Volume 29 — South Carolina Law Reports

<p>1. In an action of trespass to try titles, two witnesses for the defence testified that he, (the defendant) had a field of cotton on the disputed land, which would have made three bales, and which was ungathered at the time of the trial. The plaintiff in the action said, that in giving this testimony they had sworn a lie, and he could prove it. The witnesses, the present plaintiffs, brought actions of slander against him, but the presiding Judge being of opinion that the testimony of which the present defendant spoke when he alleged the false swearing, was not material to the issue in the action to try titles, ordered a nonsuit. Held, that it was properly granted.</p>

Before O’Neall, J. Pickens, Spring Term, 1843. This was an action of assumpsit against the Ordinary of Pickens district, brought under the following circumstances : A tract of land was sold for partition, under the order of the Ordinary; the proceeds were paid to the Ordinary; before he paid them over to the heirs at law, the land was recovered, by title paramount, from the plaintiff, the purchaser.

Before Wardlaw, J. at Newberry, Spring Term, 1843. This was an action on the case for obstructing a way. There was some testimony as to the nature of the way, its frequent changes, and as to other ways more convenient to the plaintiff: but to understand the ground of the non-suit, which was ordered, all this is now unnecessary.

Before Wardlaw, J. at Marion, Fall Term, 1842. Trespass to try titles. The plaintiffs endeavored to make proof, preliminary to the offer of an office copy of a deed, and to establish the loss, examined the Clerk of the Court.

Before O’Neall, J. at Laurens, Extra Term, July, 1843. This was an action of assumpsit, on a verbal contract, to indemnify the plaintiff in executing a landlord’s warrant, by the levy and sale of Berkley Bagwell’s property. It appeared that Bagwell, in the life time of James Kin-man, had rented from him a tract of land for one year, and had entered upon the second term. From the proof, it seemed that the rent arrear was fully paid.

Before Wardlaw, J. at Georgetown, Nov. Term, 1843. Held: and that he did return some old papers; that at the time of the contract the defendant, Thos. M. Grier, was in possession of the land, he having held it from the expiration of the year, after James M. Grier’s death, in all 4 years, sometimes jointly with the witness, and sometimes jointly with Thos.

Before O’Neall, J. at Lancaster, Fall Term, 1843. At fall ter-m, 1842, the grand jury presented the defendant;, a constable, as unfit for his office, on account of habj? tual intoxication. He was put under a rule to shew cause why he should not be struck off the roll of constables.

<p>Before Evans, J, at Edgefield, Fall Term, 1843.</p> <p>The defendant purchased, at the sale of Lindsey’s estate, of which the plaintiff was administrator, two negroes, John, at the price of 610 dollars, Allen, for 780 dollars, and three peacocks, for one dollar and fifty cents, making in all $1391 50. The terms were, twelve months credit, the purchaser to give note; the sale was made about the 15th of December, 1841. The negroes went into defendant’s possession immediately, but from some cause he did not give a note. In March, the plaintiff applied for a note, which defendant refused to give, alleging that both of the negroes were unsound. This action was brought to recover the price. Defendant set up as a defence, that John had hernia, and Allen, liver disease. In relation to the lat.ter, the defence wholly failed, and the evidence in relation to him is omitted, as nothing is said about him in the notice. It was clearly proved that John has now what is called an irreducible hernia. Dr. Burt examined him a month or two before the trial; he described him as a likely and' vigorous man, whose general health is unaffected by the disease. He thought it existed prior to the sale. One afflicted with this disease, is considerably lessened in value; he cannot do very heavy work, or take rough exercise; would think the value diminished one half; if a truss be early applied, the disease does but little injury. A great many witnesses were examined, who knew John well for many years; had seen him at work on the road and at log rollings, who spoke of him as a very strong able bodied’ and willing hand; and who were entirely ignorant that he had such disease. Other witnesses had heard of it, and some had observed an apparent enlargement before the sale. One Colvin, who was the defendant’s overseer, said he looked large before, when he first came home; he examined him not long after, and found he was ruptured; it was as large as Dr. Burt described it to be now. According to this man’s evidence, John had been complaining ever since defendant got him, and he had not been put to hard labor, because he considered him unable to perform it.</p> <p>On the 26th or 27th December, about ten or twelve days after Lindsey’s sale, the negroes of Weaver’s estate were sold; they brought, in general, higher prices than at Lindsey’s sale. Colvin said Bland knew of the disease Jack had before the sale. On the day of Weaver’s sale, one Cogburn offered to buy Jack at an advance of thirty dollars, to be paid in two notes of one Rinehart, a solvent man. Bland refused to take less than $700, and said he could get it in two hours. Cogburn said he had heard, after Lindsey’s sale, that Jack was ruptured, and he had examined Jack about it, and was so satisfied that it did not lessen his value, that he was willing to give Rinehart’s note for 740 dollars, and would as soon have given his own note. After Bland refused, Cogburn told him he had heard John was ruptured, to which no reply was made. The witness thought John could do as much now as before the sale. .</p> <p>Another witness, David Crane, said that in February, 1842, he had a conversation with Bland, in which Bland said he was sorry he had gone to any of the sales, as he could now buy three negroes for the price he was to give for these two. He complained of Allen’s having gone from his plantation in bad weather without leave, but said nothing of any other objection to them. He regretted that he had bought them on account of the price. Between January and March, there had been a great falling off in the price of negroes.</p> <p>The case was submitted to the jury, on the questions whether John was diseased at the sale, and if so, how much was his value diminished. They found a verdict for the plaintiff, for the whole amount of the sale, with interest, although there was no count for interest. The presiding Judge was of opinion that the negro was ruptured at the lime of sale, but it was probably so slightly, that if attention had been paid to it immediately after it was known, his value would have been but very little impaired, if any. No means of cure were used, and no physician consulted about it, until a month or two before the trial.</p> <p>The defendant appealed from the verdict of the jury, and moved for a new trial, on the grounds :</p> <p>1. Because the negro John, being afflicted at and before the sale, with incurable hernia, which materially impaired his value, and that being unknown to the purchaser at the time of the sale, the jury erred in not allowing a reasonable abatement of the price bid for him.</p> <p>2. Because the jury erred in giving interest.</p> <p>insisted that a reduction should1 have-been allowed by the jury under the proof, and that interest should not have been given. Cited, on the second ground of appeal, Knight vs. Mitchell, 2 Treadway’s Con. Rep. 668 ; Far-rand vs. Bouchelle, Harp. 83 ; Goddard vs. Buloio, 1 Nott and McCord, 45 ; 3 McCord, 499 ; Harp. 393; Id. 219.</p> <p>stopped by the court, on the first ground. On the second, dm cited Chitty on Contracts, 505: 13 East, 498; 4 Taunton, 298; Cheves Rep. 61,</p>

<p>1. Money levied in execution by the Sheriff, upon fieri facias, and in his hands, is not the subject of attachment. (*)</p>

Before Wardlaw, J. at Horry, November Term, 1842. Trover for a negro woman, Lydia, and her children. John Rogers died, leaving three sons, John, William and James, and one daughter, Mary. By his will, dated in 1826, he gave legacies to each of his other children, and to William, ten negroes, including Lydia, and all their future increase, to him and his heirs forever.

Before Evans, J. at Edgefield, Fall Term, 1843. This was an action against Simpson, as the bail of one Wiley Milton. In the original action against Milton and others, the verdict was for a gross sum, without any thing said about interest. In the execution, the sheriff was directed to collect interest. In the declaration in this case, against Simpson, the attorney, Mr. Griffin, stated that he had been misled by the execution, into a misrecital of the judgment.

Before Butler, J, Abbeville, October Term, 1843. The defendant was sued by the name of Willison Franlin, and it appeared, by his affidavit, made to sustain his plea of abatement, that his true name was Williston W. Franklin — whereupon, the court sustained the plea of abatement.

Before O’Neall, J. at Lancaster, Fall Term, 1842. This was an action of debt on a constable’s bond, which was executed by the defendants.

<p>Before Butler, J. at Greenville, Fall Term, 1843.</p> <p>This was a suggestion filed by the plaintiff, Waddle, for the purpose of falsifying a return which the defendant» had made, as garnishees in an attachment taken out by him against one Blackman Ligón.</p> <p>The merits of the case will be fully understood from the special verdict found by the jury, and the facts as stated in the opinion of the presiding Judge.</p> <p> Special Verdict. </p> <p>We find that the plaintiff, Edmund Waddle, was the highest bidder for a lot of land in the town of Greenville, sold by the sheriff, under executions junior to a mortgage executed by Blackman Ligón to Emily Rowland, to secure the purchase money of said lot of land, to wit, $3000; that said mortgage, and note of same date and amount, are duly transferred to Peter Gauble, with some credits on the note, and that at the time of the sale of said lot there was still due on said note to Cauble, about one thousand dollars. We further find, that the sum bid by Edmund Waddle, for the lot of land, was forty-one hundred and fifty dollars, which, by an arrangement and understanding entered into between E. Waddle, R. Cox, J. Moore, and J. Farr, was paid by the said Cox, Moore and Farr, and, therefore, the sheriff made titles to them ; and that E. Waddle did pay to P. Cauble about one thousand dollars still due on Iiis note, and took a transfer of the same, with an entry simultaneously made by Cauble, that the mortgage was satisfied. We further find, that Edmund Waddle has recovered judgment for balance on said note, say about one thousand dollars and interest. We further find that the sale of negroes now in controversy, from Blackman Ligón to the defendants, was fraudulent.</p> <p>If, upon the foregoing statement of facts, the plaintiff’ has a legal right to establish the affirmative of this issue, then we find for the plaintiff. But if otherwise, we then find for the defendant.</p> <p> Opinion of the presiding Judge. </p> <p>The distinct purport of the above special verdict, will appear from the following statement of facts.</p> <p>Blackman Ligón was largely indebted to different creditors, about thirty in number, who had placed their demands in the hands of Messrs. Townes and Choice, for collection. These attorneys had informed Ligón that they had these demands, and were authorized to make such arrangements with him as would secure them. To a proposition that he should confess judgment, Ligón had made objections, saying that he would make satisfactory arrangements with his creditors before return-day, which was about ten days after these propositions were'made. Ligón went to the defendants, who were trading in negroes, and proposed to sell them Hester and her children, the same that are in controversy in this case. Joyce, one of the parties, came up to Greenville, where Ligón resided, and bought the negroes for one thousand dollars, with the understanding that he should keep the sale a secret till after return-day — this being on Saturday. On Sunday, Ligón went off, under pretext of visiting Glenn Springs. On the Wednesday ensuing, it was pretty well ascertained he had left the country, for Texas. A number of attachments were on that day taken out by his creditors. In due time, judgments were recovered, and executions issued. Under these executions, a lot of land in Greenville, with a valuable Hotel situated thereon, was sold by the sheriff, at which sale E. Waddle was declared to be the highest bidder. Ascertaining that he would have to pay oft' the mortgage, referred to in the above verdict, he entered into some arrangements with, and obligations to, the other persons named, to let them take the title, upon his bid, to themselves, with an understanding that he was to pay off and satisfy the mortgage held by Cauble; and with a view of accomplishing this end, and of extricating himself from the difficulty in which he had involved himself, he paid off the balance of the note held by Cauble, and took a transfer of it to himself, with an entry on the mortgage itself, that it was satisfied. The word “satisfied,” is written across the mortgage. As the indorsee or bearer of the note thus transferred to him, he issued an attachment, and made the defendants in this issue garnishees. They returned that they had nothing in their hands liable to the operation of the attachment; whereupon, Waddle filed his suggestion, falsifying the return.</p> <p>Under this statement of facts, with those found by the special verdict, the question arises, has Waddle any of the rights of a creditor'? In other words, could'Waddle acquire any demand against Ligón, by the transfer of the note secured by mortgage'? The purchase money of the lot of land was, no doubt, payable to the junior executions, under which the sale was effected. Was not the bid on the junior executions, ipso facto a satisfaction of the mortgage 1 This involves the proposition, was not the purchaser, or purchasers, under an obligation to pay off the amount due on the mortgage, in addition to the amount of the purchase, to be applied to junior executions'? If Ligón had been present, he could have required the money paid into the sheriff’s office, to be applied most for his benefit; and, as a consequence, could have objected to any arrangements in relation to the mortgage, that might be made to his prejudice. He might well have objected to the mortgage being satisfied, without including the note secured by it. It would have been in his power to compel the purchasers at sheriff’s sale to pay the mortgage in addition to the amount of their bid. And have not the present defendants the same rights that their vendor would have had, had he been present, and been a party in the controversy 1 Such is my judgment — and the postea is accordingly ordered to be delivered to the defendants.</p> <p>The plaintiff appealed, on the following grounds.</p> <p>1. Because his Honor erred in deciding that Waddle had none of the rights of a creditor of Ligón, by the purchase of Ligon’s.noté from Cauble.</p> <p>2. Because his Honor erred in deciding that the bid of Waddle was, ipso facto, an extinguishment of the mortgage, although he never received titles, or complied with the terms of the sale.</p> <p>3. Because the judgment of Waddle against Ligón, regularly entered up, and unsatisfied, was proof conclusive that Waddle was a creditor of Ligon’s.</p> <p>4. Because the garnishee in attachment can take no exceptions to the regularity of the proceedings in attachment, and the defendants had no right to contest Waddle’s recovery against Ligón.</p> <p>5. Because the assignee of the mortgage was not bound to make his demand out of the house and. lot, but had a right, even after the sheriff’s sale, to pursue any other property which'belonged to Ligón, the mortgagor.</p> <p>6. Because a mortgage may be released by a mortgagee, without destroying the debt secured by the mortgage.</p> <p>7. Because the mere bidding off lands at sheriff’s sale, vests no legal right in the purchaser, until titles are executed.</p> <p>8. Because the decision of his Honor, in ordering the postea to be delivered to the defendants, was, in other respects, contrary to law and evidence.</p> <p>Should the judgment of the Circuit Court, awarding the postea to the defendants in this case, be reversed, the defendants gave notice that they would move the Court of Appeals for a new trial, upon the following grounds.</p> <p>1. Because his Honor, the presiding Judge, refused to admit in evidence the record in the case of Win. A. Oureton and others vs. Robert Cox and others, attaching creditors of B. Ligón, which was an issue to try the title to the same negroes, and a verdict found for the plaintiffs in that issue, who are the defendants in this.</p> <p>2. Because Edmund Waddle, the plaintiff, having voluntarily made himself a creditor of B. Ligón, long after, and with a full knowledge of, the purchase of the negroes by the defendants, there could be no fraud as to him.</p> <p>3. Because there was not sufficient proof of fraud to authorize the verdict of the jury.</p> <p>The defendants stand convicted of fraüd. The jury have found the sale of the slaves fraudulent. They still belong to Ligón. The defendants have no right to them. They are not even creditors of Ligón.</p> <p>The defendants, as garnishees, have no-right to question the regularity of the proceedings against the absent debtor, Ligón. See Foster vs. Jones, 1 McCord, .116; Chambers and Sadler vs. McKee, 1 Hill, 229; Kincaid vs. Neall, 3 McCord, 201; Camberford vs. Hall, 3 Id. 345 ; McBryde vs. Floyd, 2 Bail. 209.</p> <p>The judgment in this case is conclusive, until reversed; 3 McCord, 346; 2 Dane’s Am. Dig. 635; Kemp’s Lessee vs. Kennedy, 5 Cranóh, 173.</p> <p>No title passes, or estate vests, by the merely bidding off lands at sheriff’s sale. This was all that Waddle did. The land was resold by the sheriff at his risk, and purchased by another. See Herbemont vs. Sharp, 2 McCord, 264; Minter vs. Dent, 2 Bail. 291.</p> <p>The mortgagee is not bound to look to the mortgaged property for the payment of his debt, but may sue on the bond "and proceed against any -other property belonging to the mortgagor. Burnell Vs. Martin, Doug. Rep. 401; Booth vs. Booth, 2 Atk. 343 ; 3 Johnson’s Ch. Rep. 330 ; Hughes vs. Edwards, 9 Wheat, 489; 4 Kent, 174; 6 Johnson’s Ch. Rep. 77.</p> <p>A mortgage is not the debt, but the mere security of the .debt. So declared by the Act of 1791, (5 Stat. at Large, 169) Wilson Vs. Troup, 2 Cowen, 195; Hawkins vs. King, 2 A. K, Marshall’s Rep. 109; Barnes vs. Lee, 1 !Bibb, 566; Drayton vs. Marshall, Rice’s Eq. Rep. 378; Green vs. Hart, 1 Johnson, 580; 4 Kent, 186.</p> <p>A release of the mortgage does not extinguish the debt secured by the mortgage. . 2 N. Hampshire Rep. 13; 5 Am. Dig. 297; Hampton Vs. Levy, 1 McCord Ch. Rep. 116; 2 Gallisson, 152; -5 'Condensed U. S. Rep. 657.</p> <p>Waddle was no creditor of Ligón. The mortgage debt was extinguished by his purchase. Could hé have foreclosed against the persons who took the titles'? In matters of substance, the garnishee may contest. Cited 4 Kent, 162; Exparte City Sheriff, 1 McCord, 399,</p> <p>The plaintiff is a mere volunteer.</p> <p>The purchaser of the equity of redemption made himself liable for the debt, Cited 2 Johnson’s Ch. 125.</p>

