Volume 28 — South Carolina Law Reports

Before Earle, J. at Edgefield, Fall Term, 1842. This was a motion made on the part of the defendants, to set aside the service, and to quash the writs in the above stated cases.

Before Richardson, J. at Edgefield, Extra Term, July 1842. This was an action of assumpsit, brought to recover damages for the non-performance of a verbal'promise made by defendant to indemnify the plaintiff from loss, on account of his endorsement of a bill of exchange, drawn by Wiley Milton upon Wiley Milton & Co., of Savannah, Georgia, in favor of plaintiff or order, for two hundred and fifty dollars, dated October 29, 1839, and payable sixty days after date.

Before Q’Neall, J., at York, Fall Term, 1842. This was indictment against the defendants, for a riot, committed by them with a slave named Bob, (the property of William Youngblood, but who was in the employment of Jackson.) It appeared that the prosecutor, Brown, and the defendant had adverse claims to a piece of wood land, lying between their respective residences. Brown had cut some house logs, and, with his brother, was hewing some timber on the land in dispute.

Before Earle, J., Abbeville, Fall Term, 1842. The plaintiff sued as the assignee of a mercantile firm that had become bankrupt, under the late Act of Congress. After proof of the demand, the plaintiff offered in evidence a paper, purporting to be a copy of the order of the district court of the United States for South Carolina, appointing him the assignee, certified by H. Y. Gray, as clerk.

Before Earle, J. at Greenville, Spring Term, 1842. This was an action on the case, for obstructing the plaintiff’s right of way.

Before O’Neall, J., at Union, Fall Term, 1842. This was an action of debt on notes under seal, executed by M'Cullough and the defendant. Davis Caldwell was the agent of the plaintiff, who took the notes; his declarations while he had the notes in possession, were offered and received in evidence. Henry S. Rodgers proved that M‘Cullough was the original debtor. Caldwell, the agent, proposed to give time, if he (M'Cullough) would give security.

Before Evans, J. Special Court, at Union, September, 1842. This was an action on a note given for the purchase money of a tract of land. Barham Bobo, Jr. was one of the devisees of Barham Bobo, Sen. Barham Bobo, Jr. being dead, his share of the real estate was allotted to his wife, the plaintiff, and her infant child. The plaintiff sold the land to the defendant, and gave a bond to make titles in twelve months. The action was on a note given for the purchase money.

On the first trial of this case on circuit, the jury found for the defendant, under the charge of the presiding Judge. Upon an appeal, a new trial was granted, and upon the second trial on circuit, the verdict was for the plaintiff.

Before Earle, J., at Abbeville, Fall Term, 1842. The plaintiff is Ordinary of Abbeville district. He purchased, for the use of his office, a seal, screw and other apparatus for affixing it to papers, to the amount of fifteen dollars, and brought this suit before a magistrate, to recover back the money from the commissioners of public' buildings, as so much money paid for their use. He obtained judgment^ and the defendants appealed.

Before Richardson, J., Greenville, Fall Term, 1842. This was an action of assumpsit, brought by John Moore, assignee of David Henning, to recover the sum of one huhdred and eighty-three dollars and thirty-four cents, the rent of a store-house and lot in the village of Greenville, under the following circumstances: Turpin & Powers had rented of David Henning his store-house and lot, at $200 per annum. The lease was a verbal one.

Before O’Neall, J., at Greenville, Extra Term, August, 1842. This was an issue to try the validity of a judgment. The plaintiffs were judgment creditors of A. Patterson, who, previous to the recovery thereof, had confessed with James A. Patterson a judgment to the defendant for the sum of $10,000. When the judgment was confessed before Wm.

jBefore Earle, J. at Laurens, Spring Term, 1842. Assumpsit for money liad and received. The defendant held a judgment against John A. Farley, for 1303 dollars 90 cents, which he assigned to G. C. Dial, on 7th February, 1840, in writing, with a guarantee of payment. This judgment, the plaintiffs allege, was assigned to them in writing, on the 4th March, 1840. G. C. Dial privately removed from the State, about 1st December, 1840, carrying his property with him.

Before Evans, J., Darlington, Fall Term, 1842. The defendant was convicted, and now moved the Court of Appeals in arrest of judgment, on the following grounds: 1. Because the indictment does not charge that Hester Dowling, the mother of the bastard child, was a white woman. 2. That the indictment is, in other respects, informal and insufficient.

Before O’Neall, J., Union, Extra Term, 1842. This was an action of trover for a negro man named Sam. When this case was called for trial, Mr. Dawkins, the defend ant’s attorney, stated that he had been informed his client was sick at home; that, at a previous term, he had understood from him he had an important witness in Georgia to be examined, and that until examined, he was not ready for trial. No steps had, however, been taken to examine the witness.

Before N’Neall, J., York, Fall Term, 1842, This was an action of debt, on a judgment for $517 50, with interest from the 5th of November, 1820, and $17 38 costs. The judgment was signed 5th November, 1821, the writ was issued 30th September, 1839. The defence was payment. The defendant was indebted to John Robinson, this plaintiff, and others.

