Volume 26 — South Carolina Law Reports

<p>Defendant vas arrested and in the custody of the Sheriff by virtue of a ca. sa., at the suit of the plaintiff, and had rendered in his schedule according to law, but refused to assign it. Held, That by his refusal to assign his schedule, he has not forfeited his right to remain within the prison bounds.</p> <p>See Act of 1841. 11 Stat. 153. An. 4 Rich. 13, 296. An.</p>

Before Earle, J., at Fairfield, Fall Term, 1840. Trespass to try title. It was admitted that the title to the locus in quo, was originally in William Ellison, from whom plaintiff derived title. The defendant claimed to derive title also from William Ellison, under a parol agreement to sell, between him and James Barkley, with ten years’ possession.

<p>Holder is a word of tlie same import as bearer: by either of these words, or other equivalent ones, a promissory note maybe made negotiable by delivery.</p>

<p>A defendant arrested under a era. sra,., who gives the usual bond, for the bounds, and without rendering in a schedule, or satisfying the debt, breaks the bounds, may, by the Act of Assembly of 1839, be re-taken; or the plaintiff may proceed against the security on the bond: and if the security is insufficient, he may have his action against the Sheriff', who shall be ultimately liable.</p> <p>It is not necessary to have the order of a Court, in addition to the ordinary process of law, which the plaintiff has a right to have issued for the purpose of caption; but, if the Sheriff should refuse to obey the usual process, the Court will, upon a rule, enforce it.</p> <p>See Mack & Smith vs. Garrett, 10 Rich. 80. An.</p>

Before Gantt, J., at Edgefield, Fall Term, 1840. This was a case of trespass within the summary process jurisdiction of the Court. The plaintiff had lost three horses about the 26th September, 1839. They broke into a cornfield of Daniel Holland, for whom the defendant was overseer. The defendant put them in a lot or stable and kept them for several days, and not being *able to ascertain the owner, turned them out.

<p>Where a daughter (an infant) resides with her mother, before marriage, it will be presumed that she was properly maintained, until the contrary is proved ; for the mother is considered to be the proper judge of what is necessary for her, and should be consulted before a credit is given to her. Vide Connolly ads. Assignees of Hull, 3 M’C. Rep., 6 S. P.</p>

Before Evans, J., at Union, Spring Term, 1839. This was a special action on the case. There was a demurrer, which bad been overruled by Judge Gantt, at the extra Court the week before. I did not, in consequence, look into the declaration, but tried the case on its merits, which will be disclosed by the evidence. The facts of the case were these : The plaintiff was the owner of a plantation and several negroes, with horses and stock.

<p>A merchant having in store the cotton of divers persons to ship, does ship it, and it is lost by some means : Held, that assumpsit is the proper form of action to recover the price of the cotton.</p> <p>Every person who undertakes any duty, trust, office, or employment, impliedly contracts with those who entrust or employ him, to perform his undertaking with skill, diligence and integrity; and the employer may maintain an action of assumpsit against him for an injury which he has sustained through the absence of any of these qualities.</p>

Before Earle, J., at York, Fall Term, 1840. The plaintiff was employed by the defendant to make a crop with him, in 1839, and agreed to give him one-fourth. About the last of August, a misunderstanding arose, in consequence of an occasional absence of the plaintiff, and he was dismissed by the defendant from his employment, and refused permission to return, on his application to do so. On the 26th of September, lie brought this action of assumpsit.

Before Richardson, J., at Marlborough, Fall Term, 1840. This was an action on merchants’ account. Mr. Buce proved his own account by his books. He further stated that he had received, in 1834, or 1835, for the defendant, $55, and also $13 or $14, but he had credited those sums upon a note of McLeod’s, to himself.

<p>Before Earle, J., at Abbeville, Fall Term, 1839.</p> <p>A writ of Admeasurement of Dower had been directed to five commissioners, to lay off the demandant’s dowel’, or assess its value, in certain lands in Abbeville. To this writ the five commissioners, under their hands and seals, made return, that being first duly sworn, they went upon the land, and appraised its value, at the time of the alienation by the husband, at the sum of one thousand dollars, and assessed the sum of one hundred and sixty-six dollars and sixty-six and three-fourth cents, with interest from the 24th day of November, 1831, the day of the death of the husband, in lieu of dower.</p> <p>On the coming in of the return, and motion made to confirm the same, it was resisted on the part of the defendant, on grounds set forth in an affidavit made by two of the commissioners, and an affidavit made by himself. The commissioners stated that, in fixing the value, they referred to the death of the husband, and that they did not ascertain how much was held by the defendant. In the affidavit made by himself, he stated that he had no notice of the valuation by the commissioners, with a view to assess the dower ; and that the alienation was long previous to the death of the husband. On these affidavits the defendant moved to set aside the return, and to recommit the matter with instructions.</p> <p>I considered that it would be of mischievous tendency to avoid the official act of the whole number of commissioners, under the sanction of an oath, upon the voluntary and exparte statement of two of them, or upon the affidavit of the defendant, that he had no notice, which did not seem to be indispensable, if the commissioners had other satisfactory information.</p> <p>The motion of the demandant to confirm the return was allowed. The defendant moves to set aside the order.</p> <p>*The defendant appeals, and will move to reverse the decision made on the circuit, on the following ground :</p> <p>Because the affidavits submitted by him, which remained wholly uncontro-verted, after due notice to the plaintiff’s attorney, showed that the commissioners had proceeded without notice to the defendant, without knowledge of the time of alienation, without ascertaining the quantity of land, and without reference to the value at the time of alienation.</p> <p>Affidavits. — We, Samuel Cowan and Williams Truwit, two of the commissioners in this case, swear, that in valuing the laud in question, we had no papers — we knew the quantity only by the representation of Mr. Palmer, plaintiff’s father: how much the defendant held, we did not ascertain ; and we referred to the death of James Beatty, the only date we were informed of, in fixing the value.</p> <p>Samuel Cowan,</p> <p>William Truwit.</p> <p>Sworn to before J. H. Wilson, J. Q., Oct. 16th, 1839.</p> <p>I, John Hearst, the defendant, being duly sworn, say, that I had no notice of the valuation of the land by the Commissioners, with a view to assess the dower; that the alienation was long previous to the death of James Beatty, the husband of the demandant; and that the amount or value of the land, as assessed by the commissioners, far exceeds the amount given for the land at any time within the knowledge of this defendant.</p> <p>Jno. Hearst, Jr.</p> <p> </p>

<p>A Prison Pounds’ Pond becomes forfeited, against all the parties to it when the principal forfeits his rights to the benefits of the law under which it was taken; and the liability of the securities is fixed, as soon as the plaintiff acquires his right to the bond by assignment.</p> <p>The amount of recovery is the amount of the debt on which the defendant was confined.</p> <p>See Harley v. Nelson, 2 Strob. 169. 10 Rich. 80. An.</p>

<p>Before Earle, J., at Fairfield, Fall Term, 1840.</p> <p>Assumpsit on a note of hand, given for the purchase money of a tract of land, conveyed by the plaintiff to the defendant.</p> <p>The defendant, by suit at law, had been evicted, by title paramount, of twelve acres, lying about the middle of the tract, and running in a narrow slip, nearly through it; the defendant, by way of discount claimed an abatement, not only for the actual value of the land thus recovered from him, in proportion to the price given for the whole, but additional damages for the injury and inconvenience which the person in possession must suffer.</p> <p>I overruled this latter claim, and instructed the jury to allow an abatement pro tanto, for the actual value of the land, who found accordingly.</p> <p>*CROUNDS OP APPEAL.</p> <p>1. That the presiding Judge erred in charging the jury, that they could not allow the defendant any discount beyond the value of the deficient land.</p> <p>2. Because the verdict was contrary to law and evidence.</p>

<p>Before Evans, J., at Richland, Fall Term, 1840.</p> <p>The defendant was indicted, under the Act of Assembly, for hawking and pedling in books. The evidence in substance was that the defendant was a transient person. The books were sent up from Charleston, consigned to Polock, Solomon & Co., merchants and auctioneers in Columbia, by whom the freight from Charleston was paid. A short time before the 28th November, 1838, the defendant came to Columbia, and arrangements were made for the sale of the books at night, by auction, and in the day by private sale. A room was hired for the purpose. Hand bills were printed, giving notice of the auction by Polock & Solomon. The sales were opened by Polock, but he gave place as crier to the defendant, who was very expert as an auctioneer. The account of sales was kept by a clerk of Polock & Solomon. In the day time, the defendant sold books at private sale, but one of Polock & Solomon’s clerks usually attended in the store. The sales continued three days and nights. The books unsold were subsequently packed up and sent to Charleston. Those that were remaining on hand, if any, on the first of January, were returned to the tax collector as part of the stock in trade of Polock, Solomon & Co. The money for the books sold, was sometimes to them and sometimes to the defendant. These facts were proved by Polock and Levy, two of the partners ; they also produced their books, ^showing an aggregate of sales at auction, of and $350, at private sale. From these amounts was deducted, the freight, house rent, 5 per cent, commissions on the sales at auction, and 1 per cent, on the private sales. And for the balance they said they had accounted to the defendant.</p> <p>It was proved by Cunningham that he purchased books and stationery to an amount exceeding $100, part at auction and part at private sale, and produced the receipted bill signed by Belcher, to whom he paid the money. He also said Belcher told him he had sold to the amount of $6000, nearly half of which was at private sale.</p> <p>I defined a hawker and pedlar to be an itinerant trader who carries goods, &c., through the streets, from town to town, and from place to place. It was the itinerancy of his employment which gave character to it, and not the mode in which he carried his goods, or the place where his wares were exposed to sale. I charged the jury as follows, viz : 1. That it was a usual and common course of business to consign goods to an auctioneer or agent, to be sold for and on account of the owner. Such sales, if bona fide, were the sales of the agent; and it could and did make no difference whether the owner was present assisting at the sales or not. If, therefore, the account of these sales, as given by the auctioneers, was the true one, then I thought the defendant ought to be acquitted. 2d. But if the employment of Polock, Solomon & Co., was merely pretensive, and Belcher was the vendor of the goods under color of their name ; or if, over and above the amount sold by them, he effected other sales himself, independent of their agency, then the jury might convict him.</p> <p>The defendant was convicted.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because there was no evidence to sustain the charge laid in the indictment.</p> <p>2. There was no proof that defendant was a hawker and pedlar within the meaning of the Act of 1835, increasing the price of license, under which he was indicted.</p> <p>3. There was uncontroverted evidence that the goods were regularly consigned to Polock, Solomon & Co.; that they made the sales, and received their usual commissions of* 5 per cent, on auction sales and 1 per cent on private sales.</p> <p>4. The jury probably misapprehended the extent of the charge by the Court, that if defendant employed Polock, Solomon & Co. with a view to invade the law against hawkers and pedlars, he would be liable.</p> <p>5. Because the Court charged that if Belcher sold more goods than he paid commissions for to Polock, he would be liable under the Act.</p>

<p>Before O’Neall, J., at Chester, Fall Term, 1839.</p> <p>The defendant was indicted for obstructing a road leading from the plantation of Wm. L. Wallis, on the York road, to the mill of Charles Walker, deceased, in Chester district. The proof very clearly established an obstruction of the road by the defendant.</p> <p>The County Court of Chester, on the 31st of July, IT98, ordered the road to be laid out by the following order : “ On petition, ordered, that a travelling road be laid out and cleared from Thomas Wallace’s to Robert Owen’s grist mill, to be laid out at the direction of Thomas Wallace and William Monahan, the nearest and best way, so as not to interfere with the enclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contiguous thereto, and have the benefit thereof; also, a rad from the mill to intersect the Charleston road near the lower corner of Tlios. Cabeen’s field, and thence into Fish-dam road above William Murray’s on the same conditions and premises as the above, at the direction of James Vants.”</p> <p>*Under this order, the road was opened and laid out. It has been an open road since ’98 : some persons voluntary worked on it; the commissioners never kept it in repair. It was still, however, used by the neighborhood. It was changed by many persons through whose land it ran, as suited their convenience. Owen’s mill was ten or twelve years out of repair ; it was then repaired by Charles Walker, who had bought it.</p> <p>I submitted to the jury the inquiry — is this a public road ? I said to the jury that that which is for private use cannot be regarded as public. A road to a church or a mill, and there terminating, would not, in general, be a public road. On this part of the subject, I said to them, there was a great difference between our condition and that in England, whence our common law was derived. That I thought it possible here that a road to a mill might be a public one ; as when it was used by the people at large, and where it led from a public road to the mill and thence into another public road, and became a public thoroughfare. I did not say to the jury, as the defendant’s ground of appeal suppose, “ that the English common law, in relation to roads, was not applicable to roads in this State.”</p> <p>I said further to the jury, that a road from village to village, or from one public road to another, might or might not be, a public one. A road kept in repair by the commissioners of roads, is a public road It might, however, be that a road not kept in repair by the commissioners, was a public road. As where a road is laid out by public authority for the use of the people. If such a road be discontinued by the commissioners, then it may end its public character. So, too, where they do no act disclaiming the road, yet it might be disused for such a length of time as would satisfy them that it had ceased to be public.</p> <p>Frequent changes of a road, unless they amount to an abandonment, could not affect its public character.</p> <p>With these instructions, the case went to the jury, who found the defendant guilty; he appeals on the annexed grounds.</p> <p>GROUNDS OP APPEAL.</p> <p>1st. Because his Honor, the presiding Judge, erred in charging the jury: 1. That the common law of England, in *relation to roads, was not applicable to roads in this State. 2. That the road in this case had been established as a public road. That a civil action could not be maintained for obstructing a road such as this. 4. That this road had not been abandoned.</p> <p>2. Because the verdict of the jury was contrary to the evidence that this had never been established as a public road ; that it had not been opened by the public ; that it never had been repaired or worked on by the inhabitants ; that it never had been regarded by the commissioners of roads, or by the inhabitants of the neighborhood, as a public road ; that it had been obstructed by several persons, in various places, for twenty years; that during a period of ten or twelve years, the mill to which it led had been destroyed and the road abandoned ; that the road had not been entirely obstructed, but only turned ; that the defendant was indicted for obstructing a public road, and that this road led only to a grist mill; as well as the law in relation thereto.</p> <p>ORDER OF THE COUNTY COURT.</p> <p>At a Court held and continued by adjournment for Chester county, at the court house of said county, on the 31st day of July, in the year of our Lord one thousand seven hundred and ninety-eight, and of the independence of the United States of North America the twenty-third, present Joseph Brown and William Gaston, Esquires, two of the Judges of the Court.</p> <p>On petition, ordered, that a travelling road be laid out and cleared from Thomas Wallace’s to Robert Owens’ grist mill, and to be laid out at the direction of Thomas Wallace and William Monahen, the nearest and best way, so as not to interfere with the inclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contiguous thereto, and have the benefit thereof; also, a road from the mill to intersect the Charleston road near the lower corner of Thomas Cabeen’s field, and thence into the Fishdam road above William Murray’s, on the same conditions and premises as the above, at the direction of James Vants.</p> <p>Ordered, that a public road be laid out and made, the nearest and best way, taking off the Charleston road where the old road formerly took off, below Stinson’s old field, to strike the Fairfield county line at the same place, at where the *Mountain Gap road intersects the said Fairfield county line, at the direction of John McDaniels; and that all persons living two miles of said road, within the limits of said county, be called on to clear and keep the same in repair.</p>

<p>Before O’Neall, J., at Columbia, Spring Term, 1840.</p> <p>This was an action against defendant, M. G. Nagel the wife of A. G. Nagel, (who was joined for conformity sake,) as a feme sole trader, to charge her with a loss of cotton shipped on a boat alleged to belong to her, called the Swan.</p> <p>The proof was that her husband, A. G. Nagel, received the cotton and signed the receipt as agent for M. G. Nagel. He generally acted in all matters about the boat. Mrs. Nagel had a store in Columbia, or rather one was carried on in her name. Her husband acted as her agent in every thing about it.</p> <p>He was insolvent and had no property : the property in his possession was considered and sold as the property of his wife. She was considered as the owner of the boat; but there was no proof on that matter further than mere reputation : for the possession in fact was by Major Nagel, her husband. She was also regarded as a free dealer.</p> <p>The loss of the cotton was proved, and the only question was whether Mrs. Nagel, a feme covert, could be made liable as a common carrier. I thought, and so instructed the jury, that there could not be such a thing as a feme sole trader in boating. That the character, with its privileges and liabilities, only existed in the mercantile business carried on by the wife separate and apart from the husband. His interference with the business would prevent the wife from being regarded as a feme sole trader. That the act of the Legislature had not extended the common law in this respect: it had added to the common law requisitions, the publication of a month’s notice of the intention to carry on a separate business, and to become a feme sole trader.</p> <p>That the only ground on which the defendant could be liable was, that the boat was her separate estate; and that hence earning for her freight, she would on that account be liable. The jury were told to enquire as to that fact, and if *they were satisfied of its truth, to find for the plaintiff, otherwise for the defendants.</p> <p>The jury found for the defendants. The plaintiff moves the Court of Appeals for a new trial, on the annexed ground.</p> <p>GROUNDS OF APPEAL.</p> <p>Because the evidence having been full, clear and uneontradicted, that the defendant, M. G. Nagel, was a free dealer and sole trader in the, business of merchandise, and of boating connected therewith ; that the store and boat belonged to her as a free dealer and sole trader, and were thereby protected from the creditors of the defendant, A. G. Nagle, who was notoriously and utterly insolvent, and who acted as her clerk and agent in the store and about the boat ; that as such free dealer and sole trader, she received the cotton of the plaintiff of the value of $1390 62 on board her said boat, to be carried to Charleston for certain freight, to be paid to her as such free dealer and sole trader ; and that the said cotton was never re-delivered to the plaintiff or his (actors, whereby ho suffered a loss of $1,390 62; the verdict of the jury was not only contrary to the said evidence, but without any evidence whatever, and was contrary to the law in relation to the subject matter of said evidence.</p>

Before Evans, J., at Richland, Fall Term, 1840. This was a motion made to quash a writ of attachment which had been issued by the plaintiff against the defendant, and the bond executed by her son, William M. Myers, Esq. His Honor overruled the motion, upon the ground that it was sufficient that the bond required by the Act had been given by the plaintiff’s son ; from this decision the defendant appealed to the Court of Appeals, and renewed the motion to quash the writ.

Before Gantt, J., at Newberry, Fall Term, 1840. Judge’s Report. This was an action of covenant, for breach of warranty in the sale of a negro by defendant to plaintiff. Yerdict for plaintiff. I thought that if the plaintiff was entitled to recover under the evidence, he might recover also what had been paid for medical assistance afforded the negro, and also for the expenses of her burial.

Before Evans, J., at Richland, Fall Term, 1840. The late Mr. Nicholas Herbemont was entitled to the slaves, hereinafter named, for life. He died in June. Among the negroes, some were employed about the vineyard, some were house-servants, some worked on the farm, one was a ditcher, and one a cooper and job carpenter.

<p>Before requiring a defendant, who applies for his discharge under the Insolvent Debtor's Act, to join in an issue to try the fairness of his schedule, there ought to be some showing by affidavits ; but if the plaintiff, without affidavit, makes the charge by suggestion, and the defendant pleads, he waives his right to call for affidavits; he admits by his plea that there is something to be tried by a jury.</p> <p>See Rice, 268. 1 Rich. 3. 6 Rich. 293. 3 Strob. 365. Ex parte Moffitt, 11 Rich. 360.</p>

Before Butler, J., at York, Spring Term, 1840. This was a suggestion for a prohibition to restrain the collection of a patrol fine. The facts set forth in the suggestion were, that James Biggers had been appointed captain of a patrol company, and had performed his duty in all respects, except in making a return on oath of his actings. That he was summoned to attend a court martial, and fined twenty dollars.

Before Evans, J., at York, Fall Term, 1840. Judge’s order made on circuit. These were actions of trespass to try title. There was a verdict for the plaintiffs in the two first cases, and for the defendants in the other cases. Both parties have appealed from the clerk’s taxation of costs, and I am to decide whether the taxation allowed by the clerk is right. I will consider, first, the defendants’ exceptions to the clerk’s taxation.

Before Butler, J., at Laurens, Fall Term, 1840. This was an action of assumpsit, on a joint and several promissory note, signed by the defendants. Wm. Hill was *out of the State at the commencement of the action — Davis had suffered judgment to go against him by default, and the defendants Wiley Hill and Jones, were the real parties to the issue.

<p>Before Gantt, J., at Beaufort, Spring Term, 1837.</p> <p>This was an action of debt on an administration bond, against the securities of Archer, the administrator. A decree of the ordinary against him was offered in evidence. The defendants proposed to prove that at the time of the proceeding before the ordinary, Archer had removed from the State and was resident in Florida; and that, in fact, the ordinary had attempted to make him a party by publication in the *gazette. But, inasmuch as the decree recited that the administrator had been duly cited, and made default, his Honor overruled the evidence, and the plaintiff obtained a verdict, which it was now moved, on the part of the defendants, to set aside, and for a new trial.</p>

Before O’Neall, J., at Charleston, May Term, 1840. This was a rule against the Sheriff to show cause why he did not pay over moneys in his hands, belonging to the defendant, to the plaintiff. He returned for cause, that he levied sundry executions on the goods of the defendant, from which they were satisfied, leaving a balance in his hands ; that while the goods were in his hands, a writ of foreign attachment was lodged in his office, which was considered as accepted by him.

Before Richardson, J., at Charleston, January Term, 1841. This case came up upon the following rule against the Clerk of the Court of Charleston District: On motion of Kunhardt ⅜- Pringle, plaintiff’s attorneys, it is ordered that C. C. Strohecker, Esq., Clerk of the Court of Common Pleas, do show cause on Saturday, the 30th inst., at 10 o’clock, A. M., why he refuses to deliver to the plaintiff’s attorneys, the writ signed by him as clerk in the same. By the Court.

Before Richardson, J., at Charleston, January Term, 1841. These were actions of debt on the administration bond of one of the defendants, Hannah Carlile, as administratrix of Jane Radford, deceased, the one being against her as principal, and the other against Paul Durant, as her security. The plaintiff produced, first, the administration bond— then the proceedings in a case in Equity, at the suit of Wm.

<p>Before O’Neaul, J., at Charleston, May Term, 1840.</p> <p>In this case the plaintiff issued a writ of assumpsit against the defendant ; and to hold him to bail, annexed to it the following affidavit:</p> <p>“The State of South Carolina. Personallyappeared before me, Isaac Tobias, who being duly sworn, maketh oath and saith that General James Wood is indebted to him in the sum of one hundred and forty-five dollars on a note and due bill, bearing interest, and that no part of which has been paid.</p> <p>I. .Tobias.</p> <p>Sworn to before me this 4th September, 1839.</p> <p>Abraham Moise.</p> <p>Under this proceeding the defendant was arrested and gave bail. The defendant moved, before me, to have an exoneretur entered on the bail bond, “ on the ground of the defectiveness of the affidavit. ”(a) The motion was overruled, for the following reasons. “The Act of 1769, (P. L. 273, 1768,) Stat. 204, § 20, M., provides that no person shall be held to bail on any writ of capias ad respondendum for debt, unless an affidavit shall be made and attested by some Judge or Justice of the Peace, and endorsed on or annexed to the writ, before the service thereof, of the sum really due " Was the question res integra, as to the construction of this Act, I should say that an affidavit of the sum really due, without stating the manner in which the indebtedness arose, would be sufficient; for the difference in its phraseology from the English statute on the same subject, would justify that difference in the construction. But the cases of Peck and Hood vs. Van Evour, (1 N. & McC. 580, Note A,) ruled that the affidavit must not only set out the sum due, but also how it accrued; and to that I yielded my assent in the case of Saunders *vs. Hughes,(a) as a means of protecting the liberty of the citizen. Does the affidavit here state both the amount due, and also , the manner in which the debt accrued ? I think it is manifest it does. It states that the defendant is indebted to the plaintiff in the sum of $145, on a note and due bill, bearing interest. No one can be mistaken about the manner of the indebtedness, after reading the affidavit. It was contended, with the usual ability and ingenuity of the defendant’s attorney, that the affidavit was defective, inasmuch as it did not show that the notes were due. I thought, however, that when the plaintiff swore that the defendant was indebted to him, he, in a legal point of view, and in legal parlance, swore to a present and not a future debt, and that therefore there was no defect in the affidavit.</p> <p>In the case of Woodfolk vs. Leslie, (2 N. & McC. 585,) the affidavit stated that the defendant was indebted to the plaintiff $360, as the assignee of a promissory note. In that case my brother Itichardson, referring to Peck & Hood vs. Van Evour, and to Sellon and to Tidd, stated the rule to bo “ that to hold a debtor to bail, the law requires that a specific sum of money shall be charged, and the cause of action plainly set forth in the affidavit.” “These indispensable requisites,” said he, have been strictly complied with in the affidavit before us.” Compare the affidavit in that case with the affidavit in this, and if there is any difference, it has escaped my attention. Changing the parties, Judge Richardson’s decision there might be used here.</p> <p>In Lowe vs. Mayson, (3 McC. 313,) the affidavits states that notes were found among the papers of Archy Mayson, deceased, by which it appears that Ramsey L. Mayson is indebted to the said Archy Mayson’s estate, $2100.88,” &c. Judge Johnson, who delivered the opinion of the Court in the case of Peck & Hood vs. Van Evour, delivered the judgment of the Court in Lowe vs. Mayson. After referring to the rule settled in Peck & Hood vs. Van Evour, he said, “ the affidavit in this case sets out in general terms the manner in which the debt arose, as far as the plaintiff can be supposed to be conversant with it; and if we regard the reasons of the rule, the objects arc as fully attained, as if the notes had been recited with the utmost minuteness. Neither the dates nor the number of the notes would enable the Court to judge of their legal efficacy, and if *the plaintiff has committed a perjury, the offence can as well be assigned on this affidavit, as if it had contained them, so that the whole object of the rule has been attained.” Paying a due regard to that decision would, it seems to me, supersede any difficulty in this case. The affidavit there makes no other allegation that the notes were due, than that by referring to them it appeared that defendant “is indebted” to the said Archy Mayson’s estate, &c. If any more precise allegation than that the notes were due, had been necessary, it would hardly have escaped the able counsel concerned, or the experienced Judge who decided that case. The plaintiff, as administrator, could not have asked any exception, in this behalf, in his favor, for he had the notes in his possession, and could therefore speak of them with certainty. In Saunders vs. Hughes, (2 Bail. 504,) the affidavit states that Col. Joseph Hughes, of the firm of William & Joseph Hughes, stands justly indebted to the plaintiff in the sum of $936.69, due on a note, &c. No objection was there taken to any want of certainty in setting out that the notes were due. I have looked through all the other subsequent cases, and have referred to the excellent digest of our decided cases, prepared by the defendant’s attorney, and I have not been able to find a case, or dictum, which requires an affidavit to set out more than is done in this case.</p> <p>The defendant renews his motion in the Court of Appeals to have an exonere,tur entered on the bail bond, and to reverse my decision on the ground “ that the affidavit is defective in substance, inasmuch as it does not contain any allegation that the notes were due.”</p> <p>cited P. L. 273. Tidd’s Prac. 1 vol. 144, 145. 3 Chitty’s Prac. 333, 334, 335. Chitty, 331, 333, 334. Chitty on Bills, 572, 573 2 Maul. & S. 149. 7 Faust, 173—as to form of affidavit. Chitty’s Practice, Appen. Tidd’s Append. Archbold’s Forms, 8, 9, of the remedy when the affidavit is defective. 1 Tidd Prac. 164, 165. Peck vs. Van Eoour, 1 N. & McC. 580. 1 Rice’s Dig. 97. 3 McC. 318. 2 N. & McC. 585. 1 McC. 313. 2 Bail. 504.</p>

<p>Where a party to a contract stipulates to perform one or more things, and in the event of non performance of any or all of them, agrees to pay a certain sum, the sum agreed to be paid will be regarded as a penalty, and not as liquidated damages.</p> <p>For the non-performance of a contract, the party failing shall pay the other for any loss ho may have sustained, and this loss is the measure of damages. If this loss has been ascertained by the agreement of the parties, such agreement shall be carried into effect, otherwise the jury will assess the damages from a full view of the facts and circumstances of the case.</p> <p>See as to stipulated damages. Worrell vs. McClenaghan, 5 Strob. 115; Allen vs. Brazier, 2 Bail. 293. Salterwhite vs. McKee, Harp 397.</p> <p>As to the quantum of damages. Miller vs. Hilliard & Wade, Chev. 152. An.</p>

Before Gantt, J., at Barnwell, Spring Term, 1840. This was a scire facias to revive a judgment entered up against the defendant,- John Walker, and one Mary Gavin, on the 30th October, 1826. The original action was on a joint and several promissory note, in which the plaintiff obtained a verdict, at Fall Term, 1826, and entered up judgment accordingly.

