Volume 27 — South Carolina Law Reports

Before Gantt, J., Fairfield, Fall Term, 1841; who reports the following as the facts of this case. Held: that on a contract, before that Act, it could not be proved by proof of handwriting. At the passage of the Act of ’39, defendants had incurred no liability, and there was no suit brought; Brev. 24 — 60; 6 Bac. 383, Stat. Letter F. 50; ■pari materia, 5 T. R. 16. The Act of 1839, regulating returns, dispenses with nul-la bona returns.

Before O’Neall, J. at Abbeville, Fall Term, 1841. These were motions, made before his Honor, Judge O’Neall, by the defendants, after having entered special bail before the Clerks of the Court; first, for leave to justify in open Court; secondly, to dissolve the foreign attachments, that had been levied by the Sheriff. Both of which motions were granted.

<p>Before Gantt, J. Chester, Fall Term, 1841.</p> <p>This was a summary process, tried before his Honor, Judge Gantt, at Chester, Fall Term, 1841, of which his Honor reports, as follows:</p> <p>“ S. Process on note of hand, purporting to be payable to John Goodwright, or bearer, for the sum of $28 50, signed Jonathan Fergeson, and dated 24th June, 1840, on which is a credit of $3, of the 11th December, 1840. A regular appearance had been entered for the defendant; on the case being called for trial, the Counsel for the defendant, relied on a variance between the original and copy process, in this, that the name of Fergeson was left out in the copy, the statement in the copy being, that “Jonathan, the defendant, is indebted, &c.</p> <p>“ It was urged, also, that the person, to whom the note was made payable, was “Goodnight, and not Goodwright” as' stated in the process ; as the said Jonathan had appeared by attorney, and as the note was made payable to bearer, in which character the plaintiff sued out the process. I overruled the objection, and decreed for the plaintiff.”</p> <p>The defendant renewed his motion in the Appeal Court, for a non-suit, and to set aside the decree of his Honor, in this case, upon the ground :</p> <p>That the note sued on, and the one offered in evidence, were different. The note sued on, purported to be made payable to “John Goodwright,” and the note offered in evidence, was payable to one “ John Goodnight.” The allegata and probata, not corresponding, the Court should have sustained the defendant's motion for a non-suit.</p>

<p>Tried before O’Neall, J. at Columbia, Spring Term, 1841.</p> <p>Assumpsit on the implied warranty of soundness of a negro man, Edinburgh, sold at auction, by the defendants, with the other estate of Dr. Green, and purchased by' the plaintiff. When the sale of the negroes was about to begin, and when the bidders were generally collected, the defendants caused it to be publicly announced, as part of the conditions of the sale, in regard to the negroes, that the title would be warranted, but not the soundness. Edinburgh being bid off by the plaintiff, he complied with the terms of sale, and accepted a bill of sale from the defendants, warranting the title, but containing no warranty of soundness. There was no proof on one side, or the other, whether the plaintiff was present, or absent, at the public announcement of the conditions of the sale. And it was contended for the plaintiff, that unless he were proved to be present, he was not bound by them.</p> <p>The Court instructed the jury, that the refusal to warrant the soundness of the negroes, at the commencement of the sale, attached to each negro then sold; but that, any after representation of the soundness of this negro, would be a warranty.</p> <p>The jury found for the defendants, and the plaintiff moved to set aside the verdict, on the ground of misdirection.</p>

<p>Before Oneall, J. at Edgefield, Fall Term, 1841.</p> <p>The defendant applied for the benefit of the insolvent debtors’ Act. The plaintiffs objected to his discharge, and filed a suggestion contesting his schedule.</p> <p>After two trials at nisi prius, and in the Court of Appeals, it was held that the prisoner was guilty of an escape, and could not, therefore, be discharged.</p> <p>The plaintiffs claimed now to tax costs against the defendant on the issue, disputing his schedule, and to recover the same against the defendant and his securities, on the prison bounds bond. The presiding Judge ruled, that as the law gave no costs, none could be taxed; that they could not be recovered against the defendant’s securities.</p> <p>The plaintiffs appealed, on the ground of error in the Judge, and insisted that, by law, they had the right to tax their costs against the defendants.</p> <p>Cited the Act of ’88 and said, that by the authority of this Act the Judge is directed to submit the issue to a jury. On a feigned issue, costs abide the verdict: cited Burr. 10 21; 4 T. R. 402.</p> <p>Cited 2, N. & M’C. 377; Act of ’27; P. 55 fee Bill.</p>

<p>Where a testator, by his last will, devised certain real estate to the plaintiffs, as tras» tees for his daughter, (therein named,) reserving the “sawing timber,” growing thereon. It was held to be a good reservation, and sufficiently explicit to be Understood.</p>

<p>1. On a question of location, a new trial will more readily be granted, tiran on most other cases depending upon facts, in consequence of their near approach to questions of* law.</p> <p>2. Natural boundaries, in questions of location, are to prevail, unless there may be some doubt about them, and this doubt certainly removed by artificial marks. In such a case, the artificial marks will have effect, although of inferior degree.</p> <p>3. Where a survey called for Dean’s Swamp as a boundary, it was held, that the creek, or main stream of the swamp, was intended, and not the outer edge, or margin of low, marshy land, that frequently bounds the main stream.</p> <p>4. The declarations of a tenant, after he has aliened his right and interest in the land, is inadmissible evidence to prove where a line ran, or a tree stood.</p>

<p>Before Gantt, J. Lancaster, Fall Term, 1841.</p> <p>This was a summary process, on the following note : — ■ “ Six months after date, we, or either of us, promise to pay William Alexander <fe Brothers, forty-eight dollars and 100-75, for value received. As witness, my hand and seal. June" 30th, 1840.</p> <p>Signed, J. F. N. DAVIDSON.</p> <p>B. F. DAVIDSON.”</p> <p>And the following are the facts, reported by the presiding Judge: — Jackson Miller was sworn, as a witness, who proved the signatures of J. F. N. Davidson and B. F. Davidson, to be their respective hands writing.</p> <p>Fowler Williams, also, proved the hand writing of B. F. Davidson, affixed to the note. And the plaintiff’s counsel admitted that William Alexander was dead.</p> <p>The presiding Judge ordered a non-suit, on the ground, that the suit abated by the death of William Alexander, the only person named in the note, and that a decree could not go in favor of the Brothers, as survivors, without designating who they were, in the process.</p> <p>The ground relied on in the appeal is, that a non-suit was an improper order; that if the suit did abate by the death of William Alexander, that would have been the proper entry.</p> <p>As the suit was attempted to be carried on in behalf of the Brothers, after the death of William Alexander, quoad the Brothers, the non-suit was properly ordered.</p> <p>' The plaintiff, from this order, appealed, and moved to set aside the non-suit; and for a new trial, on the following grounds:</p> <p>1st. Because the suit did not abate by the death of Wm. Alexander, notwithstanding the names of the Brothers were not set forth in the plaintiff’s .process. But would inure to the Brothers, as survivors; and his Honor erred in ruling, that the survivors could not recover, unless their names were set out in the process.</p> <p>2d. Because, that if the suit did abate by the death of William Alexander, his Honor erred in granting a non-suit; but should have marked the case on the docket, as abated, inasmuch as the defendants could not enter up their judgment of non-suit against the Brothers as survivors, unless the names of the Brothers had been set out in the process.</p> <p>3d. Because his Honor erred, in refusing to mark the case, abated; if, in fact, it had abated by the death of William Alexander, and in granting a non-suit. But the defendants, in order to have availed themselves of the defect, or omission of the names of the Brothers, in the plaintiff’s process, should have pleaded the same in abatement.</p> <p>The parties were not well set out; but the objection was not taken; 1 Hill, 48. The death of William Alexander was no abatement, it might have been suggested; Chev. 215.</p> <p>Chitt. (Marg.) Plead. 256.</p>

<p>1. Where an issue has been made up to try the validity of a debtor’s schedule, and a day appointed by the Commissioner of Special Bail, for that purpose, and the jury are in attendance — the question of postponement or continuance, becomes a question of discretion, to be addressed to the Commissioner, who will never grant the motion, unless upon the most satisfactory shewing.</p> <p>2. A plaintiff will not be permitted to add new, and other specifications, to his suggestions of fraud, &e., against a debtor’s schedule, after the issue has been made up, and the parties are ready "for trial.</p> <p>3. The notes of the Commissioner of special bail, taken on the examination of a debtor, applying for his discharge under the prison bounds Act, on his previous application for discharge in the same case, and before the specifications of fraud were filed, is inadmissible evidence to go to the juiy, on the trial of the validity of his schedule. Vide, S. P. E. Hyatt, Co. vs. John Hitt, ante.</p>

<p>1. The Act of 1836, secures to creditors the right, either in person, or by counsel, to examine and cross-examine a party, who is about to take 'the benefit of tire prison bounds’, or insolvent debtors’ Act, in the presence of the Judge, or Commissioner of Special Bail, befor e whom he may be applying. And it is the privilege of such person’s counsel, (seeking to take the benefit of either the prison bounds’, or insolvent debtors’ Act,) to ask the defendant, when on his examination, such questions as he may think proper, in reply to such as have been propounded (and answered) by the adverse counsel.</p> <p>2. Whenever the Commissioner, or Judge, permits a party to amend his schedule, after specifications have been filed, suggesting frauds, &c., it becomes a new schedule, and the creditor has the same right to examine the party, as to the amended part of the schedule, as he had to the original.</p> <p>3. The notes of evidence of tire Commissioner of Special Bail, taken at a former application of a debtor, for his discharge, under the prison bounds’ Act, is not such evidence as should be read to the jury, on a subsequent trial, as to the validity of his schedule. Such testimony is incompetent. S. P. vide Bentley vs. Page, reported in this vol.</p>

<p>Before Evans, J. at Laurens, Fall Term, 1841.</p> <p>The plaintiff sued Cook in trover, who, with Norris, the other defendant, gave a bond for the delivery of the property, if the plaintiff recovered. The plaintiff did recover, and the property was not produced. The bond was taken to the Sheriff, under the Act of 1827, who assigned it to the plaintiff. The only question in the case was, whether the bond was assignable. The bond was payable to the Sheriff and his assigns ; and as it was given for the benefit of the plaintiff, the presiding Judge thought, and so decided, the action would lie.</p> <p>The defendant moved for a non-suit, because the bond sued on was not assignable, so as to enable the assignee to sue on it, in his own name.</p>

<p>Before Richardson,' J. Richland, Fall Term, 1841.</p> <p>The following summary of the facts, of this case, will be found (with the grounds of appeal,) sufficiently intelligible, to a proper understanding of it.</p> <p>The defendant, Fort, assumed in writing, to pay the plaintiff, Pope, the amount of a note drawn by one Groner, when, in funds for the maker, (see the note.)</p> <p>The question was, whether Fort had received such funds. Davis proved, that Fort was a Commissioner of public buildings; the Commissioners were indebted to Groner, for work done; and Fort, thereupon', made the written assumption.</p> <p>Groner, (being first released by Pope,) then swore, .that Fort was Chairman of the board; and after the assumption to Pope, he (Fort,) paid the witness $100 for his work, by a check, upon Major Hart, which was received, but his note never was taken up, as he wanted the money to get married.</p> <p>Major Hart, also, proved, that the check had been paid, &c.</p> <p>Isaac Tickner said he had called on Fort for payment; who said he would pay it, as soon as he got the money for Groner.</p> <p>West Caughman said Groner called for his money, and the board authorized Fort to draw $100 to pay him.</p> <p>Captain Harman said Groner applied for the money, i. e. $50, to pay the witness, and $50 to get married.</p> <p>The Court held Fort liable, upon this evidence, and decreed for plaintiff.</p> <p>Copy of the note, referred to, and, of the defendant's promise.</p> <p>“ 65,75. Three days after date, I promise to pay, to N. Pope, or bearer, sixty-five dollars, and seventy- five cts. for value received of hin, the 24th of March, 1840.</p> <p>[Signed,] N. W. GRONER”</p> <p>"Mr. Pope left in my hands the original, of which the above is a copy, which I am requested by the maker to pay, which I will do, whenever his funds come to my hand.</p> <p>[Signed,] A. H. FORT.</p> <p>Aug. 10, 1840.”</p> <p>The defendant appealed and moved for a non-suit, upon the ground, that the allegata and probata, did not correspond, in this, because it was alleged in the process, that the defendant promised, unconditionally, to pay the note made by N. W. Groner, when, in fact, as appeared from the evidence, he only promised to do so, when funds, belonging to Groner, should come to his hands.</p> <p>And also, to reverse the decree of his Honor, upon the following grounds:</p> <p>1st. Because there was no evidence, that any funds belonging to Groner, ever came into the hands of defendant:</p> <p>And 2nd. Because the defendant, in giving the order on the Treasurer, acted in his official capacity, as Chairman of the Commissioners appointed to superintend the building of the Lexington Court House, in obedience to their order, as proven by the witness, Caughman, and had no power or authority individually, to retain the order in his own hands, or to draw the money himself, the said Commissioners having made a special order, that Groner should be paid the amount of the draft.</p> <p>3. Because the promise of defendant, to pay Groner’s debt, was without consideration, and therefore void.</p> <p>said the allegata and probata did not correspond, Hilberson vs. Paysinger, 1 Bail, Rep. on 2nd ground. .He said there was no consideration to support the promise; there would be none, until funds were received, cited Riley’s, L. Cases, 56. The consideration must be proved. Powell on Cont. 343 to 356 ; 5 J. R. 6, lb. 272, 18, J. R. 145</p>

<p>Before Earle, J. at Marion, Fall Term, 1841, who made the subjoined report.</p> <p>The land in dispute was granted to Henry Lambert. The plaintiffs are the heirs at law of Mary Godbold Smith, and claimed one half of the tract under a deed of conveyance, said to have been made by Lambert, the grantee, to Mary Godbold Smith and her sister, Julia Ann Smith. The original deed was not produced, and an office copy was allowed to be read in evidence under the following proof. The deed purported to bear date 9th February, 1805, and conveyed 200 acres, the lower part of the tract granted to Lambert, by specific boundary. James Tait married Julia Ann Smith, one of the grantees .in the deed, and entered upon her portion of the land in 1825, under that deed, which she had in her possession at the time of her marriage. He and his wife sold and conveyed their part of the land to Benjamin Holt, and he supposed he gave the original deed to Holt, who afterwards sold and conveyed that part of the land to the defendant, Wheeler, who has been in possession ever since. The deed, from Tait and wife to Holt, was executed in 1830, and from Holt to the defendant in 1832. Holt is now living in Mississippi. It appeared further in evidence, that Wheeler had also claimed to have acquired title to the moiety of the land belonging to Mary G. Smith, or to the plaintiffs, her heirs, although he did not set up this title on the trial. A. L. Scarborough purchased this part of the land from the defendant, and took a conveyance. But he subsequently sold and re-conveyed to the defendant. The originál deed from Lambert was not in his possession, nor did he see it. If delivered by Holt to the defendant, it was retained by him, as he was in possession of the remainder of the land. The witnesses to the original deed, or persons bearing the same names, were living in the neighborhood at the date, but are now dead. The deed appeared to have been proved and recorded about 1828, and Levi Oldham, before whom it purports to have been proved, was then an acting Justice, and is still living. The defendant was a deputy in the office of the Clerk and Register at the same time. Written notice was given to the defendant to produce the deed, and his return in writing was read, stating, that after diligent search among his papers, the deed could not be found.</p> <p>On the foregoing proof, I allowed the office copy to be read in evidence, and the plaintiffs obtained a verdict, which it is now moved, on behalf of the defendant, to set aside, on the ground, that the existence and loss of the deed of Henry Lambert to Mary G. Smith and Julia Smith, was not sufficiently proved to authorize the admission of an office copy in evidence.</p> <p>1 Bay, 495; 1 M’C. 318; 2 Hill, 525; Id. 542.</p> <p>3 Stat. at Large 303, §30, A-deed is as good evidence as the original and ought to stand. He calls for a review of Purvis vs. Robinson. The Court refused permission to argue that question.</p>

<p>Before O’Neall, J. at Gittisonvitte Beaufort district, Spring Term, 1841.</p> <p>These were actions of the debt on the official bonds of Deveaux, Ford and Ferguson, former Sheriffs. They were brought to recover sums received by them for the State, and with which they were respectively charged on the books of the Treasury, more than twenty years before action brought. The only question made in the cases was whether, after a lapse of twenty years, performance of the duties, conditioned to be performed in an official bond, would be presumed. The presiding Judge held, that it would. The plaintiffs submitted to verdicts for the defendants and appealed.</p> <p>Because the Court erred in deciding that, after a lapse of twenty years, performance of the duties conditioned to be performed, in an official bond, would be presumed.</p>