<p>Before O’Neall, J. Spartanburg, Spring Term, 1843.</p> <p>This was an action of trespass to try titles to a small piece of land, about 50 acres, part of a larger tract, which had once been the property of--Birchfield, the father of the plaintiffs. The description in the deed executed by Birchfield to Bullein, undér whom the defendant claims, is fifty acres of land on Fall Branch, and adjoining Bonham’s land. The grantee Bullein was living on the land in dispute called the Clayton land: it was the intention of Birch-field to give him 50 acres, where he lived. Bullein told one of the witnesses that his line ran on his fence, N. of his house, about 150 yards. The witness Hunt, who drew this deed, proved that on the same day, and before it was executed, he drew a deed and witnessed its execution from Birchfield to a woman of the name of-, which covered all the land on which the plaintiffs insisted the defendant’s deed should be located. — The grantee had left the State, the deed was searched for in the Clerk’s office, where it had been placed to be recordeed, and it could not be found. On this proof coming out, one of the plaintiffs, who was not entitled to the possession of the deed, said he had taken it out of the Clerk’s office. On this proof I admitted the office copy, which shewed very clearly that Birchfield had conveyed previously all the land which he owned lying on Fall Branch. The only boundary left for the defendant’s deed was on Bonham’s land, which constituted the entire eastern boundary of the Clayton land.</p> <p>The case was submitted to the jury, who did the best they could, on such a blind question of location, by finding for the defendant.</p> <p>The plaintiffs appealed, on the following grounds.</p> <p>1st. Because the deed under which the defendant claims calls for the Fall Branch on one side,, and Bonham’s land on the other, no other boundaries being called for, yet the location established by the verdict missed the Fall Branch near a quarter of a mile, and locates it on Motley’s Creek.</p> <p>2nd. Because the deed of defendant calls for fifty acres, and if the defendant is allowed that quantity of land as he claims it, he would still be a trespasser.</p> <p>3d. Because Bullein, under whom the defendant claims, pointed out his boundary so as to run to the Fall Branch, to get his fifty acres, which was conclusive of the defendant’s claim to the land in dispute.</p> <p>4th. Because his Honor the presiding Judge erred in allowing the defendant to give in evidence a copy deed, without either searching where it would likely be found, or giving the plaintiffs notice to produce it.</p> <p>5th. Because the verdict was against law and evidence.</p> <p>cited 1 M’Cord, 232.</p>

This was an application made before a Commissioner of Special Bail, for Union district, for a discharge under the Prison Bounds Act. In this case the defendant was delivered up by his bail to the sheriff, after judgment was obtained, but before an execution was issued, filed his schedule with his petition, claiming the benefit of the Prison Bounds Act.

<p>Before Evans, J. at Edgefield, Fall Term, 1843.</p> <p>The defendant, under an order of the Court of Equity, sold a tract of land to the plaintiff. The land was offered at public sale, but withdrawn for want of bidders. After* wards, a private sale was effected to the plaintiff, Jones, at' the gross sum of $13,000. The defendant was the trustee of Mrs. Wightman, to whom the land belonged. At the time of the sale, a plat of the land, made by oneBuckhalter, was exhibited. This contained 1374 acres, but there were some parts not included in the sale. These were taken off, and a new plat made of what was sold to Jones. The quantity taken off was estimated at 46 acres, and the quantity set down as within the land sold was 1328. The deed described the land as containing 1328, more or less, and bounded by certain lines, whose course and dislances were particularly set down. The plat was annexed to the deed, and referred to as part of the description of the land. Upon resurvey, the land was found to contain less, by about 100 acres, than the quantity called for. The deficiency, the surveyors thought, arose from the fact, that the distances set down in the plat, and the description in the deed, were found to be less than represented; by reason whereof, there was a less area within the actual lines than as represented on the plat. If the lines had been correctly represented on the plat, it would be no breach of the covenant, that the area was less than the number of acres called for, but as this was not the case, and in consequence thereof, there was a deficiency in the number of acres, the presiding Judge thought, and so charged the jury, that the plaintiff was entitled to recover, to the extent of the deficiency. What that was, was not so clear. Mr. White, who seemed to be an accurate surveyor, made the deficiency 98 acres. Jones, who measured White’s plat by triangles, made it 14 acres less. Brunson made the loss 128 acres by triangular measurement. The jury found for the plaintiff.</p> <p>The deed was made by the defendant, as trustee of Mrs. Wightman, and he was sued as such.</p> <p>The defendant gave notice, that he would move in the Court of Appeals for a new trial:</p> <p>1. Because the deed of conveyance contained no warranty of the number of acres.</p> <p>2. Because the defendant cannot be made liable, under the circumstances, as a trustee in this court.</p> <p>3. Because there was no satisfactory proof of the extent of the deficiency in the contents of the land, or that defendant was deceived or defeated in the object of his purchase.</p>

Before Wardlaw, J. Fall Term, 1843. These were actions of Assumpsit by Foreign Attachment. In each of these cases, the writ was returnable to October term, 1841. The sheriff’s return stated that, by a deputy, a copy had been delivered to John Mace, a garnishee, which return had never been sworn to by the deputy, but at this trial was sworn to by the sheriff.

Before Wardlaw, J. at Newberry, Fall Term, 1843. Trover for six slaves, Lucy and her children. The plaintiff’s wife and the defendant, were of the children of James Wilson, senior, now deceased, of whose estate the defendant is administrator. James Wilson, senior, died about Christmas, 1841, having until his death, had possession of Lucy, from her birth, and of all her descendants.

<p>1. Where a defendant pleaded a discharge under the late bankrupt law of the United States, his certificate raises a presumption that the legal notice required has been given to creditors, and where nothing appears to the contrary, the presumption stands firm. Yide Sinclair vs. Smythe, 1 Brev. Rep. 402.</p>

<p>Before O’Neall, J. at Abbeville, Extra Term, July, 1843</p> <p>This was an action of Assumpsit. The defence was usury. The note sued on was for $2289. The usury was proved, and was deducted from the face of the note, leaving a balance of $2061 80, for which the verdict was found without interest and costs.</p> <p>It appeared that the note sued on was the renewal of a note of $2000, on which the usury was paid, and that the interest was computed on it until this note was given. It was contended that the deduction for the usury, actually paid, should be from the sum loaned, and the balance, $1800 should be found on this note for plaintiff, without interest. But the presiding Judge thought the contract sued on was that from which the usury was to be deducted, and which was not to bear interest. The verdict was accordingly.</p> <p>The defendants appealed, and moved for a new trial, on the grounds following:</p> <p>1. That his Honor instructed the jury to deduct from the face of the note the amount of the extra interest which it was proved had been paid, and render their verdict for the balance; whereas the proof was, that the original principal was two thousand dollars; and by adding on the lawful interest for two years, compounding it the last year, on renewal, the note on which this action was brought was given, which amounts to $2289 80; and as no interest could be recovered, the deduction should have been made from the two thousand dollars, and the verdict rendered for the balance only.</p> <p>2. Because the verdict is contrary to law and evidence.</p>

Before O’Neall, J. at Lancaster, Fall Term, 1843. This was an appeal from the taxation of costs by the Clerk. It appeared that some of the witnesses subpcenaed by the plaintiffs, were not sworn on trial. The plaintiffs submitted their own affidavits, that the witnesses had been subpoenaed in good faith. The defendants submitted affidavits that the plaintiffs were of bad character and not entitled to be believed.

Before O’Neall, J. at Spartanburg, Extra Term, August, •1843. This was an action of trespass, to try titles to a tract of land. The defendant, Scarlet Red, was the owner of the land. It was sold on the 2nd January, 1842, under an execution lodged on the 10th of November, 1341, and issuing under a judgment, signed 6th November, 1841, in the case of JV. R. Eaves vs. Scarlet Red.

This was an application before a Commissioner of Special Bail of Newberry district, for a discharge under the Prison Bounds Acts. The defendant being surrendered, in discharge of his bail, in these cases, filed his petition to be discharged under the Prison Bounds Acts, accompanied by a schedule of his estate.

Before O’Neall, J. at Greenville, Spring Term, 1843. This was an application for a writ of mandamus, under the following circumstances.

Before O’Neall, J. at Fairfield, Fall Term., 1843. This was a rule against the Sheriff, whose return sets out a variety of facts. Amongst others, that there were in his office a great many executions against Nathaniel Ford, elder than that of the the plaintiffs’; to which the proceeds of his property (all of which had been sold under Ji.fa.) had been applied.

Before O’Neall, J. at Fairfield, Fall Term, 1843. This was a summary process to recover the value of a horse, purchased by the defendant at Sheriff’s sale, as the property of the plaintiff’s father. The plaintiff relied upon a parol gift of the horse by his father to him, about seven years before the trial. The proof was, that the plaintiff and his father lived together, and that his father, after the gift, had as much possession of the horse, as he had before.

Before O’Neall, J. at Fairfield, November, 1843. This was a summary process, brought for the recovery of a sum of money, due by note. The defendant gave in evidence a receipt of the Sheriff for (he same sum and mesne process previously on the same note. The question was, whether the sheriff might receive money on mesne process'? The presiding Judge thought, since the Act of 1839, he might. The decree was, therefore, for the defendant.

Before O’Neall, J. at Spartanburg, Extra Term, July, 1843. This was an action on a bail bond, executed by F. Bomar, and the defendant, in the case of Chambers & Co. vs. J. V. Bomar. The only question in this case was, whether the defendant had surrendered his principal.

Before O’Neall, J. at Chester, Fall Term, 1843. This was an action of covenant, for the recovery of plaintiff’s wages, as the defendant’s overseer.