<p>Before Earle, J., at Edgefield, Fall Term, 1842.</p> <p>The prisoner was indicted for the murder of Mary Freeman, his wife, from whom he had béen separated more than a year; she lived in Edgefield, he in a neighboring county in Georgia. The prisoner, on being arraigned, informed the court that he would be ready for trial on a later day in the term. When brought up for trial, a motion was made on his behalf, to continue the cause until the next succeeding term, supported by an affidavit, which will be exhibited to the court with this report. The presiding Judge overruled the motion for continuance, and ordered the trial to proceed.</p> <p>On the day of the death of Mary Freeman, the prisoner passed the ferry on Savannah river, a few miles from the residence of the deceased; he was armed with a rifle, and said to the ferryman and another, that he was going after his child, which had been stolen from him, and he intended to have it, or would have blood. He crossed the river about noon, and was no more seen in the neighborhood; but was arrested some time after in the wilds of Baker county, Georgia.</p> <p>In the evening of the same day on which the prisoner crossed the ferry, several of the neighbors visited the house of the deceased. Those who first arrived, found her weltering in her own blood, within and across the threshold, mortally wounded by a rifle ball, which had passed entirely through the body. She died the next morning. When Mary Stone approached the bed on which she had been placed, and accosted her, the deceased threw her arms around the neck of her visitor and said, “Mr. Freeman has killed me." Mary Stone said, “I hope you will be better when the doctor comes." The deceased replied, “I shall never be any better in, this world.” She was then very feeble, and continued to grow weaker until she died. To Nicholas Cook, who saw her about the same time, she said, “I am dead, Mr. Freeman has killed me.” What the deceased said to these two persons, was admitted in evidence as her dying declarations. Admissions of the prisoner were likewise given in evidence against him. After his arrest in Georgia, he was asked by some one of the party, why he killed his wife % His reply was, “because I loved her.” The person rejoined, that’s a pretty tale; to which the prisoner made the further reply, “I killed her because she loved another better than me.” After his confinement in the jail, he made a further admission to a fellow prisoner, who talked with him about the death of his wife. The prisoner said, “he had killed her, but if it was to do again, he would not do it,” and seemed very sorry for what he had done. His Honor saw nothing in the circumstances under which these admissions were made to make them inadmissible, and the objections were overruled ; as were likewise the objections to the indictment. And the cause was committed to the jury, who in a few minutes returned a verdict of guilty.</p> <p>The State of South Carolina, ) T ■ . Edgefield District. )</p> <p>At a Court of Sessions, begun to be holden in and for the district of Edgefield, in the State of South Carolina, at Edgefield court house, in the district and State aforesaid, on the fourth Monday in March, in the year of our Lord one thousand eight hundred and thirty-eight, the jurors of and for the district of Edgefield aforesaid, in the State of South Carolina aforesaid, that is to say:</p> <p>Upon their oaths present, that Wiley Freeman, laborer, on the tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, with force and arms, at Edgefield court-house, in the district and State aforesaid, in and upon one Mary Freeman, in the peace of God and this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said Wiley Freeman, with a certain gun called a rifle gun, of the value of ten dollars, then and there charged with gun powder and two leaden bullets, which said gun he the said Wiley Freeman in both his hands then and there had and held, at and against ibe said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did shoot off and discharge, and that the said Wiley Freeman, with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said Mary Freeman, as aforesaid, did then and there feloniously, wilfully, and of his malice aforethought, strike, penetrate and wound the said Mary Freeman, in and upon the left side of the said Mary Freeman, below the left breast of her the said Mary Freeman, giving to her the said Mary Freeman, then and there with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said Mary Freeman, and by such striking, penetrating and wounding the said Mary Freeman, as aforesaid, one mortal wound in and upon the left side of the said Mary Freeman, below the left breast of the said Mary Freeman, of the depth of four inches, and of the width of one inch, of which said mortal wound the said Mary Freeman, on and from the said tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, until the eleventh day of April, in the year of our Lord one thousand eight hundred and thirty-seven, at Edgefield courthouse, in the district and State aforesaid, did languish, and languishing did live, on which said eleventh day of April last aforesaid, about the hour of five o’clock in the morning, she, the said Mary Freeman, at Edgefield court house, in the district and State aforesaid, of the mortal wound aforesaid died; and so the jurors aforesaid, upon their oaths do say, that the said Wiley Freeman, her, the said Mary Freeman, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid.</p> <p>And the jurors aforesaid, upon their oaths aforesaid, do further present, that Wiley Freeman, labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, with force and arms, at Edgefield courthouse, in the district and State aforesaid, in and upon Mary Freeman, in the peace of God and this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that he the said Wiley Freeman, with a certain gun of the value of. ten dollars, then and there being charged with gun powder and a leaden bullet, which gun last aforesaid, he, the said Wiley Freeman, labourer, then and there in both his hands had and held, at, against, and upon her the said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off, her the said Mary Freeman, in and upon the left side of the said Mary Freeman, a little below the left breast of the said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did strike and wound, giving to the said Mary Freeman, then and there, with the leaden bullet aforesaid, out of the said 'last mentioned gun aforesaid, discharge and shoot off, in and upon the said the left side of the said Mary Freeman, one other mortal wound, of the breadth of one inch and of the depth of seven inches, of which the said last mentioned mortal wound, thekaid Mary Freeman, on and from the said tenth day of April last aforesaid, in the year last aforesaid, until the eleventh day of April last aforesaid, in the year last aforesaid, at Edgefield courthouse aforesaid, did languish, and languishing did live, on which said eleventh day of April, in the year last aforesaid, about the hour of five o’clock in the morning, she the said Mary Freeman, at Edgefield court-house, in the district and State aforesaid, of the mortal wound aforesaid died; and so the jurors aforesaid, upon their oaths do say, that the said Wiley Freeman, her,thesaidMary Freeman, in manner and form last aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid.</p> <p>Caldwell, Solicitor.</p> <p>The State of South Carolina, ) Edgefield District. $</p> <p>I, George Pope, Clerk of the Court of General Sessions, for the district and State aforesaid, do hereby certify the foregoing to be a correct copy of an indictment against Wiley Freeman for murder, of which said Freeman was convicted at fall term, 1842, in the said court, at Edgefield court-house.</p> <p>Given under my hand, at Edgefield court-house, this 19th day of November, 1842.</p> <p>Geo. Pope, c. c. g. s.</p> <p>The State vs. Wilev Freeman.</p> <p>The defendant makes oath, that Newman Mathis, William Gooldsby, and Vincent Lockheart, are residents in Lincoln county, in Georgia, and are witnesses material to his defence; that about 4 o’clock, P. M. of the day on which Mary Freerpan was slain, the said witnesses saw this defendant in the county of Lincoln aforesaid, and at the distance of about fifteen miles from the spot where the said Mary was slain; that this defendant, when seen by said witnesses, was peaceably employed in a wood and blacksmith shop of his own ; and that the killing of said Mary, with which the said defendant stands charged, occurred, as this deponent is informed and believes, about sunset of the day aforesaid. This deponent further swears, that since his arrest, he has not had the pecuniary means' to employ legal counsel, and has therefore been without the benefit of their advice — that he is an ignorant man, utterly uninformed of the means given to him by the law, for securing the attendance of witnesses — that he has been in close and rigorous confinement since the last day of July last past — and that if now forced to trial, this defendant will be subjected to great disadvantage and perhaps irreparable injury.</p> <p>Wiley Freeman.</p> <p>Sworn to before me, the 22d October, 1842.</p> <p>Geo, Pope, c. c. p.</p> <p>The prisoner now moved the Court of Appeals to arrest the judgment against him, on the grounds:</p> <p>1. That neither of the counts of the indictment sets forth, with sufficient precision, the means by which the death of the deceased was effected.</p> <p>2. That neither of the counts alleges that the gun was shot off or discharged, or that the bullets or other dangerous contents were sent forth from the gun.</p> <p>Failing in this motion, the prisoner will move the Court of Appeals for a new trial, on the grounds above, and also on the grounds following:</p> <p>1. That the dying declarations of the deceased were admitted in evidence against the prisoner, without previous proof that the deceased, at the time of making these declarations, was in apprehension of death.'</p> <p>2. That the confessions of the prisoner while under arrest and in prison, were admitted in evidence against him.</p> <p>3. That there was no proof that the deceased came to her death by the means alleged in the indictment.</p> <p>4. That the presiding Judge erred in ruling the prisoner to trial under the circumstances of the case.</p> <p>cited Hawkins P. C. 2 B. 261; 2 Cow. Rep. 675; the second count does not conform to precedent. Steph. on Plead. 392; B. & A. Rep, 448 ; 3 Chit. C. L. for a precedent, 752.</p> <p>The term gun is too general, 2 M Cord’s Rep. 378.</p> <p>Clerical or grammatical errors which do not obscure the sense will not vitiate an indictment, 2 Hawkins P. C. 324. No intendment or implication of any thing material will be sufficient. The objection to the first count is, that the assault is alleged to have been committed with a gun called a rifle gun, whereas the assault was with the balls sent forth by shooting off the gun. 3 Chit. C. L., 374, 375. In Vaux’s case, 4 Reports, 44, the indictment was insufficient, because it was not expressly alleged that the said Bidley received and drank the said poison,” for the indictment was praed Nit. ncsciens praed. potrnn cum veneno fere intoxicatum, sedfidem adhibens diet, personam dicti W. recepit et bibit per quod” &c. for that it doth “not appear tohat thing he drank, for these words venenum praed, are wanting, and the subsequent words scilicet per quod praed, et immediate post receptionem veneni praed, Sc., which words imply receipt of poison, are not sufficient to maintain the indictment, for the matter of the indictment ought to be full, express, and certain, and should not be maintained by argument or implication, because the indictment is found by the oath of laymen.”</p> <p>There is no analogy between the indictments in Vaux’s and Freeman’s cases; The exception to the former was, that the words venenumpraed, (the poison aforesaid) were wanting; and the poison was not alleged to have been administered by the prisoner; nor that Ridley received and drank it, recepit et Mbit,” and there was nothing that could supply this defect, as it was material to allege that the poison was received and drunk, and inference could not be substituted for the statement of the fact. In the latter case, the indictment expressly charges that Freeman “did feloniously, <fec., strike, penetrate and wound the said M. F. in and upon the left side, <fec., giving to her, the said M. F;, then and there with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said M. F. and by such striking, penetrating and wounding the said M. F. as aforesaid, one mortal wound,” (fee. Here the mode and means of inflicting the injury are stated so as to exclude doubt, and to render the facts as definite and certain as words can express, and there is no need of implication to understand what is. meant. Neither common or statute law prescribes or requires any particular form of an indictment for murder, so that the offence be charged with sufficient certainty of time, place and circumstance, and it be alleged that it was done “feloniously, wilfully and of his malice aforethought.” Nor 'would a variance in the evidence as to the kind of gun, vitiate the verdict, or be sufficient ground to arrest the judgment. Thus this indictment would sustain a case of killing by a pistol, shot gun, or air gun, but not by hanging, starving, strangling or poisoning. See the cases in 1 East P. C. 341; 2 Hale P. C. 185; Roscoe’s Grim. Ev. 577. But if precedent be important, the form of this indictment is in conformity to the indictment in the Coalheaver’s case, 1st Leach Gr. Gases, 776; and is also sustained by a form in 3 Chit. C. L. 751, and is almost a literal copy of the indictment in the King vs. Lord Ferrers, 19 vol. Howell’s State Trials, 891. In a late case reported in 3 .British G. C. 257, The Queen vs. Brady and Cooney, the assault is alleged to have been committed “with a certain gun of the value of, (fee.”</p> <p>As to the sufficiency of the,averment that the killing was effected by means of discharging the bullets from the gun, see the case of The King vs. Taylor and Shaxo, 1 Leach C. C. 398.</p> <p>As to dying declarations, see Woodcock’s case, 1 lb. 500; Ros. Grim. Ev. 25, 26, 27; Confessions, lb. 29, 30, 31.</p>