<p>Where there is conflicting testimony as to the genuineness of a signature, comparison of handwriting is admissible, as confirmatory evidence, to enable the jury to decide upon which of the witnesses they could most confide.</p> <p>A bundle of notes that is admitted to prove the genuineness of a signature, by comparison of handwriting, may be sent to the jury.</p>

<p>See Desbrow vs. Farrow, 3 Rich. 383. An.</p>

In the City Court, Charleston, before his Honor the Recorder, July Term, 1840. The defendants were indicted for fighting a duel; the following is the testimony : Solomon Moses, sworn — Testified lie knows the defendants.

Before Richardson, J., at Charleston, January Term, 1841. This was an action of trespass for beating the plaintiff’s slave. The trespass was clearly proved, and I could perceive no cause to justify the defendant, although there appeared some extenuating circumstances. The case was submitted to the jury, under the charge that they should find something for the plaintiff. They thought differently and found for the defendant. The plaintiff appeals, on the grounds : 1.

Before Evans, J., at Barnwell, Fall Term, 1840. This was an action of assumpsit on a joint and several note, signed by the defendant and three or four others. The note was for about $3000, dated in December, 1831, and due some months after. The other makers of the note had confessed judgment. On the left hand of the signatures, certain figures in pencil were made in a line with the signatures, which were added up at the bottom, and made the sum for which the note was given.

<p>Under the Act of 1740, any negro claiming to he free, has the right, by guardian, to bring an action of trespass ill the nature of ravishment of ward; not only against any one claiming property in, but against any one having the possession of such negro.</p> <p>See Huger vs. Barnwell, 5 Rich. 275. An.</p>

<p>The protest of a note for non-payment, and legal notice to the endorser, hinds the endorser for the payment of the debt.</p> <p>“ The surety is bound by the terms of his contract, and if the creditor, by agree- “ ment with the principal "debtor, without the concurrence of the surety, varies “these terms, by enlarging the time of performance, the surety is discharged; “for he is injured and liis risk increased.”</p> <p>Where a new contract had been made by the defendant, Kerr, with the bank, (which he never complied with,) by which he was to have five years, by substituting new notes with the same endorsers, in lieu of the suit; it was held not to be such a variance as to discharge the endorsers.</p>

<p>This was an action brought by the State Bank against II. Stoddard, Miller & Co. as the endorsers of a promissory note made J. C. Kerr, for $150, dated the 21th day of March, 1840, and payable eighteen days after date. The note was not paid at maturity by the drawer, and was duly protested *for non-payment. The handwriting of the parties was admitted, and the defence was that the conduct of the plaintiff had discharged the endorsers. John C. Kerr, the drawer of this note, having become unable to pay his creditors the amount due to them, executed to James Rose, President of the South Western Railroad Bank, a conveyance of his property mentioned in the said deed, upon certain conditions and for certain purposes expressed in the said deed. Such portions of the said deed as were particularly commented on, and furnished a clear understanding of the positions contended for, I have extracted ; they are as follows : after specifying that Iverr is unable to pay, that he desires to secure his creditors, and has for that purpose transferred his property to the said James Rose, it proceeds to declare that “in consideration of the premises, the said James Rose hath agreed to certain conditions, covenant and agreement, as well on the part of the said party of the second part, as on the part of all others who are creditors of the said John Cess-ford Kerr, to be observed, kept and performed, which said covenant and agreement are hereinafter more particularly set forth and expressed, and for the faithful preserving, performing and keeping of which, the said party of the second part, and all other person or persons, party or parties, as are described in the schedule, creditors of the said John Cessford Kerr, are and shall be, previous to the full effect and efficacy of these presents, respectively, unto the said John Cessford Kerr, by these presents, firmly held and bound.” The following clauses of the deed were also brought to the view of the Court. “ Subject to, nevertheless, the following trusts, conditions, covenants and agreements, of and concerning the same, &c., that is to say, that the said John Cessford Kerr shall be allowed by the said party of the second part, and by all other person or persons, party or parties, creditors of the said John Cessford Kerr, set forth in the said schedule, to substitute for the promissory notes of the said John Cessford Kerr, now by them held respectively, upon which they or any of them may be responsible, other new notes of the said John Cessford Kerr, endorsed in the same manner as the original notes for which they have been substituted; and that the said new notes shall be made payable in five equal annual instalments, commencing from the day of the date of these presents.” And the following trust is also : extracted from the *deed. “ In trust to pay, discharge and satisfy, in equal portions and rateably, the sum and sums of money respectively due and owing to the several parties who are or may become parties to these presents, according to the time of payment hereinbefore expressed and agreed upon. And it is also well understood, covenanted and agreed upon by and between the said John Cessford Kerr and the said party of the second part, and also all other party or parties to these presents, that no part or portion of the property hereinbefore conveyed, shall be sold, conveyed or disposed of before the expiration of five years, commencing from the date of these presents, unless with the consent of the said John Cessford Kerr, thereto by him given and subscribed in writing.” The State Bank became a party to this deed.</p> <p>For the defendant, it was contended, that the State Bank being a party to the deed, consenting to and bound by all the covenants and conditions of the deed, without the consent of the endorsers had discharged them from their liability; that here was not only indulgence given to the drawer, by agreeing that his property should be kept secure from sale for five years, but that the bank had moreover set apart a certain portion of the property of the drawer for certain purposes ; that here there was a new contract, new security taken, which, as it prejudiced the remedies of the endorsers, discharged them from all their liability. It was contended on the other side, that there ivas no indulgence, and that the endorsers were not prejudiced by the conditions of the deed. I was decidedly of opinion, that indulgence by the deed was given to the drawer; that the bank had, by its becoming a party to the deed, agreed that Kerr might pay the debt in five equal annual instalments; that for five years it was agreed Ills property should be protected : that this protection of the property was a prejudice to the endorsers, without their consent, and of course discharged them. I told the jury that if the holder entered into a new contract with the drawer, gave him indulgence, or so acted as to impair the right of the endorser against the drawer, that such acts were at the risk of the holler, and would discharge the endorser; and that in this case there was no doubt that the conduct of the holders of the note had in law discharged the endorsers. The jury, however, found a verdict for the plaintiff, for the whole amount of the note with interest, and the defendant appeals, on the annexed grounds :</p> <p>1st. Because the deed produced on the part of the defendant, clearly established an indulgence, in giving time to the drawer, without the consent of the endorsers; which was sufficient to discharge the endorsers.</p> <p>2d. That the said deed established that the plaintiffs, without the consent of defendants, who were endorsers, became parties to the same, and by the terms of the said deed, agreed that the property of the drawer should be protected from all sale for five years, unless with the consent of the drawer.</p> <p>3d. That the case made was one where indulgence, in an extension of the time of payment, by preserving the property of the defendant from sale for five years, was given to the drawer, without the consent of the endorser, and this is sufficient to discharge the endorser.</p> <p>4th. That the case was one where the holder takes new security to the prejudice of the endorser, which discharges him from his responsibility.</p> <p>5th. That the jury were charged most distinctly by his Honor, the presiding Judge, that the defendants were discharged, and this charge of his Honor on a point of law, was binding on the jury, and should have been observed.</p> <p>Gth. That the verdict was clearly contrary to all the evidence and the law of the case.</p> <p>said, that where time was given, on indulgence, it would discharge the endorsers. Cited 1 Bay, 466; 1 Mills’ Cons. Rep. 371; 1 N. & McC. 117; 6 Peters, 257.</p> <p>contended that no time or indulgence had been given; that the very day the eighteen days expired, the defendant refused or failed to pay, the bank instantly brought suit, lie also contended that the deed was hut a limited one, and not general, as to all Korr’s creditors, assigning only a certain specific portion of his property, leaving the balance unincumbered and liable for his debts. He further said that the conditions of the deed were not complied with by Kerr ; and that the defence was founded upon a misconstruction *of the deed. It was a condition precedent. Cited 1 H. Black. Rep. 270; 1 Bacon, 261; 3 Comyn’s Dig. 90 and 91, note F; Chitty on Bills, 292.</p> <p>contended that the intention of the bank was not to be considered, but the acts of the bank. The releasing of Kerr by the bank, whether they intended to release the endorsers or not, operated as a release to them.</p>

<p>An applicant for his discharge under the Insolvent Debtors’ Act, will not be permitted to discontinue or withdraw his application after a suggestion charging his schedule with fraud has been filed. (b)</p> <p>A defendant’s schedule is amenable, under the discretion of the Court; but it must be shown by affidavit, or otherwise, to the satisfaction of the Court, that the omission to insert the property omitted in the schedule, arose from ignorance, inadvertence, or mistake. He will not be permitted to amend, if it will create surprise or delay to the other party.</p> <p>Whenever the right of a person to be discharged is resisted, on the ground of fraud, it is not necessary that there should be any showing on oath, unless the result of the allegation would be to delay the hearing of the debtor’s application. In that event, the Court, m the exercise of a sound discretion, may require the creditor to verify his accusation by affidavits, (a)</p> <p>The limitation of time, in the seventh section of the Prison Bounds’ Act, (P. L. 457,) (b) applies solely to undue preference ; and a fraudulent sale or conveyance, and a fraudulent preference, arc two distinct things.</p> <p>A witness attending under a subpoena duces tecum, is not required to testify, but merely to bring into Court a paper which the party needs.</p> <p>A deed to a concubine to procure future cohabitation is void; also, a deed for services rendered by a kept mistress is void, if the grantor be in debt at the time of the conveyance, or continues to retain possession of the property from the date of the deed until he becomes insolvent.</p> <p>Where a debtor had conveyed to his son-in-law a number of houses and lots in the town of Columbia, and a number of slaves, for which he is said to have received a large sum of money, and at the date of the conveyance was very much in debt; on the trial of the validity of his schedule, it was held that the onus lay on the defendant, to account for the proceeds of the sale of this property.</p> <p>When a debtor alleges that the proceeds of a sale of property made by him, has been gambled away, the question of his gaming may be submitted to the jury, and their finding will not be disturbed.</p> <p>Note. — This case was argued before the present Reporter was elected, and postponed by the Court for further consideration, which will account for the omission of argument of counsel.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1840.</p> <p>This was an action of assumpsit, brought to recover the price of 316 bales of cotton, bought by the plaintiffs, as cotton brokers for the defendant.</p> <p>The facts of the case may be stated as follows : the defendant being about to return to Ireland, and having about four thousand dollars, in money, wished to invest it in cotton. The plaintiff, Gilfillin,* was introduced to him, as a cotton broker, by Mr. George Cotchett, and Ms desire to purchase cotton stated. He and the plaintiffs were afterwards together at Martin and Walter’s, and at James Adger & Co.’s, for the purpose of buying cotton ; it was then stated in the presence of the defendant, by the plaintiffs, that an advance was to be procured, which, with the defendant’s four thousand dollars, would enable them to purchase for him about three hundred bags. This arrangement Mr. Walter thought he (Shannon) understood. Mr. Cotchett thought when he saw him and the plaintiffs, that he hardly understood it. The plaintiffs negotiated for, and obtained the advance. The defendant was not known in that part of the transaction to Trapman or his agent, Wortlier-spoon, who made the advance. The party making the advance contracted for the freight. The plaintiffs, for the defendant, and in his presence, bought three hundred and sixteen bales of cotton ; their credit was alone looked to for the payment; and the cotton delivered to them by Martin & Walter, and George Cotchett, for James Adger & Co. The defendant said he was going to ship the cotton by the barque Josepha, in which he had obtained his passage, and that he was “ going to go with the cotton.” The cotton was shipped from the 19th to the 23rd April, 1839. The defendant was alongside the Josepha while the cotton was going on board. Along side of the vessel he was informed by Gil-lillin, that if he was not disposed to take the whole venture, he could get another person to take one hundred bags; the defendant replied he would take the whole for luck. The captain signed, on the 23rd of April, a receipt for the cotton shipped by Robertson & Gilfillin. On the 24th, the bill of lading was forwarded ; (hence, I inferred it was signed on or before that day;) which set out the shipment by the plaintiffs to Coleman & Stotleporth, the correspondents of Trapman, who made an advance of about three-fourths of the price of the cotton, (twelve thousand four hundred and seventy dollars.) This was according to the course of trade, according to which (said the witness,) the bill of lading is made out in the name of the shippers, and consigned to the correspondents of the house making the advance. The invoice discloses the name of the owner, for whose ultimate benefit the shipment is made. An invoice was sent on, and Mr. Wortherspoon’s correspondence stated John Shannon to be the owner. The first advance was made before *Wortherspoon, the agent for Trapman, knew of any misunderstanding having arisen between the plaintiffs and defendant. He offered to take one hundred bags of the venture, and so did Mr. Kerr. Cotton continued to improve in price until about the sailing of the vessel, 12th of May. The cotton went forward to Stotleporth. It seemed, from the proof, to be the usage of trade, that cotton on which an advance was made, was pledged, 1st, to the party making the advance ; 2nd, to the shippers for any thing due to them by the owner on account of it. On the 20th of April, the plaintiffs paid Martin and Walter, four thousand dollars in cash, and on the 24th or 25th, three thousand seven hundred and sixty-eight dollars more, and to Adger & Co., the money for the purchase from them was subsequently paid. On the 23rd of April, the defendant refused to comply with his contract, and the plaintiffs made an affidavit to hold him to bail for the whole amount of the purchase of the cotton. He was arrested and went to jail on the 24th, where he has ever since remained. The plaintiffs offered to credit the defendant with the proceeds of the cotton in Liverpool, but this was refused. There were sundry special counts in the declaration ; but I thought the whole case depended upon the questions whether the plaintiffs had sold the cotton to the defendant; and whether they had paid money for his use ; and that, therefore, the counts for goods sold and delivered, and the money counts, covered the whole case.</p> <p>The jury were instructed in conformity to the opinion of the Appeal Court, on the former trial of this case.</p> <p>They were told, that to entitle the plaintiffs to recover, as vendors of the cotton, it must appear to their satisfaction that the cotton was delivered to the defendant This, I thought, was abundantly shown in the shipment, and his knowledge of, and assent to that fact. Although this was my opinion, I did not state it to' the jury, but referred them to the facts which had led my mind to that conclusion.</p> <p>They were also told, that to entitle the plaintiffs to recover on the money counts, it was necessary that they should be satisfied that the plaintiffs bought the cotton for the defendant, that they were bound to pay for it, and that they had paid money before suit brought. They were told that the four thousand dollars, paid to Martin & Walter, was such a payment as would, to that extent, entitle the plaintiffs to recover, if it was true that they bought the cotton for the defendant, and were bound to pay *for it. I said to them, in this connection that for the money advanced by Trapman, they were liable, as the parties procuring it, and if the cotton did not sell for enough to reimburse him, they must make it good ; and hence, that whether they paid that sum out of the money advanced by Trapman, or out of their own funds, was perfectly immaterial. For it was their money in either point of view.</p> <p>The jury found for the plaintiffs four thousand dollars, and the defendant appeals, on the annexed grounds :</p> <p>1. Because his Honor erred in charging the jury that Robertson & Gilfillin were liable to Trapman for the ultimate refunding the amount advanced by him, whereas, in fact, they were only agents of Shannon, and having fully disclosed their principal, were not personally bound, unless they made some new contract not connected with Shannon.</p> <p>2. Because he stated to the jury, that it was immaterial whether the money paid to Walter was plaintiff’s money, or had been advanced by Trapman, in anticipation of his advance of three-fourths of the purchase.</p> <p>3. Because the Court expressly charged, that the special counts were unnecessary, as the plaintiff must recover, if at all, on the other counts. Whereas, it is contended, that the counts for refusing to complete the contract, are the only ones supported by the evidence.</p> <p>4. Because the verdict is not supported by the evidence, and was arbitrary, as defendant, if liable at all, was liable for the whole, and by necessary implication, proves that the plaintiffs did not make out a case entitling them to recover at all.</p> <p>5. Because the true cause of action was tlio refusal by defendant to complete the alleged contract, after which the agency of plaintiffs terminated, and they were only entitled, if at all, to damages for the refusal to pay the cash part of the purchase.</p> <p>said — The plaintiffs cannot recover, either upon the counts for goods sold, the money counts, or the special counts. They are not vendors. Shannon is not a purchaser. The statute of frauds is in the way. The plaintiffs cannot prove a contract, as is required by its terms. There is no pre-tence that there was an earnest paid, "::nor is there evidence of a memorandum, The question then is, whether there was a delivery to Shannon. Delivery under the statute must be such as to make the vendee the owner ; to give him power to control the property. 1 Comyn on Con. 91.</p> <p>There is no evidence of such delivery here. Where is the evidence of Shannon’s right? He never could control this property. It never was in his possession. Suppose the cotton had arrived in Liverpool, Shannon could not have supported an action against the captain or owner for the possession, or even for the damage, if any had been sustained. He had neither bill of lading, nor any other evidence. To presume a delivery in this case is within all the mischief laid down in Cooper vs. Elston, (7 T. R. 14.) McIntyre never was his agent, nor were Coleman k Stotleporth. These all represented Robertson <& Gilfillin, not Shannon. Not one of these parties have ever recognized Shannon as their principal. How then can it be said the delivery to them was a delivery to Shannon? Nor can the verdict bo sustained under the money count. There is no evidence of money paid at his request. This is important. This may be implied, but not so in this case. No circumstance exists here to presume or imply this request. Even the $4000 is not money paid on request. There is no case where the count for money paid can be supported, where the party who sues for the money retains also the goods for which he claims to have paid money. Robertson k Gilfillin kept the goods and the money. The proper evidence of payment of money in this case, would be the payment of money, and transferring the property to Shannon. But so long as they kept the cotton and refused to deliver, they could not sue for money paid. And moreover, to make Shannon chargeable, under this count, it must appear that the money was paid under a certain contract, the terms of which have been performed by them. Now, the question is, whether these parties have not violated their contract; and they have not shown this, which is the point in issue.</p> <p>If the plaintiffs cannot recover upon the general counts, can they recover on the special counts ? The 2nd and 3d special counts allege delivery, which we contend is not proved, and therefore they must fail. The first special count alleges only the purchasing of cotton at the request of Shannon, *and his promise to pay. But, where is the evidence of this ? There has been no evidence whatever of the whole contract. The consent of both parties to the contract is necessary to make it binding. And the conduct of the parties at the time when the dispute arose, proves that this was not the contract; it was not the understanding of the parties ; and this is the essential feature in every contract. All inferences are here excluded, because the conduct of the parties is so plain that it makes positive evidence. So that there is no evidence whatever to support even the special counts.</p> <p>But the rights of the parties result from their legal positions at the time of the quarrel between the plaint-ill's and the defendant. If they were principal and agent when Shannon quarrelled with them, this was repudiating their agency. It was there terminated. Their agency then ceased. But although this is so, still they continued to conduct themselves as if they were authorized agents, fcfo far then as regards these parties when they quarrelled, Robertson k Gilfillin should have at once terminated their agency. They could not be agents against the consent of Shannon. Had they sold the cotton in Charleston before the vessel sailed, there would have been no loss. The sales of cotton here would have more than paid all losses and expenses. This was the prudent course, and this is the course they were bound to pursue, under the rule that the agent must act most to the benefit of the principal. All the loss here was caused by the misconduct of Robertson k Gilfillin, and this they cannot claim against Shannon.</p> <p>Counsel have brought the prisoner before the Court, to excite the sympathies of your Honors. The defendant is suffering by his own folly and faithlessness. The condition of the plaintiffs is equally deserving of sympathy. Defendant was not contented with buying what his money would afford, he goes to plaintiffs and buys, through them, thousands more.</p> <p>All advancements were obtained through the plaintiffs. Plaintiffs acted in good faith throughout the whole transaction. Plaintiffs acted according to the usages of merchants. Mr. ⅜\7. contended that the verdict was properly rendered on the counts for goods sold and delivered.</p> <p>If the money liad never been paid by plaintiffs, it cannot be doubted but that the original sellers might have maintained this action for the cotton. Plaintiffs have placed themselves in the shoes of the original sellers. 1 Chitty’s Plead. 5 ; 2 Liv. on Agency, 120 ; 2 Esp. N. P. 493 ; Cited also, opinion of the Court in the former case. The Court decided that the money counts could not be supported, but that they might recover on the counts for goods sold and delivered.</p> <p>The Court of Appeals laid down the principle on which the case was to be decided, and the Circuit Court so instructed the jury, and they found accordingly.</p> <p>Plaintiffs arc charged in the hooks of the first sellers as the principals. Plaintiffs credited the defendant, and became thereby vendors. Was there a delivery ? Signing the bill of lading was a delivery, and enough to divest plaintiffs of all right, except the right of stoppage of the goods in transita. 2 Term. Rep. 71; also 2 Liv. Ag. 110. Under the usages of trade, defendant could not have the hill of lading. 1 TI. Biackstonc, 304.</p> <p>By the usages of trade, the moment the bill of lading is signed by the captain, the right of property vests in the consignees in Liverpool, and they could maintain an action against the carrier for loss or damage.</p> <p>The delivery to captain Mclntire, was a sufficient delivery ; and I contend that the captain was the agent, and so soon as this delivery took place, plaintiffs were divested of any further control over the cotton. Defendant’s act was indispensable to again take possession of the cotton. It was shipped for the benefit of defendant, and he could maintain trespass for the cotton, if the plaintiffs had taken possession.</p> <p>Plaintiffs are entitled to sustain the verdict upon the counts for money paid, laid out and expended. Plaintiffs paid 84000 for defendant, at his special instance and request, and this was sufficient to support the counts for money paid, laid out and expended.</p> <p>Mr. Mcmminger, on the same side — said, none of the parties concerned in the transaction could have disposed of this *cotton but defendant. Defendant was only bound to discharge the pre-existing liens. He had the resulting interest. The other parties had no right in law.</p> <p>When the contract of agency was determined by defendant’s repudiating the contract, defendant was bound to put the plaintiffs in statu, quo — place them just as he found them, by refunding the amount advanced by them for him. Cited 11 Johnson, 439; 7 Cranch, 500. Agent against principal.</p> <p>contended that there was a difference between a broker and a factor. Cited 2 Barn, k Aid. 142, 193 ; 1 H. Blac. 300, 305 ; 15 E. 62.</p>

<p>The erection of a gate across a way, claimed by the plaintiff, which is opened and shut at pleasure hy all who pass, is not such an obstruction as would have the effect to extinguish the plaintiff’s right, or of barring him of his remedy, however long it may have been erected.</p> <p>See State vs. Peterst 7 Rich. 393. An.</p>

<p>Before EaREE, J., at Charleston, May Term, 1839.</p> <p>Debt for the penalty of 50 per cent, on the sum of $2,238 18 cents, collected by the defendant, on an execution in favor of the plaintiff, and not paid over within ten days after demand. The execution of the plaintiff against John Aitkin, *was lodged 31st January, 1837. The money was made on 6th February, 1837. Demand, in writing, by the plaintiff, on the 14th March, 1837, and again, on 25th October, the same year. The defendant refused to pay the money. Other demands were made on the 25th, 30th, and 31st October, and on the last day a bond of indemnity was tendered. The writ, in this cause, was lodged the same day.</p> <p>The defence was, that the sheriff was justified in withholding the money, in consequence of certain proceedings at law and in equity. A notice, in writing, by Bailey & Dawson, attorneys for certain persons, was served on the defendant, on 7th March, 1837, directing him not to pay the money to the plaintiff, but to retain the same in his hands, as they intended to fde a suggestion of fraud. Writs of attachment, at the suit of several persons, among them, Hugh Blair, against John Aitkin, were lodged on the 6th February, 1837, the sheriff summoned as garnishee. On the 10th June, 1837, there was an order obtained for leave to lile a suggestion of fraud on the plaintiff’s judgment. The suggestion was filed on the 1st January, 1838 ; on which there was no further proceedings. On the 20th March, 1837, a bill was filed by John S. Bird, against Aitkin, Thomas, and the sheriff, to sot aside the plaintiff ⅛ judgment, and for an injunction to restrain the sheriff from paying over the money. But no injunction was then obtained, or applied for. But at January term, 1838, a decree was pronounced by Chancellor Harper, vacating the judgment, which, on appeal, was reversed in February, 1839. On 3d March, 1838, an order was granted by the Chancellor, that an injunction issue to restrain the plaintiff from proceeding- at law; and directing that the money should be invested by consent of parties. On 10th March, 1838, it was paid to the Master, and afterwards paid by him to the plaintiff’s attorney, by order of the Appeal Court.</p> <p>On 8th January, 1838, there was a rule on the sheriff, to show cause why he had not paid the money, rule made absolute on the 13th January, 1838; but the order reversed at the next sitting; of the Appeal Court. On 15th January, 1838, there was notice of the filing of a supplemental bill.</p> <p>I thought it clear, that the notice by Bailey & Dawson, on 7th March, could not protect the sheriff. If it could, a mere verbal demand, or assertion of right, by a third person, *must have the same effect. The order for leave to file the suggestion, of the 10th June, was not accompanied, as usual, by order restraining the sheriff from paying the money. And although a bill was filed by a person, claiming to be interested, on 20th March, 1837, to set aside the judgment, and for an injunction ; yet no application was made for an injunction, and, of course, none was ordered, until 3d March, 1838. But the sheriff’s liability had been incurred long before, and the action was brought 31st October, 1837. It was too late then to save the sheriff from the consequence of his former neglect. The jury was charged according to these views ; and under the instructions of the Court, they found for the plaintiff half the amount which he was entitled to receive on his execution.</p> <p>It was objected, that the judgment was not produced in evidence; I thought that unnecessary, and overruled the objection.</p> <p>The defendant moves to set aside the verdict, on the accompanying grounds.</p> <p>1. That the notice of the intention of the attaching creditors of John Aitken, to (¡lo a suggestion to set aside plaintiff's judgment and execution, as fraudulent and void, followed up by the actual tiling of such suggestion, (such notice having been served on the sheriff prior to plaintiff’s demand,) legally justified the sheriff in retaining the money, until the question of fraud was decided ; and his Honor erred in charging the contrary.</p> <p>2. That the filing of the bill in Equity, within ten days after the plaintiff's demand, by the creditors of Aitken, against plaintiff and others, to set aside plaintiff's judgment against Aitken, as fraudulent, and to restrain the sheriff from paying over the money to plaintiff, the sheriff having been made a party defendant to the said bill, also legally justified the sheriff in retaining the money until tlie question of fraud was decided ; and his Honor erred in charging the contrary.</p> <p>3. That the lodging of the attachment of the attaching creditors of Aitkin, with the sheriff, while the goods and chattels of Aitken were in possession of the sheriff, and were yet unsold, by virtue of the levy under plaintiff’s execution, with a view to make those goods and chattels liable to the attachment, also "’‘justified the sheriff in retaining the money, until an adjudication of the matter.</p> <p>4. That the statute on which the action was founded, is a penal statute, intended only to apply to delinquent sheriffs, wilfully or corruptly withholding money from plaintiffs entitled to it, and ought to bo constructed strictly; and the sheriff in the present case, having retained the money only in consequence of the proceedings at Law and in Equity, above stated, having, in the meantime, made no use of the money, but kept it in bank, and having ultimately paid it into the Court of Equity, by consent of all parties, (the present plaintiff included,) was not delinquent within the meaning of the statute, and liable to its penalty; and his Honor erred in charging the jury that the sheriff was liable to the penalty, although his conduct was neither wilful nor corrupt.</p> <p>5. That the plaintiff’s proof was defective, no evidence having been offered of the judgment of the plaintiff vs. Aitkin, alleged in the declaration, and his Honor erred in charging the jury that such proof was unnecessary.</p> <p>G. That the verdict was, in other respects, contrary to law and evidence.</p> <p>cited 2 Faust, 87, A. A. 1796; and said penal statutes were to be construed strictly. Thomas vs. Aitkin, Dud. Rep. 292. This is a case of penalty, and not one of stipulated damages. No injury had been done on the part of the defendant. A. A. 1839, 58, 63d sec.</p> <p>cited, 1 Brev. 200; P. L. 110 ; Bac. Abr. Tit. Exon, letter A. ; -Dudley, 292. The decree of the Appeal Court in Chancery is retrospective, and shows that defendant, Yates, acted wrong.</p> <p>cited 1 Bail. 437; 2 Bail. 16 ; Potts vs. Richardson; Cooper, 255 ; Douglass, 519, 522. If one receive satisfaction after the forfeiture, he never can recover the penalty. A forfeiture once barred, is barred forever, 2 B. and Pull, 346; 5 Term Rep. 636; Bac. Ab. Tit. Damages, letter D. ; Coke upon Litt. 258, letter A. ; Coke Uliz. 561. A penalty cannot be incurred where the act is lawful. Defendant was a stakeholder.</p>

<p>Any trading with a slave, without a permit from Iris owner or employer, in buying or selling, for cash or on credit, for much or for little, is an indictable offence, under the Act of 1817.</p>

<p>A count for felony, and a count for a misdemeanor, may legally be joined in the same indictment.</p> <p>See State vs. Posey, 7 Rich. 485 ; Chivis, 105 ; 3 Hill, 1.</p>

