Volume 3 — South Carolina Law Reports

<p>Upon a bond, with condition to deliver corn by a certain day, tender on the day prevents the accrual of interest, but does not discharge the obligation. And it seems that service of process is a sufficient demand to sustain an action by the obligor after such tender. Sed qúcere de hoc.</p> <p>On such an obligation, judgment is for the debt, payable in corn. Semble.</p> <p>íf the obligor make no objection at the time of the tender, but allege that ho had parted with the bond, he cannot afterwards object that the tender was insufficient.</p>

<p>-Debt on a bond, to prosecute an attachment. The defendant, •Goodwyn, bad obtained a domestic attachment against th,e plaintiff; and the justice of peace, who granted the same, took this bond, but, by mistake, made it returnable to the County Court, when, by act of assembly, it should have been returnable to the District Court, the sum being over the County Court jurisdiction. The attachment was levied on moveables, which Goodwyn took possession of, and converted to his own use, and never prosecuted his suit further. The defendants pleaded a special plea in bar, that, the bond was not taken according to law, and, therefore, void ; to which the plaintiff demurred.</p> <p>1st. That the bond is good, and the condition only void. That it was good in its creation, being entered into voluntarily, by proper parties, upon good and le. gal consideration. That the condition is neither malum in se, malum prohibitum, nor contrary to state policy. 2d. That it had not by any thing subsequent to its creation, become void. That if the plaintiff could not perforar the condition, it was his own folly to bind himself to do so ; and he shall not escape the penalty by reason of the impossibility of performing the condition, any more than if the condition had been to go to Romo, and return in three hours : and, therefore, the condition is ipso fado void, and the obligation-stands single and good. P. L. 367. Co, Litt. 206. Bull. N. P» 164. Esp. Dig. 184, 200. Powell on Con. 260, 267, 268.</p> <p>On the other side, it was answered, that the bond was taken contrary to the act of assembly, which authorizes the taking of bonds by justices of peace, for prosecuting attachments to effects and was, therefore, unlawful and void. Co. Litt. 206.</p>

<p>Trover for a slave. Ragan, the owner, being indebted to the .plaintiff, gave him possession of the slave, and a bond, with condition that he should remain in the plaintiff’s possession, until he, Ragan, should replace the said slave by another as good, or satisfy the plaintiff for the money due to him. This bond was afterwards taken up; but Ragan gave the plaintiff another writing, called a deposit, purporting that the slave should remain with the plaintiff on terms similar to those above stated. Ragan, soon after this, sold the said slave absolutely to the defendant, and gave him a bill of sale ; and the defendant having got the slave into his possession, refused to deliver him up to the plaintiff, who demanded him : whereupon this action was brought.</p> <p>This evidence having been given for the plaintiff, the defendant’s gounsel moved for a nonsuit, eontonding that the plaintiff who appears to have only a special property in the negro, in question, is pot entitled to recover against the defendant in this action, who has the general property. And the case of Holliday v. Camsell and ¿White, 1 T. R. 653, was cited, and relied on as in point ; wherein it was decided, that a special property cannot give a right in this action against a general property: and that the plaintiff’s remedy should have been a special action of trespass on the case. Bac. Abr. Trover. C.</p>

. Indictment for murder. Tho indictment stated th’e murder of John Simmons, the husband of the prisoner, Cynthia, by a negro man slave, the property of the deceased, and charged both the prisoners-as accessaries before the fact.

William Whitaker, deceased, had leased land of Colonel Kershaw,' and the rent being in arrear after Whitaker’s death, Colonel Kershaw distrained on the premises a negro boy ; whereupon tha defendant, 'Willis Whitaker, one of the executors of the deceased William Whitaker, prevailed with Colonel Kershaw, to forbear proceeding on his distress, and to release the negro levied on, promising to see that the rent in arrear should be paid, and agreed to deliver corn on the river…

<p>.If a replication disclose pew matter material to support the plaintiff’s action,it must conclude with a verification: and where such a replication concluded to the country, it was held bad upon demurrer; but thg plaintiff was permitted to amend.</p> <p>Leave inaybe given to withdraw a. demurrer to replication, and to rejoin.</p> <p>Unnecessary allegations must be proved, if they are relevant to the ground of the action. The distinction is between what is immaterial merely, and what is wholly irrelevant. The former pannof be rejected as siuy plusage.</p>

