; and if a person, having a legal right of entry on land, enters by force, though he may be indicted for a breach of the peace, yet he is not liable to a private action of trespass for damages at the suit of the person who has no right, and is turned out of possession.</p> <p>In an action of trespass quare clausum fregit, the defendant may justify his entry upon the land, under the plea of the general issue, by showing title in himself to the freehold.</p>

<p>Before EVANS, J., at Anderson, Fall Term, 1838.</p> <p>The points made in this case, and the facts upon which they depend, will appear from the report of the case made by his honor, the presiding judge, which is as follows: “ This was an action against M’Fall, as sheriff, for a trespass in selling a negro woman, named Sarah, and her two children, taken out of the plaintiff’s possession, and sold as the property of Yan. A. Lawhon, who married Lucretia, the plaintiff’s daughter. One Samuel Cherry, a creditor of Lawhon’s, was the real defendant. Sarah was originally the property of Archer, and the sole question was, whether he had ever parted from his right of property, so as to subject her to the debts of Yan. A. Lawhon. There were many witnesses examined on both sides, on the question whether Archer had or had not given Sarah to his daughter before her marriage. The evidence consisted mostly of declarations, which Archer had made to various persons; but this branch of the case, it is unnecessary to report. I thought, myself, the gift was not made out satisfactorily, and it was very clear the decisión of the jury on this part .of the case was in favor of the plaintiff. All the difficulties of the case arose out of Archer’s conduct* subsequent to the marriage of his daughter ; and as the grounds in the notice relate to errors in the charge, on this branch of the case, it will be necessary to state it somewhat in detail. Yan. A. Lawhon was married in June, 1831. He resided with Archer until December, 1832. During this time, Sarah nursed his child, and some of the witnesses said he seemed to exercise more authority over her than any of the other negroes. After Yan. A. Lawhon removed from Archer’s, Sarah went with him, and continued in his possession up to a short time before the levy, with all the usual indications of ownership. At public times, the girl was at Archer’s for a few days, and on one occasion, she was sent there on account of some suspicions against her, connected with the death of Van. A. Lawhon’s child. The evidence, independent of the testimony of Lawhon and his wife, was such as, to establish the gift after marriage, but from their statement, it appeared to have been considered by both parties as' a loan. Cherry, the creditor, at whose suit the negro was sold, was a merchant at Pendleton. Van. A. Lawhon had been his clerk for many years, and was greatly confided in; soon after the establishment of the court for Anderson, they entered into copartnership, in a store to be established at Anderson village, which continued up to January, 1833. By the terms of dissolution, dated 31st January, 1833, Lawhon agreed to pay Cherry $3600, and to discharge all the outstanding debts ; in consideration of which, Cherry released to him all his interest in the effects of the copartnership. Yan. A. Lawhon did not perform his part of the agreement, and Cherry was compelled, as one of the firm, to pay $4708, for which, on the 1st July, 1835, he took Yan. A. Lawhon’s notes, upon which there was a confession of judgment the 20th February, 1836, a levy in August, and sale in September of the same year, when the notes were given. Cherry took a mortgage, to secure the payment; which was afterwards given up. In this mortgage, Sarah was included; but, according to Lawhon’s evidence, at Cherry’s request, and with a knowledge on the part of Cherry that he did not claim her under any gift from Archer.</p> <p>In my charge to the jury, on this part of the case, I said Cherry stood in the position of a subsequent creditor, without notice of Archer’s claim. If a father, on the marriage of his child, put property into the child’s possession, where it remained under such circumstances as ordinarily attend a gift, a subsequent purchaser or creditor would have a right to subject the property to his contracts, although as between the parent and child, it would amount only to a loan, and therefore, if Cherry knew that Sarah was in Van. A. Lawhon’s possession at the time he sold out his interest in the store, and at that time he -had not any notice of Archer’s claim, then the jury ought to find for the defendant. I explained to them the reasons of this principle of law, that a creditor had a right to look to all the property of which his debtor was the ostensible owner, for the satisfaction of his debt; and it would be a fraud to allow a third person to set up a secret agreement, to defeat the legal presumption of title in the debtor, arising out of the facts of the case. I put Cherry’s right to subject this property to the payment of his debt, expressly on the ground, he was a subsequent creditor, without notice, and that he knew the negro was in Lawhon’s possession, and therefore might be presumed to have trusted him on the faith of it. I did not charge the jury as stated in the 2d and 5th grounds, that if Cherry trusted Lawhon, not on the fact that Sarah was in his possession, but on the confidence which he, Cherry, had in Law-hon, without reference to Sarah, then they might find for the plaintiff. If there had been evidence that Cherry did not trust Van. A. Lawhon on the faith of the property, I should have thought the plaintiff entitled to recover, because Cherry would not be defrauded by taking away the fund upon the faith of which he had given credit. — But to deprive Cherry of this means of satisfying his debt, the fact that he had not trusted to it should be made out by proof, and not by conjecture. I did not therefore think it right to encumber the jury with legal propositions about which there was no proof. — If I was wrong in this, a new trial Should be granted. My opinion, as distinctly expressed, was, if Cherry knew that Sarah was in Lawhon’s possession, under the circumstances before stated, he had a right to look to her as a means of -satisfying his debt, and in the absence of any satisfactory proof to the contrary, should be presumed to have trusted Lawhon on the faith of this, as well as his other property.” The vei’dict was for the defendant.</p> <p>The plaintiff gave notice of an appeal and now moves the court of appeals for a new trial on the following grounds: 1. Because the court charged the jury in the following words: “If Cherry knew Lawhon had the woman Sarah in possession at the time he sold out his interest in the store — and if he did not have notice of Archer’s claim, then you should find for the defendant. 2. Because the judge did not instruct the jury that if Cherry gave credit to Lawhon, on the confidence he had in him, independent of the woman Sarah, then that they might find for the plaintiff. 3. Because there was no proof whatever that Cherry at the time of the sale of the store interest, knew that Lawhon had Sarah in possession at that time. 4. Because the court required the jury to be satisfied that Archer gave notice of his claim to Cherry, or that he knew of plaintiff’s claim, before they could find for plaintiff, if he knew at the time of the sale of the possession of Sarah by Lawhon. 5. Because the court did not charge the jury that the true question was, whether or not Cherry gave the credit to Lawhon, on the faith of Sarah and her children, or upon the confidence he, Cherry, had in Lawhon, without reference to Sarah; but'held the plaintiff bound to prove that Cherry did not know of the possession of Sarah by Lawhon, or that Archer should show at the dissolution notice to Cherry of his claim by Sarah. 6. Because the verdict is contrary to law and the weight of evidence in the case.</p>

<p>James Dugan, by deed dated the 3d of April, 1832, gave to Robert M’Daniel, Nathaniel Gist, Argulous Jeter and William Moore, a large estate, consisting of lands, negroes, stock and debts, to be equally divided among them: “ to them and their heirs forever; provided, nevertheless, that the above-named Robert, Nathaniel, Argulous and William pay all my just debts, and furnish myself and my beloved wife, Frances, each, with two hundred dollars annually, to commence from this day.” The property went into the possession of the donees, and James Dugan had been dead some years. The plaintiffs in this case, the donees under the deed of James Dugan, found among his papers an instrument of writing, in these words: “ Received of James Dugan three negroes, say Judy, Harriet, and Mary, for the special benefit of Park Dugan’s children ; that is to say, Mary J. Dugan, Jane J. Dugan and Eliza M. Dugan, for the ave right to said property. Witness my hand and seal, this 9th Jan’y, 1830. (Signed) James Rodgers, Test, J. M. Smith. Price, Judy, $450 — Harriet, $300 — Mary, $200= $950.” After the death of James Dugan, the plaintifls required of Rogers a note for the price of the negroes, which he gave. The present action was on the note, which Rodgers (who was the step-father of Park Dugan’s children, and their guardian,) contended he ought not to pay, because the negroes were given by James Dugan to Park Dugan’s children. The main question in the case was, whether the negroes had been so given ! To explain the transaction, and to prove that there was no gift, Mrs. Dugan, the widow of James Dugan, was offered as a witness, by the plaintiffs. She was objected to, and the objection sustained in the court below, on the ground of interest. Held, on a motion for new trial in this court, that Mrs. Dugan was a competent witness, and that her testimony should have been received, and a new trial granted on that ground.</p> <p>Where the interest of a witness is of a doubtful nature, it goes to the credit, and not to the competency. A party has such a direct and immediate interest as will disqualify him, when the necessary legal consequence of the verdict will be to better Ins situation, either by securing an advantage or repelling a loss: he must he a gainer or loser hy the event.</p> <p>I cannot see that Mrs. Dugan will be a gainer or loser by the event of this suit. It is barely possible that the loss of this fund will endanger the payment of her annuity. — Per Evans, J.</p>

<p>Before O’NEALL, J„ at Fairfield, Fall Term, 1838.</p> <p>This case came up on a motion for a new trial. The report of his honor the presiding judge is as follows: “ This was an action of assumpsit, to recover the value of two negroes, (Bill and Braxton,) sold, as it was alleged, by the plaintiff to the defendant. It appeared that about January, 1833, the defendant sold to the plaintiff the negroes, for $850 ; he paid on account of the purchase, (January, 2, 1833,) $150 ; for this sum the defendant on that day gave to the plaintiff his note. The plaintiff paid on a debt of the defendant’s, and by his request, $16 25 to Mr. Noble; the defendant is indebted to the plaintiff for leather, $14 50. The negroes were in the plaintiff’s possession two years ; at the end of that time, they returned to the defendant’s possession, whether under the contract spoken of hereafter, or before it, did not appear. Charles Bell, Esq. proved that the plaintiff came to his house, and asked him to go with him to Monticello, to see the defendant on the subject of these negroes. He went. The defendant said, his son, who had gone to the western country, needed negroes, and he (defendant) wished these negroes back, at a fair valuation. The plaintiff said he would name the plaintiff’s own brother, Hugh, to fix the valuation : the defendant said they could arrange that afterwards. Nothing further was done or said in his presence. He said these negroes are the same mentioned in an action of trover, brought by this plaintiff, against this defendant, in which the verdict was for the defendant; and that the contract he proved was before that suit was brought. — The hire of the negroes, while in the plaintiff’s possession, was shewn to be worth about $312 ; their value, at the time the defendant got possession, was proved to be about $1750. The defendant gave in evidence the record in the case of this plaintiff vs. this defendant, trover for the slaves: verdict for the defendant. He also proved a discount of $143 60, for work done on a house for the plaintiff. I thought, and so instructed the jury, that the recovery in trover was only conclusive of the question of title to the slaves, in the defendant. Notwithstanding, it might well be, that the plaintiff, before that suit, had sold the slaves to the defendant. It was, however, a circumstance which might satisfy them that the plaintiff did not sell. For if he had sold, he would hardly have brought trover for the slaves.</p> <p>The question of the sale, as a matter of fact, was fairly submitted to the jury. Having tried the former case, I had a strong belief and impression, from the facts then proved, that if the sale was set up, injustice would be done to the defendant; and with that belief, I have no doubt, that I gave the defendant the benefit of every thing in this case which ought to operate in his favor. The jury found for the plaintiff, $527 15, which was the balance due to the plaintiff, rating the negroes at $1,438, and adding thereto the plaintiff’s payments, to and for the defendant, and the defendant’s indebtedness to the plaintiff, $180- 75, and deducting therefrom the purchase $850 — interest on $700 not paid, for two years, $98 — and the plaintiff’s discount, $143 60. With the verdict, I have no reason arising out of the facts proved in this case, to say that I am dissatisfied.”</p> <p>The defendant moves for a new trial in this case, on the following grounds: 1. Because, the evidence adduced on the part of the plaintiff, clearly proved that there was not a complete contract entered into between the plaintiff and defendant, for the re-sale of the negroes ; and that what did take place between them on the subject, even if understood by the witness, only amounted to an offer, or proposal. 2. Because, there was no evidence that the proposition to re-purchase was ever consummated by the parties; but on the contrary, there was conclusive evidence, that it was not, by the plaintiff’s bringing an action of trover against the defendant for said negroes, after said supposed contract was entered into. 3. Because, there was not a tittle of evidence to establish the fact, that the negroes went into the possession of the defendant, and which was relied upon by the plaintiff as a consummation of the supposed contract, after the time, it was testified to have been made ; but on the contrary from the evidence of the case, it was clear the defendant had said negroes in his possession for a month and upwards, before the said conversation respecting the re-purchase of the negroes took place. 4. Because, the verdict of the jury in favor of defendant in the raction of trover brought by the same plaintiff against the same defendant for the recovery of said negroes, was a bar to the plaintiff’s recovery in the present action; and the jury ought to have been so instructed by the court. 5. Because, from the circumstances connected with the pleadings on the part of the plaintiff, it is manifest that the plaintiff himself did not regard what had taken place between himself and defendant as amounting to a sale of said negroes from him to defendant.</p>

<p>By a law of the state of Georgia, demand and notice are dispensed with, and indorsers and assignors of notes are made liable, as securities. By the same act, the holder forfeits his remedy if he does not sue in three months after notice to do so. The defendants in this case, who were citizens of South-Carolina, bought a negro from the plaintiff, who resided in Georgia, and transferred by indorsement, to the plaintiff, two notes of one J. J. Logan, in payment. The contract was made in Georgia, but the plaintiff knew the defendants resided in South-Carolina. Held, that the contract of indorsement in this case was to be interpreted by the law of Georgia.</p> <p>Under the 2d section of the law of Georgia, (referred to,) if the plaintiff does not sue within three months after notice to do so, the indorser is discharged. But it is not enough, it would seem, for the indorser in such a case, to prove that he has given the plaintiff notice to sue, in order to discharge himself from the indorsement; the burden rests upon him to show also that the plaintiff had neglected to sue for three months after notice.</p> <p>The declaration in this case set out the making of the note, the indorsement by defendants, demand and notice, and alleged that the defendants became liable to pay, &c. Held sufficient, in reference to the law of Georgia, which dispenses with demand and notice, and makes the liability of the indorser an absolute and not a conditional one. The allegation of demand and notice, though unnecessary, does not vitiate the declaration, and may be rejected as surplusage.</p> <p>In a declaration against an indorser, a variance in setting out the name of the maker of the note from that upon the note offered in evidence, would be fatal. But where the declaration, which was not very legibly written, in some places described the maker’s name as “ Logan,” (the true name,) and in other places it seemed more like “ Ligan,” the court held that it was to be presumed, that the attorney who drew the declaration knew the true name, and that as he had in some places put the name correctly, they would not scrutinize too strictly, in order to turn a party out of court, and that the cause of action was sufficiently set out to be a bar to another suit for the same cause.</p>

<p>In a joint action of trespass, assault and battery, against two defendants, the plaintiff having failed, on the trial, to make out any case against one, on the motion of the defendant’s counsel, a nonsuit was entered as to him, and he was examined as a witness for the other defendant, against whom the plaintiff obtained a verdict, upon which he signed judgment and issued execution. The other defendant entered up a judgment of nonsuit, and issued execution for his costs. At a subsequent term, the defendant against whom the verdict had been obtained, made an application to set aside the verdict, judgment and execution, against him, on the ground that, in a joint action against several, the plaintiff cannot be nonsuited by one defendant without the others, and that the plaintiff, in this case, having been nonsuited as to one defendant, this was a legal discharge as to the other defendant. ’ Motion refused.</p> <p>If the order of nonsuit, obtained by one of the defendants ■ in this case, operated in law as a discharge of the other defendant, the obvious and proper course was, to claim the benefit of it at the moment, either by making a motion for nonsuit in the case of the other defendant, on the ground, that if the plaintiff be called as to one, he is called as to all; or, by asking leave to plead it in bar of the action, as a legal discharge.</p> <p>The practice, both here and in England, is to grant relief, on motion or rule to show cause, in many cases where, formerly, the party would have been driven to his audita querela, or to his writ of error; but in neither of these inodes would the party be allowed to reverse a judgment, or to set aside a verdict for any matter of exception on the score of irregularity, or any matter of discharge in point of law, which not only existed, but was fully apparent, and within his knowledge at the time.</p> <p>It would be an extraordinary proceeding, if, after having at the defendant’s instance, granted his motion to nonsuit the plaintiff as to one of the defendants, in order to make him a witness for the other, the court should deprive the plaintiff of the benefit of his verdict, even supposing the irregularity to exist; and inasmuch as the defendant did not avail himself of it, but proceeded in the trial, if it were necessary to preserve the symmetry of the record, the court would rather grant a rule to set aside the judgment of nonsuit, and send the other defendant also to a jury.</p> <p>Had the defendant attempted to avail himself of the nonsuit as to the other defendant, at the trial of the case against himself, the court would, of course, if the objection were deemed valid, have then set aside the judgment of nonsuit, and put the case to the jury.</p> <p>According to the English rule of practice, which is the correct one, in a joint action against several defendants, the plaintiff must be nonsuited as to all, or none ; so, if the plaintiff has obtained a judgment by default, (or otherwise) against one defendant, he cannot be nonsuited by another defendant; but upon an issue in fact, the case must go to the jury as to him.</p>

<p>Trespass to try title. The plaintiffs were three out of five of the children and heirs at law of the late William Wagner, who died in January or February, 1813. The plaintiffs claimed under a grant to Robert Brown, for one hundred acres, dated 9th November, 1774. The land in dispute had been surveyed under a rule of court, by a deputy surveyor, who stated in his certificate that he had seen the land, and found it to he the same re-sprveyed by Robert Bradford, 20th December, 1803 ; and that he believed it to be a part of the Brown grant. The next regular link in the plaintiffs’ chain of title, was a deed from Moses Westbury, dated 20th December, 1799, to one Carter. None of the witnesses knew Westbury ; some of them said, that the reputation in the neighborhood was, that he married the only daughter of the grantee, Robert Brown, and that he and his wife removed from the state upwards of thirty years ago; probably about the date of this deed to Carter. There was no proof that either had been heard from since. The handwriting of a deceased witness to Westbury’s deed was proved, and that the other witness to the same, who had made a mark, was also dead. The same witness proved that the body of the deed was in his (the witness’) father’s handwriting, who was dead : he also proved the probate to have been made before his father, who was a justice of the peace, and the certificate of registry, signed by Tutt, the clerk of Edgefield, who was dead. This deed conveys the land covered by the Brown grant. A deed ftom Carter to the late William Wagner, for the same land, dated 18th January, 1802, was proved, and given in evidence. The plaintiff gave in evidence a plat made by Robert Bradford, of the land in dispute, surveyed at the request of Carter, for William Wagner, dated 20th December, 1803. The plaintiffs proved that the Brown grant was regarded, by the neighborhood generally, as covering the land in dispute, and that the late William Wagner had more than five years actual possession prior to 1812, of afield of five, six, or seven acres, on the land in dispute. The defendant claimed under a junior grant to one Adams, dated June, 1786, covering the land in dispute, and deduced a regular paper title ; and proved that outside of the lines claimed by the plaintiffs, there had been a continual possession for more than forty years in the defendant, and those under whom he claimed. He proved too, that in the fall of 1811, Mr. Burnet, under whom he claims, dispossessed the tenant of William Wagner of the field of five or six acres, sowed, and reaped a crop of wheat from it. That Wagner was about ploughing up the wheat, in the spring of 1812, when he and Burnet met at the field: Burnet prevented him from doing so, and an arbitration (as it was called) took place, the whole matter about which, was ascertained from the recollection of two witnesses, who said that they were at the arbitration. That Lyon, Robertson and Bullock were the supposed arbitrators.' One of the witnesses said that they looked at the papers, and said that the Adams title (that under which the defendant claims) was to hold until a better one. The other witness said, the understanding at and of the arbitration was, that Wagner’s title would be good if he had Mrs. Westbury’s title, otherwise the junior grant (the state title, as he called it) would be good : this was in the summer of 1812, and from-that time to Wagner’s death, in January or February, 1813, he was generally sick, and, some of the witnesses said, bed-ridden. Burnet hauled away, in the summer of 1812, the rails from around the field, and there had been no possession by any one since, of the land in dispute. The defendant also proved that the plaintiffs, William Wagner and his sister,,Elizabeth Davis, asked leave, severally, to cut timber on the land in dispute, from the defendant; and' that he accordingly gave them leave. On this evidence, the jury were instructed by the circuit judge, as follows :</p> <p>1. “ That the ordinary proof of location had not been resorted to, to locate the Brown grant, but still the evidence might satisfy them that it covered the locus in quo. That the survey by Bradford, made in 1803, under the title deduced from [the grantee, was evidence of the location of the Brown- grant; for there was no doubt that plat covered the locus in quo. So, if they should be satisfied that Wagner, under the Brown grant, had possession, claiming by the' boundaries of the Bradford survey, for more than five years, it would afford very satisfactory evidence of the location ; and that in a case of this kind, the circumstance proved by the defendant, in making out proof of the award (as it is called), that it was-the understanding among all concerned, that if Wagner had Mrs. Westbury’s title he would be entitled to the land, might turn the scale in favor of the location contended for by the plaintiffs.</p> <p>2. That if the plaintiffs’ title could be connected with Brown’s grant, then he might be entitled to recover; otherwise not. That if the proof satisfied them that Mrs. Westbury was the daughter of Brown, and she and her husband were still alive, then her husband’s deed being good for his or her lifetime, would entitle the plaintiffs to recover. If she survived her husband, then it would be that the plaintiffs had not entitled themselves to recover by the paper title. That if Mrs. Westbury was the daughter of Brown, the proof would justify the conclusion that she and her husband had been dead for thirty-two years ; both having removed from the state, and not having been heard from since. The legal 'presumption of their death would be complete in 1806. If their death was thus to be presumed against their heirs, the statute would run out and be at an end in 1811, unless they were shown to be under disability, which was not done, and that the possession of Wagner, of 1806, 1807, 1808, 1809, 1810, 1811, would perfect his title against them. But the true view of the case was, to regard Wagner as having entered under Carter’s and Westbury’s conveyances,' who, for aught that certainly appeared, might be strangers to Brown; but who had undertaken to convey his title, and under a title so derived, if he had an actual adverse possession of a part of the grant for more than five years before 1812, that this was equivalent to the most perfect conveyance of the Brown grant to him against all persons not laboring under some disability. That thus having the elder and 'better legal title, it was not divested by the supposed arbitration, or the asking leave from the defendant to cut timber on the land, by, two of the plaintiffs. The fact of possession of more than five years before 1812, under Carter’s and Westbury’s deeds and Bradford’s plat, as connected with the title derived from Carter and the Brown grant, was distinctly submitted to the jury, and they were told that upon it would depend the case.”</p> <p>The jury, under this charge, found a verdict for the plaintiffs for three-fifths of the land in dispute ; and on a motion for a new trial, this court concurred fully in the instructions given by the judge below, to the jury, and refused the motion</p> <p>In relation to the ground, questioning the sufficiency of the proof of West-bury's deed, the court say, “ That it was all which could be given, and enough to establish the existence of the paper more than thirty years ago. But when it is remembered that, under the title derived from Westbury, there was a survey in 1803, and an actual pedis possessio, commencing in 1806, of more than five years, the proof was sufficient to admit Westbury’s deed, (which was ¡more than thirty years old,) as an ancient deed, without saying any thing about its execution.”</p>