<p>Before O’Neall, J. Abbeville, Fall Term,, 1841.</p> <p>This was a suggestion filed by the plaintiffs, to recover, on the bond of Jno. Taggart, late Sheriff of Abbeville district, the costs incurred by them in establishing a nulla bona against him.</p> <p>The presiding Judge ruled, that the sureties were not liable for such costs, and therefore quashed the suggestion. From this decision, the plaintiffs appealed, and moved to reverse the same, on the ground of error, in the decision of his Honor, the presiding Judge.</p> <p>cited and relied on 2. Yol. Stat. 1106, Marg. P. 1120 and 1 Hill, 398.</p> <p>Submitted the case without argument, or reference to authority.</p>

<p>Before Butler, J. at Spartanburg — Extra Term, 1841.</p> <p>This was an action of trespass to try title to a small slip of land of 50 yards length, and one link in breadth. Or it might better be characterized to say, that it was to try the right to a fence. Both parties claimed under a Mr. Bearden, who had divided a tract of land between his two sons, John and Ben. The plaintiff claimed under Ben, and the defendant under John, through intermediate owners of the land. In 1823, Wynne Bearden, the son of Ben, run a fence from the road to the opposite side, on what he supposed was the dividing line. In 1826, the defendant, who was then the owner of the other part of the land, petitioned to Wynne Bearden, to join fences. Permission, however, was refused, and Picken-pack, the defendant, to enclose a new ground, run his fence obliquely till it struck Bearden’s, fence, at a ground pole; and thence run it parallel with the other to the road, interlocking all that way — so that, at one time, there were two fences standing. One disappeared, and the question was, whose fence had been left, as the common dividing fence between the parties. Dr. Smith, the plaintiff, who became the owner of his land (the Ben Bearden part) in 1830, contended that the original fence, put up by Wynne Bearden, was left, and that defendant had joined to it— whilst the defendant contended that plaintiff had taken down his fence, and joined to the one put up by him (defendant) in 1826. The evidence was satisfactory that the plaintiff had joined to defendant’s fence, and had taken his away sometime in 1826, or 1827. The jury so found, for they found for the defendant. According to the finding, the case stands thus — for 14 years, defendant has had his fence on a small slip of land, originally belonging to plaintiff, believing at the time he made the fence it was entirely on his own. The jury were instructed that the land thus covered, or occupied by defendant’s fence, became his by the statute of limitations, and that he had a right to the fence on the land. The question arose upon the defendant’s right to take down the fence which he had put up. The plaintiff forbid him taking it down, and, by threats of violence, drove defendant’s hands off while they were moving the fence, in the presence of their master, and in obedience to his orders. Before the defendant undertook to move his fence, he sent plaintiff word that he was going to do so, with a view of opening a lane for the neighbors to pass through. The action was brought to recover damages for taking down a few rails. Under these circumstances, and if the land is plaintiff’s, he had a right to recover something, but if it was defendant’s, he ought to have failed in his action.</p> <p>On one occasion, plaintiff said “they were going to join fences,” “or he was going to join his fence to defendant’s,” but there was no evidence that defendant had ever consented to it. The ground that it was a division fence by the consent and agreement of the parties, was irreconcilable with the ground assumed by plaintiff, that the fence was entirely his own, and that he had permitted defendant to use it at sufferance. The presiding Judge’s opinion was in conformity with the finding of the jury, that defendant was justified in taking away his own fence from off his own land.</p> <p>The plaintiff appealed on the following grounds.</p> <p>1st. Because his Honor erred in charging the jury that if the defendant built the fence which he removed, and was the subject of the trespass, he had a title by the statute of limitations, when it was admitted that the fence was on the plaintiff’s land, and the defendant only claimed to have built the fence, and held it four or five years, when the plaintiff joined his fence to it, and used it as the enclosure of his field ever since, and therefore, if defendant assented to it, he did not hold adverse to plaintiff, and if he objected to it, the plaintiff, held the fence adverse to the plaintiff’s claim, and in either point of view, there was no statutory title in defendant.</p> <p>2d. Because, whether the defendant consented to the joining of fences, was a fact upon which there was some evidence, — yet his honor withdrew that question from the jury.</p>

<p>, Wliere the verdict of a jury is contrary to tlie' weight of evidence in a cause, and against the established rules of location, a new trial will be granted.</p>

Before Butler, J .Kershaw, Fall Term, 1841. This was an action of debt, suggesting a devastavit, so as to make the defendant liable for a debt which had been recovered against him, as the administrator of his brother, Andrew Kennedy. Plea, not guilty, and issue joined. In the action against defendant, as administrator; on a sealed note, by his intestate, he pleaded “ non est factum.” This was the only plea. The jury found a verdict for the plaintiff, October Term, 1840.

<p>Before Butler, J. at Kershaw, Fall Term, 1841, who reports the following statement of facts.</p> <p>This was an action of trespass, to try titles to a tract of land, containing 500 acres, lying on Deep Fork of Black river.</p> <p>It appeared from papers on record, in the office of the Secretary of State, copies of which were given in evidence, that the land in dispute had been in a grant of 48,000 acres, to Thomas Lowndes, made by the Lords proprietors, in 1721, and that the same lands had been receded by the grantee, Thomas Lowndes, to the crown, after it assumed the government of the Province of South Carolina. In 1775, Edward Lowndes, had the land in dispute, with several other tracts of 500 acres, surveyed for him. The survey was made by one John Belton, D. S. and was recorded in the proper office. A memorial was also recorded in the same office, purporting to have been made by Edward Lowndes, and certified by the same John Belton, in which it is recited, that these lands had been granted to Edward Lowndes, with a reservation of quit rent to the crown. No grant-could he found in the land offices, as appeared hy a certificate of the deputy Secretary of State, and the deputy Surveyor General. The plaintiffs made the usual affidavit, that no such grant was in their possession. They relied upon the above statement of facts, to raise the presumption of a grant, and that it had been destroyed or lost, <fcc. The next piece of evidence, introduced by the plaintiffs, was a record, in which Royal Bullard, as Escheator of Kershaw district, asserts and declares, that Edward Lowndes, died in 1790, in England, leaving no heirs in this country, who could hold the land — -and that the same, escheated to the State. Verdict of the Jury; “we find the within lands described, to be escheated.” The verdict was certified by the presiding Judge, David Johnson, Nov. 1816. Upon these proceedings, the clerk of the Court, as required by law, advertised in the public newspaper, that unless the heirs of Edward Lowndes, came forward within a year, to establish their right to said land, they would be declared duly escheated, &c. By an Act of the Legislature, the title to the escheated lands, of Kershaw district, was vested in the Orphan Society of Camden, to the value of $9,000 ; and under this act, as well as a title from Royal Bullard, escheator, dated the 28th of October, 1823, the plaintiffs claimed the lands in dispute. Trespass admitted.</p> <p>Upon the above statements, the defendants moved for a non-suit, which I overruled, holding that there was sufficient evidence, to shew that the State had granted the lands to Thomas Lowndes ; that although no grant could be found in the land office, I thought the recorded memorial, certified by Belton, to have been made by Lowndes, was evidence, that the grantee was to pay quit rent to the crown, on the assumption of a grant; and I also thought that the presumption, that the grant, had beeii lost or destroyed, amid the confusion of a civil war, and the removal of the records, from one place to another, might well arise.</p> <p>The defendants then went into their defence, which depended, somewhat, on the evidence, that came out from the plaintiff’s witnesses, (which will be noted hereafter,) and upon a grant to Isham Moore and David Reynolds. The grant was dated the 7th May, 1786, and covered the locus.</p> <p>To establish possession under this grant, the defendants relied on the following evidence :</p> <p>Daniel Scarborough said, that he married the daughter of Joseph Lockhart, in 1815; that Lockhart was then in the cultivation of the land; he spoke of it, as the Lowndes land, but always said he held it, as the tenant and agent' of Moore ; never heard him say, otherwise, in his life time; he died in 1829, and his son, Joseph Lockhart, one of the defendants, then took possession of the land, and held it as his father had done. The witness said, the first time he heard old Joseph Lockheart, speaking of his holding the land for Moore, was about a year or two after his marriage. He then spoke of himself, as Moore’s tenant generally.</p> <p>Angus McCaskill, said he knew Joseph Lockhart, sen. in 1815; he was then living on this land, and died there. During Lockhart’s life time, from 1815, witness often heard him say, he held the land for Moore, and was put there to take care of the land, and to keep off trespassers. The witness says he knows of Lockhart, having bargained a part of the land for Moore, in 1826, to one Porter; and that Porter is now in the occupancy of the land, so bargained, and has been, ever since his purchase in 1826.</p> <p>The defendants closed, by proving that the defendants, in the record, were the representatives of Moore; their names having been substituted or added by order of Court since the commencement of this suit.</p> <p>By way of reply, the plaintiffs relied on the following evidence:</p> <p>Obligation by Joseph Lockhart, dated April, 1821, to pay $10 rent, to the Camden Orphan Society. The following entry, appeared on the record of the Court of Common Pleas, for November, 1824; Boyal Bullard, Escheator of Kershaw district, vs. Jos. Lockhart; trespass to try titles. Nonsuit.”</p> <p>Record of Richard, Moore vs. the Escheator of Kershaw. This was a suggestion on the part of Moore, setting forth, that the lands described, were not subject to escheat, as had been declared in previous proceedings, but they belonged to himself. This proceeding was let fall in some way. William McWillie, was sworn to make some explanations, relative to the above record. He stated, that he was counsel for Lockhart, in the suit of the Orphan Society, against Lockhart, and procured a non-suit on the production of the obligation, to pay rent before mentioned, and that the last case, went off the docket, because Moore supposed his title, no longer in danger, and that it was not therefore, necessary for him to go on with the suggestion.</p> <p>The whole question in the case, as it went to the Jury, was, whether the defendants, had a good title to the land, by the statute of limitations ; which depended altogether, on the character of Lockhart’s possession. I said to the Jury, that if Lockhart had held for Moore, from 1815 to 1821, it gave Moore good title under the statute; and that in 1821, when it was said Lockhart acknowledged himself the tenant of plaintiffs, he could not attorn to a stranger, without divesting himself of the relation of tenant of Moore, and giving Moore notice of the new relation he had assumed to plaintiffs. That if Lockhart had done so, he might then be regarded as standing in an adverse position to Moore, and might, by his subsequent possession, enable the plaintiffs to acquire a title under the statute of limitations, cfec. The fact, that Lockhart bargained any part of the land for Moore, in 1826, would seem to show, that at that date, he regarded himself as the agent of Moore. The Jury, returned a verdict for defendant.</p> <p>The plaintiffs appealed and moved, for a new.trial.</p> <p>1. Because, by the written acknowledgment of Joseph Lockhart, sen. in 1821, as tenant of the plaintiffs, and his obtaining a non-suit against the plaintiffs, in their suit against him, in 1824, by setting up, and by virtue of the said instrument, the said Lockhart had openly thrown off his character as agent or tenant of Moore, if ever he was such tenant.</p> <p>2. Because the suggestion filed by Richard Moore, on the 17th of April, 1824, was an admission that the said Lockhart was the tenant of plaintiffs. •</p> <p>3. Because Richard Moore, having failed to file his traverse of said escheat, within five years after the verdict of escheat, he is barred from now claiming, and the land then vested in the plaintiffs.</p> <p>4. Because Moore, having failed to traverse the es-cheat, within the time limited, the attornment of Lock-hart in 1821, made his possession, the possession of the plaintiffs.</p> <p>5. Because from the legal proceedings had, the question of tenancy was one of law, not fact, and his Honor should have so charged the Jury, and not left it to them to decide.</p> <p>Reads the acknowledgment of tenancy, 1821. Non-suit in 1824, by the production of the written memorandum of tenancy. This is inconsistent with this verdict.</p> <p>His defence, on the ground of this tenancy, was a renunciation of his defence under Moore, 5 stat. at large, 48, escheats 3.</p> <p>Within 5 years, party comes in and compensation.</p> <p>Was Moore a party to the inquis’n of escheat? It merefy applies to the heirs of the parties seized.</p> <p>1 N. McC. 570, (note 373.) Title acquired by tenant, cannot be set up.</p> <p>Harper 70, Love vs. Dennis. Law Journal, 114, 125.</p> <p>Qwere. How can Lockhart’s possession be adverse after the recognition of the plaintiffs title, by becoming their tenant.</p>

<p>"Where grain, received at a mill as toll, was mixed up, and became the subject of traf fic, between the defendants, each being part owner, and interested in the proceeds of the sale. It was held that they were parties, in that particular business.</p>

<p>Where there has been a breach of the warranty of a slave, and the party purchasing has been deprived of the slave, by a paramount title, the measure of damages, for the breach of such warranty, is the price paid for the slave.</p>

<p>1. In an action of slander, where the words spoken, were, that the “plaintiff had sworn falsely in giving evidence, before a certain Justice Johnson, in a trial heard before him,” it is not necessary to aver in the declaration, that the justice had jurisdiction of the cause in which the plaintiff was sworn as a witness, or that his testimony was material. Both of these are presumed, until die contrary áppears.</p> <p>2. If there be a colloquium referring to the trial of a cause before a Justice, in which the plaintiff was examined as a witness, and in it, it is averred, that die defendant, speaking of such trial and testimony, spoke the same words, they would be actionable. They impute a false swearing, in a court of justice, which prima facis, imports perjury. If these general facts so averred be proved, it is enough on the part of the plaintiff.</p> <p>3. It is the right and duty of a Judge, to instruct the jury fully upon the law arising out of the facts proved — and in an action of slander, where the defendant had charged die plaintiff with having sworn falsely before a Justice, in a certain trial in which the plaintiff was examined as a witness, the defendant, on the trial of the case, had the right to have the jury instructed, whether die evidence of die plaintiff before the Justice, was immaterial to the point in issue or not. And upon the refusal of the presiding Judge so to instruct’the jury, a new trial was granted.</p>

<p>1. Where a testator, in his last will, used the term, (in relation to a bequest of slaves,) “ I will and bequeath Sarah, and all her marease ” — the (term, all her increase, was held to refer only to such children of the slave Sarah, as were born after the making of the will.</p> <p>2. Parol evidence is only admissible to explain a latent ambiguity. If a testator devises his estate to a person, or class of persons, by name or description, and it should turn out that there is no person of the name, or that will answer the description, parol testimony may be introduced, to explain to whom the testator intended the bequest to be applied; for there is a latent ambiguity, which, if unexplained, would render the will inoperative. Whatever is necessary to explain the ambiguity of the legatee, is equally applicable to an ambiguity in the description of the legacy itself.</p>

<p>Where a shop-keeper, himself, sold and delivered goods to a party, and during the same day, the entries were made by another person, who occasionally acted as clerk for him, it was held, that the book was no evidence of the debt, and that the evidence was inadmissible. Vide Hwrts vs. Neufmlle, m a note. S. P.</p>

<p>Before Huger, J., at Beaufort, Fall Term, 1827.</p> <p>This action was brought on an open account. The plaintiff was sworn, and produced his book of original entries. This book was objected to. It was not very regularly kept, but was admitted. The articles were charged by the plaintiff, to the defendant’s testator. The witness was asked if they were delivered to the testator; he said no, but to Kitty Roulain, by his order; he had no written order, - and his evidence was regarded as incompetent to prove the delivery. To supply this deficiency, the plaintiff produced a promissory note, drawn by the testator, and made payable to the plaintiff, for $200, which had been credited in the book, and afterwards paid by the agent of testator. The witness was asked if he had, himself, delivered all tire articles to Kitty Roulain; he replied that the greater part had been, and the rest were delivered by his wife, in his absence, and on his return home had been charged by him. He could not designate the articles delivered by himself.</p> <p>A verdict was rendered for tire plaintiff. The defendant appeals, on the enclosed grounds.</p> <p> Additional Report of his Honor. </p> <p>Coosawhatchie, Nov. 1827.</p> <p>'Pried before his Honor, Judge Huger.</p> <p>Assumpsit on a Merchant’s Account vs. tire Defendant, as Ex’rx. of Edward Neufville.</p> <p>At the trial, tire plaintiff produced his book, which was objected to, as being on the face of it, not a regular tradesman’s book, in which entries are made, in a certain order, but consisting of loose memorandums, relating to business. His Honor admitted the objections were strong to the book, but received it in evidence.</p> <p>The plaintiff then swore to the entries. The defendant asked if the goods were delivered to the testator, and the plaintiff answered no, but added that he delivered them to Kitty Roulain, by his order. To the latter part of this answer, the defendant objected, on the ground, that the authority to deliver the goods to another person, could not be proved by the plaintiff’s oath. He was tiren questioned, whether he had delivered all the goods, and admitted that he had not, but that some were delivered in his absence, by his wife, and that he afterwards made the entries as she directed, and he could not designate the things which he had delivered himself. To prove an authority to deliver die goods to Roulain, a note of the testator to the plaintiff, for $200, was produced. The note appeared to have been paid by Thomas Cochran, and is in his possession.</p> <p>The defendant moved for a noio-suit, which was denied, and tire jury found a verdict for the amount of the plaintiff’s demand.</p> <p>The defendant appeals from the decision of his Honor, refusing a non-suit, and hop es his Honor’s decision will be reversed, and a non-mit granted, because the plaintiff’s evidence was insufficient to .sustain the action.</p> <p>In case this motion should not be granted, she moves for a new trial.</p> <p>1. Because the plaintiff’s book ought not to have been allowed to go to the jury.</p> <p>2. Because the evidence was insufficient to prove a delivery to a third person, and that person should have been produced.</p> <p>3. Because there was no evidence to prove an order of the testator to deliver the goods to Roulain.</p> <p>4. Because the entiles were made, as plaintiff admitted, partly On the recollection of his wife, and his oath, therefore, could not supply any proof as to them.</p>

Before O’Neall, J., at Charleston, May Term, 1840. Held: that at the bringing of this suit, the damage done to the plaintiffs’ cotton exceeded the freight. That they subsequently recovered a part of it, was in aid of the defendant, by relieving him from a portion of the sum in his hands, to which the plaintiffs were entitled.