Before O’Neall, J., at Greenville, Extra Term, August, 1842. This was an action of covenant on a deed, whereby the defendant conveyed and warranted a tract of land to the plaintiff, on the 18th November, 1814. The plaintiff afterwards conveyed the same land to George Washington Earle. After his death, Gen. Waddy Thompson, the son of the defendant, entered upon the land.

Before Earle, J., at Union, Spring Term,, 1832. This was an action of covenant on the warranty of title, in a bill of sale, to a negro girl named Molly, sold by Robert Duncan, the defendant’s testator, to the plaintiff. There had been a recovery against the plaintiff, for the value of the negro, in an action of trover, brought by Elizabeth Stewart, under paramount title ; and this was an action to recover over against the vendor. The bill of sale is dated the 22d April, 1819.

Before Earle, J., at Spartanburg, Fall Term, 1842. Assumpsit on the following note: “On or before the first day of October next, I promise to pay John More, or order, the sum of one hundred and fifty dollars, for value received. This note given for L. S. Com. for corn. June 8th, 1839.

Before Earle, J., at Anderson, Fall Term, 1842. At October term, 1841, a rule to shew cause was ordered at the instance of Connor, upon Archer, then sheriff of Anderson, “why he should not be attached, &c., in not collecting and paying over the money in a case of Connor, plaintiff, against Saxon Anderson.” On the return of the rule, the sheriff having failed to shew cause, and in the language of the order “having acknowledged that he has no cause to shew,” his honor Judge…

Before Butler, J. at Union, Spring Term, 1841. This case originally came before the Circuit Court on an appeal from a decree of the Ordinary of Union district, admitting to probate a paper purporting to be the will of William B. Farr. The jury reversed the decree of the Ordinary, and found a verdict setting aside the will. From this verdict an appeal was taken by the executor, and a new trial granted. See Cheves’s Rep. 48; also, for a full statement of the facts of the case.

<p>Before Earle, J., at Laurens, Spring Term, 1842.</p> <p>This was an issue made up for the purpose of setting aside a judgment, held by the defendant, against the plaintiffs, together with G. C. Dial, signed upon what purported to be the confession of these persons. The allegation of the plaintiffs on this issue, was, that they never signed, nor authorised the confession to be signed. '</p> <p>There was a judgment against the same three persons, on a note originally for $3074, on which Mr. Farrow, on Dial’s giving his note for the amount, with the same persons for his securities, furnished him with the means of making a large payment, which reduced the note to $1300, for which balance judgment was got by D. Gray don and wife.</p> <p>G. C. Dial accordingly delivered to Mr. Farrow a note, purporting to be signed by the same parties, for $1953 79, dated 4th September, 1838, due on the 3d February ensuing. On the 28th March, 1840, Mr. Farrow issued his writ, which was presented personally to the defendants, and by each the legal service was acknowledged, under a signature admitted to be genuine. At Spring term, 1840, the return of the writ, no appearance was entered by either of the defendants. Declaration filed 6th November, 1840, and ordered for judgment by default. On the 9th of November, the first day of the term, G. C. Dial delivered to Mr. Farrow a confession of judgment, purporting to be signed by himself and the other defendants, for the ostensible purpose of giving Mr. Farrow a preference, by enabling him to sign judgment immediately on the confession, as there were many other suits against him, in which judgment would be obtained that term. Judgment was accordingly signed on the confession immediately. A few weeks after, G. C. Dial absconded, carrying with him his negroes and some other property. Mary Dial and Wm. Henderson then came forward and denied that they had confessed judgment, or given any power to have it done for them. And in the suggestion filed, they assert that the signature to the confession, purporting to be their’s, is a forgery.</p> <p>To the confession of judgment there is the name of a subscribing witness, Wm. C. Gary, who was sworn, and deposed that it was not his signature — that he never heard of the proceeding, and of course could not have put his name, nor authorized it. He, and another witness, Harrison Dial, professing to be familiar with the hand writing of Mary Dial and Wm. Henderson, both deposed that the signatures to the confession were not the hand writing of those persons. There was no evidence offered that the signatures were genuine. Mary Dial is the step-mother of G. C. Dial, and Wm. Henderson, a brother-in-law. They resided near him, were intimate of course, and were supposed to be acquainted with his movements and intentions. The defendant relied on these circumstances, and the general complexion of the case, to convince the jury that if these (your) plaintiffs did not sign the confession, they knew of it, and authorized it to be done for them.</p> <p>It was in evidence that Mrs. Dial expressed great alarm about her liability to Farrow.</p> <p>After the defendant had closed his evidence, the plaintiffs’s counsel proposed to offer evidence that the signatures to the note -were not genuine. The court did not consider it admissible, as it was not in reply, and overruled it.</p> <p>His honor instructed the jury that the judgment was good, and the confession binding upon these parties, although they did not sign their names, if it was done for them with their knowledge and approbation, by some one expressly authorised for that purpose beforehand. And that such authority need not be in writing. Verdict for the defendant in the issue.</p> <p>The plaintiffs in this issue appeal for a new trial, on the grounds:</p> <p>1. That the evidence of William C. Gary, the subscribing witness to the confession, with other witnesses, was clear, explicit, and unimpeached, and established the fact, that the confession was fraudulent and a forgery.</p> <p>2. That the finding of the jury was contrary to the direct and uncontradicted evidence of the case, and the charge of the presiding Judge.</p> <p>3. Because the evidence offered by the plaintiffs in reply, to prove that the note on which the judgment purported to be confessed, was a forgery, was competent in reply, and should have been received.</p> <p>4. Because his Honor charged the jury, that a judgment confessed by an agent, constituted by parol, would be valid.</p> <p>contended that a new trial must be granted, because the evidence was all on one side, and cited 2 Baily, 396.</p> <p>It is not pretended that the defendants signed the confession. The party offered to prove the note to be a forgery, in reply to the proof that Mrs. Dial admitted the debt. There was no law to sustain the charge of the court, as stated in the fourth ground of appeal.</p> <p>Cited the Act of 1785, which declares all powers of attorney to confess judgment before suit brought, to be void.</p> <p>The facts are concluded by the verdict. The only issue was the bonajida of the judgment. Any act to be done may be authorized at common law by parol. 2 Kent Com. 612-13.</p> <p>The Act of 1785 has no application to this case. The confession is not the judgment. A parol authority to confess, is the same as the confession. The authority to attornies at law, is by parol. 2 Chitty’s General Practice, 19. An attorney’s confession is good, even without authority. 6 J. R. 296 and 299. A parol authority to confess judgment is good. 2 Keble,</p> <p>The proof contradicts the signature. The acceptance of the service might have been explained, by proof of the forgery of the note. According to the English practice, the warrant to confess must be under seal. But this does not apply here. An attorney at law may, by parol, confess; but a mere agent has no such power. 9 Wendell, 437; 1 lb. 311. One partner cannot acceptor confess for the other. 2 Caines, 254.</p> <p>Proof to shew that the note was a forgery, is outside of the issue. Any act to be done by parol, must be authorized by parol. 6 J. R. 296; 2 Kent. Com. 612-13. Confessions are by parol.</p> <p>An authority to bind by writing, not under seal, may be created verbally. Story on Agency, 48 ; Paley, 44. Mrs. Dial admitted G. C. Dial had made a payment of $1500.</p>