<p>Scire Facias o.n a bail bond. The sheriff of Camden district had arrested one Cook, by virtue of a writ of capias ad respondendum,, at the suit of the plaintiff, and by virtue of an affidavit, annexed tp the said writ, had held him to .hail; on which occasion the present bond was taken. The scire facias was founded on the 10th section of the county court act of 1785, P. L. 369, which extends to the superior courts, and directs that where bail is given, and the defendant malves default, judgment rnay be had, and execution issued against the defendant; and if the sheriff returns non est inventus, or that the defendant has no effects, the plaintiff may sue forth a scire facias against the hail, and enter up judgment thereon, against such bail, and have execution as against the original defendant: Provided, that the common bail may enter himself special bail at any time before the judgment against his principal is signed.</p> <p>To the declaration on this scire facias the defendant demurred. And it was argued in support oí the demurrer, that the sheriff ought >o have been plaintiff in the action ; that the bail bond ought to have been assigned according to (lie statute, 4 An. c. IS, P. L. 90 ; that the act of 1785, relates to special bail, taken in court, and not to bail to the sheriff; and that the bond was taken for a greater sum than was sworn to, as appears by the affidavit to hold !o bail. Also, that in this case, the defendant ihad not made default, ¿o- that it appeared, that he had pleaded after lr, 'or ,rte„\ i a regular appearance; and the judgment against kirn wan ■ . u.t,vull.</p>

<p>In an' action oh a bond, brought by an assignee in the name of the obligee, the latter is inadmissible, as a witness, to prove a partial payment to him by the obligor. (vide 2 Bay, 93. S. C.)'</p>

Assumpsit. The declaration contained two special counts, viz. 1.

<p>Debt on a bond, given by the defendants, and one J. W;; conditiencd that the said J. W. should duly perform the duties of office, as sheriff of the county of Fairfield. J. W. having levied monies on an execution in his hands, appropriated the same to his own úse, and afterwards removed out of the State. The defendants, his sureties, were sued in this action, and pleaded non esi factum, It-appeared, in evidence, at the 'trial, that after J. W. was chosen sheriff, the persons authorised by law to take his bond, with security, tfec-., did. not take the same in the usual manner, but procured the said J. W. and his sureties to subscribe their names to-a sheet of -blank paper, -on which was afterwards' written (ho -bond in -ques. tien ; and seals were afterwards affixed, by them. And there was no evidence that the bond was ever, after the signing as aforesaid, dolivered in due form, or acknowledged by the defendants.</p> <p>The counsel for the defendants claimed a nonsuit, and argued that the .paper writing produced, tinder the circumstances,-ex plained in evidence, was not' tlie deed of,the defendants; -and that.it never did constitute an obligation. That the necessary requisites of writing, and sealing, were performed by one of the parties only, without the presence and concurrence of the other.* That one essen. iial requisite had been omitted, viz., delivery, without which, it could not be a complete deed. Cited Perk. 118. Co. Litt. 171. ■Com. Dig.Tail', A. 3. 1 Lofft’s Gilb. 110.</p> <p>The counsel for the plaintiffs were stopped by</p>

<p>Trover for a slave. The deféndant moVed: for a continuance of the cause on account of the absence óf material witnesses, resident out of the Slate, whose places of residence had not, till lately, come to his knowledge, and for a commission to take their examination.</p> <p>The plaintiff’s counsel moved the court, that the continuance might be upon condition the defendant give bail to answer as special bail in the action. This was objected to by the defendant’s counsel as unprecedented and irregular. For the plaintiff, it was contended, that it had been,.done in similar eases heretofore ; that it was a reasonable condition ; and that the court would always impose reasonable conditions, in cases where a party applies for a favor, as to postpone a trial.</p>