<p>Before Richardson, J., at Charleston, January Term, 1841.</p> <p>This was an indictment for selling wine to Matilda, the slave of B. F. Dunkin. Stuke was the clerk of Boise. The evidence must be referred to for the details. But it appeared, that Stake was asked if he had not sold a bottle of wine to a negro girl, that morning, and he replied, yes. But, soon afterwards, having conversed with two men in the yard, he returned and said, “no — no, I forgot.” Boise was sent for, and p*™ claimed the shop. Mr. Dunkin had before come in with Matilda, L asked her where the wine had been bought, and she pointed out the place. He then went for a search warrant — returned and then found Boise present. Mr. D. told him, Boise, his clerk had admitted he had sold a bottle of wine to his servant, this morning — upon this, Stuke said, “no, no— I spoke too quick.”</p> <p>I charged the jury that they were to decide, 1. Whether there had been any illegal trading. If any, 2. Who had done it, Stuke, or Boise, or both defendants. 3. That the confession of Stuke, made in the absence of Boise, could be evidence only against himself — not Boise. 4. That the jury were to decide, from all the circumstances of the case, whether Boise had, or had not, authorized the illegal trading alleged to have been done by his clerk, Stuke. And, if he had done so, he might be convicted — but otherwise, not to convict him.</p> <p>It will be seen, by the evidence, that there was adduced against Boise scarcely any thing to implicate him in the particular trading; but that he was master of the shop. The jury returned a verdict of guilty, and the defendants appeal.</p> <p>GROUNDS OP APPEAL.</p> <p>1. That the allegation in the indictment was, that the defendants sold a bottle of wane to Matilda, the slave of B. F. Dunkin, and the proof merely that Stuke, (the clerk) confessed that he had sold a bottle of wine that morning, (his principal being absent at the time of both the sale and the confession,) to a negro girl, or a servant girl, without in any manner indicating' whose, or what negro, or servant girl ; and his Honor erred in charging the jury, that they could convict the defendants on such evidence ; and the finding of the jury is unsupported by the evidence.</p> <p>2. That there was no evidence at all to convict the defendant, Boise, there having been no proof at all to connect him with the selling by. his clerk in his absence ; and there being no proof at all of any selling, save the clerk’s confession, subsequently retracted, and afterwards denied in the principal’s presence ; and the finding against the principal was in violation of the cardinal principle, that one man cannot be convicted *of an offence on the mere confession of another, and that only of his own guilt.</p> <p>3. The verdict was, in other respects, contrary to law and evidence.</p> <p>contended that the mere confession of a party of his guilt should never be given in evidence against a third person. The confession of Stuke, he argued, did not come up to the allegation in the indictment, but he argued that the proof should correspond with the allegation.</p> <p>asked whether the Court would interfere and set aside the verdict of the jury; where there is no misdirection of the Court. He contended that juries might weigh all the circumstances, as well as the words. 1 Phil. Ev. 76, 77.</p>

<p>Before Richardson, J., at Charleston, January Term, 1841.</p> <p>This was a rule on the sheriff, to show cause why he should not be attached for contempt, in not paying’ over to the plaintiff the money made under the Retorno habendo cum fi. fa. in this case.</p> <p>The sheriff showed for cause that there were prior executions in his hands, against the defendant, which he was advised were prior liens on the fund, and he was unwilling to pay over the money to the plaintiff without an order from the Court.</p> <p>I was of opinion that the sheriff, having levied under the Retorno habendo cum fi. fa. on the individual goods which were the subject of the original distress, although the goods had in the mean time been removed to other premises, the lien of the plaintiff was restored by relation, and he was entitled to the money against prior executions, I therefore made the rule absolute, and the sheriff appeals, on the annexed ground:</p> <p>That the prior executions in the sheriff’s hands were entitled to the money as prior liens, and his Honor should have discharged the rule.</p> <p>contended that where goods had been distrained, and the tenant had given bond, and the goods were replevied, the landlord lost his lien upon them ; and in support of this proposition, he cited 2 Dallas, (58 ; ib. 131, Fry vs. Leper; also, Brown’s Cases in Chancery.</p> <p>cited 4 McCord, 49(5, and under this authority contended that hy replevying, the lien of the landlord *was only suspended, not entirely gone. Cited also, 6 Bacon Abr. G7.</p>

<p>Before Richardson, J , at Charleston, January Term, 1841.</p> <p>This was an action of assumpsit upon an account for work and labor done and materials furnished, &c., between the years 1820 and 1830. The defendant pleaded non assumpsit, and the statute of limitations. The account was proved ; and the case turned upon the question, whether the defendant had acknowledged and assumed to pay the debt within four years before the action had been commenced. The account had not been presented until 1840.</p> <p>Peter IIorlbeck, the son of Henry IIorlbeck, was offered as a witness, to prove an acknowledgment, &c., by the defendant. He was objected to, and released his interest in the case, (see his release;) and, on his voire dire, swore, that lie had sold out his interest in the estate, and had no further interest but in the debts. Upon this, the Court ruled that lie was competent to give evidence.</p> <p>He was then sworn in chief, and testified as follows : Witness presented tlio account early last year, and defendant said he would revise it. Early last summer, say two or three months after witness had called, lie called again. Defendant said he had revised the account, tíaid he could not pay it now. If it had been presented eight years ago, lie could easily have paid it. That circumstances had altered with him. That he could not pay. It would have to come in with his other debts. Witness told him they wished to close the books, and if he would settle by note, or bond and mortgage, at any time convenient to himself, it would answer. Defendant declined entirely to give any obligation ; say anything of the kind — as bond, note, &c. Defendant and witness were alone. A gentleman was in the next room. The door liad been closed by the defendant. Defendant did not object to any item. Thinks defendant liad the account in his hand. Said he was sorry it had not been presented before. lie made no objections*</p> <p>to witness. Thinks he said he presumed it was right, or something of the kind. He said it would come in to he paid with his other debts. Witness was authorized to make the oilers he did by plaintiff. A letter was written by Dr. IIorlbeck. Can’t say why the ' account was not presented. Iiis brother was a student with the defendant many years ago. He is now upwards of thirty yeais old. Plaintiff was indulgent to his debtors; or negligent perhaps. Difficult to get accounts from him.</p> <p>Cross-examined — Defendant said he could not pay the account now; but said something of presuming it was right. Did not say lie had examined it. It must come in with his other debts. Declined giving bond or note. That he could not pay it; it must come in with other debts. Can’t say if ho did or did not say that he would not come under obligation. Understood him to admit the debt; but spoke of his inability to pay. Gave no reason for not giving a note, that witness recollects. Has stated defendant’s words as well as he recollects.</p> <p>The plaintiff’s counsel argued, that, although there had been proved no express promise to pay the account, after the statutory bar had become complete, yet the acknowledgment proved was sufficient to take the case out of the statute.</p> <p>I charged the jury, that before they could find for the plaintiff they must be satisfied, (the statutory bar being complete,) that the defendant had promised anew, to pay the account. That the action in such case must be bottomed upon the new promise; the old debt being the cou-sideration. Such an action conld not lie, without some new undertaking on his part; and that it must amount to the expression of a willingness, and a liability still to pay the debt, which had been barred. The jury had, therefore, to decide whether the evidence proved such a promise, or not; and to End accordingly. They found for the plaintiff, and the defendant appeals on the following grounds :</p> <p>1. That the witness, Peter Horlbeck, was directly interested in the event of the suit, and, therefore, incompetent; and having been objected to, ought not to have been admitted to testify.</p> <p>2. That there was no evidence of any acknowledgment by the defendant, of any subsisting legal liability, nor any promise *to pay, but on the contrary a positive refusal to incur any obligation ; and there was nothing, therefore, to take the case out of the operation of the statute of limitations; and his Honor ought so to have charged.</p> <p>3. That the construction of the words alleged to have been used by the defendant, was a question of law for the Court, and not of fact for the jury; and his Honor erred in leaving the question to the jury, but should have charged directly, that they were not sufficient to prevent the bar of the statute.</p> <p>4. That the verdict is without evidence, against evidence and directly contrary to the settled law.</p> <p>on the first ground, cited 1 Phil. Ev. 53, and contended that the witness, P. Horlbeck, had a legal interest, and was an incompetent witness. Cited 2 Starkie Ev. 734; 1 Phil. Ev. 49, 50, 52; and 1 Bail. Rep. 302; Pickett vs. Cloud.</p> <p>On the second ground, he cited and relied on 2 Bail. 278 ; Dudl. 118 ; and Chev. Rep. 33, and contended that the ground of recovery is an express assumpsit; but he denied that there was, in this case, any promise or undertaking (from the testimony) to raise even a presumption of a promise to pay.</p> <p>On tire third ground, Mr. Bailey contended that it was a question of law for the Court, and not such a question as should be decided by, or left to, a jury.</p> <p>— first ground — said, that if the witness, P. Horlbeck, had a legal interest, lie would admit that lie was not a competent witness, but he contended that lie had not such an interest as would exclude him from testifying; that he was not, in any event, liable for costs in this case. That this was not one of the specific debts, in which the witness liad a legal interest.</p> <p>On the second ground, he cited also, Dud. Rep. 118, and 2 Bail. 188, contending, at the same time, that it was not necessary, in order to take a case out of the statute of limitations, that there should be an express promise, but that a subsisting debt, with slight evidence, would take the case out of the statutory liar. Mr. Yeadon contended, further, that the statute of limitations never was intended to Pr'l<;l'l against a just debt, *but an unjust or antiquated 'Claim; cited 2 Starkie, 894. The testimony does amount to the acknowledgment of a just and subsisting debt. 2 Starkie, 893. Note from 4 East, 492. — Where one admits a debt to be due and just, he must prove that he utterly refused to pay, or the presumption arises that he promised to pay. He also insisted that if the expressions were ambiguous, they should go to the jury to decide; and ho contended that in this case the defendant did use ambiguous words ; cited 2 Starkie, 895, note A ; 2 T. Rep. 7(10; 8 E. Common Law Rep. 317 ; (1 lb. 447 ; Cliitty on Contr. G41, note. “If the words express ambiguity, they may properly go to the jury, and they may decide.” 2 M. & P. 583.</p> <p>Rice, do. From the commencement of this account up to the case of Young vs. Monpoey, in 1830, it required but very slight evidence to bar by the statute of limitations. He cited Cliitty on Conts. (127, and contended that the statute of limitations did not discharge the debt, but was only a bar to the remedy — the lien still existed. 2 Bail. 283 and 425 ; 2 Hill, 326 ; Cliitty on Contr. 642, were referred to. Mr. Rice said, that from the testimony, there was no ground or reason to suppose that the defendant denied the debt, and refused to pay it; but that he pleaded his inability, clearly intending that plaintiff should receive a dividend of his property. Cited Leigh’s N. Prius, 1258 ; 1 (Wheaton) Selwyn, 142.</p> <p>said that defendant had refused to incur legal obligation, and again contended that the witness, P. Horlbeck, was an incompetent witness, either from feeling or the pecuniary interest which he had in this case ; that he was entitled to a share of the personal estate not yet collected, and was also liable for his share of the costs of this suit. Mr. B. referred to May vs. Hancock, (a) decided in Columbia, May, 1829.</p>

<p>Defendants purchased from plaintiff a box of goods, which plaintiff had received from Pitray & Viel, by a power of attorney from one Cuvillier, and upon which plaintiff had paid the expenses, and was in the said power of attorney declared the purchaser. After the sale by plaintiff, to defendants, a writ of foreign attachment was issued against the said Cuvillier ads. Charles Jugnot. The account was afterwards attached in the hands of the defendants, and the money paid by them into Court, without notice to the plaintiff. Held, that the plaintiff was not estopped by the proceedings in attachment from recovering against the defendants the price of the box of goods ; and their paying the money into Court did not discharge their liability.</p> <p>There is nothing in the attachment Act which would require one to come into Court and litigate his rights in a suit to which he is not a party.</p> <p>See 2 Sp. 116, 390. An.</p>

<p>One partner, after the dissolution of the copartnership, cannot hind the other, by signing the partnership name, without express authority ; and notice through the public papers, to the plaintiffs, of such dissolution, is sufficient.</p> <p>Each renewal of a note in hank is a new contract.</p> <p>See Post, 298 ; 6 Rich. 219 ; Meggitt vs. Finney w Jones, 4 Strob. 220. An.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1840.</p> <p>This was an action against the defendant, as a common carrier, for the value of fourteen bales of cotton, shipped on board the steamer Augusta, Captain Brooks, whereof the defendant was, at the time, owner. The cotton was shipped at Augusta, and destined for Charleston, but was burned on the 3rd of December, 1832, at Steele Creek, on the Savannah river, on board one of the lighters accompanying and in the employment of the steamer.</p> <p>The bill of lading was dated 30th November, 1832. After some interval, the defendant was called on to pay for the cotton as a common carrier, and on his refusal, a suit was instituted at May Term, 1833. Before this suit was tried William Patton died, and administration was taken out on his estate by the plaintiffs. On the 1th March, 1835, plaintiffs’ attorney was directed to renew the action, and on the 18th March, 1835, the defendant accepted service, and an appearance was entered by his attorneys, at the request of the plaintiffs’ attorney. The writ was served on Captain Brooks, (who was joined in the same action with the defendant.) On the 22nd January, 1836, the case was ordered for judgment against Captain Brooks, by default. The defendant, Magrath, pleaded the general issue. On the 15th of January, 1838, a verdict was rendered for the defendant, which was, at February Term of the Court of Appeals, set aside and a new trial ordered. On the 18th January, 1839, the case was again tried, and a verdict of seven hundred and thirty-four dollars and fourteen cents, found for the plaintiffs. On aPpcal, the Court of Appeals, at February Term, 1839, (Rice’s Rep. 162,) ordered a non-suit, on the ground that the defendant, as owner, and Captain Brooks, as master, were improperly joined in the same action. On the 20th of April, 1839, an action was commenced against the defendant, and he accepted service, or by his attorney entered an appearcnce at the request of the plaintiffs’ attorney. To this action he pleaded the general issue, and the statute of limitations.</p> <p>Mr. William Patton, a witness for the plaintiffs, proved, that within the last two years, or about two years ago, he heard the defendant speak of this claim, as an unadjusted one. He admitted that the cotton was shipped on board his steamer, and was burned on board the lighter. He said the defendant and other steamboat owners applied to the Legislature to exempt them from liability for loss arising from fire.</p> <p>After the plaintiffs had stated they had no further proof to offer, I said to the plaintiffs’ attorney, Colonel Hunt, that in my judgment, the statute of limitations was an insuperable bar to his recovery, and advised him to submit to a nonsuit, with leave to move the Court of Appeals to set it aside. This was accordingly done.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because, it is respectfully submitted, the Court ought to have instructed the jury, that the admission by the defendant, within two years from the commencement of the action, that the cotton of the plaintiff’s intestate was shipped on board of his steamer, and had been destroyed by fire, and that the controversy as to his legal liability was still pending, was a sufficient admission of the state of facts on which the law will raise a promise.</p> <p>2. Because the defendant, having been sued by the deceased, in his lifetime, and by his administrators since his death, and having been heard in his defence, he has always been aware of the existence of the demand, and does not bring himself within the morality or equity of the statute, and the mere informality in the suit ought not to screen him from a legal liability.</p> <p>3. Because the acknowledgment was made before the statuary bar was complete, about two years before the trial, and this was sufficient to take the case out of the statute.</p>

<p>Where a detachment of the Militia of the fourth Brigade, South Carolina Militia, had been detailed, (by the Brig.-Gen. of the Brigade,) as a fire-guard, in the City of Charleston, under the Act of 1825», and before their term of service as such guard had expired, the officers and sergeants belonging to this detachment, together with all the officers, &c., composing the said Brigade, had been ordered by the Brigadier, under orders from the Governor of the State, to encamp and perform encampment duty — It was held that the fire-guard and encampment duties did not conflict; and a prohibition to restrain the collection of fines imposed by the court martial against the relators, for a neglect of the latter duty, was refused.</p> <p>Note. — As the judgment of the Circuit seems to impute blame to the relators for not attending personally before the court martial to plead their exemption, or render it as an excuse, it is proper to add that, for this omission, they liad the sanction of the late Mr. Justice Bay, who had, on a former occasion, held the guard legally exempt from such duty, and had granted a prohibition. That was the reason for their not attending the court martial.</p>

<p>Before Gantt, J., at Coosawhatchie, Spring Term, 1840.</p> <p>This was an action on the case, brought by the plaintiff for damage sustained through injuries done to his horse on the public road, of which the defendant was commissioner, through the alleged neglect of the defendant to keep the road in repair.</p> <p>The defendant demurred generally ; and on argument, I sustained the demurrer, on the ground that the case of Young vs. The Commissioners of the Roads, reported in 2d N. & McCord, settles the law of the laud as to the liability of commissioners in private actions. The plaintiff thereupon served me with a-notice of a motion to set aside the judgment on demurrer, upon the annexed grounds.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because, under the pleadings, the judgment should have been for the plaintiff.</p> <p>2. Because the decision was contrary to law.</p> <p>cited 2 N. & McC., 537, Young vs. The Commissioners of the Roads, and said that that case was decided on the authority of Russell vs. The Men of Dover, 2 T. R., 667, but contended that the Court, in the decision of the case of Young vs. The Commissioners, had misstated the point decided in the case of Russell vs. The Men of Dover. He argued that from the authorityof the English cases, this action might be sustained, and the defendant be compelled to pay for the injury which the plaintiff had sustained, the result of his negligence. He cited further, 2 Brev. Rep., 293 ; Acts of Assembly, 1828, p. 32. Under this authority, a single commissioner* of roads is liable for damage sustained on r*ono his section. Common justice sustained the position that a single commis- ^ sioner was liable in this form of action. The penalty of fifty dollars would not reimburse an individual for his loss. This was a penalty, of which he could receive nothing. Sending the loser of property to the indictment was a denial of justice. A planter of wealth who is commissioner of roads, and perhaps whose hands alone keep the road in repair, would prefer to pay the penalty to lose the work of his hands for the time he would be engaged in repairing the road.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1840.</p> <p>These were actions of assumpsit against Y. Le Seigneur, as the endorser, and E. Le Roy, (a feme sole trader,) the maker of a promissory note, and her husband, N. Le Roy.</p> <p>The defendants pleaded the general issue, and under it proposed to give in evidence, that the consideration of the note was usurious. Mr. Simons, the plaintiff’s attorney, objected, that since the Act of 1831, (Acts of 1831, p. 48,)(c) which repealed so much of the Act of 1711 as made a contract founded on an usurious contract void, usury could not be given in evidence under the general issue, but must be specially pleaded. There is, I think, much force in this objection, where the defence only goes to show that a part of the contract cannot, under the Act of 1831, be enforced; but where, as in this case, the defence is, that the whole sum secured to be paid by the note is for usurious interest, then the objection cannot apply. For, in such case, the note is without legal consideration, and in law there is no assumpsit on the part of the defendants to pay it. (1 C. P. 470, 471.) Any defence which shows that at the commencement of the action the plaintiff had no cause of action, may, in general, be given in evidence under the general issue of non assumpsit, in the action of assumpsit.</p> <p>The defence was, therefore, permitted to be gone into. The husband, IN'. Le Hoy, was offered as a witness, under the usury act of 1777, to prove that the note was usurious. lie was the person who, as the attorney of his wife, made the note, and who negotiated the loan, and borrowed the money. lie was objected to by the plaintiff. I thought, under the words of the act, “ (he borrower or party to such usurious bond,” Ac., lie was a competent witness. He was accordingly sworn, and proved that this note, of which the following *is a copy : — ■ “ Charleston, September 30th, 1839. $600. Sixty days after date, I promise to pay to the order of Y. Le Seigneur, six hundred dollars, value received. (Signed) E. Le Roy, by her attorney, N. Le Roy. (Endorsed) Y. Le Seigneure,” — was given, with another of the same amount and same parties, to Mr. Willis, the money broker of Charleston, for the loan of 82800 for sixty days. Other notes were given for the money borrowed. For the plaintiff, Mr. Willis was sworn, and denied this statement. lie said that 8510 was paid by the plaintiff to him for the note, and he handed it to Mr. Le Roy.</p> <p>The cases went to the jury, and they were told if they believed Willis, they ought to find for the plaintiff $540, without interest and costs ; but if they believed Mr. Le Roy, the whole note was usurious, and they ought to find for the defendants.</p> <p>They found a verdict in each case for defendants.</p> <p>The plaintiff appeals, on the annexed grounds.</p> <p>GROUNDS OP APPEAL.</p> <p>1. Because usury cannot be given in evidence under the plea of the general issue.</p> <p>2. Because, in the latter case, N, Le Roy, the husband of the sole trader, was permitted to testify under Act, of Assembly 1777.</p> <p>cited 5 Dane’s Abr. 332 ; P. L. 286 ; Acts, 1830, p. 27 ; 1 Tread. 144; 1 Selwyn N. P. 53. lie contended that usury could not be given in evidence, under the general issue, but that it must bo specially pleaded. This case was an exception to the rule laid down in Chitty, that, any evidence winch goes to show there is no contract, is admissible. Cited Ilarp. 201 ; Rice Rep. 310; Chev. 177; 1 Clulty, p. 474.</p> <p>Second ground — ’That N. Le Roy, the husband, not being the borrower, but the mere agent, was incompetent to give evidence of usury, under the Ret, and at common law was excluded, because a party to the record. He is not the party or borrower contemplated by the Act of 1777. Cited 1 Bail. 479.</p> <p>said: A new trial is required for two reasons — first, the alleged incompetoncy of N. Le Roy, the husband;'"' second, the inadmissibility of the defence of usury, under the plea of non assmiyiaU. It is said N. Leroy is incompetent, first, because he is the husband ; second, because he is a party to the record; third, because he is not the ‘‘party or borrower,” contemplated by the Act of 1777.</p> <p>Even if he is the husband, he is competent on this issue. It is admitted that according to common law, the husband is not a competent witness for the wife. But is it not as much against common law that a wife, during the life of the husband, can be sued on a contract ? The right here to sue is an exception to the common law principle. It is given by statute, A. A. 1744, sec. 10; see Cooper’s Statutes, 3d vol. p. 620. This, then, is an exception. And they ought not to complain of what is deemed an exception to the common law of evidence, when the plaintiff is only in Court by an exception to the common law of pleading. But the very exception provides for the case. In the section wherein power is given to sue a feme covert as a sole trader, it is declared that “ all proceedings to judgment and execution, by or against such feme covert, being a sole trader, shall be as if such woman was sole and not under coverture.” All proceedings, of course, must mean to include as well such as are in issue by way of evidence, as those in issue by way of pleading. If this is not so, then the provision requiring the husband to be joined “for conformity,” would, jmo tanto, repeal the section itself. The institution of that thing called a sole trader is an anomaly, and of course it cannot be expected that any of the rules, either of pleading or evidence, can apply so well as where there is nothing in principle opposed to the well established liabilities and exemptions of the common law.</p> <p>But it is said the husband is a party to the record, and therefore incompetent. It is admitted that the general rule is clear that a party to a suit cannot be a witness. But why? Not because he is a party, but because, being a party, his interest may be more or less, but certain, nevertheless; and this of course disqualifies. But it is the interest which makes him incompetent, and, therefore, if this is removed, the rule should cease. This is the established principle, as in 1 Phillips on Ev. 70, where it is laid down that the mere fact of being a party to the record will not disqualify, if there is no interest or liability. So in the Courts of ^his State, the principle has been affirmed,* State vs. Anthony, (1 McCord, 285,) Vinjard, Executor, vs. Broten, (4 McCord, 24,) and fully sustained in Lenox vs. Ve Haas. (2 Yeates, 37.) Now, here, the witness, it is conceded, is free from all bias which may result from his being a party to the record, because he has no interest. And here it may be observed, that the exclusion is asked for in a case where the Legislature has deemed it proper to shield the defendant; to say not only that the obligation to pay usury is avoided, but also that if even a party to the record and directly interested, he still may testify. Where, then, such a defence is brought to the view of the Court, it is not proper that such construction should be given as, by excluding evidence, to sustain the evil which the Legislature seemed disposed to prevent. Again, it is said he is not “the party or borrower.” Who is, if the witness is not? lie did the business — effected the loan. Madame Le Hoy was away. Who could prove the transaction, if it was not the witness ? It is wasting words to argue in the affirmative, that he is “ the borrower.”</p> <p>The second ground is, as to the pleading. The Act of 1831, p. 49, is an amendment of the Act of 1830, p. 29. The first section provides that the bond, contract, &c., shall not be utterly void, as declared in the Act of 1777. The second section provides that the plaintiff shall recover the money actually advanced. The money as money. His cause of action is not the bond or note, but the money paid, and it may be a question whether he can declare, except for money paid. The original contract is not at all revived, but a new assumpsit by law is created. This being the case, non assumpsit is of course the proper plea. Now, in this case, money was paid ; therefore, here, non assumpsit was certainly proper. Chi tty, 470. But suppose the contract to be revived for so much, still non assumpsit is the proper plea. If the note is valid by A. A. 1831, then the defendant can inquire into the consideration under non assumpsit. Here the consideration was the money; evidence of the amount, therefore, is evidence of consideration, and unquestionably proper. Whether, therefore, the old contract is revived, or a new assumpsit raised by the statute, still the evidence is admissible. 1 Tide!. Pr. 591.</p> <p>It can be scarcely said that there is any thing like special pleading in assumpsit. The gist of the action is fraud, and is this, therefore, covers every thing by way of defence which rebuts the fraud.</p> <p>Now, in the evidence of usury, the reply is given to the fraud. It is disproved by showing the amount really received. Usury, therefore, is admissible under non assumpsit; and if it is necessary to make out this position, still more clearly, it may be shown that usury, under our law, cannot be pleaded specially. With us, usury is not an answer to the action, it only answers part of the action. Now, it is one of the first principles in pleading, that the plea must bo an answer to the whole cause of action; no such thing as pleading to a part of a cause of action ; 5 Bac. Abr. 449; K. 3, Tit. Pleading; Shaw vs. Everett, 1 B. & P. 222; 1 Sellon’s Practice, 298.</p>