<p>Before BUTLER, /., at Chesterfield, Fall Term, 1838.</p> <p>These were special actions of assumpsit, to make the defendants liable for the value of goods lost on board of their boat. The report of his honor, the presiding judge, is as follows: “ The plaintiffs had shipped from New-York, in the brig Frances Ann, goods to the value of sixteen or seventeen thousand dollars. They were -received at Georgetown, S. C. in good order, by their forwarding agent, Waterman, who had instructions to send them up the Pedee to Cheraw; from which place they were to be forwarded to plaintiffs, residing in Lancaster, by their agent, Long. Waterman, residing in Georgetown, stood /in the double position of being the agent of plaintiffs to receive and forward their goods, and also of being the agent of' the defendants to attend to the loading of their boat, the¿ steamer Atalanta, plying on Pedee, between Georgetown and Cheraw. On the 15th and 36th of October, 1836, the plaintiffs’ goods were put on board the Atalanta, at Georgetown ; on the 17th, she left Georgetown, taking along side of her a tow boat loaded with goods. At the time of her departure, she drew something less than four feet water, and was under the command and care of the following officers and crew: Russel, master, (a white man) Prince, (a slave) Pilot, and Freeman, (a free man of color) engineer, and about twelve or thirteen black men, as the crew. About half way between Georgetown and Cheraw, the Atalanta sunk, at a place called ‘ the Washers.’ When she first sunk she was in ten feet water, her deck being about ten or twelve inches above, but her hold full of water. The great question was, whether she was sunk by inevitable accident, or by some cause which could have been avoided by human foresight and prudence ; and, upon, this point, the testimony is very voluminous on both sides. A survey was made of the localities, and a map, which was given in evidence on the trial, will explain them to the court. To understand the witnesses, we must suppose ourselves to be going up the river as the boat was; towards the east bank (which is on the right going up,) is a cove, formed by the bend of the river, which is full of snags, known to all navigators of the rivei;-; towards the west or left, going up, is a sand bar; and between the cove of snags and the sand bar,, is the regular boat -channel. A gum tree with a large root, forms the eastern limit of this channel: this root is known and called by the name of the ‘ Hurricane;’ and boats, iffpursuing the common channel, run as near this root as possible, without interfering with it; as witness expressed it, they usually graze it with the bow of the boat. The bow of the Atalanta had passed where the limbs of the tree lay, and was within eight or ten yards of the root when she sunk — the root being rather to the right of the bow. As the onus was on the defendants, to shew how the boat was sunk, they undertook to show by testimony, that the boat was in the ordinary boat channel, and run on an unknown and concealed snag, at a time when the river was fairly boatable; and that after the accident happened, they used all the diligence in their power to save the goods on board from destruction. For this purpose, they introduced a great deal of testimony. The testimony of Russel, the master, taken by commission, and that of many pilots of boats who were sworn in court, went to show .that the Atalanta was in the exact boat channel when she sunk. The master stated that about 3 o’clock on the 18th of October, whilst the boat was under fair way and running slowly, she was arrested by something, and went down in twenty minutes. At the time, the pilot was at the helm, and he by his side, and the engineer at his post; the boat was in the exact channel; had passed down same way and had seen boats, particularly the ‘ Duncan M’Cra,’ pass precisely the same place with safety, that at this time, there was a little swell in the river' which covered the Hurricane, which was, however, indicated by the rippling of the water over it. He said the engine worked well — but that he was unable to move the boat, and that he was confident she was detained by a snag, which was concealed from and unknown to any on board. Whilst the boat was in this situation he despatched a messenger to one of her owners, Mr. Wright, residing in Cheraw. In about eight days, Mr. Wright came down, and got several gentlemen of standing in the neighborhood to take a survey of the boat, and to advise the owners what they had best do for all concerned. He also got several pilots to examine her situation. Upon sounding, she was then in ten feet water, and the river falling, The pilots said the Atalanta was in the exact channel for boats to pass the Hurricane with safety, and that the river, though low, was fairly boatable, and that the boat was on a concealed and unknown snag. The gentlemen who made the survey advised, that the boat should be raised, and the goods sent to Cheraw and sold as soon as practicable. The goods on deck and the tow boat were sent to Cheraw in safety. Exertions were made to procure as many boats as could be obtained to assist in carrying off the goods, and to assist in raising the steamer. A man. by the name of O’Hanlon, living in Wilmington, N C. who built the Atalanta, and who was a man of skill and experience in building, launching and raising boats, was sent for. At first he could not come, being sick, but sent some hands perhaps: some time in November he came himself, and made exertions to raise the boat. Four boats and about thirty hands were employed, with machinery made for the purpose. They continued their exertions for about three months, but without success. The effort to raise the boat cost the defendants about five thousand dollars. The boat was so far moved as to loose it from the snag, or impediment that had detained it, and she drifted down the riv.er into a deeper place, where the wreck is now lying. About the time it drifted down, there came a freshet which washed sand over the boat, so as to render it impracticable, in the estimation of the owners, to do any thing to her with advantage; and she was abandoned. In the mean time, some of the goods were taken out and sold, for the benefit of the owners of the goods.</p> <p>The defendants also introduced testimony to show that the boat was staunch, the master was competent, the pilot experienced, and the engineer skilful.* As to the first officer, it appeared that he had been acting as clerk on board of the M’Cra, and as far as this situation would enable him to do so, he had become acquainted with the navigation of the Pedee, before he had gone on board of the Atalanta, on which he for a while at first acted as clerk. This was his second trip as master. Several witnesses said they would have trusted him as master, for all that a master has to do in the practical navigation of a boat; all saying that the pilot is the principal officer on board. With regard to the pilot, the testimony was very satisfactory, that he was trust-worthy, and distinguished for his vigilance and experience. The engineer had acted on other boats as engineer; had been on board of this boat before this trip, acting as first fireman ; this was his first trip on the Atalanta in which he had charge of the engine. The regular engineer, who was taken sick in going down, said that Freeman was competent, and that the engine was in good order and worked well after the boat sunk. The testimony, on the part of the plaintiffs, went to these points: 1. The master was inexperienced, and the engineer intemperate. 2. The boat was overloaded when she left Georgetown. 3. That she had attempted the navigation when it was too low, and beyond where it was fairly boatable. 4. That the boat was crippled before she reached the Washers. 5. After she sunk, due diligence and prudence were not used to save the goods on board. — On the first, there was some evidence that the master was young, and could not be acquainted with the navigation of the river; and one or two witnesses said that the- engineer was occasionally intemperate. -[I think it was shown there was no spirits on board of the boat when the accident happened.] 2. It was shown that the boat was fully laden; and I think, Waterman said, fuller than he had ever known her before. This was a disputed point, as some witness said that she had drawn more water before than she did on this trip. On the 3d point, much testimony was offered ; two witnesses said the river was lower, at the time of the accident, than they had ever known it for loaded steamboats, and all sa'id the river was low; several saying, however, it was not too low to pass the Washers, but that it was navigable to a place called the ‘ Pocket,’ a place above, for steamboats; from which place, goods should have been taken up by lighters. All the witnesses agreed that the Washers was a place of unusual peril for boats to pass, and that it required prudence and skill to run a boat through them in a low river. Upon this part of the case, my own mind was not satisfied, as to the prudence and judgment of the defendants. It was certainly proved that the river was quite low. All the pilots said that they would not have attempted to pass the Washers, if the Hurricane could be seen out of water ; but said that if it was covered, the navigation was safe. There was some uncertainty on this point, from the testimony of the witnesses. 4. The captain acknowledged that the boat touched the sand bar, about one hundred yards below the Washers, but that it did not affect her course, or impede her motion. One witness, a man by the name of Grice, said that just opposite his house, the steamer was delayed for an hour, and that the crew was making exertions as though they were endeavoring to get her off from some detention at her bottom. That he saw a snag at the place where the boat lay, and underneath where she stopped. [The testimony of this witness was assailed: see my notes of the testimony.]</p> <p>Another witness said the steamboat stopped about the same place, but how long he could not say: he was at a house, rising one-fourth of a mile off — 5. Plaintiffs contended that goods might have been taken out of the hold of the boat and dried on the land, or carried to a warehouse not far off. Upon this, there was some contrariety of opinion — some witnesses saying that some goods could have hem fished out of the hold, and others saying it was a more prudent course to have raised the boat, and to have taken all the goods to Cheraw, and I think this was the general opinion; nearly all the witnesses saying, that to have stopped to take the goods out in detail, by hooking, would have jeoparded all opportunity to raise the boat, by which all might have been saved. [It should be here remarked, that it was thought practicable to raise the boat at the time.] At best, there was a choice of difficulties. To attempt tofish up the goods, would have resulted in delay, and would have required boats to take them off, which the defendants could not procure at first; having in vain attempted to hire them before O’Hanlon came to raise the boat, and that then it was more prudent to attempt the raising her. The plaintiffs also introduced testimony to show that it was practicable to get out goods a year after the boat sunk, and that defendants should have then taken them out; and on this part of the case, these extraordinary facts were proved: that, in the summer of 1837, long after the boat was abandoned, and when sand and water were five feet over the hold, (which was ten feet deep,) making a depth of fifteen feet water to the goods, several persons undertook to get, and did get goods out of the hold. The way they pursued was, to put down a pole as a guide : to dive down with a sledge-hammer, and knock open boxes, as long as they could hold their breath.. By repeatedly doing so, several persons got up some guns, nails, and other goods, amounting to five hundred dollars, which they sold, claiming the proceeds for salvage. One or two got lost in the hold, and were very nearly drowned: they were forced, by a rise in the river and the peril of the enterprise, to desist from their exertions.— I charged the' jury on all the points: that defendants were subject to the common law responsibilities of common carriers, as modified by judicial decisions, unless they had shown satisfactorily that the loss resulted from inevitable accident; from some cause which human prudence and foresight could not have avoided. That-it was not enough to show that the boat had run on an unknown snag, in the ordinary boat channel of the river; but that they should show that the boat was properly loaded .and managed, and that the river was fairly navigable at the time, for steamboats of the size and burthen of the Atalanta. I thought, myself, that the boat was in the common channel of the river, and had run on an unknown snag, but I had great doubt whether the boat should have been put on the river when it was so low; for, when the river is very low, a boat might run on concealed snags, which it would avoid if the water were high enough to float it above them. I said, perhaps, the snag might have been avoided, by waiting for a higher river. But at tjie same time, I said this was a question of fact, depending on the testimony; many of the witnesses sayy ing the river was fairly navigable at the time, and but a few saying otherwise ; and it was therefore a question for the jury to determine.- Should the jury come to the conclusion that the boat had sunk by inevitable accident, I charged them that the defendants might be still held liable for negligence and want of prudence, in saving and taking care of the goods; that they were bailees for hire, in the peculiar custody of goods, from whom the plaintiffs had a right to expect not only diligence, labor and care, but prudence, enlightened by information, and directed by intelligent exertion; such prudence, as an intelligent man would have used in taking care of his own property of -the same amount, and similarly situated. Whether the defendants had thus demeaned themselves, was a question for the jury, that depended very much on the opinion and statements of witnesses. It was a question that addressed itself to the sound discretion and deliberate judgment of the jury.” The jury, after retiring but a short time, found for the defendants.</p> <p>The plaintiffs now moved for a new trial, on the following grounds: 1. Because, there was no evidence that the boat was in thé proper channel, when she was snagged — if snagged at all. 2. Because, the judge charged the jury, that, after the boat snagged, defendants were discharged of their common law liability as carriers, and became mere bailees of the goods on board, and chargeable only for ordinary neglect. 3. Because, the judge charged the jury, that it was not necessary that the master of the vessel should be acquainted with the navigation of the river, if he had a skilful pilot.</p>

<p>Action of assumpsit on a letter of credit or guaranty, in the following words : “ Charleston, 12th October, 1825. Messrs. Boyce & Henry — Gentle, men, — Our brother, Samuel Ewart, is about to commence business on his own account in Columbia. To assist him in which, he will stand in need of your aid and indulgence, which, if you render him, (in casé of his failure or delinquency,) we will indemnify you to the amount of four thousand dollars; and you will greatly oblige, gentlemen, yours, &o., D. and J. Ewart.” — Held, in the opinion of a majority of the court, not to be a continuing guaranty, for the amount of #4000, which S. Ewart might, at any time in the course of his mercantile dealings with the .plaintiffs, owe them ; but that by its true construction, it could only be regarded as intending to secure the plaintiffs to the amount of #4000, in any aid which they might render S. Ewart, in the commencement of his business as a merchant; and that as soon as S. Ewart, for any dealings had with Boyce & Henry, under the letter of guaranty, paid to the amount of #4000, D. & J. Ewart were absolved from all further responsibility. [O’Neall and Evans, Justices, dissenting.]</p> <p>The plaintiffs, Boyce & Henry, had dealings to a large amount with S. Ewart, after the date of the letter of guaranty, down to the 6th of January, 1832, when the plaintiffs closed their account current with S. Ewart, and took his note for the balance due them, say #16,000 — payable one ' day after date. Held, by a majority of the court, that the statute of limitations commenced to operate from the 6th of January, 1832 ; and that four years from that period, the bar of the statute was complete, and that this suit not having been instituted within four years from the closing of the dealings between the plaintiffs and S. Ewart, the plaintiffs were barred from a recovery in this action, if the circumstances of the case would otherwise have admitted it. [O’Neall, J. dissenting.]</p> <p>Note. — It will be observed, that in reporting the eases of the Columbia December Term of the Court of Appeals, none of the arguments of counsel have been given. It would be perhaps sufficient here to remark, on that subject, that the present incumbent was not elected to the office of Reporter until the 14th of December, 1838, when all the cases of that term had been argued, and the opinions of the court, in all but two or three of them, delivered. The only mode in which any thing like a correct statement of the arguments of counsel in these cases could have been obtained, (if they could have been procured at all,) would have been through the politeness of the gentlemen of the bar, concerned in them, who might have retained, or would have been willing to prepare an abstract of their arguments, in the respective cases. To have waited for such information, would have involved too great delay in the publication of the decisions; which, under the present law, are required to be published within such a period of time from their delivery, as to leave nothing to spare. The only case in which any abstract of the argument of counsel has been furnished to the reporter, in relation to the preceding cases, is that of Mr. Gregg, in the case of Boyce & Henry v. D. & J. Ewart. The politeness of Mr. Gregg put in the- possession of the reporter a full statement of his very able argument in that case: and it is with sincere regret that the reporter found it impossible to publish it, where it properly belongs, in the report of the case itself. It will be remarked, that the case itself, embracing the very elaborate opinion of the majority of the court, and the dissenting opinions of Justices O’Neall and Evans, makes in all nearly twenty pages ; which is as much space, judging from the materials to make up the volume of Reports, as could well be assigned to it. The argument of Mr. Gregg, if published entire, would have added at least twenty pages more to the case; and the reporter found it impossible to do justice to it by any abridgment of it, which he thought practicable. The reporter regrets his inability to give the argument of Mr. Gregg, tin the case referred to; not only because he feels confident that it would have been read with great satisfaction, but because Mr. Gregg, in furnishing the reporter with a statement of his argument, drawn up by himself, has pursued the only mode in which the arguments of counsel ever can be 'given by the reporter, which will render them really valuable, and creditable to the profession. • R.</p>

<p>Upon an indictment against the defendant, the proprietor of a licensed grocery No. 3, in the City of Charleston, for selling liquor to a slave — the proof was, that the liquor was sold hy the clerk of the defendant, in his absence : and as far as it appeared by any express evidence, without his authority. The jury found the defendant guilty. Under the peculiar circumstances of the case — the clerk having been already punished for the same act — the court granted a new trial.</p>

<p>Before O’NEALL, /., at Beaufort, Spring Term, 1838.</p> <p>The report of his honor, the presiding judge, is as follows:— “ The defendant was indicted under the act of 1834, as a vendor of spirituous liquors, in four counts; 1st, for selling ; 2d, exchanging ; 3d, giving; and 4th, delivering spirits to a slave. The proof was, that the defendant was the owner of a store in Graham-ville, in ¡¡which he sold spirits. To the inclosure, in which was situated the store of the defendant, the house of a lady, and a tailor’s shop, there was a small back gate. The defendant being suspected of trading with negroes, a negro man named Charles, belonging to Captain„ Huguenin, was furnished with twenty-five cents and a bottle, and directed to go to the store of the defendant and buy some spirits. He was accompanied by Mr. Huguenin and Mr. Dupont: the latter saw him enter the inclosure at the small gate spoken of: he returned in a short time, with a pint of rum in the bottle, and the change : Messrs. Huguenin and Dupont then went to the defendant’s store, and met him at the door: Mi’. Huguenin, holding the bottle in his hand, said “ here is a bottle of spirits which you sold to my father’s man.” The defendant replied “ I did not sell the bottle.” Huguenin said “ no: but you sold the liquor.” To this defendant said nothing : Huguenin then told him, he had a day or two before sold his hoüse-servant some spirits: the defendant said he did not know that the negro to whom he had previously sold the spirits, was his, (Mr. Huguenin’s). — Mr. Stephens, a witness for the defendant, said that he and his co-partner occupied the tailor’s shop, in the rear of the store: that he had been all the evening in the store: that negroes had been there: that he did not see Captain Huguenin’s man, Charles, there: that no spirits had been sold that night: that he was present when Huguenin and Dupont came : that the defendant, when charged by Huguenin with selling spirits to Charles, denied it. — The jury were instructed, that the 5th section of the act of 1834, from its words, applied to cases under the act of 1817; and that therefore the rule of evidence established by it could not apply to this case. It is strange, however, that the defendant should except to a part of the charge, (as this manifestly was,) in his favor. I thought that, notwithstanding the act of 1834, as to vendors, was a repeal of the penal provisions of the act of 1817, that yet the rule of evidence established by that act, (which requires the defendant to produce and prove the written permission of the owner or employer, to deal, trade, or traffic,) remained in force, and applied to this case. I said to the jury, in the course of my observations on the evidence, that when a man was charged with a crime and did not deny it, we should be usually led to conclude that he was guilty; on the principle of the old adage,' “ silence gives consent.” — The evidence was fairly summed up, and submitted to the jury, who very properly convicted the defendant.”</p> <p>The defendant now moves for a new trial on the following grounds: 1. That his honor, the presiding judge, charged, that the 5th section of the act of 1834, entitled “ An act to amend the laws in relation to slaves and free persons of color,” making the evidence of a negro being seen to go into a store without an article, and to come out with an article, sufficient to convict a defendant of trading, &c. did not apply to the offence for which the defendant was indicted in this case. 2. That his honor charged, that the clause in the act of 1817, as to the evidence of a ticket, &c. did apply to this case. 3. That his honor charged, that generally in law, when one is charged with having committed an offence, and he fails to deny it, the old saying of “ silence gives consent,” would apply. 4. That penal statutes are to be construed strictly, and that the act of 1834 makes it sufficient evidence to convict, that a slave be seen entering “ a shop, store, or house,” used for trading, without an article, and returning with it; but that the evidence in this case was only that the slave was seen entering a “ yard,” and the witnesses expressly testified, that they did not see him enter either shop, store, or house, yet his honor charged the jury that the evidence was sufficient, under that act, to convict the defendant. 5. That the verdict is contrary to law and the evidence.</p>

<p>Under our acts of 1721, (P. L. 116,) and 1785, (P. L. 379,) an- execution issuing out of the Court of Common Pleas of any district, creates a lien upon the personal property of the defendant, throughout the state, from the time of its lodgment in the sheriff’s office; and is not confined to property in.the district in which the execution is lodged. — [S.P. Woodward y. Hill, 3 M’Cord. Rep. 241.]</p>

<p>This case came up on an- appeal from the City Court. It was tried before his honor, the recorder, (Jacob Axson, Esq.) at April term, 1838. The report of the recorder is as follows: “ This was an indictment against the defendant, under the act of 1836, for harboring an articled seaman, F. C. Lenderman. This was a second trial of this case, and all the evidence reported to the court on the first trial was by consent, received in this. That testimony was- in substance as follows: “ Lewis Trappman, sworn — testified that the articles produced to him are the shipping articles of the Bremen barque Elizabeth: they were deposited as such with him in his official capacity as Consul of Bremen: they are certified as having been executed in Bremen: don’t know the signatures: knows nothing of the paper, but that it came out with that ship, and was deposited in his office: knows the captain personally: don’t know the sailors: the names of Lenderman and Stenkin are there. [Mr. Thompson objected to the receiving the articles in evidence, not having been sufficiently proved. I overruled the objection, and permitted the articles to go to the jury.] C. P. L. Westendorff, sworn — gave the following translation of the parts material to the case : 1st article — “ to go from Bremen to Baltimore, and from Baltimore back again to this place, (Bremen) or any other place where our destiny may be, or the further voyages may go.” Article 5th, part 1st, — the seamen bind themselves that “ they will not leave the ship out of the country, (from home) nor demand our discharge nor our wages that have not been received from a foreign tribunal.”— John Meyer, sworn — testified that on 29th March last, he was at the theatre: that Edward Wood, the constable, and the captain of the Elizabeth called on him, to assist in looking for his seamen: witness asked if they had a warrant: they said yes: they together went to Cordes’ (defendant’s) house in King-street: witness got upon the gate: staid there some time: heard different voices in the house: called to the captain, and told him he believed his seamen were there: came down and knocked at the door: some time before the door was open : the door was opened by Mrs. Cordes : believes it to be her: told her what they came for: she said they had no business there : he said he had a warrant for two sailors, naming them, to wit, Lenderman and Stenkin— the captain named them to Mrs. Cordes. Cordes, the defendant, came down stairs and asked what was the matter: told him they came to search for the seamen, naming them: he (Cordes) replied, if he had not heard two days previous that the warrant was out for them, they would have found them there, but he had taken damned good care that they should not get them: concluded to search, but they could not find them: the captain repeated the names of the seamen several times in the presence of Cordes.— On his cross-examination, was asked for the warrant under which he acted, which was produced. He said an action was brought against him for trespass for entering Cordes’ house : he (witness) advised this prosecution against Cordes: did so that very night, before he heard of any action to be brought against him. He says Cordes keeps boarders, can’t say they are sailors: have that appearance: Cordes is a baker by trade. Upon being asked if he knew any thing against defendant’s character, he said that Mr. Smith, late attorney general, did not -like him; he prosecuted him for beating his goat. Witness did not ask Cordes if he had concealed these persons; the captain did, to which Cordes made the reply above stated, that he had taken care they should' not find them. Does not know that Lenderman or Stenkin belonged to the Elizabeth, or deserted from her ; knows nothing about them. He said Cordes was much irritated; abused them very much, until he threatened to put him in the guard house if he did not desist. Witness himself was a little irritated at last. Defendant would not let them read the warrant to him. Cordes spoke alternately in English and Dutch; he was not in a very violent passion when he said he had taken damned good care' they should not find them. Cordes admitted that he had heard- the seamen had run away. In reply, he said Cordes lives in King-street, in the corporate limits.- Cordes spoke in Dutch when he first came down stairs. The captain mentioned the names of all the men three or four times: Cordes admitted that he had heard these' men had run away. — Defence. Albert C. Curtis, sworn — testified he lives in Cordes’ house: hires a shop in front, and boards with him: knows Lenderman: has seen him at Cordes’ house. Lenderman was an acquaintance of Cordes’ in the old country: were neighbors there: came to Cordes to bring accounts from his family: came always openly, never secretly: never knew of any seamen secreted in Cordes’ house by day or by night. Recollects the night Meyer and the captain came to Cordes’: was present the greater part of the time they were there : did not hear Cordes admit that any seamen of the Elizabeth were harbored in his house. The constable asked Mr. Cordes if any sailors were in his house : he said not: has seen several seamen there, but does not know if they belonged to the Elizabeth: they came generally about 7 o’clock, and went away about 10: they came to see him: they were countrymen: he heard that the seamen of the Elizabeth had run away: never saw Lenderman in the house after that. — On his cross-examination, he said he is a cousin of Cordes, resides there free of expense, but sometimes assists him in his business. Witness knew that Lenderman belonged to the Elizabeth: was not present when Cordes came down stairs : the conversation with Mrs. Cordes was in German: saw Lenderman at Cordes’ four or five times: did. not see him there the day the constable came there : it was four or five days before that: never saw Lender-man at Cordes’ after he heard of his being a runaway, until the vessel was gone : saw him there frequently afterwards : never saw Lenderman there in the mornings, except on Sundays, and then he came at daylight: when he saw him there early in the morning, it was in the room of Cordes, down stairs, his wife being there with them: never saw Lenderman there after 10 o’clock at night: never heard Cordes say that he knew the seamen had deserted. — J. C. Blum, sworn — testified he knows defendant: has been dealing with him for five years : he is a baker: he is a very correct, honest man: a man of irreproachable character.” In addition, F. C. Lenderman, the seaman said to have been harbored, was adduced on the part of the state. He proved his signature to the articles: on his cross-examination, said he had been at Cordes’ house: was never there secretly: never was concealed by Cordes: never told Cordes he had run away from the vessel: never was concealed in any out-house or elsewhere. In reply, said can’t say how often he was at Cordes’: many times when the vessel was at the wharf, before he ran away: knows nothing about the constable going there : heard when he came from the country, that there was a warrant against' him: the very day he ran away, he went into the country: when the vessel was gone, came to town, and boarded at Cordes’: never went to Cordes’ after he quit the vessel and before he went into the country: went into the country immediately: heard in a shop on the neck that the vessel was gone. In reply to a question put by Mr. Thompson, he said Cordes never encouraged him to quit the vessel, or concealed him in any way. Here the testimony closed. I charged the jury, that in order to convict the defendant, it must appear that Lenderman was an articled seaman; ha'd deserted, and had been harbored by the defendant. I charged that the articles were the contract between the captain and the mariner: if violated by the mariner he was liable to be punished: if by the captain the mariner was absolved from all obligations under them.. That coming to Charleston was not authorised by the terms of the articles, and could not be justified under the general terms, unless it was proved that it was rendered necessary by stress of weather, or other necessity, or that it was usual or indispensable to the stipulated voyage. My opinion was, and I so expressed it to the jury, that coming to Charleston was a violation of the articles, which entitled Lenderman to his discharge, and that the defendant was entitled to an acquittal. The jury found the defendant guilty, and he now moves this Court for a new trial on the following grounds. 1. Because it is submitted, his honor, the Recorder, correctly charged the jury, that Lenderman, the sailor alleged to have been harbored, was not legally bound by his articles to the barque Elizabeth, and consequently the legal offence charged in the indictment could not have been completed, and the verdict'in this respect was against law. 2. Because independent of the fact that no contract was proved to exist, binding the seaman to the barque Elizabeth in Charleston, as an articled seaman at the time of the alleged harboring, there was no evidence to prove the harboring; but on the contrary, the witness for the prosecution (the man alleged to have been harbored) expressly swore he was neither harbored nor concealed by the defendant, and the defendant submits that the verdict in this respect was palpably against evidence. 3. Because it is submitted the verdict was against the settled law and the plain evidence in the case.</p>