Before Wardlaw, J. at Newberry, Spring Term, 1843. Assumpsit formverseer’s wages. The plaintiff who had been the defendant’s overseer in 1838, for $300 and his board, was married about Christmas 1838, and continued in the employment of defendant the greater part of 1839, living in a separate house instead of eating at the defendant’s table, as he had done in 1838, and discharging his duties to the entire satisfaction of the plaintiff.

Before O’Neall, J. at Fairfield, Fall Term, 1843. The prisoner was indicted under the Act of 1754, 7 Stat. 426. 1st. For inveigling, stealing, and decoying away the slave Hetty, the property of Charlotte Hinton, employed by one John Taylor; and, 2nd. In aiding such slave to run away and depart from the service of John Taylor. The prisoner lived with, and worked with Taylor, until a short time before this offence.

Before O’Neall, J. at Greenville, Spring Term, 1843. Opinion and Report of the presiding Judge. This was a rule, on the part of the plaintiffs, execution creditors of David Henning, against the Coroner, requiring him to shew kause why he did not pay over to them the proceeds of the sale of their debtor’s property.

Before O’Neall, J. at Fairfield, Fall Term, 1843. This was a rule against the sheriff, to shew cause why he did not pay to the plaintiff, the debt and interst, by him collected in this case. He shewed for cause, 1st. That five or six of the negroes were sold under an indemnity, given by David Aiken.

Befiore O’Neall, J. at Union, Fall Term, 1843. This was a sum. pro. on a contract to dig a well. The plaintiff, Woodruff, agreed to dig and wall the well for $60. It was to be completed in three week. He began the last of February, and soon encountered a sandstone, which rendered the digging yery tedious. He labored on assiduously until April, having dug about 60 feet.

<p>L A false imprisonment, as well as an assault and battery of a free negro, is an indictable offence at common law, and these offences are not affected by the Act of 1837, (6 Stat. at Large, 674,) which creates a new offence, the abduction of a free negro, with an intent to deprive him or her of liberty.</p> <p>2. Free negroes have all the rights of property and protection, which white persons possess, with the exception that they cannot with force, repel force, exhibited by a white man, and a less provocation might excuse a white man in an assault and battery upon a free negro, than would in the case of a white person.</p> <p>3. In an indictment for an assault and battery, or imprisonment of a frenegro, it is not necessary to allege that the defendant knew the negro was free, as the act is, in itself, unlawful, and where this is the case, a scienter is unnecessary. There is no distinction between an indictment for an assault and battery on, or a false imprisonment of, a free negro and a white man, unless it is to allege that the person, the subject of the outrage, is a free negro.</p> <p>4. On the trial of an indictment for an assault and battery, and false imprisonment of certain free negroes, the record of a recovery, in writs of ravishment of ward, establishing their freedom, was received in evidence as ‘prima facie proof of freedom to rebut the presumption of slavery arising from color. Held that it was properly admitted, and that the provision of the Act of 1740, (7 Stat. at Large, 397,) which directs that “if” in a writ of ravishment of ward, “judgment shall be given for the plaintiff, a special en-. try shall be made, declaring that the ward of the plaintiff is free,” is not confined in its operation against the plaintiff and his privies only. Held also, that the record was admissible in evidence independent of this provision. Vide 1 Starkie on Ev. 243, sec. 84.</p> <p>5. Where the Legislature intending to appoint a particular person a Justice of Quorum, used the name of an individual not known to reside in the district, and the person really intended, nevertheless, qualified and acted as such, his acts held good. Vide McBee vs. Hoke, ante, p. 138.</p> <p>6. Where the proof was, that a deed of emancipation was once in the Clerk’s office, and that it was not there now, accompanied by circumstances calculated to create a strong belief that it had been sureptitiously taken by the defendant, proof of its contents were admitted. Vide Monk vs. Jenkins, 2 Hill Ch. Rep. 9.</p>

Before O’Neall, J. at Union, Fall Term, 1843. This was an action of trespass, for beating the plaintiff, stopping his wagon, and compelling him to fly from and leave it. The proof abundantly established the case against Wm. F. Reynolds, sen’r. and William Liles. The proof against Wm. F. Reynolds, jun’r. was slight; it was that while his father and Liles had stopped the plaintiff’s wagon, on Sunday, he went for the constable to seize the wagon, for a debt of his father, Wm.

Before Wardlaw, J. at Sumter, March Term, 1843. Two of the defendant were deputy sheriffs: the third had an interest in urging an execution against the husband of the plaintiff, John L. Elwell, now deceased. Tt appeared that under writs of fi.fa. against J. L. Elwell, the defendants took from the arms of the plaintiff, a little negro, that belonged to George Frierson.

<p>1. Where partners were sued within the summary jurisdiction and one of them was examined by the plaintiffs on interrogatories for the purpose of proving their demand, if his co-defendants choose to examine him as a witness, and neither he nor the plaintiffs object to it — it makes him, to all intents and purposes, a witness, and his answers would then be as other testimony.</p> <p>2. The admission of the witness so examined after dissolution that the articles were purchased for the firm, was enough to bind it, and it does not diminish its effect that it was made on oath voluntarily by him.</p> <p>3. Where there was prima facie as well as Conclusive evidence of a" partnership shewn from the articles exhibited to One of the members of the firm examined upon interrogatories by plaintiffs as a witness, and also by his co-defendants, it was held, under the rule that where there was prima facie evidence of a partnership, declarations by one of the members is evidence to bind the firm, that the proof made by the witness was sufficient for this purpose,</p> <p>4. There is no objection to a witness thus examined on the score of interest, for as a partner he is liable to the whole debt as well as his'share of it.</p> <p>5. Each partner is of course liable on his contract made by him, and his individual liability may be perfect to the creditor and yet his declarations will bind the firm. Where articles are delivered to the acting partner of a firm during the partnership, all are liable, whether regarded as ostensible or dormant partners. Yide Collyer on partnership, 3.</p> <p>6. No restriction of liability, except by charter, is permitted to any of the partners; all are liable not only to the extent of their interest in the joint stock, but also to the extent of their separate property. Collyer on partnership, 212.</p> <p>7. Accepting the note of one, or even of all the co-partners, is no discharge of the original contract.</p> <p>8. Had the defendants pleaded a recovery on the individual note of one of the partners given for the demand on which the action was brought, or relied upon it, or given it in evidence, it seems it might have protected them.</p>

Before the Clerk of the Court of Common Pleas for Laurens District, Commissioner of Special Bail. This was an application made by the defendant, for his discharge from imprisonment, under the Prison Bounds Act.

Before Richardson, J. at Greenville, Fall Term., 1842. This was an action of trover for a wagon and mules. Held: that until the debt became due, the mortgagee had no right, in law, to sue for a tort to the property, and non-suited the plaintiff, who appeals, on the annexed grounds. 1. That the mortgage, under which the plaintiff claimed, vested in him a title to the property sufficient to maintain the action. 2.

<p>1. Where an action of debt was brought on the official bond of an Ordinary, against the administrator of one of his securities, in the name of the Commissioners of Public Buildings, for the purpose of recovering certain sums of money paid out by them for recording papers in the office of the Ordinary, left unrecorded by him, and which arose during his term of office, it was held that it was the official duty of the Ordinary to have recorded, not only all such papers aiipertaimng to his office, as he was expressly required to record by any Act of the Legislature of force whilst he was in office, but all such other papers as by the fee bills he is allowed a compensation for recording, and his omission to do so, was a breach of his official bond. Also held that an action could be maintained by the Commissioners of Public Buildings, on the official bond of the Ordinary, for money expended by them, in pursuance of the Act of 1837, (6 Stat. 577,) in having recorded such papers as it was his duty to have recorded.</p> <p>2. The Treasurers vs. Ross, 4 McCord, 273, considered and distinguished from this case.</p> <p>3. As a general principle, it seems the official bond of any officer may be sued and damages recovered, for injury to an individual, arising from official default, without any special Act to that effect.</p>

Before Q’Neallj J. at York, Fall Term, 1843. This was an action of debt, on a single bill, (or sealed note,) which the plaintiff alleged was lost. The proof was, that a settlement was made between them, on the 23d. of November, 1841, and that the defendant gave his note, under seal, for the balance, which, by the gentleman who drew it, was cut off, backed, and left lying on the plaintiff’s table in his dwelling house.

Before Richardson, J. at Georgetown, Spring Term, 1843. This was an action brought by the plaintiff against the defendant, as a common carrier, for the loss of goods shipped by plaintiff on a vessel of the defendant, called the Harvest, which vessel was wrecked on the Georgetown bar, in February, 1839. The plaintiff proved the shipment of the goods, and their value, which amounted to something over five thousand dollars.

Before Wardlaw, J. at Camden, March Term, 1843. The defendant was indicted for the murder of John Pettigrew. The case detailed by the evidence was briefly as follows; On Tuesday morning, 27th December, 1842, Dozier was drinking at the house of John duinny, and was heard to say that he meant to whip Petigrew.

Before O’Neall, J. at Fairfield, Fdll Term-, 1842. This was ari action on a covenant for the sale of all the Imorus multicaulis trees growing on the plantation of the late William Ellison, deceased, except one half of the standard trees. The following proof w'as given in the case: John A. Peay, who subscribed the contract as a witness, proved that he saw it executed: the body of the covenant was, he said, in the hand writing of the defendant.

Before O’Neall,' J., Chester, Fall Term, 1842. This was an action of trover for two negroes, Lilly and James. The case may be stated as follows. A Mr. Phillips was the owner of Lilly ; he died insane, upwards of twenty years ago, leaving his widow, Margaret, crippled, from blows inflicted upon her by him during his insanity. He left no property, except the woman Lilly, and his watch. His widow had undisturbed possession of the whole till her death.

Before Wardlaw, J. at Marion, Fall Term, 1843. The defendant,'! ho mas Evans, was, 1st March, 1843, ai'rested under three writs of ca. sa. at the several suits of | Weed & Fanning, E. W. Charles, and-Gibson, which I had been lodged 2d February preceding. He gave bond! for the prison bounds, filed his schedule, gave notice, andf applied for his discharge under the insolvent debtors’s Act.

Befóte Butler, J. at Laurens, Fall Term, 1843. This was an action of debt on two single bills, both bearing date 13th Oct. 1838, each for the sum of $1150 82, drawn by N. V. Van Patton, John S. James, and John Garlington, the defendant,, the latter two of whom were the sureties of the said Van Patton, and payable to the plaintiff on the 1st January, 1840 and 1841, respectively.

Before Butler, J. Abbeville, Fall Term, 1843. These were indictments under the Act of 1812, to prevent the practice of duelling. Both defendants were convicted; the first, as stated, of sending, and the other of bearing, a challenge to fight a duel.

Before Wardlaw, J. at Newberry, Spring Term, 1843. In this action of assumpsit, the plaintiff sought to recover $280, for his wages as overseer in the year 1841, upon the defendant’s plantation, on Timothy creek, three miles from the defendant’s residence.

Before Richardson, J. at Laurens, Fall Term, 1842. The Ordinary of Laurens District had admitted to probate the supposed last will of Abner Teague, deceased. And this was an appeal from the decision of the Ordinary. Two of the subscribing witnesses (the third being absent from the State) proved the will; and prima facie the sound and disposing mind of the testator, (fee. very fully. The objections were then offered— 1.

Before Wardlaw, J. at Charleston, May Term, 1842. This was an action for killing a cow and hog. The parties live on James’ Island, their plantations separated in one quarter by a creek, fordable at low tide, and in another quarter by a public road running through a lane, on the several sides of which are their pastures. The plaintiff’s plantation is managed by his driver, Stephen. The defendant i-esides on his.

Before his Hon. Judge King, Recorder of the City Court of Charleston. This was an action of assumpsit — plea, the general issue, non-assumpsit. In this case it was admitted that the defendant has long, carried on business in a shop in Broad-street, in the city of Charleston. But it was also admitted that he resides without the city, and not within the jurisdiction of the city court.

Before Evans, J. at Charleston, March Term, 1843. This was an action of debt on the exemplification of a judgment of the City Court of New York. Plea — nul tiel record. Exemplification of Judgment.

Tried in the City Court of Charleston, April Term¡ 1842, before his Honot the Recorder. This Was ail action of assumpsit for hay, corii and oats, said to be furnished by the plaintiffs to defendant. The following is the evidence:— Geo. F. Kinloch, sworn. — Produced and proved the books of plaintiffs; charge is to Geo. W. Brown for W, T. Hieronymus. Cross-examined. — He said these are the books of original entry. The entries are in his hand Writing.

Before Wardlaw, J. Conwayboro'1, November Term, 1842. Trespass to try titles. Suit commenced March 10,1841. The land in dispute was a large tract of swamp and adjoining pine land on the little Pee Dee, the greater part of which was uncleared.

Before lxis Hon. Judge King, Recorder, in the City Court of Charleston, April Term, 1843. This was an action on a process in assumpsit to recover a balance due on a consignment of lemonons, alledged to have been sold to defendant, on account of the plaintiff. • Mr. Mowry stated, that he had received a letter, which he produced, of the 6th of June, 1842, from Mr. Draper, covering a bill of lading and invoice of 60 boxes of lemons, in fine order.

Tried before his Honor, the Recorder, in the City Court of Charleston, January Term, 1843. This was an action of assumpsit on note. The question which arose was, on a plea to the jurisdiction of the City Court. It was admitted that the defendant had lived for two or three years in the city of Charleston, and at the time that he made the note sued, and that he had removed and resided beyond the bounds of the city only eleven days before the suing out of the writ against him.