<p>The defendant in this case, having been holden to bail by virtue of a writ of capias ad respondendum, filed a petition in the Court of Common Pleas, in order to take the benefit of the acts for the relief of insolvent debtors; and published a notice in the gazette, stating his being in custody, and that he had petitioned the judges of the Court of Common Pleas, and commissioners of special bail of Camden district, to be admitted to the benefit of the acts aforesaid, and summoning the plaintiff, and all others, to whom the said petitioner was indebted, to appear before the judges of the county court of Kershaw county, Who would sit as commissioners of special bail, &c., to shew cause why the prayer of the petition should not be granted.</p> <p>He had previously filed in the office of the clerk of the district court of Camden, a schedule of his estate and effects, sworn to before a justice of peace.</p> <p>The judges of the county court met in October, 1799,' at the court house in Camden, to hear the application aforesaid. It Was opposed, in behalf of one Luyten, a principal creditor of the defendant, on several grounds, but principally because the county court judges, exercising the powers of commissioners of special bail, had no authority to discharge the defendant under the insolvent debtor’s act of 1759, as the defendant’s counse^ contended they had, and besought them to do; and ths county court judges, having doubts on the question, refused to make any final determination thereon, but referred the same for the dec‘s'on superior court. Whereupon the defendant’s counsel moved for his discharge under the insolvent debtor’s act of 1759) in the district court of Camden ; and they contended, that the county court judges, as commissioners of special bail, which by act of assembly they are constituted ex officio,* were competent to put in force the said act of 1759, and discharge the defendant from all claims against him, in the manner prescribed by that act. They admitted that the acts of 1759, and of 1788, respecting prison bounds, &c., did seem to point out different modes of relief not entirely reconcileable with each other : but they insisted that the intention of the act of 1788, was to amend the act of 1759, so as to extend the relief, and alter, in some respects, the manner of proceeding to obtain the same, and that both acts ought to be taken and construed together, as one entire and connected sj'stem, for the relief of insolvent debtors ; and that in order to render them con» sistent, and make them agree, every repugnant provision of the former act must be considered as repealed by the latter. They en» deavored to give such interpretations to the several clashing clauses of those two acts, as suited their purpose,’ and to evince that the commissioners of special bail might give the relief afforded by the act of 1759, in the way that it had been applied for; and they contended that the present application being by way of appeal from their decision, this court would do what they ought to have done, or take it up as a motion, de novo, and give the relief applied for.</p> <p>On the other side, against the motion, it was laid down, that the insolvent debtor’s act of 1759, and the act respecting prison bounds, passed in 1788, establish two different and independent modes of relief; distinguishable not only as to the forra and man. ner of proceeding to be pursued for obtaining the benefit, of the relief afforded by each, but also as to the extent of the relief, and the effect and consequences resulting therefrom. The act of 1759, it was argued, relates only to “ poor, distressed and insol» vent prisoners for debt,” as appears by the preamble thereof; and, therefore, before the year 1788, many persons confined on civil process, who did not answer the description of debtors, could not receive any relief under that act. To remedy this grievance,, the legislature thought proper, by a distinct and separate clause of the prison bounds act of 1788, (the 6th clause,) to extend the benefit of the relief afforded by the act of 1759, to “all prisoners in execution, or on mesne process, in any civil action,” except as is therein excepted. But this is the only part of the act of 1788, which has any reference to, or dependence on, the act of 1759. The other clauses of the act of 1788, prescribe another and a different system, for the relief of prisoners confined on .civil process. The counsel then proceeded to contrast the modes prescribed by these several acts, for proceeding, in order to obtain the relief given by them, respectively, and the nature and extent of the, relief afforded by them, respectively. By the former act the application must be by petition to the court from whence the process issues; and after delivering in a schedule, there must be an order of court for the prisoner and all his creditors to appear before the court, at the next court thereafter, &c.; and after hearing and examining the matter, the court is authorized to administer a certain oath, and set the prisoner at liberty. By the latter act, the prisoner is- entitled to the relief thereby provided, upon rendering a schedule of his property, on oath, to the clerk of the court out of which the process issues, by virtue of which, he is kept in custody ; and the clerk, within ten days, must give public notice, that the prisoner will be liberated, and his property assigned, unless cause be shewn to the contrary, before one or more of the judges of the circuit courts, or one or more commissioners of special bail. No time is prescribed for notice by the latter act. The former act requires three months notice in the gazette. The former act requires the assignment to be made to the creditor, at whose suit the prisoner stands charged, or to such other person as the court shall direct; and such assignment to be in trust for all the creditors who may be willing to accept dividends. The latter act directs the assignment to be made to the plaintiff, at whose suit the prisoner is confined, subject to all prior incumbrances. By the former act the prisoner is to be discharged from the claims and demands of all his creditors, if such creditors shall agree to accept dividends of his estate, under the assignment; which discharge shall be an absolute release of all such demands, so that any property which the prisoner may afterwards acquire, shall not be liable thereto : and if any of the creditors shall not agree to accept dividend's, as aforesaid, although their debts and demands shall not be discharged, in like manner, as if they had accepted, but shall remain to charge the future estate of the debtor; yet shall their claims be postponed, and suspended for twelve months, during which time they shall not be permitted to pursue any legal means for recovering their demands, and in the meantime shall not be allowed any benefit of the estate assigned, which shall be exclusively divided among the creditors willing to accept their proportionable parts thereof, as under a commission of bankruptcy, they thereby agreeing to the entire release- ■ ment and discharge of the debtor, from their respective demands, and that the same shall not enure to charge any estate he may afterwards acquire. But the act of 1788, contains no such provisions. The effect of an assignment and discharge under that act, is to release the prisoner from confinement, under the process, by virtue of which he shall be in custody, and transfer, by way of bargain and sale, the effects, &c., contained in the schedule, to the creditor or plaintiff, at whose suit the defendant is confined, in satisfaction of the demand for which he is so confined ; and after such assignment, the assignee may sue in his own name, to. recover the effects, &c., assigned. But the other creditors of the prisoner shall not be at all affected by such proceedings 5 nor shall such assignment extinguish the claim of the plaintiff, to whom the assignment shall be made, oxcept as to so much as shall be satisfied by the property assigned, but the future property and effects of such prisoner, shall be liable to all his former debts, and all prior demands, as if no advantage had been taken of this act; and no postponement or suspension of the common modes of recovery, is effected by this act. By the act of 1759, the creditors, after notice, shall attend at the time and. place appointed, for hearing the prisoner’s application for relief; and mortgagees and trustees of the prisoner, or their representatives, must also attend, and deliver to the court a fair account, on oath, of what is really due to them, respectively, &e. The act of 1788, contains no provision of this sort; and it cannot be reasonably contended, that the provisions of the act of 1759, in this respect, apply to, or consist with, the scope and design of the act of 1788.</p> <p>Upon the whole, it was insisted, that these two acts afforded relief in two different causes, and that it was necessary to consider them as relating to different objects, and not as relating to the very same object, and as furnishing one entire and uniform system of relief in all cases embraced within their respective provisions. That it is a rule of construction, applicable as \vell to statutes as to deeds, ut res magis valeat tpiam pereat. Such interpretation ought to be made of them as to preserve every part of them in force, and give effect to their several provisions, rather' than such a construction as must necessarily destroy or make void any part, for the purpose of forcing into agreement and consistency the other parts. And that statutes made in pari materia, ought to be liberally and beneficially expounded, to advance the objects in view, and give consistent effeet to every part of them, so as to reconcile every seeming contradiction, if possible, and give force to the whole ; and not so as to do away, as null and void, every repugnant particle in one statute, for the purpose of giving effect to an arbitrary construction of another, which construction must necessarily set one at variance with the •other. The counsel then proceeded to shew, that the prisoner had not proceeded properly to take the benefit of the relief provided by ■either of the acts of assembly in question. That he had gone upon mistaken ground, and had no claim to present relief under either act; ■for that the relief afforded in either case, being given by act of assembly, by which the • specific mode is expressly pointed out, the prescribed mode ought to be strictly pursued, otherwise the party cannot bring himself within the benefit of the relief provided.</p>