<p>Before EARLE, J., at Charleston, May Term, 1838.</p> <p>This case came up on a motion for a prohibition made before his honor, Judge Earle, whose report of the case is as follows: — ■ “This was a suggestion for a prohibition to restrain the respondents from collecting certain fines which they had imposed on the relator, for alleged violations of the by-laws and regulations of the Town Council. The offences consisted in cutting down cedar trees for posts, at a place called the Myrtles, on Sullivan’s Island; and he was charged in the written' specification made out at the trial, “with having cut down a cedar tree at various times, and continued so to do from time to time, until he committed one hundred violations of the ordinance, by cutting down one hundred cedar trees.” The relator appeared by counsel before the tribunal prescribed by the charter for the trial of such offences ; and the trial proceeded. The relator was convicted on evidence, of having violated the ordinance referred to, forty different times, and for each offence was fined five dollars; and an execution was awai’ded, directing the marshal to collect each fine from the relator: and the question seemed to be on the jurisdiction of the Council to hear and determine this prosecution. The ordinance, as I construe it, provides a penalty of five dollars for each tree cut down; each constitutes a separate offence: and the jurisdiction is not ousted because the defendant cut so many as to make a large aggregate of penalties. Nor did it seem to me to be irregular, or to deprive them of jurisdiction, to include them in the same proceeding or prosecution. The insufficiency of the specification on which the trial was had, did not appear to be a ground for prohibition. And the motion for the writ was refused.”</p> <p>The relator appealed from the decision of the Court below, and now moved to have the same reversed and that a prohibition issue, on the ground, That the -facts stated by the relator in his suggestion were such as to entitle him to a writ of prohibition, and that the demurrer admitted those facts.</p>

<p>In an action of assumpsit, the declaration counted upon a joint contract by the defendants, to carry 14 bales of cotton for freight from Hamburg to Charleston, in the steamboat Augusta, of which the defendant Magrath was owner, .and the other defendant Brooks, master; and alleged a loss of the cotton by negligence. The evidence of the contract was a bill of lading for the cotton shipped on board the Augusta, signed by the defendant Brooks, the master only. Held that the contract was several and not joint, and that the defendants were improperly joined. New trial ordered and that at the hearing of the case below, the plaintiffs would be obliged be nonsuited.</p> <p>he master of a vessel as well as the owner, is liable to the merchant, or shipper of goods, for damages, in case of injury to the goods or their loss. But their liability is several and distinct. The master is liable precisely to the same extent and in the same form of action, as the owner; but he is liable in a different character and on a different ground. Where he has no property in the vessel and has only the conduct and management, he is the confidential servant or agent of the. owners. They are bound by his contracts, by reason of their employment of the ship and of the profit which they derive from it, by the receipt of the freight money. The master is also liable on his own contract for the transportation of the goods, and by virtue of his taking charge of them for that purpose. The liability of the owners is implied by law, from the nature of the employment, on the ground of public policy. The liability of the master seems rather to be by express undertaking, and although he is not owner and receives no part of the freight, yet, on the same ground of public policy and in favor of commerce,’he is made personally responsible on his undertaking, even where the owners are known, which is thus far a departure from the general law of principal and agent.</p> <p>In an action on the case against several joint defendants, the plaintiff may, it seems, recover, on proof of a sufficient cause of action against one, and the joinder of too many defendants furnishes no objection to such action, or a recovery. But the rule is otherwise in assumpsit, and is perhaps questionable when applied to an action on the case ex quasi contractu. The case of Govett v. Radndige et al., 3 East. 63, and the subsequent cases on this subject commented on by the court. The result of the later authorities would seem to shew, that in actions on the case ex quasi contractu, as well as of assumpsit, against several defendants, the plaintiff must shew a joint liability of all, or he will fail.</p> <p>In this action, whether the declaration be considered as strictly a declaration in assumpsit, or as a declaration in case ex quasi contractu, the general and well settled rules of pleading and evidence will apply. The plaintiff must sue all the joint contracting parties, or the defendants may plead in abatement. He must sue in the same action only the joint contracting parties, or he will fail at the trial.</p> <p>Although the master and owner of a vessel are both liable to the merchant, as carriers, for the loss of goods, yet they are liable severally, and a joint action cannot be maintained against them.</p> <p>Note. — In actions ex contractu against several, it must appear on the face of the pleadings, that their contract was joint, and that fact must also he proved on the trial; and if too many persons he made defendants, and the objection appear on the pleadings, either of the defendants may demur, move in arrest of judgment, or support a writ of error; and if the objection do not appear upon the pleadings, the plaintiff may he nonsuited upon the trial if Tie fail in‘proving a joint contract: for though in actions for torts one defendant may be found guilty and the other acquitted, yet in actions for the breach of a contract, whether it be framed in assumpsit, covenant, debt, or case, a verdict or judgment cannot in general be given in a joint action against one defendant without the other. See Chitty, Plea: 1 vol. p. 31. R.</p>

<p>Colin M’Rae (the defendant) and one George C. Brown, were merchants trading under the name of Colin M’Rae & Co. Brown advanced money to the firm and took their note payable to himself or order. Brown being indebted to the plaintiff (Marvin,) was arrested on a bail writ at his suit, and delivered the note to Cohen, the attorney of Marvin, and was thereupon discharged from the arrest. The note was not indorsed. Shortly afterwards and before the note was due, Cohen gave notice to M’Rae of the transfer of the note and of the circumstances under which he had received it. M’Rae replied, “ that in the settlement of the concern of M’Rae & Co., he would retain money enough to pay the note.” Cohen saw M’Rae frequently afterwards and he repeatedly made the same promise. On the 17th of March, 1835, after the death of Brown, Cohen again applied to M’Rae for the money, and was informed by M’Rae that he had settled with Brown; that he told Brown, he (M’Rae) must retain money to pay this note; that Brown replied, never mind, allow me to take the money and I will pay the note,” and that he permitted Brown to do-so. Held, that Marvin was entitled in an action for money had and received, against M’Rae as survivor, to recover the amount of the note. The non-suit ordered by the court below set aside.</p> <p>Though a verbal transfer of a note payable to order, or its delivery to another by the payee without indorsement, conveys no right of action upon the note, against the maker, yet in all other respects the holder is as much the owner of the note, as if it had been indorsed, and he may sustain an action in the name of the payee and recover the money for his own use.</p> <p>The cases on this subject go upon this principle, that by the transfer, the holder is the agent of the payee to receive the money, and that this agency is coupled with a trust which is irrevocable.</p> <p>The general principle in relation to the action of assumpsit for money had and received, is this, that if One has money in his hands which belongs to another person, that person may sue the receiver in this form of action and recover the amount from him.</p> <p>Where there is a special contract still open and something remains to be done beside the payment of the money, the action must be on the special contract; but where all has been done on the part of the plaintiff, and he has nothing to do but to prove the payment of the money he may sue on the general count.</p> <p>Note. — To prevent something like a want of clearness in the application of the principle laid down in the case of Gressell v. Robinson, 3 Bing. N. C. 15, (33, Eng. Com. Law Rep. 15,) to the case before the court, it may be proper to remark that upon looking into that case (the case of Gressell v. Robinson,) it will he seen to have been an action to recover money alleged to have been paid by the plaintiffs to the use of the defendant, under the common count for money paid, and not as might be supposed for money had and received, by the defendant to the use of the plaintiffs. In relation however to the question whether the common count may he sufficient, or whether the plaintiff must declare specially, the principle may he and probably is the same, whether applied to the case of money paid to the defendant’s use, or to money had and received by the defendant to the use of the plaintiff. In Grissell v. Robinson, the plaintiffs had paid their attorney, Taylor, for preparing a lease agreed upon between the plaintiffs (the lessors,) and the defendant Robinson (the lessee). The evidence proved thatit was the custom for the landlord’s attorney to draw the lease, hut that it was to be ultimately paid for by the lessee. The plaintiffs having paid Taylor for drawing the lease, brought then action against Robinson to recover the amount, as for so much money paid by them to the defendant’s use. In reference to this state of facts and the nature of the action brought, C. J. Tindal remarks, “ I have always understood the distinction as to the obligation to sue on the special contract, rather than on the general count, to be, that where at the time of the payment any thing remains to be done under the contract, of which the plaintiff must show performance, the action should be on the special contract; but where all has been done and the plaintiff has only to prove the payment of the money, then he may sue on the general count; and in order to recover on that count, the plaintiff must show an express or implied assent of the defendant to the payment of the money, or that it was paid upon compulsion for the use of the defendant. Here the money was paid by the plaintiffs to Taylor, their attorney, who had prepared the lease of the premises demised to the defendant. The evidence shows that it is the custom for the landlord’s attorney to draw the lease and that it is paid for by the lessee. That being the position of the parties, in what way could a special contract be stated, which in concise expression would not show the money to have been paid to the defendants use!” Mr. Justice Gaselee in the same case remarks, “That upon all contracts for work to be done in a particular way, or at particular times, or for goods sold, to be paid for or delivered at particular times, after the work has been done and the goods delivered, the plaintiff may resort to the general count for work and labor, or for goods sold and delivered.” In relation to the common count for money had and received, see the following cases in our own courts: Huckson v. Avant, 2 Brev. Rep. 264; Fowler v. Williams, Ib. 304, 1 M. Con. Rep. 393, 2 Tred. Con. Rep. 750, 1 N. & M'Cord. Rep. 45, 2 N. & M'Cord. Rep. 65, and the Other cases collected in “ Rices Digest,” 2 vol. 181. See also the cases of Parkerson v. Dinkins, and Clark & Wife v. King, decided at this term, (post.) R.</p>

<p>Mrs. G., a feme sole, employed'one King as an agent to retain counsel for the prosecution of her claims to some lands in Georgia, and for the purpose of enabling him to do so, gave her note to the agent payable to himself or order. King afterwards sold the note to one Lawton, and Mrs. G. intermarried with one Clark, (her co-plaintiff in this action,) who demanded the money from the defendant. Held, 1. That the defendant by selling the note to Lawton had turned it into money, and that as soon as he did this, it became money in his hands belonging to Mrs. C., to be applied to her use in carrying on her suit in Georgia. 2. That when her husband C. revoked the power originally conferred, and demanded the money from defendant, he was bound to pay it or account for the application of it. 3. That the plaintiffs were entitled to recover the amount on a count for money had and received. 4. That they were entitled to recover without proof on their part that the defendant had not employed counsel in pursuance of the agreement under which the note was given. Nonsuit ordered below, set aside.</p>

<p>This case was tried in the City Court before his Honor the Recorder, at April Term, 1838.</p> <p>The following is the report of his Honor the Recorder: “ This was an action of assumpsit to recover the difference on a resale of an unsound negro on the implied warranty. The certificate of Dr. Horlbeck was received in evidence by consent. James White sworn: said he called with Parkerson on Dinkins: he tendered the negro back and notified him that the negro was unsound. Parker-son paid to Dinkins $520 for the negro in his presence. Witness was the agent or friend of Parkerson in purchasing the negro. — ■ When Dinkins was informed that the negro was unsound, he admitted that he had not remitted the money to his principal'; and said that he would retain it until Bulger his principal should execute a bill of sale with a warranty. Parkerson notified Dinkins that he looked to him alone and not to hj.s principal. Parkerson knew nothing of Bulger in the business; but Dinkins only. Witness considered the amount paid a sound price: would not have given more. On his -cross examination, he said that Dinkins stated he was only agent, and knew nothing of the negro; said he would retain the money until Parkerson was satisfied. The defect in the negro was discovered in a few days. He said Bulger his principal was to come to town in a week or two: he did come. ' Witness knew he was in town: boarded at the same house with him. Parkerson also knew he was in town. Before the purchase was effected, the negro was examined twice; thinks Parkerson took the negro home on one occasion before the purchase. Witness regarded Dinkins as the agent of Bulger. Dinkins said his instructions were to sell for cash. The sale was in July or Aug., 1837. Thos. N. Gadsden proves the account sales: On being asked whether negroes sold as unsound, did not on that account sell very low, he said some persons will run the risk and give a large price, while others will give very little. The prices of negroes, he said, vary very little during the summer. Dr. Horlbeck sworn: said he was requested by Parkerson to examine the negro and did so; she had a limp in her gait, produced from an enlargement of the tendons of her ankle. She was as much cured as she could be ; she might have temporary relief; would not have purchased her as a sound negro ; the limp could be hardly perceived in her coming towards you. She said she was unable to attend to her duties about house. She was deformed; clearly visible to any one who would examine ; very bow-legged. The swelling appeared to be the enlargement of the bone; a person conversant with the subject could have perceived it. Dr. A. G. Howard examined the negro and thought it a case of rheumatism: stated at the time to Mr. Parkerson that she could be cured: he regarded the case as curable: she certainly was not healthy. Thickening is one of the terminations of rheumatism. The swelling was not very large: it was the thickening of the integuments ; and not very perceptible. Examined with Dr. Horlbeck, and differed with him. She said she had runaway, and took a cold, and that the swelling arose from that. He said if he wanted a negro for a plantation, he would not have made $50 difference in her value for this defect; but would not have such a negro about.him at all. Says it was chronic rheumatism; it appeared she had not been treated for it at all. A person not in the habit of observing such matters, would not have perceived the defect; she would have required medical treatment; thinks that Bulger, at the time she was examined, offered Parkerson to have her cured. James White recalled: Said before the purchase was closed, he observed' to Dinkins that the negro had an awkward gait; his impression was that it was the gait of a country negro. Dinkins said, there is the negro, examine her, I know nothing of her. Here the testimony closed. I charged the jury that if they believed, from the evidence, that a sound price had been paid, and that the negro was so unsound at the time of sale, as materially to affect her value, and that the plaintiff did not buy with a knowledge of the fact, he was entitled to recover. I charged that, though the defendant sold as agent and disclosed his principal at the time, yet as he admitted he had the funds in his hands and promised to retain them until the plaintiff was satisfied, he was liable, if the plaintiff in.other respects was entitled to recover. I omitted to state that the defendant’s attornies, at the close of the evidence on the part of plaintiff, moved for a nonsuit on the ground stated in his notice of appeal, which I refused.”</p> <p>The jury found for the plaintiff.</p> <p>The defendant now moved to set aside the verdict, and renewed his motion for a nonsuit on the following ground: 1. That the defendant sold as an agent only, and having disclosed his principal at the time of the sale, he cannot be made liable upon the implied warranty of soundness. And failing in the motion for a nonsuit, moves for a new trial on the same ground and also on the following grounds: 1. That the implied warranty was rebutted by the proof which came from the plaintiff’s own witness, that the plaintiffhad notice of the supposed defect before the purchase, and that the defendant refused to warrant; and that his'Honor ought, therefore, to have charged, that the plaintiff having purchased without warranty, was bound by his contract. 2. That even if there were a warranty of soundness, there .was no proof of such unsoundness as amounted to a breach of the warranty; and particularly no proof of unsoundness so materially affecting the value of the negro, as to entitle the plaintiff to rescind the contract. 3. That the verdict was, in all respects, contrary to law and the evidence.</p>

<p>Before BUTLER, J., at Charleston, January Term, 1839.</p> <p>The report of his Honor, the presiding' Judge, is as follows:— “ This was an action of assumpsit on a promissory note, against the defendant as indorser. The maker of the note was one Horatio Leavett and indorsed by defendant. It was made payable sixty days after date for $800; the sixty days expired on the 23d of May, 1837, so that the last day of grace was on the 25th; on the 23rd, the maker Leavett, and his whole family, were drowned near Sullivan’s Island, and were buried on the 24th or 25th. The defendant, who was the indorser, was intimate with Leavett and attended his funeral. A few days afterwards, perhaps on the 25th, Alexander Robertson, a notary public, gave notice to the indorser that the payee would hold him liable. The defendant said on a subsequent occasion, that he held himself liable to pay the note, supposing that Leavett’s estate would prove solvent — the general opinion being at the time of his death that he was a rich man. It turned out, however, that his estate could not pay his debts: and the defendant then contended that he was not legally liable as indorser to pay the note, no demand having been made on the maker’s representatives. The plaintiff proved that Leavett left no will, or that none was ever found. On this state of facts, the defendant moved for a nonsuit at the trial. I overruled his motion and suffered the plaintiff to take a verdict. On the 25th, when the notice was given to the indorser, a demand would have availed nothing. At that time there could be no administration, and there was not an inhabitant left in the deceased’s house. It would have been worse than a mockery to have made a demand under such circumstances. It would have been to resort to the artificial rules of human laws to obviate the decrees of Providence. The reason of a demand ceasing, the necessity for it ceased also.”</p> <p>The defendant renewed his motion, for a nonsuit, or new trial, on the following grounds: 1. Because the plaintiff did not use due diligence to recover payment of the note from the maker. 2. Because the circumstances respecting the maker’s death and that of his family, do not, and cannot legally, excuse the plaintiff’s failure to demand payment of the note at the place where he resided while living, or from not having searched the offices to ascertain who were the maker’s representatives, previous to notice being served on the indorser. 3. Because the notice sent to the defendant was insufficient and not a legal notice. 4. Because the. evidence offered ta establish the fact, that there was no will left by the maker of the note, was incompetent and ought to have been rejected.</p>

<p>Action of trover for fourteen slaves. One Broad, by his last will and testament, bequeathed certain slaves, with their future issue and increase, to John R. Dangerfield, “ in trust nevertheless, and for this purpose only, that the said D., his executors and assigns, should permit and suffer the said slaves, &e., to apply and appropriate their time and labor to their.own proper use and behoof without the intermeddling or interference of any person or persons whomsoever, further than might be necessary for their protection under the laws of this State, &c. The testator in his said will further says, “ Then I give and bequeath all the rest, residue and remainder, of my estate, both real and personal, to my said friend D. and his heirs and, assigns forever; upon trust, nevertheless, and for this purpose only, that the said slaves above mentioned, &c., be permitted and suffered to use and enjoy the said estate, whether real or personal, for ever, without the interference or meddling of the said D., or any person or persons whomsoever, further than may be necessary to secure to the said slaves the full use and enjoyment of the estate above mentioned.”</p> <p>B. died, and the slaves above mentioned came into and continued in the possession of Dangerfield, when the plaintiff through and with her agent S., undertook to seize the slaves, as being liable to seizure under the act of 1800 — and were about to carry them off. The defendant, D., under the advice and with the countenance, and perhaps the co-operation of the other defendant, F., resisted the seizure of the slaves, and the plaintiff desisted and went off without them; upon which she brought this action of trover.</p> <p>On the trial below, the Judge gave the following instructions to the jury : 1. “ That the effect of Broad’s will was clearly to vest in his executor, Dangerfield, the legal title to his estate. That at the testator’s death, the executor had a right to take possession of the property and use it for the ■ purpose of paying the debts of the estate, and then to do with it as he pleased ; whether he would have acted in good faith in appropriating it to himself, instead of obeying strictly the directions of the will, was a question upon which a court of law would not undertake to decide. 2. That if the executor gave up the practical dominion and control of the negroes, and left them to their own government, they were liable to seizure under the act of 1800. Assuming that the negroes were liable to seizure, upon the question whether the plaintiff acquired a legal title to the negroes by seizure, the Judge stated to the jury that the question presented itself in three points of view: 1. Did the plaintiff have an actual tangible possession of the negroes 1 2. Did she so far subjugate them to her power and control, as to make them virtually her prisoners ? 3. Had the negroes voluntarily surrendered themselves as captives to be taken to Charleston, under S’s. proclamation that they must go ? The jury were instructed if they should come to an affirmative conclusion on either of these propositions, to find for the plaintiff. The jury found for the defendants, and a motion for a new trial was refused.</p>