Colleton District, Spring Term, 1841 — Before O’Neall, J. These were actions of debt, on the official bond of Wm. Oswald, late sheriff of Colleton, during his term of office, from February, 1817, to February, 1821.

Tried at Gittisonvitte, January, 1842 — Before Wardlaw, J. The defendant committed a grievous battery upon the plaintiff, at a shooting match. At various periods, on the day of the injury, the parties were observed. They met and shook hands. Horton was afterwards seen to lay his hand in a rude manner on Dean’s breast, and to use some provoking language, which Dean did not notice. They sat together some time in conversation.

Before Richardson, J. at King’s Tree, Spring Term, 1841. The defendant was indebted to the plaintiff, by judgment, to .the amount of $800, for which a fi.fa. had been sued out, and lodged in the sheriff’s office on the 19th November, 1839. The plaintiff had also recovered judgment for the same debt, against Dr. W. J. Buford, who was surety of the defendant, W. R. Scott, for the said debt.

Tried before Earle, J., at Charleston, June, 1841. This was an. action on a policy of insurance, made in Charleston, and dated 7th April, 1840, by which the defendants underwrote $6,270, on goods per schooner Es-tell, at and from Charleston to Mobile. It was proved, that the Estell, on the 20th April, 1840, struck on the Florida Reef, and was taken off by the wreckers, carried into Key-West, and libelled for salvage, and part of the goods sold to pay the salvage and expenses.

Before O’Neall, J., at Charleston, May Term, 1840. This was an action of debt, on a judgment recovered in Mew York, under the following circumstances. The note upon which the judgment was based, was a joint note. The defendant, Z. B. Oakes, was alone served.

Horry, Fall Term., 1841 — Before Earle, J. This was an action of debt, on a single obligation by the defendant, to pay Joseph A. Burbage, or order, the sum of six hundred dollars, and assigned to the plaintiff; flea, that the defendant had paid up the said sum of money, and discharged himself from the said obligation, according to the tenor and effect of the same.

Before Wardlaw, J., at Gittisonvitte, Feb. 1842. The following is the history of this case. Held: the statute would run from payment over, whether discovered or not. It was argued, that the statute would only run from demand made in 1840; but this cannot apply, because the demand was not necessary to constitute a cause of action, which is the case when the statute runs from demand.

At Beaufort, Spring Term, 1841 — Before O’Neall, J. The following is his Honor’s report of the case. This was an action for a trespass on the person of the plaintiff, committed by the defendant, Lucius C. Robert, and others.

<p>Defendants, (chemists) were in the practice of filling a certain soda fountain for one Hopkinson, who rented this and another fountain from the plaintiff. Hoplrins'on absconded, leaving the soda fountain in the possession of defendants, who had first filled it. Plaintiff brought this action of trover for the conversion by defendants. Held, that there was no such tortious conversion, as would enable plaintiff to sustain trover, and a non-suit was ordered.</p>

<p>Tried in City Court of Charleston, July Term, 1841, Before his Honor the Recorder,</p> <p>The following are the facts of this case.</p> <p>This was an action of assumpsit against defendant, Barreteas endorser of a promissory note of George W. Logan, for $900, dated 19th November, 1840, and payable sixty days after date. The defence, no legal notice of dishonor.</p> <p>Wm. E. Hayne, sworn: Notary of the Bank; demanded payment of this note at Logan’s office, his place of business, after four o’clock of the day on which it was payable; he was not in; left a letter on his desk, demanding-payment; then put a notice in post office to Barrett, giving him notice; Barret lived on Charleston Neck.</p> <p>George Gibbon, sworn: Has a bond and mortgage in his possession from George W. Glover to George W. Logan ; was assigned to him in trust to secure Barret’s endorsements for Logan; Logan and Barrett came to his counting room, and had a good deal to say on this, subject; witness told them if they designed to put any thing into his hands, they must state the object in writing; the understanding was, that the bond and mortgage was to be left with him; and he understood, from the conversation, as a security to Barrett.</p> <p>Wm. E. Hayne, recalled: Proved Barrett’s hand writing; he met Barrett after he had lodged the notice for him in the post office; he told him he had received it, but it was not regular, and he would take advantage of it; this was some days after the notice was left, and did not say when he received it.</p> <p>Edward Carew, sworn: He heard a conversation between Boyce, the President of the Bank, and Barrett, and had a conversation with him, himself; Barrett did not wish to be sued on this note ; he proposed to Boyce to see Logan, and proceed against him; and he would secure him in the ultimate payment of the note by stock, or any other security; his desire was to avoid a suit against himself; Boyce declined his proposition.</p> <p>Evidence closed.</p> <p>The defendant’s Counsel then moved for a non-suit, on the ground, that there was no legal notice of dishonor given to Barrett, and there was no evidence of waiver of notice.</p> <p>The Court overruled the motion, and submitted the case to the jury, and they found a verdict for plaintiff.</p> <p>The defendant appeals on the grounds,</p> <p>1. That there was no notice to charge the endorser.</p> <p>2. That there was no evidence sufficient to warrant the presumption of a waiver of notice on the part of the endorser.</p> <p>said, there was only a single question in the case. He cited. 10 J. R. 489, 4 Wend. 401. There is no doubt that where both parties reside in the same place, notice in the post office is not sufficient, 11 J. R. 180,8 lb. 180,1 Bail. 419. A confession of judgment, as an indemnity to the indorser is a waiver. The mere taking of security is not sufficient to waive notice. Funds must come into the hands of the indorser, 19 Wend. 421, 7 lb., 169, 5 Mass. 170.</p> <p>cited from 1 Mills. Cons. Rep. 381, and said the case from 1 Bail. 412 was conclusive of this case.</p>

<p>Before Earle, J., at Charleston, May Term, 1841.</p> <p>This was an action against the defendant, as surety of a replevin bond. The pleas were non est factum, and nul tiel record. The declaration set forth a distress by plaintiff, of the goods of one David Clayton, that Clayton had replevied on plaint of a wrongful distress by plaintiff.\ and bond with the usual condition, and defendant as surety, to prosecute his suit with effect “against Henry D. Lesesne, agent of Thomas H. Harris, administrator, and John A. Buckheister, (the bailiff,) that plaintiff avowed for rent, obtained judgment and issued execution, and that the goods replevied were levied on and sold under the execution, and brought less money than the rent and costs; whereupon the sheriff assigned the bond to plaintiff., and whereby an action accrued to him against defendant, for the residue of the rent and costs. To sustain his declaration, plaintiff produced, 1. An affidavit by Henry D. Lesesne, as his agent, swearing to rent due to plaintiff. 2. A distress warrant, signed and sealed, not by plaintiff, but by Henry D. Lesesne, and he not signing and sealing in the name of his principal, “thus, Thomas H. Harris, seal, per Henry D. Lesesne, agent,” but describing himself as ágent, and putting his own seal, thus, “Henry D. Lesesne, seal, agent of Thos. H. Harris, administrator,” and in the body of the warrant, he as agent, and not in the name of his principal, appointing the bailiff to levy for rent alleged to be due, not to his principal, but to himself as agent. 8. The original replevin writ, sued out by Clayton, which made plaint of an unlawful distress, not by plaintiff, as alleged in the declaration, but by Lesesne, as agent, and Buckheister as bailiff, and was served on them and not on plaintiff. 4. The original declaration in replevin, counting on an unlawful distress, not by plaintiff, but by Lesesne and Buckheister. 5. A confession of judgment by Clayton, on the back of the declaration, for the rent due and destrain-éd for, with interest and costs, waiving all errors, and consenting to an immediate signing of judgment, and issue of execution. 6. The original replevin bond, conditioned to prosecute the replevin suit, with effect against Lesesne, as agent, and Buckheister, and not against plaintiff, or return the goods, and in default or in case the goods returned should be insufficient to pay the rent and expenses, then to pay the same or the deficiency, as the case might be. 7. An avowry, not by Lesesne, the defendant in replevin, but by plaintiff, who was no party to the replevin suit, on a separate paper, for rent due plaintiff. 8. A judgment entered up on the confession of Clayton, not in favor of Lesesne, the party, but of Harris, a stranger to the suit. 9. A retorno habendo cumfi. fa. against Clayton, directing the sheriff to cause return of the goods replevied, not to Lesesne, the destrainer and defendant in replevin, but to plaintiff. 10. The return of the sheriff, that he had levied and sold the goods replevied, and of the proceeds of sale, insufficient to pay the rent. 11. An assignment of the re-plevin bond, not to Lesesne, but to plaintiff. On this evidence plaintiff closed and rested his case, .and defendant’s counsel moved for a non-suit, on the grounds,</p> <p>1. Of variance between the declaration and the proof.</p> <p>2. Of incurable irregularity in the proceedings in re-plevin, subsequent to the declaration and confession of judgment.</p> <p>3. Of incompetency in the present plaintiff to sustain the action, he having been no party to the replevin suit, and the judgment in his favor being, therefore, a nullity, and the assignment of the replevin bond to him illegal.</p> <p>The motion for a non-suit was over-ruled by the Court, and the case went to the jury. The Court declined to charge the jury, whether the original distress was lawful or unlawful. The jury found for the plaintiff, the amount sued for, with interest and costs.</p> <p>A motion was made before the Court of Appeals at Charleston, for a non-suit, or in arrest of judgment, on the grounds taken at the trial; and for a new trial, on the additional grounds,</p> <p>1. That his Honor, it is respectfully submitted, should have charged the jury, that the original distress, in this case, was unlawful, having been made by one to whom no rent was due, and who had no power to appoint a bailiff to make the distress.</p> <p>2. That the verdict was contrary to law and evidence.</p> <p>said, can an agent of a landlord appoint a bailiff to distrain 'l</p> <p>If this action had been commenced against Clayton, the waiver of error, in the confession of judgment, on the declaration, might have been sustained; but this action is against the surety, and must fall.</p> <p>When the surety entered into the bond, he entered into an obligation to prosecute his suit to effect, <&c.</p> <p>On the 1st ground. The declaration was not supported by the proof. Can a party, not allowed to sue, come in and enter up judgment and execution 1 Could Harris take an assignment of the replevin bond'? Can a sheriff assign a replevin bond, to a stranger to the record 1</p> <p>The avowant is the only person to whom the bond can be assigned.</p> <p>contended that there was no irregularity, but if there was, it could not avail the surety in this action.</p> <p>It must be taken, that Harris was the landlord, and, consequently, had the right to appoint an agent to act for him.</p> <p>The agent, then, having the right to distrain, by authority from the landlord, could appoint a bailiff to act for him.</p> <p>The irregularity complained of, is the difference between the affidavit and the warrant of distress.</p> <p>If one acts for another, and his acts are afterwards confirmed by the person, it is a good authority; cited Thomas vs. Yates, 1 McM. 179.</p> <p>Whenever a party may recover against the agent, he may also recover against the principal, cited 2 McC. 164, Talvand vs. Crips. Replevin only -lies in case of a taking for rent. It is not concurrent with, trespass or any other action. Clayton, by confessing judgment, has waived all right to complain.</p> <p>Harris is the real vowant, and the party cannot prevent him from coming in..</p> <p>The sheriff had the right to assign his bond, as he did.</p> <p>Yeadon, in reply, said he represented the surety in this case, and not Clayton.</p> <p>He denied that Clayton had forfeited his bond, and consequently, that the surety is not liable. If the bond has not been forfeited, how can the party recover, to whom the bond was assigned 1 The case of Talvand vs. Crips, cited by the opposite counsel, was not a case in point. Mr, Yeadon pointed out the difference between this and the case cited; referred to the case of Steadman vs. Givens & JVathans, Mass. Rep.</p>

Before Butler, J., at Charleston, February Term, 1834. The following is the report of the presiding Judge. The facts of this case are tírese: A warrant of distress was levied on the goods and chattels of the plaintiff, signed by Givens, agent of Sarah Wigfall. But the warrant recites that it was issued for rent due by plaintiff to defendant, Givens, as his landlord.

Before Evans, J., at Georgetown, Spring Term, 1840. The above abstract presents the facts of this case, as they existed at the time the order was made by his.Hon- or, and the following are the grounds upon which the appeal was carried up, and which were argued in this Court. Grounds of Appeal. 1. Because the decree of the Court of Equity, in the case of C. & C. against the executor of Easterling, cannot have any further effect than to exonerate the executor.

At Colleton, Spring Term, 1841 — Before O’Neall, J. These were actions of debt on the official bond of Wm, Oswald, the late sheriff of Colleton district, during his term, commencing in 1825.

Before Richardson, J., at Gillisonville, Fall Term, 1841. The subjoined report of his Honor, with the grounds of appeal, furnishes the history of this case and the points in issue between the parties. This was an action of trespass to try title to a tract of land, marked C., on the plat adduced. The plaintiff shewed a grant to Theophilus Barnes, October, 1793, for 400 acres, who was in possession 40 years.