<p>Before Evans, J. at Charleston, Spring Term,, 1843.</p> <p>The first of the above stated cases was regularly on the issue docket, at the March Term of the Court of Common Pleas for Charleston district, and when called, was, at the instance of the defendant, marked “judgment confessed.” On the declaration is endorsed a confession of judgment in the usual form, signed by the defendant, without date, upon which judgment was signed and entered on the 8th of April, 1843.</p> <p>The second case was not on the docket. There is endorsed on the declaration a confession of judgment in the usual form, signed by the defendant, and dated 7th April, 1843, and also the following memorandum, in the hand writing of Mr. Brewster, one of the plaintiff’s attornies : “judgment to be confessed, and entered up on the rising of the court in January.”</p> <p>On motion of Messrs. Bailey and Brewster, his Honor made the following order, viz :</p> <p>"Union Bank vs. A. G. Magrath. ) Judgment by condession, the case</p> <p>Hiram Hutchinson vs. A. G. Magrath.)Judgment confessed 7th April, 1843, for $2,108 88.</p> <p>The judgment in the first mentioned of the above cases having been confessed during the present Term, the case being on the docket, and the Clerk having signed and entered up judgment, by confession, on 8th April, 1843, it is, on motion of Bailey and Brewster, the attornies of .the plaintiffs in the second of the above cases, ordered that the Clerk take the judgment in the said first mentioned case off the file, and that he do not enter the same until the rising of the court, conformably to the 11th Rule of Court.”</p> <p>The plaintiffs in the first case appealed, on the following ground, viz:</p> <p>That a judgment by confession' máy be entered at any time, and that such has been the immemorial practice of the courts of this State, following the practice of the English courts.</p> <p>In the third case stated, the plaintiff obtained a rule against the defendants, under the following state of facts.</p> <p>The plaintiff, Hiram Hutchinson, during the present Term, obtained judgment against A. G. Magrath, for $2,-108 88, which was confessed on the record of the 7th April, 1843 ; and he also obtained judgment against John Magrath, for $3,185, 78, by assessment, on reference to the Clerk, on the 25th March, 1843. The first of these cases was not on either of the dockets of the court, but was endorsed, “ judgment to be confessed, and entered up on the rising of the court in January.” The second case was on the writ of enquiry docket for this Term. The respondent, Ker Boyce, obtained judgment against A. G. Magrath, for $12,116 34, by confession before the Clerk, under the Act of 1839, which confession was made on the 13th April, 1843, and entered up as of that day; and the respondent, Christopher F. Stoney, obtained judgment against John Magrath, for $5,018, by confession, on the record of proceedings in an action, made on the 15th April, 1843, and entered up same day. But neither of these two last mentioned cases was on any of the dockets of the court for the present Term. The plaintiff, Hiram Hutchinson, obtained a rule on the respondents, Ker Boyce and Christopher F. Stoney, to show cause why the judgments severally entered up by them, as above mentioned, should not be taken off the file, or set aside, and the entry thereof suspended until the last day of the Term, conformably to the 11th Rule of Court; but on the return thereof, his Honor discharged the rule.</p> <p>As the cases were not on the docket, the presiding Judge did not consider them as coming within the rule of court.</p> <p>The plaintiff, Hiram Hutchinson, appealed, and moved that his Honor’s decision be reversed, and the rule made absolute, on the following grounds:</p> <p>1. That every judgment, whether it be on a confession or otherwise; and if by confession, whether it be in the common form, on the record of proceedings in an action, or in the special form of confession before the Clerk, prescribed by the Act of 1839 ; and if on proceedings in an action, whether the case be on the docket or not, operates only as the judgment of the Court, and is therefore subject to all the rules of the Court relative to its judgments, including the 11th Rule, which provides that “ no judgment obtained at any court shall be entered up previous to the day of the court’s rising.”</p> <p>2. That the whole term is, in legal contemplation, but one day, and every judgment, however obtained, and in whatever form entered, being the act of the court, all judgments entered during any Term are entitled to equal rank as liens; and the 11th Rule of the Courtis, in fact, intended merely to prevent the allowance of a priority, from the apparent date, to which a judgment entered before the last day of Term, is not, in law, entitled. Nor do judgments confessed under the Act of 1839, constitute an exception to the general rule, inasmuch as that Act expressly provides that judgments so confessed, “ shall have like force and effect as if such judgment was founded on any verdict or decree rendered in open court.”</p> <p>Judgments by confession may be entered at any time. Cited 1 Tidd, 503 ; 3 Blackst. Com. 397.</p> <p>The practice has been uniform to enter up judgments by confession, as soon as made. This has been done in term time and out of it, and there is no distinction between cases on and not on the docket. Cited 1 Speer’s Rep. 114.</p>

Before the Recorder of the City Court of Charleston. This was a summary process, returnable in July term, 1842. Held: that if the party die after the assizes begin, though before the trial, that is within the remedy of the statute, for the assizes are considered but as one day in law, and this is a remedial Act which shall be construed favorably. 1 Salk. 8.

<p>Before Evans, J. Charleston, Spring Term, 1843.</p> <p>In this case, an action had been brought against Jones by the plaintiffs. The declaration was filed, and an order for judgment by default was made on the 12th August, 1841. The case was put on the inquiry docket, and was ordered to be referred to the Clerk, to assess the damages, on the 8th January, 1842. Damages were assessed the same day. During the term, and before any judgment was regularly entered up, the defendant, Jones, died. The judgment was entered up on the last day of the term, viz: 29th January, 1842.</p> <p>At this term, Mr. Northrop made a motion to set aside the judgment, on the ground that it could not be entered up without sci. fa. to the executors or administrators. As nothing more was to be done, the debt being ascertained, the presiding Judge thought no sci. fa. was necessary, and refused the motion. The notice of appeal is annexed.</p> <p>1. Because, at common law, the case would have abated on the death of the defendant, before final judgment, which could not have been entered up until the rising of the court.</p> <p>2. Because, according to the provisions of the Act of 1746, which prevents the abatement of the action, the plaintiff should have taken out a writ of scire facias against the administrator of the defendant, to shew cause why the damages assessed should not be recovered by the plaintiffs.</p> <p>3. Because the order of reference to the Clerk is only an authority to the Clerk to enter up the judgment on the rising of the court, but is not a judgment of the court; and that the defendant dying after the interlocutory judgment, and before final judgment, the subsequent proceedings should have been according to the A. A. 1746.</p> <p>4. Because the judgment being entered up against the deceased intestate, the administrator; in the distribution of the assets of the estate, would have to class the debt among other judgments, or not consider it at all; whereas, the character and degree of the debts of a deceased person are fixed and determined at his death; and at that period, the debt not having been reduced to judgment, could not take rank as such, which would be contradictory and anomalous.</p> <p>5. Because the decision of his Honor was contrary to the rules and practice of the court. Respectfully submitted.</p> <p>By the common law, personal actions abated on the death of either party at any stage of the proceedings. The maxim was “ actio personalis moritur cum, persona,” and it followed from the nature of judicial proceedings which were ore tenus; cited Stat. of Car. 2, c. 8. Pier-sail vs. Smyth, 1 Keble, 477. In this case the court disagreed. The same case-is found in Siderfin, p. 151, and is cited in the index to Keble, (“ By death after verdict stayeth judgment, or not, at discretion”) — this was A. D. 1663, or 17 Car. 2. Cited Hobart Rep. 129 — “after the verdict, the court was informed that one of the women was dead, whereupon judgment was stayed and in this case, Styles’ Rep. 299, are cited, where “an action was brought against four defendants, and before a verdict one of them died, and a verdict was found against the defendants. Twysden prayed the plaintiff might have judgment against the other three. Roll, C. J., “if you will relinquish your damages as to the person dead, you may have judgment against the resit.” In Cro. Car. 509, it Was held by all the court that the death of plaintiff or defendant after verdict by nisi prius, and before the day in banco, shall abate the writ or bill.</p> <p>To settle these uncertainties, and to avoid unnecessary suits and delays, it was enacted by the 17 Car. 2, c. 8, “ that the death of either party between the verdict and the judgment, shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict.” By the common law, if the plaintiff dies after the day in banco judgment shall be entered, for no continuances are afterwards entered. 1 Sid. 462. At common law, the death of a sole plaintiff or defendant, before final judgment, would have abated the suit, but as the judgment relates to the first day of the term, if the party be alive after that day, it may be entered up after his death; Tidd. 982. This is consistent with the 17 Car. 2, which provides for the death between verdict and judgment; and in applying this principle to our practice, this distinction must be attended to — that the days in banco, which were all considered as the first day of term, were after • the verdict in the term preceding, as at the assizes when the final judgments were entered up, thus corresponding with our last day of term, before which judgments shall not be entered up by the ] 1th rule of court. In Comyn’s Dig. (Title Abatement H,) “if there be a special verdict in vacation, and plaintiff die in term, judgment (by consent) may be entered as of the first day of the present term.”</p> <p>The Stat. of 17 Car. is strictly confined to verdicts, and does not extend to cases where either party .dies after interlocutory judgment, <&c. Tidd. 1116. It is true this statute has been considered a remedial Act, as in 1 Salk. 8, and 7 T. Rep. 31, where the assizes and sittings are considered as one day; but nevertheless it has never been enlarged to any cases but where verdicts are given, and even then, where there are two or more parties, plaintiff or defendant, the death of one caused an abatement. Carthew, 149, 200; 1 Shower’s Rep. 402 — 3—4. 2 lb. 177.</p> <p>Then came the Stat. 8 and 9 Wm. 3, c. 11, which provides for cases of death between interlocutory and final judgment, “ if such action may have been,” <fec., Tidd, 934, and when there are two or more persons, and one die, and the cause of action could survive. There is a marked difference between the proceedings under these two statutes, and they should not be confounded by misapplication to the circumstances. The rules of practice must be strictly observed. Cited Tidd; 1118; 1 Wilson, 243; 1 T. Rep. 38S; 1 Wm’s. Saund. (5 ed.) 66, (2.)</p> <p>The judgment is not under this statute against the party dead, but against his executors, (fee. Salk. 42. Bingham on Ex’nl1. 134, 135. Archbold’s Prac. 291; Forms, 439 lb. These forms are for scire facias. 1. In case the defendant die after interlocutory judgment, to show cause why the damages should not be assessed; and 2. After assessment, why the damages so assessed should not be recovered; and are well worth a special examination, as shewing the practice to be as contended for by the appellant.</p> <p>We have now shewn, 1st. that at common law the action would abate. 2. It is not saved by the 17 Car. 2, as that applies only to verdicts, and where there has been no interlocutory judgment. 3. That it either abates or is saved by 8 and 9 Wm. 3, c. 11, and that the proceedings must conform to the requisitions of the statute. The rules of practice, and the forms upon damages assessed on writs of inquiry executed, have been shewn. As to writs of inquiry, &c. cited Bingham on Judgments, 4, 5; 2 Wm’s. Saund. 107, (n. 2;) Tidd, 47. It is clear, therefore, that the reference to the Prothonotory, in Common Pleas, and Master in King’s Bench, is, as is expressed by Archbold Practice, 2 vol. 39, “ as substituted for a writ of inquiry.” See lb. 32, et seq. The same rules therefore apply to the calculation by the Prothonotory and Master, as to the assessment on writs of inquiry executed and returned. Our Act of 1809 (7 Stat. 308) simply declares that the clerk shall exercise the same functions as the Prothonotory and Master in C. P. and K. B. — fixes his fee, and enacts what was and'is the practice at Westminster, relieving the plaintiff from proof of his demand, which was supererogatory.</p> <p>“ The order for judgment,” in the Act of 1809, is only interlocutory judgment, and is the same as what is termed “judgment by default,” in the Act of 1791. Cited Dubose vs. the Administrator of Dubose, Cheves, 29; Kincaid vs. Blake, 1 Bailey, 21, (note.) The case of The Executor of Lynch vs. Executor vf Inglis, 1 Bay, 449, was not only decided, as the reporter remarks, on the equity of the statute of Charles, but on the ground that the suit was brought on a bond, and that the order for judgment, was a final judgment — -that therefore, being an order for judgment, or a judgment by default on bond, the judgment was obtained before the death of defendant.</p> <p>The importance of settling the rule is maintained in this case. Under the Executor’s Act of 1789, “judgments, mortgages, and executions, the oldest first,” are to be paid by the executor, in a certain degree of priority. 1 Bailey, 111. “ Debts take rank according to the footing on which they stood at the death of the testator, to which period the order of payment must be referred.” Hutchison vs. Bates, Executor, et. al.</p> <p>Now, if at the death of testator, there had been several judgments, what would be the date of the judgment in this case ?— Judgments in our State, recovered in term time, bear date from the entry on the rising of the court. — They are'not considered judgments until then. A judgment confessed by intestate during term time, taking date from the entry, would, as decided in Magrath’s case this term, have had priority. Even then, if this case had been within the statute of 17 Car. upon a verdict on issue tried, at the defendant’s death it would not have been a judgment. What then ? Its grade being fixed at the death, and not a judgment, it would have been a simple contract debt, and come under the rule in Hutchison vs. Bates — 1 Bailey, 111. This however may may be considered as not the true issue now, but to depend on other proceedings, should any be adopted by plaintiffs. It may not be improper to cite here, 6 T. Rep. 368; 2 Strange, 882-1081, where the injustice and inconvenience of the legal-fiction about the first day of term, respecting judgments under the English practice of confession by warrant of Attorney, will demonstrate the improvement of our system, both as to confessions in propria persona, and of our judgments not being entered until the last day.</p>