<p>The plaintiffs delivered two hundred and fifty bales of cotton to one Hawkins, as a common carrier, to be delivered by him to Boyce & Co., the consignees. The defendant, as agent of Hawkins, delivered two hundred and forty-three bales; but detained the remaining seven for freight, and refused to deliver them. Plaintiffs brought an action of trover against the defendant for the seven bales, and on the trial offered to prove that the cotton shipped was damaged, by the default of the carrier, to an amount exceeding the value of the freight. The judge below overruled the evidence, and nonsuited the plaintiffs. Nonsuit set aside, and new trial awarded. [Eaeke and Richaedson, Justices, dissenting.]</p> <p>Under the English law of set-off, in an action by the carrier for freight, where goods have been delivered (though in a damaged condition,) and accepted, the defendant cannot set up a defence by way of discount or set-off, that the goods were damaged; for their statutes of set-off only apply to liquidated demands, and not to uncertain or unascertained damages. The freighter, in such a case, is put to his cross action.</p> <p>Yet, under the discount act of this state, (P. L. 246,) which uses the terms “any accompt, reckoning, demand, cause or thing against the plaintiff,” the damages sustained by goods in their transportation may, in all cases, whether the freight be agreed upon by the parties or not, be set up as 'a defence to the action by the carrier for his freight; and if such damages are equal to, or exceed the freight, the defendant must recover: and in this point of view, the defence becomes essentially a cross action.</p> <p>Under the law of this state, the carrier’s right of lien for freight is only coextensive with his legal right of action; if his claim to recover in the particular case could not be gainsayed, then it would follow that his lien could not be disputed. But as the owner may show in avoidance of his claim to recover freight, that the goods were injured in the transportation, it follows that his lien must be liable to be defeated in the same way.</p> <p>“ Where there is no debt, there is no lienand if it can be shown that the carrier has injured the goods of the shippers to a greater amount than his whole freight, it cannot be pretended that they owe him any thing: and hence, the owner may maintain trover against the carrier, for the goods which he detains, on account of his supposed claim to freight, and refuses to deliver.</p> <p>To maintain trover, it is only necessary for the plaintiff to show a right of property and of possession in himself, and a conversion by the defendant.</p> <p>Eakle and Richaedsoh, Justices, (dissenting,) were of opinion that the carrier’s lien for freight entitles him to retain possession of the goods until his freight be paid: that he has a special property in the goods, which can only be divested by payment of the freight or tender of it, and that being in actual possession he is not liable in trover, however else he may be liable, or to whatever extent, for any damages which the goods may have sustained. That according to all the English cases, where the goods are delivered and accepted, in whole or in part (though damaged), the freighter cannot set up the damages as a defence or by way of discount, to an action for the freight, but is put to his cross action. That although it might be admitted, that under the terms of our discount act, the freighter may set up the damages by way of defence or discount, to an action for the freight, yet that the defendant in this ease, by delivering the principal part of the goods to the consignees, which they had accepted, was entitled to his freight, and had a right to retain the balance until the freight was paid or tendered; and that trover would not lie against him.</p> <p>Note. — In relation to the principal questions involved in this case, in the discussion and determination of which the court were so seriously divided, it may not he amiss, and the reporter trusts it will not be considered presumptuous in him, to submit some additional references to authorities, and possibly some views which have occurred to him on the subject. It is clear according to the authorities in England, that in an action by the carrier against the shipper or consignee, for freight, where the goods have been delivered and accepted, the defendant cannot set up, , by way of defence or set-off to the plaintiff’s, action, the. damage which the goods may have sustained in their transportation, whether that damage be more or less than the freight, or precisely equal to it, and that the .freighter must bring his cross action. (See the cases referred to by his Honor, Judge Earle, in his dissenting opinion.) Such a defence is clearly not embraced under the English statutes of set-off. Is it admissible under ours 1 The terms of our discount law are very broad, and would seem, prima facie, so extensive as to embrace any demand or cause of action which the defendant may have against the plaintiff, of whatever character it may be. The material words are, “ that in all actioné whatever, brought for the recovery of any debt by any plaintiff, &c., it shall and may be lawful for the defendant, if he have any accompt, reckoning, demand, cause, matter, or thing, against the plaintiff, to give the same in evidence by way of discount, &c.” It further provides “ that judgment shall be entered up for the plaintifffor the balance only, and that if the plaintiff be found to be indebted to the defendant, judgment shall be entered for the defendant, &c., provided the defendant intending to discount any sum or sums of money, accompts, reckonings, demands, matters, or things, alleged to be due and owing to him from the plaintiff, do make a copy and deliver the same twelve days before the trial.” Do not the words indebted to the defendant, balance, sum or sums of money, alleged to be due and owingto him from the plaintiff, evidently apply to monies due to the defendant upon contract, and limit the generality of the other terms employed ? Would il be a forced construction to say, taking the whole act together, not only that it applies merely to monies due to the defendant upon contract, but that it is further limited to cases where the amount is certain and liquidated by the contract, and was never intended to apply to a case of uncertain or unliquidated damages, although arising upon contract? What, otherwise, are the meaning of the terms indebted, alleged to be due and owing, from the plaintiff? The constructions given to our act by some of the earlier cases, would seem to conflict with each other, and there is perhaps no case in which the true construction is definitely settled. In Cook v. Rhine, 1 Bay. Rep. 16, Heyward and Grimke, Justices, contrary to the opinion of Bay, J., held that “ where damages accrue by non-performance of a contract for building a house within a certain time, the defendant might, under our discount law, give them in evidence against the plaintiff’s demand for work, labor and services performed in building the house.” The argument of counsel there was, on one side, that the discount law only extended to liquidated accounts and not to matters sounding in damages; and on the other, that the act extended to any cause, matter or thing, in the defendant’s own right, to be set off.</p> <p>If the principal case before the court, had been an action by the carrier against the shipper for freight, the analogy between it and the case of Cook v. Rhine, would be very marked, and as far as the construction of the discount law is involved, that case may be considered almost'identical. In Gibbes v. Mitchell, 2 Bay, Rep. 351, in which the true construction of the discount act came up again for consideration, the court, (consisting of Waties, Bay, Johnson, Trezvant and Brevard, say, “ that the discount law never meant that torts, trespasses or any unascertained damages, should be set off. That it contemplated debts, dues and demands,'of a pecuniary nature, or something springing out of a contract where there were mutual covenants, &c., and “ that the word balance due to the defendant, for which a judgment is directed by the act, if found by the jury, furnished further proof of the intention of the legislature, that money transactions only were alluded to in the act.”</p> <p>Although numerous cases involving the right of discount have occurred since the above, they have been principally cases of defence by way of discount to actions on bonds or notes given for the purchase money of property, where there has been a partial failure of consideration, or misrepresentation, or fraud in the sale, and the general construction of the statute upon the points discussed, remains, as far as the reported cases go, upon Cook v. Rhine and Gibbes v. Mitchell. But assuming either construction of the statute, and that in an action by the carrier for freight, in such a case as the above, the freighter might set up the damage done to the goods as a discount to the plaintiff’s action,-does it follow necessarily that the freighter under such circumstances can sustain an action of trover for the recovery of a part of the cargo detained by the carrier for freight, without paying or tendering the freight money to him ? In virtue of the delivery of the goods, the carrier acquires a special property in them and may maintain an action against any person who displaces that possession, or does any injury to them; and having once acquired the lawful possession of the goods for the purpose •of carriage, the carrier is not obliged to restore them to the owner, even if the carriage is dispensed with, unless upon being paid his due remuneration. Story. Com. on Bailments, p. 372. The carrier is also entitled to a lien on the goods for his hire, and is not compellable to deliver them until he receives it, unless he has entered into some special contract, by which it is waived. — Ibid, p. 373. The consignor or shipper is ordinarily bound to the carrier for the hire or freight of the goods ; but whenever the consignee engages to pay it, he also may become responsible. It is usual for hills of lading to state that the goods are to be delivered to the consignee or to his assigns, he or they paying freight; in which case, the consignee and his assigns, by accepting the goods, become, by implication, bound to pay the freight. Ibid, p. 373, 374.</p> <p>Now what was the contract in this case on the part of the carrier 1 It was to deliver the 250 bales of cotton to Boyce & Co. (the consignees,) at Charleston, they paying freight for the same at the rate of one dollar per hale. The agent of the carrier, (the defendant,) delivered 243 bales of the cotton to Boyce & Co. which were accepted by them, and detained the remaining seven bales under his right of lien for the freight. The contract then was to deliver to Boyce & Co. on their paying freight for the same; by accepting the 243 bales, as between the carrier and the consignees, would they not have been estopped from setting up any damage done to the cotton in its transportation, through the fault of the carrier, in bar of the carrier’s claim for freight"! But above all, could the shipper under this state of facts, claim the possession of the cotton by an action of trover ! It does not appear by the statement of the case, that there was a bill of lading, though it is perhaps fairly inferrible that there was one, and that the bill of lading came into the hands of-Boyce & Co. the consignees. In this'viewof the evidence, where was the right of property and of possession? In the plaintiffs, the consignors ? or in Boyce & Co. the consignees ? even waiving the right of the carrier to retain for freight. It is fair, however, to suppose that the question was agreed to be considered by the counsel in the case, as if the consignees were the plaintiffs in the action, or the present plaintiffs as having all the rights of the consignees. In any view of the evidence, it appears that the greater portion of the cotton had been delivered and accepted — and the question results, would an action of trover lie against the carrier, either in favor of the consignors or consignees, while the freight agreed to be paid was unpaid ! As to the consignors, standing upon their own rights merely, would not the production of the contract itself, between them and the carrier, show that they had no right to the possession, while the condition upon which the carrier was to deliver the goods to the consignees, to wit, the payment of freight at a stipulated price per bale, was unperformed ! and as to the right of the consignees to sustain trover, does not the same objection apply, strengthened by the fact that they had accepted the greater part of the cotton, and thereby had assented to the terms of the contract and impliedly agreed to pay the stipulated freight.</p> <p>But it is assumed that if the goods were damaged by the fault of the carrier, to an amount equal to, or more than the freight, no freight was due— and that there was consequently no lien, and that an action of trover would lie against the carrier to recover possession of the goods. Conceding, however, the fact of damage, does it follow that no freight was dice? All the authorities show that the freight is earned and payable when the goods are delivered; (although in a damaged condition, and that by the fault of the carrier.) In such a case, the shipper, in the exparte adjustment of the matter which he is supposed to make of the damages and freight, does not deny that freight is due, but on the contrary allows it, as a precedent charge, and if the damages were less than the freight, would be bound to tender it, and if more, would allow it, as so far reducing his claim for damages. Can it be said that a bond, or note, payable to the plaintiff, is not due, because the defendant has a counter claim against him to an equal or greater amount! even though it be one which he may clearly set up by way of discount!— Does not sound policy, as well as the symmetry of the law, require that the freighter should be put to his cross action for damages, rather than allowed to delay ór embarrass the prompt payment of freight, by counter claims for damages, or actions of trover for the goods ! There might be cases, it is true, where the right to discount the damages against the freight, would be important, as where the carriers were insolvent, or irresponsible, or out of the jurisdiction of the court; but as a general rule, would not that which requires the unconditional payment of the freight on delivery of the goods, and puts the freighter to his cross action for damages, be found most congenial to the interests of commerce, as well as most in harmony with the general principles of the law!</p> <p>The length of this note, (already extended much further than was interned,) and for which the reporter is perhaps bound to apologise, as throwing no new light on the subject discussed, forbids any further comment upon the important principles involved in this case. Without saying whether his own opinion is very decidedly made up or not, upon the points discussed, (which would be of little importance to mention, if it were,) the consequence of the principles bearing on the case, the well reasoned opinions, both of the majority and minority of the court, excited the interest and attention of the reporter and induced him to submit such suggestions and references as he thought might be acceptable to the profession. One thing is certain, however, that the principles recognised by a majority of the court, in this case, are now a part of the law of the land, and have received the highest legal sanction, of which (perhaps) they are capable in this State. - K.</p>

Before BUTLER, J., at Charleston, January Term, 1839. The report of his Honor, the presiding Judge, is as follows: — . “ This was a special action on the case, to make the defendant liable for cotton lost on board of his boat by fire. The testimony is in writing and can be referred to. One Howzer was the patroon of the boat, and took the cotton on board under the following circumstances.

<p>Before O’NEALL, /., at Charleston, Spring Term, 1837.</p> <p>Tins report of his honor, the presiding judge, is as follows:— “ This was an action of debt on bond. The defendant pleaded non est factum, on which issue was joined, plene administravit, but filed no account therewith, and two special pleas in bar: 1st, that due notice was given to creditors of the deceased to render in their demands; and 2d, a bill by the distributees against the defendant and such creditors as were known, and a decree of the court of equity, directing a payment over of the funds in his hands. The plea of plene administravit was ordered to be stricken out, for want of an account of the defendant’s administration. To the two special pleas there was a demurrer, which I sustained. As to the first, it is no answer to the plaintiff’s case. To say that the creditors were notified to bring in their demands, is not showing any cause why the plaintiff should not be paid. If connected with notice, there had been full administration by paying debts of inferior degree, then indeed the plaintiff could not have recovered; but to make this defence, the plea of plene administravit, with an account of the defendant’s administration, was the proper plea. The defendant’s second plea, if of any sort of avail, was a mere variation of plene administravit prater, and without the account of the defendant’s administration could not be noticed. As a plea of a recovery in equity, it could not bind this plaintiff, unless he had been party thereto, which it did not pretend. The plaintiff proved his case under the plea of non est factum, and had a verdict.”</p> <p>The defendant appealed, and now moves to reverse the judgment below, on the demurrer in this case, upon the ground, that the several pleas filed were sufficient in law to bar the recovery of the plaintiff, and judgment should have been rendered accordingly.</p>

<p>Action on the case for obstructing a right of way. In 1835, the plaintiff had recovered by verdict and judgment, a right of way in the general course of the private road claimed in this action. The complaint was, that the defendant had dug a ditch and thrown up a bank which obstructed the way. The recovery referred to did not describe he way, except by finding the “river road” for the plaintiff. One witness for the plaintiff deposed “ that the road had been for about thirty years, along the bluff of the river.— That after the recovery (spoken of), the witness, together with Chaplin and Adams, placed a line of stakes thirty feet from the river bank, (intended for the river side of the road,) and allowed eighteen or twenty feet outside the stakes for the road. They meant to lay out a sufficient way as the river successively washes the bluff and encroaches on the road. That there were two places where the old track ran outside the stakes, and there were spots where the bluff had encroached upon the old track; as it washes fast, they allowed some space for its washing. That it had not washed much since the stakes were put down. That since the stakes were put down a ditch had been dug and dam made, (no doubt) by the defendant. The ditch runs about eighteen feet from the bluff, and in one part (where there is a wash) about twelve feet only. This ditch cuts a small part of the old track off the road, but there the space is wide. The ditch runs sometimes within his line of stakes and at others out of it.”</p> <p>The defence set up was that after the recovery, the defendant allowed at least twenty feet from the bluff for the plaintiff’s way, and that he had cut the ditch to keep the road within that space. That if it had been diminished by the river, the plaintiff had to bear the loss, on the ground that a private road must be repaired by the owner. One John Edwards, on the part of the defendant, deposed, “ that after James Fripp, Chaplin and Adams, had put down their stakes, he cut the ditch, &c., for the defendant in December, 1836. That the ditch left twenty-six or twenty-seven feet space for the road, but that it had been lessened in breadth by washing. That it was now thirteen feet at the wash and was safe enough. He did not think the ditch encroached upon the old track or stakes. Another witness stated “that the ditch encroached upon the old track, (as it stood before the recovery by the plaintiff,) but still leaves that spot wide ; that the river washed away the narrow spot (the wash) more than a foot last year, and that the bluff had neared the ditch about two feet since it was dug.”</p> <p>Upon this evidence the Judge below instructed the jury, “ that by the former recovery, the plaintiff was entitled to a. certain specific way and no more. That it was not a shifting way, nor a road claimed from necessity. That the difficulty was to perceive what particular way he had recovered. There were no marked lines, stations, points, or corners, by which the court could lay down a rule for locating the precise line or route, of the road, only the river road. But that from the recovery, the plaintiff had clearly a right of way along the river, which it did not appear had been washed off. If it had, then the plaintiff might have claimed some' way or other, but that at present they had nothing to do with such a question. That if the defendant had adopted the route laid out by James Fripp, or the plaintiff the line ditched by John Edwards, the way might have been plain. That as the case stood, if the defendant had obstructed the old road actually recovered, he must pay damages for the obstruction; if he had not, the verdict must be for him ; whether the river had encroached upon the old track or not, did not affect the question. That he who used the way, must repair it or bear the inconvenience — and he who obstructed it must pay damages.” , The jury found a verdict for the plaintiff for $200 damages, and the court refused to grant a new trial.</p>

<p>Before BUTLER, J., at Charleston, January Term, 1839.'</p> <p>The plaintiff (a free colored woman,) brought her action of trover, for negroes, under the act of 1827, against the defendant. On the affidavit of a third person, the defendant was under • order of the clerk of court, compelled to give bond and security. His counsel moved Judge Bay, at chambers, to set aside the order, which was granted.</p> <p>The plaintiff now, upon her own* affidavit and that of a third person, moves the court to have security from the defendant, and other matters, in these words, viz:. 1st. That the defendant in the above instituted cause be required to enter into bond and security, for the production of the specific chattels sued for, in case the plaintiff recover. 2d. If this order be granted, that the plaintiff be allowed, upon entering into bond with security, to file the declaration and docket the cause for hearing. 3. But if the first order be not granted, then this plaintiff, in the present condition of the cause, be allowed to file the declaration and docket the cause, the clerk having refused so to do, on the first day of the term, on the ground that the plaintiff had not entered into bond with security, as required by the act; to all of which the defendant objected, and the court granted the motions.</p> <p>The defendant appealed from the decision of his honor, the presiding judge, and now moved to reverse the same, on the following grounds: 1. That the plaintiff being a colored woman cannot make an affidavit affecting the rights of a free white man, as in the present case. 2. That the affidavit ought to have been made at the commencement of the suit, and it is now too late. 3. That an action of trover, commenced under the statute of 1827, cannot be changed into a common action of trover; but that if it fails to be supported under that act, a new suit must be commenced. 4. That the granting of the motions of the plaintiff is against law.</p>

<p>Before EARLE, J., at Horry, Fall Term, 1838.</p> <p>This was an action of trespass to try titles. The following is the report of his Honor the presiding Judge: “ It was admitted on both sides that the title was perfect in Jesse Smith, deceased, in his life time, who was the father of both the plaintiff and the defendant, and under whom both claimed. The plaintiff relied on the proceedings at law for partition of the real estate of Jesse Smith among his heirs, an order for the sale of the lands, and an actual sale by the sheriff of the tract in dispute, at which he became the purchaser, and produced the sheriff’s deed reciting the return of the commissioners, the order and the sale,, dated 4th Sept’r., 1835. The original summons and writ in partition, and proceedings, were not produced, and the plaintiff relied on secondary evidence, after proof of their existence and loss, and this consisted of the following entries in the sheriff’s books and abstracts from the daily minutes of the court, corroborated by the testimony of the officers of the court and other witnesses. 1. Entry, 30th Jan. 1828, in the sheriff’s book, proved by the then sheriff, “J. Patterson and wife v. the heirs at Jaw of Jesse Smith, summons in partition.” The plaintiff and defendant were both parties and were both served— summons returned to the clerk — the clerk deposed that he had made diligent search for these proceedings in partition without having found them; 2. In the minutes of the court for April term, 1828, an entry relative to the same matter, “ on the return of the summons in partition, ordered that a writ of partition do issue directed to certain commissioners, and that they make their return to the next court. At the ensuing November term there was no court. 3. At April Term, 1829, the following entry,. “ J. Patterson and wife, and others, v. Jesse Smith, adm’r., ordered that a writ of partition do issue, appointing Benjamin Gause, J. G. Cochran, John Thomas, William Tpdd and John W. Durant, commissioners, &c., not entirely the same persons named before. Mr. Holt, the attorney, deposed that there were two motions and orders for writs of partition relating to the same lands, but that ther'e was only one summons. 4. At Spring term, 1831, an order for extending the time to make return. The following final order was made at Fall term, 1831, “John Patterson and wife v. Mercy Smith et ah, the commissioners having made their return recommending a sale of the premises, ordered that the same be confirmed, and that the sheriff do sell the premises on,”&c. (specifying the time and terms.) It was proved by a witness present that the land was sold and bid off by the plaintiff; and by Todd, one of the commissioners, that they went upon the land, were at the defendant’s house, that he claimed the part he lived on as a gift from his father, that the commissioners valued the land and recommended a sale, including that portion claimed by the defendant, and that he (the witness) returned the proceedings to the clerk’s office.</p> <p>On a motion for a nonsuit, I held that the proceedings in partition were proved by competent evidence to let in the sheriff’s deed to plaintiff, and overruled the motion. The defendant then set up title in himself by possession to the land in dispute and offered the following evidence: The tract was originally granted for 600 acres, lying on Brick Creek Swamp. Only a portion of it was claimed by the defendant, and the main objection to his recovery was the want of proof as to the extent of his claim on the boundaries of the land alleged to have been given. The proof was ample that the defendant entered by permission of the father on his marriage, or soon after, and has continued in possession twenty-five years; directly after he settled there his father was heard to say he had given him the place. He then lived at another place on the same tract, and died in 1826. So that the defendant must have been in possession twelve years before his father’s death. Two plats were used in evidence, principally one made by Hemingway, in 1815, which divides the tract in three parts; why, was not fully explained. Smith, the father, had on the marriage of several others of his children, settled them on land, without conveyance, which none of them subsequently claimed. There was no evidence to connect the defendant’s possession, or the alleged gift of the father, in reference to boundary and interest with the part called the Malcolm tract, in which he lives, unless it be the testimony of Stanahand, (in writing,) who said that the defendant’s father related to him that his son, (the defendant,) had wished to remove upon the Timothy tract, (see the plat,) but had changed his mind and wished to remain on the Malcolm tract, adding, “ he is now on the Malcolm tract and I intend he shall have it.” It did not sufficiently appear when this occurred. The plat could not have been made until several years after the marriage of the defendant, and after he entered on the land. The proof of an actual gift was rebutted to some extent, by proof of a declaration of the father’, that he intended the land for his son, but had never given him the scrape of a pen, and a declaration of the defendant himself, when asked if he intended to allow the commissioners to value the land, he replied, “he did not know what else to do, as he had no better title than the rest of them.” The only witness who proved the declaration by the father of an actual gift, was one Chalker, who heard him say immediately after the marriage, “ that he had given him the place,” but he did not know the number of acres nor the boundaries.</p> <p>I thought the proof was ample that the defendant was regularly a party to the proceedings in the partition, that it was a suit involving his title to the land, that he assented to the -valuation by the commissioners, that he acquiesced in the judgment of the court ordering the sale, and therefore thought he should be concluded from setting up an adverse title against the purchaser at sale. The question of gift or -no gift, was submitted to the jury. On the supposition that the defendant was not made a party to the proceedings, admitting that there was an actual gift of the part occupied, a proof of possession under permission, which would constitute good title; yet the evidence was insufficient"as to the boundaries to allow the defendant to recover. The jury was charged accordingly and they found for the plaintiff. As there was proof of an actual possession of eighteen acres of upland and six of swamp, cleared and cultivated, if-the circuit was in error on the first ground, perhaps the defendant might have recovered to the extent of his inclosures.”</p> <p>The defendant appealed and now renewed his motion for a non-suit on the following grounds: 1. That there were no proceedings under the first writ of partition, adduced by plaintiff, and that it did not appear from the minutes of the court that defendant was ever made a party to the second writ of partition. 2.. That the proceedings in partition was defective, by the lapse of two years, between the second and third order for the extension of time for the return of the writ. 3. That there was no evidence adduced of a judgment having been entered up.</p> <p>Also, for a new trial on the following grounds: 1. That his honor erred in charging the jury, that if the defendant, was informed of the proceedings in partition and did not come in and object to their confirmation, he was concluded from afterwards setting up title against the title of the plaintiff, who was a purchaser at the sale. 2. That there was no sufficient evidence of the defendant’s having had legal notice of the proceedings in partition. 3. That there was sufficient evidence of title by possession in defendant, previous to the death of Jesse Smith, sen’r.</p>

<p>This case came up on an appeal from the. City Court of Charleston. It was tried before his honor, Jacob Axson, Esq. the Recorder, at the November Term of the City Court, 1838.— His report of the case is as follows:</p> <p>“ This was a summary process against defendant, as indorser of a note drawn by Pohl and wife, dated 12th of February, 1838, payable three months after date; it was due on the 12th, and payable on the 15th of May.</p> <p>O. L. Dobson, sworn, testified that he knows Mrs. Duggan, the plaintiff. She resided in Montgomery, Alabama, both at the time of the date of note and the time it was payable.' George Timmons acted as her agent in this city: the note was taken by Timmons for the rent of the house in St. Michael’s Alley, belonging to the estate of Duggan. Timmons was taken sick a little more than a month before the note became due; he died on the 11th of May. The papers of the estate of Duggan were kept by Timmons, in his desk at the Union Bank, in which he was collection clerk and notary; and were delivered to witness, who was acting for Mrs. Timmons, executrix of Timmons, by the officers of the bank,, on the 8th of June. There was no knowledge that the note was there, until the 8th June, either by Mrs. Timmons or the witness: witness is a notary public;, he immediately protested the note, made a demand on the drawer, and gave defendant notice.</p> <p>I thought, under the circumstances, that due diligence was used, and decreed for the plaintiff.”</p> <p>The defendant appealed from the decision below, and now moved for a new trial on the part of the defendant, on the following grounds: 1. That due notice was not given to the defendant as indorser, that the drawers had not paid. 2. That, in fact, no notice whatever was given the defendant till long after the note was at maturity.</p>

<p>Before O’NEALL, J., at Beaufort, Spring Term, 1838.</p> <p>The following is the report of his honor the presiding judge:— “ This was an action of assumpsit on a due bill, without date, payable on demand to J. J. Beck, or bearer. The defence was the statute of limitations. The due bill was passed by Beck, the payee, to the plaintiff, for a sum less than its amount, and upon an understanding that if it could not be collected from the defendant, he would indemnify the plaintiff. From the proof, I thought that the due bill was made anterior to the year 1831. This suit was brought in 1837. It was proved that the plaintiff said, that Beck told him the note was out of date. The note was presented by the plaintiff for payment, which was refused, a few days before the action was brought. I thought, and so charged the jury, that upon such a paper as the present, no cause of action existed until there was a demand of payment. Being without date, there could not be said to be a present indebtedness. The whole liability of the defendant to pay, depended upon the demand of payment: until that was done, the plaintiff’s cause of action was neither “given nor accrued,” and hence the statute could not in this case bar the plaintiff’s action.”</p> <p>The jury found for the plaintiff.</p> <p>The defendant appealed on the annexed grounds: 1. Because his honor charged the jury, that the maker of a promissory note payable to A. B., or bearer, on demand, and without date, cannot avail himself of .the statute of limitations in a suit by the original payee, although the time of the making of the note be distinctly proved by testimony aliunde. 2. Because notice of the time of the making of the note was given to the plaintiff before he received the noto from the original payee, and that fact, with the other circumstances of the case, entitled the defendant to a verdict. 3. Because the note having been made before the year 1831, and the suit not commenced until the beginning of the year 1837, and no evidence of a promise since 1831 — the defendant was protected by the statute of limitations. 4. Because the verdict was contrary to law and evidence.</p>