<p>1. Widow’s claim of dower extends to all the lands of which her husband was seized' during coverture; and the alienation of the husband, during his life, is an immaterial circumstance, as to her right of dower. The very definition of dower, of course, embraces the whole right, whether in lands aliened, or in tiróse of which the husband died possessed.</p> <p>2. The acceptance of the provisions under the statute, by a widow, is a legal bar to her rights of dower; and such acceptance may be pleaded at law, as a defence to the demand of dower.</p> <p>3. Where a widow is found purchasing part of the real estate of her deceased husband, joining with the other heirs at law in the title deeds for otherportions of the land, and receiving part of the money for which the land was sold, these are such circumstances as go to shew her election and acceptance of the statutory provision of dower; and' where the question of election has been fairly submitted, (under the circumstances,) to the jury, and they have decided, the Court will not disturb their finding.</p>

<p>Tried before his Honor, Judge Butler, January Term, 1842, at Charleston, whose report of the facts are as folloios.</p> <p>This was an action upon a policy of insurance for $2,000, effected by the plaintiff, at the office of Mr. Alexander Robinson, agent for the defendants, on the 1st January, 1840, on “a stock of Groceries, Liquors and Wines, (fee., contained in the two story wooden building,” (fee. The premises were destroyed by fire, on the night of 27th April, 1840, and the next day the claim of the plaintiff was made, in which his whole loss was set down as $6,500, upon his stock in the store. In the policy of insurance is contained a special clause, guarding against a double policy; and the defendants objected to the plaintiff's recovery, upon the ground that this clause had been violated; and secondly, upon the ground, that the plaintiff had fired his own premises. It was admitted in the progress of the trial, that the second ground could not be maintained, so that the case turned entirely upon the first ground.</p> <p>It was proved, that in May, 1839, one Kohnke was the proprietor of the stock of groceries, (fee., in the same store, and that he sold them to Neve, the plaintiff, upon an agreement that Neve should pay him $1200 in cash, should confess judgment for the balance, and take out a policy of insurance, and assign the same to Kohnke. Neve therefore made an offer for insurance, at the Charleston Insurance and Trust Company, for $2,500 upon the stock, valued at $3,000, and upon tlie offer made a written entry that the policy was to be assigned to Kohnke. The policy was effected accordingly, and on the face of it was written by the agent of the Company, “ this policy may be assured to C. F. Kohnke.” Mr. Moise acted as the attorney of Kohnke, took the confession of judgment for him, and the policy of insurance was delivered to Kohnke’s agent, and never, at any time, had been in Neve’s possession, or was claimed by him. It was considered as assigned to Kohnke, and when produced at the trial, had an assignment endorsed thereon, written however, since the action was commenced. After the fire, Kohnke’s agent, Mr. Moise, made a claim for payment of this policy, which was refused, upon the grounds stated in my report of that case.</p> <p>Mr. Robinson, the agent of the Columbia Insurance Company, proved that Neve applied to him to effect insurance on the stock in November, 1839, that they could not agree, as to the rate of premium, and separated. In January, 1840, Neve again applied, and Robinson asked, if he had stood his own insurer, since they had before conversed. It appeared, that in the offer made in writing to Robinson, and which was in Robinson’s hand-writing, that the stock was originally set down as worth $6,000, which sum was, however, struck out, and without filling up again that column, $3,000 was set down in the next column, as the amount to be insured, and $2,000 in the column in which was placed the amount actually insured. Mr. Robinson stated, that he went round himself to inspect the stock, and considered it worth about $3,000; that he returned to his office, and that he remembers having-asked Neve, whether he had any other insurance upon the property; to which Neve answered in the negative.</p> <p>On the other hand, a witness for the plaintiff, (Mr. Rose) swore that he was present at the time, having gone with Neve at his request, and that Neve told Robinson of the insurance made for Kohnke’s benefit, at the Charleston Insurance and Trust Company. This evidence is in writing, and cannot be referred to.</p> <p>There was a contrariety of evidence, also, as to the value of the stock. Mr. Neufville, who dealt at Neve’s store, thought his stock worth $4,000. Mr. EstilFproved, that hearing that Neve wished to sell, he brought him a purchaser who wished to buy, and both parties being desirous of trading, he presumes that Neve fairly valued his stock, and that he asked for it $4,500. It was also proved by the production of various bills of parcels, that Neve had purchased from January to April, articles costing about $2200, exclusive of the original stock. The assessment too of the tax collector was produced, assessing the stock as worth $4,000.</p> <p>On the part of the defendants was produced Neve’s claim, swearing the stock to be worth $6,500, and the evidence of several witnesses, who merely testified in general as to the value of stocks, without seeming to know anything of this particular stock.</p> <p>I charged the jury on the different questions, made in the argument, as follows: The main questions upon which the case turned, were these; did Neve procure a double policy to be effected on the same stock of goods % And 2d, was the last, (the one on which the action is brought) obtained by misrepresentation and fraud 1 Whether the policy under-written by Robinson, was void or not, depended altogether on the character of the one effected in the Charleston office, and the legal rights of the parties under it. It purports to be an assurance on goods to which Neve had exclusively a legal title; Kohnke had no legal interest there at all, nor any special lien. His lien, by confession of judgment, was general, and even contingent, and I thought this was not an insurable interest, and was not embraced at all in the policy. Indeed, I thought Kohnke held the policy as collateral security only. My judgment on this point underwent some change in the argument of the case against the Charleston Company. The modification of my judgment will be seen by reference to my report in that case. This does not, in anywise, however, affect, the result of my decision on the case under consideration. For although Kohnke may have had some interest, it was limited and special, and did not deprive Neve from having a concurrent interest with him in part, and an exclusive interest as to the other part. This will be apparent from this view. Suppose no other policy had been effected, but the one in the Charleston Company. That would have been good against the Company for $2,000; and it would have been good for the benefit of ¡Sieve, enabling him to pay a debt of $1,000, and giving him, besides, for his own use, $1,000 more; it would have been worth to him $2,000. But concede that Kohnke had an interest by assignment in the policy; and he could not have it without an interest, no policy ever being good, without some interest to be protected; still Neve had an exclusive interest, to the amount of $1,000. That was his own insurance to that amount, in which Kohnke had no concern. Was not then the second policy a double insurance, on the same stock of goods 'l I think it was, and so charged the jury.</p> <p>The other question noticed, was one of fact, to wit: Was this second policy procured by misrepresentation and fraud 1 Mr. Robinson swore that it was, and gave satisfactory reasons why it was so obtained. • The evidence of the other witness (Rose,) would seem to conflict with Robinson’s statement. If notice of former insurance had been given to Robinson, it was his duty to have noted it in his policy, which was not done; and I am inclined to think that the omission is evidence that he never received such notice. Be that as it may, it was a question that was submitted to the jury.</p> <p>Another question was made, but which was also one of fact; that the two policies were on different stocks of goods. The stock insured is described in the same way in both policies. Though some things were sold and others bought, they had reference to the same general stock. The contract of insurance is one of indemnity, for such loss as the assured may suffer by the destruction of goods of a particular description, not for the loss of the particular cask of wine, (fee. which might be in the store at the time; and if it were not so, the assured would be generally the sufferer, for within a year he may have sold the specific articles that were in the store at the time the policy was taken.</p> <p>All the questions of fact were submitted to the jury under my views of the law, as above stated. The most important issue of fact was, whether Neve had not fired his own house; upon that issue, much evidence was given, which it is unnecessary to notice here. The jury found a verdict for the defendants, and the plaintiff appealed, on vario us grounds: all of which are resolved into the question, whether the same stock of goods have been twice assured or not.</p> <p>said, if Neve had a separable interest in the goods assured, from that assured by the Charleston Insurance Company, this policy may be good ; cited 1 J. Cas. 1. Such facts as may increase the risk.or premium must be communicated, otherwise not; 17th Wend. 631, is but a continuation of the case of 9 Wend. 19 Pick, 81. He had the right to insure all, although a part may be assigned and assured elsewhere. The policy to the Columbia Company covers a greater amount of goods, 18 Pick. 523. The assignee might recover all, although a part only was assured for his benefit, 2 Marsh, on Ins. 654. If the second policy were attached, a return of the premium ought to have been made.</p> <p>said, the action is upon the contract. The goods are his own, and insured in that policy alone. It declares the consequence of a double assurance ; the policy is to be void. No notice of such as- ' surance makes it void. The fact, that two actions have been brought for the same loss, on the two policies, shews that it is a double assurance. The plain tiff had the legal interest in the goods, when they were assured. He had an interest to pay his judgment to Kohnke and to retain the balance. By the verdict of the jury, he is concluded from examining now the second ground of defence, in relation to misapprehension and fraud. The first ground is irrelevant, because the real issue was, whether the same goods were twice assured; the 2d and 3d are also irrele-Arant. The Judge’s illustrative remarks are no grounds for a new trial.</p> <p>Memminger, in reply, said, what is a double assurance'? Cited 3 Kent Com. 280. Two insurances on the same risk and same interest, 4 Dali. 351, 12 Mass. 214, 1 Marsh. 146, 152. Kohnke clearly had an insurable interest, 1 Camp. 401, 5 B. and P. 299, 1 lb. 315, 3 Kent, 371. Was the Charleston insurance, an insurance of Kohnke 1 6 Cranch, 274, 12 Mass. 80. Phill. on Ins. 41, 64. A mortgagor may insure a ship and not disclose the mortgagee. It is not necessary to disclose the interest, 2 T. R. 188, 2 Cains 13, note, 2 Wash. 152. A party may divide his interest and insure as he can, Hughes, 91, 92. A broker may insure in his own name, and the parties may recover according to their respective interests. The law will make the parties to a double insurance, contribute rateably. Neve did not own the first insurance, when he was insured the second time. As to the assignment, cited 1 H. B. 239, 7 T. R. 347; contracts by specialty and by parol, 1 N. and M’C. 249 ; bonds may be assigned by parol, 19 J. R. 95; choses in action may be assigned by delivery.</p> <p>The policy cannot be assigned, except in equity. The assignment or delivery operates alike. The plaintiff never had the first assurance. Kohnke never could recover beyond his particular interest, 9 E. 702, Phill. on Ins. The assignee after acceptance, may bring the action in his own name, 8 Mass. Rep. 517, 20 Marsh. 800, 17 Wend. 631, rules that after assignment, the party may insure again, without notice of the first. The risk is not the same. There is a limitation in the Charleston policy, not in the Columbia. The conditions are construed strictly.</p>

Before Earle, J., at Charleston, May Term, 1841. Debt on bond \ pleas, non est factum, and non damnificatus. One Rhame had. brought an action of trover against these plaintiffs, for fourteen negroes, valued at $10,000; under the Act of 1827, he made the necessary affidavits, and the plaintiffs were required to give bond.

Before Richardson, J. at Gillisonville, Fall Term, 1841. This was an action of trespass to try title, discontinued by the plaintiff. The defendant moved that she be permitted to introduce her surveyor, appointed by the Court, and swear him to the fact, that he had platted the locus in quo ; and that the plat produced, represented it; and that the presiding Judge should then certify, that the plat was the one made by the defendant’s surveyor, under a rule of survey.

<p>Tried in the City Court, before J. Axon, Recorder, at Charleston, November Term, 1841.</p> <p>This was a process for a violation of a City Ordinance, prohibiting the having of spirituous liquors in a room adjacent to his shop. There was no question as to the fact of the liquor being there. The only question was, whether the defendant was owner of the shop. The following is the testimony.</p> <p>Isaac A. Rutland sworn, proved the liquor in shop, that defendant was in the charge and management of the store, that he went there as deputy sheriff to arrest defendant on civil process, he asked indulgence until he got some one to ■ put in charge of his shop.</p> <p>James A. Millar sworn, said he saw defendant at the door of this shop, on 16th January last, has seen him serving at the counter; a charge was made by witness as Marshall, against the owner of this store, for exposing goods on pavement; directed the notice of this charge to Mr. Heis-embrittle ; the brother of defendant came and paid the fine. Plaintiff’s testimony closed.</p> <p> Defence. </p> <p>M. II. Meyor sworn, said that Henry Heisembrittle was the owner of that store, (corner of Church and Chalmers streets,) last January; was at Henry Heisémbrittle’s store in Meeting street, about that time, when the owner of the house where the shop is kept, brought a lease of it to Henry Heisembrittle. Cross examined, has known defendant 2 years, witness has been here since 1835, knew Henry about the same time; Henry owned a shop in Meeting street, saw him there week before last, knows that Henry slept at his shop in Meeting street; has been there with him until 11 o’clock at night, and left him there as his home, dont know if he owns that shop now. When he first knew defendant, he was clerk on South-Bay; has seen defendant at the shop, corner of Church and Chal-mers streets, for about 12 montlis ; has seen Henry sometimes in Meeting street, and sometimes at the comer of Church and Chalmers streets.</p> <p>Henry Heisembrittle, sworn, said he owned the premises at the corner of Church and Chalmer streets, in January last; he paid the fine alluded to by Millar; has since sold the shop to Buhoinkle. Cross examined, he lives now in King street. Defendant is now clerk of Bulwinkle, at the same shop, he leased the House from Mr. Monzon; his brother, (defendant) was his clerk at that shop ; dont recollect how much he paid his brother; his brother owed him a great deal, settled with him when he sold the store, came to an account and paid him a balance ; his brother came here about 2 1-2 years ago; his brother was indebted to him for his passage out here, and for his board. Witness was here about 4 years before him ; on 18th January last, witness lived in Meeting street, at the corner of Light-wood’s Alley ; his brother managed the store at the corner of Church and Chalmers streets; witness owned that shop 3 or 4 months; had no other clerk there; did not set his brother up there.</p> <p>Charles Buhoinkle sworn, said he now owns the shop at the corner of Church and Chalmers streets ; defendant is his clerk; bought it from Henry Heisembrittle, for $550, paid the money to him in his shop in Meeting street; he pays defendant $9 per month for wages. The testimony here closed.</p> <p>The Court charged the jury, that the testimony of the city may be regarded as proving prima facie, that defendant was the owner; but it was submitted to them, whether the evidence of Henry Heisembrittle and Bulwinkle, did not rebut the presumption created by plaintiff’s testimony, and proved conclusively, that the defendant was not the owner, but the mere agent of his brother.</p> <p>If he was the owner, he was amenable to the penalty of the ordinance; if not, he was entitled to an acquittal.</p> <p>They found a verdict for the city; and the defendants appealed, on the annexed grounds.</p> <p>1. That the penalty inflicted by the Ordinance can only attach to the owner and keeper of a retail Grocery store, and the defendant in this case was proved by two unim-peached witnesses, to have been only the clerk and not the owner and keeper of the store in question.</p> <p>2. That the Council had no authority under the charter to pass the Ordinance in question.</p> <p>3. That the verdict was contrary to law and evidence.</p> <p>cited City Ordinance, 1 June, 1840. He then commented on. the testimony, said the verdict was contrary to evidence. A clerk cannot be held to be the keeper and owner of a shop.</p> <p>The Ordinance is against common right. Can the city authorities prohibit shop keepers from keeping liquor in their houses or on their premises %</p> <p>The recorder submitted the case very fairly for the defendant, and it being a question of fact alone for the jury, this Court will not interupt their finding.</p> <p>Mr. E. contended that this defence was a specious one, and but little reliance should be placed upon the evidence on the part of the defendant. Upon the 2nd ground he said, that the City Council had the right to pass the ordinance, and that it was constitutional. These shops are dangerous. Burglaries, arsons, (fee., are traced to these shops ; they are matters of record.</p> <p>This ordinance was produced from necessity. Without this, an illicit traffic with slaves would be carried on by those shop-keepers.</p> <p>Upon the powers of the City Council, under the City Charter, cited the City Charter, Stat. at Large, vol. 7, p. 8. 1 McM. 326, Kenedy vs. Bowden.</p>