On a motion to set aside the verdict and proceedings upon a writ of inquiry, it appeared, that after the defendant had entered an ap-' pearance, an interlocutory order for judgment had been obtained, after the expiration of the rule to plead, which was duly served, an<b thereupon a writ of inquiry executed. The ground of the motion was, that the original writ had no seal affixed to it.

Caveat. Carwell’s location warrant was dated 12th August, 1797, and his survey was made the 17th of the same month.

The prisoner having been committed to prison for passing counterfeit bank bills of the Branch Bank of the United States, estate fished at Charleston, was brought up by habeas corpus, and his 'áischargé moved for on the ground, that the offence specified in the Warrant of commitment was not sufficient to authorise his deten» tion.

Motion in arrest of judgment. The prisoner had been tried and convicted in the Court of Sessions of Kershaw district, on an indictment for forgery. .The first count was for forging a certain order for the delivery of goods, with the name of Charles Evans thereto subscribed, directed to one Robert Coleman, with intention, to defraud the said C. E. .The second count charged the prisoner with having uttered, as true, a certain false and counterfeit warrant, or order, for the…

An indictment for assault and battery was found at a court held for the old district of Pinckney., comprehending the present efistf' °f Union and'Spartanburg. By the judicial act of 1798/ prosecutions in criminal cases, depending in the old district courts* were to be tried in those new districts where the offences, were reSpect;ve]y committed. 2 Faust, 245,0.

<p>Where an indictment charged the offence ts have been committed “in Pendleton county, in the district aforesaid,-” there being, at that time, no such territorial division as Pendleton county; bnt the venue was correctly stated in the margin, “ Pendleton district:” Held, that the words, “in Pendleton county,” might be rejected as surplusage, and the words, “ district aforesaid,” referred to the venue stated in the margin ; and that the offence was laid within the proper jurisdiction, with sufficient certainty.</p>

This was a motion in arrest of judgment. An action of slander had been tried in the district of Kershaw, and the jury found a verdiet for the plaintiff. The declaration contained three counts: 1. For calling the plaintiff a hog-thief,- and saying that he was foiv sworn. 2. For calling him a damned hog-thief. 3. For saying to him these words, “ Aou are a damned forsworn rascal,” with an innuendo, that the plaintiff had been guilty of wilful and corrupt perjury.

This was an action of trespass to try titles to land, tried in Lancaster district, before Johnson, J., in the spring of 1801.