<p>Before O’NEALL, /., at Charleston, May Term, 1837.</p> <p>The following is the report of his honor the presiding judge :— “ This was an action on a policy of insurance, to recover the value of sixty-two bales and three hnndred and seventy-eight pieces of cotton bagging, shipped by the plaintiffs from Charleston to Mobile, on the schooner Minerva, of Thomastown, Thorndyke, master, which vessel, cargo, and all her crew and passengers were lost in the gale of the 28th and 29th of October, 1835. The vessel was staunch and well found. On the 28th of October, when about to sail, the master applied for and obtained twenty dollars to pay the pilotage. He spoke to a pilot to accompany him beyond the bar; the forepart of the day, however, wore away, the vessel had not sailed, and the weather becoming more threatening, the pilot refused to go. The wind was blowing strong from the N. E., as it had been for some days; and all the pilots, and several others examined, agreed in saying that it was very imprudent to go to sea in such weather: indeed, they said, they would not carry out a vessel in such weather. Others, however, said that they had seen vessels go to sea in weather fully as bad: the master’s view of the matter when about to sail, was, that as the gale had prevailed already for several days, it was pretty well over, and by sailing then he should have for some hours the tail of the gale to help on towards his port of destination, and if he waited for it to subside, he should probably be detained some time in port, before he could obtain a favorable wind. He sailed between twelve and one, when the tide was flood, and when the wind had diminished, without a pilot. His vessel drew eight and a half feet of water, according to his own account; but being only partially loaded, Mr. Cohen, the merchant who cleared her out, said he did not think she drew more than six and a half to seven and a half feet. When the captain came in'to Charleston, he came in without a pilot.- The wind was fair to cross the bar by the Overall channel, through which the Minerva went to sea. To run through on a straight course, a vessel would cross the dry breaker, on which the water is eight feet. Mr. Elford, the keeper of the Observatory, proved that the Minerva crossed the bar, and stood out to sea, east. He said when he last observed her, she must have been from five to ten miles beyond the bar. The pilots Lee, Newboldt, Chapman and Davidson, saw the Minerva going out; they all said it was barely possible she might have gone clear: they all thought she must have struck. Mr. Lee said he saw her in the channel and afterwards beyond the bar. The Minerva was found sunk, by Capt. Baker, off Port Royal, in nine fathoms water, ten or fifteen miles from land; the time when so found was uncertain, it was, however, most probably within a few days after her loss. From her situation when found, which he and his mate described, Capt. Baker, his mate, Mr. Cross, Capt. Callender and Mr. M’Nellage, all agreed in saying that she was probably not injured in crossing the bar: and that she had been capsized in the gale. The pilots Lee and Chapman, also met with the wreck: and according to their proof, the wreck was within fifteen miles of the Charleston light. The night after the Minerva sailed, the wind changed to S. and S. E. and blew a hurricane that night and the succeeding day. Capt. Thorndyke, from the knowledge had of him during the short time he was in Charleston, appeared to be an intelligent, sober, and active seaman. The custom of the port that vessels coming in or going out should have a pilot, was fully proved: so was the necessity of such a custom. It did, however, appear, that vessels occasionally came in and went out without pilots. I instructed the jury, that generally, insurance extended to all perils which would not charge the shipowners : where they were liable, the underwriters were generally not; as in cases of unseaworthiness of the ship, or a voluntary deviation from the voyage, not amounting to barratry on the part of the master or crew. Barratry may be defined to be any fraudulent act of the master or mariners, by which the subject matter insured might be endangered. In this case, the only act which had the semblance of barratry was, that the master received the pilot-age and sailed without a pilot; but that, I thought, was not attributable to fraud ; the master spoke to a pilot and intended to have availed himself of his services. The pilot’s refusal to go was the cause of his sailing without one. I said to the jury that the ship was the substratum on which the insurance rested; and unless her value, if she was insured and lost, could be recoverd, it was seldom if ever the case, that the underwriters would be liable for goods shipped on board of her and insured. It was hence a first inquiry, in a case like the present, to ascertain the seaworthiness of the vessel, which I defined to be the capability under ordinary circumstances of performing the voyage before her. I said to them, that “ in navigating a river, or approaching, or leaving a harbor where it is customary for vessels of the burthen and description of that insured, to take a pilot, the vessel is not seaworthy unless she have such pilot.” — Law v. Hollingsworth, 7 T. R. 156. I instructed the jury to inquire, 1st, is i1 the custom of the port of Charleston that a pilot should be employed in approaching or leaving the haibor. The proof was clear as to the existence, necessity and reasonableness of the custom. 2d. What was the effect on the policy of failing to employ a pilot ? I thought and so instructed the jury, that if a loss happened in consequence of a pilot not being employed that the underwriters would be discharged; but if the vessel passed uninjured through the dangers, to avoid which a pilot was usually employed, and the loss happened beyond the point at which a pilot’s services ceases to be necessary, that the assured would be entitled to recover. In 1804, in the case of Depeau v. Jones, it was held by the Constitutional Court, that inasmuch as a pilot was not employed in bringing in a vessel to the port of Charleston, and she struck upon the bar and a part of her cargo was injured, that the underwriters were discharged. So in Law v. Hollingsworth, a vessel ascending the Thames, discharged her pilot and soon after was injured, it was held that the assured could not recover. In that case Lord Kenyon put his judgment upon the fact, that no “pilot was on hoard at the time the accident happened.” I thought this case would depend upon an answer to the question in fact, whether the vessel struck in crossing the bar ? If she did not and went clear, and was subsequently capsized in the gale, the assured would be entitled to recover, otherwise not. I summed up (as fairly as I was able) the evidence, and submitted it to the jury. They found for the plaintiffs — and I think their verdict was correct and proper.”</p> <p>The defendants now moved for a nonsuit, or new trial, (as the case may be,) on the following grounds: 1. That in all contracts between the insurer and the insured, there is on the part of the insured, an implied warranty of seaworthiness, and in the present ease the vessel in question was proved to have been unseaworthy for want of a pilot, and the underwriters, defendants, were discharged from their liability on the policy of insurance. 2. That the testimony in the case proved that the vessel struck going over the bar, and her loss was clearly attributable to this cause. 3. That the cause why the vessel in question and her cargo were lost, was the want of a pilot to conduct her over the bar. 4. That the verdict was against the law of the case in this, that the vessel and cargo should be presumed to have perished for want of a pilot, and there was no fact in evidence to rebut that presumption. 5. Because the risk was increased and the loss produced by the default of the assured, or their agents, in the sailing without a pilot, and therefore the underwriters are discharged. 6. Because the usage of the port, and the lex loci, imposed upon the assured the duty of taking a pilot, and they having neglected this duty, the underwriters are discharged. 7. Because the verdict was otherwise against law and evidence.</p>

<p> Before EVANS, J., at Fairfield, Spring Term, 1839. </p> <p>The report of his honor the presiding judge, of these cases, is as follows: “ These were three indictments for riot. The first ground in the notice applies to all the cases. It was satisfactorily proved, that on three nights in the month of August last, a band of men, eight or ten, disguised, paraded through the streets of Winnsborough, armed with guns or pistols, or both — they marched backwards and forwards, shooting guns or pistols and blowing horns, from 9 o’clock, P. M., until after midnight — that in several instances, persons, and especially females, were aroused from their sleep in a state of terror and alarm,'by the firing of the guns in the streets, near to their houses. I was of opinion, and so charged the jury, that this was a riot. All the defendants were seen in the midst of these companies, except Miller, who was one of the persons charged in the case last above stated. The proof in relation to him' was, that on the night of the last riot, he was seen passing through the streets, intoxicated, with a pistol in each hand, snapping them. He was coming in a direction which led to the place where the party was assembled, and a few days after he told a witness that he was the colonel of the dog-tail dragoons, which was the name that these parties designated themselves by. The jury found him guilty with the rest, and I thought the evidence warranted their finding.”</p> <p>The defendants now moved in arrest of judgment, and for a new trial, on the following grounds: For a new trial — 1. Because from the facts established by the evidence, the offence in law, is not a riot, and the court should have so charged the jury. % Because the jury in the last above case erred in finding Miller guilty in the absence of any proof of concert, combination, or participation with the supposed rioters. 3. And in arrest of judgment in all the three above cases, there being no definite offence laid in the indictments; and in the second case, because only two persons are named and one found guilty.</p>

<p>Before EVANS, J., at Fairfield, Spring Term, 1839.</p> <p>The report of this case by his honor the presiding judge, is as follows: “There had been large dealings between the parties, amounting to upwards of $15000. Among the first dealings, the defendant received from Lott & Co., of Columbia, $364 75, of the plaintiff’s money. The action was to recover this sum. In 1835 there was a settlement, but this sum was not brought into the settlement. In 1838, the plaintiff demanded the money. A review of their accounts was made by Mr. Woodward and Mr. Hall, who detected and corrected some errors; but this demand was not brought into the settlement. When it was presented, Cathcart said he thought it was settled otherwise, and if he could not show it paid, he would pay it. Mr. Elder said he made the statement by which the parties settled in 1835. Whilst the papers were preparing, he heard a conversation about money received from Lott. Pie understood a verbal order had been given by Hagood to Cathcart, to receive $600 from Lott, of which Cathcart said he had received only. 340 or 350 dollars. This gentleman admitted that before the reference he was wholly unable to account for how this money was paid, nor did he pretend to know how it had been settled. Pie said that as to so much of the account as related to the store, regular charges were made. That Cathcart had several times loaned money and paid debts for Hagood; of these transactions, memorandums were taken and put in a private drawer, and when the money was returned, the vouchers were given up. The jury found for the plaintiff, and I thought the weight of the evidence was in favor of the verdict.</p> <p>On the third ground, it will be necessary to state the facts, in order to understand it correctly. On opening the case, the plaintiff called a. Mr. Elder to prove the signature of the defendant to the receipt. He then offered other evidence of what occurred at the time Woodward and Hall attempted to settle the accounts, and closed. The defendant then called back Elder, and examined him to prove his defence, that the matter had been settled by the parties. To this evidence, the plaintiff replied by evidence that at the arbitration, neither Cathcart nor Elder, his chief clerk, pretended to know any thing in relation to this money. Cathcart said he could show it had been paid, by receipts, and if he could not, he would pay it. Under these circumstances, I thought the plaintiff entitled to the reply.”</p> <p>The defendant appealed and now moved for a new trial on the following grounds:</p> <p>1. Because the lapse of time between the receipt of the money sued for, and the bringing of the action, and the proof of the many settlements which had taken place between plaintiff and defendant during said period, raised such a strong legal presumption of the payment of it, that the jury was bound to find a verdict for defendant, unless the plaintiff had expressly rebutted the presumption: and that the court should so have charged the jury.</p> <p>2. Because the verdict of the jury was clearly contrary to the evidence of the case; as it was proved that the plaintiff and defendant had a final settlement of their accounts on the 24th of August, 1835, at which settlement the present demand was spoken of by the plaintiff) and not claimed as a credit against the demand of the defendant, or any claim set up for the payment of it, for upwards of eighteen months after said settlement.</p> <p>3. Because the defendant introduced no witnesses on his part, but only examined the witnesses introduced by the plaintiff,'he was legally entitled to the reply in argument, and the court erred in refusing defendant said right.</p>

<p>Before EVANS, /., at Spartanburg, Fall Term, 1838.</p> <p>Tras was an action of trover for a cream-colored mare and some cotton, alleged to be of the proper goods and chattels of the plaintiff and to have been converted by the defendant to his own use. The facts and questions arising in the case, will more fully appear from the report of his honor the presiding judge, which is as follows:</p> <p>“The plaintiff was administrator of-one Berry Quinn, son of defendant, who died at his father’s house in December, 1835. The action was in the name of plaintiff, without styling himself administrator. The property sued for as Berry Quinn’s, had never been in the possession of the plaintiff. It had remained in defendant’s possession from the death of his son Berry. A motion was made for a nonsuit on the ground, that the plaintiff should have sued as administrator. I was inclined to think the action should have been so brought, although the conversion was after the death of the intestate. This seems to have been decided in the case of Cockerill v. Kynaston, 4 T. R. 280; but the subsequent cases render , the question somewhat doubtful. I thought it best to send the case to the jury, who found for the plaintiff.”</p> <p>After the service upon his honor of a notice of appeal, in this case, upon the grounds hereafter mentioned, he made the additional report which follows:</p> <p>“ After the motion for a nonsuit was refused, and whilst the case was under discussion before the jury, I made out the foregoing as a report, supposing there would be an appeal. Since the trial the annexed notice has been given me, which requires some further report of the case. The second ground alleges for error, that the jury were instructed to allow interest. It was proved, the services of the mare were worth $20 per annum. I told the jury the plaintiff was entitled to recover the value of the mare and compensation for her use, but advised them to allow the legal interest on her value as a fair compensation for her services, which was less than $20. I did not charge them to give interest on the cotton; nor do I know that they did; but if I had so charged, I apprehend it would have been right. In relation to the third ground, I will remark, that the proof on the subject of demand was, that at the time of the appraisement the plaintiff demanded all the property of Berry Quinn — some articles of apparel and other things were produced, and the defendant denied that there was any thing else which was the property of Berry Quinn. Besides, it was clearly proved the defendant had had the cotton gathered and picked, and carried it away from the gin.”</p> <p>The defendant gave notice of an appeal in this, case, and now moved this court for leave to enter up a nonsuit, and in arrest of judgment, on the following grounds:</p> <p>1. Because the action was brought in the name of Tollison Kerby, and there was no proof that he had either a general or special property in the chattels sued for: either at the time of the action brought, or at any other time.</p> <p>2. Because the plaintiff proved the cream-colored mare and the cotton, for which this action was brought, to have been in defendant’s possession previous to and at the time the action was brought. And that said property was in defendant’s possession previous to and at the time letters of administration were granted to Tollison Kerby, on the estate of Berry Quinn.</p> <p>3. Because the plaintiff, having declared in his own name and upon his own possession, cannot recover as administrator of his intestate, and on the right and possession of his intestate, not having declared in his representative character of administrator.</p> <p>4. Because the plaintiff, never having had possession of the chattels sued for, nor a general property in them, cannot maintain an action of trover for them, except in his representative character of administrator; the conversion being previous to, or at the time of his intestate’s death, which was proved in this case to have been so.</p> <p>And failing on these grounds for a nonsuit, he moved the court for a new trial on the following grounds:</p> <p>1. Because the- only count in the declaration, states that Tollison Kerby was possessed of the goods sued for as his own proper goods, while the whole of the proof introduced by plaintiff went to show that they were the goods of an intestate, Berry Quinn, on whose estate the plaintiff had administered. To permit this, operated as a surprise on the defendant, he being required by the writ and declaration, only to show that the defendant had not converted the proper goods and chattels of Tollison Kerby.</p> <p>2. Because his honor charged the jury to find for the plaintiff, if they believed from the evidence, that the mare and cotton belonged to Berry Quinn’s estate, and to give interest on what the mare and cotton was proved to be worth, from the time of the demand, which was previous to the alleged conversion of the mare, by plaintiff’s declaration.</p> <p>3. Because there was no demand proven to have been made by the plaintiff of the defendant, for the cotton sued for. And it was in proof that the defendant was picking out the cotton previous to the letters of administration being taken out.</p>

<p>Before RICHARDSON, J., at Abbeville, Spring Term, 1839.</p> <p>The plaintiffs Hatch, Kimball & Co., who were judgment creditors of James Simpson, moved before his honor Mr. Justice Richardson, for leave to file a “suggestion, setting forth that the confession of judgment in the case of M. B. Clarke v. James Simpson, was fraudulent and not founded on a bona fide consideration, to which M. B. Clarke, the plaintiff in the said confession, should be required to plead by the usual thirty day rule.” His honor the presiding'judge, refused the motion, and assigned his reasons for so doing in his report to this court, which is as follows:</p> <p>“ The foregoing motion was made just as the court was about to adjourn, and the affidavit annexed, then offered. The defendant’s counsel objected, because his client was gone, and had received no notice of such an affidavit, nor had it been filed. I overruled the motion, on the ground, that the defendant or his counsel ought to have received timely notice of the affidavit itself, and not surprised, by its being withheld to so late a moment. Although, perhaps, upon the actual adduction of the affidavit, the plaintiffs might be entitled to a rule to show cause, &c.; but such a rule was not moved for.”</p> <p>The above named creditors Hatch, Kimball & Co., appealed from the decision, and moved to reverse the same, and renewed their motion, for leave to file a suggestion to set aside the said confession of judgment, on the grounds:</p> <p>1. That his honor, the presiding judge, erred in holding, that upon a motion for leave to file a suggestion, affidavits of the facts relied on in support of the motion, should have been previously filed with the clerk of the court.</p> <p>2. Because his honor held, that the proper course of proceeding was by rule against the party to show cause why the suggestion should not be filed, which rule should be made returnable to the term next ensuing, that at which it is moved for.</p> <p>3. Because upon motion for leave to file a suggestion to set aside a judgment for fraud, all that is required, is notice to the opposite party of the time and place of such application, and the grounds upon which it will be made, and all that is necessary in support of the motion, is reasonable cause shown by the affidavit of the party, or others, to be made and presented to the court at the time of the application.</p>

<p>Before RICHARDSON, J., at Edgefield, Spring Term, 1839.</p> <p>Tins case came up on an appeal from the ordinary, admitting to probate a certain instrument, as the last will and testament of one Lucy Hatcher. The report of his honor the presiding judge, is as follows:</p> <p>“ Lucy Hatcher, aged 93 years, made her last will, in February, 1836. The will was proved in solemn form of law, before O. Towles, the Ordinary of Edgefield District. The Ordinary affirmed the will, which bequeaths the entire property to Benjamin Hatcher, the youngest son of the testator. Whereupon the distributees at law (her children and grand children) appealed from the Ordinary’s decision, upon the following grounds :</p> <p>1. That Lucy Hatcher was of unsound mind and memory; and could not, therefore, make any lawful and disposing will.</p> <p>2. That she was, in fact, imposed upon, and influenced by the exclusive legatee (Benjamin Hatcher) to make such a will, which was no moré than a void instrument.</p> <p>The appellants and appellees, both, claimed the right of replying in evidence and argument. The issue made up, presupposes that the appellants had paid to the appellees, five dollars, and alleges that, if they proved the will to be void, then five dollars were to be repaid to the appellants ; and refers the issue to the Jury.</p> <p>I ruled, that both by such pleadings, and the decisions of this Court, the reply belonged to the appellants.</p> <p>Upon the question of competency of mind in the' testatrix, to make her last will, and as to the influence of the sole legatee, Benj. Hatcher, in bringing about so sweeping a bequest in his favor, much, various, and opposite evidence w;as adduced. The witnesses were fully examined; and it may be seen by the evidence in my notes, that scarcely a witness has not expressed, or plainly implied, his opinion upon the mental competency or incompetency of the testatrix. No objection was urged to- such free expression of opinion, until the appellees introduced the subscribing witnesses to the will. At this stage, the appellants counsel objected to the legal right of such witnesses offering their opinion, that her mind was sound at the time of executing the will.</p> <p>The Court ruled, that the subscribing witnesses, being persons expresssly called upon to bear witness to the act, it was their right and duty, to form opinions of the mental capacity of the testatrix at the time; that in this respect, they being selected by her, stood within the reason of professional artists; and as guardians of the true state of her mind. Their opinions must, therefore, be heard, and pass for what they were worth in the judgment of the jury.</p> <p>The three subscribing witnesses then gave their opinions, that the testator was of sound mind, free to act, &c., though Mr. Goode was not as positive in his opinion, as Lindsay and Napper, the other two witnesses, as regards her mental competency.</p> <p>Several other witnesses were then examined, and in their narration of the manners, behaviour and expressions of Lucy Hatcher, they, like the witnesses of the appellants, mingled freely, their own inferences, without any objection being made. But upon the close of the examination of-■, the appellee’s counsel, asked “ if the witness knew of any foolish acts of the testatrixTo this the opposite counsel objected, as it required the opinion of the witness upon her conduct generally, instead of enquiring for facts only. The appellee’s counsel insisted it was not asking for opinions merely ; and after some conversation, in which it was clear the principie of law was conceded, that opinions did not constitute competent evidence, no decision of the court was asked for, or implied. I suggested that the purpose might be answered, by asking the witness what foolish acts he had ever known done by Lucy Hatcher, and if any, to relate the acts. And I observed that all general inquiries, whether her conduct was consistent or inconsistent, her conversations connected or disconnected, rational or irrational, were without the conceded principle, although, perhaps, every witness had either expressed or implied his opinion while relating the facts. After this all general inquiries for mere opinions, as to the conversations or acts of Lucy Hatcher, whether connected or not, rational or irrational, in the judgment of the witnesses, whenever objected to, were excluded by the court.</p> <p>At the conclusion of the evidence and argument, it was evident that the decision of the case depended upon two questions of fact: First, whether Lucy Hatcher had still remaining sufficient discretion to make a last will and testament. If she had, then, secondly, whether she had in fact been imposed upon, in her old age and decayed state of mind, so as to deprive her of perfect free agency and influence her to make such a last will as the one exhibited. It may be remarked that, until the year 1834 there was no doubt of Lucy Hatcher’s possessing a sound mind. In the fall of that year she had severe illness; and it was afterwards that the witnesses formed different opinions. For instance, Mr. Roberts thought Lucy Hatcher possessed of understanding of great strength and reason, and that after many conversations with her, subsequent to illness in 1834; while Mr. Landrum thought her verging on idiocy after that time. The two classes of witnesses inclined respectively to these opposite opinions, but with much less confidence than Roberts or Landrum. But it was plain that the witnesses for the appellants drew their unfavorable opinions from Lucy Hatcher’s very inactive observations of ordinary occurrences; and her very dull memory of them, (as for example the names of persons and faces,) while on the other hand, the opposite witnesses evidently drew their favorable impressions from her capacity to reason right, and her discreet conduct, notwithstanding her dull observation and memory. Both sets appeared to allow, that when possessed of the facts, she conversed with propriety and “ like other people.” No express evidence was offered to discredit a single witness.</p> <p>Upon the first question I charged the jury very fully, and instructed them, that to make a last will the law required the testator to possess, as is the usual caption of such instruments, “a sound and disposing mind, memory and discretion.” That these terms mean a sound or faithful perception of facts, through the agency of the senses. The law did not require a quick or vivid perception, but such as was true; not unsound or faithless. The impression left on the mind should be suitable and just to the thing seen, heard, smelt, tasted or felt. This was sound perception, or in the language of last wills, “ sound mind.” Second, the memory required must be sound also; it must retain the perceptions received through the senses as they were, not pervert or distort them. Such memory and perception were attributed to every man, and presupposed the reasonable discretion or judgment necessary to constitute a disposing mind, and the right to bequeath property by last will followed, unless the want of discretion appeared, from extrinsic or intrinsic evidence. Had then, Lucy Hatcher, in February, 1836, in her decayed state and at the advanced age of ninety-three years, such perception, memory and discernment ? This was the first question for the jury to decide.</p> <p>The whole argument appealed to the consciousness, observation and reflection of every man, which must constitute his judgment upon the particular subject and case. But the court would not withhold its assistance or opinion. The judgment of the jury must be absolutely independent; but their minds could not be made too reflective or vigilant, upon so unusual a subject and case. I thought myself that the faculty of perception became more and more inactive, as the senses became decayed or dulled by lapse of years. That the strength of the memory depended greatly upon the vividness of perception, and of course generally decayed in the same ratio. Both the sight and hearing of Lucy Hatcher, were proved to be decayed; and her perception and memory, so far as they depended upon those two senses, appeared to be much weakened. But I did not perceive that they were clearly unsound.— Although inactive, dull and heavy, they did not appear to have become false to their proper objects. I saw no traces of hallucination, or the confounding imaginations or reflections with sensations or the perception of facts. No extreme inactivity, or habitual wanderings of the mind, appeared to have usurped the proper place of her understanding, or judgment of facts, truths or realities. It was allowed that her faculties were originally very good; and I thought, from the evidence, her reasoning powers very sound to the last; and her will firm and rational. These were tests of a sound and disposing mind and memory, as before defined, and I saw nothing in her behaviour to disfranchise her, if left entirely free to act for herself. But the jury were to judge for themselves, from her whole conduct, conversations and habits. Of these, we had very properly heard very full evidence; inasmuch as, under ordinary circumstances, they were the undisguised acting out of a man’s will, and therefore, generally well indicate the character, degree, and true state of his whole mind. But, although the court deemed the testatrix competent, that opinion was drawn chiefly from her reasoning powers, as detailed by the witnesses and the apparent firmness of her will, which I thought indicated a mind sufficiently sound for the purpose of bequeathing property. Yet there were grounds for the two opinions, upon the intellectual competency of this aged woman to make any last will and testament. My own opinion was influenced, perhaps, too, by the habitual consideration that where a testator was perfectly free to act for himself, it required no more than a very slow and inactive mind to make a last will. Because there is no competition, no collision of interests, or opposite party to overawe or lead it astray. Where the mind was not unsound, the law would support even its seeming caprice in a last will — a bequest was often a caprice. But we should be slow to underrate the mind of another on that account. The suspicion arose, often, from a mere difference in sentiment, and sometimes from our own weakness. Men, too, would fancy they saw light, or darkness, in another’s mind; when, in fact, such different opinions were apt to arise from what was before assumed to be desirable, suitable', or just, in the result of a given case. In the one before us, such a class of respectable witnesses on each side, intimated the necessity of much consideration in forming óur -final decision upon the legal competency of Mrs. Hatcher’s mind, independently of any such prepossessions. In the course of the examination I had drawn conclusions very opposite to those indicated by some of the witnesses, from their own narrative of Lucy Hatch-er’s conduct and conversations ; and, finally, inclined much more to the opinion of Mr. Roberts than that of Mr. Landrum. But the jury might differ from mine. They too were to form their own independent opinion and to follow it.</p> <p>Upon the second question, the court instructed the jury, that (assuming Lucy Hatcher of competent “mind, memory and discretion,” to make a last will,) they were to decide whether she had been imposed upon and swayed to make the will in question, without her own deliberate wish and inclination, so to bequeath her entire property to one son exclusively. That this was an inquiry in the nature of fraud, and belonged clearly to the jury. Benjamin Hatcher had himself procured the will to be drawn — and her great age, weakness and partiality for her youngest son, rendered it very possible that the testatrix had been unfairly influenced. On the other hand, her partiality to him appeared of long standing, and might be deemed consistent, and the opinion formed of her understanding would have its influence; but the court would intimate no opinion of its own; - upon so plain a question of fact, the jury required no assistance. Was she or not a perfectly free agent at the time of executing the supposed last will? was the point.”</p> <p>The jury found a verdict setting aside the will.</p> <p>The defendant, Benj. Hatcher, the executor of the will in question, gave notice of his intention to move, and now moved this court for a new trial:</p> <p>1. Because the right of opening and replying in evidence and argument was refused to the executor, whereas in all such cases, the trial being de novo, this right belongs to the party propounding the will: and especially where, as in this case, the feigned issue presents the question of will or no will nakedly, without reference to the proceedings before the ordinary, or to the grounds upon which his decree was impugned.</p> <p>2. Because the witnesses in behalf of the executor were not permitted to express their opinion that the testatrix was of competent understanding; not even to say that her discourse was connected, or that her conversation and acts were rational, or that she understood the value of property, or any thing including an opinion — and this, although of the witnesses against the will, one had hurried out an opinion that her conversation was flighty and disconnected, supported by no instance; and another (an influential clergyman,) had commenced by saying, that she was in her dotage, and for support of his opinion, could specify no facts or circumstances, except that at her daughter’s funeral, she looked stupid, and was disinclined to conversation.</p> <p>3. Because the verdict can be ascribed only to the prejudices of the jury, striving to do a fanciful justice by dividing the testatrix’s property, rather than letting all go to the sole legatee, and was not warranted by any sufficient proof either of defect of understanding, or want of free agency on the part of testatrix.</p> <p>4. Because the verdict depends solely on the testimony of witnesses; who, through parents or through children, have indirect interest in setting aside the will and strong feelings in the question; this testimony is in itself, insufficient, and is opposed by testimony of greater weight in favor of the will; and in such cases, the Court of Appeals, exercising the powers of an appellate ecclesiastical tribunal, is bound to scrutinize the facts more closely than it ordinarily does in cases of fact submitted to a jury.</p> <p>On the 5th of April, 1839, the defendant served Mr. Carroll with the following notice:</p> <p>“ The defendant will rely as an additional ground, for new trial on the following ground:</p> <p>“ That, since the trial, he has discovered new and important testimony, namely, a will of Lucy Hatcher, executed June 14, 1833, which has the effect of rendering Jonathan Tillman, Tabitha Tillman, and Frank Bettis, incompetent witnesses, and of contradicting the first named of said witnesses in an important particular of Ms testimony.”</p> <p>And in support of this ground, produced an affidavit, of which the following is a copy:</p> <p>“ South-Caroeina, )</p> <p>Edgefield District. )</p> <p>“ Benjamin Hatcher, senior, being duly sworn, deposes, that since the trial of the issue of Ben. Bettis and others, against himself, he has discovered a former will of his mother, Lucy Hatcher, executed 14th June, 1833, which he is advised, contains important evidence affecting said issue — that having been repeatedly and urgently so instructed, by his counsel, he made repeated and diligent searches for said former will before the trial of said issue, as well among his own papers, as those of his mother, but without success — that at length, some days after the trial, he found said will, inside of an old deed, in a bag containing old papers of little value ; that he is confident that he did not place said will where it was found, and thinks it probable it was placed there about four years ago, while he was laboring under a spell of illness, without his attention being called to the circumstance; and certainly he has now no remembrance concerning the placing of the paper there, and had little reason to expect it where it was casually found. Benjamin Hatcher.</p> <p>Sworn to before me, 2d May, 1839.</p> <p>Geo. Pope, C. C. P.”</p>