<p>1. Plaintiff, in an action of covenant, set forth in the first count of his declaration, a covenant by the defendant to pay him, at a certain rate per year, from the date of the covenant to a particular time, for his ‘services as a clerk or attendant to him, alleging a general performance, and assigning as a breach, that there was due him for his salary, at the end of the term, a specific sum, which defendant refused to pay; and in the second count set out the same covenant, and averred performance up to a particular time, that he was ready and offered to perform during the remainder, but was dismissed and ejected by the defendant.</p> <p>2. Defendant, amongst others, on which no question is made, alleged in his second plea, that he did pay the plaintiff’s salary “so long as the said plaintiff served and acted as clerk or attendant of him,” the defendant. The third was like the second plea, with the variation that the salary was paid “ so long as the plaintiff faithfully and diligently served the defendant as clerk,” &c.; both of which pleas concluded to the country. The fourth plea was a transcript of the second, the fifth of the third, and both concluding with a verification.</p> <p>3. Held, that two of these pleas were bad, as the same plea cannot conclude indifferently to the country, or with a verification.</p> <p>4. The same facts stated in different pleas cannot have different conclusions ; they cannot be a direct denial and a confession and avoidance of the cause of action stated in the declaration.</p> <p>5. Neither of the four pleas of the defendant were an answer to the declaration, as they neither deny nor admit, and avoid the general performance averred in the first count, nor the partial performance and excuse alleged in the second, but set out a matter foreign ; that he paid the salary so long as the plaintiff' served him:</p> <p>6. Held, that these pleas were properly stricken out, on motion under the rule of court.</p>

'Tried, in the City Court of Charleston, July Term, 1843, before his Honor M. King, Recorder. Held: in his own right, twenty-four shares in the road and the bank, and he owned also in trust, other five .shares, in all twenty-nine shares ; on these shares he had paid two bank instalments, equal to twenty-five dollars on each; these were shares reduced from a larger number; on each of these shares he had paid fifty-five dollars to…

<p>1. Where the surviving widow of a pauper gave a promissory note, shortly after her husband’s death, to one of his creditors, for a demand which had been contracted in his life time, in consideration that such demand should be discharged against the estate of the husband, by virtue of her undertaking to pay it, it was held not to he such an obligation as she could be compelled to pay.</p> <p>2. An undertaking to pay the debt of another, on condition that that other shall be entirely discharged from liability, is founded on a sufficient consideration, upon the ground that the promissor in such case has become an original debtor, on the discharge of the former debt, which is supposed to deprive the promissee of some previous advantage, or to subject him to some prejudice and delay in realizing it.</p> <p>3. But the defendant’s undertaking being voluntary, and without benefit, so far as she was concerned, and one which subjected the plaintiff to no possible loss or detriment, and being thus without consideration, was nudum pactum and void.</p> <p>4. The abstract position, that a moral obligation is a sufficient consideration to support an express promise to pay money, has been, in general, controlled by a state of facts that would resolve it into a question more resembling one of legal justice, than moral obligation, founded in conscience and piety. Vide McMorris vs. Herndon. (1)</p> <p>5. Corbet vs. Cochrane, Riley’s Law Cases, 44, distinguished from this case.</p>

Before liis Hon. J udge King, in the City Court of Charleston., January Term, 1843. This was an action of covenant on a deed of guaranty executed and delivered to plaintiffs by defendant, by which he guaranteed to them payment for goods, which from time to time they might sell to one D. Kamme.

Before Evans, J. ’Charleston, Spring Term, 1843. This was an action of debt on a bond, dated 6th May, 1831, with a condition to pay $1,344,50, on the 1st March 1832, with interest from date. It appeared, from the evidence, that a part of the debt had been due a great many years, and that, at the date of the bond, Wightman had loaned to Butler a further sum of $500, and this bond was given for the money so loaned, and the old debt.

Tried in the City Court of Charleston, before Hon. M. King, Recorder, July Term, 1843. This was an action of assumpsit for work and labor rendered, and materials furnished, by plaintiff, as a carpenter, to and for the use of the defendant, at her special instance and request. The plaintiff, after the evidence had been gone into, submitted to a non-suit, with leave to move to set it aside.

Tried in the City Court of Charleston, before the Hon. M. King, Recorder, 'November Term, J843. Assumpsit — indorsees against drawer of a promissory note. Held: that the assignees of the bankrupt, Rasthney, must be joined with the solvent partners, to recover the debts due to the firm ; and the same doctrine ■tfvas recognized in Thomason vs. Frere, 10 East, 418. And this is also the law of New York. Dob vs. Halsey, 16 John. 34, 40.

Before Wardlaw, J. Charleston, May Term, 1842. This was a rule on the sheriff. The facts of the case will be understood from his return. Return of the Sheriff, In this case several writs of attachment were issued, and the store and goods lately in possession of defendant were claimed by one H. C. Guerry, as his agent or clerk; upon which, pursuant to the exigency of the writ, he was garnisheed in each case, and he duly made his returns.

Tried in the City Court of Charleston, before his Honor the Recorder, .January Term, 1843. This was an action of debt for a penalty against the defendant, as the keeper of a retail grocery, for a violation of the Ordinance of the 1st of June, 1840, prohibiting the having of spirituous liquors without a license, in the shop or on the premises. 'I he City Treasurer stated that he did not know the defendant, but knew that he had no license to sell spirituous liquors.

<p>1. Where a suit was brought in the court of Common Pleas, upon a mere claim for damages, as for supposed extra work, and during its pendency, copies of a writ in foreign attachment were served both upon the defendant and upon the plaintiff’s attornies, at the instance of a creditor of the plaintiff — it was held that the pending suit was not the subject of attachment.</p> <p>2. In an action of covenant brought in the circuit court of the United States, the plaintiffs obtained a verdict, and entered up judgment for the amount of the recovery. Afterwards a writ in foreign attachment was sued out against the plaintiff, copies of which were served on his attorneys, and the defendant. Held that the attachment as to the recovery could not be supported.</p> <p>3. The words “monies and debts,” used in the Attachment Act, are to be construed to mean debts due by bonds, notes and book account; and to make them liable, they must themselves be attached, so that they can be delivered to the plaintiff The mere service of the debtor would not be an attachment of the security, and hence, not of the debt.</p> <p>4. In this State, the practice of attaching whenever a sum certain is due by the garnishee to the absent debtor, not evidenced by bond or note, by summoning the debtor, is too inveterate to be now shaken, and as it has the sanction of the custom of London, it ought not to be interfered with; hut the words of our Act are not to he construed to mean more than that custom.</p> <p>5. The recovery in the United States Court, if the attachment were sustained, would lead to a conflict of jurisdiction, which is always to be avoided.</p> <p>6. The rule of our court shews that where the fund is in another court, an attachment will not lie. Vide Young vs. Young, 2 Hill Rep. 426.</p> <p>7. The only case where an attachment may have effect after suit, is where the evidence of the debts, as bonds, notes, or books of account, may be seized, and their seizure would operate as a transfer or assignment to the plaintiff, authorizing him to collect them by legal process in the name of the absent debtor, and when collected, to receive the proceeds.</p> <p>8. To dissolve the attachment and turn the proceeding in rem into a personal action, and give the defendant a right to appear and plead, he must put in special bail, but that is when the owner is a party by his money, goods, chattels, &c. When nothing is legally attached, it is as if no service, binding the party, was made.</p>

Before Wardlaw, J. Charleston, May Term, 1842. This was an action against the owner of a sloop, trading between Ashepoo and Charleston, to recover from him, as a common ^carrier, the value of goods shipped and lost.

Before Richardson, J. at Charleston, October Term, 1843. Assumpsit on three bills of exchange, drawn by James Robertson & Co. on Andrew Taylor of Liverpool, at sixty days sight, payable to the order of drawers, and by them endorsed to the plaintiffs, Heckscher, Coster and Matfield. The bills were protested for non-acceptance, on 6th April 1840, and for non-payment on 8th June, 1840.

Before Evans, J. Beaufort, Fall Term, 1843. This was an action by the plaintiff, against the defendant, to recover the plaintiff’s fees, as gaoler, for maintaining in gaol one Redden C. Deloach. It appeared from the evidence, that the defendant sued out a bail writ against R. C. Deloach. After judgment, a ca. sa. was issued and returned non est inventus.

<p>Before Evans, J. Charleston, March Term, 1843.</p> <p> Suggestion in Prohibition. </p> <p>“Be it remembered, that on this twenty-third day of March, An-no Domini, 1843, comes here into the said court at Charleston, for the district of Charleston, and State aforesaid, John L. Gervais, by James.Simons, his attorney, and gives the said court here to understand and be informed, that whereas, heretofore, to wit, on the first day of June, A. D. 1841, Solomon Legare, Kinsey Burden, jr., and William Horace Rivers, then being Commissioners of the New Town Cut, did issue to the sheriff of the said district, their warrant or order, reciting that whereas the able-bodied male slaves belonging to the relator, were liable to work on the said Cut, and the said slaves having been duly summoned to work thereon, on the 10th and 11th days of August, 1840, and that the said relator had been duly summoned to shew cause why he should not be fined, and had failed so to do, and that he had thereby become liable to pay a fine of twelve dollars, to be recovered by warrant of distress, and requiring all and singular the sheriffs of the said State to levy the said fine, together with the costs, of the goods and chattels of the relator; the said relator declares that the said execution or warrant of distress is unlawful and void, for the causes and. reasons following, that is to say: because the said Board of Commissioners of New Town Cut have no legal right to issue an execution or warrant of distress, for fines imposed by them ; that the said Board is subordinate to the general Board of Commissioners, composed of the Commissioners of Roads of Edisto, of Haulover Cut, on John’s Island, of the Roads on John’s Island, and Wadmalaw, and of the said New Town Cut; and that all such powers are vested by law in the said general Board. That even if the said Commissioners of New Town Cut have authority to issue an execution or warrant of distress, the same is void, being under the hands, but not the seals, of the said Commissioners. And furthermore, because the same was not issued until after the expiration of six months from the time of the alleged default and fine, nor was the same delivered to the sheriff of Charleston district aforesaid, until the 11th April, 1842; that on the- — day of-, 1840, at which time the relator was summoned to shew cause why he should not be fined for his default, the said relator alleges that there was no meeting of the Board of Commissioners of said New Town Cut, so that, if the relator had attended at the time and place specified in the said summons, there would then and there have been no person or persons present, lawfully authorized to receive his excuse, if he had had one to offer. That the said relator admits, that although he was summoned, he did not send his slaves, and committed default, but that he was then, and has always been, and still is, ready and willing to pay the fine to any person or persons authorized to receive the same. That with this view he actually tendered the amount of his fine, not long after the same was incurred, to the said Solomon Legare, one of the Commissioners aforesaid, but that the said Solomon Legare refused to receive the same, stating that it must be paid to the treasurer of the board. That this relator refused to pay his fine to the treasurer of the board, because the Board was not authorized by law to have a treasurer; and even if the said board was authorized by law to have a treasurer, their treasurer whom they claimed to have at that time, had not given bond and security for the faithful discharge of the duties of his office, and a faithful account of the public monies, and therefore was no treasurer at all. That furthermore, at the time when the relator was a defaulter, Paul T. Geryais, relator’s father, committed the same default; that the said Paul T. Gervais tendered his fine to the said Solomon Legare, who received the same. That the relator, in the year 1840, addressed each member of the said Board, by letter, enquiring whether any individual of their Board was authorized to act as treasurer, but he received no reply ; and the relator contends, for the reasons above set forth, that the said execution or warrant of distress is void and of no effect; wherefore the relator, imploring the aid of this court, prays that a writ of prohibition may be issued to the said Solomon Legare, Kinsey Burden, jr., and William H. Rivers, or their successors, who compose the said Board of Commissioners of New Town Cut, and to the sheriff of Charleston District, restraining them from any further action touching or concerning the premises.”</p> <p>The grounds on which the relator applied for a prohibition, and all the facts, appear by the annexed copy of the suggestion. The court refused the motion, because it was not considered that any of the grounds entitled the relator to the prohibition prayed for.</p> <p>The relator appealed, oh the following ground :</p> <p>That the grounds stated in the foregoing suggestion are sufficient to warrant the ordering of the said writ.</p>