Before O’Neall, J, at Chester, Fall Term, 1842. This was an action of debt on a note, under seal. The defendant’s defence was, that the land sold to him was the inheritance of the plaintiff’s wives, and that they had not so conveyed as to bar the inheritance. The defendant had accepted a deed from the plaintiffs, conveying the land to him, and was in the possession. The presiding Judge thought his defence could not avail him. The jury found for the plaintiffs.

Before Richardson, J., at Abbeville, Spring Term, 1842. This was an action of debt on a single bill, executed by the defendant, payable to Absalom J. Hodges, for twelve hundred dollars, bearing date the 27th November, 1839. The plaintiff had, about the date of the single bill, bargained with the defendant to sell to him a tract of land, of which the defendant took possession, and executed, as security for the purchase-money, a single bill.

Before Earle, J., at Newberry, Fall Term, 1842. Assumpsit. The plaintiff declared upon several instruments of writing as promissory notes, under the statute of Anne.

Before Richardson, J., Laurens, Fall Term, 1842. This was a suit by summary process, brought by Elihu Poole, as bearer of a negotiable promissory note, made by the defendant, payable to W. J. M. Jones or bearer, for sixty dollars, dated the 10th of August, 1840, and due one day after date. The defence relied on was, that the note was given for a gaming consideration. To establish this defence, Jones, the payee of the note, was offered as a witness.

Before O’Neall, J., at York, Fall Term, 1842. This was an action on the case against the defendant, the former sheriff of York district. Held: and so charged, that the evidence on the part of the plaintiff did not in law make out an escape. cited Bacon’s Abridgment, Title Escape, (D.,) Public Laws, App. sec. 15 ; 2 Brevard Dig. 138, sec. 8. cited 3 Comyn’s Digest, 644, Title Escape; 2 Brevard’s Digest, 160, sec. 84.

Before O’Neall, J., at Union, Fall Term, 1842. This was an action of assumpsit for overseer’s wages. The plaintiff proved that he lived with defendant in 1839, as his overseer, and that he was to have $200 certain, and more, if his crop exceeded 40 loads of corn and 40 bags of cotton. He made a good crop, but how much did not appear. Tne defendant relied upon a discount. He gave in evidence, and proved, seven small notes of the plaintiff, making an aggregate beyond $200.

Before Earle, J., Newberry, Fall Term, 1842. This was an action of covenant on an agreement by which the plaintiff agreed to build the defendant a sawmill, complete, upon the best plan and of the best materials, and likewise to build the running-gear of a gristmill, of like good materials, the defendant to furnish the mill-rocks, and to have the whole finished by the first of November, 1839 ; for which the defendant agreed to pay a stipulated price.

Before Earle, J., Abbeville> Fall Tefm; 1842. This was an application for dower. The commissionsers, in their return to a writ for the admeasurement of dower, after assessing the value of the land at $8 per acre, and expressing also the number of acres, proceeded to assess a sum of money in lieu of dower, which exceeded, by $28 dollars, one-sixth part of the entire value of the land, according to their own estimate.

Before O’Neall, J, at Chester, Fall Term, 1842. In this case the clerk refused to tax the plaintiff’s costs, but the presiding Judge being of opinion that he was entitled to tax them, made an order to that effect. Erom this order the defendants appealed, on the following grounds: 1. Because the presiding Judge erred in deciding that the defendants should pay costs, as each verdict was only for $2,50. 2.

This was an application made before the Clerk of the Court of York district, as commissioner of special bail, for the benefit of the prison bounds Act. The commissioner reports that the defendant was arrested on a ca. sa. in the first of the above stated cases, on the 9th of February, 1842, and on the same day executed his bond for the prison bounds.

Before Evans, J., Kershaw, Fall Term, 1842. The prisoner was tried and found guilty of murder. The facts, as detailed by the witnesses, were as follows: On the 11 th of June last, the body of John Pitts was found lying within a small potato patch, near to the kitchen of Ford. None of the witnesses for the State saw it until some time after he was dead. It was lying rather across the potato beds, which had been nearly levelled by the digging of the potatoes.