<p>Before EARLE, J-, at Orangeburg, Spring Term, 1839.</p> <p>tj-cra»* when — ■ to the part óféíhe de-tStóiiAquire d This was a petition and process on an account for work and labor by the plaintiff’s intestate. The demand was barred by the statute of limitations, which was pleaded. To prove the demand, interrogatories were propounded to the defendant, there being no other evidence; and to avoid the statute, the following question was put to him: “ Have you not sine state particularly — promised the ad: pay this account 1 ” This, it was obje1 fendant, was incompetent: that he coq] to answer that question.</p> <p>His Honor, the presiding Judge, the plaintiff had a decree.</p> <p>The defendant appealed, and now moved tci’reverse the deci sion below, and for a new trial, on the ground:</p> <p>That the defendant was not bound to answer the second interrogatory propounded by the plaintiff, and which was the only evidence offered, to prove a subsequent promise.</p> <p>Neither the act of assembly of 1769, (P. L. 270,) nor the 34th rule of Court, (rules of 1837,) gives the plaintiff or defendant any other benefit than he would enjoy, “ if the suit were commenced in the ordinary forms of common law or equity.” The act of assembly, as well as the rule of court, were intended to assimilate these cases to the practice in Chancery.— Clark v. Meek, 2 Bail. 391.</p> <p>In Chancery, the defendant is not bound to make any discovery, which would destroy the effect of his plea. The defendant has filed a good plea in bar; but by this proceeding, the authority of the statute may be defeated. As to the practice in Chancery, the case of Lansing v. Starr, 2 John., C. R. 150, is in point.</p>

<p>Before EVANS, /., at Fairfield, Spring Term, 1839.</p> <p>This was an action of trover, for negroes. The intestate, Mary Hill, had had the negroes in her possession for thirty years. For the years 1834 and 1835, Brennan hired the negroes from her. In 1836, after the term of hiring expired, Brennan refused to return the negroes. They were demanded, and he refused to return them. In May, 1836, after demand and refusal, Mary Hill took out letters of administration on the estate of her husband, John Hill, who had been dead thirty years, and returned these negroes as a part of his estate. In the fall of the same year, Mrs. Hill died — Brennan kept possession until about Christmas, when the negroes were taken out of his possession by some of the distributees, and were sold, for division, in January following. The plaintiff claimed only hire of Brennan for the year 1836. The question was, whether the plaintiff after his intestate had inventoried and returned the negroes as belonging to John Hill’s estate, could maintain the action. His honor, the presiding judge, decided that he could. Before Mrs. Hill administered, Brennan had hired the negroes of her, and refused to return them. That by the hiring he was estopped to deny her title.</p> <p>The defendant now moved the Court of Appeals for a new trial or nonsuit, on the ground:</p> <p>That the negroes, which were the subject of the action, being the property of the estate of John Hill, of which Mary Hill was the administratrix, the right of action did not go down to her administrator.</p>

<p>Before O’NEALL,at Spartanburg, Spring Term, 1839.</p> <p>This was an appeal from the decision of the ordinary, under the following circumstances:</p> <p>The ordinary granted to the appellant, Eber Smith, administration, with the will annexed, of the goods, chattels and credits, of Obadiah Wingo, (deceased.) The appellant was a stranger in blood to the deceased, and had no interest under his will. He commenced suits for the recovery of chattels belonging to his testator. The appellee, who was of the next of kin to the testator, and had no interest under his will, applied to the ordinary to revoke the letters of administration, cum testamento annexo, granted to the appellant, which the ordinary accordingly did, and committed administration, cum testamento annexo, to the appellee. His honor the presiding judge, thought the case of Thompson v. Huchet, 2 Hill. 347, had decided the very point against the appellant, and directed the jury to find for the appellee, which they did.</p> <p>The appellant now moved for a new trial on the following grounds:</p> <p>1. Because administration, with the will annexed, of Obadiah Wingo, having been granted to Dr. Eber Smith, and he having by virtue of such administration, commenced several suits, the ordinary had no right to revoke such administration and grant it to one, who, though of kin, had no interest in the estate, unless some act ofmal-administrationhad been shown.</p> <p>2. Because his honor erred in holding, that such revocation abated the suits commenced by Dr. Eber Smith, as administrator, with the will annexed.</p>

<p>In all cases oí contract, where the demand does not exceed twenty dollars, the jurisdiction of a Justice of the Peace is, by the act of 1824, p. 25, declared to be exclusive.</p> <p>Since the passage of the act of 1824, it has been repeatedly decided, that in summary process cases, to entitle himself to a decree, the plaintiff must establish to the satisfaction of the presiding judge, a demand beyond twenty dollars. See Davidson v. Setzler; Cline v. Craven; Logan & M’Intyre v. Cobb, (not reported); and Ferguson v. Femster, 1 Bail. 516: an exception in the case of Nance v. Palmer, 2 Bail. 88, was compelled to be made where the case went to the jury.</p>

<p>Before EVANS, I, at Union, Spring Term, 1839.</p> <p>The report of his honor the presiding judge, is as follows:</p> <p>“ The plaintiffs were merchants and sued the defendant on an account for goods sold and delivered. The defence was a discount for flour, bacon, &c., which the defendant sold to M’Elhenney.— M’Elhenney acknowledged the receipt of the flour and bacon. He said he was to give credit on the account for the flour. In relation to the bacon nothing was said; but it was his own calculation that it was to be paid for in the same way. He expected to have a settlement, and intended it to go in payment of the account. I thought from this evidence, it was understood between the parties, that the bacon and flour were to be received, and in fact were received in payment of the account; and, therefore, although furnished for the private use of one partner, was a payment of the account.”</p> <p>The plaintiffs now moved this court to reverse the decision of the circuit court and for a new trial, on the following grounds:</p> <p>1. Because the court admitted in evidence and allowed a discount of defendant, the said discount being an account of defendant’s against W. H. M’Elhenney alone, (who was one the firm of M’Kee & M’Elhenney,) the said firm having been long since dissolved, and the said M’Elhenney hot authorized to collect and settle the debts of the same after dissolution thereof.</p> <p>2. Because the account, as stated in defendant’s discount, not having been actually settled before the dissolution of the copartnership, should not have been allowed by the court to be set off as a discount to an action brought by the firm against defendant.</p> <p>3. Because the court allowed defendant’s discount against the firm, where, from the evidence, there was no proof of a positive agreement to settle defendant’s account against the claim of the firm.</p> <p>4. Because there was no evidence to support defendant’s claim against the firm, except the testimony of W. H. M’Elhenney, one of the copartners of the firm, (which could amount to nothing more than the acknowledgment of one copartner made after dissolution,) that it was understood by him (M’Elhenney) that his individual debt, due to defendant, should be settled by discounting it against the debt due by defendant to the said firm; which was not sufficient to discharge defendant from paying the said debt due to the firm.</p>

<p>In an action on a lost note, the plaintiff is incompetent to prove the loss of the note sued on. His declarations are equally incompetent to the same purpose. (S. P. Sims v. Sims, 2 Con. Re'p. 225; Davis & Tarleton v. Benbow, 2 Bail. Rep. 428; Darby v. Rice, 2 N. & M’Cord. Rep. 598.)</p>

<p>Before ONE ALL, J., at Spartanburg, Spring Term, 1839.</p> <p>The report of his honor the presiding judge, is as follows:</p> <p>“ These were summary processes, tried before me at the last Spring term.. The plaintiff was a creditor of the late Stephen Wilson, (deceased,) and attempted in these cases to make the defendants liable as executors de son tort. After the death of Stephen Wilson, his wife advertised and sold his personal estate. At that sale the defendants purchased. The defendant Taylor, bought a horse, for which he subsequently paid. What the other defendant bought did not appear, so the case against Taylor was the only ■one in which evidence was given. The plaintiff had notice of the sale and made no objections; the defendants probably knew that there was no administration. I thought, on the proof, that Mrs. Wilson was to be considered as executrix from her wrongful acts, and that the defendants were not liable to the creditor. On expressing this opinion, the plaintiff in both cases submitted to a non-suit, with leave to move the Court of Appeals to set it aside.”</p> <p>The plaintiffs appealed, and now moved this court to reverse the circuit decision, on the grounds:</p> <p>1. Because the defendants used the property of the deceased without any legal authority to do so, and sold and disposed of the same as their own, which constitutes them executors de son tort.</p> <p>2. Because the purchase of property from the widow, knowing that it belonged to the estate of the deceased, and that she was not the rightful executrix, nor had any other legal authority to sell, expressly with the view of leaving the State — the purchaser afterwards using and disposing of the property, constituted him executor de son tort.</p> <p>3. Because the decision was against law.</p>

<p>The admission of an administrator as to a fact within his own personal knowledge, and which he could be compelled to prove, if he were not a party to the suit, is admissible in evidence in an action against him as administrator, to charge the estate of the intestate.</p> <p>On a summary process against an administrator, by the plaintiff, to recover the amount of a note signed by himself and the defendant’s intestate, (Crowder,) which the plaintiff had paid, and which he alleged he had signed as security only for Crowder, the declaration of the administrator, “ that he knew the note was given by Crowder at Ingram’s sale, and that Slead, the plaintiff, was security,” was held competent and sufficient evidence of the fact.</p> <p>Under the 34th rule of court in relation to the process jurisdiction, it seems the administrator (the defendant,) might have been examined to the same point upon interrogatories, and would have been compelled to answer.</p>

<p>The Fee Bill of 1827, (Acts of 1827, p. 57,) provides that the sheriff “ shall be entitled to charge for conveying prisoners from one district to another, for every mile, going and returning, in addition to all necessary charges, 6 cents per mile.” These charges in the Usual administration of justice, are not to be paid by the State, unless the defendant should be acquitted, or be unable to pay the same. But the conveying of a prisoner under habeas corpus, from one district to another, is not in the usual administration of justice ; when done at the instance of the prisoner, whether he be acquitted or convicted, he is bound to pay all legal and proper charges in that behalf.</p> <p>By the words, in addition to all necessary charges, it is meant, that the sheriff may charge for all expenses which are necessary, in order to enable him properly and safely to convey the prisoner. Under this interpretation, not only the money paid by the sheriff for his own support and that of the prisoner in going to and returning from the place to which the prisoner is conveyed under a habeas corpus issued at his instance, but also horse hire and the hire of a guard.</p> <p>The legislature have regulated the number of the guard to be employed by the sheriff in the removal of prisoners, and the charges of the sheriff in this behalf, when chargeable to the State; and when the prisoner is conveyed at his own instance, he is bound to pay the same charges which the State might be compelled to pay, if he was conveyed at her instance.</p>

Before O’NEALL, J, at Greenville, Spring Term, 1839. The following is the report of his honor, the presiding judge : “ This was an action of malicious prosecution.

Before RICHARDSON, J., at Lexington, Spring Term, 1839. The following is the report of this case, by his honor the presiding judge: “This was an action, on a note of hand for $500 in the following words, to wit: “At my death I promise to pay, or cause my administrators or executors to pay, to William Hall, or to his heirs, the sum of five hundred dollars, for value received. Witness my' hand and seal, this 12th of January, 1837: his Test: Michael Livingston. John m Howard.

<p>Before O’NEALL, J., at Sumter, Fall Term, 1837.</p> <p>The report of his honor the presiding judge, is as follows:</p> <p>“ This was an action of assumpsit to recover money paid by the plaintiff, as the bail of the defendant. The money had been paid nearly twenty years before action brought. The defendant before the payment was made, went out of the State, and continued to reside without it until within about two years before action brought. The statute of limitations was pleaded. I thought that it constituted a bar to the plaintiff’s recovery. There is no saving in our act of limitations, where the defendant is out of the State. The bar is complete in four years next after the cause of action given or accrued. In the case of Coe, adm’r. of Turpin, v: Yanlew & Higgins, the defendants were sued on a bond. Immediately after giving it, and before due, they left the State of Maryland, where it was executed, and came to South-Carolina, and resided Jhere until sued. A period of more than twenty years intervened, and the court held, against two successive verdicts for the plaintiff, that the debt was in law to be regarded as paid, from lapse of time. On stating my views to the plaintiff’s counsel, they submitted to a non-suit, with leave to move to set it aside.”</p> <p>The plaintiff now moved to set aside the nonsuit, and for a new trial, upon the ground, that the defendant having been out of the State when the cause of action accrued, and having so continued until within two years before action brought, the statute of limitations constitutes no bar.</p>

Before O’NEALL, J., at Abbeville, Fall Term, 1838. The report of this case, by his honor the presiding judge, is as follows: “ This was an action of assumpsit on a note of hand for $100, a part of the price of a negro man named Charles, sold by the plaintiff to the defendant. The defence was, that the plaintiff in the sale, wilfully misrepresented the negro to be honest, sober, humble and not given to be a runaway.

<p>The creditors of a deceased debtor, whether by judgment, bond, or simple contract, must, for the collection of their debts, proceed ágainst the executor or administrator of their debtor. They have no right at law to claim payment from any one else, unless it may be that in the case of a bond-debt, a recovery might be had against the heirs, on account of real estate descended. In equity, the 'rule is also uniform, that the executor or administrator of the debtor, must be a party.</p> <p>The ordinary, in making up the accounts of an administrator, at the instance of a creditor, cannot do so, unless he has the proper parties before him: upon the death of an administrator, his administrator is not accountable to the creditors of the first intestate; against him they have no right of action. Their remedy is against the administrator de bonis non of the first intestate, whose duty it is to have an account from the administrator of the administrator.</p> <p>During the life time of the administrator of an intestate, the creditors of the intestate have a right to claim an account from him. On his death, their remedy directly against him is gone. It is only through an administrator de bonis non of the first intestate they can have an account; for at law, or before the ordinary, the administrator de bonis non of the first intestate, Is the only party entitled to demand the account. In equity, the creditors of the first intestate, by making the administrator de bonis non of such intestate, and the administrator of the first administrator parties, might claim, and have, it seems, an account of both administrations.</p>