<p>Before Richardson, J. at Charleston, October Term, 1843.</p> <p>This was an action brought to recover three hundred and eighty dollars, on an open account, from the defendant, for the meat, board, lodging, necessaries, care and attendance, found and provided in behalf of the plaintiffs, by the commissioners of the poor house, for a female slave named Bella, alleged to belong to the defendant, in the maniac department of the poor-house, in the City of Charleston, from 31st of May 1839, to June 30th 1841, at 50 cents per day.</p> <p>It appeared in evidence, that the slave Bella was committed to the poor-house by the Honorable Henry. L. Pinckney, Mayor, on 1st March, 1838. Mr. Pinckney testified, that she was brought to the guard-house at that time as a maniac, dangerous to the neighborhood, by a habit she had of throwing pieces of fire about her room, and that she was a public nuisance, whom he thought the good of’ the community required should be committed for safety to the maniac department of the poor-house. The warrant of commitment was produced, in which Mr. Pinckney directed that the master of the poor-house should have her treated as a maniac, subject to the order of the board of commissioners.</p> <p>The master of the poor-house proved, that the slave Bella continued in the poor-house from 1st of March, 1838, to the present time, as a maniac; that she was fed, clothed, and provided with all needful attendance ; that the price of 50 cents per day was, he thought, a reasonable charge, and the charge usually made by the commissioners of the institution.</p> <p>To prove ownership in the defendant, a bill of sale was offered in evidence from Mrs. Harriet Pinckney Rutledge, to Solomon Cohen, trustee of Henrietta Y. Cohen, dated 19th September, 1837, for two slaves, viz : Bella and her son James — consideration $675 — no declaration of any trust, in any part of the bill of sale. The conveyance was made “to Solomon Cohen, trustee, as aforesaid.” The bill of sale contained these words “warranted sound,” and it was executed under seal.</p> <p>The record of a judgment was offered in evidence, from which it appeared that an action of covenant was brought in the name of Solomon Cohen, Jun., trustee of Henrietta Cohen, against Mrs. Harriet Pinckney Rutledge, in the Court of Common Pleas at Charleston, founded on the warranty of soundness contained in the bill of sale.</p> <p>The breach alleged in the declaration was, that at the time of the sale the slave Bella was subject to insanity and unsound. The case was tried at May Term, 1839, before Judge Earle, at Charleston, when the jury found a verdict, which, as it is material to the issue, is here copied.</p> <p>Value of Purchase, ■- - - $675 00</p> <p>Interest, - - - - 82 56</p> <p>Damages, - 370 95</p> <p>$1128 51</p> <p>Value of Boy deducted, - 250 00</p> <p>$878 51</p> <p>We find for the plaintiff eight hundred and seventy-eight dollars, fiffty-one cents.” This judgment has been satisfied.</p> <p>Mr. Jacob C. Levy deposed, that the slaves Bella and James had been purchased for his daughter Henrietta, who married Mr. Octavius Cohen, and the bill of sale was made out to Solomon Cohen, her trustee. That before the action of covenant was brought, he had tendered both slaves, Bella and her son James, to Mrs. Rutledge, who had refused to accept them back, whereupon the action was commenced. That after a notice of appeal from the verdict had been withdrawn by Mrs. Rutledge, witness, on behalf of Mr, Solomon Cohen, trustee, to-wit, on 13th of March, 1840, addressed a letter to the master and commissioners of the poor-house, which being highly material to this cause, is here copied.</p> <p>“CHARLESTON, 13th MARCH, 1840.</p> <p> To the Master and Commissioners of the Poor-House. </p> <p>Gentlemen. — I beg leave to hand you the enclosed copy of a notice to Mrs. Rutledge, in relation to the woman Bella, now in your institution, which I must request you to consider as a notice to yourselves of my intention in declining any further responsibility for the future expenses of Bella, or for her expenses since the verdict, unless compelled by law.</p> <p>I have the honor to be,</p> <p>Gentlemen, your obedient,</p> <p>SOLOMON COHEN, Trustee.</p> <p>Per J. C. LEVY, Agent.</p> <p>“I have paid the amount of $236 50 to the time of verdict, being from the 19th January, to the 3d of February, 1838, when she was taken out; and from the 1st of March, 1838, when placed with you by the Mayor, to 31st of May, 1839.”</p> <p>“Mrs'. Harriet P. Rutledge.</p> <p>'Madam, — The appeal in the case of Cohen vs. Rutledge, having been abandoned, leaving the verdict in full force, and it being settled by the verdict, that the contract for the sale of Bella is rescinded, so that she is now legally your property, I do not any longer feel under any obligation from the laws of humanity or otherwise, to be charged with her care.</p> <p>“I therefore beg leave respectfully to notify you, that Bella is at the poor-house, subject to your order, and must either remain there at your expense, or be disposed of as the master and commissioners may think proper, as I will not be responsible for her future expenses, nor any expense incurred since the verdict, unless compelled by law.</p> <p>I am respectfully,</p> <p>Your obedient servant,</p> <p>SOLOMON COHEN, Trustee.</p> <p>Per J. C. LEVY, Agent A</p> <p>“Charleston, March 13, 1840.</p> <p>It further appeared, that a copy of Mr. Levy’s letter to the commissioners, was transmitted by them to Mrs. Rutledge,'to which she replied, “that she disclaims all property in the woman Bella — that Mrs. Rutledge never placed her in the institution, nor had she in any manner signified her assent to such a course — that whatever expenses may have been incurred, must be paid by those who placed her there — that Mrs. Rutledge desired to be understood as denying distinctly any past, present, or future liability to the institution, for the expenses of Bella.”</p> <p>It was further proved by R. W. Seymour, Esq., who was an alderman in 1838, that he had committed Bella to the poor-house, on 19th of January, when the expenses were to be charged to Mr. Octavius Cohen; that she was discharged by the chairman of the commissioners, on 20th February, 1838 ; the expenses of her maintenance during that time had been paid by J. C. Levy, Esq. for S. Cohen, trustee, as stated by Mr. Levy in his evidence.</p> <p>A. H. Brown, Esq. proved that the slave James was purchased by the late C. C. Strohecker, who owned James at the time of his death in 1841.</p> <p>Here the plaintiff closed.</p> <p>A motion was made by the defendant’s counsel for a non-suit, on the grounds set forth in his notice of appeal; which was refused.</p> <p>The defendants then gave in evidence a letter written by Messrs. Bailey and Brewster, the Attorneys of Mr. S. Cohen, Jr. trustee, to Messrs. Walker and King, the agents .of Mrs. Harriet P. Rutledge, dated July 5, 1839, offering to return the slaves Bella and James. In this letter it was alleged, that the court in the case of Cohen vs. Hut-ledge, had held that the plaintiff would have the right of suing from time to time, for further damages on the breach of warranty.</p> <p>It was admitted, that Mrs. Rutledge had refused to accept the tender as offered in this letter.</p> <p>The presiding Judge charged the jury, that the defendant was the owner of the slave Bella, at the time the verdict against Mrs. Harriet P. Rutledge was rendered. That the effect of the tender proved by J. C. Levy, before that suit, did not rescind the sale. It merely gave S. Cohen the right to bring an action of assumpsit, as if the negroes had been received by Mrs. Rutledge. That as to the effect of the verdict against her, it did not rescind the contract. It leaves one negro to Cohen — this is no rescisión, but affirms the contract, and gives damages. That as to the tender of S. Cohen, after the verdict, in the letter of Bailey and Brewster, it offers a compromise only, and leaves the parties where they were. Then, the defendant Cohen was the owner of the slave Bella. That the next question presented was, is S. Cohen, as the owner, liable to plaintiff'?</p> <p>On this point the jury were instructed by the court that if the defendant had abandoned the negro, he was liable upon a quantum meruit. — That it was a question of fact to be determined by the jury, whether he had abandoned the slave Bella, but as to the extent of the defendant’s liability it should be for mere support only, confining the charge to the lowest possible sum for a bare sustenance ; and that such liability only arose by implication. That the remaining question was, whether the defendant Cohen, was liable to plaintiffs for the maintenance of the slave Bella, after his letter of March 13th, 1840.</p> <p>On this point the jury were charged, that up to this time, the defendant may be liable by implication, but after his express notice, the defendant was no longer liable— there could be no implied contract with him by the party who had been so notified ; and that after the date of that letter, no implication of law will authorize the poor-house to maintain Bella.</p> <p>The jury found a verdict for plaintiffs, of thirty-five dollars and eighty-eight cents.</p> <p>The plaintiffs appealed from the verdict in this case on the following grounds.</p> <p>1. That the defendant being the owner of the maniac slave Bella, and having abandoned her, and refused to maintain her, whereby the duty was cast upon the city authorities to support her, he became liable to the plaintiffs for the expenses of her maintenance, upon the principles of quantum meruit, from 1st June, 1841, to the date of the commencement of this action, to wit, 13th of June, 1841, at the rate of 50 cents per diem, as proved to be reasonable.</p> <p>2. That, it is respectfully submitted, his Honor erred in charging the jury, that the defendant was only liable from 1st June, 1839, to 13th of March, 1840, when notice wras given to plaintiffs that the defendant would no longer be liable for the expenses of the maniac.</p> <p>3. That his Honor erred in charging the jury, that the master, for about the period of six months only, was responsible to the plaintiffs, for the expence of the maniac’s sustenance, to be computed at the lowest possible rate, to-wit, bread and water.</p> <p>4. That the obligation which the law imposes upon the owner, to maintain his slave, is a legal duty, and an obligation of justice, from which the defendant cannot exonerate himself, by giving notice of his intention not to hold himself liable.</p> <p>5. That under the circumstances of the case, the plaintiffs, from inevitable necessity, became the agents of the defendant, to support the slave in question.</p> <p>6. That the verdict was contrary to law and evidence.</p> <p>The defendant also appealed from the verdict, arid moved that the same be set aside, and a non-suit ordered, conformably to his motion at the trial; or should that motion fail, then for anew trial; and in support of his said several motions, relied on the following grounds:</p> <p>1. That supposing the slave to have been the property of the defendant, there was no evidence, or pretence of any express contract by him to be answerable to the plaintiffs for her expenses, nor of any request, on his part, or any assent by him, to their interference with her ; nor any evidence of any benefit to him, or to the slave, or any necessity for their interposition for the support or maintenance of the slave, nor of any other ground of legal obligation, from which an assumpsit could be implied in law, but on the contrary, it was distinctly proved by the plaintiffs’s witnesses, that the slave was taken up and confined by the public authorities, for the public benefit, and because it was supposed to be dangerous to the public to permit her to go at large; and there was no evidence whatever, that all which was necessary for her support, and eve,n comfort, was not supplied by the person in whose possession she had been left by the defendant.</p> <p>2. That his Honor erred in charging the jury, that if they were satisfied the defendant had abandoned the slave, the plaintiffs were entitled to be reimbursed by him for the expenses of her support, although they could not claim more than was necessary for her mere support; whereas it is submitted, that to entitle the plaintiffs even to this, they should have gone further and proved a necessity for their interference for her mere support; and of this there was neither evidence nor pretence.</p> <p>3. That the verdict rendered in the action by the defendant against Mrs. Rutledge, ascertained his right to rescind the contract of the slave in question; and therefore the tender made by him before that action was brought, and his immediate abandonment of the slave, when the tender was refused, was a valid rescisión of the contract, and divested the defendant’s title to the slave; and that his Honor erred in charging to the contrary.</p> <p>4. That his Honor further erred in charging, that the defendant had no right to rescind the contract of sale, as to one of the slaves, whilst he retained possession of the other; and therefore, neither the tender, nor the verdict, nor both together, amounted to a rescission ; whereas it is submited, that even if Mrs. Rutledge had a right to insist that both slaves should be returned, yet as both of them had been tendered to, and both of them refused by her, the defendant had the right, which is ascertained and settled by the verdict against her, to retain the one slave for what he was worth, and consider the contract rescinded as to the other.</p> <p>5. That his Honor erred in charging the jury, that the contract of sale had never been rescinded, but that the defendant was still the owner of the slave, and liable to the plaintiffs for her support, if he had abandoned her; and the verdict conforming , to the charging is contrary to law and the evidence.</p>

Tried in the City Court of Charleston, before his Honor the Recorder, January Term, 1843. Debt on ordinance for a penalty for having liquor in a retail grocery store without license. The defendant in this case, before the jury wrns charged with the trial, challenged two of the jurors, under the Act of the 17th December, 1841, (p. 154) without shewing cause, and the plaintiffs immediately claimed the same right.

Before Richardson, J. Charleston, Fall Term, 1843. This was an action of assumpsit, on a bill.of exchange, drawn by Green & Redmond on the defendants, and accepted by them, in favor of A. G. Rose, cashier, or order, for $2,529 80. The draft was not paid, and the defendants were sued, one of them, Mr. Laffan, having been held to bail.

Before the Recorder, in the City Court of Charleston, January Term, 1843.

Before Evans, J. Charleston, April Term, 1843. This was an action of replevin. Fiske leased of Judge a tenement in the city, for the term of three years. It was a written lease, under seal, whereby a rent of $500 was reserved, payable quarterly. On the 1st May, three quarters rent were due, and on the 7th, Fiske gave Judge three notes, one for each quarter, payable at six, seven and eight months, with interest added from the time each quarter’s rent was due.

Before Richardson, J. Charleston, Fall Term,, 1843. Messrs. Bailey and Brewster, attornies at law, had received a letter from the plaintiff, who was absent from the State, authorizing them to issue a writ in attachment.

Before Wardlaw, J. Georgetown, Nov. Term, 1843. Trespass to try titles. For decision of the grounds of appeal now presented, it must be assumed that William Alston acquired, in 1785, title to five adjoining tracts of land on the south side of the Great Pee Dee; and that in 1838, he made his will, devising all his lands to his three sons, the plaintiffs, and soon afterwards died.

Before Evans, J. at Charleston, Spring Term, 1843. The late William Wightman died in 1835, having made his last will and testament, whereof he appointed T. F. Purse and others, his executors ; the settlement of the estate was committed by the will to Purse, who had a legacy of $2,000 a year, for three years. Wightman owed at the time of his death about $1.40,000, and by his will he gave legacies to be paid in money of about $96,000.

Tried in the City Court of Charleston„ before his Honor the Recorder, January Term, 1844. Motion to set aside judgment, and for leave to appear and. plead. In this case it appeared that about the middle of May last, (1843,) a writ was served on the defendant, at his place of residence in Charleston, at the suit of the plaintiff, returnable to the July Term of the city court.

Before Ward law, J. Georgetown District, November Term, 1842. , The declaration alleged, that on the 1st July, 1835, Robert P. Mayrant and William Mayrant made their joint and several promissory note, payable to the plaintiff six months after date. The defendant pleaded the Statute of Limitations.

Before Richardson, J. Georgetown, 1843. This was an action of trover brought to recover the value of a slave, Tenah, which had been been bequeathed to the plaintiff’s intestate (bis brother) by their father. The legacy had been assented to by the executor, and after the death of the legatee, Samuel Dealy, (a minor,) had gone into the possession of one Walker, the guardian of the plaintiff and his sisters, the distributees of the minor.