This was an action of detinue for a slave. The defendant, pleaded in abatement, that one Fort had constituted him his agent, and gave him special authority to commence and prosecute an action, in his name and behalf, against the plaintiff, Jones, for the recovery of the slave in question ; and that an action of detinue was accordingly brought, and prosecuted in that behalf, whereupon such proceedings were had, that the said Fort recovered a verdict against Jones, for…

This was an action of detinue for certain negro slaves, tried in Union district, before Gkimke, J. The plaintiff, a widow, claimed the slaves in dispute, by virtue of a deed of gift from her father, William Hax’den. The deed appeared to have been made to her while under coverture.

A writ of summons in dower had issued, returnable to the court of common pleas for Darlington district, at Darlington court house, on the first day of the next court after the date ; and on motion in the district court, was quashed, by Johnson, J., because it was not returnable fifteen days before the sitting of the court, according to the act of 1799, which directs that all judicial process shall be returnable fifteen days before court.

Motion to set aside a nonsuit, and grant a new trial. The action was assumpsit, on- mutual promises of marriage, brought by the plaintiff, a young woman, under twenty-one years of age, by her next friend, against tlie' defoudanf,’who was also ail infant.

<p>A summary process must be sealed as a writ; It is a judicial process, and not a mere rule, or order of court.</p> <p>The defendant in summary process is not entitled to an imparlance ; nor can either jdaintiff or defendant continue at the first term, otherwise than upon cause shewn. And if the defendant neglects to file his defence on or before the first day of the term to which the process is returnable,lie is a defaulter, and will not be allowed to' set up any defence which requires notice to the plaintiff;</p>

This was an action of trespass to try title, tried in Fairfield dis. trict, before Trezevant, J., at the last circuit. The plaintiff claimed under a grant to his father, of whom he was the heir at law: the defendant relied upon adverse possession, and the statute of limitations.

fa, against the executors of one Caleb Edmopson, as the property of their testator. That tiie plaintiff purchased the land at the said sale, and claimed under the sheriff’s deed, &c. The plaintiff, at the trial, produced evidence of a judgment, and execution, against Edmonson, and the sheriff’s deed of conveyance ; and gave evidence of Edmonson’s having been in possession from 1771 to 1792.

The defendant, to an action of trover, brought in the district •court of Marion, pleaded in abatement, that the writ required the defendant-to appearand answer before the court of common pleas at Marion; whereas,’by the act of 1799, by which that district is established, and the place for holding the courts therein appointed, as also the mode prescribed for the return of process, &e., it was necessary that the writ should have specified the house of Thomas ■Godbolt, junior,…

This was an action of trespass to try title, brought in the district* court of Sumter. The plaintiffs claimed the land under the act for the distribution of intestates estates. The intestate, James Dickey, died after the passing of that act, viz. in February, 1791, leaving a widow, the plaintiff, Mrs. McFadden, and more than one child.The plaintiff therefore claimed as co-heir, entitled to one third of the tract of land in dispute.

These two cases were decided upon the authority of McFadden v. Haley, ante, 96; on motions Jotnew trials,- afteraonsuits, ordered in the district court of Lancaster, held by Bay, J., on the last circuit.

<p>Books of account are admissible in évidencé upon the oath of the party,' where that is the best evidence the nature of the case admits; and the rule is neither confined to the books of “ tradesmen and handicrafts-' men,” nor limited to one year after the delivery of the articles charged,the stat. 7 Jac. 1, c. 12, to the contrary notwithstanding, [vide 1 Brev. Dig. 314, S. C. Sláde V. Teasdale, 2 Bay, 172. Lance v. McKenzie, 2 Bailey, 449, note, and see Venning v. Hacker and Smeizer,' 2 Hill/ 584, and Thayer v. Deen, Ik 67?.]-</p>

Motion in arrest of judgment. The defendant was indicted in Edgefield district, on the stat. 4 and 5 P. and M. c. 8, sec. 4, P. L. 60, for having taken away, and deflowered, a certaia maid, or woman child, unmarried, being within the age of sixteen years ; and was convicted thereof.

<p>Motion for anew trial,by the plaintiff.</p>

' This was an action of debt, brought in Richland district, on a judgment obtained in a county court in North Carolina. Plea nul tiel record, to which the plaintiff demurred. Bay, J., who presided in the district court of Richland, last term, decided against the plaintiff, and overruled the demurrer.

This was an action of assumpsit, brought in the district court of Marlborough ; to which the defendant pleaded non assumpsit- infra, qualuor annos.

Motion in arrest of judgment; and also for a new (rial. The defendant was indicted for a forcible entry and detainer, in Charleston, and found guilty. The exceptions taken to the indictment were : 1.