<p>This case came up on an appeal and-motion for a new trial, upon thé finding of the jury in a question of fraud, tried before John Hanks, Esq., a commissioner of special bail for Sumter District. The report of the commissioner, which presents all the facts of the case, is as follows:</p> <p>“Vm. H. Bowen, one of the parties of the firm of C. C. Campbell & Co., who, was in arrest under the executions of the above stated plaintiffs, (together with three other executions, on which C. C. Campbell & Co. had been security for one A. China, which, since the appeal taken, have been partially arranged by said A. China, and the appeal as to them discontinued, as I am instructed by the plaintiffs attorney,) after the usual notice given and schedule filed, applied to be discharged under the prison bounds act. His application was resisted on behalf of above stated plaintiffs, on the ground of fraud and an undue preference given to some of his creditors within three months previous to the time of his arrest. A suggestion was filed, containing various grounds, which is herewith submitted. A jury was summoned and a court was organized conformably to the act of 1833, to try the facts contained in the suggestion. The cases being the same, were, by the arrangement of the parties, tried under the same suggestions. The schedule of Bowen contained nothing but his wearing apparel, and a small quantity of house and kitchen furniture, which was then under levy by the sheriff of the district, under senior executions.— The plaintiffs introduced in evidence, a deed of assignment executed by W. H. Bowen and Jacques Bishop, (two of the parties of the firm of C. C. Campbell & Co.,) on the 19th.day of February, 1838, being within three months previous to the time of his arrest under these executions and present application to be discharged. The assignment was made to T. J. Withers, John M. Desaussure and John M. Gilchrist. The two former declined, the latter accepted the trust. The plaintiffs then introduced their judgments and showed that their debts ranked in the fifth and last class, according to .the order specified in the assignment, a certified copy of which, together with the schedule of debts, accompanies this report. The sheriff of the district, (a witness of plaintiffs,) testified that he understood from Mr. Bowen, that he had included all his property in his assignment — that he had examined the schedule accompanying the assignment — that he considers the notes and accounts, specified in the first and second divisions, worth about $22,000 — that he had not seen the notes or accounts, but only spoke of that amount being put down against persons whom he regarded solvent, and the judgments enumerated, together with the executions, worth $2000. That he had sold under executions against Bishop, Bowen and Campbell, which are older than the assignment, but which are provided for in it, property almost entirely of Dr. Bishop, to the amount of $80,000, most of which was not embraced in the assignment, and that there still remained in Sumter district, liable to those judgments, about $10,000 worth of property, exclusive of the Bishopville houses and lands, which were under mortgages to the Messrs. Du Boses, of Darlington, to secure them as securities upon the bond held by John Robinson, John Robinson & Son, and Robinsons and Caldwell, of Charleston — that he should be obliged to return the executions of fi. fa. in these cases, under which the defendant was arrested, nulla bona.— That the amount of judgments in his office against these defendants, is about 170,000 or 180,000 dollars, of which about $40,000 is against Jacques Bishop alone, in favor of John M. Gilchrist, (preferred under'the fourth class in the assignment) — 110,000 due the banks, (preferred under the second class in the assignment,) one of ■which judgments was confessed some time before the assignment, and the others a'few days before — the balance coming in under the different classespf the assignment; the plaintiffs under the fifth class which Nthe last. The sheriff also testified,that of the debts due by persons in Darlington, stated -in the. schedules, he had no knowledge and could not speak as'to thepn. That the schedule comprised all the debts, good and bad, that appeared upon the books for the las.t twelve or fifteen years — a great number of writs lodged to the last court. John M. Niolon, plaintiffs witness, testified that in Feb. 1836, he ceased to be a partner with Dr. Bishop, in the firm of J, M. Niolon & Co. The store at Bishopville was then worth eight or ten thousand dollars. He took, the Camden store at $14,000. The firm of C. C. Campbell & Co., went into operation when that of J. M. Niolon & Co. ceased. Dr. Bishop then owned at Bishopville, all the property which he, lately owned ; the lands at Bishopville and one hundred and sixty negroes. He tranferred all the J. M. Niolon & Co. debts, to Dr. Bishop, about 50 or 60,000 dollars. Dr. Bishop then owed John Robinson about $35,000 — 'knows of no losses — regarded Dr. Bishop perfectly solvent at the time of the dissolution and apprehended no disaster.— On his cross examination, the witness stated that Dr. Bishop paid John Robinson $90,000, by a plantation in the west, by which operation he made a considerable amount. W. H. Bowen was worth nothing when Niolon & Co. ceased. C. C. Campbell & Co. sustained losses in cotton in 1836 and 1837 — they dealt very largely in cotton — owed some debts besides that to Robinson. Bowen was liberal in his dealings — does not know of a dollar that he has not assigned.</p> <p>John M. Gilchrist, the plaintiffs witness, testified that the bonds due John Robinson, Robinson & Son, and Robinsons &'Caldwell, mentioned in the first part of the assignment, amount to $60,000, payable in one, two, and three years. That the amounts due the banks, preferred in, the second class, was $110,000, $90,000 of which would be paid out of the sales of the property in Sumter district, under the bank executions, which were the oldest. He was unable to testify what was the amount of the debts due by the firm of C. C. Campbell & Co., but that he supposed they amounted to $200,000. That few persons had taken the trouble to send in statements of their debts to him, as they thought it useless.— That it will take him five years to wind up the affairs of the concern. The confessions of judgment which he had against Dr. Bishop, amounted to $40,000, and are preferred in the fourth class of the assignment. On his cross examination, he stated that the amount of western paper, all of which could be collected in two years, is $42,000, in the hands of Robinson &'CaldweIl — 16,000 had been withdrawn by himself before that, leaving the $42,000. There was due from Christopher H. Taylor, of Alabama, $10,000. The shoe store in Camden had been sold for $6,250. The Bishopville houses and lands, which were mortgaged to secure the securities of the bonds to Robinson, were worth 30 or $40,000— that Bowen had placed in one of the banks in Camden, and in the hands of Charles J. Shannon, (a judgment creditor to the amount of $9,000,) $14,000 in notes as collateral security. There was also some bank, rail road and hotel stock, mentioned in the assignment ; also some Alabama lands, worth $10,000 — also a lot, or lots, in Camden, mentioned in the assignment. George Q. MTntosh, plaintiffs witness, testified that he had the notes and accounts specified in the third and fourth division for collection, and not more than $4,000 would be collected from them. The question was asked of witness, John M. Gilchrist, the assignee, if from his acquaintance with the amount due and the value of the assigned property, the debts specified in the fifth class would ever receive anything ? It being objected to and overruled as incompetent, I also excluded his opinion and estimate as to the value of the assigned property. The witness, on cross examination, afterwards testified that as to the debts mentioned in the schedule, he had no knowledge of the solvency of many of the persons who were put down as debtors. That he had not examined, the papers that had been turned over to him. The plaintiffs also offered in evidence, a paper signed by W. H. Bowen, the defendant, in April, 1838, certifying to a large amount of money delivered over and paid to J. M. Gilchrist. This paper is in possession of plaintiffs attorney, and is to be submitted with this report. All the witnesses concurred in stating that Bowen was' very liberal and careless in his dealings, and had lost by going security and loaning money. The defendant called no witnesses. The jury found for the defendant on all the grounds contained in the suggestion, and the plaintiffs appealed on the accompanying grounds. At the suggestion of both party’s attornies, for the plaintiffs and defendants, I herewith submit this amended report.”</p> <p>COPY DEED OE ASSIGNMENT.</p> <p> J. Bishop and Wm. H. Bowen, to John M. Gilchrist. </p> <p>State oe South-Caroeina, 1 Sumter District. j</p> <p>Whereas, John M. Niolin and Jacques Bishop, late merchants and partners in trade, trading at Camden, under the name and style of John M. Niolin & Co., having dissolved their connection in business, and the books, accounts, notes, bills, bonds, judgments and choses in action and possession, of every description whatever, transferred, assigned, and set over to Jacques Bishop, and he is now the owner of what remains. And whereas, Lewis Johnston and Jacques Bishop, late merchants and partners in trade, trading under the firm of Lewis Johnston & Co., at Camden, have dissolved, and the books, accounts, notes, bills, bonds, judgments and choses in possession and action, have been assigned and set over to Jacques Bishop. And, whereas, also, the establishment at Camden, called the Millinery Store, was transferred to Jacques Bishop; and the whole, including all the debts and choses in action and possession, accounts, notes, bills, bonds and judgments, were assigned, transferred and set over to C. C. Campbell, Jacques Bishop, and William H. Bowen, late merchants and partners, at Bishopville, trading under the name and style of C. C. Campbell & Co., and the whole have become somewhat embarrassed, and desire to assign property in trust for the payment of their debts. Therefore, know all men by these presents, that we, William H. Bowen and Jacques Bishop, members of the firm of C. C. Campbell & Co., do, each for himself, and not one for the other, for and in consideration of $10 to each of us, paid by Thomas J.' Withers and John M. Desaussure, of the town of Camden, and John M. Gilchrist, of Bishopville, the receipt of which we do hereby acknowledge — and for and in consideration of the premises, have bargained, sold, released and assigned,- transferred, conveyed and set over, and by these presents do bargain, sell, release, assign, transfer, convey and set over to Thomas J. Withers and John M. Desaussure, of Camden, and John M. Gilchrist, of Bishopville, their heirs and assigns forever, the following property: that is to say, the said Jacques Bishop does hereby bargain, sell, release and convey to the said Withers, Desaussure and Gilchrist, their heirs and assigns, the lots and tracts of land described as follows, to wit: one house and lot in the town of Camden, on Littletonstreet, being the former dwelling of William H. Bowen; also, one house and lot in the town of Camden, on State-street, opposite De Kalb monument, both lots being purchased of William B. Parker; one lot of land in Sumterville, with store house and stables, being the lot purchased of H. Holleyman; one-third part of a house and lot in Sumterville, purchased at sheriff’s sale, of Thos. Cogland; one tract of land containing one. hundred and fifty acres, more or less, called Daniel’s Tract of Land, situate in Salem, in the district of Sumter; one other tract of land in Salem, containing one hundred and fifty acres, more or less, being the tract of land now occupied by Samuel M’Kay; one other tract- of land lying near Bradford Springs, containing one hundred and seventy-five acres, more or 'less, purchased at sheriff’s sale as the property of Stephen Burkett; one house and lot in Sumterville, occupied by John D. Bowen, purchased at sheriff’s sale as the property of John D. Bowen: one house and lot at Bishopville, on Camden-street, occupied by Wm. H. Bowen'; one storehouse and lot at Bishopville, on Broad-street, having a front of seventy feet, and one hundred and ten feet back, now rented to P. L. M’Intyre; one house and lot at Bishopville, on Broad-sffeet, containing half an acre, now.rented to Henry Holleyman; ten vacant lots at Bishopville, coiltaining one hundred and ten feet front, and two hundred and twenty feet back, on Camden-street, to be designated and laid out by Jacques Bishop; three vacant lots at Bishopville, situate on Broad-street, containing ninety feet front, and running back one hundred and ten feet, to be designated by Dr. Bishop, Isaiah Dubose, and K. C. Dubose, to release the lots sold at Bishopville, from the mortgage thereon ; also, seven hundred and twenty acres of land in the county of Marengo, in the State of Alabama, being the land for which Gaines Whitfield gave bonds for titles, to be sold on a credit of one and two years, if demandable ; one half of about twenty-two hundred and fifty acres of land, say his interest in about twenty-two hundred and fifty acres of land in the county of Marengo and State of Alabama, being the entries of land purchased of the concern of John M. Niolin & Co., Wm. E. Johns ton and John J. Blair, subject to one-fifth of the profits over costs, to be paid to James H. Bradfoot for entering it, to be sold on a credit of one and two years, with interest if practicable and advisable. Also, the following personal property, to wit: all the leather and hides at the tan yard, to be sold by the assignees so soon as it can be got up and prepared for market; also, all the household and kitchen furniture, now in the hands of John D. Bowen; also, one chestnut sorrel horse in the possession of John D. Bowen, the last two, to wit; the furniture and the horse, to be sold on the first day of January next, or so soon thereafter as the assignees can make sale thereof, as they are not to be delivered up before that time; also, three mules; one sorrel horse ; one wagon, now in the possession of John D. Bowen; also, all the debts due the said Jacques Bishop, individually, consisting of judgments, notes, accounts, bonds and choses in action of any and every description, a schedule of which the assignees agree to make out and furnish in fifteen days from the date hereof, which, when signed, shall be attached hereto and made part of this assignment; also, all the accounts, notes, bonds, judgments and demands of what sort soever, which belonged to the late firm of John M- Niolin & Co., Lewis Johnston & Co. and the Millinery store, a schedule of which shall be made out and signed within fifteen days from the date of these presents, or as soon after as practicable, attached hereto and become part of this assignment; also, all the notes, bonds, bills, judgments, and other debts whatsoever, which belongedto Bishop & Gilchrist, in the hands of John Rohinson & Son, or Robinson & Caldwell, of Charleston, or in the hands or possession or control of William Robinson, of Linden, in the county of Marengo and State of Alabama, to be collected by the said Robinson & Caldwell, and applied as hereinafter set forth and declared ; and the said Wm. H. Bowen does hereby assign and set over to the said Thomas J. Withers, John M. Desaussure, and John M. Gilchrist, their heirs and assigns, all the dues, demands, and sums of money due him from the firm of Christopher H. Taylor, William H. Bowen, and John M. Gilchrist, to speculate on negroes, as per written agreement; also, all his interest in nine negroes, now in the possession of Isaiah Dubose, in the county of Marengo and State of Alabama; also, all the demands he has on Christopher H. Taylor, of Marengo county, Alabama, consisting of notes, and one negro slave, named David, and one grey stud horse, the two last now in possession of said Taylor; also, one house and lot in the town of Kirkwood, near Camden: also, one vacant lot in Camden, on Broad-st. and the said Jacques Bishop and William H.' Bowen, two of the late firm of C. C. Campbell & Co., the said C. C. Campbell having retired from the concern, and being now out of the district, and the said Jacques Bishop and William H. Bowen, being now the owners and proprietors of the whole assets of the late firm of C. C. Campbell & Co., late merchants at Bishopville, do hereby assign, transfer and set over to the said Thomas J. Withers, John M. Desaussure, and John M. Gilchrist, all the notes, bonds, judgments, accounts, books and demands of any and every description whatsoever, a complete schedule of which shall be made out within fifteen days from this date, or so soon thereafter as it can be done, signed and attached hereto as a part of this assignment, in trust, nevertheless and to and for the uses and purposes hereinafter specified, set forth and declared; that is to say, to sell all the property, collect all the debts and sum or sums of money, and pay and appropriate the same as follows, to wit: that the proceeds of all the lots of land at Bishopville, directed to be sold by the assignees, be applied to the payment of the bonds now held and owned by John Robinson & Son, John Robinson, and Robinson & Caldwell, to which Isaiah Dubose, K. C. Dubose and A. G. Crosswell, or either of them, is security ; also, that the proceeds of all the lands directed to be sold, situate in Alabama, the interest of the negroes in Alabama above as signed, and all the drafts and bills of exchange, and other papers, notes, &c., now in the possesion and power of John Robinson, John Robinson & Son, and Robinson & Caldwell, of Charleston, and William Robinson, of Linden, in the county of Marengo, in the State of Alabama, be applied to the payment of the said bonds to Robinson, Robinson & Son, and Robinson & Caldwell, or either or any of them, secured by the persons above stated, and that the said drafts and bills which formerly belonged to Bishop & Gilchrist, C. C. Campbell & Co. or William H. Bowen, be collected by the said Robinson & Caldwell, and appropriated by them, and if a sufficient amount to pay the first instalment of said bonds be not collected, then the assignees aré required to pay said first instalment out of any money arising from any of the property assigned, and the said debts in the hands of the Robinsons and Caldwell shall stand for the balance of said bonds, each to be paid equally, that is, the same per centum: Secondly, that the assignees shall sell and convey all the lots and tracts of land above assigned, (except the lots of land at Bishopville and the lands in the State of Alabama, which are already disposed of,) on such terms as they think most for the benefit of the assignors, and that the proceeds be applied to the payment of the Bank of the State of South-Carolina, at Charleston, against C. C. Campbell & Co., Jacques Bishop and William H. Bowen, or any or all of them. Thirdly: that the said assignees collect all the accounts, notes, bonds, judgments and debts of every description, so soon as it can conveniently be done, and with the monies collected pay first the first instalment of the bond due Robinson & Caldwell, John Robinson & Son, and John Robinson, if it be not paid by collections out of debts and from the sales of property above designated for that purpose, the costs and charges of this assignment, and the principal and interest due on a bond given in eighteen-hundred and eighteen, or nineteen, to Moses Sanders, at Darlington Court House, which was drawn, or directed to be drawn, by the Pión. Josiah J. Evans, to secure Mrs. Penelope Bishop the sum of about five thousand dollars, being the amount of her share of the real estate of Col. Benton, purchased by William Thomas. Fourthly: after the payments above designated be made, all other funds arising from 'this assignment, unless herein otherwise disposed of, shall be appropriated from time to time, of which one month’s notice shall be given, to all the judgments against Jacques Bishop, C. C. Campbell & Co. John M. Niolin & Co. Bishop & Gilchrist, or either or any of them, and to all notes, bonds, bills of exchange, or other evidences of debt, or any, either, or all of them oh which there is an indorsement or security, (including those bonds above partly specifically provided for to Robinson & Caldwell,) and any sum of money that may appear upon settlement, if any such will appear to be due to John M. Gilchrist by Jacques Bishop, pro rata, provided the debts of the grades above specified be presented ; but if, after notice of one month given, they are not presented for payment, those not presented need not be regarded in the payment directed to be made. Fifthly: after the payments above designated to be paid, be made, the balance of the funds shall be applied ' to the payment of all debts owed by Jacques Bishop, C. C. Campbell & Co. William H. Bowen, Bishop & Gilchrist, or either of them, and all debts for which all or either of them are, or is liable, pro rata. In every instance where payments are directed to be made pro rata, notice of an intention to pay shall be given for one month, designating the time and place of such payment; and any one not presenting his debts shall receive nothing at that time, nor can he render the assignees liable for paying away the funds to other debts and omitting to pay his. His debt may be presented at any'other payment. Any one or more of the assignees who will accept has full power and authority to carryout the purposes of the trust herein stated, and for that purpose to employ an attorney or attorneys under him or them to dismiss them or any of them at pleasure, to pay said attorney or attornej's, agent or agents so employed, what they may judge reasonable and proper for their services, out of the trust fund. They shall also have fall power and authority to settle, arrange and compromise debts, supposed to be bad or doubtful, as they may judge most conducive to the interest of the assignors, and all interested in the property and debts assigned, and .the payments made to agents and attorneys for their services, shall not interfere in any way with the compensation to be received by the assignees, or be considered part of their compensation. The acting assignees shall receive 5 per centum commission for their trouble over and above all costs, charges and expenses of collecting and paying away, and each shall be responsible for his own acts only, and if the property and debts above assigned, be insufficient,to pay the debts due and directed to be paid, then, and in that case, J. Bishop agrees, and hereby binds himself to deliver over to the assignees, and the right of property is hereby changed, fifty negroes, to be designated in families by J. Bishop, and any'other surplus property he may think proper to be disposed of; and if after payment of all debts directed to be paid, there shall still remain in the hands of the assignees any property or funds, then, and in thqt case, the assignees will return the surplus to J. Bishop or his assigns. In witness whereof we have hereunto set our hands and seals, at Bishopville, this nineteenth day of February,, in the year of our Lord one thousand eight hundred and thirty-eight,'and in the sixty-second year of American Independence.</p> <p>Jacques Bishop, (u. s.) .</p> <p>William H. Bowen, (l. s.)</p> <p>Signed, sealed and delivered,) in presence of , $</p> <p>Alex. Graham,</p> <p>T. D. Bishop.</p> <p>The plaintiffs appealed, and now moved for a new trial upon the following grounds: . -</p> <p>1. That the assignment executed by Jacques Bishop and William H. Bowen, on the 19th of February, 1838, did by its very terms, give an undue preference, within three months previous to his arrest, to some of the creditors of the defendant, to the prejudice of the plaintiffs.</p> <p>2. That the facts in evidence before the jury, made out a case of undue preference of some of his creditors by the defendant, to the prejudice of the plaintiffs, within three months before his arrest.</p> <p>3. That the assignment by Wm. H. Bowen of. his property, to pay the bond given in 1818 or T9, to Moses Sanders, at Darling-ton Court-house, which was drawn, or directed to be drawn, by the Hon. Josiah J. Evans, to secure to Mrs. Penelope Bishop, the sum of about five thousand dollars, being the amount of the share of the real estate of Col. Benton, purchased by Wm. Thomas, was a voluntary gift for the benefit of Mrs. Bishop, and such a fraud on the creditors of the defendant, within three months before his arrest, as to deprive him of the benefit of the prison bounds act.</p> <p>4. That the said assignment by the defendant, on the 19th February, 1838, to pay the debts of Jacques Bishop, and particularly of such balance as might be due to John M. Gilchrist by Jacques Bishop on settlement, is a fraudulent conveyance of the defendant’s property to defraud his creditors, within three months before his arrest.</p> <p>5. That the commissioner of special bail excluded the testimony of John M.,Gilchrist, the assignee, as to the value of the property set forth in the assignment and schedule of the 19th Feb., 1838.</p> <p>6. That the commissioner of special bail refused to suffer the said John M. Gilchrist, the assignee, to state whether A. R. Ruffin and others, named as debtors in the said schedule, did not inform him that they had claims against the assignors in the said assignment.</p>

<p>[In the succeeding case, the want of a plat connected with the papers, renders the precise points upon the question of location, scarcely intelligible. A plat seems to have been exhibited to the Court of Appeals, upon the argument of the case, and is referred to in their opinion; but none has come to the hands of the Reporter — and he has been obliged to report the case as well as he could without one.]</p> <p>The action of trespass, quare clausum fregit, is the appropriate action for a violation of the plaintiff’s possession of lands. If he be in the actual occupancy, he can maintain the action without title. If his possession be constructive only, and not actual, he cannot maintain it without proof of title.</p> <p>In the execution of a writ of habere facias possessionem, the sheriff should put the plaintiff into full possession; and to do this, he may put out not only the defendant, hut all others, it seems, who are in possession. This he is authorised to do by the writ; but the title of no person is in any way affected, except that of the defendant and those who hold under him.</p> <p>One of the rules of location is, “ that the line shall be run according to the boundary; and that the boundary is to be observed, although the course be different.” In Atkinson v. Anderson, 3 M’Cord. R., 323, it was held, “ that where a junior grant called for a senior as a boundary, the boundary should be followed, although it was a zigzag instead of a straight line,”— and in Martin v. Simpson, Harp. R. 455, it was decided “ that where the boundary called for, extends only along a part of the line, then the boundary is to be observed as far as it goes, and the balance of the line is to be run according to the course called for on the plat.</p>

<p>Before GANTT, J., at Darlington, Spring Term, 1839.</p> <p>The report of his honor, the presiding judge, is as follows:</p> <p>“ The above cases, involving questions, respecting the same subject matter or right, had been referred to .arbitration, and the arbitrators returned their award, which, on motion of Mr. Sims for that purpose, was confirmed by the court. The motion was opposed on the ground, that such judgment is incompatible with, and repugnant to the pleadings and the records in the foregoing cases, and has the effect of substituting parties, and altering their position on the records.</p> <p>I did not consider that the arbitrators were bound by any technical rules in the formation of their award, and as no objection was raised against the correctness of the award made, other than as above, I saw no reason why it should not be made the judgment of the court, and ruled accordingly.”</p> <p>G. W. & J. A. Dargan, in behalf of Samuel Wilson, appealed from the decision below, and now moved this court to set aside the order of the Circuit Court making the award of the arbitrators in these cases the judgment of the court; on the ground that such judgment is incompatible with, and repugnant to the pleadingsand the records in all the foregoing cases, and has the effect of substituting parties, and altering their position on the records.</p> <p>These cases were submitted to an arbitration. The arbitrators awarded that Samuel Wilson should pay to Carma Parnell, $255. An order was made by the court, that this award should be made the judgment of the court. I have been anxious to see what form of judgment would be invented by the appellees counsel to suit the case, or rather cases; in what way these actions, each of them in a different form and between different parties, are to be amalgamated and blended together, so that an award, that Samuel Wilson should pay Carma Parnell $255, should become the judgment of the court in all of them. I am at a loss to conceive such a judgment. If the inventive ingenuity of the age can frame one, sanctioned by the courts of this State, it will form an era in the history and system of pleading. The order must be reversed. It is impossible that a common judgment can be rendered in the three different cases, each in a different form of action, and each between different parties. It is impossible that an award, that Samuel Wilson should pay C. Parnell $255, should be made a judgment of the court in a case of C. Parnell v. W. W. King and Yarborough, when the award was not against King and Yarborough. It is impossible that this award should be made the-judgment of the court in the case of Samuel Wilson v. M’Kagin, which was a summary process for trover. — ■ It cannot be made the judgment of the court in the case of Samuel Wilson v. C. Parnell, because the action was by Wilson against Parnell, and not by Parnell against Wilson. Parnell, on the rerecord and in the pleadings, claimed nothing of Wilson. Wilson claimed damages of Parnell and not Parnell of Wilson; and how can the court give a judgment for Parnell beyond the costs of suit. Such a judgment is unknown to our system of legal proceedings, except in the single case under our statute law, where in an action ex contractu, the defendant gives notice of a discount, which is quasi a cross action. The plea here is the general issue, (see copy of record,) and no notice of discount filed. What is a judgment ? It is the decision and sentence of the law, delivered by the court, between the parties to the suit, on the matter contained in the record and set forth in the pleadings, (Jacob. Die., title Judgment). Is there any thing in the record which would authorize the court to give a judgment in favor of Parnell v. Wilson? Is it pretended in the pleadings that he owes Parnell a cent, or that Parnell has sustained damages by him to the value of a cent ? How can the court then proceed to give judgment against him as plaintiff in the action, except for costs. The award, in fact, is not within the terms of the submission. What was submitted ?</p> <p>We will pi’oceed to analyse the case: The case of Parnell v. King & Yarborough, was submitted; the matters contained in that action were submitted. It was an action for certain trespasses, alleged by the plaintiff to have been committed against him by the defendants, King & Yarborough. The arbitrators do not find that King & Yarborough committed the trespasses, or that Parnell has sustained damages from King & Yarborough. There was nothing of record in this case which involved Wilson’s acts or responsibilities, and therefore, so far as this case went, there was nothing submitted which could authorize the award against Wilson. — > There was no general reference of all matter's in dispute between the parties; and if there had, it could not be made a judgment of the court in the actions, except so far as the actions embraced the causes of the controversy in these cases. “The cases,” that is, the matters involved in the actions, were submitted. See 2 Sellon. Prac. 351, where it is said, “it is material to observe the distinction between a submission to arbitration of all matters in difference between the parties in the cause, and a reference of all matters in dispute in the cause between the parties; for the former being general, is not confined to the subject matter in the particular actions then depending, but will extend to cross demands between the parties, though not pleaded by way of set off; and the costs being to abide the event, will malte no difference; but the latter is confined solely to the matters in dispute in that particular case.— See Tidd’s Prac. 2 vol. 746. In Owen v. Hurd, 2 T. R. 643, a submission to arbitration between A. and B., the parties on record, having been made a rule of court, which award not having been made in due time, the dispute had been referred a second time, by B. and C., the real parties in the suit, nó attachpnent can issue against B. for not obeying the award made by the second arbitration, because the reference should be made by the parties on record, and even if it had, there should have been another rule to make the second submission a rule of court, and as the court had no jurisdiction in the case, they could not go into the merits, though B. consented to waive the objection. So in this case, the matters referred being the matters contained in the three suits, the arbitrators could not travel out of the record and go into a general investigation of all matters in dispute. Sellon, in his treatise on Practice, 356, says, “ to render an award legal and effectual, it should be made agreeable to the submission of the parties, it should not extend beyond it, neither to any matter not included in it, nor to any person not a party to it, nor should it be only parcel of the things submitted.” Parnell has by his action claimed nothing, except from King & Yarborough, and the award gives him damages against Wilson; and supposing that Wilson is the real party, and that an action may perhaps be sustained against him on this award, yet he not being a party in any case in which Parnell, on the state of the pleadings, could by possibility, according to the rules of pleading, have recovered against him damages, such award cannot become the judgment of the court, and Parnell will be turned over to his action. The court, as in the case of Owen v. Hurd, not having jurisdiction, cannot go into the merits.</p> <p>This order was made by the presiding judge, under the impression that there had been a rule of court referring the cases to arbitration ; but there was in fact no such rule. — (See certificate of clerk.) — The reference was made by the parties, by private arrangement among themselves. In no case will the court, when the submission has not been by an order of court, enforce the award either by attachment or by making it the judgment of the court; but in all such cases the court will leave the parties to their remedy by action, or bill in equity. — 1 Salk. 83, Tidds. Prac. 755, 760. See Sellon’s Prac., 2 vol. 343, et seq. Even when an award is made under rule of court, it is not the practice to make the award the judgment of the court; but simply to confirm it and enforce it by the process of attachment. See ibid.</p>