<p>To throw hales of cotton from the upper story of a cotton warehouse, (without the usual rope and tackle,) on any of the open spaces near such warehouses, where cotton is ordinarily exposed for sale, is a violation of the city ordinance.</p> <p>See Chimney Sweep’s case, 11 Rich. City Council vs. , Cliit. Jan, ’59. An.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1840.</p> <p>The prisoner was indicted in the 1st, 3d, and 5th counts, for the false making, and in the 2d, 4th, and 6th counts, for uttering and publishing, as true, the following paper :</p> <p>“No. 13. Charleston, S. C., February 19/7i, 1840.</p> <p>“ Cashier of the Bank of Charleston, So. Ca., pay to Geo. W. Jones, or bearer, tlnrty-two dollars.</p> <p>“ $32 00. T. TuppeR.”</p> <p>It was proved that the prisoner came to Charleston on the 17 th day of February, 1839; he boarded ata Mr. Harrison’s. The night after he came, he applied to his landlord for the loan of $2, to go to the theatre ; he pulled out the check, signed T. Tapper, on the Bank of Charleston, for $32, and offered it to him, saying, keep it for security, tomorrow I will collect it, get the money, and return it to you. Harrison ^declined taking the check, as he thought there was something suspicious about it; he, however, loaned him the $2. The prisoner afterwards told him he had collected the check and spent the money. After the prisoner was arrested for grand larceny, his trunk was examined, and the check set out in the indictment was found in it; and Mr. Harrison identified it in Court, as the one offered to him.</p> <p>The check was fully proved to be a forgery. In Charleston there is but one man named Tristram Tupper; he is the President of the Hamburg Railroad ; he sometimes, in small matters of business, such as orders for payment of bills against the company, signs his name T. Tupper. On more important matters, such as scrip, he writes his name Tristram Tupper. The prisoner, in the purchase of some clothes, on the 18th of February, from Mr. Flynn, passed by the name of Henry G. King ; he ordered some clothes from Mr. Pemberton, on the 17th or 18th of February, by the name of George Ross.</p> <p>Four objections were taken to the indictment; 1st. That the indictment describes the paper forged, to be a warrant and order; the Act of Assembly speaks of a warrant or order. 2d. The indictment describes the paper forged as a paper writing, when it was partly in print and partly in writing. 3d. That, according to the Act of 1801, and the case of the State vs. Houseal,(a) the party to be defrauded must be alleged to be within the State. 4th. The indictment alleged that the paper was forged with the intent to defraud one Tristram Tupper, and the paper was signed T. Tupper.</p> <p>I thought there was nothing in these objections. As to the first, I thought the words in the Act, “warrant or order,’’ were used as synonymous, and to describe the same paper, and therefore, that the description in the indictment, by the words warrant and order, was good. To the second, I thought it a sufficient answer, that a paper partly in print and partly in writing, and signed, or purporting to be signed, by a person, was legally the papier writing of such person. As to the third, the case of the State vs. Houseal, (2 Brev, Rep. 219,) furnished the answer ; the want of the allegation, that the party intended to be defrauded resided within the State, prevented the case from being covered by the Act of 1801 ; but without such allegation it was within the Act of 1136-1. (a) (P. L. 141.) The fourth objection, was one, I thought, dependant on the *proof. If it was shown that the paper forged, signed T. Tup-per, was intended to represent Tristram Tupper, then the matter was well laid in the indictment.</p> <p>The case then went to the jury, and they were instructed, that forgery consists in the false making of any one of the papers enumerated in the Act of Assembly, with the intent to defraud another; or in the uttering and publishing of such paper as true, knowing it to be forged. They were told, that the inquiries in fact for them were — 1st. Did the prisoner falsely make the paper set out in the indictment, as the cheek of Tris-tram Tupper Here they were told, first, to ask was Tristram Tupper the person meant by T. Tupper ? They were referred to the proof, that he was the only man in ■ Charleston known to be thus designated ; that his signature was sometimes T. Tupper, and sometimes Tristram Tup-per; and that the prisoner said he would collect the check next day. If they were satisfied that Tristram Tupper of Charleston, was the person intended by T. Tupper, then there was no doubt that the paper was false. And then the inquiry would be, did the prisoner make it 1 The jury were referred to the facts that it was made payable to him ; it was found in his possession ; it was offered by him as a genuine paper to Harrison ; his statement, that he afterwards collected it, when in fact it was still in his own possession ; his bearing false names, and his want of money. If they were satisfied he made the paper, then the jury were directed to inquire, did he make it at Charleston ? Here the jury were referred to the facts, that on its face it purports to be made at Charleston ; and that the prisoner at its date was in the city. If these questions were all found against the prisoner, then the second inquiry would arise — did he make the paper with an intent to defraud another ? They were told, if it was made without any intention of being used as genuine, then the fraudulent intention would be at once negatived, and the prisoner would he guiltless. But this ought to be manifest, before such a conclusion was adopted. For, generally, the false making of a paper, creating a liability on another, or conferring benefit on the maker, would be the evidence of a fraudulent intent.</p> <p>They were told, if the offer to Harrison was with a view of raising money on the check, either bypassing it away, or depositing it as security for money loaned, it would show *that the instrument had been forged with a corrupt intent. And when it was thus shown that it was intended to be used as a money security, it was in contemplation of law hi fraud of Tupper and the Bank of Charleston. For a draft on the cashier of the Bank of Charleston, was a draft on the Bank. The effect of such an order was to withdraw the drawer’s funds from the Bank; and if forged, the Bank could not credit his account with the payment; and hence, therefore, the Bank would be defrauded by such a forgery, although it might have a remedy even against the officer. In an indictment for forgery, it was not necessary to make the party guilty, that his intended fraud should be fully consummated, by obtaining money, or money’s worth, on the paper forged ; it was sufficient if the fraudulent intent with which the paper was forged, was made out. The jury found the prisoner guilty on the first, third, and fifth counts, for forging the check ; but acquitted him on the second, fourth, and sixth grounds, for uttering and publishing the check as true, knowing it to be forged. As to this branch, I do not therefore report my charge. The prisoner moves for a new trial, and in arrest of judgment, on the annexed grounds :</p> <p>GROUNDS OP APPEAL.</p> <p>1. Because the indictment in the 1st, 3d and 5th counts, is defective, inasmuch as the words of the act are “warrant or order,” in the disjunctive, and the words in the counts are “ warrant and order,” in the conjunctive ; the words are not synonymous.</p> <p>2. Because, in these counts, the forging is alleged to have been of a “ certain paper writing,” and proof was of a paper partly written and partly printed.</p> <p>3. Because those counts are still further defective, inasmuch as they do not set forth that the party whom it is intended to defraud, if a corporation, was in the United States, or within this State; or, if a person, was resident in this State, or within the United States,</p> <p>4. Because the first count is still further defective, as it alleges the intention to defraud the Bank of Charleston, S. 0., and the tenor of the check shows that it was a check upon the cashier of the Bank of Charleston, S. C.</p> <p>5. Because the third count is further defective, because the purport and the ^enor the check in the count are at variance ; *the purport being that it was the check of Tristram Tupper, and the tenor showing that it was the cheek of T. Tupper.</p> <p>6. Because the same count was further defective, alleging that it was to defraud Tristram Tupper, and the tenor of the check showed that it was the check of'T. Tupper.</p> <p>7. Because there was no proof where the check was forged, and the jury was instructed that if they believed the prisoner made the paper, the date showed where he made it.</p> <p>8. Because his Honor charged the jury, that the prisoner might be convicted under the Act of 1801, or 1730, or the common law, although the offence was charged to be against the Act of Assembly, &c.</p> <p>cited 3 M‘C. 383 ; 2 Brev. 202; 3 Tom. L. Die. 761; 6 .Jacob. U>. 387, 388; 4 Tuc. Blac. 249, (note,) Acts, 1736-7, P. L., 147; Acts 1801, 2 Faust. 379. Was the indictment framed under the Act of 1801 ? Cited also, 2 Bos. & Pul. 238 ; 2 Mason U. S. R. 464. Nothing would make a printed paper a written paper. Suppose the prisoner had been acquitted, and subsequent to his acquittal, a paper had been found wholly written, could he plead his acquittal ? He could not. The prisoner could not, in such a case, apprehend what he was to answer.</p> <p>An indictment undertaking to recite, and not doing so, produces a fatal variance. Mr. S. contended that there was a difference between the Acts of 1736 and 1737, and the Act of 1801. Cited The State vs. Ilouseal, 2 Brev. 219. It is as essential that an indictment should set out that the person named in the indictment resided in the State and in the United States, as that he forged or assisted in forging.</p> <p>The offence of forgery is only made capital by statute. Under the fourth ground, cited 2 Starkie Ev. 330 ; 3 Brev. Rep. 507, State vs. Waters. An error in a single word is fatal. Fifth ground, 2 Leach. Cli. Cases, 808 ; 2 Starkie Ev. 331 ; 2 Ji. P. C. 992.</p> <p>on the first ground, cited 1 Brev. Rep. 35. As to the place where made, 2 Russel on Cr. 373; Foster’s case, 3 M‘C. 442. The first count is good *under the Act of 1S01. He cited 2 Brev. 262, State vs. Crank, 2 Bail. 60.</p> <p>said that forgery, at common law, was the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced. First, the forgery must be proved to be in the country, and made by the party, and his handwriting proved. Tire bare fact of finding the instrument in the country at the time, and the defendant, is not prima facie evidence that he forged it in that country. Rex vs. Park ,† Brown, Starkie, 231; 2 East, P. C. 992. If an intent to defraud a corporation be alleged, an intent must be proved to defraud them in their corporate capacity ; and if an attempt to defraud several in their individual capacities, be alleged, and it should appear that the real intention was to defraud them in their corporate capacity, the variance will be fatal. E. P. C. 991. A warrant of attorney to forge, is forgery. Paris’ case, 1 Raym. 81 ; 2 Brev. 219, as to recital of words. As to the printing and writing, 2 B. & P. 238 ; 1 Brev. 25. Warrant or order, 2 Bail. 06 ; 2 Russ. 373 ; 3 M‘C 441; 5 Pickering’s Rep. 279 ; 2 Devereaux N. C. 444 ; 2 Southard, 744.</p>

<p>The will of a feme covert is void at law, and the Court of Common Pleas, acting as a Court of Appeals from the Ordinary, cannot entertain the question of executing a will under a deed of settlement. This is a question purely for the Court of Equity.</p> <p>See Ward vs. Glenn, 9 Rich. 127 ; Hood vs. Archer, 1 McC. 477 ; Converse vs. Converse, 9 Rich. Eq. 535. An.</p>

<p>Before Evans, J., at Barnwell, Fall Term, 1840.</p> <p>It appeared from the evidence that one George Bruton died many years ago, and one Charles Dewitt administered on his estate. Benjamin Bruton, the defendant’s intestate, was one of Dewitt’s sureties to his administration bond. The distributees of George Bruton filed a bill against Dewitt to account. The accounts were made up by the Commissioner, who reported a large balance due by Dewitt to the distributees of George Bruton. The report was confirmed, and this action was on the bond to the Ordinary, for the amount of the decree. On examining the Commissioner’s report, it appeared that the Commissioner had charged Dewitt with the rent of the land belonging to his intestate’s estate. This item was objected. But it was finally agreed the plaintiff should take a verdict for the amount of the decree, including the land rent, subject to the opinion of the Appeal Court, on the question ^whether the security on the administration bond was liable for it.</p> <p>said, the only question for the Court was, whether an administrator is liable for the rents of the lands of his intestate. All the authority which an administrator acquires over his intestate’s real estate is derived from the Ordinary, lie contended that it would be a confusion of the offices of administrator and guardian, if the one was permitted to interfere with the powers of the other. Cited P. L. 202 and 217.</p> <p>There was a distinction, said Mr. N., between guardians and administrators.</p> <p>If the administrator is not liable for rent, neither can his surety he, 3 McC. 417; 1 Bail. 461.</p> <p>said, at common law, an administrator had no right to interfere with the real estate of his intestate ; but, by indirect legislation, we have gone far towards conferring that power, by the Act making real estate liable for the payment of debts in the hands of the administrator. At common law, the real estate goes to the heirs at law, the personal estate to a different person. Mr. P. contended that in the Courts of Equity, administrators were called on to account for rents, and the sureties should be made liable for rents collected by their principal as administrator, or legislation should be had on the subject.</p> <p>cited 2 Hill Law Rep. 581. Unless the estate be in debt, the administrator has nothing to do with, the real estate.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1840.</p> <p>This was an action of trover, for the recovery of damages for the conversion of a piano forte.</p> <p>It appeared that a man of the name of Taylor, having a wife then alive married a Miss Horton ; after their marriage they rented a house belonging to the defendant. They lived together for some time, when Taylor abandoned his second wife. In the early part of November, Miss Horton, (alias Mrs. Taylor,) left the demised premises ; there was then twenty-four dollars rent due, in payment of which she and her mother swore that the defendant accepted a bureau worth twenty-six dollars. When she left the premises, she left the bureau and the piano forte ; the latter, they swore, she did not buy from the plaintiff, but that it was, by him hired to her at four dollars per month. In this respect she was corroborated by the plaintiff’s clerk, Mr. Ulrick, who proved that she hired the piano forte in the month of May. She was contradicted by Tenent, Singletary and Mr. Main, the son of the defendant, all of whom proved that they had heard her say she had paid one hundred and seventy-five dollars or one hundred and seventy dollars for it, and young Mr. Main and Singletary both said, that she said, she had left it in pawn for the rent. The plaintiff demanded the piano forte from the defendant; he refused to give it up, unless twenty dollars rent was paid ; the plaintiff made the affidavit required by the Act of 1827,(c) and issued a bail writ, in trover, which was executed by the defendant entering into the bail bond required by the Act, on the 6th of December, 1839 ; subsequently the defendant executed his distress warrant, (which he had previously issued,) and seized and sold the piano forte for the rent which he alleged to be in ar-rear. The value of the piano forte was proved to be from one hundred and fifty dollars to one hundred and seventy dollars. When Miss Horton, (alias Mrs. Taylor,) was offered as a witness, she was objected to by the defendant, oh the ground that she was the wife of the tenant. I thought she was admissible, on two grounds, 1st. according to* her own proof, she was not the wife of Taylor 2nd. If she was his wife, still she was competent. For he had no interest in the event of this suit. The recovery here by the plaintiff would not be evidence for him, that there was no rent in arrear. If the defendant succeeded, then indeed it would show, that the rent was satisfied by the sale of the piano forte ; but in that point of view, Taylor, would, in testifying for the plaintiff, be testifying against his own interest, and the defendant could not, therefore, object to him. The case of O’Farrell vs. Nance, (2 Hill, 484,) is full to the point, that the tenant is a competent witness, between the landlord and a third person. If the husband would have been competent, it followed that the wife must also be.</p> <p>The jury were instructed, 1st, to enquire, was there any rent in arrear. If Miss Horton, (alias Mrs Taylor,) was believed, it was paid by the delivery of the bureau. The question of her credit was distinctly submitted to the jury, and her testimony was contrasted with that contradicting her. If there was no rent in arrear, it would be only necessary then to inquire — to whom did the piano belong, and how much was it worth ? Here again, the case depended on the credit of Miss Horton, (alias Mrs. Taylor,) and Mr. Ulrick, as compared with the testimony of the defendant’s son, Messrs. Tenent and Singletary. . If the jury should conclude, 1st, that there was rent in arrear, and 2d, that the piano forte was the property of the plaintiff, then it would be necessary to enquire, had the landlord the right to seize and sell it under his warrant of distress, after the service of the writ in trover ? I thought he had not. The Act of ’21 makes the action of trover, commenced under its provisions, a proceeding in rem (a) So soon, therefore, as the writ was issued and served, it had the effect of placing the chattel in the custody of the law ; and in that point of view, it was not the subject of distress. It was a mistake to suppose, that the landlord has any lien on the goods of a third person, upon the demised premises ; he may, while they remain, distrain them for rent arrear. But if he prevent their removal, and thus compel the owner to have them on the premises, he could not take advantage of his own wrong and distrain them. So, too, if he convert them to his own use, he cannot afterwards recur to his own right of distress. In any of these points of view, I thought the plaintiff, on this question, entitled to ^recover. The jury found for the plaintiff, the value of the piano forte, with interest from the time of conversion.</p> <p>The defendant appeals, on the annexed grounds :</p> <p>GROUNDS OF APPEAL.</p> <p>1. His Honor, the presiding Judge, refused to exclude the wife of the tenant but permitted her to testify and swear off the debt to the landlord, and was therefore interested.</p> <p>2. Ilrs Honor erred, in charging the jury, that although the articles dis-trained were in the house hired by the tenant, and the house and articles in the house then (at the time of the demand) in possession of the landlord, there was no lien existing- upon the articles, and the levy of the distress warrant could only create such lien.</p> <p>3. The verdict was against law and evidence,</p> <p>said that the wife of the tenant was an incompetent witness to give evidence between the landlord and a third person. He cited 2 Term Rep., 2(J3; 4th ¡6., 078. Trover, he contended, W'as an action of trespass, and not a proceeding in rom. Until the rent is paid, (when due.) the lien of the landlord is unimpaired. The lien of the landlord does not attach without a distress warrant. McWillie ys. Hudson, 1 Tread. Con. Rep., 119; 3 C. & P., 558.</p> <p>contended that the tenant was a competent witness to give evidence between the landlord and a third person, and it followed, of course, that if he was, the wife would also be. Here the witness was not the wife of the tenant and could not be excluded.</p>

Before Earle, J., at Lancaster, Fall Term, 1840. This was a summary process to recover the amount or price of a tract of land, bid off at sheriff’s sale by the defendant. The levy on the lands in question, with a sufficient description, was endorsed on the execution, under the hand of the sheriff, and was also entered in the same words in the execution book.

<p>He who takes a note, after it is due, takes it subject to any defence which the maker can set up against the payee; and when the action is in the name of an endorser or bearer, to entitle the defendant to set up, by way of discount, any matter between him and the payee, he must prove that the note was transferred after due, and that the matter of defence existed between them at the time of the transfer.</p>

<p>Before Evans, J., at Abbeville, Spring Term, 1841.</p> <p>This was a domestic attachment, issued by a magistrate, and directed to the Sheriff of Abbeville district. It was made returnable on the 2d Monday in March. The Court sits on the 3d Monday. A motion was made to set it aside, on the ground that it should have been directed to all and singular the *sheriffs of the State, and was not returnable to any term of the Court. The motion was granted ; and the plaintiff appeals :</p> <p>1. Because his Honor erred in holding that the defendant in attachment, by motion to the Court, without appearance, by special bail, to the action, may take advantage of a mere irregularity in the proceedings.</p> <p>2. Because his Honor held that the defendant being required to appear the second instead of the third Monday in March, was a defect which rendered the proceedings void, and showed that the Court had no jurisdiction.</p> <p>cited Acts 1839, (a) and contended that there was no defect in the process. Act 89; 2 Brev. 168. It would be good at the next term after the return.</p> <p>Irregularity or error in an attachment, cannot be taken advantage of by motion. It must be by special plea and appearance. Harp. Rep. 368, Acock vs. Linn & Landsdown ; 3 Chitty’s Cent. Practice, 74 ; Cheves’ Rep. 5, 6.</p> <p>The defendant is no party so long as the attachment is confined to his goods.</p>

<p>Where the vendor sends goods, with his price marked upon them, and they are accepted by the vendee, the law will imply that they were taken on the vendor’s terms ; unless it should appear otherwise, from the course of previous dealing between the same parties, or from some custom with which both were acquainted.</p>

<p>Before Evans, J., at Edgefield, Spring Term, 1841.</p> <p>This was an application for discharge, under the insolvent debtors’ Act of 1758. It appears that the application was made at the preceding term, and the plaintiff had filed a suggestion, alleging certain objections to the discharge. The presiding judge had ordered the discharge, and the schedule was accordingly assigned, and the oath administered. For some cause, this order was reversed by the Appeal Court,(b) but in the mean time, the defendant, who had given security to remain within the prison rules, had gone without them, and did not return again until within a few days before this application was made at this term. It did not appear that any notice had been given him of a reversal of the former order made for his discharge.</p> <p>On the first or second day of the term, an application was made to me, for leave to amend the suggestion, by adding new objections to his discharge. This I refused, as likely to operate a delay prejudicial to the defendant. During the term, the issues on the suggestion were tried by the jury, and all of them found for the defendant, when his discharge was moved for. The plaintiffs objected, that since the last Court the defendant had gone without the prison rules ; the objection was overruled, and the prisoner discharged.</p> <p>GROUNDS OR APPEAL.</p> <p>Because the defendant, Bushnell, having gone without the prison rules, since the suggestion was filed, and since the October term of the Court, this objection to his discharge could not have been made when the suggestion was filed, and could be made only by an amendment of the suggestion; and because his Honor held that he was entitled to his discharge notwith-standing such absence.</p> <p>said, tire Court had power to permit an amendment. If so, could the Court then exercise a discretion ? Cited Act of 1759 ; Act of 1788.(a)</p> <p>Was the defendant, by his being without the prison rules, prevented from his discharge, and did he come within the contemplation of the Act of 1788. 6th Statutes at Large, 491. Briggs vs. Walker, 1 Hill, 118; 3d Chitty’s Gen. Prac. 553.</p> <p>Pending an appeal, shall the defendant remain within the rules ?</p> <p>Pending an appeal, the proceedings are not complete on the circuit, and it is the Appeal Court that confirms or vacates the proceedings of the Circuit Court. Hence the prisoner is compelled by law to remain within the prison rules.</p> <p>If the prisoner was bound to return within the prison rales, after the refusal of his discharge by the Appeal Court, should he have notice of such refusal?</p> <p>Was it necessary that notice of the appeal should be given before the order for the defendant’s discharge was made ?</p> <p>The defendant was bound to remain within the rules until the time of appeal had elapsed.</p> <p>cited 2 Bay’s Rep. ; 3 Chitty’s Gen. P. 563.</p> <p>Does the law require that any one applying for his discharge, be imprisoned, to entitle him to his discharge? 2 Brev. Dig. 155 ; Id. 160.</p> <p>There is no necessity by law for the defendant to be imprisoned at all.</p>

<p>To correct a slave with a whip, giving him hut fifteen stripes, when he is found without his master’s enclosure, with a ticket or permit, accounting for his absence, is held to be a beating and abusing, within the meaning of the Act of 1839.</p> <p>In bringing an action in the sum. pro. jurisdiction, to recover the penalty of 850, under the Act of 1839,(a) for the unlawful beating of a slave, it is not necessary that the plaintiff should aver in his process that the defendant was a white man.</p> <p>Strictness of pleading is not required in the summary process jurisdiction.</p> <p>See Hadden vs. Liebeschultz, 11 Rich. 505; Smith vs. Hamilton, 10 Rich. 48. An.</p>

<p>The parol undertaking of a third person to pay for articles purchased hy another, is void, by the Statute of Frauds.</p> <p>See 2 McM. 372, and note there. An.</p>

<p>Before Gantt, J., at Laurens, Spring Term, 1841.</p> <p>This was an action of assumpsit on two notes of hand ; one for seven hundred and fifteen dollars, on which there was no defence set up, the other for four hundred dollars, drawn by Thomas B. Lockhart, in favor of Samuel Fleming, the defendant, and endorsed by him in blank before due. The blank was filled up by Fowler, so as to dispense with the otherwise legal necessity of making a demand on the drawer, and giving notice to the endorser, of non-payment. The verdict of-the jury was in favor of the plaintiff, to the amount of both notes, and the defendant appeals, on the following grounds :</p> <p>1. Because the parol testimony was incompetent to alter or explain the endorsement in blank.</p> <p>2. Because the proof made iu said case was insufficient in law to sustain the action.</p> <p>The evidence offered in this case, was the examination of M. B. Park, the purport of which was, that he heard Fleming say that he authorized Fowler to fill out the endorsement; that he, (Fleming,) did not know that the law required demand and notice ; but that when he endorsed the note, he considered himself as much bound for its payment, as if lie had been security.</p> <p>The next evidence that was offered, was that of Robert H. Park, who testified that he heard Fleming say, that when he put his name on the back of the note he allowed Fowler to fill up the endorsement as he wished. Other testimony was offered, but it is omitted, as having no direct, bearing on the isolated question of the law by which this case must be determined.</p> <p>As respects the note of Lockhart, endorsed by Fleming to the plaintiff, I saw nothing so conclusive in the testimony as *to justify the jury in concluding that there had been any waiver on the part of Flcming of the legal necessity of making a demand on the drawer, by the endorsee, and in the event of non-payment, of giving notice of the same to the endorser.</p> <p>Whether Fowler was authorized to fill up the blank so as to dispense with the necessity on his part of making a demand of the drawer when the note became due, and on failure of payment, of giving notice to the endorser thereof, was a question to be settled by the evidence. I saw nothng in the testimony to justify such a deduction, and in the charge made to the jury insinuated as much; but the jury thought otherwise, as would appear by their verdict, finding for the plaintiff the amount of the (indorsed note.</p> <p>cited, on the first ground, 3 Kent’s Com. 88; 1 Moore, 535, or 1 Harr. Dig. 504, Campbell vs. Hogson; 1 Harr. Dig. 519, or Gow. 79; 3 Campbell, 57; 1 Starkie Rep. 361; 10 Barn. & Cress. 729; 5 John. 375; Chitty on Bills, 192; 2 Mills’ Const. Rep. 31, Price, Ex'or, vs. Perry; 29 Charles; Genett Mercantile Law, 176-7.</p> <p>insisted that the plaintiff could not recover on the endorsement. That he could upon the general counts in the declaration for money borrowed. Cited Beckwith vs. Angel, 6 Connect. Rep. 345; Ulen vs. Kithredge; 7 Mass. Rep. 233; Joslin vs. Ames, 3 do. 235; 13 Johns. 178; 17 do. 329; 14 do. 349; Frampton vs. Dudley, 1 Nott & McCord, 128. A party may prove by parol any agreement that was entered into at the time of the endorsement. Also, what power was delegated. The verdict should stand upon the general count in the declaration.</p> <p>said the case from 1 N. & McC. 128, relied on by plaintiff’s counsel, did not support the position of plaintiff.</p>

<p>A plaintiff, after the defendant has been arrested by virtue of an order for bail, lias the right to discharge the bail from any liability ; and also to discharge the defendant, without his consent, although he may have given bond for the prison rules, and filed his schedule, with the view of taking the insolvent debtors’ Act.</p> <p>A prisoner confined under an order for bail, and who has filed his schedule with the clerk, and given notice to his creditors of his intention to take the insolvent debtors’ Act, cannot take this Act where he has been discharged by the plaintiff at whose suit he has been arrested.</p> <p>It is questionable whether a defendant can be arrested pending a suit, where he has been previously arrested and held to bail, and by the plaintiff discharged.</p> <p>See N. Cohen’s case, Charleston, January, 1859, 11 Rich. An. Sleeper & Fenner vs. N. A. Cohen.</p>

<p>Where a general demurrer has been overruled, the adverse party have the right to enter up judgment on the matter in controversy, unless the demurring party obtain-special leave to plead over at the time the demurrer is overruled.</p> <p>See 7 Rich. 432. 5 Stob. 157. 1 N. & McC. 88, 108. 2 McM. 292, and cases in note there. Smith vs. Singleton, Charleston, February, 1852.</p>

<p>A Court of Law has the power to vacate or set aside its own judgments, when obtained by or founded in fraud.</p> <p>The proper course to pursue, where a judgment is sought to be vacated, and affidavits are submitted by the defendant, is to take out a rule for the plaintiff, returnable to the next term of the Court, to show cause why the judgment should not be set aside.</p> <p>See 4 Rich. 168, 512; 6 Rich. 491, 495; 1 Sp. 39, 114. An.</p>

<p>Before O’Neall, J., Richland, Spring Term, 1841.</p> <p>This was a sum. pro. to recover the freight, $32.49, on certain articles shipped from Charleston to Columbia, on board the Steamer St. Mathews. She reached her usual port of delivery, *Granby. She could not, at any time, ascend further up the river. The goods of the defendant were delivered to a wagoner, to be by him delivered. This was the course usually pursued. A part of them came properly to hand. A parcel of buckets were sent to Union district. After some time they were recovered by the agent of the boat, except two, which were lost. Sixteen were injured. The defendant refused to accept them; but, at last, did receive them into his store, and had a survey made by Mr. Solomons, who said that the two lost were worth $6, and the sixteen damaged were injured, each, $1. The defendant relied on a discount for the lost and damaged articles, as well as on the defence, that the steamer did not deliver the goods shipped.</p> <p>I allowed the defendant a discount of $22, and gave plaintiff a decree for $10 49. The defendant appeals on the annexed grounds.</p> <p>1. That the culpable negligence of a carrier ought to vitiate his whole claim under his implied contract, which he has wilfully neglected to fulfil.</p> <p>2. That the defendant, having expressly refused to accept his damaged goods, ought not to have been held to have accepted them at their damaged value, only because he allowed them to lie in his store.</p> <p>3. Because his Honor gave judgment for a sum less than the jurisdiction of the Court.</p> <p>cited 3 Hill, 202; Caldwell vs. Garmany; Saunders vs. Gage, Cheves, 165, and said the plaintiff was not entitled to freight until the goods were delivered. The plaintiff, said Mr. C., was proved to have known the amount of this discount.</p>

<p>A promise by one co-partner, after dissolution of partnership, cannot create a new liability against the other partners on a simple contract, barred by the Statute of Limitations before the dissolution.</p> <p>A defendant is not precluded from availing himself of the Statute of Limitations, by the remark of his counsel, in argument, “that his client would scorn to take advantage of the statute, if it could be made to appear that the money had been applied to the business of the firm. ”</p> <p>See 4 Strob. 220; 6 Rich. 219-29; 9 Rich. 44. An.</p>

<p>Before Evans, J., at Abbeville, Spring Term, 1841.</p> <p>This case presents the following facts:</p> <p>The defendant, with others, were members of an unincorporated association, called the Abbeville Silk-growing Company. The company had been organized, and officers appointed. The capital stock consisted of shares, each member subscribing for a certain number. The defendant subscribed for ten shares. By the articles of association, signed by the members, each subscriber promised to pay the value of his shares, in certain instalments, when required by a resolution of the company. One instalment was called for, which defendant refused to pay. By the articles, the subscribers promised to pay the treasurer of the company. Dendy was the first treasurer, and probably held the office when the articles were signed, but the plaintiff was treasurer when tho action was brought. I considered the promise to pay as binding, and the action might be brought in the name of any one who was treasurer at the time, and decreed for the plaintiff.</p> <p>The defendant appeals, and will move to reverse the decree:</p> <p>Because the Treasurer of the Abbeville Silk Company being neither a public officer nor a corporation sole, the plaintiff showed no right to maintain this action.</p>