This was an action of trespass to try title’, brought to recover the possession of certain lands in Georgetown, and damages for the mesne profits; and was tried before Grimke, J., in Georgetown district. It appeared at the trial, that in January, 1734, Elisha Screven and wife conveyed the greater part of the land on which Georgetown now stands, to certain trustees, in trust, to be laid out in lots for the then, and future, inhabitants of Georgetown.

This was an action upon a policy of insurance, in which the plaintiffs obtained a verdict; and the defendants now moved that the verdict might be set aside, and a new trial awarded. Tho case appeared to be this : The brig Hannah bad sailed from Newborn, in North Carolina, in January, 1797, for Curacoa, and-Jamaica, but meeting with damage at soa, püt into Aux Cayes, without going to Jamaica, after having disposed of her cargo at Curacoa.

The plaintiff brought an action of trespass on the case against the defendant, as sheriff of Charleston' district, for au escape of one taken upon a capias ad respondendum, at the suit of the same plaintiff ;• and obtained a verdict : and this' motion was on behalf of the defendant, to set aside the verdict, and grant a new trial; on the following grounds :■ 1.

Assumpsit on a policy of insurance. The insurance was on a schooner át and from’ Jamaica to Charleston.

This Was ah action of Assurnpsil on a policy of insurance on the cargo of the brig John, from Charleston to Cadiz, The vessel sailed, and was captured off the coast of Spain, by a British squadron, near Cadiz; and was subsequently libelled, and condemned, by the British vice-admiralty court at Gibraltar, for an alleged breach of blockade.

Indictment for false imprisonment. The [defendant being a city magistrate, had granted a warrant against a slave of Mrs. Hart, the prosecutrix; who, hearing thereof, came to his office, and treated him in a style of much contempt, and ridicule, and threatened him for what he had done : whereupon the defendant committed her to prison for the insult and contempt.

Defendant was indicted, and convicted, in Colleton district, for buying corn from a slave, contrary to the act of 1796, which enacts, “ that if any shopkeeper, or other person, shall, by himself, or other person, directly, or indirectly, buy from any slave any corn, or any other article whatever, or otherwise deal with any slave, not having a ticket, or permit, so to deal, Syc.,from and under the hand of his master, or owner, or such other person as may have the care or…

<p>In all cases where a new trial is granted, the evidence taken by commission, and produced, or ready to be produced, at the former trial; or which would have been proper evidence on the former trial, if produced ; shall be admitted upon the netv trial, in the same manner, and liable to the same objections, and no other, to which the same would have been liable on the former trial. But such evidence taken and used,-or taken to be used, on the former trial, must be placed in the hands of the clerk of the court where the new trial is to be had.</p> <p>Where parties join in a commission to take the examination of witnesses, and the commission is returned into court, either party may move for publication, and neither can object to it. Both have an interest in the evidence thus procured; and the court, having possession of it, will allow both parties the benefit of it.</p>

<p>In an action on the case for harboring a slave, if the defendant claims the slave absolutely, under a mortgage, and by virtue of the 15th section of the act of 1712, P. L. 103, he must plead the act specially, or he will not be entitled to avail himself of his title under it.</p> <p>.Leave granted to defendant to plead the statute of limitations, where a new trial was ordered, at the instance of the plaintiff, on the ground that the statute was not pleaded.</p>

The defendant was attending the court in Pendleton district, as a suitor, when he waá arrested and held to bail at the suit of the plaintiff. A motion Was made in the district court, to set aside tho arrest, and release' tlie bail, before Johnson, J., who ordered the defendant to be discharged upon a common appearance, holding the service of the writ to be good, but the arrest, and holding to’ bail, void.

<p>A copy of a grant is not admissible in evidence, without first accounting1' for the non-production of the original. [sed vide act of 1803,2 Faust* 498.]</p>

The defendant wás tried, and convicted, upon an indictment for. horse stealing, in the district of Kershaw ; and upon a motion in arrest of judgment,… Held: at which the bill was found : and the case was argued in February, 1797, by myself, for the defendant, and by Mr. Pringle, attorney general, for the State, before Burke, Grimke, Waties, and Bay, Justices. For the prisoner, the following authorities were relied upon, and others were cited : 2 Hawk. P. C. c. 25, sec. 127.

<p>|n an action for malicious prosecution, a copy of the indictment duly certified is admissible in evidence, and the original need not be produced.</p> <p>Probable cause is not admissible in evidence under the general issue, in an action for malicious prosecution, but must be specially pleaded.</p>

Trespass to try titles to land in Pendleton district, brought after a former action, by the same plaintiffs, against the same defendant, for the same land, in which the plaintiffs had been nonsuited. Defendant ruled the plaintiffs to shew cause why further proceedings in the action should not be stayed, until the costs of the former action and nonsuit were paid.