Before Evans, J. at Charleston, Spring Term, 1843. This was a suggestion for a prohibition, to restrain the execution of a warrant of distress, for the collection of certain fines, which had been imposed upon the relators, by the respondents, as commissioners of Haul-over cut.

<p>Before Evans, J. at Charleston, Spring Term, 1843.</p> <p>This was an action on the case, to charge the defendants for an injury done to a carriage and horse, which, it was alleged, had been hired to the defendants, and injured by their misconduct.</p> <p>The facts, as proved, were these:</p> <p>Robert Landreth was crossing King street, in Charleston ; he saw a carriage coming up the street; there were no other carriages in the street; a white man was sitting on the box with the driver, (a black man,) and had the reins ; the carriage was going zig zag, from one side to the other ; it was going at a moderate gait; saw the carriage wheel strike against a water cart; the carriage went on with the wheel shaking some short distance, when the wheel fell off; the horses took fright, and ran off; the negro jumped off, but the white man kept his seat on the box; the carriage struck against an awning post, and was stopped; the carriage was injured by breaking the top, and one of the horses was cut on the leg, so as to be disabled from performing any service for near two months ; none of the party appeared drunk; the gentleman on the box, it seemed to have been conceded at the trial, was Bound, one of the defendants ; the horses did not take fright until the wheel ran off. As to the driver, (a negro man,) there was a good deal of evidence. Some of the witnesses spoke of him as sober, and well skilled in his business. Some said he would drink a little too much, and it was said that lately he had been turned off by the plaintiffs for an accident which occurred when he was drunk.</p> <p>As to the other defendants, no direct evidence was offered that they were concerned in the hiring. The only evidence on that point was that of Moses, the deputy, who served the writ. He said, when he arrested the defendants, one, or all of them, said he or they “had hired the carriage, and were in it.” “ It was a hard case to be sued for what they were not to blame; it was not their fault that the carriage was broken.” They were strangers, it was said, from Havana, and Moses never saw them but the one time. They answered to the names mentioned in the writ. At the time the carriage was broken, there were two or three gentlemen within, but they were entirely passive. There was also an inquiry into the condition of the carriage, which was not an old one, and had been refitted a month or so before the injury.</p> <p>A motion was made for a nonsuit, on the ground that there was no evidence of joint hiring, and without such evidence the action would not lie. The action, although in form, case, was quasi assumpsit, and there could be no joint action except on a joint contract. This motion the presiding Judge overruled, thinking there was sufficient evidence to go to the jury on the joint hiring.</p> <p>In his charge to the jury, his Honor submitted to them the following propositions:</p> <p>1. Did Bound usurp the duties of the driver, and did the injury arise from his unskilfulness or negligence ? or did it arise from the defect of the carriage, the misconduct or drunkenness of the driver, or from one of those concussions with another carriage, which sometimes happen without fault or negligence of the driver? In the first case the plaintiffs were entitled to recover, in the other they were not.</p> <p>2. Was the contract of hiring joint? If so, they all were liable, although the injury arose from the misconduct oí one, and the others were entirely passive.</p> <p>3.If there was no joint hiring, yet the plaintiffs in this form, of action might recover against Bound alone.</p> <p>The jury found a verdict against all the defendants.</p> <p>The defendants renewed their motion for a nonsuit in this case, and moved for a new trial, on the following grounds:</p> <p>1. That his Honor erred in refusing the motion for a non-suit, inasmuch as there was no proof of a joint contract; and that his Honor also erred in deciding that, in such an action as the present, the plaintiffs might recover against one of the defendants, although there was no proof of a joint contract by all.</p> <p>2. That there was no evidence before the jury that these defendants were in the use of the carriage and horses at any time, or were even present at the accident.</p> <p>3. That there was no proof of any of the material aliegations in the plaintiffs’s declaration, and especially no proof of negligence on the part of the defendants, in the use of the horses and carriage.</p> <p>4. That his Honor erred in charging the jury that in this action the plaintiffs might recover against any one of the defendants, and that it was not necessary that a joint hiring by all the defendants should be proved.</p> <p>5. That his Honor erred in charging the jury that in a case of joint hiring by several, all were liable for the unauthorized and illegal act of any one of them, in relation to the thing hired.</p> <p>6. That the verdictof the jury is wholly unsupported.by evidence, contrary to law, and against the plainest principles of justice.</p>

Before the Recorder, in the Oity Court of Charleston. This was a summary process by the plaintiffs, as undertakers, against the defendant, as executor de son tort of William Allen, deceased. John Wheeler, for the plaintiffs proved, that he, on the death of William Allen, called on the plaintiffs to furnish necessaries for his funeral. Wade attended, in person, and furnished every thing. Wade paid twelve or thirteen dollars for the ground in which deceased was buried.

Before Butler, J. Charleston, January Term, 1842. These were actions of debt on recognizance given by defendants, under the attachment Act. The defendants’s counsel took out the following rule, to wit: Ordered, on motion of Petigru & Lesesne, defendants's attornies, that Messrs.

Before Butler, J. Charleston, January Term, 1842. This was a rule on Levi Sherman, plaintiff in attachment, in the case of Levi Sherman vs. Judah Barrett, at Columbia, to shew cause why the judgment and execution of fieri facias, issued against Jacob Cohen, garnishee, should not be set aside as irregular and illegal.

Before Evans, J., at Charleston, Spring Term, 1843. This was an action of covenant, upon a builder’s contract, brought in pursuance of a decretal order of the court of equity, made upon a bill to enforce .a specific lien, for payment of the amount claimed to be due on the said contract. The jury found for the plaintiffs the sum of $3,934 62 cents, being the aggregate of the principal sum of $3,274, and interest thereon from 10th June, 1840, to the date of the verdict.

Before O’Neall, J. Colleton, Spring Term, 1842. This was an action of trespass for cutting and otherwise injuring a trunk of the plaintiff’s rice fields on his Grove plantation. It appeared in evidence that the fields were cultivated in rice, and that a bank ran through and divided them in 1798.

jBe/bre-RicHARDSON, J. Charleston, October Term, 1843. This was an action of trover, to recover the value of four negroes.

In the City Court of Charleston, January Term, 1843. This was an action brought on a written instrument in these words: “Sixty days afterdate, I guarantee the payment of three hundred and fifty-six dollars, sixty cents, ($356 60) due by J. M. Verdier, of Beaufort, to Benjamin Mordecai. [Signed] John M. Verdier. [Endorsed] Benj. Mordecai. [Accepted] Thomas N. Gadsden. 4th February, 1842. $356 60. The declaration contained counts on this instrument as a guaranty bill and note.

<p>1. A judgment is a liquidated demand, and may, therefore, be referred to the clerk, under the Act of 1809. '</p> <p>2. A judgment bears interest-, as a matter of course, when recovered on a contract; there is nothing left on a default, but to compute the interest, in order to entitle the plaintiff to his judgment.</p> <p>3. Conceding the reason upon which Dinkins Macon vs. Vaughan <$• McLaughlin, (1 McC. 554) proceeds, that a judgment by default in debt is final, and does not need a reference, it does not follow that there should not be a reference. For the final character of the judgment ascertains nothing but the sum demanded; the interest, if interest be recoverable, could. not be embraced in such a judgment.</p> <p>4. The rule laid down in Lambkin vs. Nance, 2 Brev. Rep. 97, and in Harrington vs. Glenn, 1 Hill, 79, referred to and approved.</p> <p>5. The case of Dinkins <£■ Macon vs. Vaughan. <%• McLaughlin, proceeding upon two reasons. 1st. That a judgment by default in debt is final, and does not need a reference; and 2d, That interest does not follow of course, upon the judgment; held.to he unsound, and overruled.</p> <p>6. An attorney in fact, having a full power to sue for and collect a judgment, assigned it. The assignment carried with it authority to use the name of the person who had executed the power to sue for and collect it, and the assignee would have been authorized to receive the money when collected. The judgment obtained being set aside as irregular, the defendants were permitted to appear and plead nunc pro tunc, and the attorney in fact, who was also the attorney at law, having died, the presiding Judge granted leave to substitute an attorney who had authority from the assignee, but not from the party who had executed the power, to prosecute the action. Had not the assignee been regarded as the proper party to protect the judgment, then proceedings on the part of the defendants with a view to set aside would have been irregular, the original owner of the judgment having no notice. Motion to reverse the order of substitution dismissed.</p> <p>7. Judgment set. aside as irregular, and leave granted to the defendants to appear and plead, but for which the presiding Judge would have ordered an issue, there being a rule to enter satisfaction, to test the question. There was some evidence that the attorney who had recovered the judgment, and who was deceased, had received a sufficiency of money to pay the debt, but it was not certain that it had not been applied to pay other liens on the property of the defendants in the judgment. Under these circumstances, the court ordered an issue to try the question of satisfaction.</p>

Before O’Neall, J. Lexington, Spring Term, 1844. In the first of these cases, the defendant was indietd for a nuisance, in obstructing McTier creek, a branch of South Edisto river; and in the second, the plaintiff, the part owner of a saw mill above that of the defendant, on the same creek, brought an action on the case against the defendant, for preventing him from passing with rafts down the creek. The same facts apply to both cases.

Before Earle, J. Newberry, Fall Term, 1842. This was an action on the case, for words imputing to the plaintiff that he had sworn falsely before Squire Johnson, in a certain cause wherein the present defendant was plaintiff, and Jerry Joiner was defendant. The words . were abundantly proved to have been spoken as laid in the declaration, on several occasions, as well as other words of similar import, by way of aggravation.

Before O’Neall, J. Kershaw ^ Spring Term, 1844. This was an action on the warranty of a pair of horses ; they were warranted sound in every respect, “except the eyes of one of them, which were accidentally hurt, but I believe they will not go blind.” Tha proof was, that at the sale the horse’s eyes jvere sore — the defendant represented, that it had been occa- ' sioned by tying the horse to a sappling, around which he had wound his halter so as to bring his eye in contact…

<p>Before Butler, J. Union, March Term, 1842.</p> <p>The defendants were indicted and convicted of a riot. The facts upon which the defendants were convicted, came out from the evidence of Gen. Daniel Wallace, an acting justice of the peace. He said that in going down the main street of Union village, on sale day, he heard a great tumult, was informed that a prizefight was about to take place, between Scales and Faucet, for $100 a side— The heads of the combatants had been closely shaved and the money staked — The crowd was very much excited, and the witness said he never saw such a tumultuous meeting in the streets. He, as a peace officer, interposed and said the fight should not take place — Scales was willing to submit to the suggestion, and gave up the combat —Sumner, who was acting as the second of Faucet, said he should fight if he chose, and that they should not interfere or crowd upon him. The witness went into his office, under the impression that the fight would be given over; but in a short time, the tumult increased, and arrangements were making for the parties to engage — one Farr acting as second of Scales, and Sumner as the second of Faucet. At this point of time, the witness had Scales and Faucet arrested and brought before him to enter into bonds to keep the peace — Sumner thrust his head in the office and said to Faucet, ‘‘go to jail rather than give bond —the witness said “there is room for you”- — Sumner replied “commit and be damned” — whereupon he was arrested, after making some resistance, and committed.</p> <p>The presiding Judge defined the offence of riot and left the case to the jury — and they found the defendants guilty.</p> <p>Defendants appealed, on the following grounds.</p> <p>1. Because his Honor, the presiding Judge, charged the jury that the defendants shaving their heads in preparation for combat might be considered by them an act sufficiently unlawful, when acting in concert, to constitute a riot.</p> <p>2. Because no overt act was proved to have been committed by the defendants, nor was there any concert of action between the defendants Scales and Sumner proved on the trial.</p> <p>Cited Rice Rep. 521; Archbold Crim. Plead. 446; 1 Speer’s Rep. 13.</p>

Before Butler, J, Union, Spring Term, 1844. Detinue for seven slaves — Haley, and her children. There is no material difference in the general statement of this cáse from what it was on a former trial, as reported by Judge O’Neall. The summary of the case is this: Reuben Sims died some time in the year 1819, and his property was sold in the latter part of that year, by his executor, Benjamin Maybin.

Before Richardson, J. Barnwell, Spring Term, 1844. Stallings and Corbett were the joint owners of a water mill of two saws, which usually sawed from 1000 to 2000 feet of inch plank per day. Each party worked one saw to himself, the product of course considerable. Some two years ago, the dam broke, and disputes arose as to the way of repairing the loss. The defendant, it would seem from the evidence, deemed it a proper occasion to build an entirely new mill.

Before a Commissioner of Special Bail, Fairfield, March, 1844. This was a trial before the clerk of the court, sitting as commissioner of special bail, and a jury summoned under the Act of 1833. The defendant, William Moore, having applied for the benefit of the prison bounds Act, to get discharged from. arrest under mesne process in the above stated case, his discharge was opposed, and suggestions of fraud having been filed, a special jury was impannelled as the law directs.