<p>Before Evans, J., at Abbeville, Spring Term, 1841.</p> <p>This case Came up under the following statement of facts :</p> <p>An action was pending by the plaintiff against the defendant on a note signed “ Fielding and Jesse Gent.” By an agreement between the parties, at or before the last Court, the case was to be marked continued, and was to be settled by the award of arbitrators. The award to be final, as the judgment of the Court. The arbitrators were chosen and an award was made, as follows : “ The undersigned, a majority of the persons chosen to arbitrate and settle the case between Wm. Cox, Senr., plaintiff, and Jesse Gent, defendant, in relation to a certain note, made payable to said Cox, by Fielding Gent, with Jesse Gent’s name signed, have heard the evidence, and according to their judgment of the facts, do find for the plaintiff the amount of the note. ”</p> <p>At this term the plaintiff’s attorney moved to confirm the award, and for leave to enter up judgment upon it. The note was copied on the declaration.</p> <p>I refused this motion. 1st. Because the award was for no definite sum. 2d. Because the awatd did not refer to any particular note, by such description as would connect it, with certainty, with the note sued on, so as to authorise the entering up the judgment for any certain amount.</p> <p>The written submission was entitled thus:</p> <p> </p> <p>'l’lie plaintiff appeals. Because, by proper reference, the award may be made sufficiently certain.</p> <p>said that the award was sufficiently certain, and cited in support of this position, 1 American C. L. R. title Award and Arbit.; 8 Peters, 177, Luths vs. Wesickin; 2 Strange, 1082; 2 M'Cord, 279.</p> <p>A misrecital of an award, has been held not fatal, and on this point cited 1 Ven. 184.</p> <p>In reply, said there is more latitude given to an award than a verdict.</p> <p>said that judgments are taken by the English practice in advance of the order for arbitration, and referred to Watson on Awards, 194; 1 East Rep. 401.</p> <p>There is not a sufficient description of the note sued on in the award.</p> <p>If judgment had been given upon this award, defendant could not have been protected from a future suit.</p> <p>Arbitrators could not try the question of whose note it was.</p>

<p>A note dated January the 8th, 1838, with the words, “with interest from the first day of January last’’ — Held, that the time from which interest was to be computed, was the first day of January, 1837.</p> <p>The rule of law is, that a doubt shall be solved against him whose business it was to speak without ambiguity.</p> <p>See Posey vs. Branch, 2 McM. 339. An.</p>

<p>The subscribing witness to a contract, whether under seal or not, must be produced to prove the instrument, if alive and within the jurisdiction of the Court. It is incompetent to prove it in any other way.</p> <p>See 11 Rich. 318, and cases there cited. An.</p>

<p>Before Earle, J., at Lancaster, Fall Term, 1840.</p> <p>The plaintiff’s execution was lodged 16th March, 1840. An execution at the suit of Weed, Benedict & Co., was lodged the 13th of April, 1840, against the same defendant, who paid to the sheriff, on 16th July, $178.14, which he directed to be applied to the payment of the last mentioned execution, and took a receipt from the sheriff entitled of that case.</p> <p>This was a rule on the sheriff, who has the money yet in his hands, at the instance of Adams, to show cause why the money should not be paid over to him, as the oldest execution creditor.</p> <p>As the money did not arise from the sale of property, the lien of the execution did not attach upon it. A payment of the money by the defendant, to the plaintiffs, Weed, Benedict & Co., themselves in person, would have been protected as a valid payment. It would have been a mere preference of one creditor to another, which, under the circumstances, the defendant had a right to make. I think, on principle, the payment of the money to the sheriff, makes no difference, as he gave directions how it was to be applied ; which directions the sheriff has consented to obey, by giving a receipt accordingly. The sheriff, on a fi. fa. could not levy on the money in the pocket of the defendant, nor compel him to pay it to the execution of Adams. The sheriff had two executions, and the defendant selected which he would pay ; it is the common case of one owing several debts, and making a payment, directing the application of the money. The sheriff’s receipt is at least a discharge of the defendantpro tanto on the execution of Weed, Benedict & Co.</p> <p>I dismissed the rule, and the plaintiff appeals, on the ground :</p> <p>*That the Court erred in ruling that “ where there are several executions in the sheriff’s office, against the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application; and that the sheriff is not bound to apply money, so paid, to the oldest execution.”</p> <p>contended that money is subj ect to levy under execution, and it was the business of the sheriff to levy, in this ease, in favor of the oldest execution.</p> <p>Cited 1 McCord, 395; Dalton, 145. The execution goes as well against money as other property. 1 Cranch, 117, to show that money may he levied on under execution. 12 Johns. 220; Id. 395; 2 N. & McC. 341; 1 Bail. 39; Means vs. Vance, 2 Hill, 406. In the case at bar, the sheriff received the money as sheriff. 4 McC. 8; P. L. 379. The oldest execution must he satisfied.</p>

<p>Before Butler, J., at Chester, Spring Term, 1841.</p> <p>This was an action of debt, on the following paper:</p> <p>“ One day after date, we promise to pay Richard Lucas, or his order, three hundred dollars, for value received. Witness our hands and seals, May 11th, 1836.</p> <p>“ Sanders & Egger, [l. s.]</p> <p>George McAlilly, [l. s.]”</p> <p>*It was proved that the signatures were made by Egger, in the name of Sanders & Egger, at the time they were in co-partner-sliip, and by McAlilly. On the night that the note was delivered to payee, Egger left the State, and this is an action against E. Sanders & George McAlilly. The declaration alleges that the note was made by Sanders & McAlilly, (Egger being out of the State.) The evidence was that Sanders did not sign the note; and the effort to show that he had authorized Egger to sign it for him, and for the firm, under seal, entirely failed, and the question made was, whether the plaintiff could recover against McAlilly alone. I held that he could not.</p> <p>The plaintiff moves to set aside the nonsuit, and for a new trial:</p> <p>1. Because his Honor, the presiding Judge, decided that the plaintiff could not recover in this action, the suit being brought on a joint sealed note, executed by Egger, in the name of the firm of Sanders and Egger, and by George McAlilly, Egger not sued, (he being without the limits of the State.)</p> <p>2. Because the Court decided that the plaintiff could not recover in this suit against George McAlilly.</p> <p>3. Because the decision of the Court was contrary to law and the evidence in this case.</p> <p>This case was brought under the Act allowing joint obligors to be sued, when one of the parties is out of the State. Cited Fleming vs. Dunbar, 2 Hill, 532.</p> <p>One co-partner can bind the firm, where it is shown that the profits arising from the contract went into the co-partnership. Lockhart vs. Bell, 2 Hill’s Rep. 422; 1 Saunders’ Plead.</p> <p>offered no argument.</p>

<p>Before Earle, J., at Sumter, Spring Term, 1841.</p> <p>The plaintiff declared in assumpsit on a promissory note, and proved on the trial an instrument in the following words:</p> <p>“$212 05. Camden, March 6th, 1840.</p> <p>Six days after date, I promise to pay James R. McKain or bearer, two hundred and twelve dollars and five cents, for value received, with interest from the 1st January, 1840, as witness my hand and seal.</p> <p>J. MILLER, [l. s.]”</p> <p>*The defendant’s counsel, on the production of the paper, moved for a nonsuit, on the ground that it was a sealed instrument, and therefore assumpsit could not lie. The instrument was a printed form, except the sums, dates and maker’s name. The letters L. S. were printed capitals, and there was no scrawl of any kind to denote a seal, and no parol proof of intention. “ Witness my hand and seal,” was also printed. I did not consider it as a sealed instrument, and overruled the motion. The counsel then made the same question to the jury, and it was submitted to them by the Court, with ample instructions, to say whether in fact the defendant intended, and the plaintiff accepted it as a sealed instrument. I explained the nature and office of a seal, and the material distinctions between sealed and unsealed instruments, especially in regard to the statute of limitations, and the order of paying debts against estates. I instructed them that less strictness was observed here on this subject than in England, and some other States; that any letters, as L S., or a scrawl, made by the party, in connection with the words “sealed,” or “witness my hand and seal,” or proved by evidence aliunde to have been intended as a seal, would constitute a valid seal. The printed letters L. S. only denoted where the seal should be, and were intended to represent a seal, were usually surrounded by a scrawl of the party, to denote a seal. In the absence of any thing done or written by the defendant here, to manifest an intention to adopt these letters as a seal, I thought the paper ought not to be regarded as a sealed instrument. The jury were of a different opinion ; and, as they were instructed to do in that event, they found a verdict for the defendant, assumpsit not being the proper action.</p> <p>The plaintiff appeals:</p> <p>1. Because the printed letters L. S. at the end of defendant’s name, does not constitute a sealed note, and is no seal.</p> <p>2. Because, upon the proof made in the case, it was not the seal of the defendant.</p>

Before Butler, J., at Lancaster, Spring Term, 1841. This was a motion to dissolve certain attachments, which had been issued at the instance of the plaintiffs, against Leroy Secrest, late Sheriff of Lancaster District, as for a contempt, in not collecting and paying over the money on certain executions of the plaintiffs, against the defendant; and also, for not returning the executions according to law.

<p>The town council of Columbia, under the act of incorporation, have the power to enact by-laws, which shall be binding upon the persons and property, not only of the citizens of the town, but also of non-residents, when they come within the corporate limits of said town.</p> <p>See 6 Rich. 415, 558; 1 Rich. 390; 2 Sp. 761; 2 McM. 233. An.</p> <p>See Supra, 49, and cases there cited in note. An.</p>

<p>A right of way, hy prescription, implies an adverse use of the way for twenty years ; and the party using the way, must use it as though he was exercising a right of property in himself, uncontrollable by the owner of the soil over which it runs.</p> <p>Before Butler, J., at York, Spring Term, 1841.</p> <p>This was an action on the case, to try the right of way. The plaintiff claimed by prescription, and declared for a way from his residence to the Pinkney or Blairsville road. For a short distance, the road was through plaintiff’s land, who claimed under one Miller, whose daughter he married; and thence through defendant’s land, to the Blairsville road. In 1815, Miller bought the land oil which plaintiff resides, from James Gill. The land adjacent to it then belonged to defendant or his father, and the residue of the land on which the way run, belonged to Thomas Hogg, the father of plaintiff. At the time Miller settled, there was a winding bridle way through the above tract of land, leading to Blairsville. For the purpose of hauling his cotton to Blair’s gin, Miller cleared out the way in 1816 ; and after that time, he and the neighbors used it indifferently, in going part of the way to church and to the mill, as well as to the gin. The road to Harmony church, turned off not far from Miller’s house; some persons travelled it the whole distance, in coming to Miller’s mill, and Miller used it occasionally in going from his house to other mills. There was no evidence that the road had been worked on by any one in particular, after it was first cleared out by Miller. It was called the Miller road. In 1823, the defendant bought Thomas Hogg’s land, which made him, as before stated, owner -of all the land lying between plaintiff and the Blairsville road. About the time he purchased from Hogg, defendant cleared a field across the way, which was about seventeen years before this action was brought. When he put up his fence, he cleared out a road around his field. Some of the witnesses said he cleared out the way only to where his own road struck the field; others say that he cleared out a way round the field towards Miller’s. Upon this point, the testimony was irreconcilable. There was no objection made by Miller, at the time the field was cleared, that his way would be obstructed, nor *was there any evidence that the defendant had consulted him on the subject. About two years before this action was brought, the defendant run two fences across the road, and cut a ditch. Before he cut the ditch, he put up a gate next to Miller’s, on the line, about a hundred yards, at a right angle to the way. This he did for his own convenience in passing to his own plantation, and to accommodate the neighbors. The plaintiff objected to the gate, insisting that the old way should be opened, or a gate put on that. Defendant then asserted his right, by putting a ditch across the way ; and this action was brought. The plaintiff and those under whom lie claimed, as well as others, have been using the way for more than twenty years, and the question was, whether they have used it under such circumstances as to give the plaintiff a right by prescription. I charged the jury that as a right by prescription was founded on the presumption of a grant, the use of the way must be adverse ; that is, that the party claiming it, should enjoy it as though he had a right to do so under a grant, or at least in a way that would be consistent with the presumption of a grant. That if it appeared from the manner of the use, that the way was enjoyed by the sufferance and permission of the owner of the soil, or that the party claiming the way acknowledged by any concession the right to obstruct it, then the right by prescriptive use could not be acquired. I further said, that a neighborhood path, running entirely through woodland, as this did, should generally be regarded as a mere convenience to the neighbors indifferently. But that, nevertheless, a way might be acquired through forest land by prescription, when the claimant exercised such a control as to indicate a right to it. In the course of my remarks to the jury, I said that the presumption of right by prescriptive use, arising from a grant, would be lessened from the fact that many persons travelled the way indifferently, and that it passed over several distinct grants; and that it would be increased when the way was used by one, and passed over one entire grant.</p> <p>The jury found for the defendant.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because the case made by the evidence, clearly gave the plaintiff his right of way, as claimed.</p> <p>*2. Because his Honor erred, in saying to the jury, in his charge, that if they came to the conclusion that Hugh Miller used the way only by permission, that would be fatal to plaintiff’s right.</p> <p>3. Because his Honor erred, in saying to the jury that others using the way, was a presumption against Hugh Miller under whom plaintiff claimed.</p> <p>4. Because the Court charged the jury that it was fatal to the plaintiff's right to recover, if they believed that dill did not open a way for Miller round liis first field he cleared on the line of the old way; when that was only a slight change; and even if Hugh Miller had opened the way himself, and was thereby entitled to enjoy his right of way over the other, and main part of the road, this could not effect his, the defendant’s, right by prescription.</p>

<p>Where there is a plaintiff who can sue, and a defendant who can he sued, the Statute of Limitations begins to run.</p> <p>The Statute of Limitations is not suspended during the time that elapses between the death of an administrator and the administration de bonis non.</p>

<p>Upon the plea of ‘ ‘ non est factum ’ ’ solely, a defendant cannot go into evidence of the failure of the consideration. He must give notice to the plaintiff of such matter. Vide Bolinger vs. Thurston, 2 Mills, Const. Rep. 447; and 1 Hill, 370.</p> <p>Wilful misrepresentation, or any other matter which will go to show that a bond, note, or other instrument, was void in its creation, may be given in evidence under the general issue.</p>

<p>Two indictments may be sustained under the Act of 1839, against the putative father of two bastard children, born at one birth ; but the indictments and the recognizances should describe each child by name and complexion, hair and sex, or by some means of separate identity.</p> <p>The Act of 1839, is a repeal of the Act of 1795, on the subject of bastardy.</p>

<p>Before ButleR, J., at Union, Extra Term, 1841.</p> <p>This was an action of trespass to try titles. Both of the parties, plaintiff and defendant, claimed under John T. McJunkin, through sheriff’s sale. The evidence on the part of the plaintiff, in the first instance, was as follows:</p> <p>Records in the case of Nathaniel Gist, administrator of Jas. Dugan, vs. Jno. T. McJunkin. Judgment signed 28th April, 1837, for $1275 ; fi. fa. 1st May, 1837. Entry on fi. fa. by sheriff. Levied on four hundred acres of land, of J. T. McJun-kin, more or less, whereon James McJunkin now lives. Deed from R. McBeth, sheriff, to plaintiff, dated 14th September, 1837. The deed describes the land, as bounded by Thomas Sorter and A. McJunkin, and others, and as the land whereon John T. McJunkin formerly lived. The foregoing proceedings and judgments were instituted to revive a judgment obtained by James Dugan, in bis life time, against J. T. McJunkin -,fi./a. dated October 16, 1826. The plaintiff here closed, having proved a trespass, and defendants offered the following evidence of title :</p> <p>Records of Ordinary vs. Jno. T. McJunkin. Judgment dated 28th March, 1826, for $440; fi. fa. same day ; levy of land in controversy, entered onyf. fa., in April, 1826. *Deed from John Anderson, sheriff, conveying the land to William M. Thomson, in consideration of $84. Besides the above, another record of Robert Malone vs. John T. McJunkin, was introduced. Judgment, 12th April, 1833, for $150 ; entry of levy on the same land by sheriff; deed from sheriff, B. Johnson, to Abraham McJunkin, the defendant, dated 10th December, 1833, conveying three hundred and sixty-seven acres of land, more or less.</p> <p>Evidence in reply: — Proceedings in Chancery, in the case of John T. McJunkin vs. William M. Thomson and John Bates, sheriff. The main object of this bill, was to set aside the sale to William M. Thomson, before mentioned, upon the ground, that the judgment under which the sale took place, had been satisfied before the sale. Chancellor Harper, at June Term, 1829, heard the case upon the bill and answer. By his decree, which was given in evidence, the Chancellor was satisfied from the evidence then before him, that the proceeds of property, sold under a fi.fa., against John T. McJunkin, was applied to the payment of that judgment, and that if the application in fact had been made, the judgment was satisfied ; but not having the fi. fa. before him, he did not make a final decision on the matter, but referred it to the commissioner, to report whether or not the judgment had been satisfied, and that upon the coming in of the report offering that fact, the judgment should be marked satisfied, and the sale to Thomson set aside, &c. But if it should appear, on the reference, that the judgment had not been satisfied, which was to be made appear by the defendant being the acting party, then the bill to be dismissed without cost. I have not the decree before me, but as it is important, it can be referred to. After the decree was pronounced, and when I supposed it was pretty well ascertained that the deed to Thomson would be consulted, the following arrangements were made by Thomson and two of the McJunkins, John T. & Jos. A.</p> <p>William M. Thomson, who was sworn as a witness, gave this account of the transaction — that either he proposed to John T. McJunkin, or McJunkin made the proposal to him, that the money paid by Thomson, and the cost which he incurred, should be refunded to him, and that he should reconvey the land. For ^le PurPose °f securing to himself the *money thus to be refunded, he took a confession of judgment from Jos. A. McJunkin, (son of John T.) John T. McJunkin, and Benjamin McJunkin, for $117. Thereupon, John T. McJunkin presented, in his own handwriting, a paper purporting to be a conveyance of the land from Thomson to Jos. A. McJunkin, in consideration of $1500, with a clause of general warranty. The witness refused to sign the deed, but finally executed a deed of the land in John T.’s handwriting, containing the true consideration, and without clause of warranty to Jos. A. McJunkin. By a memorandum of the execution, it appears that the amount of confession was paid to Thomson by John T. McJunkin.</p> <p>Joseph A. McJunkin, who had conveyed all his interest in the land to Abram, was sworn, and gave the following testimony:</p> <p>That on the day the land was advertised to be sold, under the Malone judgment, he met with his uncle Abram, who said to him, I am afraid your title from Thomson is not good. I am willing to give you, for the benefit of your family, $1200 for the land, but I am afraid 1 cannot get good titles from you; you must forbid the sheriff’s sale, and I will bid and take the titles from the sheriff. The witness said he agreed to this arrangement, and that when the land was offered for sale, he forbid the sale, saying, that whoever bought the land, would buy a lawsuit. The land was set down in the sheriff’s books to John Rogers, but the titles was made to Abram McJunkin. The witness said that Abram never had paid him any thing for the land; he may have paid the amount of the Malone judgment, (about $150;) that judgment was recovered on a joint and several note, signed by his father and himself; that he was security on note ; and that a separate judgment was recovered against each maker; the land was knocked-off to Abram, or for him, at $10, (it appeared here, that the plaintiff had got the land conveyed to him, on a bid of $16.) The witness said, that one Gregory had offered him $1200 for the land, if he would make him good titles. On his cross-examination he said, the money that was paid to William M. Thomson, was his own, although his father may have paid it. Benjamin Gregory said he was anxious to buy the land, and would have given $8 or $10 an acre ; offered Jos. A. McJunkin $1200, if he would make good rights. On the day *the land was sold, under the Malone judgment, witness asked Abram about Jos. A.’s title. Abram said he did not think it good, and advised witness not to bid, or that he would'involve himself if he did. No one bid at the sale but Rogers, and he made but one bid. The fact that the land was represented to be in dispute, made it sell for less than its true value ; the land was valuable.</p> <p>B. Johnson, the sheriff, said he advertised and sold the land, without any particular instructions from Malone. There was an endorsement on the execution to proceed forthwith, and he proceeded under this instruction and the execution itself.</p> <p>L. B. Geter heard Abram McJunkin say, that the land had been bid off by John Rogers, but it was for himself.</p> <p>Daniel Thomas said he came to the sale to bid for the land ; regarded it valuable ; that just as the sale was coming on, he inquired of Rogers whether there was any incumbrance on the land. Rogers replied, that any one who bought it, would buy a law suit.</p> <p>This evidence was objected to on the part of the plaintiff, and admitted by me, on the ground, that the connection in the transaction, alleged to be fraudulent, between Abram McJunkin and Rogers, was abundantly proved.</p> <p>Dr. Jeter said, that before the sale, he saw a good deal of intercourse between Abram McJunkin and Rogers ; they seemed to be in constant conversation, &c. In going home after the sale, he and Abram and others in conversation, Abram said he was sorry he had bought the land. The witness said the land was worth from $10 to $15 an acre.</p> <p>William Davis, heard the defendant say the same thing at another time.</p> <p>Jos. A. McJunkin, recalled. About seven days after Malone’s sale, he made a deed to Abram, in consideration of $1200 ; no part of which he has received.</p> <p>There were several witnesses, who said they had often heard Abram McJunkin say, that the judgment of Ordinary vs. John T. McJunkin, was satisfied before the sale under it.</p> <p>Evidence on the part of the defendant: — John Ward said, he saw a note given by Abram McJunkin, to Jos. A. McJunkin, for $600, which witness regarded as part payment of the land ; saw it in John T. McJunkin’s possession ; saw Abram sign a note, to Mrs. John T. McJunkin, for $200, for her dower.</p> <p>* Mr. Kesler, said he was present when Jos. A. executed the deed to Abram. At the same time, Abram gave his note for $600, and paid some money, but how much, witness could not say. The evidence here closed.</p> <p>Then, after full argument, the case was submitted to the jury. I held that Judge Harper's decree was not a final judgment, which, of itself, set aside the sale of Thomson. Hut the question was still open, whether John T. and Jos. A. McJunkin, by combination, have procured titles to be made by Thomson to Jos. A., at a less price than the real value of the land, with a view to defraud John T.’s creditors. This question was distinctly submitted to the jury, with a full explanation of all the circumstances which could effect either side. So of the sale under the Malone execution. This was a question of feet, which belonged to, and was submitted to, the jury.</p> <p>What I have said embraces all the questions involved in the case or growing out of my charge. There is no foundation for second ground of appeal. I suffered the declarations of Abram McJunkin to be given in evidence, by witness sworn before me, and said, that although the decree of Chancellor Harper must be received, nevertheless, the evidence recited in it, was not evidence received in this case. This, however, was unimportant, as the same evidence was given before me of Abram’s declarations. I do not understand the meaning or reference of the fifth ground. I will not speak of all my omissions, but I say, that I never instructed the jury not to believe Jos. A. McJunkin; for, on the main points of his testimony, I thought he told the truth. The plaintiffs did not recover as much land as that described in the declaration, their verdict was for the land whereon John T. McJunkin lived, and they can take no more than that under a writ of habere facias possessionem, as it regards the rent. The proof was that defendants had been cultivating the land, about forty acres, for five years ; and witness said, land would rent from $2 to $3 per acre. I cannot now say, what was the estimate of the jury ; they found for the plaintiffs, the land and $300 damages. I was willing that the jury should have found less damages, as from Chancellor Harper’s decree, it appears to me that the McJunkins had been hardly used, in a way that approached oppression ; and as I said to the jury, I wish they had pursued a proper mode to relieve themselves.* Upon the whole, my sympathy was with defendants, but I submitted the case without prejudice to the jury.</p> <p>The defendants appeal, on the following grounds.</p> <p>GROUNDS OP APPEAL.</p> <p>1. Because the title of William Thomson being legal and valid, he had a perfect right to give or convey the land to whom he pleased. And Joseph A. McJunkin, having paid his own money for the title of Thomson, had as perfect a right as Thomson. And the Court erred in charging the jury that they might find the conveyance from Thomson to Joseph A. McJunkin, fraudulent and void.</p> <p>2. Because the Court permitted what the defendant, A. McJunkin, said in the case in Equity, of J. T. McJunkin vs. Bates & Thomson, to be given in evidence, to defeat the title of Thomson, and consequently, his own title, when, according to the decree in the case, the title was not set aside, and is yet good and valid, and the Court charging the jury upon this evidence against the defendants.</p> <p>3. Because the purchase of A. McJunkin, under the Malone judgment, was good and valid, and the Court erred in charging that the acts of A. McJunkin and J. A. McJunkin, might be considered fraudulent, and vitiate the sale, when they had no agency in procuring the sale.</p> <p>4. Because the Court permitted the declarations and advice of Mr. John Rogers, to be given in evidence against the defendants; and held, and took for granted, that Rogers was the agent óf A. McJunkin at the time they were made.</p> <p>5. Because the character of Joseph A. McJunkin was attacked by the testimony of two witnesses, and the evidence of his own deed ; and the Court omitted charging the jury upon this part of the case, or to give them any instructions, and said witness was unworthy of belief.</p> <p>6. Because the defendant, A. McJunkin, is a purchaser for a valuable consideration from J. A. McJunkin, without notice of any fraud between J. A. McJunkin, J. T. McJunkin, and William Thomson, if there was any.</p> <p>7. Because the jury have not found the land sued for, nor the land described in the plaintiff’s deed, and they have given damages for the rent or use of the land, anterior to the time when the plaintiffs acquired a title.</p> <p>-because the plaintiff, having the oldest judgment, will recover the proceeds of the former sales, and obtain the land also.</p> <p>9. Because the verdict is contrary to law and evidence.</p> <p>on the first ground. Title of William M. Thomson. Is this title a good one ? It is contended that this title is set aside by Chancellor Harper’s decree, but by good authority, he hoped to show that it was not set aside.</p> <p>It was not necessary for the defendants to go on and hold the reference under Chancellor Harper’s decree, but it was the duty of the complainants to do so; the onus was on them.</p> <p>The decree of the Chancellor in the bill in equity, was not final between the parties. There are two kinds of decrees in equity, final and interlocutory. And this decree will be found to be interlocutory.</p> <p>It is immaterial as to the defence in this case, whether the title be in the defendant or in others ; it is sufficient to divest the plaintiff of his right, to show a better right than his; one in another. Harrison vs. Hollis, 2 N. & McC. 578.</p> <p>2d Ground. A purchaser for a valuable consideration has a good title, though the party from whom he purchased obtained his title by fraud. 10 John. 185. Also, S. P. Com. Law Rep. 35.</p> <p>The questions of law were decided'by the Court in favor of the defendants, and the only questions left to the jury, were those of facts.</p> <p>The question for the Court is, whether Thomson’s deed was a valid one or not.</p> <p>A man’s declarations are admitted, upon the ground that he will swear nothing against himself.</p> <p>3d Ground—12 Wendell Rep. 41.</p> <p>Thomson, same side. We go entirely against the title of William M. Thomson, and declare, that by the Chancellor’s decree, Thomson’s title was completely nullified. Cited McCool vs. McClarey, Harp. Rep. 483.</p> <p>*A. McJunkin was estopped by the Chancellor’s decree, and any person attempting to commence an action, under Thomson’s deed, would be liable to attachment for a contempt.</p> <p>Thomson, though a defendant to the proceedings in Chancery, in this action his position is changed, and he becomes the actor. 1 Story Eq. 27 and 28; also, commented on the case, Harrison vs. Hollis, relied on by the opposite counsel.</p> <p>Thomas v. Ashby vs. Jeter. 1 Hill Rep. 380; 10 John. 223.</p> <p>Obliterate the title of Abraham and Jos. Mc.Junkin, and still the title of Thomson is good, and these plaintiffs cannot recover.</p> <p>The declarations of Abraham, since the sale, cannot effect the title of Thomson, and could not divest him of his rights.</p> <p>There was no evidence on the trial of the cause on the circuit, to attack the validity of Thomson’s deed.</p> <p>If the titles of Joseph A. and Abraham are void, it does not vest the title in John T. McJunkin again, while Thomson’s deed is good.</p> <p>If the sale of the Sheriff, under the Ordinary’s execution, to Thomson, is not good, the execution of Dugan was in his hands, and that is conceded to have been a good execution, and the recital of a void execution is no ground to effect a sale, when the Sheriff had a valid execution in his office. Cited 3 M‘C. 251; id. 291, as to damages.</p>

<p>One being the agent of another, drawing a promissory note, and signing it with his own name, thus, “ Daniel McLean for John McLean, ” it was held, that it was the note of “ Daniel McLean,” the agent, and not the note of the principal.</p> <p>See 2 McM. 402, Varnum vs. Evans; Robertson vs. Pipe, in Errors, 1 Rich. 501, overruling this case, and also Fash vs. Ross, and Moore vs. Cooper, 1 Sp. 57. An.</p>

<p>The possession contemplated by the Statute of Limitations must not only be notorious and definite at one period, but .it must, in some form, be continuous, during the statutory time : that is, it should be definitely used, for some purpose, for ten years.</p> <p>Although “possessio pedis” does not require actual occupancy, it implies enclosure, and use of the grounds enclosed.</p> <p>The enclosing and sowing down a small turnip patch on a tract of land, and occupying it but for one year, and occasionally cutting and hauling from it firewood and other timber, will not be sufficient to defeat another, or give a title to land, under the Statute of Limitations.</p> <p>See Infra, 447; 6 Rich. 62; 9 Rich, 27. An.</p>

<p>In an action on the case, where the facts as to probable cause are not disputed, a Judge may take upon himself to say what is, and what is not, probable cause. But where the facts are contested, probable cause becomes a mixed question of law and fact, to be decided by the j ury, under the instructions of the presiding Judge.</p> <p>See Horn vs. Boone, 3 Strob. 309; Campbell vs. O’Brien, 9 Rich. 207. An.</p>