Before O’Neall, J., at Union, Fall Term, 1842. This was an action of trespass to try title to a tract of land in the defendant’s possession. The land was sold at sheriff’s sale, under an execution of Gist, administrator of Dugan vs. John T. McJunkin, and purchased by the plaintiffs for $16, on the first Monday in September, 1837. The land at that time was in the possession of the defendant, Abram McJunkin.

<p>Where L for valuable consideration transferred to B an unnegotiable promissory note, without endorsement or other written assignment, B is authorized to sue the maker in the name of L, who, in case of failure to recover, is liable for the costs of the action; ■and L having paid the costs, cannot recover them back from B. Held that he would have been so liable whether the note was negotiable or not. Vide Myers vs. James, 2 Baily, 547; Beimet vs. McHall, 2 C. R., (Mill,) 198. (1.)</p> <p>(1.) See Horton vs. Blair, 2 Baily, 545; Ware vs. Key, 2 McCord, 373.</p>

Before O’Neall, J., Union, Fall Term, 1842. The presiding Judge reports the ease as follows : This was an action of detinue for a negro woman, Hala, and her children, Martha, George, Mary, Ben, Columbus,- and Victoria.

Before Butler, J., Greenville, Extra Court, August, 1841. This was a rule upon the coroner. It appeared that David Henning, who was sheriff of Greenville district, had entered in his office executions against himself, in favor of the plaintiffs and others, who also held executions against him. Others of his execution creditors subsequently made entries in the sheriff’s office of Anderson, and also in the coroner’s office of Greenville.

Before Earle, J., Union, Special Term, 1841. The following is his Honor’s report: Trover for two negroes, Jess and Mingo. The plaintiif claimed as purchaser of both negroes, from Isaac Harlan, and produced in evidence, bills of sale from him, first, of Jess, 29th January, 1828 ; second, of Mingo, 28th January, 1830. He likewise proved possession of the negroes under the bills of sale from their date to the conversion about 1833 or ’4.

Before O’Neall, J., at Union, November, Extra Term, 1842. This was an action of trespass to try titles to the land lying east of Cane creek and north of the line B, A. The angle E, B, A, was the dispute.

Before Evans, J., Greenville, Fall Term, 1841. The following is the report of the presiding Judge: On the 19th February, 1840, Henning confessed a judgment to McBee, for $465, on notes ; and again, on the 22d February, 1840, Henning confessed another judgment to McBee, for $5000.

Tried before the Hon. Jacob Axson, Recorder, in the City Court of Charleston, November Term, 1841. This was an action of assumpsit on an open account for lumber sold and delivered. ' The only question was about the interest. Mr. Campbell, the only witness examined, stated that, before suit commenced, he had an interview with defendant. The account was presented to him, containing a charge of interest from the expiration of six months.

Tried before the Hon. Jacob Axson, Recorder, in the City Court of Charleston, November Term, 1841. RECORDER’S REPORT. This was an action of trespass for an assault and battery on the person of the plaintiff. The plaintiff was a minor, and commenced his action, and filed his declaration, without having a guardian appointed; and the defendant pleaded the general issue. During the examination of the witnesses, they were interrogated as to the minority of the plaintiff.

<p>1. By the 22d section of the Act of 1841, (11 Stat. at Large, 160,) all sums of money over and above $20, due any board of commissioners of roads “for neglect to make re-> turn of hands, or to send hands, or for any other causes, shall be recovered by action of debt, in any court of competent jurisdiction.'</p> <p>2. All who sue in an official capacity, must state their names, as well as their official description. But where the commissioners of roads sued fo£ a fine over $20, the general issue being pleaded, and decree for plaintiffs, the fact that the names of the commissioners were not set out in the process, was held not good, on motion to arrest the judgment/</p>

Before O’Neall, J., Beaufort District, April Term, 1842. Report op the Presiding Judge. This was an action of debt for the recovery of $115, a fine imposed on the defendant on the 8th of February, 1841, by the plaintiffs, for a default in not working the roads. The proof was very clear that the defendant’s overseer was notified regularly to send his hands (twenty-three) to work on the road in November.

Before O’Neall, J., Gittisonville, Spring Term, 1842. The defendant was indicted for selling to a slave of the estate of Thomas Heyward, a black horse. The offence was fully proved by the adduction of a certificate in the defendant’s hand-writing, that he had sold the horse to the slave Jacob.

Before O’Neall, J., Beaufort, Spring Term, 1840. This was an action of trespass on the case, brought against the defendant, under the following circumstances : The plaintiff was indebted to the defendant in a note for the sum of $4,000 and upwards, due 1st January, 1839. The payment was not made when the note was due; the defendant placed a copy of it in the hands of Messrs. Davant and Martin for collection; they issued upon it to Barnwell, where the defendant resided.

Before Butler, J., Gillisonville, Fall Term, 1842. This was an action within the process jurisdiction, on the following note: “ One day after date, 1 promise to pay Ryan & Speaks, or bearer, the sum of eighty-two dollars fifty cents, for value received. January 1st, 1842.

Before O’Neall, J., Gillisonville, Spring Term, 1842. This was an action of debt on a judgment at law, recovered by a trustee against defendant. The Court of Equity appointed another trustee (R. J. Davant,) in the place of the plaintiff in the judgment. Mr. Davant brought this action, and contended he could maintain it in Ms own name. The defendant demurred generally, and the presiding Judge sustained the demurrer.

Before O’Neall, J., Charleston, May Term, 1840. This was an action of assumpsit on a note of Edward Lynah, dated 29th April, 1823, payable in sixty days, to James Lynah, or order, and by him endorsed. To prove demand and notice, the plaintiffs gave in evidence the protest of the notary, by which it appeared that on the 1st of July, 1823, he left a written demand of payment at the residence of the drawer and endorser. The defendant pleaded the statute of limitations.