<p>Before Butler, J. at Charleston, January Term, 1842, who reports the facts of the case as folíolos.</p> <p>This was an action of assumpsit, on a policy of insurance, made by the Charleston Insurance and Trust Company, dated the 13th day of May, 1839. The amount insured was two thousand dollars, and the property insured was described in the policy as “ stock groceries and liquors, contained in the two story wooden • house with shingle roof, situated at No. 31, State-street, and occupied by the assured in the grocery business, as described in the offer, No. 1983, filed in this office.” It was in evidence, that this store, which was a grocery and liquor store, had belonged to C. F. Kohnke ; that in May, 1839, (the precise day was not fixed in evidence,) Kohnke had sold out the stock to William Neve, for the sum of two thousand and two hundred dollars, and of this sum twelve hundred dollars were paid in cash, and to secure the balance, Neve confessed a judgment in favor of C. F. Kohnke, for one thousand dollars. The confession of judgment appears to have been entered up in the office of the clerk of the Court of Common Pleas, for Charleston district, the same day that the policy was executed. At the time of the execution of the policy by the defendant, permission was granted to Neve to assign the policy to C. F. Kolmke. A day or two after the date of the policy, Kohnke, being about to leave this country, placed the policy in the hands of John Klinck, who seems to have been his agent. There was no assignment of the policy, in writing, from Neve to Kohnke, at the time that it was delivered to Kohnke. The assignment which is now on the policy, was written subsequently to the commencement of the suit. The sale from Kohnke to Neve was an absolute sale, and Kohnke seems to have retained no interest in the stock, except through his confession of judgment. In November, 1840, Neve applied for insurance on the stock in the same store, to Alexander Robinson, agent for the Columbia Insurance Company. They could not agree as to the rate of premium, and no insurance was at that time effected. The first day of January, 1841, Neve again applied to Mr. Robinson for insurance. Mr. Robinson exhibited some surprise, and asked him if he had been his own underwriter, and asked him, also, if there was any other insurance on the property 'l Neve told Robinson that there was no other insurance on the property, and after an examination of the premises, Robinson, as the agent of the Columbia Company, insured the stock. The policy of the Columbia Insurance Company described the property insured as follows: “ A stock of groceries, liquors, wines, <fec., contained in the two story wooden building, with shingle roof, and in the cellar, No. 31, State-street, Charleston, occupied by him (William Neve) in the grocery business, and as a residence.”</p> <p>On the night of the 27th of April, 1840, the building and entire stock was consumed by fire, and on the 28th, the next day, Neve rendered in a statement to the defendants of his loss, amounting in the aggregate, to $6,500. A question was made in the case, as to the statement, and I have annexed a copy of it to this report. The same day on which Neve rendered his statement to the defendants, or soon after, Mr. Moise, who was the legal adviser of Kohnke, and in whose possession the policy had been placed by Mr. Klinck, the day after the fire, went to the office of the defendants, and gave to the President, Mr. Street, notice of the claim of Kohnke, and seemed to have inquired as to the intention of the Company, for Mr. Street informed him, that he would prefer to submit the matter to the board of directors, before he would give an answer. The next day, or soon after, Mr. Moise called again, and Mr. Street then informed him, that the Company declined paying the amount, because Neve had effected a second insurance, and because the directors believed that the premises had been fired by Neve, or some objection similar in substance, and manifesting that they supposed Neve had not acted fairly in the matter. Nothing further passed between the parties — and soon after, this action was commenced for the present plaintiff.</p> <p>At the trial of the case, the fire, and the destruction of the building and contents, were proved. The value of the stock was not a matter concerning which the witnesses agreed. The stock in the store was proved to have consisted of groceries, liquors, and some inferior or common dry goods, such as homespuns. And it seems that one side of the store was kept for these dry goods, but the value, as a portion of his stock, was not proved, except generally, that the goods were of a common kind.</p> <p>Mr. Estill thought the whole stock worth about $4,000, but his opinion was based upon the price that Neve had asked for the stock about six months before the fire, on some occasion when Estill introduced a friend of his to Neve, in consequence of learning from his friend, that he was desirous of engaging in that kind of business, and learning also from Neve, that he was desirous of selling out his interest in the stock, and changing his business. Except from this circumstance, and a cursory view of the store, when he was making his purchases, he professed to know nothing of the value of the stock. Mr. Burckmyer thought the stock was worth about $1,500. Mr. Rose, who was engaged to take an account of the stock at the time of the sale from Kohnke to Neve, proved that it was then put down at $2,200. Mr. Robinson thought the stock was not worth more than 2 or $3,000. Upon this proof the plaintiff rested his case.</p> <p>For the defendants, several objections 'were urged.</p> <p>1. That there had been no compliance with the 11th condition of the policy — that no certificate, as is required by the terms of that condition, had been proved to have been submitted to the defendants — that a strict compliance with this, was in the nature of a condition precedent, and without proving performance, there could be no cause of action.</p> <p>2. That the interest of Kohnke in this stock, was not an insurable interest, and if it was, it should have been so described in the policy, and so represented at the time of making the insurance.</p> <p>3. That there was no assignment of the policy. That mere delivery of the policy did not give the holder the right of an assignee, but only of a depositary, who had no higher right than the original assured.</p> <p>4. That the policy being void, so far as Neve was concerned, by the second insurance, which he had made without notice, it was void also in the hands of all parties who claimed through him.</p> <p>5. That there was sufficient evidence of fraud, to warrant the jury in rendering in a verdict for the defendants.</p> <p>In relation to the second insurance, the following provision appears in the policy, “ and if the said assured, or his assigns, shall hereafter make any other insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this Company, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no further effect.”</p> <p>The same grounds that were taken below to resist the recovery, are now taken on the appeal, and I will give the result of my judgment, rather than my reasons for it, on each one, in the order in which they are stated.</p> <p>1. 1 regarded a compliance on the part of the plaintiff, with the 11th condition in the policy, as a condition precedent ; and that the defendants had a right to require a certificate from a clergyman or justice of the quorum, stating that he believed the property insured had been destroyed accidentally or without criminal design by the plaintiff — no such certificate was produced on the trial. The certificate of one Jeffries was produced, who was not proved to be, nor was he, I believe, either a clergyman or justice of the quorum. From the fact that plaintiff was advertised by plea of the defendant, that such certificate was required, it might be inferred that he could not produce one; for I am inclined to think, that he would have ' regarded it as a sufficient compliance with the condition, if the proper certificate had been produced at the trial. Although this preliminary proof was necessary to subject the Insurance Company to liability, it was, nevertheless, in their power to waive it, and to rely exclusively on other grounds of defence ; and it was contended, on the part of the plaintiff, that such evidence had been waived, when the policy was presented for payment. This depended entirely upon what Mr. Street said to Mr. Moise— Mr. Moise seemed to have regarded it as a waiver, as the proof was not insisted on at the time, and it may have been so — when, however, the agent of the Company said, that his refusal to pay was founded on the belief that Neve had' fired his own house, as well as that he had effected a double insurance, it seemed to me (and I said so to the jury) it was not a waiver of any evidence that was requisite to satisfy the Company that the house was not burnt by design. As I observed by adjudicated cases, that this is always a question of fact to be submitted to a jury, I submitted this to the finding of the jury. What is or is not a waiver of preliminary proof, must depend on circumstances, and the language used at the time. In general, I think it is right that the Company should insist on the proof, at the time the policy is presented for payment after the loss.</p> <p>2. It was apparent that Kohnke had no legal interest in the property insured. His only interest was that of a general lien by his judgment, to the extent of $1,000. 1st, was this an insurable interest, and 2d, was it the interest which the Company had in view at the time the policy was underwritten! I am now inclined to think, as I thought on the trial of the case, (though I did not think so on the trial of another case with which this is connected,) that a lien by judgment may be made the subject of insurance — it is insurable, provided it be made known to the underwriters to be the subject of the policy. The great security which the underwriters have against the risks insured against, is, that the assured shall have an interest to preserve the property — hence, they will rarely insure beyond the interest of the assured. The underwriters consented in this case, that the policy might be assigned to Kohnke, and from that circumstance, they may have • been aware of Kohnke’s interest. I would infer, however, that they supposed the confession of judgment was for the whole amount of the goods sold. I said to the jury, that if they were satisfied that the Company knew what Kohnke’s interest was, they might regard the policy as covering it for his benefit.</p> <p>3. On this ground I had great doubt — the assignment was not written until after the risk had occurred, but the policy was put into Kohnke’s possession at the time it was executed. Indeed, it was said that Neve never had possession of the paper — was the delivery to Kohnke a good assignment 1 The policy being a chose in action, was not assignable, so as to give the transferee the right to sue on it; or to enforce any strict legal right in his own name. Assignment of such papers will give the assignee such equitable rights as will be respected in a court of law, and if the policy was sufficiently assigned, the Court ought to give to the assignee the profit of it, in the name of Neve, the original assignee, or the person in whose name the property was insured. For the purpose of having all the points in the case decided, I told the jury that an assignment of the policy by parol, should be regarded as sufficient.</p> <p>4. If the plaintiff was entitled to recover at all, what should be the measure of damages 1 The action was in Neve’s name, and was brought to recover $2,000 — and a recovery for that amount ought to have been had, if the policy were not affected by a subsequent double insurance. Neve did procure another'policy to be effected in the Columbia office, on a stock of goods of the same description as those described in the policy, and the finding of the jury establishes the fact, which was well warranted by the evidence, that the last policy was procured by fraud and misrepresentation, otherwise it would not have been underwritten by Robinson, the agent of the Columbia office. Where the assured have double policies, they have little interest to take care of the property insured, and might yield to a criminal temptation to destroy it. Was then, the making the second policy a double policy 1 This depends on the character of the first, and Neve’s interest in it. But for the last, the first would have been good for $2,000, to be divided between Neve and Kohnke. As far as Neve’s interest was concerned, I thought it forfeited by his fraud. Did this deprive him of the right of recovering for Kohnke the extent of his equitable interest'? — I thought not. The jury found against the defendants on all points in which Kohnke was concerned, and found for the plaintiff the amount of Kohnke’s interest in the policy, to wit, $1,000 with interest.</p> <p>Statement of the loss of William, Neve, on Us stock in trade, at the fvre on the With April, 1840, in the Charleston Inmrance and Trust Com/pamj, for $2,000, assigned to C. F. Kohnke — stare situated in State-street.</p> <p>Amount of stock in store, $6,500, which consisted of liquors, to wit:</p> <p>Wine and Brandy, $5,300</p> <p>Porter, Ale and Cider, ' 200</p> <p>Groceries, to wit:</p> <p>Sugar, Tea and Rice, &c. &c. 1,000</p> <p>$6,500</p> <p>There was nothing saved.</p> <p> Grounds of Appeal. </p> <p>1. That the condition in the policy, as to the mode and form of stating a loss, is a condition precedent, on the part of the assured, and that until the loss and claim is made as directed in the said condition, there is no cause or right of action against the insurer. That in this case, there was no sufficient proof of a waiver of the preliminary proof, or any part of it.</p> <p>2. That the party plaintiff, must prove an interest existing at the time of the making of the policy, and at the time of the loss. And that in this case there was no proof of interest at the time of making the insurance.</p> <p>3. That a policy on groceries and liquors, assigned to a judgment creditor, does not protect the judgment creditor in case of loss. Because a judgment is not an insurable interest, and because if it is, it is not covered by a policy on groceries and liquors, but ought to be described specially.</p> <p>4. That an assignment of a policy of insurance, to be valid, so as to entitle the assignee to a right of action against the assured, must be a perfect transfer of the right of the assignor, executed in as formal a manner as the instrument to be assigned.</p> <p>5. That the possession of a policy without assignment in writing, gives the party holding the policy, only the rights of a depositary, and makes him liable to all the defences against the original insurer.</p> <p>6. That the second insurance by Neve vitiated his. claim, and all parties claiming through him. That Kohnke, being a mere depositary, and claiming through Neve, is barred of all claim, from Neve having avoided the policy by a second insurance, without notice.</p> <p>7. That the facts of the case sufficiently made out a case of fraud, which is sufficient to avoid the policy of insurance.</p> <p>8. Because the verdict was in other respects against law.</p> <p>cited first, as to the question of preliminary proof, 6 T. R. 710, 2 H. B. 577, note, 1 H. B. 258, Hughes on Ins. 390, Ellis on Ins. 10. The conditions of the policy, Mr. Magrath contended, must be complied with, cited k6 Wend. 488, 2 Pet. 53, 7 Cow. 465, 12 Wend. 457, Phill. on Ins. 156 — 157. The conduct of the president of the company did not dispense with, the necessity of the preliminary proof; was there in the acts of the president any waiver 1</p> <p>2. Was there an insurable interest? cited 1 Phill. on Ins. 27, 4 B. P. C. 431, Ins. 18,.</p> <p>3. If there is an interest it must be set out fully and truly, cited 1 Phill. 64,4 Taun. 331,2 J. Gas. 353, 3 Burn. 1401.</p> <p>4th. & 5th. As to the assignment, cited Bac. Abr. Title Assignment, 2 Co. 566, the note J. Phill. on Ins. 11. The assignment must be a perfect transfer of the right of the assignor, executed in as formal a manner as the interest assigned. One in the possession of an interest delivered to him as a lien for his security, has a mere authority to receive in the name of the principal; and hence any defence against him is good, 10 Sarg. Rawl. 412; Harp. 334. He has a mere equity, and is of course liable to the same defences which the original insurer would have. The assignee is considered as the original insurer. 5 Pick. 81, 8 Wheat. 268.</p> <p>The 6th ground depended upon the previous assignment.</p> <p>said 1st. that the preliminary proof might be waived; and in support of this proposition, cited 6 H. & J. 408. The proof will not be required, when payment is demanded it is considered as waived, 2 J. 192.</p> <p>2nd. Ground, cited Phill. on Ins. 27. If there is a possibility of loss the party has an insurable interest, Phill. on Ins. 53, 1 Marsh, on Ins. 105, 2 lb. 789. Is it necessary to mention the interest 1 10 Pick. 40, 1 Caines, 276. Both of those cases decide that question in the negative.</p> <p>3rd. He contended that the policy was for the benefit of jKohnke, 9 Wend. 404. No act done by Neve could affect Kohnke, 1N & M’C. 449,5 Wheat: 277,2 Bay, 209; 9 E. 72; Park, on Ins. 280. A party having a partial interest may recover the whole amount assured,' 18 Pick..523.</p> <p>Moise, on same side, alluded to the attempt of the Insurance Company to get rid of their liability, on technical grounds, as being inconsistent with general principles. 1st. Is there any evidence that Jeffreys is not a Magistrate ora Clergyman 1 It is for the defendants to shew that he was not a Magistrate or Clergyman; cited 6 Cow. 404; Dud. 150; 7 Cow. 465. The proof-was waived by the president with the' consent of the directors; this was sufficient, 20 Pick. 389; waiver, or that proof was made, may be presumed ; 2 Wend. 64 ; the silence of the defendants is evidence of a waiver, 10 Pet. 540, 9 Wénd. 404. A mortgagor or mortgagee each may insure, and the mortgagee may insure in the name of the mortgagor, 1 Bay. 246. Interest insurable, Marsh. Ins. 91 91; any thing is insurable, 1 Pet. 163; 3 Kent. Com. 276; pecuniary loss is enough. The consent of the Insurance Company, and the possession by Kohnke, is evidence sufficient of the assignment to him, Harp. 156; payment to the holder, of a bond, endorsed in blank, discharges the obligor. The company made the policy negotiable, by their consent, 1 Hill 172; an assignee may fill up a blank assignment. 3 Coke. Rep. 26; 8 lb. 85; 1 Salk. 301; 1 Burr. 502, Shep. Touch. 58, 2 Tread. 770. A deed delivered for the use of another is sufficient.</p>

Before Earle, J., at Charleston, May Term, 1841. The defendants were jointly indicted for receiving stolen góods ; pleaded not guilty, and were tried together. The verdict was, guilty as to Boies, and not guilty, as to Stuke.

Before O’Neall, J., at Barnwell, Spring Term, 1841, who reports as follows: The negro slaves of the late Charles Milhouse, deceased, not specifically devised by his will, were, under the decree of… Held: as I did in the Administrators of Gray us, Cottrell, 1st Hill, 38, (which ruling met the approbation of the Court of Appeals,) that the reply in evidence and'argument depended on the question, who was the actor on the pleadings.

Before Richaldson, J., at Gillisonville, Fall Term, 1841; This was an action of trover to recover a negro, (Richard.) Ann Beck held a mortgage of Richard and several other negroes, from her brother, Josiah Beck. Col. Rice, sheriff of Colleton district, got possession of the mortgage ; and having also junior fi.fa’s. against Josiah Beck, sold Richard at public out-cry ; and the defendant, W. E. Martin, became the purchaser.

Tried before Mr. Justice Earle, at King's Tree, Fall Term1 1841, whose report of the case is as follows/ •i. This was an action on the case for a malicious prosecution. On the information of the defendant;:a warrant was issued by a magistrate for the arrest of : the plaintiff.

<p>By the fee bill of 1840, the ten times the excess, which the officer is made liable to forfeit to the party injured, is “to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed; or by rule, in the case of sheriffs, or by sum. pro. in the cases of Magistrates and Constables, where the penalty may not exceed $20.” By the fee bill of 1839, (of which that of 1840 is amendatory, so far as relate to .sheriffs,) the ten times the excess is to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed, or by rule, when the penalty may not exceed twenty dollars. Putting tírese two acts together — it was held, that the qualification in the Act of 1840, when the penalty may not exceed $20, as applying to the rule in the case of sheriffs, and to the sum. pro. in the case of Magistrates and Constables.</p>

Before Wardlaw, J. at Gillisonville, Fall Term, 1841. The circumstances that gave rise to this case, will be fully understood from the argument and the opinion of the Court, without any further detail. argued — in all cases, if the wife be joined in the action, her interest must be expressly stated in the declaration, and cannot be intended. 1 Chit. PI. 20; C. 20. Jac. 644. 2 Caines Rep. 221; 2 Black. 1236; 1 Bar. 75, 249.

Before Butler, J. Charleston, January Term, 1841— whose report of the facts of this case is as follows :— This was an action of trover for five negroes. Held: that by the deed of October, 1829, Redheimer had the legal title in him, and that it continued in him until the death of Charles Simons; or, to state the converse of the proposition — that the trust was not executed in Simons and wife, during their joint life, or in the survivor.

Before Richardson, J., at Newberry, Spring Term, 1831. This was an action of trover to recover certain negroes and other property which were sued for by the plaintiff, as trustee of Ann Barlow. Held: the non-suit is to be confirmed. Plaintiff appeals, on the grounds,' 1. That from the case made by the evidence, the legal title to the property sued for was in plaintiff as trustee, and not in Ann Barlow, as held by the Court below. 2.

<p>Where one died intestate, seized and possessed, in fee simple, of a house and lot in the city of Charleston, leaving surviving him, as his next of kin, a wife (the defendant, who is an alien,) and nephews, bom of alien sisters, and a brother, a native born subject of the United States, but ,who has resided in Prance for the last thirty years — in an action of trespass to try titles to the said freehold, between the nephews (sons of the alien sisters of the deceased,) and the wife, it was luM, that upon the death of the intestate, the freehold descended upon the brother of the Intestate; that he alone could take the estate under the statutes of South Caroliua.</p>

<p>The boohs of a tradesman or mechanic are admissible in evidence only to prove the performance and delivery of work done within the mechanic’s shop. Where the work is done outside of his shop, or on the premises of the party charged, such as building or repairing a house, or any other fixture, 'there can be no necessity for books, for the work is apparent and palpable.</p>

Before O’Neall, J., Beaufort District, Spring Term, 1841, whose report of the case is as follows: “ This was an action of assumpsit, brought on the following note : “ $700 — (seven hundred dollars.) On or before the first of I to to George M. Stoney, or order, the sum of seven hundred dollars, for value received. John M. Zealy.