<p>Before O’Neall, J., at Fairfax, July Extra Term, 1840.</p> <p>This was an action on the case, in which the plaintiff declared against the defendant in six counts; 1st, for enticing away his slave, knowing him to be so; 2d, for harboring him while he was a runaway, knowing him to be so runaway, and to be the slave of the plaintiff; 3d, for enticing away the slave with the same scienter, and with some variations from the first count; 4th, for receiving the said slave, knowing him to be a runaway, and to be the slave of plaintiff; 5th, for giving the said slave a certificate that he was free and entitled to the ^proceeds of his labor, knowing him to be a runaway, and the slave of the plaintiff; and laying special damage, the amount of the gaoler’s bill in Columbia, for the detention of the said slave in gaol; 6th, the same as the 5th, except, that further special damage to the amount of the physician’s bill for attendance on the said slave is laid.</p> <p>It appeared that Robert, a slave of the plaintiff, a bricklayer by trade, escaped from him, in 1833, and remained out of his possession until after May, 1838, when he was taken up in Columbia, by Joshua Sowden, who lodged him in gaol, where he remained until claimed by the plaintiff, who paid the gaoler’s bill, $74, and the physician’s bill for attendance on him while in gaol. He had in his possession a certificate, signed by the defendant, as his guardian, in which he was called Thomas Oree, and was stated to be a free man, and entitled to receive, as such, the proceeds of his labor. The defendant, on the 12th June, 1838, wrote to Sowden, stating his knowledge of Thomas Oree to be, that he had passed for some time as a free man; that he had been three years before in his employment ; that he then had in his possession papers showing his freedom, which he did not critically examine. The value of the slave’s services while absent from his master’s service, was shown to be one dollar per day.</p> <p>The defendant clearly and abundantly showed, from most respectable testimony, that the negro man calling himself Thomas Oree, came into Lexington District in ’32 or ’33, as a free man; that he was from that time until he went to Columbia, in May, 1838, treated and considered by all who knew him in Lexington, Newberry and Fairfield, as a free man; that he was during that time, and before the defendant was appointed his guardian, employed by such men as David Montgomery, of Monticello, Maj. Charles Montgomery, of Fairfield, Capt. John Counts, of Lexington, and Col. William Counts, of Newberry, as a bricklayer and a free man. In ’35, while the defendant, with his family, was at the Pacolett Springs, his nephew, Parr, employed the man (Thomas IToree, as he was then called, afterwards ascertained to be Robert, the slave of the plaintiff,) for one month, to work on the defendant’s mill dam, and for which ho paid the negro. This was the only work he ever did for the defendant. On the 5th of June, 1837, the defendant was appointed, by the *clerk of Fairfield, (in which the negro then resided,) his guardian, and he thereupon gave the certificate of freedom before spoken of.</p> <p>The jury were instructed that the plaintiff must recover on the case made by his pleading, or fail. That as to the three first counts, there was no proof to sustain them, and that the cause turned upon the three remaining ones. As to which they were told, that in them, the plaintiff, having laid the defendant’s acts to have been done with a scienter of the fact, that the negro was the runaway slave of the plaintiff, lie could not recover without proof thereof, unless the law presumed the scienter. There was no proof that the defendant had any information or knowledge which would lead him to believe the negro was a slave.</p> <p>Generally speaking, the law of master and servant, as existing in England, applied to master and slave in this State. There are here, however, two exceptions, arising from color and property.</p> <p>The first of these makes the distinction, that slavery is presumed to be the condition of the negro, until the contrary appear. I gave it to the jury as my opinion, that reputation, and passing as free, would be priiwi facie evidence of freedom, until the fact of slavery was shown. They were told it would admit of a grave question, whether, if a slave, with the knowledge of his master, acted as a free man, and passed as such, for four years, it would not establish the fact of freedom, as against the master, so as to make the slave liable to seizure, as being emancipated contrary to law. This was illustrated : 1st, by showing that the right of property in a slave might be lost by four years adverse possession ; and 2d, that after twenty years of acknowledged exercise of the rights of a free man, a deed of manumission regularly and properly executed, would be presumed.</p> <p>The next distinction arises out of the status of the negro, as property in this State. In England, to make one liable for the employment of a hired servant, a knowledge of the fact of the servant being previously employed, must be brought home to the defendant. But here, the employment of the slave of another, with or without the knowledge of the fact, would make the person so employing liable for the wages of the slave, to the master. If, therefore, the plaintiff here had ^counted for the mere employment of his slave, without a scienter, or in trover, I should have said to the jury that he was entitled to recover for the month which the slave worked on the defendant’s mill-dam, in 1835. But there was no such count, and the plaintiff could not, therefore, recover on this ground.</p> <p>The jury were directed to inquire, 1st. Can the plaintiff recover on the fourth count, for receiving the plaintiff’s slave ? This, I told them, depended on the fact, whether the defendant received the negro, knowing him to be a slave. For, I said to the jury, that to make the defendant liable, it was not necessary that he should know the negro to be the slave of the plaintiff. It was sufficient if, in law or fact, he had enough to create the knowledge that he was a slave. On this part of the case, I told the jury that the fact that the defendant found the negro in an admitted and acknowledged state of freedom, which he had exercised for years, rebutted the legal presumption of slavery arising from color, so far as the defendant was concerned, and therefore left the scienter unproved; and hence, on this count, the plaintiff could not recover, unless they should think the defendant in fact knew the negro to be a slave.</p> <p>They were then told to inquire whether the defendant was liable for giving the negro the paper certifying that he was a free man, and entitled to the proceeds of his labor.</p> <p>The jury were told, that in many cases of injury to property, the intention with which the act was done, had nothing to do with the question, whether the plaintiff was entitled to recover. Here, however, I thought the plaintiff’s right to recover depended very much on the defendant’s intention. If the paper had been given by any one not a guardian in fact of the negro, I should have thought it such a reckless interference as might have made him liable to the master, in some form of action. But here the act was done by one supposing himself to have the legal right. The Act of ’22,(a) requires every free male negro to have a guardian, to be appointed by the clerk of the district in which he may reside. The clerk appointed the defendant guardian, and his act in that character, in giving the negro the certificate of freedom, and that he was entitled to receive the proceeds of his labor, would not make *him liable, unless he knew the negro to he a slave. (b)If, however, he knew the negro was a slave, then he would be liable for all the damages claimed.</p> <p>The jury found for the defendant, and the plaintiff appeals, on the annexed grounds.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because the plaintiff, having proved that his runaway slave who labored as a mechanic, was worth a dollar per day, was in the employment of defendant upwards of a month, and that the defendant became the guardian of the negro, and gave him a permit, in writing, to contract and trade for himself, and to receive payment for his work, about a year before he was apprehended, the verdict of the jury is contrary both to the evidence in these particulars, and to the law applicable thereto.</p> <p>2. Because his Honor, the presiding Judge, erred in charging the jury :</p> <p>1st. That if the defendant had reason to believe that the negro was free, he was not answerable for becoming the guardian of the negro, and for giving him the ticket.</p> <p>2d. That if one of the jury would have become the guardian of the negro, the plaintiff was not entitled to recover.</p> <p>3d. That the plaintiff could not recover without proving that the defendant know the negro was a slave.</p> <p>4th. That it might be a question whether a slave passing as a free man for four years, might not be entitled to his freedom.</p> <p>5th. That the plaintiff could not recover for the month’s work in this case.</p> <p>3. Because the defendant, having employed plaintiff’s runaway slave, and having given him a ticket to contract and trade for himself, and to receive payment therefor, was liable in law.</p> <p>; on the first ground, contended, that having failed to prove that the defendant knew the slave *to be a runaway, plaintiff could only recover for the month’s labor with the defendant, and in his employ during the year 1835.</p> <p>It is said that if the plaintiff had alleged and proved that the defendant knew the negro to be a runaway, then the plaintiff might recover for the month’s work ; but it is not necessary to prove every immaterial averment. There are some immaterial averments that should be proved, and others that should not.</p> <p>Cited Bristoe vs. Wright, 2 Dougl. 665. Immaterial averments, 6 Term Rep. 496. Pippin vs. Solomon. Upon defendant’s scienter. Williamson vs. Allison, 2 East, 446.</p> <p>If the plaintiff had been able to prove the scienter in the defendant, he might have recovered the amount of the whole time the negro was run away.</p> <p>In what cases must the scienter be alleged and proved ?</p> <p>When the act itself is illegal, the scienter need not be alleged or proved.</p> <p>The intention with which a party commits an act in criminal cases, is always inquired into ; but in civil cases the reverse is the case. The inquiry is, what damage has the plaintiff sustained ?</p> <p>Wherein does the difference exist, between giving the negro a free pass and employing him for one month ?</p> <p>The ground of action is not the benefit that the defendant received, but the injury that the plaintiff received, and the injurious effect produced by this act.</p> <p>contended there was a striking difference between the position of the plaintiff and the defendant.</p> <p>If the defendant be guilty of no fault, no tort, or gross negligence, then the party is free from any damage.</p> <p>The defendant was not proved to have any knowledge of the negro being a slave. Cited Esp. Dig. 599, fourth paragraph ; id. 619, second paragraph.</p> <p>The negro’s having possession of himself for four years, was a strong presumption that he was free, and the defendant could consequently have committed no wrong.</p> <p>Defendant, if liable at all, is liable for the month’s work, in action of debt, by sum. pro. and not in the form of the action ^ brought. But he contended that he was not liable at all, for he was presumed free, and defendant had, under that view, the right to hire him. The negro was free to hire himself and receive compensation for his labor. Defendant paid the negro for his hire, and was free from any blame.</p> <p>A party may become the guardian of a slave, even pending the question of freedom.</p> <p>Cited, on Guardians, 2 Brev. 160.</p> <p>For giving a permit to a slave, no action lies; but if one presumes to give a permit to a slave against the will of the master, the party shall suffer by indictment, and also by civil process.</p>

<p>Before O’Neall, J., Richland, Spring Term, 1841.</p> <p>This was an action of trespass to try titles to a small tract of land in the neighborhood of Columbia, called “ Farmer’s Inn.”</p> <p>The land was the property of one Hinson Barker. The plaintiff gave in evidence the recoveries of Wm. F. Pearson vs. Hinson Barker, in two cases, and ca. sa’s. issued thereon. Under them Barker was arrested, and petitioned for the benefit of the prison bounds’ Act ; with the petition he filed a schedule, containing, inter alia, “ Farmer’s Inn.” Barker assigned, in January, 1835, his schedule to Wm. F. Pearson. Soon afterwards, Pearsou assigned, by writing, not under seal, and without witnesses, the judgments, ca. sa’s , and assignment, to the plaintiff, Jones. He, (Jones,) constituted Philip Edward Pearson, Esq., his attorney to sell Farmer’s Inn. He accordingly gave public notice, and in July, 1836, sold it, at public outcry, and bought it for the plaintiff, and conveyed it by deed to the plaintiff. An acknowledgment of tenancy to the plaintiff, signed by Barker and wife, was given in evidence.</p> <p>It appeared that Jones, (the plaintiff,) was the brother of Mrs Barker, and that to him had been conveyed the only negro *which Barker and wife had in possession, and her entire interest in her father’s estate. The defendant purchased Farmer’s Inn at sheriff’s sale, in October, 1837. It was sold under execution, as the property of Hinson Barker, in the case of John Black vs. McPherson and Barker. The judgment, execution, levy and sheriff’s deed, were given in evidence. It appeared that Barker was in possession, when the land was sold by the sheriff; and that his possession had remained unchanged, notwithstanding the assignment to Pearson, and the supposed acquisition of title by Jones. Barker was wholly insolvent.</p> <p>The jury were instructed that the plaintiff might recover on the acknowledgment of tenancy by Barker to Jones, if Jones’ title was not affected by fraud. They were told that Wm. F. Pearson’s assignment of Barker’s assignment to him, could not convey the land to the plaintiff. Land could only pass, inter vivos, by deed executed in the presence of two witnesses ; that Philip Edward Pearson’s conveyance to the plaintiff, was a mere nullity; it was the conveyance of the agent to his principal, which was rather worse than the conveyance of a man to himself</p> <p>The jury were told, in making up their conclusion whether Jones’ title was fraudulent, they might look to the facts, that he was the brother-in-law of Barker; that to him his entire estate had been conveyed; and that Barker had been suffered to remain in the possession of the land, to the time when seized and sold by the sheriff. From these facts, they were told they might find against Jones’ title, as affected by fraud against creditors. For the defendant, a purchaser at sheriff’s sale, stood in the place of the creditor under whose execution he derived title.</p> <p>The jury found for the defendant, and the plaintiff appeals, on the annexed grounds.</p> <p>GROUNDS OF APPEAL.</p> <p>1.Because his Honor charged the jury that they were at liberty to presume fraud against the plaintiff, from the fact that he permitted Barker, his relatiou, to remain on the premises after he had sold the same to him, as tenant of the premises.</p> <p>2.Because his Honor charged the jury, that the defendant *occupied the same position as a creditor of Barker would have occupied had he been the purchaser.</p> <p>3. Because his Honor charged that the assignment of William F. Pearson, to the plaintiff, of the assignment to him, of said house and lot, was a nullity; and that the assignment of the fi.J'a’s. and ca, na’s. for the satisfaction of which Barker’s assignment was made, to said plaintiff, by said Pearson, made no difference in the case.</p> <p>4. That the verdict was contrary to the law and the evidence.</p> <p>said, Crawford claims under a title that cannot be maintained.</p> <p>By the assignment, the legal estate passed to Wm. F. Pearson. This is not impeached for fraud.</p> <p>The estate being in Pearson, he might sell; had he conveyed, a title would have passed ; but Pearson assigned to Jones.</p> <p>The equitable interest then passed to Jones, who constituted Pearson his agent to sell; he did sell — purchased Farmer’s Inn, and conveyed, by deed, to plaintiff.</p> <p>Farmer’s Inn was sold under an execution against Barker. That sale gave Crawford no title, for Barker had none.</p> <p>Jones may have acquired his claim to the negro and estate of Mrs. Barker, by fraud, but it has no application to this case.</p> <p>The j ury were instructed that they might presume fraud.</p> <p>submitted the case without argument.</p>

<p>Before Earle, J., at Charleston, May Term, 1839.</p> <p>This was an action of debt upon an administration bond, against the defendants, as securities of William T. Raynal, who was the administrator of William Rouse, deceased. Plea, performance.</p> <p>After proof of the bond a judgment was offered in evidence, in favor of Sanders Glover, (for whom this action was brought,) against Raynal, as administrator of Rouse, signed 11 February, 1832, on which an execution had been returned nulla bona. Certain proceedings in equity were then introduced, consisting of a bill, filed by the heirs at law of William Rouse, against Raynal, for a partition of the real and an account of the personal estate; the answer of Raynal, and the subsequent reports and orders. Among these was a decretal order of 22d May, 1830, directing a sale of the real estate, and an account of the personal estate. The commissioner was directed to take an account of the debts of the intestate, which should be rendered within a year, and after making provisions for the payment of them, to report the amount in the hands of the administrator for distribution. On 21st May, 1831, he reported the sale of the real estate, and that the personal assets amounted to the sum of $4230 50, *and the disbursements to $3218 48, leaving a small balance in the hands of the administrator ; that from the sales of the real estate, he had retained, to pay debts, the amount of $3766,67, that sum being regarded by the administrator, and the other distributees, as fully adequate to meet them. On the 7th May, 1832, the commissioner made an additional report, that bond debts had been established against the estate of Rouse, to the amonnt of $5349 54 ; that the amount retained to meet them, with the interest accrued, was $4224 50, leaving a deficiency of funds of $1125 ; that the debts paid by the administrator out of the personal assets, were all simple contracted debts, and that he had due notice of the bond debts. It was in evidence that written notice of Glover’s debts was given to the administrator, on 27th January, 1830, at which time his own return exhibited assets in his hands, to the amount of $3000, which he proceeded to pay over to simple contract debts. These reports were confirmed, and under the several orders made in the cause, the commissioner distributed the fund retained out of the sale of the real estate, among the bond creditors, of whom Glover was one, and when the fund was exhausted, there remained due to him a balance of $818 60, for which, with interest, this action was brought against the securities, Raynal having left the State in 1834.</p> <p>A motion for a nonsuit, on several grounds, was overruled, and the plaintiff had a verdict, which the defendants now moved to set aside, and renewed their motion for a nonsuit, mainly on the grounds taken below, —that the administrator was not cited to account before the Ordinary, and there was no decree against him, either by the court of Ordinary, or the court of Equity, to entitle the plaintiff to recover against the securities. It was likewise urged, that there was no sufficient evidence of a devastavit, as the administrator had applied the personal assets to the payment of debts, although of inferior degree; and the court of Equity having undertaken to make provision for the payment of the bond debts out of the real estate, it was the fault or laches of the plaintiff, that he did not secure his debt; and the securities of the administrator were no further liable.</p>

<p>Before O’Neall J., Barnwell, July Extra Term, 1838.</p> <p>This was an action on the case, against the defendants, for an injury sustained in their service.</p> <p>The plaintiff is a tailor by trade. He resided at Aiken, and applied to Capt. Robertson, the agent of the company, for employment. He declined employing him, on account of his intemperate habits and consequent rashness. He, however, went on to Charleston, and was employed as a second fireman, *on the 18th of May. He selected the engine and engineer to which he was to be attached and under vvliom he was to serve. William E. Perry was the engineer. About the 21th of May, 1831, the plantiff’s second or third trip, as the engine was ascending the road from Charleston, near the Four Hole Swamp, just before entering an excavation, and within about three hundred yards of it, one of the witnesses (Johnson, the first fireman,) said he saw a horse standing near the commencement of the excavation, within ten steps of the road, feeding slowly towards it: he touched the engineer on the back, and asked him if he saw the horse ; he made no reply : the engine ran on : the plaintiff said to the engineer, “ stop we are in danger the engine still proceeded, until within fifty or sixty yards of the horse : this witness said he then put his hand on the “ escape steam valve,” and told the engineer again to stop, for there was danger of running over the horse, and pointed towards him : he, the engineer, theu shut off the steam : by this time the horse stepped upon the road, and there stood : the engine with the steam shut off, ran within six or eight feet of the horse : the engineer gave her all the steam she could carry, to carry her as quick as possible, and with the least danger, over the horse. At this moment, this witness took hold of the awning post, and swung himself outside the engine, for the purpose of jumping off on the left hand side of it: in this position he could see under the engine, which struck and ran over the horse : as it left the road on the right hand side, the witness jumped off on the left. His post was on the left, and the plaintiff’s on the right, of the engine : the break to stop the engine was on the right, and nearer the plaintiff than the witness : when the engineer shut off the steam, the brake was not let down : (he said he was too much agitated by fear to think of the brake :) had it been let down, the engine might have been stopped. As the engine left the road, the plaintiff’s leg dropped between the foot board of the engine and tender, and as these two came violently together, when the engine stopped, his leg was crushed, and his thigh was afterwards amputated midway. This witness gave it as his opinion, very distinctly, that the accident might have been avoided, and resulted from the carelessness of the engineer, in not stopping the engine as soon as cautioned : he thought that as the engine was running only at the rate of ten or twelve miles per *hour, it might have been stopped before they reached the horse. He said it was not the fireman’s duty to let down the brake, unless ordered by the engineer. Meredith, the conducter of the train, said, just as they emerged from an excavation, he saw the horse about fifteen yards from the road, moving from behind some bushes, and running in an oblique direction towards the road, and in the direction the engine was pursuing ; he ran thus about twenty yards, when he leaped upon the road between the rails, just at the entrance of another excavation : as he did so, the engine struck him, and passed over him, and was thrown off the track. The engine was running from sixteen to twenty miles an hour From the time this witness saw the horse, he said that he thought the only way to avoid him was to outrun him. He said, that to stop the engine, it is the duty of the engineer to shut off the steam, and the firemen to let down the “ brake it is, however, the engineer’s duty to order the fireman to let down the brake. Perry was proved to be a skilful professional engineer. The witnesses, Robertson and Ross, concurred in saying, that it was the duty of the engineer to shut off the steam, and the fireman to let down the brake, (and that was the particular duty of the second fireman) whether ordered by the engineer or not to stop the engine and prevent any accident. About three hundred feet is as short a space as within which the engine can be stopped, when running at the average rate of fifteen miles an hour.</p> <p>The jury were instructed, that the plaintiff's service subjected him to all the ordinary risks and perils of the employment. Each officer of the company, as to strangers and inferiors, was to be considered as the company ; and every command or act given or done by him, must be regarded as given or done by the company themselves. If a superior officer had given an order to an inferior, to do an act not necessary to be done, and not within the duty of the inferior, and in doing it, injury resulted to the inferior, then the company would be responsible. If, in running the road, a superior officer (the engineer) did his duty so carelessly as to subject a servant of the company to unnecessary danger, and which the servant could not avoid, then the company would be liable. But if the peril, from which the injury resulted, was unavoidable, or if the engineer did every thing ordinary prudence* suggested, to avoid it — and, notwithstanding, a servant sustained injury, it would be one of the risks to which his contract of service subjected him, and he could not recover. So, too, if the servant, (the second fireman,) did not do his duty, and to its neglect (as not letting down the brake) the injury might be fairly ascribed, then, in that case, his injury would be attributable to himself, and he could have no redress against the company.</p> <p>The facts under these instructions, were submitted to the jury. I thought, and still think, there was very little proof to justify a verdict, but still that little may sustain the verdict, $1500, found by the jury for the plaintiff.</p> <p>The defendants appeal, on the annexed grounds.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because the plaintiff, being a fireman actually employed on the car to which the accident occurred, cannot recover against the company in whose service he was.</p> <p>2. Because the ordinary risks of the occupation of the plaintiff are to be sustained by himself, and the accident was the result of such risks.</p> <p>3. Because the plaintiff himself was partly in charge of the car to which the accident occurred, and might have prevented it himself, by the timely discharge of his own duty.</p> <p>4. Because the plaintiff, being a tailor by trade, imposed himself upon the company as a fireman, and the accident is attributable to his own negligence and want of skill.</p> <p>5. Because it was clearly proved, that there was no want of skill or diligence on the part of the engineer, or other servants of the company.</p> <p>6. Because the accident itself was unavoidable, and the verdict is contrary to the evidence in all these particulars.</p> <p>Col. Branding's Argument.</p> <p>It is of the utmost importance that the principle of the case should be settled correctly; not so much on account of the railroad, as of the public in general. The company can make its contracts with its servants so as to avoid liability, if this verdict should be sustained. But this cannot be so easily done by others who come within the same principle. That principle, as contended for by the plaintiff, I take to be this: *that wherever an individual or company of individuals employ' several persons to effect any operation, the mismanagement of one of those persons, during the operation, by which another of them is injured, will subject the employer to damages at the suit of the injured person. This the defendants deny, and contend that wherever a company (or individual) employs several persons to effect, by a joint effort, any business, each person so employed takes on himself all the risks of the service which do not result from the mismanagement or improper conduct of the company itself, and each servant agrees to take on himself the risk of all injuries to result from the mismanagement or negligence of the other servants of the company engaged in the same undertaking. To illustrate this view of the subject, let me state our views a little more fully. The company are supposed to warrant that the service is not a more dangerous one than it appears to be. Thus they are supposed to warrant that 'Ae road is in ordinary repair; that the engine is a good one, and that "*tlie engineer is competent. And if this is not true, to the knowledge of the company or their chief agent, and the danger is thus greater than the servant had a right to expect, and from that cause he receives an injury, it would seem rational that the company should he liable. But the company cannot be supposed to warrant that each servant of the company shall always be watchful, and that no servant shall he injured by the negligence of another. Now, if this be not the true doctrine, some case can be found where the employer has been made liable at the suit of one servant for the negligence of another, by which he has been injured. These accidents have been numerous. They have for ages been of daily occurrence. The blacksmith, the carpenter, the ship owner, in fact, in every occupation, where a joint effort is required to perform any piece of business, the employer intrusts many to effect it; and every day it happens that some one of them is injured by the negligence of another. Yet no case can be found where it was ever imagined that the employer *was liable for such an injury. And this would seem to put the question to rest. For no reason can be assigned why a railroad company should be subject to a rule which does not apply to every company or individual who engages many about the same business. If no sailor ever recovered against the owners, for an injury occasioned by the negligence of the master, mate, or other sailors ; if one journeyman blacksmith never recovered against his employer for a burn by the carelessness of his co-journeyman; or if no instance can be found where, in all the various avocations of life, the principal has been held liable to any of his agents for an injury by his co-agent, it may be well asked, why a railroad company should be made thus liable.</p> <p>James Murray vs. The Railroad Company.</p> <p>The witness being sworn, says he was present, and in the employment of the defendants, at the time plaintiff had his leg broken. It was about the last of May, 1837. It happened about thirty-four miles this side of Charleston, near Four Hole Swamp. The witness was the first fireman, and his position was on the engine. The engineer, the plaintiff, and the witness, were on the engine together. They ran on very well till they got to the Four Hole Swamp. When they had got within about three hundred yards of being out of the swamp, the witness saw a horse standing by the side of the road, in the edge of the swamp, and near the commencement of the excavation. As soon as he saw the horse, ho asked the engineer if he saw the horse — the engineer made no answer. They ran on, approaching the horse, and the plaintiff said to the engineer, stop, we are in danger. They ran on a piece further, nearer the horse, within fifty or sixty yards of him, when the witness put his hand to the steam valve, and told the engineer to stop again, for there was danger of running over the horse. The engineer then shut off the steam. By this time, the horse stepped upon the road, and there stood— the engine, with the steam shut off, ran within six or eight feet of the horse. Before, however, the engine got that near the horse, the witness took hold of the awning post, and swung outside of the engine, with one hand on the awning post, and one foot on the foot-board of the engine, in a swinging position, for the purpose of jumping on the left hand side of the engine. The witness could see the front wheels, by looking under. As soon as the engine struck the horse, it knocked him down, his fore legs on one rail and his hind legs on the other. As soon as the hind or driving wheels struck the horse, the engine bounded up, and the witness sprang off on the left side, and the engine ran off on the right side. When the witness jumped off, the engineer was on the right hand side of the engine; the plaintiff was standing between the witness and the engineer, a little back, on the foot board of the tender. As the witness struck the ground, he rolled over and over twice, and got up, and went to see what had happened. The engineer asked him if he was hurt, he said no — and asked if any of them (the engineer and plaintiff) were hurt; the engineer said no — the engineer then turned to plaintiff, and asked him to hand a bucket of water to put out the fire — the witness ran round the head of the engine, and as he got round he heard the plaintiff say his leg was broken. Witness thinks if the engineer had tried to stop the engine, when he (the witness) first showed him the horse, he might have avoided the accident. The witness had seen the engine stopped within a shorter distance. The horse was not running. .7 /Ic witness is decidedly of the opinion that the accident was occasioned by the negligence of the engineer — thinks the engine was not going over ten or twelve miles an hour, and therefore thinks the engine could have been stopped. When the engine got within six or eight feet of the horse, the engineer gave her all the steam she could take. Edward Ferry was the engineer. They had taken in water once at Summerville, in the thirty-four miles — - they had not taken in any wood. It was either half-past eight or half-past nine o’clock. Witness thinks wood ought to have been taken in at the nineteen mile post. It was the practice of the engineers to take in water at the twelve mile post, at Summerville, and at Inabinet’s, thirty-two miles from town, if required. The distance, however, could be run very easily from Summerville to Ross’ Turn Out, three miles above where the accident happened. Witness thinks Perry came out from New York as a professional engineer.</p> <p>Cross-examined — The witness says he had been about two months in the service of the company as a fireman, when the accident happened, and in company with Perry about two weeks ; it was the second or third trip the plaintiff had made as fireman in the service of the company ; the witness and the plaintiff were receiving a dollar a day as firemen. From the time the witness saw the horse till the accident happened, the engine passed through no excavation; when the witness first saw the horse, he was standing, feeding on the right hand side of the road, about ten steps from it, and moving slowly towards the road; when witness asked the engineer if he saw the horse, he touched him on the back; the engineer turned round, but said nothing; the witness pointed towards the horse ; when the engineer shut off the steam, the brake was not let down; the engineer gave no orders to let down the brake, which ho generally does ; the brake was on the right hand side of the tender, and nearer to plaintiff than to witness ; had the brake been let down when the engineer shut off the steam, the engine might have been stopped. The witness was too much agitated with fear at the time to think of the brake. If the engineer had told the plaintiff to let down the brake, the witness could have heard it. It was not usual with the witness to let down the brake unless ordered by the engineer. When witness first saw plaintiff after the accident, he was standing holding to something ; did not say he was hurt, till he attempted to get the water. His leg was broken between the foot-board of the tender and the foot-board of the engine, by the former running under the latter; is not certain whether they took in water at the station twelve miles from Charleston or not, but does not think they did ; is not certain whether they had wood Sufficient to carry them to Ross’s or not, but is certain they had water enough; the wood was picked, and was nothing but chips and trash. The engine made steam very easily. Thinks the engineer’s intention in giving steam to the engine within six or eight feet of the horse, was to go over the horse quick, in order that the forewlieels might strike the track on the other side. After they saw the horse, witness heard the plaintiff tell the engineer to stop, for they were in danger. The engineer said nothing from the time the witness saw the horse till the accident happened.</p> <p>In reply — There were men on the road while the witness was there, who commenced as firemen, acting as engineers, viz. : Alfred Weed, Thomas Kingdom, and William Gillespie. About a week before the accident, Perry ran over a cow, which in the opinion of the witness might have been avoided. The business of a fireman is only dangerous when the engineer is not careful, or when unavoidable accidents happen. Coming out of the Four Hole Swamp there had been an excavation, but the dirt had been carried off. lie would not consider it his duty to put down the brake, unless told to do so by the engineer. It was the first time he spoke to the engineer about the horse, he put his hand on his back.</p> <p>Sworn to before us :</p> <p>A. PATTERSON,</p> <p>A. P. ALDRICH.</p> <p>The witness being sworn, says : — That he was the conductor of the train of cars, on or about the 27th May, 1837, when an accident occurred on the railroad, near the Four Hole Swamp. The locomotive and tender were thrown off the road. The accident happened in this way : — after passing through an excavation, the witness saw a horse about fifteen yards from the road, moving from behind some bushes, running in an oblique direction towards the road, and in the direction the cars were going. The horse ran thus about twenty yards, when lie leaped between the rails of the road, just at the commencement of another excavation, and where the rails were even with the ground, or what is call a surface road. As the horse leaped between the rails, the engine caught him, ran over him, and was thrown off the track, as above mentioned. The witness was, at the time, standing on the foot-board of the hindmost car, when he first saw the horse, and until the engine was thrown oif the road — on the same side the engine was thrown off, and on which the horse approached the road, and saw distinctly what he has stated. There were from seven to nine cars in the train, and where the witness stood, was from one hundred and ten to one hundred and fifty feet from where the engine stood, and the train was moving at the rate of from sixteen to twenty miles an hour — the train w'as on ground a little ascending. To check the engine, it is the duty of the engineer to close the valve, and duty of the fireman to let down the brake — the witness was not in a position to see whether this was done, but thinks the valve was not closed till the horse crossed the road. When the witness first saw the horje, he thought the only chance to avoid coming in contact with him, was to out run him, and was of that opinion till the collision took place. The witness does not know whether the brake was down. Mr. W. E. Perry was the engineer, and Wm. Johnson and the plaintiff were firemen. The witness does not know when the engineer first saw the horse. At the time the accident occurred, the plaintiff was standing, either in the tender, or on the foot-board of the engine ; that was his proper place. The plaintiff was not a passenger, he was in the service of the company as a fireman.</p> <p>Cross-examined. — The witness says, the engineer might have seen the horse sooner than he did. The position of the engineer was a foot, or a little more, higher than that of the witness. The witness thinks, if the engineer had seen the horse one hundred and fifty feet sooner than he did, he might have so retarded the engine, as to have permitted the horse to outrun it. The hollow between the two excavations, is from sixty to one hundred yards wide. The horse might, by leaping both rails, have cj-ossed the road from five to ten yards before entering the excavation. In the deepest part of the hollow, the rails are not more than three feet from the ground ; the distance the engines at that time were instructed to go, was not to exceed fifteen miles an hour, as near as could be made. Thinks it was possible for the engineer to have seen the horse before he got out of the first excavation. The engineer has the control of the firemen. If the engineer wishes to stop the engine, he must tell the fireman to let down the brake. It is easier to stop the engine on an ascent, than on a descent. At the speed the engine was going at that time, and at that place, she could not have been stopped under one hundred yards. She could not have been stopped between the two excavations, but she might have been so retarded, that the horse might have avoided it. The valve was not closed till the horse crossed the rail. Perry was said to be a professional engineer ; he ran very well to the place the accident happened. The witness did say that he would not go on the train when Perry was the engineer; the witness said this, because he thought Perry ran faster than he ought to do, over certain parts of the road ; did not think he had been long enough on the road to be safe. He appeared to be cautious enough ; heard of his having run over a cow. Mr. Perry took in wood twice between Charleston and the place where the accident happened ; the distance is about thirty-four miles. It is not usual to take in wood and water at each station. The witness cannot attach blame to any person for the accident, from the facts coming within his knowledge. If Perry saw the horse time enough to stop, he was to blame ; but whether he did see the horse in time, the witness cannot say. The engine was good — first rate.</p> <p>In Reply. — The witness acted as a conductor twenty-one or twenty-two months. If an engineer is attentive to his duty, he has not much time to look around, or notice objects on either side of the road. It is his duty to notice the road ahead, and the machinery.</p> <p>The witness thinks there was wood enough aboard to carry the train to the next station. As to water he cannot say, as he knows nothing, as the water pipes were broken off.</p> <p>Sworn to before us : A. PATTERSON,</p> <p>A. P. ALDRICH.</p> <p>The principle, as applicable to these cases, where one man or a company is to be made liable for the act of another person, is this : that no one shall be liable for another’s act, except he has commanded it, or “has agreed to be so liable ; or where such liability has been imposed on him by law, from principles of policy, or for the public security.” *Now, it will hardly be supposed that in this case the company can be charged with an express or implied command to break the plaintiff’s leg, or that the company ever agreed to bo liable for the act. If they are liable at all, it must be on principles of policy, or for the public security.</p> <p>Now, let us see how far the public security would be promoted by making the company liable to all its servants for injuries they may sustain by the negligence of their co-servants. The public security requires that every possible motivo should be held out to every person engaged in running a train of cars, to use the utmost care ; that each should see that every other person engaged in the service does so ; that every other person is competent to liis post, and that the road, engine and cars are in safe order. Whatever principle is best calculated to secure to the public all this, is that which tlxe Court should adopt. If this will be best promoted by making each person engaged in running the train risk all inj uries he may receive, without resort to his employer, then lie should be excluded *from such resort. If want of such resort would make him more careful himself, make him urge others acting with him to more care, would induce hirn never to act but with those whom he knows to be competent, prudent, and careful, it is believed that the public would And security in it. Now, it is very' certain that where he is denied all recourse, he will risk less than where he expects a pension for life, or a sum in gross, for any injury ho may receive in the service.</p> <p>This view of the case, it appears to me, is sufficient to establish the rule, that every person who enters into the service of a railroad company takes upon himself the risk of all injuries he may sustain from the ignorance of the servants of the company who are engaged in conducting the train of cars, and that the security of the public requires the adoption of this principle.</p> <p>If, in ordinary joint efforts, when only the interest of the company is concerned, no case can be found where it has been decided that the principal shall be liable to one of his *servants for the negligence of another, how much stronger is the reason for adopting the same rule in this case, where the safety and life of passengers are promoted and secured by it, and where a different rule would greatly diminish that security.</p> <p>Let us compare the case of the injury sustained by a servant of the company, from the negligence of its agents in concert with him, with the case of injuries received from similar negligence by strangers, passengers, or freighters.</p> <p>The liability of the company for the loss or damage to goods it takes to carry, is founded on principles of public policy. As common carriers, the company is liable for all losses, except from the act of God, or the enemies of the country, even when there is no negligence, and the principle in that case has no analogy to the one before us.</p> <p>In case of injury to passengers, the rule is different, and the company is liable for all injuries to them which arise from any negligent act of the agents of it. The difference in that *case from ours is most striking. The passenger pays the company for carrying him. The agent or servant is paid by the company. The passenger has nothing to do in running the train, and if he should interfere, he would not only lose his claim on the company, but might be made liable to it in case an injury should happen. The agent or servant is bound to act, and act faithfully, and to see that others engaged with him do so ; or at least is bound to inform his employers, if he sees negligence in others. The passenger can know nothing of the condition of the road, or works, or machinery, and lias to trust for his security to liis right to recover damages if he is injured. He has no information as to the competency, skill, or prudence of those who drive the train. But, on all these matters, the agents or servants of the company may be informed before they enter the service. With such a difference of information, and condition, it would be extraordinary if the same principle should apply to both. If the company, then, are liable to the passengers only for the misconduct or negligence* of its agents, what is the extent of its liability to its servants for injuries sustained in conducting the train? Not for such as result from negligence or misconduct of those with whom they act, but simply, as I have before stated, for such injuries as they sustain from being placed in a more dangerous service than that on which they agreed to enter. If the servant has been deceived by the company as to the nature of the service, and is injured, the company would be liable. As to the competency or care of those with whom he acts, ho has the same means of information that the company possesses, and oftentimes much greater; and when the persons who are to conduct the train enter on the service, policy requires that they should be sureties for each other ; so far, at least, as to exempt the company from any responsibility for injuries which one may receive from the carelessness of another. The rule as to sailors goes further than this. The owners of the ship are not liable to the sailors for injuries they may receive in the service, howsoever they may happen ; but if the ship is lost, they forfeit their wages, nor can they recover them but on full proof that the loss was occasioned by the negligence of the master. To save this forfeiture, they may prove negligence in the agent of the owners, but there has never been a case in which it has been permitted to show such negligence to charge the owners with any injury the sailors may have received from it.</p> <p>But it may be said that the rule which applies where a stranger is injured by the agent by a negligent performance of his service, should be adopted. Here, the rule is, that a wilful act by the servant, by which a stranger is injured, will not charge the master or employer. The act must be done strictly in performance of the service of the principal, or he is not liable, for he cannot be presumed to have ordered any other. And the rule is carried very far, where the principal is presumed to have ordered his negligent acts. But the rule is not, perhaps, founded on such presumption, but on the principle that the public security requires that the employer, having engaged the agent, and placed him in a situation where his negligence may cause injury to others, shall respond to the person injured, and not leave him for redress to one who is wholly irresponsible. It can be sustained on no other principle. Now, how far does this rule apply to our case ? The co-servant* who may be injured is employed to act with the person from whose negligence the injury has arisen. He chooses his situation, and with whom he is to act. They are all employed in a common cause, and must share the common risk. They must look to each other for protection and safety, and be thence induced to stimulate each other to care and diligence, and prevent, by the efforts of ono, the consequences of the negligence of another. On this the public security depends, and it would be greatly endangered were a different principle adopted.</p> <p>Lot us consider the case in one other respect. When an injury of this kind has happened, there will always be a conflict of testimony as to the nature of the act that occasioned it. Was it the result of a mere mistake of judgment, of sheer neglect, or of wilful mismanagement; or, by whom was it caused, and the share of participation each had in it? The agents of the company are the witnesses, and in such a conflict there is great danger that every accident, even when occasioned by the party injured, will bo visited on the company. In this case, the evidence is as strong that the negligence of the plaintiff, in not putting down the brake, was the cause of the accident, as that it was owing to the negligence of the conductor of the train. On principles of policy, this investigation should never be allowed, where an injury has been sustained by one who is bound in common with others to prevent the accident by which it was occasioned. And this can be done only by this Court declaring that every person who engages to unite in conducting a train of cars, takes upon himself the risk of all injuries which may result from the negligence or misconduct of those with whom he is united in that service.</p> <p>If ti^is view of the case be correct, the inquiry is ended, and the Court may grant a new trial or a nonsuit, for the right of the plaintiff to recover is defeated on liis own showing.</p> <p>But if I have mistaken the principle, and among the risks against which the company warrant, is, that no person engaged in conducting a train shall be injured by the negligence of another in the same service ; yet, the testimony will not support the verdict. The whole occurrence took place in less than ten seconds. What was the most proper course to be pursued in such an emergency, was one of doubt and uncertainty, on which an immediate decision was to be made. The conductor *of the train decided, and the injury happened. Now, if the Court, on reviewing the testimony, cannot discover that there was sufficient evidence to warrant the jury in saying that the conductor decided wrong, not merely as a mistake of judgment, but from a negligent disregard to his duly, a new trial must be granted. For without such evidence, on no principle can the company be made liable.</p>