Before O’Neall, .J., Gittisonville, Spring Term, 1842. This was an action of assumpsit on an open account. The account was admitted, and it was proved that it was the general custom of the store, for all customers, unless they paid the last year’s accounts by April, to allow interest on them from the first of January, when by the same custom they were due; and that the customers had always been in the habit of paying it.

Before Butler, J., Gillisonville, Fall Term, 1842. Trespass to try title.

Before Richardson, J., at Edgefield, Extra Term, July, 1842. This was an appeal from the decree of the Ordinary.— The Judge had admitted to probate a paper purporting to be the last will of Thomas Reynolds, deceased.

<p>1. Testator devised as follows: — “ I give, devise and bequeath unto my daughter, O. E. M., and to her heirs and assigns forever, all that tract of land purchased of R. T., and also that part of tract marked D, in the first purchase from Mr. J., not given to my son-in-law, S. M. W., as will more fully appear by reference to a deed given to A. and S. M. W., together with a tract in the last purchase, marked E • together with an equal portion of my personal property with the rest of my children, not herein before bequeathed.”</p> <p>2. And in a subsequent clause — " It is my will, that if any of my children, in age from my daughter, C. E. down to the youngest, die under age, or before marriage, that the portion of personal estate bequeathed to them, be equally divided amongst my surviving six minor children; and the real estate, if not otherwise devised, to be equally divided between all my surviving children.” It was held by the Court that “ or’’ must be construed “ amd’’ — that testator’s daughter, C. E. M. upon attaining the age of twenty-one, took an absolute estate, and, of course, the limitation over being too remote, is void.</p> <p>Note. — In Miles vs. Dyer, 7 Cond. E. Ch. Rep. 484—Testator bequeathed his real and personal estate to trustees, in trust to pay an annuity to his wife, and to raise and pay to each of his children £2000, on their attaining twenty-one, and to accumulate the surplus income of tlie trust property, during the life of his wife, and after her death to sell the property and divide the proceeds amongst his children on their attaining twenty-one ; and in case all his children should die in the life time of his wife, or under twenty-one and without leaving issue, then, after his wife’s death, to sell the trust property and divide the proceeds among certain other persons — held, that or ought to be read as and, and that the children having attained twenty-one,were absolutely entitled to the property, though their mother was living.</p> <p>The Vice-Chancellor. This case is one of that numerous class in which the word or ought to read and. It is clear the testator did not mean the trust property to go over, if his children attained twenty-one, or if they died under twentv-one, leaving issue. He meant to put in opposition to each other, dying under twenty-one without leaving issue, and attaining twenty-one.</p>

<p>1. Where the Commissioners of the Roads adopted a resolution assessing a certain per cent, on all the taxable inhabitants of the District, and authorising the Tax Collector to collect the same, without indicating a particular sum to be collected, it was held sufficient.</p> <p>2. It is not necessary that each inhabitant should be assessed a certain sum by the Commissioners themselves.</p> <p>3. The Tax Collector is bound to pursue the directions of the Act itself, which prescribes, specifically enough, his duty as to the mode of making the collections.</p> <p>4. Where the Clerk and Treasurer of the Board, verbally informed the Tax Collector that he was required to collect twenty-five instead of twenty per cent, as directed by the resolution of the Board, and the Collector proceeded to act under the authority of the order, without tailing any exception to the mode of service, it was held by the Court, in an action against the securities, for the default of the Tax Collector, that they were liable to the extent that he was, under the true authority of the Commissioners.</p>

Before O’Neale, J., Walterborough, Spring Term, 1842. Report. This was a declaration in prohibition. The Tax Collector of St. Paul’s issued his tax execution, which was about to be enforced by Sheriff Rice, against the relators, as free mulattoes. They applied for and obtained a prohibition nisi, on the ground that they were free white men, but were ordered to declare in prohibition.

Before Butler, J., Barnwell, Fall Term, 1842. Assumpsit for rent of land. In March, 1840, the defendant rented about 40 acres of land of one James Owens, it being part of a tract on which Owens lived at the time. In April ensuing, the entire tract was sold at Sheriff’s sale, as the property of James Owens, and purchased by the plaintiff, who took possession immediately after.

Before Earle, J., at Charleston, May Term, 1841. Assumpsit to recover the value of 2,630 bushels of rough rice, shipped by the plaintiff oh board the Ashepoo, belonging to- the defendants, Stótt, Master-, from Savannah to Charleston. The vessel was wrecked on-the voyage, and the'rice so much damaged as to be refused by the consignee.

Before Earle, J., at Charleston, —-. ■ ‘ This w:as an action against the defendant as administratrix of Neil Brown, suggesting a devastavit. The plea of plene administravit was duly, filed, siating.that there was no estate at all, and therefore no receipts and payments, the administration having been obtained for the sole purpose of bringing a suit.

Before Earle, J., Charleston, May Term-, 1842. This was an action of debt on a judgment. The facts were, that a suit was commenced on 3d January, 1824, by James L. Peigne, against John P. Sutcliffe, and after many years delay, a verdict was obtained on the 3d February, 1832, against the defendant, for $554 11, and a fi. fa. issued; the defendant was out of the State.

Before Wardlaw, J., Charleston, May Term, 1842. Report of the Presiding Judge. This was an action of replevin. The plaintiff, in 1840, held a house at the corner of Queen and Meeting streets, and some adjoining buildings, under two leases from John I. Bulow.

Before Butler, J., at Barnwell, Spring Term, 1843. Trespass to try title — writ entered 12tli September, 1842. The defendant was in possession of the land, under the following agreement to purchase from the plaintiff, viz: South Carolina, Barnwell District. This is to certify that I have this day made a conditional sale of my Stinson Bridge tract of land, to Elijah J. Beck, son of Charles Beck, sen., for the sum of five hundred dollars.