Before Wardlaw, J., Beaufort, Extra Term, January, 1841. In this case the plaintiff suggested, as a breach of the official bond of William B. Buckner, late sheriff of Beaufort district, his exaction on certain executions in his office against the plaintiff, of illegal costs, to the amount of $-, and claimed to recover the penalty of ten times the excess, as allowed by the Act.

Before Wardlaw, J., Beaufort, January Term, 1842. This was a suggestion of breach on the official bond of William B. Buckner, late sheriff of Beaufort district, a judgment having been previously obtained therefor. The breach alleged was an exaction by the sheriff, from the plaintiff, under and by virtue of sundry executions in his office, of the sum of two hundred and fifty-six dollars and thirty-two cents, over and above the amounts due on the said executions.

Tried in the City Court, July Term, 1841, before his Honor the Recorder. This was an action of assumpsit on an implied warranty of soundness of a negro woman named Lucia, and the following is the testimony taken by the Recorder, on the trial of the case: “ Thomas Ryan sworn — Said he has - seen this woman; $350 is a large price for her, if she were sound.

Before Evans, J., Union, Spring Term, 1842. This was an action of trover, under the following circumstances. One William Runnells sued out a domestic attachment against the plaintiff and his father, William T. Foster, for a debt -under twenty dollars. The process was placed in the hands of the defendant, an acting constable of the district, who seized upon and took into his possession a mare, the subject of this action.

Before Evans, J., at York, Spring Term, 1842. Held: “ that after the decision in the case of McGlane vs. Maine, the Act of 1817 was passed to provide for the maintainance of persons confined in civil cases.

Before Richardson, J., at Abbeville, Spring Term, 1842. The facts of these cases are as follows’: The plaintiffs issued writs of foreign attachment in each of the above cases, against William R. Reid and Jane Reid. In their declarations they declared against William R. Reid alone, suggesting that Jane Reid was the wife of William R. Reid. To this there was filed a special demurrer, for variance between the writs and the declarations. Joinder in demurrer.

Before Evans, J., Greenville, Fall Term, 1841. Held: and charged the jury, “ that the simple contract of the partnership was extinguished by the sealed note of one of the partners.” From this decision the plaintiff appealed for a new trial, upon the ground of error in the direction of his Honor the presiding Judge, that the sealed note of one partner is an extinguishment of the simple…

Before Earle, J., Laurens, Spring Term., 1842. This was a rule upon the sheriff of Laurens, for not paying to the plaintiffs money arising from the sale of the defendant’s property under a junior execution. The exe-eution of these plaintiffs was lodged in Spartanburg, in December, 1828, and in June, 1829, was levied by the sheriff there, on two horses, as the property of the defendant. The plaintiffs directed the sheriff not to advertise until further orders.

Before Richardson, J., at Edgefield, Spring Term, 1842. This was an application to set aside the service of a writ. Motion granted, and service ordered to be set aside, upon affidavits of the absence of the defendant from the State until after return day.

Before O’Neall, J., Edgefield, January, Extra Term, 1842. This was an action of assumpsit on a note of hand. The defendant relied on the defence that it was given to compound a criminal prosecution. It appeared that the plaintiff had been badly beaten by a man named Yancev Freeman. The defendant, with others, was charged with being concerned in the affray. Indeed, the defendant was supposed to be the agitator of the whole affair.

<p>1. Every prisoner in execution is entitled to the prison bounds, on liis giving to die sheriff security to remain within' them, and to render a schedule on oath within forty 'days; provided, if he intends to take the benefit of tire insolvent debtor’s Act, passed in 1759, he or she has not been in actual confinement forty days.</p> <p>2. Whether the prisoner intends to taire the benefit of either of the said Acts, if he has the privilege of the bounds, he must, according to his bond, render a schedule on •oath.</p> <p>3. Where the prisoner renders in a schedule on oath, of his whole estate, he has the right to apply for a discharge, under either of the said Acts. If he applies for a discharge under the Act of 1788, he need file no petition, but the C^rle is required, within ten days after receipt of the schedule, to give notice that the prisoner will be discharged, and the schedule assigned, unless satisfactory cause to the contrary be shown before one or more of the Judges of the court from whence the process originates, or one of the Commissioners of special bail.</p> <p>4. It is the duty of the Clerk to give the notice, and it must be done within ten days after the filing of the schedule; but the notice must be given on the application of the prisoner. He must elect, and not the Clerk. The insolvent debtors Act requires the application to be made by petition; the other Acts require no petition.</p>

<p>Before Earle, J., Laurens, Spring Term,, 1842.</p> <p>This was an action of trespass on the case, arising out of the following state of facts:</p> <p>The defendant, living on the Enoree, has mills on the river, and owns the land on both sides. He has a ferry there for his own convenience, used as an appendage to the mills and plantation. Such a ferry has been kept there by those who have owned the property for thirty years. A road leads to the ferry and mills from the main market road, on both sides of the river, which was not established by public authority, and has never been considered a public road, nor worked on as such.</p> <p>On the 1st of June, 1840, the plaintiff’s wagon, with others in company, returning from Charleston, laden with goods, turned off the market road, on which the ferry was broken up by the freshet, to cross at the defendant’s.— "Whilst the plaintiff’s wagon was in the act of being driven into the flat, the chain which confined it to the bank was broken, and the flat forced out into the stream. The team and fore wheels had passed into the flat, and the chain broke as the hind wheels struck upon the end of the flat, and thus prevented them from entering, and left the hinder part of the wagon suspended in the water. The team were cut loose and two of the mules were drowned, and the plaintiff’s goods were damaged in the wagon, to the amount of $650.</p> <p>It was sought to make the defendant liable, on the ground of his being a common carrier. There was no proof that the plaintiff paid, or had agreed to pay, or was told he would have to pay. He relied on what was alleged to be the common use of the ferry for all who travelled that way, and the habit of the defendant to receive pay from those who passed. It was proved that three carriages and five .wagons were put over the river at this ferry the day before the plaintiff’s wagon, and that for each of them the defendant received pay, saying to one person “ the charge was fifty cents,” and to another, “ all ferries were allowed double price in high water.” Another witness proved that he had often crossed there, and always paid ferriage to some one, whoever put him over, once to the^ defendant himself, .and once to his son. On the other hand, it was proved that the ferry was a private ferry, used only for the convenience of the mills and plantation, that no ferry-man was kept there, that the miller, a negro with a wooden leg, put over such as desired, and accepted what was offered, which he kept; that lads who came to the mill frequently did the same thing, that no charge was made, but that strangers usually offered to pay, and it was usually accepted. Several persons testified that they were in the habit of crossing there, and were never charged, and never paid. It was proved that the plaintiff’s party, before they left the main road, were told that it was a private ferry, and not a public one. Several of the party did pay the defendant after crossing, to whom he said he made no charge, but who insisted on paying him for his trouble.</p> <p>The jury were instructed that the defendant was liable for the damage sustained by the plaintiff, if he undertook, for hire, to convey the wagon across the stream, although at his private ferry. There seems to be no exception to the charge, and it need not.be here fully stated.</p> <p>Another ground of action was, that the defendant was guilty of gross negligence. It was alleged that the chain was insufficient, and that even slight diligence was not used in preparing.the bank for the admission of wagons. To this it was replied, that many loaded wagons and carriages had passed the day before; and on that occasion, thát the first wagon that crossed was a much larger and heavier wagon than the plaintiff’s. And the charge was retorted, that the loss was owing to the want of skill and diligence on the part of the driver of the plaintiff’s wagon. It was a question of fact, and submitted to the jury, with such remarks as do not appear to be found fault with, and without' the intimation of any opinion on the part of the court.</p> <p>-Yerdict for the defendant.</p> <p>The plaintiff appeals for a new trial, on the grounds :</p> <p>1. Because the defendant’s ferry was a public one, established by more than thirty years’ use.</p> <p>2. Because all the witnesses on both sides, proved that strangers had always been charged at the defendant’s ferry, consequently he was liable as a common carrier.</p> <p>3. Because the defendant was guilty of gross negligence, and therefore the verdict should have been for the plaintiff.</p> <p>4. Because the verdict was against law and evidence.</p> <p>contended that the keeper of a ferry, unless he advertises that he does not intend to charge, is prima facie understood to be responsible for losses. Either the keeper of a public or private ferry is responsible if the party crosses with the belief that he has to pay, and that the owner is responsible. He contended that inasmuch as persons had crossed this ferry the day before the plaintiff did, and the defendant received pay from them, it was reasonable that they would be charged also, and this was sufficient evidence to charge the defendant. If the defendant ever charged before this crossing, he became a common carrier, and was, therefore, liable to the plaintiff. Cited 1 N. & McC., 17 ; 2 ib., 19. If a party takes persons or goods to carry, he is presumed to charge, unless he advertises to the contrary. Cited Law of Carriers, 10.</p> <p>said it was a jury case, and this court would not disturb their finding, unless for misdirection, which was not complained of.</p> <p>Is the defendant a common carrier 1 Cited Story on Bail., 322. Do the acts of defendant show that this was a public employment 1 Referred to 2 N. & McC., 21. Thirty years’ use of a ferry does not constitute it a public ferry. The plaintiff' was bound to enquire before he entered the flat whether this was a public ferry and the defendant responsible. The plaintiff did make the enquiry, and was informed that it was not a public ferry. Plaintiff was advertised; and he showed, by his own acts, that he did not expect to be charged. It was a private road leading to a private ferry. It was not chartered, and only kept for private use.</p>

Before O’Neall. J., at Edgefield, Extra Term, January, 1842. This was an action of assumpsit. Held: that inasmuch as the fund in dispute was on deposite in one of the banks of Augusta, Georgia, the plaintiff’s administration in South Carolina gave him no right to its administration; and this was more especially the case after the defendant had administered in Georgia.

Before Earle, J., Greenville, Spring Term, 1842. This was a special action on the case, for refusing to give a note of hand for certain hogs, which the plaintiff alleged were sold to the defendant, or delivered to David Henning on the credit of the defendant, and on his undertaking that he would sign a note with Henning for the amount, when the same should be presented, and which he afterwards refused to do when requested.

Before O’Neall, J., at Orangeburg, Spring Term, 1842. The prisoner was indicted for Grand Larceny in three several cases. In the first case tried, he was charged with stealing 26 bales of cotton, the property of Wm. Theus. The prisoner was a common carrier, owning a boat on the Santee. He undertook to deliver cotton to Wm. 0. Dukes, Charleston, at $1 50 per hale.

Before Richardson, J., at Edgefield, March Term, 1842. This was an indictment for trading with Isom, the slave of Jonathan Wever, deceased, but under the care of J. R. Wever, (son,) and Oliver Hearn, overseer, by buying two bushels of wheat, and selling half a pound of coffee and two pounds of sugar. The trading was proved, both by Wever and Hearn, who had purposely sent Isom with the wheat in a bag.

Before O’Neall, J., at Orangeburg, Spring Term, 1842. This was an action on the case, for negligence in so keeping the Rail Road, that thereby the locomotive and its af • tendant train, belonging to the defendants, ran over and killed a negro boy belonging to the plaintiff. The following are the facts of the case, as detailed on the trial below, and the points ruled by the court.

<p>1. Where an attorney, acting under a power of attorney, from the attorney of the principals, recites in the deed of release, the power from the principals to the attorney, or person from whom he derives his powers, and in the body of the said release says “by virtue of the authority vested in me as aforesaid, and in the name and in behalf of the said Varnum, Fuller & Co.” (the principals,) “ and others, I accept the provisions in the said assignment, made in this behalf, and do further release and discharge, &c. Signed IT. Winslow, [n. s.] Attorney for C. P. M. J. Winslow, [seal] Agent for V. F. & Co.” It was held, that this execution was in compliance with the rule which requires a deed executed by an attorney to be sealed and delivered in the name of his principal.</p> <p>2. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, is equivalent to a discharge by operation of law, and the rights of all concerned are the same under one as well as the other.</p> <p>Note. — The Reporter is not in possession of the different exhibits containing the evidence and all the facts that were before the court; but he flatters himself that enough is furnished of the case to make it intelligible. He has given all that he received.</p>

<p>1. A sheriff cannot recover, (in an action of assumpsit) from a purchaser at sheriff’s sale, for property purchased, where the purchaser is the owner of the execution in his office entitled to a preference from the proceeds of sale, unless he can shew that a part of the money arising from the sales was applicable to the payment of his costs, and then only tire amount of his costs.</p> <p>2. When one being the owner of an execution, under which the sheriff sells, purchases property at the sheriff’s sales, upon an action of assumpsit against him by the sheriff for the amount of his bids, he cannot avail himself by way of discount of the amount of his execution in the sheriff’s office, altnough his execution is entitled to the preference in the sales.</p>

<p>Before Earle, J., at Laurens, Spring Term, 1842.</p> <p>This was a special action on the case, for causing an execution to be issued against the plaintiff, and his land and goods to be sold by the sheriff, upon a judgment which was afterwards set aside for irregularity; the suit having been prosecuted by the defendant for a demand which was wholly unfounded.</p> <p>The facts will fully appear by the report of the presiding Judge.</p> <p>“ The defendant was the administrator of an estate of which the plaintiff was one of the distributees. On making the plaintiff a payment, in 1831 or 1832, defendant took his receipt for the sum paid, with a stipulation annexed, that if, on final settlement, he should be found to have received more than his share, he would refund. In 1832, there was some settlement before the Ordinary, and the defendant alleged the plaintiff had received too much. At Fall Term, 1835, he brought his action on the accountable receipt; and at April Term, 1836, he obtained judgment, the plaintiff having entered no appearance, and made • no defence. The case was ordered to be referred to the clerk, and on his assessment, judgment was signed and execution issued, under which, in January, 1837, the plaintiff’s land, which he had previously sold for 400 dollars, was sold by the sheriff for 97 dollars; a wagon, worth 60 dollars, was sold for 51; and a horse and saddle, worth 60 dollars, were sold for 45 dollars. The person who had purchased the plaintiff’s land from him before, attended the sheriff’s sale, and became again the purchaser, at the sum above mentioned.</p> <p>“At April Term, 1839, the judgment was set aside, and the plaintiff obtained leave to appear and plead. Thereupon, issue was joined, and at November Term, 1839, there was a verdict for the defendant, now plaintiff. And at March Term, 1840, he brought this action.</p> <p>“ I overruled a motion for nonsuit, on the ground that the action should have been trespass, and not case, and sent the case to the jury, advising them to find for the plaintiff, the actual damage, at least, with as much more as in their judgment the motives and conduct of the defendant warranted. They found for the plaintiff over three hundred dollars, intended, I suppose, to cover the actual damage, with interest, cost, &c. There was no proof whether the purchaser of the land had or had not paid the amount of the purchase money to the plaintiff. If he had not, he was liable for it, and entitled only to the abatement of the sum paid to the sheriff, which was the actual damage on that head. I instructed the jury, that the execution was a protection to the sheriff, in the sale of the plaintiff’s property, without any opinion whether the sale was valid or not. Both parties appeal, on the grounds annexed.”</p> <p>The defendant appealed and moved in arrest of judgment, for a nonsuit and a' new trial, on the following grounds, viz.</p> <p> In arrest of judgment. </p> <p>1st. Because the declaration does not allege the scienter against the defendant.</p> <p>2d. Because the declaration does not charge that the acts complained of against defendant were done wilfully, maliciously, and well knowing that the same were unlawful and void, which is necessary in this form of action.</p> <p> For a nonsuit. </p> <p>Because the action should have been trespass, and no;t case, as the judgment under which the property was sold, was null and void, ab initio.</p> <p> For a neto trial. </p> <p>1st. Because the court charged the jury that the sale of the land and other property under execution of the defendant, against the plaintiff, referred to in the plaintiff’s declaration, was legal, and vested a right in the purchaser.</p> <p>2d. Because the defendant was not liable in this form of action, for the illegal acts of his counsel and other officers of court, unless he acted with knowledge. The court held, that he was liable for the acts of his counsel.</p> <p>3d. Because the verdict is contrary to law and evidence.</p> <p> Plaintiff’s Ground of Appeal. </p> <p>That his Honor, the presiding Judge, erred in charging that the plaintiff had not sustained actual damages, on account of the land, above the sum for which it sold by the sheriff, when it was worth much more.</p> <p>cited, on the grounds in arrest of judgment, 1 Chitty on Plead. 320, Sec. 4. There must be a scienter. The declaration must contain an allegation that the act complained of was done maliciously. Referred here to 2 Wilson, 302, 307; 1 Chitty Plead. 133, letter U; lb. 388, letter T. It must be alleged that the party knew the court had no jurisdiction. 2 Leigh N. Prius, 1402, 1404; 2 Chitty Plead. 242.</p> <p>On the ground for nonsuit, cited 6 J. L. Diet. 363, letter D; 1 Brev. 120, sec. 22; 1 Cowan, 711, 734; 1 Chitty Plead. 132, letter S ; 3 Starkie, titl. Trespass; 1 Bail. 441, McHugh vs. Pundt; Harp. L. Rep. 427, McCool vs. McClu■ ney; Rembert vs. Kelly, lb. 65.</p> <p>relied on 7 Wend. 301; 1 N. & McC. 408; lb. 224 ; 8 Johns. Rep.-; Bacon Abr.-; 5 B. & P. 446 ; Day’s Ev. in note.</p>