<p>Before O’Neall, J., at Chambers, Charleston, February, 1840.</p> <p>This was an application for a writ of prohibition, to restrain the defendant, the tax collector of Saint Philip’s and Saint Michael’s from collecting a tax imposed upon the relator, under the provision of the first clause of the Act to raise supplies for the year 1839,(a) which directs “ that a tax shall be raised and paid into the Treasury of this State, of one-eighth of one per cent, upon all purchases and sales of bullion, specie, bank-notes, bills of exchange, and stocks, which may be made by any brokers or agents, in this State, for or on account of any bank, company or individual without the State ; and also, upon all such purchases and sales as may be made by any such broker or agent, upon his own account, or for account of others engaged in the same pursuits.”</p> <p>The same clause, in a previous part, imposes a tax of “ sixty cents per hundred dollars, on factorage employments, faculties and professions.”</p> <p>The relator alleges, that he is not a broker or agent within the meaning of the law ; but in making the purchases contemplated in it, he acts as a principal, and on his own account.</p> <p>It might be enough to dispose of the case, on this allegation in part, and direct the plaintiff to declare in prohibition, so that the truth of it might be ascertaind by jury. The definition of the word Brokers, given in the Commercial Dictionary, is “ persons appointed to transact business between ^merchant and merchant, or merchant and tradesmen, in matters of money or merchandise, for which they received a stipulated commission,” it may be that this definition would not embrace the relator. Still I have no doubt in construing the statute, that we may look to a popular meaning of a word not embraced in any strict definition. If the relator' is a broker or agent, acting for a bank, company, or individual without the States, in making such purchases, although he may use his own funds, and although he might consider them on his own account, still, he may be within the sense and meaning in which the legislature used the words. I will not, however, pursue this matter, for I shall not avoid giving my judgment on the graver questions made.</p> <p>I have no doubt, the tax was intended to be imposed on such brokers or agents as usually make purchases of bullion, specie, bank notes, bills of exchange, and stocks, for any bank, company, or individual without the State, whether the purchases were made for or on account of the bank company or individual without the State, or for or on account of such brokers or agents themselves. Unquestionably, the object of it was, to subject to tax transactions of this kind, which could not be embraced in the tax on factorage emplojnnents, faculties and professions ; and so far, if the law could be enforced against them alono, I should think the tax legitimate and proper. For it is not to be allowed to corporations or individuals of other States, to have, free from taxation, all the benefits of a business, in which, if our own citizens engage, they pay a tax on their income. But, so far as it would operate on the income of the brokers, derived from this business, then the effect of the Act would be, to subject it to two taxes at the same time, the tax of sixty cents on factorages, &c., and the tax of one-eighth of one per cent, on all purchases and sales of bullion, &c. This could not have been intended ; for the Legislature of South Carolina never have done, and never will do an act of wilful injustice. If this, however, is the clear effect of the law, it might constitute a reason for holding it to be unconstitutional, on the ground, that the same thing cannot be twice taxed, without violating the guaranty of property, which our constitution secures to each and every one.</p> <p>This posbi011 ⅛, however, not necessary to be assumed as *a distinct ground of decision ; it may be resorted to in aid of the conclusion to which I shall come in another part of this case.</p> <p>The first inquiry is, can the defendant be subjected to an assessment of one-eighth of one percent, on all purchases and sales of bullion, &c., made before the 1st of last October ? According to the tax Act of 1788, the fiscal year is considered as beginning on the 1st day of October of the year preceding the enactment of the tax Act. Income and property, (with the exception of stock in trade,) are returned as of that time ; and the usual taxation of the State is raised and paid accordingly. If, however, the Legislature choose to raise a new tax, and use words which show they could not have intended it to be raised as of a past time, then it would be violating every rule of construction to give it that effect. The words here used, plainly point to a future act to be done, on which the tax, (as the Legislature call it,) is to arise. — “ One-eighth of one per cent, on all purchases and sales of bullion, specie, bank notes, bills of exchange, and stocks, which may be made by any brokers or agents,” &c. If the relator had, on the passage of the Act, closed his office, and ceased to do business, it is clear that he would not be liable to the payment of any thing under this provision, That being the case, his subsequent pursuit of the same business cannot make him liable on his past transactions. Then, it is only necessary to refer to the case of the State vs. Allen, (2 McC., 55,) as a conclusive authority on this point. The Act of 1820 imposes a tax of §10,000 upon any person “ who shall, after the passing of this Act, open or keep open, any office for the sale of any lottery tickets,” &c. It was held by the whole court, that the language of the Act being prospective, the tax, as it was called, could not be referred to the commencement of the fiscal year. The words in the Act of 1839 are as plainly prospective as those used in the Act of 1820, and no room is left for a distinction ; and hence, both from their own legitimate construction, and from the authority of the State vs. Allen, I conclude that the assessment on the relator, as of the 1st of last October, is not authorized by the Act.</p> <p>The next, and most serious inquiry, is, Is the provision which we are considering, a tax or a penalty ? If it is the latter, then * it is unconstitutional, and cannot be enforced. I have endeavored, in every way which I could, to avoid the conclusion to which I have come. The duty of passing between the Legislature and the people, is not to be courted by even a full bench of Judges, much less should it be willingly assumed by a single Judge. But there is nothing more sacredly due to the people, by a Judge, than the duty of protecting each and every one of them, against plainly unconstitutional enactments.</p> <p>Generally, I would say, that taxation is of three kinds — property, income, and capitation. A liability to pay into the treasury a sum of money, which is to arise on an act to be done, is hardly to be considered, in any point of view, a tax. It is, then, in restraint of action, and is a penalty. The only apparent exception which strikes my mind, is that of duties and imposts. They are, however, levied on the property; and although the liability to pay them arises from an act done in bringing the goods into a port of the United States, still they are essentially a tax on property. This, if it could bo considered as in reality a tax on income, although it might arise from an act to be done, I should bo disposed to hold, that it was a rightful exercise of the taxing power. But it is plain that it is not a tax on income, for the income of the relator had already been taxed. It is, then, in restraint of his action in purchasing or selling bullion, specie, bank notes, bills of exchange, and stocks, both for any bank, company, or individual out of the State, or on his own account. This makes it a plain case of penalty. It is saying, if you do such an act, you must pay to the public such a sum of money. Here the constitution guarantees a trial, both by the defendant’s peers, and also according to the course of the common law, which I understand to be the meaning of “ the law of the land.” For, before the defendant is liable to pay it, an act done must be ascertained. He cannot be made to accuse himself, or forced to testify against himself, according to the course of the common law ; and yet, according to the tax Act, he must make his return, on oath. This would be in violation of his right of trial as a freeman, and cannot, therefore, be enforced. The ascertainment of the fact on which his liability to pay, arises, can only be per testes on a trial by a jury. The power of the tax collector to assess a tax on an act to be done, and issue his execution, is in violation of the protection guaranteed ky the constitution.* It cannot derive any support from the sum required to be paid for a license to keep a tavern, or retail. The party there pays, voluntarily, a sum of money, to do an act which would otherwise be unlawful. That is consentive, and not compulsory, and cannot be, therefore, objected to. If the Legislature had thought proper to require that brokers should, before engaging in the business described by this Act, take out a license, and for it should pay a sum of money, they might have done so. That this provision is a penalty, is, I think, fully made out by the reasoning which I have very imperfectly sketched.</p> <p>The case of the State vs. Allen, (2 McC. 55,) is an analogous case, and its authority makes it imperative on me to declare this provision of the Act of ’39, unconstitutional, as the Court then did that of 1820.</p> <p>It is ordered that the writ of prohibition prayed for be granted.</p> <p>From this order the respondent appeals, and moves that the same may be reversed, or rescinded, for the following reasons :</p> <p>1. 'that the Act of 1839 must be construed in connection with the Acts regulating the fiscal year ; and that by the proper construction of the Act of 1839, the tax on brokers is not prospective, but applies to the relator, and renders him liable to the payment of the sum assessed against him by the respondent.</p> <p>2. That the subjects of taxation by the Legislature, are not limited by the constitution ; and that a pecuniary imposition is a tax, or a penalty, as the Legislature may make or declare it to be the one or the other, by legislation.</p> <p>3. That there is no ground for a discrimination between a tax and a penalty, with reference to the subject matter of the imposition ; and there is, therefore, no ground to declare the tax on brokers a penalty, which will not apply equally to every tax which has been, or can be, imposed by the Legislature.</p> <p>4. That to declare a tax unconstitutional, on the ground that it is a penalty, is an invasion of the powers exclusively vested in the Legislature, by the constitution ; and involves a principle which concentrates in the Judiciary all the powers *of government, which it was the object of the constitution to lodge in separate departments.</p> <p>5. That the order directing the writ of prohibition to issue in this case, is, in other respects, illegal, and an infringement of the provisions of the constitution.</p> <p>contended, first, that the Act was not prospective. That there was nothing to distinguish this Act from any other Act passed in 1839. The various Tax Acts have no specific time when the returns or assessments shall be made. Act 1788, (Public Laws, 439.)</p> <p>2d. That it is not unconstitutional, because there is no restraint upon the taxing power. He cited Jac. L. D., as to the definition of taxes. Berney vs. Tax Collector, 2 Bail., 654; 4 McC., 206; Com. Dig., letter A., Tit. Prohib. Prohibition will not lie against a ministerial officer. Bac. Abr. Tit. Pro., letter J.; 1 Cranch, 137.</p> <p>I contend that the general power which it is admitted the Legislature possess, in selecting the subjects of taxation, must be controlled by the great fundamental principles upon which free government is based.</p> <p>Taxation includes the power to collect, in a summary mode, the amount levied, from the necessity of the case. This arbitrary, but indispensable power, must be used only to the extent indispensable for the public weal; not abused, by applying it to the purposes of penal enactments, and under the guise of taxation, to impose penalties which are to be collected by an inquisition and execution by a collector, without recourse to the ordinary tribunals of the country. The constitution protects the citizen from all judgments against his person or property, otherwise than by a judicial trial by jury, as heretofore used. Now, the true difficulty is to ascertain whether, in truth, the imposition is a tax or not. But the nature of taxation must be ascertained by the general understanding of free government, and especially that from which we derive most of our principles of jurisprudence, modified by our free institutions.</p> <p>A tax, as generally understood, is a contribution by the people, in proportion to their estates, for the public expense. And as in this State taxation and representation should concur, all who vote, should, as near as may be, pay equally; and certainly it is unprincipled to tax what a man does, and not his property. Even a tax on the income of a peculiar profession, has at least this palliation, that it is proportioned to the property acquired by that calling. But a tax, as in this case, upon the operation itself, without regard to the fact, whether much or little or nothing is acquired by it, is a tax upon what a man does, and not upon his property. Neither is it like a capitation tax, where every individual pays an equal amount. ^Neither is it like a stamp act. The law denies its aid to recover on contracts not engrossed on stamped paper, leaving it to the option of the party to buy this privilege.</p> <p>Nor is it a license, which is voluntarily sought for; and the tax collector cannot collect a penalty for retailing without a license. It is a case for the Courts. Any attempt to impose is illegal, and the very amount of the alleged tax is one means of ascertaining the nature of the imposition.</p> <p>Taxes, to be legitimate, must be moderate; and excessive.imposts, with a view to protection of one class, by exactions from others, are contrary to common right. The Legislature may prohibit, and impose penalties for the purposes of general morality ; but taxation is not the mode of enacting or enforcing penal laws.</p> <p>Now, the law in question lays a tax “upon all purchases and sales of bullion, &c.,” without regard to the income or profit arising from the purchase or sales. It is a penalty on such transactions, under the guise of a tax — it is an imposition upon a particular class of industrious dealers, not for revenue merely, but the amount is so enormous that it is calculated not to raise money, but to break up the business. The usual profits upon stock transactions and money transfers, is little, if anything, more than this tax. Fifty or eighty per cent, on the profits of a transaction is too clearly a penalty, or at least a tax, calculated and intended to be prohibitory. Is prohibitory taxation constitutional?</p> <p>Equality of rights lays at the foundation of our institutions, and the perversion of the taxing power, to foster or prohibit any honest labor, is against common right, and unconstitutional.</p> <p>Although no limitation is fixed expressly, yet the Article 1, section 15, Constitution of South Carolina, speaks of “Bills for raising Revenue,” as tax bills. But it is said, the amount is not fixed; but sec. 4, art. 0, states, that “excessive fines shall not be imposed.” This clearly shows that the people shall not be interfered with by excessive fines ; and a fortiori, taxes which are excessive are against the nature of our institutions.</p> <p>The case of Burnie vs. Tax Collector, shows, that under the pretence of taxation, you cannot enact penal laws. This Act is, therefore, unconstitutional.</p> <p>The proceedings of the tax collector are also illegal. The tax, like all others, relates to the 1st day of October. And as the transactions of the previous year were legal, and without any imposition at tho time they transpired, to collect so large a sum as one-eighth of one per cent., when one-fourth is the highest amount of commissions, equal therefore to fifty per cent., is equally unjust and illegal. It is a penalty imposed after the act done. Calling it a tax does not alter its nature. If, on the contrary, the tax is prospective, then it is not due until the year expires, and the attempt to collect it, at the time the collector made it, was premature, and the prohibition *must go. The very fact that it is a tax on actions and not on property, renders it difficult to say when and during wliat periods these actions are to transpire. Taxes arc annual — that is, property is taxed once a year. But this Act does not limit the time to the past year or the present, and there is no time within which the return must be made; and the tax collector might, every day, issue his execution as a sale was made. Is not this evidence that it is a penalty ? The power of this court to interpose, results from the fact, that there are two kinds of law which this court is called on to administer — the Constitution, and the Acts of the Legislature. An Act of the Legislature contrary to the Constitution is not obligatory ; and, therefore, whoever attempts to enforce it against the citizen, impairs his rights, and the court must protect him. The Legislature having passed a law is functus officio. They cannot, after adjournment, stay the execution of a law. It is only the judiciary who can act — without it, an unconstitutional law may be enforced. All tribunals must be subordinate to the highest. The tax collector acts judicially when ho fixes the amount; assesses, that is, adjudges, that the citizen is bound to pay the State a sum of money. If his judgment is wrong, the citizen has the right to the interference of this court. Whether prohibition be the mode, is immaterial; and in this State, the strict meaning of that writ in England, has been enlarged for the beneficial purposes of protecting the constitutional rights of the people. Thus, the Commissioners of the Tobacco Inspection, the Court of Wardens, and several other tribunals or boards, have been treated as courts, and prohibitions issued when they denied justice or exacted what was unlawful. Every board or commissioner exercising any jurisdiction over the persons or property of the citizen, is a judicial tribunal; and the writ of prohibition is the proper writ to restrain their proceeding.</p> <p>This Act is absurd, as it speaks of a broker or agent selling on his own account, when his being an agent implies that he acts for another. But it is clear, that the object of the Act was, to prevent competition between brokers and the banks, Who have abandoned their legitimate office of discounting paper coming to maturity where their capitals were located, and thus enable the banks to manage exchanges so as to suit their own purposes. It is a perversion of taxation to create monopolies and interfere with the common rights of the whole community, to pursue their avocations under the protection of equal laws.</p> <p>All Acts from 1790, down to the passage of this Act, are retrospective, if this Act of 1839 is decided to be so. A tax is in the nature of a contribution. A tax collector is not a judicial, but a ministerial, officer.</p>

<p>Before Earle, J., at Barnwell, Spring Term, 1839.</p> <p>John Bowie had been the agent of the Bank, at Aitkin, and had entered into bond, with several securities, for the faithful performance of his agency. Separate actions were brought against them, and a verdict was rendered for the plaintiff in these words : “We find for the plaintiff the sum of eleven thousand seven hundred and twenty-one dollars and eleven cents, with interest from the 10th February, 1836.”</p> <p>On the return of a rule to show cause, it was moved by Mr. Bellinger, for the defendant, to set aside the judgment, which was signed for the entire sum of principal and interest, according to the verdict, as irregular and void, for the excess over $11,721 11, unless the same should be remitted by the plaintiff. The motion was refused; and a motion was made in the Court of Appeals to reverse that decision.</p> <p>* Appeal determined at Charleston, February, 1840.</p>