Before Wardlaw, J., Charleston, May Term, 1842. Debt on bail bond.

Before Bdtler, J., at Gillisonville, April Term, 1843. Report of the Presiding Judge. This was an action of indebitatus assumpsit for money had and received. The only count in the declaration is the common count for so mudh money had and received by the defendant to the plaintiff’s use. There was no bill of particulars filed with the declaration, or other memorandum, setting forth the specific ground of action.

Before Earle, J., Charleston, May Term, 1841. This was an indictment under the second section of the Act of 1837, for keeping open on the Sabbath day, a grocery store and retail shop, for selling liquors on Charleston Neck, and trading with negroes therein. The proof was, that the defendant keeps, and has long kept, a grocery store, where he has been in the habit of retailing liquors, at the corner of Boundary and Cumming streets.

Before Ealle, J., Charleston, May Term, 1841. The defendant was indicted under the second section of the Act of 1837, to amend an Act entitled an Act to regu-' late the performance of patrol duty on Charleston Neck, and for other purposes; which subjects to a forfeiture of one hundred dollars, any owner or occupier of a grocery store, or retail shop on Charleston Neck, or of any store, shop or place there, wherein liquors are vended, who shall keep open the said stores,…

Before Butler, J., Charleston, January Term, 1842. This was an action of assumpsit, for the breach of an implied warranty, in the sale of a female slave, Hannah. The sale was made on the 23d day of December, 1840, under the following circumstances : Mr. T. M. Hume, acting as the agent of defendant, advertised the negro for sale.

Before Evans, J., Charleston, Spring Term, 1841. Report of the Presiding Judge. This was an action to recover the amount of forty-five dollars twenty-two cents, for freight, being the balance due for freight of twenty bales of Hay, and one hundred and five bags of corn, c&c. (fee., shipped on board of the Schooner United States, and to be delivered at Pilatka, East Florida.

Before Butler, J., at Walterboro’, November Term, 1842. These cases arose out of proceedings in prohibition. In. the first of the above stated cases, the defendants, as magistrate and freeholders, were about to try the narrator as a free person of color, and by leave of a circuit Judge, he had filed his declaration in prohibition, in which he alleged and averred that he had a right to occupy in society the status of a free white man of South Carolina.

Before Butler, J., at Barnwell, Fall Term, 1842. This was an action of covenant on a special agreement to build a house. “ South Carolina, Barnwell District.

Before Evans, J., Charleston, Spring Term, 1843. This was an action of trover for a negro, named Polly, taken from the plaintiff’s possession by the defendant. The slave was originally the property of one Charles Simons.

Before Butler, J., Gillisonville, Spring Term, 1842. This was a case of prohibition, under the following circumstances : The relator resides in the village of Gillisonville, a summer retreat, about three-fourths of a mile from the Court House, on a tract of land of some thirty acres. The tax collector assessed the land of the relator as town or village property, and requires payment therefor at that rate.

Before Butler, J., Walterboro’, April Term, 1843. This was a motion to reverse a decision of the circuit judge, made under the following circumstances: A judgment had been confessed before the clerk, by L. S. Fishburne, to Collins & Burbridge, on the 13th day of June, 1836.

Tried before his Honor the Recorder, in the City Court of Charleston, April Term, 1842. This was an action of assumpsit brought on two drafts, drawn by T. V. Sessions, on defendant, in favor of plaintiff, and alleged to be verbally accepted by defendant. The following is the evidence. ■ T. V. Sessions, sworn. — Testified the drafts were drawn by him.

Before Earle, J., at Charleston, May 'Term, 1841. Trespass to try title to a small farm near Charleston.— The title was admitted to have been in James Huston, in his life time, and at the time of his death, in 1819.

In the City Court of Charleston. Tried before his Honor, Judge King, January Termf 1843. This was an action to recover the amount of a note, $634 54-100, dated 12th February, 1842, at sixty days, protested for non-payment, 16th April, 1842. Note admitted.

Before Earle, J., at Charleston, May Term, 1841. These were actions of assumpsit on a note and check. The check was drawn by the defendant for five hundred doliars, on the Bank of Charleston, payable to A. Wilson or bearer, dated December 11th, 1840, presented for payment and refused by order of the defendant.

Before Ward law, J., at Charleston, May Term, 1842. The indictment charged the prisoner with having murdered William Ladd, on 19th March, 1842, by stabbing him to the heart with a pocket knife. The prisoner is about 50 years old, about 5 feet 10 inches high, of slender, 'but apparently vigorous frame.

Before Wardlaw, J., at Charleston, May Term, 1842. Trover for cotton. Second count alleging delivery of cotton to carrier — embezzlement by him and sale to defendant, he — knowing, First plea, Non cal. Second plea, Statute of Limitations. Replication — fraudulent conversion — fraudulently concealed and undiscovered till within four years. Demurrer and joinder. Demurrer sustained.

Before the Hon. Jacob AxsoN,m the City Court of Charleston, This was an indictment against the defendant for resisting the city sheriff in levying an execution against the Hotel Company ads. G. S. Cameron, on certain furniture in the Charleston Hotel.

Before Butler, J., at Charleston, May Term, 1841. abstract of pleadings, &c. This was a scire facias to vacate the charter of a bank, for having suspended specie payments.

Before O’Neall, J., Edgefield, Spring Term, 1837. REPORT OP PRESIDING JUDGE. Held: that the naturalization of the father confers the right of citizenship upon an infant child resident in Scotland at the time of the father’s naturalization, and who came to the United States while an infant, and was here before the Act of 1802. This, although not direct authority, seems to me to touch the point under consideration.