<p>1. A party proving the declarations of another party, concerning a trespass which had been committed, has the right to prove and give in evidence all the expressions that were used in tire conversation relative- to the trespass at the time, as well on account of their being a part of the same conversation, as also, to shew to the jury the spirit and feelings with which they were spoken.</p> <p>2. It is the right, and also the duty, of a Judge, to comment on all the evidence of a case to the jury, and in cases of complicated facts, to give to the jury the aid of his experience, discrimination, and judgment upon the evidence, as well as the law, so that he finally leaves the ultimate decision of all the facts to their judgment. This is the practice of all Common Law Courts, and such is the well settled practice in South Carolina.</p>

<p>1. "Where the plaintiff, being tenant for life, and the remainderman during his life time, «ntered into the following written agreement, “ that the said C. H. do agree to let E. H. build on the land willed to him by his father, at the death of the said C. H., the said C. H. do also agree that E. H. may open and malte all the improvements on said land that he thinksproper. The said E. H. do agree not to interrupt any thing that belongs to the said C. H. in person or property. If the saidE. H. should interrupt or suffer any ofhis family to interrupt any thing belonging to the said C.H., the saidE. H. do agree to pay the full value in cash or forfeit all tire improvements on said land.” It was held, that the plaintiff had not, by this agreement, surrendered to the remainderman her freehold for life. That this paper conveyed nothing more than a tenancy at will, or a lease to terminate upon reasonable notice, or a privilege during his life and peaceable behaviour.</p> <p>2. The Court say, “ that in such anomalous agreements, we must look to the instrument itself for its own construction, as identical papers cannot be found already adjudged.”</p>

<p>Before Q’Neall, J., at Orangeburg, Spring Term, 1842.</p> <p>These were actions of trover brought by the plaintiff as trustee of a married woman, under a deed of trust executed by her before her marriage, by which he was directed to hold the property, slaves, to her separate use, and to permit her to have the services of the slaves. The slaves for which these actions were brought, were in possession of the cestuique trust and her husband. They were seized by the sheriff under execution against the husband, and sold, one to Poozer, for $7, and the other to Baxter, for $50. A conversion by them was shewn. They proved that Clarke, the trustee, said that he had hired, for the year 1841, the slaves to the husband of the cestuique trust. They were seized in January, and sold in February, 1841. The defendants contended that they were entitled to the possession for that time, and that plaintiff, who had brought his action before the end of the year, could not recover. The presiding Judge thought differently, and ruled “that the cestuique trust was, under the deed, entitled to the actual services and possession of the slaves; and the trustee had no right to hire them to the husband. If he did so hire, still he was entitled to recover them for the fulfilment of his trust.” The jury found for the plaintiff.</p> <p>The defendants appealed, on the annexed ground:</p> <p>Because the interest of Daniel H. Baxter in the negro slaves was the subject of levy and sale, and till the year expired, the plaintiff had no cause of action.</p> <p>cited, in support of the appeal, Dudley Rep. 38, Bell vs. Monahan et al.; Riley Law Gases, 24, Forgartie vs. Hubbell; 4 Dever N. C. Rep. 70.</p> <p>said that from the terms of the deed, the hiring by the trustee was illegal, as the cestuique trust was entitled to the possession of the property.</p>

<p>After a Bank has suspended specie payments, its charter (in contemplation of law,) is forfeited; but where, after its charter was thus forfeited, it continued to exist de fado, and exercised all the privileges and immunities previously granted by the Legislature', and the Legislature afterwards, by subsequent legislation, declared that the corporation shall exist — It was held to be a waiver by the State of previous forfeiture.</p> <p>Note. The pleadings ave given entire in this case, believing'that they will be acceptable- to the profession, as valuable precedents for future reference. — Rep.</p>