<p>Before Earle, J., at Charleston, May Term, 1839.</p> <p>On the loth day of April, 1837, the Bank of the State of South Carolina sued out an attachment against J. L. & S. Joseph & Co. The Bank *of Charleston also sued out an attachment against them ; both made returnable to May Term, 1837, and copies thereof were duly served on Jacob C. Levy, as garnishee who, on the first of January, 1838, made the following return, on oath :</p> <p>“ Personally appeared the said Jacob C. Levy, of Charleston, merchant, on whom copies of the writs of attachment in these cases respectively have "been served, who, being duly sworn, maketh oath and saitli, that he has not now, nor liad at the time of service on him of the said copies of the said writs, or either of them, nor has he at any time since had in his hands, custody, possession, or power, any moneys, goods, chattels, debts, hooks of account, lands, leasehold estates, and chattels real, belonging to the above named J. L. & S. Joseph & Co., or either of them, or in which they have, or either of them has, any right, claim or property whatsoever; save and except that at the time of the service on him, the said Jacob C. Levy, of the copies of the said writs of attachment against the said J. L. & S. Joseph & Co., he, the said Jacob C. Levy, held in his hands sundry accepted hills of exchange, promissory notes, securities, and other property specified and set forth in a schedule hereunto annexed, subject to his claims as creditor, in possession, and as collateral security for, and on account of, purchases made, moneys advanced, and responsibilities incurred, by him, the said Jacob C. Levy, for the said J. L. & S. Joseph & Co., and on account between the said J. L. & S. Joseph & Co., and him the said Jacob C. Levy. That they, the said J. L. & S. Joseph & Co., are justly due and owing to him, the said Jacob C. Levy, in the full and just sum of two hundred and five thousand two hundred and nineteen dollars, ninety-three cents, for purchases made, moneys advanced, and responsibilities incurred, by him, the said Jacob C. Levy, for them, and on an account between them and him, the said Jacob C. Levy. That since the service on him, the said Jacob C. Levy, of the said copies of the said writs of attachment, some of the said hills of exchange and promissory notes so held by him, the said Jacob C. Levy, have been paid, to the amount of seven thousand six hundred and thirty-four dollars, forty-seven cents ; and that since the service on him, the said Jacob C. Levy, of the said copies of the said writs of attachment, he, the said Jacob C. Levy, has absolutely assigned, transferred, and delivered all the moneys collected by him as aforesaid, amounting to seven thousand six hundred and thirty-four dollars forty-seven cents, and the remainder of the said bills of exchange, promissory notes, securities, and other property, in the said schedule hereunto annexed mentioned, to Robert B. Gilchrist, under a deed of assignment to him, of the twenty-ninth day of September last, in trust for the creditors of him, the said Jacob C. Levy, according to the trusts declared in the said assignment, duly proved and recorded .in the office of the Secretary of State, in Charleston aforesaid, in *the books of miscellaneous records, 5 U. S. page 47, forty-seven, to 55, fifty-ñve, and hereby specially referred to as part of this return.”</p> <p>To this return of the garnishee, the plaintiffs in attachment filed their suggestions, expressing their dissatisfaction with, and denying the truth of, the return as made by the garnishee, of the indebtedness of the said Josephs & Co. to him, the said Jacob C. Levy; in the sum of money expressed in said return ; and also denying the right in law, as claimed by him, the said Jacob C. Levy, to retain the said moneys and securities, for payment of money as creditor of the said J. L. & S. Joseph & Co., in possession ; and the indebtedness of the said J. L. & S. Joseph & Co., to the said Jacob C. Levy, in any sum exceeding or equal to the value of the moneys, and securities for the payment of money, so levied on and attached.</p> <p>Pending these suggestions, the garnishee, Jacob C. Levy, filed his declaration as creditor in possession, pursuant to the attachment Act, and annexing an account current between himself and the said J. L. & S. Joseph & Co., in which the said J. L. & S. Joseph & Co. were debited with sterling and other foreign bills of exchange, purchased by the garnishee, Jacob C Levy, on their account, and transmitted to them, with the commissions and other charges, to the amount of four hundred and thirty-two thousand, four hundred and twenty-one dollars, twenty-five cents; and credited with bills drawn by the garnishee on, and paid by, the said J. L. & S. Joseph & Co., at maturity, and the proceeds of paper and other funds remitted by them to Jacob C. Levy, the garnishee, amounting to two hundred and twenty-seven thousand two hundred and one dollars, thirty-two cents.</p> <p>On the 11th June, 1839, a verdict had been rendered in that proceeding in favor of the said Jacob C. Levy, to the amount of two hundred and five thousand, two hundred and nineteen dollars, ninety-three cents, with interest from the 25th of April, 1837, being a balance due on the aforesaid account, on which verdict judgment has since, to wit: on the 15th June, 1839, been entered up for two hundred and thirty-seven thousand and thirteen dollars, seventy-eight cents.</p> <p>On the trial of the suggestions, the garnishee introduced this recovery in evidence ; also, sundry letters from the said J. L. & S. Joseph & Co. to the said Jacob C Levy. In one of these letters, dated 20th April, 1837, the Josephs & Co. express the most anxious concern on account of the situation in which the garnishee, Jacob C. Levy, had been placed, by his agency in their affairs, portraying their own sinking condition, and the small hope which remained of meeting with relief. In reference to the garnishee, Jacob C. Levy, they say : “We are happy that you have the means in your power to protect yourself, as far as the paper goes which is in your hands for collection; the proceeds of that paper, you will apply to the liquidation of the claims against you and ourselves, arising from your drafts.” The debit side of the account of the garnishee, Levy, was not disputed by *the plaintiffs, at the trial of the suggestions, but it was contended by them that the Josephs & Co. were entitled to be credited in that account with the bills of exchange drawn by Levy on them, accepted by them, and dishonored at maturity, and protested bills and notes discounted in Charleston, with the endorsement of Levy, and unpaid at maturity ; and a paper was adduced in evidence by the plaintiffs, submitted by the defendant, at their request, containing a statement of bills drawn by J. C. Levy on J. L. & S. Joseph & Co., protested for non-payment, for which the said J. C. Levy had placed funds in their hands; the said J. L. & S. Joseph & Co. being credited with the amount of the said bills at the time they were drawn, and the same afterwards withdrawn from the account current between the said parties when the said bills were dishonored, amounting to $119,506.64 ; and a statement of protested bills and notes discounted in Charleston, with the endorsement of J. C. Levy, for the nett proceeds of which J. L. & S. Joseph & Co. were credited on account current, at the time of discount, and the same withdrawn from the account current, said bills and notes being unpaid at maturity, amounting to $19,641.02. In that paper was also contained a statement of bills drawn by J. C. Levy on J. L. & S. Joseph & Co., protested for non-acceptance and non-payment, for which the said J. C. Levy had placed funds in their hands; the said J. L. & S. Joseph & Co. being credited with the amounts of said bills, at the time they were drawn, and the same after-wards withdrawn from the account current between the said parties, when the said bills were dishonored, amounting to $5,401.29, and refused acceptance by the said J. L. & S. Joseph <& Co. It was admitted at the trial of the suggestions, that the same were properly withdrawn from the account current between the said parties, and the said J. L. & S. Joseph & Co. properly chargeable with the amounts thereof; and the only question as to the mode of stating the account current between the parties, was, whether the said J. L. & S. Joseph & Co. should be credited with the amounts of bills drawn on them by J. C. Levy, accepted by them, and dishonored at maturity; and the amounts of the protested bills and notes discounted in Charleston, with the endorsement of J. C. Levy, and unpaid at maturity. It was further contended on the part of the plaintiffs, that J. C. Levy, in his transactions with J. L. & S. Joseph & Co., acted only in the capacity of an agent; and to show this, several letters from J. C. Levy to the Bank of the State, were read in evidence. The first letter, of April 1th, 1837, contains this clause: “ I yet hope that having acted virtually as their agent, always depending on the wealth of that house, that in good faith, some discrimination may eventually be made by them to protect the drafts drawn by me, for which full remittance was always made, previously, or on the day they were drawn, up to the last hour, all of which was done for a commission that looked to the labor only, without reference to risk.” In the letter of June, 1831, he says, “for a very small commission, I have *incurred the whole of my liabilities; and have never participated in any gain, or expected profits from the heavy operations that passed through my hands.”</p> <p>The presiding judge was of opinion that the garnishee could not be considered as a creditor in possession, in regard to the bills accepted and protested for non-payment, inasmuch as he had in fact paid nothing on them himself. That until such payment, the Josephs & Co., could not be said to be indebted to the garnishee, in the meaning of the attachment Act. In regard to the unaccepted bills, he thought it might be held otherwise. Under these instructions of the Court, the jury found that the garnishee was a creditor for the amount of the unaccepted bills, but not for the bills protested for non-payment. The finding of the jury is in these words : “We find that the garnishee is a creditor in possession, to the amount of six thousand and sixty-six dollars and seventy-seven cents, and that the residue of the funds specified in his return, were the property of the absent debtors, at the time when the attachments umre levied.”</p> <p>The garnishee moves for a new trial, on the following grounds:</p> <p>1. That his Honor erred in the opinion expressed by him to the jury, that the defendant, in the transactions between himself and J. L. & S. Joseph & Co. acted only as their agent; and that whether he acted in that capacity or not, he was not entitled, under the attachment law, to retain the funds in question as creditor in possession, beyond the amount of his unaccepted bills, drawn by Mm on the said J. L. & S. Joseph & Co.</p> <p>2. That his Honor erred in his charge to the jury, when he stated that the defendant could not recover against J. L. & S„ Joseph & Co. on the account stated by him, because the said J. L. & S. Joseph & Co. had accepted the domestic bills drawn by the defendant, which were dishonored at maturity; and that the defendant could maintain no action against the said J. L. & S. Joseph & Co. on the said stated account, until he paid the said domestic bills accepted as aforesaid.</p> <p>3. That the verdict of the jury was contrary to law and evidence, in this, that as it was proved that the defendant was responsible for a large amount of domestic bills drawn by him on the said J. L. & S. Joseph & Co. accepted by them, and dishonored at maturity, his Honor should have charged the jury, and the jury find accordingly, that the defendant had a lien on the fund attached, to indemnify him for his responsibility.</p> <p>4. That a banker has a general lien on funds in his hands, to secure Mm for his advances or liabilities for the absent debtor, which cannot be defeated by an attachment.</p> <p>5. That a factor or agent has the same lien, to the same extent as a banker.</p> <p>• ’'hat a ben on funds, to secure for responsibilities, cannot be defeated by an attachment.</p> <p>7. That the verdict of the jury was, in other respects, contrary to law and evidence.</p> <p>Appeal determined at Charleston, February, 1840.</p>

<p>The rule of Court, (a) which provides that a plaintiff who does not proceed to trial on the fourth call of his cause, or obtain a continuance, shall be nonsuited, is not only within the power of the Court, but is expedient and proper, and ought to be enforced.</p> <p>In such case, where a nonsuit has been ordered, or the cause has been struck off the docket, the Court will not set aside the nonsuit, or restore the cause, at a subsequent term, on the affidavit of the plaintiff, that he was misled by the Clerk’s order for judgment by default, and supposed that final judgment had been obtained, although his attorney may have died in the mean time.</p> <p>See 1 Bay, 31. An.</p>

<p>Although an actual possession of twenty years will raise the presumption of a grant, yet, where the plaintiff made a survey of many contiguous tracts, with the intermediate and dividing boundaries distinctly represented on the plat, doubted whether a possession of twenty years on one only of the several tracts would raise the presumption of a grant to all the lands included within the survey.</p> <p>In such case a plaintiff cannot rely on a possession of twenty years on one of the tracts, to raise the presumption of a grant to himself of all the lands contained in the survey, when he produces original grants to others for several of the tracts, (being those in dispute,) of a date anterior to the commencement of his possession.</p> <p>The defendants being in possession of these, and the plaintiff having produced the original grants, he must show that he has acquired the title of the grantees by conveyance, by adverse possession, or such possession, with other proof, as would raise the presumption of a conveyance.</p> <p>An entry for the purpose of survey, will not create the bar of the statute ; nor will such entry, together with the possession of the grant, without other proof, raise the presumption of a conveyance from the grantees.</p> <p>The defendants being in actual possession of the tracts so granted, of which the plaintiff never had possession; held, that the plaintiff’ could not recover without proof of title.</p> <p>See Binder vs. Bonbon, 9 Rich. 26; McColman vs. Wilkes, 3 Strob. 480. An.</p>

<p>In trespass to try titles, where the defendant has not acquired his possession by a tortious eviction, or actual disseizin, the plaintiff must make out a perfect title in himself.</p> <p>It is necessary to show that the land has been granted, either by the production of the grant, or by proof of such possession in the plaintiff, or some one from whom he derives title, as will authorize the presumption of a grant.</p> <p>A possession of sixteen years, which terminated in 1791, insufficient for that purpose ; and the plaintiff producing no other title, was nonsuited.</p>

<p>Before Earle, J., at Charleston, May Term, 1839.</p> <p>A foreign attachment, at the suit of the plaintiffs, against the defendant, was levied on a mare at livery, and Matthews, the keeper of the stables, was made a garnishee. An order for sale was made, and rescinded at the instance of one Naylor, who claimed the mare, and he had leave to come in as garnishee, and contest the right of property. An issue was made up, and stood for trial. When called, the attorney of Naylor moved for leave to discontinue, which being granted, he withdrew the record. Afterwards, during the term, a motion was made by the attorney of the plaintiffs in attachment, for leave to sign judgment against Naylor as *defaulting garnishee ; which was resisted, upon the ground that Naylor having denied the right of property in the absent debtor, it was for the plaintiffs to become the actors in the suggestion, and to disprove the return. But the Circuit Court granted the order for judgment against him, which he moved the Court of Appeals to set aside.</p> <p>Appeal determined at Charleston, February, 1840.</p>

<p>An auctioneer’s clerk is not such an agent, within the statute of frauds, whose entry will bind the party; unless the authority of the clerk (to make the entry) lias been specially obtained from the party who is to be bound by his act, or he has afterwards assented to be charged by it.</p> <p>See Cathcart vs. Kernaghan, 5 Strob., 130; Wolfe vs. Sharpe, 10 Rich., 63; Christie vs. Simpson, 1 Rich., 410; 3 McC., 458. An.</p>

<p>Before Richardson, J., Richland, Fall Term, 1838.</p> <p>The defendants were justices of the quorum, and admitted to bail John Whitecotton, committed upon a charge of murder, and who was brought before them upon a habeas corpus.</p> <p>Upon motion of the solicitor, they were ordered to show cause why they should not be indicted for a misdemeanor, in admitting Whitecotton to bail. They showed cause, as follows :</p> <p>“ That the said Whitecotton was brought before them, together with the warrant of commitment, the coroner’s inquest, and the affidavits annexed, by which it appeared that Abner Striplin was the slayer ; that the deceased died of the blows received at his hand, and no fact appeared to establish any concert between Whitecotton and Striplin in relation to the act. The respondents believed that, independent of the habeas corpus Act, they had a right to bail. Two justices had such power by the common law, and neither the statute of Westminster 1st, nor the statute of 2d Phil. & Mary, has, in terms, taken it away. If these statutes have been so construed, it has not come to their knowledge.</p> <p>Ed. J. Arthur,</p> <p>James S. Guignard.”</p> <p>*The Court ordered an indictment to be given out, from which order the defendants appealed, upon the grounds :</p> <p>1st. That they had power bylaw to bail the prisoner.</p> <p>2d. That the case was one in which it was proper to grant bail.</p> <p>Appeal determined at Columbia, Fall Term, 1838.</p>

<p>Before Earle, J., Richland, Spring Term, 1836.</p> <p>This was an indictment for buying corn from a negro man slave, named Bob, belonging to the estate of David Myers.</p> <p>James Gray, the only witness produced on the part of the prosecution, proved the offence, substantially as laid in the indictment. He was living with the defendant as a hireling. Slept in the house, which contained only two rooms. The defendant occupied the inner or small room. Bob knocked at the window of the small room where defendant slept. Learning who was there, defendant directed Gray, who slept in the outer room, to open the door. Defendant went out. Bob brought about four bushels of com, which they (defendant and Bob,) carried to the barn, and on their return defendant paid him for the corn, in meat, tobacco, and whiskey. It occurred an hour or two after dark. Afterwards, Bob brought about two bushels *of corn, a little before day, and the defendant bought it, and paid for it in the same way. The negro made himself known as before, by knocking at the window, and the defendant went out to the door and received the corn, paying for it after they returned from the barn; a night or two only_after the former time.</p> <p>The witness admitted that he had quarelled with defendant, who refused to pay him his wages, and on that account he had got mad, and parted with him. On the part of the defendant, Elizabeth Gray, (sister of the former witness,) deposed, that she lived with defendant all the time Janies did. She occupied the inner room, where defendant slept, and she deposed that no such dealing or transaction ever took place within her knowledge ; and if it did occur at all, it would seem she must have known it.</p> <p>Other witnesses were called to the character of Gray, both to discredit him and sustain him. Several deposed that they would not believe him, while others knew no cause why they should not; and would believe him. Dr. Briggs, who seems to have known him best, gave him such a character as should have overthrown his testimony altogether, according to the opinion of the presiding Judge, but the jury thought otherwise, and found the defendant guilty.</p> <p>It was a question of credit between two witnesses ; on the one hand, one of whom had quarrelled with the defendant, and the other was his paramour ; on the other, between a witness whose character was proved to be bad, and a defendant whose character ivas not proved to be good.</p> <p>Appeal determined at Columbia, Fall Term, 1836.</p>

<p>Before Earle, J., at Abbeville, Fall Term, 1839.</p> <p>This was a writ of domestic attachment, levied and returned. On motion being made for a decree, the attention of the Court was called to the affidavit of the plaintiff, for the purpose of obtaining the attachment, which stated the indebtedness, and that the defendant was about to remove out of the State personally, or so absconded and concealed himself that process could not be served on him. And it was moved, by Mr. Burt, to set aside the attachment, for insufficiency in the affidavit to give the justice jurisdiction. The order was made accordingly to quash the attachment, which the plaintiff now moves to set aside, and for a decree.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because the defendant in attachment cannot appear by attorney, until the attachment has been dissolved. And no one except the defendant, can take advantage of irregularities in the attachment.</p> <p>2. Because the Court will not, upon motion, set aside an attachment for irregularity.</p> <p>Appeal determined at Columbia, Fall Term, 1839.</p>

<p>In the construction of covenants, the intention of the parties must govern, where the intention can be ascertained from the instrument itself. Parol proof is not admissible to explain a deed of covenant, where there is no ambiguity.</p>

<p>Before Richardson, J., at Lexington, September Term, 1835.</p> <p>This was an action of slander, for charging the plaintiff with perjury, by swearing to a lie, in the course of evidence given by him, in a case of trespass, brought by Steedman vs. Gantt. The evidence fully supported the case, with the necessary colloquium, &c. The plea was the general issue “not guilty S' and the defendant introduced one Wm. Williams, who was permitted by the Court (though objected to by Eagan’s counsel,) to prove the matter that Eagan had sworn to, upon the former trial, and charged to be false by the defendant, Gantt. Williams related “ that Eagan said that the land,” (then in question,) “was pretty nigh wore out, and that Gantt had cultivated the land seven or eight years.” Gantt’s counsel then offered to ask the following questions, which were objected to:</p> <p>“Was the land pretty nigh worn out? Did Gantt cultivate the land seven or eight years ? Was the evidence of Eagan true, or not ?”</p> <p>The questions were overruled, as wholly incompetent, without the plea of justification. But all questions and matter short of direct evidence of Eagan’s perjury, when formerly sworn, were allowed. Defendant’s counsel contended, that since the case of Reed, &c., there was no necessity for the *plea of justification in any case. The case was given out to the jury upon the facts, and they returned a verdict of three hundred dollars for plaintiff.</p> <p>The defendant appeals, on the grounds:</p> <p>1st. Because the defendant offered to prove by several witnesses, that Eagan swore on the trial of I. & A. Steedman vs. Israel Gantt, in an action of trespass to try titles, and to recover damages, that Gantt had occupied and cultivated the land for eight years, and that the land was nearly worn out, and Eagan’s testimony on these points was not true. The words alleged in the declaration, were spoken in allusion to Eagan’s testimony in this case, but the Judge decided that it was incompetent evidence, to contradict what Eagan swore in that case, unless the defendant had pleaded justification.</p> <p>2d. Because it was competent, under the plea of the general issue, to give circumstances in evidence, (to rebut the idea of malice on the part of the defendant,) that Eagan’s testimony was inconsistent with the facts ; and that the circumstances proposed to be proved, (and which were excluded by the Court,) would have gone to establish what was not true, and that his evidence was erroneous ; and the circumstances ought to have been permitted to have gone to the jury in mitigation of damages.</p> <p>3d. Because all the circumstances of Eagan's testimony, and the facts connected with the case, were competent, on the part of the defendant, to prove the provocation — the probability of the charge, and the suspicion the plaintiff's evidence was calculated to create.</p> <p>4th. Because the verdict was, in other respects, contrary to law and evidence.</p>

<p>Before O’Neall, J , at Edgefield, Spring Term, 1837.</p> <p>The prisoner was indicted under the 3d clause of the 1st section of the Act of 1754, (P. L. 335-5,)(a) for aiding a slave in running away and departing from his master’s service. The indictment charged the offence in the words of the Act, but did not set out the means employed by the defendant in aiding the slave to run away. It was proved that a slave, the property of Francis Bettis, whose name was Jim, ran away from his master’s service, on the night of the 24th of December, 1836 ; on the 26th of *December, 1836, he was found in Schriven County, State of Georgia, and a paper was produced by him as a pass, and taken from his possession, of which the following is (I believe) a literal copy. “ This is to show my boy Jesse a leaf to hire is own time for next year.” signed, “William Barnes.”</p> <p>On the 24th of December, 1836, Jim was seen at the house of the prisoner, in the suburbs of the village of Edgefield, in company with the prisoner, nailing boards upon his pailings. The paper found in possession of the runaway, was proved, by A. B. Addison, Esq., to be in the handwriting of the prisoner; he had seen him write twice ; of the first occasion on which he had seen him write, he said he had no recollection, at the time the prisoner was arrested ; and, therefore, he requested him, in his presence, to write his name, wdiich he did, and it was from his knowledge thus acquired, that he thought the paper was the handwriting of the prisoner; he was shown a paper, which afterwards was proved to have been written by Thomas Blease, the brother of the prisoner, and said that it looked like the writing of the prisoner, though not so much as the paper taken from the possession of the runaway. He said that the prisoner’s pronunciation was very like the spelling of the words in the paper; he drops the “h”iu some words, and sounds it in others, to which it does not belong. An order, admitted by the prisoner to be his genuine handwriting, was offered by the State, and admitted by the Court, notwithstanding it was objected to by the counsel for the prisoner.</p> <p>The rule on this subject is stated by the Court of Appeals in the case of Bowman vs. Plunkett, (2 McC. 518,)(a) to be, that where there has been prima facie proof of handwriting, and it is still a doubtful question, genuine writing of the party may be submitted to the Court and jury, to enable them to decide, by comparison, whether the writing produced be that of the party. This rule was laid down in a civil cause, but I am not able to discover why it is not a proper rule in a criminal cause. In one, as well as the other, it is intended to answer a question of fact by the best means in our power. The prisoner had resided at Edgefield for a few years, and during that time had been industrious and correct in his dealings ; and the witnesses all agreed, that they had heard nothing against him until this affair occurred — and, therefore, said he was of good character. It was objected, on the part of the prisoner, that he could not be guilty under the Act of 1754, inasmuch as the Legislature, at the last session, had provided a different punishment for giving a ticket or permit to a slave. The Act of 1836,(b) was not before me, and could not then be obtained, as the Acts (from the fault of the State Printer, or the Secretary of State) had not been sent to the different districts for distribution. I had, therefore, to judge of the law from the statement which Mr. Speaker Wardlaw was able to give from memory; and I am gratified to find, on meeting with the Act at the last Court on my circuit, (10th April, 1837,) within twelve miles *of the capital, that no error was committed in this behalf It provides, “ That if any person shall give a ticket or written permit to any slave, the property, or being under the charge of another, without the consent or against the will of the owner or other person having charge of such slave, authorizing such slave to be absent, or to deal, trade or traffic, such person shall be liable to be indicted, and on conviction, be punished by fine, not exceeding one thousand dollars, and be imprisoned not exceeding twelve months; the entire fine thus imposed, to be given to the informer.” I thought, and so instructed the jury, that this Act provided for a different offence from that before the Court. As to the first branch of the Act, it was nothing more than a re-enactment of the 4th section of the Act of 1740, with an increase of the penalty. Construing it by that, or as in pari materia, it was plain that it was intended to punish the giving to a slave a pass for occasional absence, unconnected with the fact of running away. In this case, under the Act of 1754, it was necessary that the pass should have been delivered to the slave, to aid him in running away and departing from his master’s service. I thought, and so instructed the jury, that if the paper found in the possession of the slave, was delivered to him by the prisoner, with the intent to aid him in running away, that then the prisoner was liable to the penalty of the Act of 1754. In deciding upon the prisoner’s guilt, I told them that every thing depended upon the fact, whether the paper found in the possession of the slave, was the handwriting of the prisoner; if it was, from that fact, and the further fact that the slave, just before running away, was seen in the company and employment of the prisoner, they might presume he delivered the paper to the slave to enable him to run away. In deciding upon the handwriting, I told them that prima facie proof had been made, which might be rebutted by the want of opportunity, on the part of the witness, to be familiarly acquainted with his handwriting; the fact that he doubted whether the paper written by Thomas Blease, was not written by the prisoner; a comparison with that paper, or the order admitted to be genuine. So the proof might be corroborated by the skill of the witness in judging of handwriting, and their own opinion, on comparison, of the identity of the handwriting of the genuine order, and the paper found in the possession of the slave. Though it appeared to me, I said to the jury, that there was more similitude of the paper found in the possession of the slave, to the paper written by Thomas Blease, than to the order written by the prisoner. But I told them, the question of handwriting was one of fact merely, and for them alone. I explained to the jury, that if they entertained a reasonable doubt, upon the facts proved, of the guilt of the prisoner, they ought to acquit him. The jury found the prisoner guilty; and I cannot say that I am dissatisfied with it.</p> <p>*The prisoner appeals, and moves in arrest of judgment and for a new trial, on the grounds of misdirection by the Court, and error in law.</p> <p>Appeal determined at Columbia, Fall Term, 1837.</p>

<p>Where an overseer has heen guilty of neglect, and some small departure from the terms of his contract, and these are known to liis employer, and he is still continued as her overseer, it will be considered as a waiver of them as grounds to rescind the contract.</p>

<p>Before Richardson, J., Orangeburgh, October Term, 1835.</p> <p>This was an indictment for inveigling, &c., the slave of L. J. Cross, named Edmond, and containing an account for aiding Edmond to run away. Several objections were made to the form of the indictment, which were overruled by the Court.</p> <p>J. Whitemore and Taylor proved a pretty clear case of inveigling, and the jury found a verdict of guilty, from which the defendant appeals, and moves in arrest of judgment, upon the grounds set forth in the notice of appeal. The motion for a new trial depends upon the precise evidence, and that in arrest, upon the form of the indictment, and require no further report of the case.</p> <p>GROUNDS OF APPEAL.</p> <p>1. Because the indictment does not allege whether the said Leonard J. Cross was the owner or employer of the said slave Edmond.</p> <p>2. Because the first count in the indictment alleges that the prisoner inveigled, stole, and carried away the said slave, which is repugnant and void.</p> <p>3. Because in the said first count, the prisoner is indicted partly under the first and partly under the second clause of A. A. 1754. (a)</p> <p>*4. Because, in the second count, it is not alleged by what means and how the prisoner aided the said negro in running away.</p> <p>5. Because the two counts state distinct and different offences, which make the indictment repugnant and void.</p> <p>And for a new trial. 1. Because there was no evidence at all to support the second count.</p> <p>2. Because the evidence offered -was insufficient to support the first count.</p> <p>3. Because the verdict was, in general, contrary to evidence and law.</p>

<p>The docket of the Court in the sutn. pro. jurisdiction, with this entry, "Alex. Gregg vs. R. J. Gregg—Decree for Plaintiff,” is not such evidence of a judgment as will enable a purchaser of land at sheriff’s sale to recover in an action of trespass to try titles.</p> <p>See 5 Rich. 372; 10 Rich. 395. An.</p>

<p>To discredit a witness, it is incompetent to offer testimony to prove that the witness has Been guilty of stealing.</p> <p>Where incompetent testimony has been received, and no objection is made at the time of its reception, counsel have the right to comment upon it before the jury.</p> <p>See Supra, 458. An.</p>

<p>It is no ground to arrest the election of a Sheriff, and to ej ect him from office, hecause the election at one of the polls in the district was managed by one manager, assisted by another appointed by the Senator, under the Act of 1828, p. 39, without any objection being made to the appointment on the part of the representatives.</p> <p>See Cheves, 267; 2 Rich., 6. An.</p>

<p>In an action on the- case for slander in charging the plaintiff with perjury, the colloquium stated in the declaration set forth the trial of an indictment for a riot; the record produced on the trial was for a riot and assault; held, to be an immaterial variance.</p> <p>So, a slight variance in the names of the defendants in the indictment, as set out in the declaration and contained in the record, may he cured by parol proof of the identity of the persons.</p> <p>See 2 Sp., 592; 2 Rich., 580. An.</p>

Before Earle, J., Columbia, at Chambers, 23d Nov., 1837. The relator, under the Act of December, 1836, had been preceded against as a vagrant, on the following charge:(a) “ That the said I. H. Coleman has, within the last six months, within ten miles of the South Carolina College, kept or used a house as a house for gaming ; and that the said I. H, Coleman, within the last six months, within ten miles of the South Carolina College, has aided or assisted in keeping or using a…