<p>An administrator is not liable for costs, on nonsuit in an action upon á contract with his intestate, [vide 1 Bailey; 79. 2 Id. 6,53.]</p>

<p>Proceedings for the partition of joint estates in lands must conform to tW directions of the act of 1748; and under the act of 1799, a writ of summons issues, of course, on application to the clerk. But proceed, ings for the partition of the éstate, real or personal, of an intestate, must, by the act of 1791, conform to the proceedings for the ad. measurement of dower, prescribed by the act of 1786. The sum. mons, whether in dower, or for partition under the act of 1791, issues of course, by the act of 1799; but it seems, that a petitioit must be filed, setting forth the claim of the applicant. Where it is necessary that the writ of summons should be directed to an infant, it must be served on the infant, and, on the return of the writ, application must be made to the court for the appointment of a guardian ad litem j which guardian the court may appoint in all cases of partition, whether under the act of 1748, or under the act of 1791, although not specially' authorized, [vide acts of 1808, p. 47.]-</p>

<p>This case was tried before Bay, J., in Richland district. The jury found for the plaintiff contrary to the judge’s opinion ; and the defendant moved in this court for a new trial. The action was trespass on the case, stating that the defendant had lands adjoining to lands of the plaintiff, and that by the negligence of his negro .slaves on the lands occupied by the defendant, in keeping fire used by them in their employment, and in doing their master’s work, and in obedience to his orders, a house, and a quantity of corn, belonging to the plaintiff, took fire, and were consumed. It appeared from the evidence stated to this court, that the defendant’s negroes being at work near the lands and houses of the plaintiff, had fire with them as is usual among negroes, but whether by permission ■of their master, either expressly given, or to be reasonably im■plied, did not sufficiently appear : it was not, however, necessary for his service in the work they were doing, that they should have fire, as for burning brush, &c.; yet it did not appear but that it might be necessary to cook their victuals, or the like. The fire suddenly spread, by reason of a sudden gale of wind springing up, and ■communicated to the plaintiff’s building, and consumed the house .and corn, mentioned in the declaration. It did not clearly appear, whether the mischief, was occasioned by a want of ordinary care in keeping the fire, or to an extraordinary gust of wind, or some other unexpected and uncommon circumstance.</p>

This was an action of trespass on the case, tried before Brewakd, J., in the district court of Richlaud, on the last circuit. The case was this : Williamson was a postmaster at Columbia, and kept the post office there.

On demurrer. This was a cause determined by Brevard^ J., in the district of Fairfield, in October, 1802. The action was debt on an injunction bond, taken in pursuance of the act of 1784,-P. L. 337.

This was an action of debt on bond, in which the jury found the following special verdict : “ We find that Robert Murrell by his last will and testament, legally executed, and bearing date the 20th of March, 1789, did, inter alia, make the following devise: ‘I give to my son, John Jonah Murrell, all my lands, wheresoever they may be, to him, and the lawfully begotten heirs of his body.

f In this case a motion had been made in the vacation, after May term, 1802, in Charleston district, before Trezevant, J.. at his chambers, for leave to withdraw a plea of ralease, which had been authorized to be pleaded, together with Hon assumpsit, and substitute the statute of limitations under the leave to plead double.

The case was tried in the district of Charleston, last terni. The action was debt on ¿'replevin bond, given to the plaintiff, as sheriff, by the defendant,- as surety.

<p>After judgment against the surviving co-partner, upon a promissory note of the firm, an action at law cannot be maintained upon it by the holder, against the representative of the deceased co-partner. The surviving co-partner may be entitled to contribution; and if he is insolvent, the estate of the deceased co-partner may be made responsible, but it must he by suit in equity,.</p> <p>Where it appears upon the face of the declaration that the plaintiff has no cause of action, judgment-will be arrested after verdict, although the defendant has not demurred.</p>

The plaintiff sued out the writ in 1793. In 1802, no declaration having been filed, the plaintiff moved for leave to declare, having previously given a term’s notice to the defendant of the motion. The motion was overruled in Charleston district. The object of the motion in this court was to obtain what was denied by .J ,. , .... 1 the district couit on the motion in that court.

Motion to set aside an umpirage on behalf of the defendants. This cause being on the docket for trial in Charleston district, was referred to arbitration. On the last day of the term a rule was moved for and granted, on the arbitrators, to shew cause immedi•ately, why they had not made and returned their award.

Motion, in behalf of the defendant, for a new trial. This cause was tried in Charleston district, before Gktmke, J„ last term. The action was on a policy of insurance. The material facts in the case were these.

This was an action of assumpsit tried before' Gkimke, J., ia Charleston district. The sherifl’s deputy who served the writ on the defendant, proved at the trial, that the defendant said at the time it was a just debt he ^vas sued for, and that he would pay it; but mentioned no sum, nor did the witness know how much the debt was, orto what sum the defendant alluded when he said it was a just debt.