<p>Before Cvnkj.n, Ch. at Charleston, June, 1839.</p> <p>The following decree was pronounced by his Honor, and will-explain fully the facts of the case and the important questions involved.</p> <p>John Carmille died in July, 1833. After his decease a paper was propounded for probate, as his will. It was dated 17th July, 1832, and by it he gave all his estate to his slave Henrietta, and her children, directing his executors to emancipate them, if it could be legally done, and if it could not be done within fifteen years, to send them away, and set them at liberty in some country where it could be done. The paper was rejected, on the ground, that subsequent to the execution, Carmille had married, and -had issue. Letters of administration were granted to William Wightman, and upon his death, to Thomas F. Purse. It appeared, from the testimony, that on the 1st or 2d of March, 1830, Carmille was married to Margaret Arnott, with whom he lived for about ten months, when his wife died, leaving the complainant surviving her, the issue of the marriage.</p> <p>Not including the slaves, hereinafter to be mentioned, the personal estate of the intestate Consisted of some articles of household furniture, &c., and an outstanding debt; amounting, altogether, to between six and seven hundred dollars. The debts due by the estate amounted to about $1000. He left also a house •and lot on Meeting street road, and 111 acres of land in Goose Creek. In addition to this property, the intestate, at the time of his death, was in possession of the slave Henrietta, and her children, (four mulattoes,) Charlotte, Francis, Nancer, and John, and Elizabeth, the child of Nancy, and also of Phillis, or Tilly, and Mary. On the death of the intestate these slaves went into the possession of the defendants, George Pringle and Philip Char-trand, and are held by them under deeds from John Carmille. The object of this bill is to set aside those deeds, and subject the slaves, in the first place, to the payment of the debts of the in.testate, and to have the surplus paid or delivered to the complainant, as. next of kin. The first deed bears date the 26th February, 1830, and for a nominal consideration, assigns to the defendants, Pringle and Chartrand, “the said negroes, Henrietta, Charlotte, Francis, Nancy, and John,” on the special trust, confidence and condition, that they will, from time to time, and at all times, hereafter, permit and suffer the negroes above named, or any or all of them, and also the future issue and increase of the females, to seek out and procure employment, and to work out for their own maintenance and support; and further, in trust, to allow them, the said negroes, &c., to receive and take, for their sole use and benefit, all such moneys as they might obtain for their labor, or otherwise, “ after paying to the trustees the sum of one dollar per annum, and no more.” The second deed bears date on the same day with the former deed, refers to it, and purports to convey to the same trustees the slaves Tilly and Mary, in trust, to apply their labor to the use of Henrietta, and her children, until her youngest child shall come to the age of twenty-one years, and then to sell the slaves Tilly and Mary, and divide the proceeds between Plenrietta and her children, share and share alike. These deeds were not proved, or recorded, until 22d July, 1833, after the déath of Carmille.</p> <p>It appears to the Court too clear to admit of argument, that the bill of sale of Henrietta and her children, is an undisguised attempt to evade the law of this State, forbidding emancipation, “ a law, which,” as was said in Fable and Brown, “ however harsh it may appear to those who have no opportunity of forming a judgment on the subject, is founded on principles of true humanity, as well as just policy.” The trusts created by this deed, cannot be carried into execution without effectually violating the policy, and defeating the objects of the law. The trusts must, therefore, «fail. The consequence is succinctly as declared by Lord Eldon, in Morice vs. the Bishop of Durham, 10 Yes. 535, “ If the testator meant to create a trust, and not to make an absolute gift, but the trust is ineffectually created, is not expressed at all, or fails, the next of kin take.” . The object of the second deed was merely to carry into effect and complete the purposes of the former deed, and must fall with it. 2 Story Eq. 44, 3. The slaves Tilly and Mary, are to be held in trust for Henrietta and children, who are also slaves. “ The title is not changed, but the title and possession must be referred to the Master.” Fable vs. Broion, 2 Hill’s C. R. 397.</p> <p>It is ordered and decreed, that the negroes mentioned in the pleadings, be delivered up by the defendants, George Pringle and Philip Chartrand, for the purpose of being administered as part of the estate of John Carmille, deceased; that the accounts of William Wightman, deceased, the former administrator, and of Thomas F. Purse, the administrator de bonis non, of John Car-mille, deceased, be referred to the commissioner of this court, to report thereon. Parties to be at liberty to 'apply for such further orders as may be necessary for the final settlement of the estate.</p> <p>The defendants appeal in this case, on the grounds:—</p> <p>1. Because the remedy is at law, and the bill ought to have been dsimissed.</p> <p>2. The right of action is in the administrator, and not in the heir.</p> <p>3. The deeds to defendants were valid, and if the trust failed, the conveyance became absolute.</p> <p>4. If the title was defective under the deed, the defect was cured by the lapse of time.</p> <p>5. That under the case of Frazer vs. Frazer, 2 Hill’s C. R. 313, the defendants have a right to send the negroes out of the State, for the purposes of emancipation.</p> <p>6. That the decree is erroneous, and ought to be rectified.</p> <p>The first deed bears date the 26th Feb., 1830. By the premises it bargains, sells and delivers to Pringle and Chartrand, Henrietta and her four children. To have and to hold the said negroes with their issue unto the said Prin-gle and Chartrand, and the survivor of them, and the executors, administrators and assigns of such survivor, forever. Then follows, in the “ terms of stipulation” a condition, which, in the language of the Chancellor, we will admit to be an undisguised attempt to evade the law.</p> <p>The second deed bears date on the same day, between the same parties, and in like manner bargains, sells and delivers to the said Pringle and Chartrand, two negro slaves, Phillis and Mary. To have and to hold the said negroes, with their issue, unto the said Pringle and Chartrand, and the survivor of them, and the executors, administrators and assigns of such survivor, forever. Then follows, in the “ terms of stipulation” a condition, that the wages of said slaves shall be applied to the use and benefit of the said Henrietta and children.</p> <p>The case then is simply this. By the premises of the deed the bargain and sale is made in positive and distinct terms. By the habendum the estate created is absolute in the grantees, viz. “ to them and the survivors of them, and the executors, administrators and assigns of such survivor, forever. To these premises and to the habendum, which are perfect and complete, the grantor has chosen in the “ terms of stipulation” to embody a condition, which (for the sake of argument) he knew could not be performed without violating the existing law.</p> <p>The condition is subsequent, not precedent. By the execution of the deeds, the estate became immediately vested.</p> <p>The words of the deeds in the “ terms of stipulation” are — • “ In trust nevertheless to, for and upon the special use, trust, confidence, and condition.” Of the terms here used, the word condition is the one of most extensive signification, and comes last.</p> <p>The rule is, that whenever a word of limited signification is used last in a sentence, and a word of extensive signification first, the last controls and restricts the first. But where the word of most extensive signification comes last, it enlarges all preceding and more limited words, and in fact merges them all in itself. By this, which I take to be the true rule both in law and criticism, we must read the clause as if it contained no other word than the word condition.</p> <p>To the facts above stated, it is only necessary to add that under the issue ordered by the Court of Errors at Feb. Term, 1840, the jury by their verdict established the due execution and delivery of the deeds.</p> <p>Out of these facts arises the question, what is the law 'l</p> <p>By the civil law the complainant would stand no chance. But what says Lord Coke, the oracle of the law, and indeed every other judge or elementary writer in England or America, from his time to the present day. “ That where the condition is illegal, the' condition is void and the estate is good.”</p> <p>“ Conditions against law are void,” 1 Just. 206, 20. “ Conditions repugnant to the estate, impossible, <fcc. are void, and if they go before the estate, the estate and condition are void; if to follow it, the estate is absolute, and the condition void. 1 Just. 206, 9. Rep. 128.”</p> <p>The reason why a condition contrary to law is void, and the deed good, is simply, that there had been no violation of law in the execution of the deed, and could be none until the performance of the condition was attempted or accomplished; for this reason the law merely relieves the party from the performance of the condition, and leaves the deed itself absolute in its original terms. The law can only, and seeks only to avoid that part of a deed, which being either mala in se, or mala prohibita, interferes with it's enactments. That portion of the deed being void, or mere surplusage, leaves the rest, or legal part, of course, in full force and virtue. Even the Act of 1820, expressly enacted with a view to this special matter, does not pretend to impair the validity of the deed, but merely prohibits a particular act.</p> <p>In Ingraham and Porter, 4 McC. 200, the court say, where the habendum of a deed is wholly inconsistent with and repugnant to the premises, so that they cannot stand together, the habendum must he considered as void, and if the premises pass any thing the grantee shall hold.</p> <p>Now in the deed executed by Carmille, as in the one in the case of Ingraham and Porter, executed by Daniel Porter, the property is given absolutely and in presentí. In Porter’s case the habendum, was - inconsistent with the premises, and the court therefore declared that it could not take effect. But in the case now before the court, the habendum is consistent with the premises, and they are both perfect and complete; the estate conveyed there does take effect, by vesting in Pringle and Char-trand a present interest, and an absolute estate; and that estate untrammelled and uncontrolled by any illegal condition, inserted in the terms of stipulation.</p> <p>The formal parts of a deed are, 1. the premises. 2. The habendum, which determines what estate or interest is granted. 3. The terms of stipulation, which prescribe the conditions or terms upon which a grant is made. 4. Warranty. 5. Covenants. 6. Conclusion.</p> <p>The first part of a deed has priority in law as well as in fact. 3 Dyer, 272; 14 Viner, 51, 56, 100, 141, 145.</p> <p>Judge Huger, in delivering the opinion of the Court of Appeals, Harp. L. R. 493 — 4, uses the following language,— il Where the premises of a deed are not complete and perfect, resort must be had to the habendum to ascertain the intention of the parties. It may then limit or extend or frustrate the premises. But when the premises are complete and perfect, and the habendum is at variance with them, and they cannot stand together, the habendum is void,” not the deed.</p> <p>When Carmille executed the depd, he knew the law. I dont mean merely the common presumption, that he, like every other man, knew the law, but his will shews that he was fully aware of the Act. of 1820, and his counsel who drew the deeds, advised him of their effect. He knew then that the deed he executed was a deed of gift, conveying and intended to convey an absolute and indefeasible estate to the grantees. By the deeds then, and under our own decisions, as I shall presently shew, Carmille divested himself, his heirs and assigns, of all interest and estate which he held in the property, and passed to the grantees an interest in 'presenti, which might have been levied upon and sold by the sheriff, for the debts of Pringle or Chartrand, or which, under certain circumstances, might have been attached by their creditors.</p> <p>Carmille left property, besides these negroes, amply sufficient to pay his debts. His creditors are not claiming.</p> <p>• But suppose the creditors of Pringle and Chartrand were before the court, under an issue made up to try the right of property, as between then; on the one part, and Carmille in his life. time, or his heir or legatee, after his death, on the other. Can there be a doubt as to what would be the instruction of the court to the jury, under the evidence as now adduced?</p> <p>Suppose Carmille in his life time, had brought an action of Trover against Pringle and Chartrandfor these negroes. Would not he have been estopped by the deeds 1 If he would have been, then all those claiming under him are so likewise. And allow me to ask the attention of this court to the opinion of the Court of Appeals, as delivered by Mr. Justice O’Neall, in the case of Cline and Caldwell, 1 Hill, 425, 6, in which opinion the present Judges, David JohNson and Wivi. Harper, concurred; and under the law as there laid down, how is there any possibility of this court coming to the' conclusion that the present claimant can recover. What says the court in that case at p. 425. — “That the deed from Jos. Caldwell to Cato Goldman was good as against the grantor, and all those claiming as volunteers under him, even if it had been intended as an evasion of the Act of 1820.”</p> <p>Again, at p. 425. — -“ The defendant, his principal and the intestate, are all in the place of Caldwell, and take no other or better title than he had himself; after he had conveyed to Cato Gallman, he had none, and they of course have none.” Just so here the complainant can take no other or better title than Carmille himself had, after he had conveyed to Pringle and Chartrand, the defendants. He had none, and she of course has none. How then, I would most respecifully submit, can her claim to this property, in which it is decided she has no title, be sustained?</p> <p>It is said, however, that to sustain the deed is contrary to the policy of the country, and at war with our peculiar institutions. With this the court has nothing to do. The province of the Bench is to declare what the law is; not what it ought to be. But I deny the position as to the policy of the measure. What is the court asked to do ? What is the question before the court ? Is it whether these negroes are bond or free ? No. It is simply whether they are the slaves of the plaintiff, or the defendants, This is the only issue made by the pleadings and by the evidence, and can the court travel beyond these, and base their decision on what may or may not be presumed to be the intention of the parties, after the judgment of the court is pronounced? Besides, if presumptions are to have any weight, I would aslt of the parties before the court, which is it most likely would be most willing to carry out this attempt to evade the law \ viz. whether the defendants, perfect strangers to the negroes and to Carmille, would be most anxious to fly in the face of the law of the land, or whether the complainant would be willing to hold in the bonds of servitude, and bind with the chains of slavery, two brothers and sisters of the half blood. So much for the morale and policy of the case, with which however we have nothing to do.</p> <p>Take the case of A, the owner of a menagerie of great value, ■composed of animals ferae et ferocissimce- naturae, and he was to execute a deed thereof to B, in the language of the premises and habendum of this deed, and in the terms of stipulation he was to ■insert words to the following effect, viz: “In trust, nevertheless, and to, for, and upon the special use, trust, confidence, and con•dition” that the grantee within ten days should turn the wild beasts ■out in the public square. The deed is signed, sealed, and delivered, and the grantee takes possession, and after the expiration of the ten days, he gives the grantor notice that he intends to keep the animals, and to exhibit them for his own benefit, and proceeds to do so. A then brings his action vs. B. The deeds are produced, and the court find B in possession of the deeds and of the property, (as in the present case.) What, I would ask, would be the judgment of the court ?</p> <p>The fact is, that in the deeds now before the court, the premises and habendum being “perfect and complete,” the terms of stipulation must be regarded merely as surplusage, being nothing but the expression of a wish or a direction, which the party at the time of making it, knew to be idle and useless. The deeds: therefore are valid to pass the estate, and the negroes are the-, slaves of the defendants. A gift, if you please; but where is the-law which says a man shall not give away his own property?’ and a gift, even in exclusion of the legal heirs; but shew me the* statute which prohibits a man, either by deed or will, from disinheriting all or any of his children ?</p> <p>The case of the Bishop of Durham in 10 V. is relied on, and is indeed the foundation of the complainant’s argument.</p> <p>Now I would respectfully submit that the decision in that case is no authority in this. It maybe very good law for Westminster Hall, but not for this country. In England, chancery makes and models men’s wills to suit their own notions of the law of the land, and the policy of the government, and vouchsafes to allow no trust but such as they can meddle with, and execute, or annul. The grand feature of our government, and the ruling principle of our jurisprudence, is, that the magistrate does not interfere with the private concerns of the individual.</p> <p>The reasons as connected with the policy of the government, not the people, which influence the judgment of the court at Westminster Hall, do not exist in this country. Our Chancery is not the Chancery of that Bench, and indeed English law has nothing to do with this case, and the less weight it has in this country, in this or any other case, the better. We have never departed from-the beaten path of British jurisprudence, but the effect has been to elevate the standard, and improve the condition of the law. What they gave us as a sealed book, we have made an open letter. The temple of justice here is dedicated, not to a king and a great landed aristocracy, but to the sovereign people.</p> <p>The law of the land here, is, that the owner of property has the right of parting with the possession, and either by deed or by will, of divesting himself, his heirs and assigns, of all title and estate therein. Where is the statute here, or even a decision of our courts, which gainsays this position ; and in England where .gifts in mortmain were against the policy of the government. But even there, did the court declare those gifts void, until the ■statute had said so 1</p> <p>In this State, where a man gives to another, for an object which is contrary to law, the Court of Appeals, in Cline and Caldwell, and Linaur and Johnson, have said, totidem verbis, the title has passed from him and his heirs forever. Where then is the descent to the heir or the title to the administrator %</p> <p>The court then, under the law, as shewn to be settled by their ■own decisions, cannot say the heir shall take, nor can they make a title for the administrator: They must then leave the property where they found it, in the hands of the grantee; he taking it, as both grantor and grantee knew, at the time of the execution of the deed, under a condition or trust, if you please, which being contrary to law is void, and the execution of which would subject him personally to the pains and penalties of the law, if any, in such case made and provided.</p> <p>The sole object of the present proceeding is to revert the title to the property in the administrator or the hdir, which by the cases above quoted it has been shewn was out of the ancestor at the time of his death. This clearly could not have been done for the ancestor, if he had asked it in his life time, and it therefore cannot be done for the heir after his death; it is beyond even the extraordinary powers of the Court of Chancery. And, if it could have been done for the ancestor, where would have been the reason or sense of the Act, which would have given property back to a man who had shewn himself, in the very act by which he divested himself of the title, viz., to use the language of the chancellor, by an undisguised attempt to evade the law, as utterly unworthy of the trust and responsibilities which the possession of property necessarily imposes?</p> <p>But again, the case of the Bishop of Durham is a case of a trust under a will; this is the case of a condition in a deed. The Bishop came into court with the property in his possession, as sole executor. It has been urged, that this is a trust, not a condition ; now although every condition is not a trust, yet every trust is a condition. But as I have said, this is the case of a will; so are the cases of Bostick and Walker, Fable and Brown, Hovey and Deas, Monks and Field, and Rhame and Dangerfield. But the cases of Linattr and Johnson, and Cline and Caldtoell, were cases of deeds, and the deeds were sustained.</p> <p>And again, the case of the Bishop of Durham dont apply, even admitting that its authority has been, as is too often the case, followed by American judges, merely because it is English law.</p> <p>The question which is made in this case, could not legitimately have arisen in that. In that case, as is stated in 9 Yes. p. 397, “ The Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally.” A case is only authority in reference to the issues made by the pleadings, and can be regarded as settling no other principles than such as are involved in those issues.</p> <p>And I almost feel warranted in saying, that if a case like that of the Bishop of Durham came up before American judges, for their consideration, and if it could receive, as it would deserve, a fair and candid deliberation, unbiassed by English law, and untrammelled by English decisions, that the judgment of an American court would be the reverse of the Lord Chancelfor’s Decree.</p> <p>Another aspect in which this case is to be viewed, is presented by that portion of the bill which prays that the deeds may be set aside, and one ground taken is, “ that the same are void and unavailing, so far as they dispose of more than one fourth part of the clear value of the estate of the said John Carmille, after payment of his debts, under and by virtue of the Act of assembly, entitled “ An Act to provide for the maintenance of illegitimate children, and for other purposes therein mentioned,”, inasmuch as the said deeds were made for the use and benefit of a woman, the said Henrietta, with whom Carmille lived in adultery, and for the use and benefit of his bastard children by her.” This ground, it seems to me, may be dismissed with a single remark. In the first place, at the time of the execution of the deeds, Carmille had neither wife or child; and secondly, Henrietta being a slave, his children by her are not bastards in the eye of the law; the A. A. then of ’95 does not apply.</p> <p>The next ground taken in the bill is, that, these deeds ought to be set aside, and the property ordered to be delivered up to the administrator for the benefit of the heir. First, because the deeds are voluntary and without consideration; and second, because they are on trust void in law.</p> <p>The Court of Equity does sometimes interfere on behalf of creditors, but it has seldom happened, if this is not the first time, that application has been made to the extraordinary powers of a Court of Chancery on behalf of a volunteer, claiming under the grantor, to set aside a voluntary conveyance.</p> <p>A voluntary transfer by deed of a chattel in trust is valid, as between the parties, without any consideration appearing. Brue vs: Winthrop. 1 John. C. R. 329.</p> <p>A voluntary deed of settlement fairly made, is always binding in equity upon the grantor, unless there is clear and decisive proof that he never parted, or intended to part with, the possession of the deed; and if he retains it, there must be other circumstances besides the mere fact of his retaining it, to shew that it was not intended to be absolute. Souverbye vs. Arden, 1 John. C. R. 240.</p> <p>In the case now before the court, the deeds and the property are both found in the possession of the grantee. Besides, the deeds which bargain, sell, and deliver this property to the grantees, bear date on the 26th Feby. 1830, on which day the verdict of the jury has established their due execution, and the bill in this case was not filed until the 16th of May, 1835, a period of more than five years.</p> <p>A voluntary conveyance or settlement, though retained by the grantor in his possession until his death, is good. 1 John. Ch. Rep. 329.</p> <p>There are many other cases which might be referred to, but it is useless to multiply authorities on this point.</p> <p>The Court of Equity here, like the English Chancery, has been known to interfere with people’s wills, but not with deeds, except in cases of fraud, mistake, or where there is great equity. Now this is clearly no case of mistake, nor can we discover any very great equity in the application which is made, on behalf of one child of Carmille, to obtain a decree declaring his four or five other children slaves, and ordering them to be sold.</p> <p>Is it then a case of fraud ? There is no fraud as to Carmille’s creditors, for there is no proof that he was in debt at the time he executed the deeds, nor does it appear that they were made with a view to future indebtedness. There could be no fraud as to the heir, for Carmille was not even married at the time.</p> <p>“ To invalidate a conveyance, the party must allege and prove it to be fraudulent,” as said by the court in the case of Jones and Briggs vs. Blalce and wife. 2 HilVs Ch. Rep. 629, at p. 636.</p> <p>In the case of Smith and Henry, 1 Hill, p. 16, the court declared the deeds void. But that was done on behalf of creditors, and for their benefit. Here the creditors are not parties, except incidentally, as represented by the administrator, who is one of the defendants, and even he is not claiming on their behalf, for it is manifest that the estate of the intestate, exclusive of these negroes, is amply sufficient for the payment of his debts ; at any rate, if there be a deficiency it ought to have been made to appear, but it is in fact not even alleged.</p> <p>The rule of the court always has been to support rather than destroy an instrument that has been fairly and solemnly executed, and. I would respectfully submit that the bill ought to be dismissed as to the defendants Pringle and Chartrand,</p> <p>1st. Because the complainant, as against them, having made out no case either of fraud, mistake, or great .equity, sufficient to impair the validity of the deeds, they must stand.</p> <p>2d. Because her claim is barred by the statute of limitations, more than five years having elapsed from the date of the deeds, viz., 26th Peby. 1830, to the filing of the bill on 10 May, 1835,</p> <p>3d. Because the complainant could take no other or better title than Carmille himself had, after he had conveyed to Prin-gle and Chartrand ; he, under the cases of Cline and Caldwell, and Linaur and Johnson, had no title, and she of course has none. She, therefore, having no interest, cannot sustain the bill.</p> <p>also said, 1st. The conveyance is absolute, it is a gift. Cited 9 Ves. 232 ; 9 ib. 403. Gift for a horse would not be a trust, Dud. 220. What difference is there between a gift for a slave and for a horse 1 both are chattels, 10 Ves. 536; Co. Litt. 207 ; 2 B. C. 156; 7 ; Fonb. Equ. B. 1. c. 4 ; 2 Wilson, 341; 11 Mass. 374; 2 B. & All. 368.</p> <p>A party shall not avoid his own deed on account of his own fraud. 2 Ves. Jr. 116 ; 3 P. Wms. 236 ; 6 Ves. 747; 2d. ground, 7 Stat. at Large, 443 ; 2 ib. Act 1820, 139; Bin. Rep. 196 ; 1 Hill C. R. 134; 2 Hill C. R. 313; 3 Leigh, 492; 8 Crunch, 135 ; 5 Page, 114; 3 B. C. 271; 1 Strage, 447. A bequest to slaves is not void.</p> <p>Cited Lewer on Trusts, 175; 22 L. Lib. (Neto Series) 89. Is the trust void or unlawful ? Cited 2 P. Wms. 361; 1 Ves. 108 ; 3 Dou. 194; 1 S. <fi¡ S. 290 ; 2 Ves. & Beam. 294; 18 Ves. 463; 3 M. & R. 262; 1 E. 262; 1 ib. 508 ; 6 Ves. 52; 9 Ves. Morris vs. Bishop of Durham; B. Ab. Tit. Con. 399 ; 97 Law Lib. ; 10 Vos. 527. If he says, I give in trust, and it cannot be ascertained or executed, it is for the next of kin, 328. 1 Sch. & Lef. 22 Law Lib. 84; 2 At. 156 ; 6 Ves. 68. A bill filed for the discovery of an illegal trust, a demurrer will be sustained. 3 M. 399 ; 2 B. 209 ; 1 Vern. 59, decides that equity will not enforce an illegal trust. 1 Bailey, 632. There can be no emancipation until the negroes are turned loose.</p> <p>The Act of ’20 makes the deed void. 2 Hill C. R. 304; 1 Bailey, 632, it was supposed had decided this very question:</p> <p>The second deed, the first deed being bad, must be so too. 2 Devx. E. Cas. 440 ; 1 ib. 493 ; 1 Dev. L. Rep. 189 ; 2 Law Repository, 557 ; 2 Hawk. 120.</p> <p>The A. A. 1841, settles the question. It is retrospective in its operation. 1 Kent’s Com. 408-9, 455.</p> <p>said the law was not introspective, but prospective, and admits the law as it formerly was. The legislature have no right to pass such an Act, if it is regarded as retrospective.</p> <p>Mr. Hunt contended that the Act of ’20 was prospective by every word. 3 Me C. 93. All laws ought to be prospective. There is not one of the authorities of the cause on the other side that covers this case. In any point of view he contended the deeds were good. The Court of Equity does not decree for the distribution until administration.</p> <p>As long as the statute is unchanged, there is no illegality in the trust. Every resulting trust must arise eo instante with the execution of the deed.</p>

Before Earle J. at Barnwell, Fall Term, 1838. The action upon which this special verdict was predicated, was one to try titles to a tract of land — In order properly to understand the case, an abstract of the will of the testator Gal-phin is also subjoined. Special Verdict.

Before Evans, J. at Chesterfield, Fall Term, 1836. The facts of this case appear from the circuit report, which is as follows: This was an action of trespass to try title. The facts of the case, so far as is necessary to understand and decide the grounds made in the notice, were these. The plaintiff claimed the land under a grant to one Pittman, which, located according to its boundaries, cornered the locus in quo.

Before O’Neall, J. at Chester, Fall Term, 1836, Whose report of the case is as follows : This was an action of Trover for the recovery of the value of a negro man named Ben, sold by the sheriff of Chester, as the property of the plaintiff’s father, George De Millen, aud purchased by the defendant. The case, it seemed to me, depended upon the construction of the deed from De Millen, conveying the negro for the use of his daughter.

Tried before Earle, J. at Chester, Fall Term, 1837, Who reports the facts as follows: The prosecutor, James W. Key, on the 1st of Dec. 1836, lost, on the highway leading by the prisoner’s house, his pocket book, containing about six hundred dollars in bank bills. Searching for it the next day, he met the prisoner, and informed him he had lost his pocket book with some little money in it.

Before EvaNS, J. at Darlington, Fall Term, 1836. This was an action of assumpsit on four notes, and a due bill, viz: 1st. Note dated 6th May, 1812, for £115 4s. 8d, with a credit endorsed of $500 in January 1817 ; payable to plaintiff. 2d. Note dated 7th July, 1819, for $875 14, payable to Williamson & Prince. 3d. Due bill 20th January, 1819, for $2 10. 4th. Note dated 23d. January, 1821, for $436 32, with credits endorsed for $278 67, the last of which is 27th April, 1822.

Before O’Neall, J. at Edgefield, Spring Term, 1837. This was an action of Trover, to recover the value of a negro woman, Jinsey, and her two children. The right of the plaintiff to recover, depended upon a parol gift. The plaintiff was the youngest son of Lewis Moultrie, (deed.) who was the stepson of Ebenezer Hill, who had no children. It was proved that Mr. Hill was much attached to his stepson.

Before O’Neall, J., at Union, Fall Term, 1836. This was an action on the official bond of the defendant as Commissioner in Equity, for not taking bond from the complainant in Equity, in a bill for an injunction.

Before Gantt, J., Union, Fall Term, 1835. Judgments were obtained at law against Amelia A. S. O’ICief, as administratrix of Thomas O’Kief. Held: he was liable for the full amount of plaintiff’s debits against the estate of O’Kief. 2.