<p>L D had been, the factor of B, who owed a large balance, D drew an order on B, in favor of C, for a certain amount, which was not accepted or paid, and before he was informed of its non-acCeptance, sent B an account Current, in which the amount of the order was credited. Afterwards, D. sued for the balance of the account, and B offered in evidence the account current in his possession; and it'was said the jury, in their verdict, deducted the amount of the order. In an action brought by D to recover the amount of the order, he offered in evidence the former judgment and verdict, and proposed to prove by one of the jtlftfrs, who rendered the verdict in the first case, that the amount of the order had been deducted- Held, that the proof offered was inadmissible, and that the plaintiff was properly non-suited. The judgment in the first action Was conclusive between the parties, of the whole matter in issue, and "the cause of action thereby decided, or any part thereof, could not again be litigated.</p>

<p>Before Richardson, J. Charleston, October Term, 1843.</p> <p> Motion for prohibition. </p> <p>In this case, the relator, Francis Wilkinson, a free person of color, is a permanent resident of Charleston Neck, at which place his employment is to kill and prepare meats, which he afterwards vends in the market of the city of Charleston. For the stall, which he occupies in so vending the said meats, he pays the regular monthly stallage assessed by the commissioners of the market. In addition to this, he has been called upon to pay a capitation •tax, under an Ordinance of the said city, passed A. D. 1843.</p> <p>A motion was made at the last October Term, before his Honor, Judge Richardson, for a prohibition to restrain the city council from enforcing the said Ordinance against the relator, which was refused.</p> <p>Decision of his Honor, Judge Richardson.</p> <p>The complaint of tjhe relator, F. Wilkinson, is opposite to that made in the case of J. Adger, just decided. Adger complained of the inequality of the tax laid upon a nonresident of the city, and an inhabitant, under the same circumstances. Wilkinson complains of being taxed as much as an inhabitant carrying on the same trade — hb would have exemption. But what is taxed ? It is the stock, traffic or business, art and mystery, carried on within the city. Such is the property that is taxed; and we have only to assume, what is very clear, that such property is taxable, to perceive that non-residents and inhabitants stand on the same parity of reason, justice and convenience. But moreover the terms of the charter, to wit, or those (non-residents) who hold taxable property within the same, plainly included non-residents so holding such property, and render them taxable for such property.</p> <p>It is quite another, and an enlarged constitutional principle, that prohibits the non-resident and the actual inhabitant being taxed unequally. The whole reasoning on this head may be found and is illustrated in the article of the Federal Constitution, that gives the same privileges, <fec, to all the citizens of the United States, that belong to those of a particular State, under the same circumstances. The same reasoning and principles apply to all the citizens of any one State, claiming the privilege and exemption, (fee. that have been given to a particular section, as Charleston or Columbia. But they cannot claim more than the inhabitants of such sections. The prohibition is, therefore, refused.</p> <p>An appeal was taken from his Honor’s decision, on the following grounds.</p> <p>1. The tax complained of, is not a tax on property, but a capitation tax.</p> <p>2. That exercising no trade within the city, he does not come under the provisions of the Ordinance.</p> <p>3. The decision of his Honor is contrary to the law, and the facts in this case.</p> <p>All of which is respectfully submitted.</p>

Before Evans, J. Edgefield, Fall Term, 1843. This was an action of assumpsit on a joint and several note of the defendant, Hill, and one Burns.. Burns had been sued upon the note, and a judgment recovered against him, for a less sum than was due, by some mistake. This judgment had been satisfied. This action was on the note, but the plaintiff claimed to recover only the balance, after deducting what had been collected out of Burns. The plea was a former recovery.

Before Evans, J. Edgefield, Fall Term., 1843. The plaintiff and defendant had each brought actions of assumpsit against each other, returnable to this Term ; and Knox had sued Simpson on two notes within the summary process jurisdiction. One of these notes, on the face of it, purported to be given on settlement, and the other for money loaned.

<p>1. Where, on the trial of an action of slander, the plaintiff waived his ob. jections to the declarations of a person who was not produced, brought out by the defendant in the examination of plaintiff’s witness by way of mitigating damages, the declarations being unfavorable to plaintiff’s character, and made before the actionable words were spoken, the plaintiff in reply may produce proof as to the declarations of the same person made at any time, Even conceding the declarations brought out by defendant to have been in* admissible, it did not affect plaintiff’s right in reply', The fact that the wit* ness was present in Court whose declarations were received, did not affect the question. The admissibility of hearsay evidence is not controlled by the presence or absence of a witness within the process and jurisdiction of the Court,</p> <p>2. If one offers the declarations of a witness instead of producing him, proof of other declarations of the same witness may be offered by the other party, either by cross examination or by witnesses,</p>

<p>Before O’Neall, J. Kershaw, Spring Term, 1844.</p> <p>Foreign attachment. The attachment was lodged 30th May,' 1842, and the garnishee, Richard Singleton, was served on the 13th June, 1842. At spring term, 1843, he made his return, under an order of court, granting leave, upon cause shewn, why it had not been made at fall term, 1842. The plaintiffs obtained an order for time to file suggestions against the return till 1st August, 1843, but no suggestions were filed at that time or since. The plaintiffs, at March term, 1844, asked leave to file suggestions, and an order was made by the presiding Judge, granting leave, and extending the time to the first day of July, 1844. Powell McRa, the absent debtor, died after the 1st August, 1843, and before March term, 1844. It seemed that Mr. Singleton had no notice of the motion. His attorney, Mr. DeSaussure, however, had, and attended and argued the question.</p> <p>The garnishee, R. Singleton, appealed from the order last made, and moved to reverse the same,</p> <p>1. Because he had no notice of the motion.</p> <p>2. Because the plaintiffs having failed to file their suggestions within the time prescribed by the order, no such suggestions can now be filed.</p> <p>3. Because the absent debtor having died after the time had expired within which the plaintiffs had obtained leave to file their suggestion, the case was out of court, as to the garnishee.</p> <p>cited 1 Hill, 213; 1 Bay, 284; 1 Treadway Con. Rep. 83.</p>

Before Butler, J. Fairfield, Spring Term, 1844. Assumpsit on a promissory nóte. The cause of action grew out of the following state of facts. Dr. John Myers made a promissory note for $5,000, dated 9th March, 1842, payable two hundred and fifty days after date, to the order of Robert Cathcart, at the office of Robinson and Caldwell, in Charleston, and endorsed by Robert Cathcart, William Woodward, and David Aiken.

<p>Before O’Neall, J. Richland, Spring Term. 1844.</p> <p>The plaintiff mortgaged two houses and lots to the Commercial Bank; out of his funds the bank had them insured. Afterwards, under a decree of foreclosure of the mortgage, one of the houses and lots was sold to and purchased by the defendant. On the back of the policy, the agent of the insurance company consented that so much of the policy as related to the house and lot purchased by the defendant, should be transferred to him. There was no formal assignment of the policy by the bank to the defendant. Indeed none could be made, as the policy extended to another house, not bought by the defendant.</p> <p>The plaintiff sued for so much of the premium paid by him as applied to the house purchased by the defendant, and as covered the time which the policy still had to run. The plaintiff had a decree.</p> <p>The defendant moved the Court of Appeals to reverse the decree of his Honor, upon the grounds following :</p> <p>1. Because there was no assignment of the policy of insurance in question to the defendant, and the insurance company, therefore, was never liable to him under it.</p> <p>2. Because his Honor erred in deciding that the permission to assign, endorsed on the back of the policy, with the consent of the bank, was equivalent to an assignment to the defendant, and entitled him to sue the company on the policy, in case of loss.</p> <p>3. Because, if there were an assignment of the policy by the bank, it took place after the bank had parted with its insurable interest in the property, when it had nothing in the policy to assign, and the assignment of it, therefore, was a nullity.</p> <p>cited 1 Phillips on Insurance, 36 ; 16 Wend. 385.</p> <p>cited 1 Phillips on Insurance, 727; 2 McMullan, 237.</p>

Before Wardlaw, J. Marion, Fall Term, 1843. This was an action of covenant, brought by the plaintiff against the defendant, on a deed of conveyance by the latter to the former, of a lot of land in the village of Giles-borough, for the sum of four thousand dollars, in which the defendant warrants the premises, at the time of its execution, to be “free from all incumbrances.” The breach assigned in the declaration, is as follows:— “Now the said plaintiff in fact says, that at…

Before Butler, J. Chester, Spring Term, 1844. Edward Mobley, at his daath, April 10th, A. D. 1839, among other property, left a large tract of land on Sandy river, in Chester district. He left a widow surviving, Mary Mobley, and nine children, Susan Tolliver, Samuel W. Mobley, Isaiah Mobley, Lesialla Atkinson, Edward Mobley, David Mobley, Biggers Mobley, John W. Mobley, Mary Griffin.

Before O’Neall, J. Sumter, Spring Term, 1844. This was an action on a note, drawn payable to Martha Fort, or bearer. The payee of the note was the wife of the plaintiff; he declared as bearer. The defendant contended he could not recover in that character. The presiding Judge thought that he could. To maintain a suit on a note payable to bearer, possession is prim,a facie sufficient. This, it is true, may be destroyed by showing that the plaintiff has no right to possession.

jBefore O’Neall, J. Fairfield, Extra Term, Feb. 1844. This was a suit brought by one of two endorsers against the other, for a contribution. The note of which they were endorsers was that of Alexander Rosborough. It was wholly an accommodation note. The plaintiff, Cathcart, was the first endorser, and the defendant the second.

Before Richardson, J. Barnwell, Spring Term, 1844. These were actions of debt on a bail bond, and being on the same bond were tried together. It is not deemed requisite to state more of the testimony than may be necessary to present the question raised by the grounds of appeal.

Before Richardson, J. Edgefield, Spring Term, 1844. • Giles Bowers was indicted for trading with Adam, the slave of Mr. Yancey, for corn, without a permit, &c. Yancey employed and directed Adam to test the dispositions of the defendant — he and Butler watched, and heard the conversation of the defendant with Adam — ten o'clock at night. Defendant finally told Adam to take the corn into the kitchen. Adam did so, and went away.

Before O’Neall, J. Richland, Spring Term, 1844. In this case, the plaintiff attempted to charge the de-fendant, as maker of a promissory note, under the following circumstances. A third person made a single bond, or bill, under seal, payable to the plaintiff, or order. The defendant wrote his name on the back of it. The presiding Judge was of opinion, that this did not make the defendant the maker of a note of hand. For the paper on which he wrote his name Was not a note.

Before Butler, J. Union, Spring Term, 1844. The defendant was indicted, at common law, for the forgery of a receipt, of which the following is a copy. «McCLURE & WILSON, vs. ELISHA HARRIS. Received of Elisha Harris, in part of this case, thirty dollars, February 21, 1843.

Before Wardlaw, J. Kershaw, March Term> 1843. This was an action of trespass to try titles. The land really in dispute was a four sided old field, containing two or three acres, which lies between a cross fence built by the defendant in 1842, and a piece of new cleared land which the defendant had in possession there, before and since.

Before J. B. McLaurin, Magistrate, acting as Commissioner of Special Bail for Sumter District. Application for the benefit of the Prison Bounds Act. The defendant being under arrest, applied for the benefit of the Prison Bounds Act, and his discharge was resisted by the plaintiff, on various grounds. A suggestion was filed, February 3,1843, and a jury summoned conformably to the Act of 1833, to attend at Sumter Court House on the 14th February, 1843.

Before Evans, J. Orangeburg, Fall Term, 1843. Report of the Presiding Judge. The defendant was indicted for a nuisance, The facts were these: The defendant owns a mill on Bull swamp; the public road passes along the dam from the east bank to the wasteway, it then descends from the dam and passes below the dam, but near to it, to the western extremity of the swamp.

Before O’Neall, J. Richland, Spring Term, 1844. This was an action of assumpsit, brought by the plaintiff, a contractor on the Louisville, Cincinnati and Charleston Rail Road, for the recovery of compensation for what he alleged to be extra work.

Before O’Neall, J. Sumter, Spring Term, 1844. There were two counts in the indictment. The 1st. for inveigling, stealing and carrying away three slaves, Enoch, Jinney and Mary, the property of Willis J. Spann. The 2d. was for aiding Stephen McCoy in inveigling, stealing and carrying away the same negroes. The negroes went out of their owner’s possession, in Sumter district, on the night of the 13th of May, 1837.

Before Richardson, J. Charleston, October Term, 1843. This was a suggestion for prohibition. The relator, James Adger, resides on Charleston Neck, without the limits of the city, and carries on business within the city, as a factor and commission merchant, at his office on Hamilton & Co.’s Wharf.

Before Butler, J. Richland, Extra Court, July, 1842. This was an action of covenant on a special agreement, efitered into by the plaintiffs on the one part, and the defendant, Pennington, with two sureties, Nesbitt and Brown, on the other part.

Before O’Neall, J. Fairfield. Extra Term, February, 1844. Report of the presiding Judge. This was an action of assumpsit. The facts were, that B. H. Robertson made his note payable to James R. Aiken, or order, at the Branch Bank of the State of South Carolina, Camden. The plaintiff and defendant endorsed the note in the order, plaintiff first, defendant second endorser. The transaction was entirely one of accommodation, and the endorsements simultaneous.

Before O’Neall, J. at Chambers, Charleston, March 7th, 1842. Report of the presiding Judge. This was a motion for prohibition.

Before the Recorder of the City Court of Charleston. This case arises on an appeal from the decision of a judicial magistrate. The defendant is the master of the American schooner, the George Washington, sailing under a coasting license of the United States. The plaintiff, who is a licensed branch pilot of the port of Charleston, hailed the schooner as she was bearing for the bar of Charleston, and offered to carry her over the bar.

Before Wardlaw, J., at Conwayborough, Fall Term, 1842. This was an action of trover, for a slave, brought against Joshua John Ward, defendant, by Josias G. Waller, William W. Waller, Joshua C. Burbage, and Margaret his wife, late Margaret Waller, and Samuel A. Waller, Elizabeth Waller, and Hester Ann Waller, infants, who sued by their next friend Harmon Cox, plaintiffs. The defendant pleaded the general issue, and the statute of limitations.