<p>These cases came up on an appeal from the decision of his honor, Judge Richardson, made at Fall Term, 1838, in the Court of Common Pleas, for Richland District. As the questions arising in the cases involved the constitutionality of an act of the legislature, the appeal lay directly to the Court of “ Errors,” organized under the act of 1836. In order to the better understanding of the cases, the report of his honor, Judge Richardson, is given at length, and is as follows :</p> <p>In these cases, the Rail Road Company claimed the right to take the defendant’s land, for constructing the road. The use of the land was not objected to, provided the route should be so located as to do the defendants the least possible injury; but the company refused to take a relinquishment on these terms, and insisting to locate the route as they pleased, filed a petition to the court, praying the appointment of commissioners, to assess the damages to be sustained by the defendants ; ánd served notices to show cause why the same should not be done. The following cause was shown:</p> <p>That in the case of the first named defendant, he had offered in writing, to the President of the Board of Directors of the Company, to cede the right of way gratuitously, if the company would locate the road on his land, on the south side of the track; but if they would not do this, and insisted on occupying the location designaled by the engineers, which so intersects it as to cut it into three fractions, then the company must pay a specified sum, and if both these should be declined, then the work must cease, as regarded his land. The president afterwards informed this defendant in writing, that the directors had decided that the location designated by the engineers, was necessary for the road, and that that location was established. ■ The work has, however, progressed on this defendant’s land, contrary to his wishes, and against his positive orders.</p> <p>In the case of the other defendants, they were willing to cede the land necessary for the road, and even to pay a sum of money to the company, if the route should be so located as not to destroy the dwelling and settlement. But the company determined to take the route designated by the engineers. In this state of things, the petitions are presented.</p> <p>The defendants object to the authority of this court, to appoint commissioners to value their land, because that section of the act of incorporation, which gives the right to take such lands, or right of way, as the company may require, is contrary to the constitution of the United States. It proposes to vest in the company, the right to take any man’s property for private use; to interfere with, and destroy vested rights ; to confer a despotic power on a corporation, which is alike inimical to civil liberty and equal rights, and which neither the legislature can authorize, nor this court rightfully enforce.</p> <p>If, however, it shall be determined that the law is constitutional, yet this court will interfere, and require the company to exercise the authority, with a due regard to the rights of those whose land may be required.</p> <p>In these cases, the route proposed to be ceded by the defendants, would not lengthen the road more than one hundred yards at each place, and in a part of the way, would be on ground requiring less embankment, and is altogether practicable. But it is said it would impose additional cost on the company, and would require curves in the road. In the first stated case, there is already a curve, and it would require it only to be a little extended.</p> <p>After' argument, the presiding judge delivered the following opinion:</p> <p>The charter of the Cincinnati, Louisville & Charleston Rail Road Company authorizes the company to lay out a rail road from Charleston, to Lexington, in Kentucky ; and to purchase the land required for the track of the road. The State of South-Carolina has granted the charter, .jointly and severally, with the States of North Carolina, Tennessee and Kentucky. Where the company cannot agree, in the value of the land, with the freeholder, they are authorized still, to construct the road; and to have the value assessed, by five commissioners, 1o be appointed by this court. And, if either party should be dissatisfied with the assessment, he may appeal to the court and a jury, for the final assessment; which is made conclusive and binding; and the land vested in the company, upon payment of the money. The company have marked out the road from Branchville to Columbia, in South-Carolina. But in the instances before the court, the parties could not agree upon the value of the land. Whereupon a rule was served upon the defendants, to show cause, if any they could, why five commissioners should not be appointed, according to the terms of the charter, &c.</p> <p>The defendants showed cause in writing, which will be exhibited to the court.</p> <p>The objections to the appointment of commissioners consist in the following allegation: That the power given to the company, to construct the rail road over the land of individual freeholders, is contrary to the constitution of the State of South-Carolina, and that of the United States. Because — ■</p> <p>1. The charter endows a mere private, and not a public corporation ; and private property cannot be taken for the use of such corporation; even upon full compensation.</p> <p>2. That, even if the land be considered as taken for public purposes, the legislature cannot transfer to such a company, its constitutional power, or eminent domain, to take private property for public purposes, against the consent of the owner, with, or without compensation.</p> <p>3. That, in any event, the company ought to be constrained to lay out the road, so as to put the freeholder to the least inconvenience and loss; notwithstanding it might cause greater expense to the company, in the construction of the road. And</p> <p>4. That the compensation to the freeholder ought to be made before the land can be taken, and the road constructed.</p> <p>The primary question of the case is readily disposed of. All the writers upon the fundamental principles of national societies agree in this position: that private property, real or personal, may be taken for the public use, upon full compensation made to the owner. 1 Black., 139 ; 2 Kent, 270 ; 3 Story Const., 661 ; Tucker’s Appendix, 304; 3 Wilson, 303 ; Yattel b., 1 ch. 20, p. 244; Puff. b. 8, ch. 5, 13, 7; Bynk., c. 15; 3 Dallas, 195, 2 D. 34; Peters, 99, 111, &c.; Rawl. 128, &c. In our adjudications, the position has been uniformly allowed, as undeniable. Lindsey v. Com’rs, 2 Bay, 38 ; M’Gowen v. Starke, 1 Nott & M’C., 387 ; Eaves v. Terry, 4 M’Cord, 125; Ford v. Whitaker, 1 N. & M’C., 5 p’Com’rs v. Singleton, 2 N. & M’C. 528; State v. Dawson, Riley’s Collection, 103.</p> <p>Some of those cases, in fact, go farther, and do not require compensation, as a strict right of the freeholder. The 7th article of the Amendments to the Constitution of the United States, &c., “ nor shall private property be taken for public use, without just compensation,” is a plain recognition of the same principle. And it may be now taken, as a principle expressed, or implied, in every one of our State Constitutions. “ It is a principle (says Judge Story, 3 vol., 161)'of universal law.”</p> <p>But, I had occasion so lately, in the case of the State v. Dawson, (Riley’s Col. 103,) to discuss and present the authorities, that I will now content myself with referring to that argument, and noting the authorities.</p> <p>First, then, can private property be so taken by public authority, for the use or emolument of a mere private corporation ?</p> <p>I am not aware that such a point has been specifically adjudged in South-Carolina. But, if the question mean, can the property of one individual citizen be so taken, against his consent, for the exclusive use of another, or of a private corporation, I would readily answer it in the negative; even when sanctioned by an act of the legislature.</p> <p>But, as this is the point upon which several defendants, in similar cases, have exhibited strong feelings, I will attempt to disabuse their understandings of such a misconception of the charter to the rail road company, by a brief analysis of what practical government consists.</p> <p>Man and his powers, moral, intellectual and physical, constitute the elements of all governments — man and such of his powers as are organized and digested in a national constitution, make the particular State government, and indicate its character and authority. And beyond the authority so given, the government cannot go. The government is itself controlled by the constitution. But the practical use of all such authority, through the means of human agents, constitutes the indispensable administration of the government.</p> <p>No one will deny, at least the last proposition. Governmental power must be administered, and practically used.</p> <p>Now, by virtue of the charter of the rail road company, land is taken for the purposes of a public way: not for the use of a corporation; but, for the convenience of travellers, and for the transportation of goods and merchandize.</p> <p>The fact that the toll, freight and emoluments are to go to a private corporation of individual stockholders, instead of the public coffers, does not alter the character of the road. It is not less a highway.</p> <p>The land is taken for a public road of a peculiar character, requiring great art, skill and labor for its construction ; and the company, who construct the road, and keep it in repair, at their own expense, receive their compensation, by an assignment of the public right to receive the same, of individual travellers, and freighters.</p> <p>The company are mere agents, to do the work. Such is the case with every keeper, or lessee of a toll-gate, or a turnpike road, for keeping a part of the road in repair, — with every owner of a ferry, or public bridge! for his services, in keeping it in good order. All these are public roads, or parts of roads. But the legislature can, as well, construct, farm out, or lease a rail road, as any other road. And they have the same right, as individuals, to assign, lease, or vend public property — be it a road, or other subject of property. Every office of the State is of the public property; and consists in a privilege, or public franchise. Yet, the emoluments go to individual officers. To deny to the legislature such a right of assignment, because the emoluments are obtained through public property or an office, would be to deprive the State of the use of its individual citizens, in the one case, and to estop the administration of government in the other.</p> <p>Every step of national government, and every practical use of public property, requires a salary, or wages to him that administers the authority of office, or guards the property.</p> <p>To compensate for real services, is, indeed,-a primary principle of the American constitutions, as well as to repudiate sinecures. Full compensation for personal services, or property, belongs to governmental protection, and distinguishes free governments.</p> <p>To say, therefore, that because the company are no more than a private corporation' of individuals, they cannot be employed, by the proper authority, to construct a rail road, and to take the emoluments of such way, as a compensation, would be a proposition leading to the absurd consequence of disfranchising the State of rights essential to its practical existence. Upon this head, I would especially refer those, who may still doubt, to the North-Carolina case, of Gaston and Raleigh Rail Road Company v. Davis, in which it is unanimously decided, that the rail road was a highway.</p> <p>2. But, secondly, can the legislature assign to any corporation, .the eminent domain inherent in national societies, to take private property for great public purposes ?</p> <p>This original right belongs exclusively to the association of men, forming national society, but is, from necessity transferred, for the purpose of practical use, to the government of all popui lous countries, and is limited, or unrestricted and plenary, according to the fundamental rules, by which the people have chosen to bind themselves in a State constitution.</p> <p>By the constitution of South-Carolina, this high privilege has been transferred to the legislature of the State, evidently, under the restriction that full compensation shall be made to the owner of the property taken for public use. And, from inherent reason, the transfer is coupled with the high trust, that it shall not be infracted in the conditions of the constitution; nor perverted nor abused in any way.</p> <p>Such high power and special trust plainly imply that the eminent domain cannot be transferred from the primary and specific agent, to whom it has been confided by the constitution, to any secondary hand whatever. Such a transmission would be utterly inconsistent with the letter, the objects, or the ends of the constition: and at war with well established rules for the construction of trusts and agencies, as well as the practices of governments.</p> <p>I cannot conceive of a higher judicial power; although placed at the discretion of the legislative department of the government. And a proper sense and conception of the eminent domain, restricted by the condition of full compensation, will be found to be very important, when we come to consider the fourth ground taken, and the application of the trial by jury to the case before us.</p> <p>But the proper question, for. the present, is — has the legislature, in fact, transferred to the rail road company, the privilege of taking private property ?</p> <p>On the contrary, the whole argument arises from a confusion of subjects; which, although associated, are not identical; or, from an indistinctness of thought upon matters, as one; but which are plainly distinguishable.</p> <p>The whole use of the eminent domain, in the instance before us, is to be found in the enactment, that a. rail road shall be constructed between specific termini: and the land essential for its track and construction, shall be released, for the purpose of the road, upon full compensation, be such land whose it may. Surely this is an intelligible and plain exercise of their high privilege by the legislature itself, and not by the company. The provisions, that the precise track of the road, preserving the termini, shall be marked out, and the road constructed by the company, are mere executive or mechanical processes; like the ordinary administrative offices of overseers, surveyors, and operatives, to lay out and open a public road, or erect a public building, upon land before designated, and appropriated to such public use.</p> <p>In all such cases, the use of the eminent domain is to devote and appropriate the land by the legislature itself. The surveyor then locates the precise spot, from the statutory grant; and an architect and operatives construct, or build upon the land thus granted, and made public property. But the original statutory grant is alone referable to the’eminent privilege of taking the land. This second objection to the rail road charter is, therefore, merely specious, and must yield to the truth.</p> <p>3. The third objection is, that the company should be restrained to such a track for the road, as to do the least injury to the freeholder. But, assuredly if there be any wanton abuse of power in designating the precise route of the road, the freeholder would have his remedy in increased compensation, or in an action for malicious damages; and in an extreme case, the remedy by injunction to restrain the company, would be available. But no such inquiry is now before the court. It may come hereafter before the commissioners, or the court and jury, in case of appeal; or be brought before the Court of Equity. In any such event, the remedies are ample. But this court will not pre-suppose an abuse of the practical power of the company ; when the supposed abuse and consequent injury to the freeholder, will be the main consideration for the commissioners or jury, in assessing the necessary compensation, if such abuse really exist.</p> <p>This objection is therefore out of time and place; and must be referred, if any, without prejudice, ad aliud examen — to the commissioners appointed, or the jury, if there should be an appeal to that tribunal, who will do the office assigned to them by the charter, and doubtless make the company pay the proper equivalent for the land taken from the defendants; upon a just balancing between the immediate advantages and disadvantages attending each case. The aim and object will be just and full compensation for the true loss to the freeholder.</p> <p>4. The fourth objection is, that the compensation must be made to the owner, before he can be disseized of his freehold for the use of the road, or the land appropriated.</p> <p>This objection arises from a mistaken and indefinite apprehension of the object, purpose and character of the eminent domain of government.</p> <p>If that principle pre-supposed any agreement or assent of the individual owner, as necessary, before the appropriation of the land, then, an assessment and actual compensation would be required before the divestiture of the citizen.</p> <p>But the eminent domain pre-supposes a public right to use private property, for public purposes, with or without consent. Such liability inheres in all property, as a moral element of society, in return for the general security and protection of individual rights: for his inviolable civil liberty — the sanctity of his castle — for the guard over his property, in all other respects — for his security in person and character at home — for the guaranty of his enterprises and respectability abroad. It is for such practical equivalents: not through veneration of power, that the sovereignty of government may assess and tax our property; and may assign any property for public purposes, upon a fair compensation upon the same principle that permits taxation. In this way, the appropriation made for all, is paid for by all. And we see one of those glorious checks upon power, which keeps it right in practice, and beneficial. The general principle is, that private property may be taken. The peculiar condition of democratic governments is, that adequate compensation must be made : not that the force of the public privilege is less in free, than in despotic governments: where the property may be taken without compensation.</p> <p>From this simple exposition, it is readily seen, that the property may be converted to the public use, instantly, if so ordered by the government; notwithstanding the individual right to compensation.</p> <p>Were it otherwise, a highway could not be constructed, but after such delay as would be a source of anarchy.</p> <p>And a private house or enclosure could not be used for a fortification, upon the most urgent emergency and the common safety. It is upon the same principles that property is not only taxed annually at the discretion of government; but that the private domicile and castle which are so cautiously protected, may yet be forced open, in the pursuit of criminals. For crimes, and to the public exigencies, all individual rights yield and give place; and even life may be taken. The state of war illustrates admirably the efficiency of the eminent domain. Not only past contracts with the enemy are cancelled, or at least suspended; but all trade estopped as if prohibited by the original society and social state of man, and we thus readily perceive how various are the applications of this governmental power.</p> <p>Reverting back for a moment to the 1st, 2d and 3d grounds taken, it may be seen why the privilege of the eminent domain can be used only by the legislature itself; but must, of necessity, be at its sound discretion. Its use depends upon the progress, position or exigency of the State. And our own domestic history illustrates how various must be the applications of this high privilege.</p> <p>When Charleston was first settled, it required much fortification, and many exterior forts. These were erected at discretion, and the whole eminent domain confined to forts and city lanes. The people wanted no highways; and, accordingly, a ride “ up the path,” to use the early phrase of our mother city, presented the whole road statistics of the Lords Proprietors of Carolina. For a series of years after, Indian paths occasionally opened by the axe, served our frontier herdsmen, and rvere enough for the province.</p> <p>But, as soon as commerce penetrated into the country, the king’s highways were opened along the great rivers. And, with this change of time's, roads, bridges and ferries were called for, in rapid succession, while, at every new application, the land holder stood upon his magna charta rights. But Lindsey and A. B. Starke, Withers, Eaves, Dawson, and all were taught, successively, how strong and various were the powers of the people’s government to devote private property to public uses, even without compensation in some cases. The first road act to open highways, without paying an equivalent to the landholder, is of modern date, (1788,) and probably gave rise to many of the adjudications I have noticed, but in which my own judgment never can concur. These decisions go with some exception, upon the principle that the eminent domain is paramount: requires no compensation; and it would seem, may be even delegated by the legislature, as in the road act of 1788, now repealed. If our rail road system stood upon such footing, I should be for much reconsideration of the entire subject. The third direction that has taken place in the use of the eminent domain, was in its applications to canals, and the widening of old, and the opening of new streets in Charleston, in which private property has been properly respected. The legislature, themselves, corrected the former abuse of their great constitutional prerogative ; and ordered compensation in all these latter instances, and they clearly deserve our thanks for such respect for the constitutional law, and vested rights. It is a fine instance of the advancement of moral influences. But even this last great improvement in legislation was unsatisfactory, if not deficient, in the omission to refer the question of valuing the lands taken to the proper tribunal of a jury.</p> <p>But in the law now before us, which lays the foundation of a great and growing system of rail roads, pervading the whole State, the omission has been supplied; and the question of compensation is required to be finally decided by the fixed constitutional tribunal of a jury, instructed by the constitutional judges and subjected to their supervision. Such a system, fairly used, must and will conciliate the whole country. The rail road act comes, therefore, up to the Constitution of South-Carolina, and admirably illustrates the justice and wisdom of Judge Waties’ opinion, given very soon after its adoption, in Lindsay’s case, (2 Bay. P. 38,) that our constitutions enact compensation, as a right of the citizen.</p> <p>But the principle which requires compensation for private property, taken for public purposes, would have been very incomplete and uncertain without some tribunal beyond the selection or control of the legislature itself; or any dominant majority whatever, in evil times.</p> <p>The moment compensation is required as a constitutional condition, although the property may be instantly taken, the principle unavoidably means a positive right to adequate compensation.— And such right presupposes an independent tribunal to decide upon the amount in money.</p> <p>Now, then, the 9th article, 6th section of the constitution, declares, “ The trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved.” “ For ever.” Such terms would seem to indicate, that no power less than a primary convention of the State, can change these particular provisions. But, at least, our rights of property and reputation, are brought within it and. inviolably subjected to it, by universal acknowledgment, except in a few particular cases,.in which trial by jury would be incompatible with the question made. Why then, I ask, should the absolute right to compensation for property wrested, at discretion, from the owner, be adjudged by any tribunal nominated at the discretion of one party to the controversy only I</p> <p>The very character of such a case raises a question for severe contestation, before the most inflexible and incorruptible tribunal of justice and the constitution. For illustration, do but call to mind the possible case of another Hamden, or Jinks, before any unconfirmed judicature.</p> <p>For such reasons, while I rejoice at this new provision and reference in the rail road charter, to a jury to decide, wherever required, upon the extent of compensation; and while I will not say that in the state of our own past adjudications, I would feel myself justified in holding the charter unconstitutional without such a provision, yet, for the same reasons, I cannot concur in that one point with the decision lately made by the Supreme-Appellate Court of North-Carolina, in the case of the Raleigh and Gaston Rail Road Company v. Davis, while I do fully concur in every other respect, in that very enlightened and able adjudication, which involves and decides the main points now before this court; and would, I cannot doubt, give great satisfaction, if not entire conviction, to all the freeholders whose cases have been before me, and whom I have failed to convince, that their property has been taken for great State purposes, and not assigned over to a mere private corporation. And I must be allowed the foregoing brief reasoning, why I cannot altogether concur in the entire conclusions of that very clear, and in all other respects, convincing judicial argument.</p> <p>The five commissioners are therefore appointed, according to the rail road charter, and consist of-”</p> <p>From which order the defendants appealed, on the following ground:</p> <p>Because that part of the act incorporating said company, which authorizes it to take such land and right of way as it may require, and which vests said land in said company, is unconstitutional, in the following particulars, viz:</p> <p>1. In vesting said land, which was private property, in the company, and does not vest it in the public.</p> <p>2. In vesting the road in the company exclusively, and not in the public, and is therefore not for the public use, but for a private one.</p> <p>3. In disseizing the citizen of his freehold contrary to the law of the land.</p> <p>4. In interfering with and destroying the vested rights of the citizen.</p> <p>5. In giving to the company such privileges and authority as to destroy that equality of rights and laws which is guaranteed to all.</p> <p>6. And in conferring a power on the company which is oppressive and tyrannical, and .which is uncontrollable, unless the court will restrain its exercise, and which is contrary to the spirit of ours and of all free governments. And because, if it be constitutional and right that such a power should exist, the court should so order its execution as to protect the citizen, from great sacrifice of property or feeling, unless it be impossible to avoid it. And the mere inconvenience of the company, or additional cost in constructing the road on a different route from that proposed, is not sufficient to protect the company in the exercise of an arbitrary power, or to prevent the court from restraining that power in favor of the citizen, and of ordering the road to be so located as to do the least possible injury to private rights.</p>

<p>A State Court has no jurisdiction over the offence of stealing a letter from the mail in violation of the act of Congress of 1825, regulating the post office department. (The case of The State vi Wells, 2 Hill, 687, contra overruled.)</p> <p>By the constitution of the United States, as well as upon general principles of law, a criminal offence arising under, and created by, an act of Congress, is punishable only in the courts of the United States.</p> <p>An act of Congress conferring jurisdiction in such a case upon the State Courts, is unconstitutional and void.</p>

<p>Before EARLE, J., at Lancaster, Fall Term, 1837.</p> <p>This was an action of trover by way of summary process for a mare. The plaintiff sold a mare to one Hugh Massey, for $45, in the fall of 1835, and delivered her to Massey, calling on two by-standers to bear witness that the mare was to remain his property until she was paid for. The delivery was made on that condition, with the assent of Massey, who said he had bought her on those terms. Massey had her in possession until she was sold, and since left the country. The defendant sold her as the property of Massey, under execution; plaintiff forbidding the sale, and claiming the mare. His honor, the presiding judge, decreed for the plaintiff for the value of the mare.</p> <p>The defendant appealed, and now moved for a nonsuit or new trial on the following grounds:</p> <p>1. Because, by the sale to Massey, plaintiff having parted both with the possession and right of possession, trover will not lie.</p> <p>2. Because, even regarding the contract with Massey to be in the nature of a mortgage, still the possession and right of possession remained in Massey, till condition broken, consequently trover will not lie.</p> <p>3. Because the seizure and sale by the constable being by competent and legal authority, and not tortious, a demand and refusal ought to have been proven.</p> <p>4. Because the plaintiff, by permitting Massey to take possession of the mare, stands towards him in the position of a creditor, consequently any agreement by which the mare should be made responsible for his debt, would be fraudulent and void as to other creditors.</p> <p>5. Because the verdict is contrary to law and evidence.</p>

<p>The general rule is, where an accusation includes an offence of inferior degree, the jury may discharge the accused of the higher crime and convict him of the less atrocious.</p> <p>An indictment under the act of 1821, for the murder of a slave, includes within it the inferior offence of “ killing in sudden heat and passion,” to the same extent and for the same reasons, that murder at common law includes manslaughter; and therefore, on such an indictment, the prisoner may he convicted of the inferior offence described in the second clause of the act, “ of killing on sudden heat and passion.”</p> <p>In England, it seems that on an indictment for a felony, the defendant cannot he convicted of a misdemeanor, and that a count for a misdemeanor cannot he joined with a count for a felony: The reason assigned for which, (to wit, that persons on trial for misdemeanor, have certain privileges that are denied to persons charged with felony,) has no existence with us, as hy an act of the legislature, (2 Brev. Dig. 188,) these privileges are extended to all persons indicted for felony or other crime. In this State, therefore, the rule would seem to he otherwise, and that one indicted for a felony, may be convicted of a misdemeanor.</p>

<p>Before O’NEALL, J., at Abbeville, Fall Term, 1838.</p> <p>Tras was an action of covenant on a bill of sale for a negro.— The warranty was, and I do hereby bind myself, &c., “to warrant and forever defend” the said negro to the plaintiff. The breach of warranty assigned was the unsoundness. ' The defendant demurred on the ground that the warranty extended only to the title and did not cover the soundness of the negro.</p> <p>His honor the presiding judge, thought the warranty was so general, that it included both title and soundness, and overruled the demurrer.</p> <p>The defendant appealed and now moved to reverse the order of the court below, because the bill of sale contained no warranty of soundness, and the breach alleged is therefore no violation of the covenant set forth.</p>

<p>Before EARLE, J., at Sumter, Spring Term, 1839. •</p> <p>The report of his honor, the presiding judge is as follows:</p> <p>“ The defendant, together with one William R. Lenoir, drew a joint order or bill upon the plaintiff’s intestate, Charles Spann, jr., who was a factor in Charleston, for a debt of Lenoir, payable to one Baskett or order, and endorsed in blank. The plaintiff produced the bill which by a receipt on the back, appeared to have been paid to a person whose name did not appear upon it. James T. Spann, a son of the intestate and of the plaintiff, his widow, was produced as a witness, and was objected to on the ground of interest in the subject of the suit. He tendered an assignment and release. It was replied that the ground of objection was, that the witness, as one of the heirs at law, was liable to refund, in case of future debts being exhibited against the estate, and was therefore interested in increasing the fund in the hands- of the administratrix. The other ground of objection being waived, I thought this latter interest too remote and contingent to render the witness incompetent. ' He deposed that the bill was paid on presentment to the drawee in Charleston. That he called on the defendant after the death of the intestate, for payment, who admitted that he had given or drawn the bill, that it had been paid and that he was liable ; but objected to pay it, because he had given directions to retain the amount out.of the proceeds of Lenoir’s cotton, which had been sent to the intestate, and been sold by him. The proceeds had been applied to other orders drawn by Lenoir. It was proved that Lenoir had sent seventeen bales of cotton to the intestate.</p> <p>It was objected on a motion for nonsuit, that the proof of payment by the drawee was insufficient. That it was not proved to have been made to a person authorized to receive it. I held that proof of the transfer was not indispensable, as there was other evidence of payment than the mere possession of the paper, and left it to the jury whether in fact the sum had been paid or reimbursed out of the proceeds- of Lenoir’s cotton. They foun^l for the plaintiff.’ ■■ -</p> <p>The defendant appealed, and now moved for a new trial on the following grounds:</p> <p>1. That the testimony of Mr James T. Spann was improperly admitted ; he was a distributee of the intestate, and having received his share of the estate, would be liable for any debts which the estate may now or hereafter be made liable for.</p> <p>2. That there was no satisfactory and legal proof of payment to a party entitled to receive.</p> <p>3. That the intestate received funds of Wm. R. Lenoir, one of the drawers, sufficient to pay the draft, and ought so to have applied them.</p>

<p>Before EVANS, J., at Spartanburg, Spring Term, 1839.</p> <p>The report of this case, by his honor, the presiding judge, is as follows:</p> <p>“ This was a summary process on a sealed note for $50. Defendant purchased a tract of land from plaintiff, and gave two ndtes, each for $50, one payable.25th December,'1836, the other 25th December, 1837. Unon this last note the action was brought. It was not proved whether the first was paid or not. The plaintiff made no title, but gave a penal bond to “ make a good and lawful title ” to the land, if the notes were paid. Before this action was brought, Jones sold the land to Price, who was ready to pay up the note, if a good title was made. Jones called on Littlejohn, the plaintiff’s agent, who held the note, and told him Price would pay for the land, if the title was good. They went to Price, and Littlejohn produced a deed executed by Guthrie and wife, in Arkansas. It was in form nearly like the deed of bargain and sale, prescribed in the act of assembly of 1795, 2 Faust, 5, but there was but one witness, and there was no clause of general warranty. Price refused this title, and the note was then sued. The plaintiff contended — 1st. That Jones was bound to pay the money without any title, and must look to his bond. 2d. That the title produced was such as Guthrie was bound to make.</p> <p>I did not consider-the making a.title as a condition precedent to be averred and proved; nor was the plaintiff bound to tender a title before suit brought. The covenant as originally made, was independent, and the plaintiff not bound to make a title until he was paid the price, as was decided in Davis v. Woodward, 2 Const. R. 56. But in this case the money had been tendered, .or to speak more accurately, was ready- and not paid, because the title was objectionable. I thought therefore, after this demand, the plaintiff could not coerce payment by law, until he tendered such a title as he was bound to make by his bond. Whether the deed tendered was such as the party was bound to make, is a question not free from difficulty. It is not good as a feoffment, for want of livery of seizin. It is not a-lease or release, and is not good unless as a bargain and sale. Whether that form of conveyance was used in this State before the act of 1795, and thérefore recognised by the act as a valid form, I was of opinion the obligation of the plaintiff required of him to give the defendant a dee.d with a general warranty, and as this deed is defective in this particular, the plaintiff cannot recover.”</p> <p>The plaintiff appealed, and now moved to reverse the decree of his honor, because the decree is contrary to law and evidence; the payment of the money being a condition precedent to the delivery of the deed; the tender to Littlejohn being no tender to the plaintiff, and the deed offered being agreeably to the condition of the bond, the defendant’s remedy was on the bond and not by way of defence.</p>

<p>The plaintiff had constructed a fishery consisting of several fish traps, on a line between the adjacent islands in the Congaree river, at a distance of eighty or ninety yards with the customary dam; having obtained the permission of the proprietor to use the shores of the islands for that purpose. The defendants, professing to be performing their duty as commissioners of fish sluices on Broad River, cut away and destroyed one of the traps and thereby opened a sluice which rendered the taps of no value. Held, that an action of trespass vi et armis, would'lie for the injury — and plaintiff having obtáined a verdict, a new trial was refused.</p> <p>The right of fishery in the public navigable rivers of this State, considered at length and recognised.</p>

<p>On an appeal from a decree of the ordinary, making the administrator of an estate liable for the amount of a debt lost by his want of diligence, Held that the liability of the administrator upon the facts reported by the ordinary, was a conclusion of law, proper for the court, and not a question of fact to be submitted to a jury.</p> <p>The administrator of an estate, held the note of a third person given to the intestate, which fell due on the first of January, 1823. The writ, on which judgment was obtained, did not issue until October, 1826, nearly four years afterward, in the meantime the party became insolvent. Held that the decree of the ordinary, charging the administrator with the amount of the debt, as having been lost by his laches, was correct, and properly affirmed by the circuit court.</p> <p>The act of 1799 provides for the right of appeal from the ordinary to the circuit court, and is not limited to any specific classes of cases. The circuit courts are required to hear such appeals, “ and all matters of fact shall be tried by a jury.” There seems to be no sufficient reason for saying that the right of jury trial in such cases,shall be restricted solely to questions of devisavit vel non.</p> <p>The correct course of practice, on appeals from the ordinary, indicated.</p>

<p>In this State, as well as in England, a feoffment, with'livery of seisin by the tenant for life of the legal estate, will bar all contingent remainders ; and the rule is not modified by the circumstance, that thé remainder man is an infant.</p> <p>A feoffment so made, together with a release of the right of entry and action by the person next entitled in remaindor or reversion Held, to be such a title as a purchaser is hound at law to accept.</p> <p>Note. — As it is necessary to the proper understanding of the principles established in these cases, to refer to the case in Dudley’s Chancery Reports, it is Here subjoined: R.</p>