This was an action on a policy of insurance, tried before Bay, J., in Charleston district. The material circumstances of the cas© weve tijas® s The policy was effected by tbs plaintiff for R. Den* nis of Savannah, the real plaintiff, owner of the ship Adventure, whose cargo was the object of the policy.

J. Chanter, vouchee of the defendant. The action was trespass to try titles to land, and was tried before Grimke, J.,in Charleston district. The material facts and circumstances of the case appeared to. be these. One Smith purchased the land in question of one Tiddy, and gave bonds and a mortgage of the premises, to secure the payment of the consideration money. This was in 1795. In 1797, judgment was obtained on the bonds.

Motion in arrest of judgment. The action was tried in Abbeville district, before Johnson, J. The writ was in debt, requiring the defendants to answer to the plaintiffs by their several names, without any addition.

<p>A sale by the sheriff is void, where either the execution bears date prior to the judgment, or the sale was made subseguent to the time limited for the return. Vide 2 Bay, 524, S. C.</p> <p>An execution may be amended, and made to conform to the judgment, but this ought to be done m the district court; and when amended it cannot cure proceedings under it antecedent to the amendment. Ob. diet.</p> <p>Although the party claiming by a title from the sheriff need not produce the execution, yet his adversary may ; and if it appear upon inspection, of the execution, that the sheriff wag not authorized, to sell, his title will be insufficient and void.</p>

Trover; tried before Johnson, J., in Marion District. Defendant had pleaded non culpabilis; non culpabilis infra quaiuor annos; and actio non accrevit infra quatuor annos: to which the usual replications were put in, and issues thereon.

Debt on bond, tried before Johnson, J. in Chesterfield District.. Plate admi-dstravii frailer, was pleaded; to whieh plaintiffs replied, that the ol ligations set forth in defendants plea were Jiept on foot, and continued unpaid, per fraudem, and by collusion between the defendants and the obligees. The rejoinder denied the truth of the replication, and is: ue thereon to the country. Verdict for defendant.

Two cases turning on similar points ; being actions for ravishment' of ward, tried in Kershaw district, before Johnson, J. Verdie.'s for plaintiffs.^Motion fora new trial o'n several grounds. One exception was to the insufficiency of the evidence which went to establish the identity of the plaintiff’s ward, so as to give him the benefit of the evidence of a recovery of freedom in Virginia.

At the court of Kershaw district, a motion was made to amend S judgment, which was refused, Johnson, J., presiding. The motion in this court was to reverse the decision of the district court. The case was, that plaintiffs had sued on a bond given by defendant’s testator. Defendant pleaded payment since intestate’s death. Plaintiff had a verdict; and defendant, by his false plea, which he knew to be false, had made himself responsible for the debt, do bonis propriis.

<p>Upon the return to a sci.ja. of scire feci, or two nihils, if the defendant fails to enter an appearance during the term next after the return, the plaintiff will be entitled to an order for judgment from the clerk, and to enter up judgment thereupon, without filing a declaration, or posting a rulé.</p>

<p>Very slight evidence of the loss of the original grant is sufficient to au- ' thorize'the admission in evidence of an office copy, where the land has been' conveyed by the original grantee, and has passed to different purchasers, and there is no proof that the party claiming under it, over had possession of tlio original.</p> <p>Indorsement of title deeds to land in these words: “ The within to Wil- • liam M’Callister Turner, from under my hand and seal, Aug. 12, 1779, Witness present, Dominic Craney, Alexander Turner, (signed) William M’CaUister” — Held to he too uncertain, vague, and informal, to operate as a legal conveyance, although made previous to the act of 1785, requiring conveyances to bo under seal.</p> <p>Where it is proved that the two subscribing witnesses to a deed are out • of the state, proof of the handwriting of one of them, and of the handwriting, or mark, of the grantor, is sufficient evidence of the execution.</p>

<p>Mandamus lies to compel the state treasurer to deliver out, upon good security, a mortgage of land to the state, to be used as evidence on a trial between two citizens, concerning the same land, which one claims under a sale made by virtue of such mortgage in behalf of the state.</p>

The cause was tried in Richland district, before Trezevant, J. Pending ihe suit, the parties submitted to arbitrament, by bond, and it was conditioned that the award should be read in evidence at the trial. Before the trial, the defendant filed sundry exceptions to the award, and gave plaintiff notice that these would be offered against the award, if produced in evidence on the trial. These objections having been made and argued in the district court, were overruled.

The action was trespass to try titles ; and was tried before Brevard, J. in, Chester district. The plaintiff claimed as devisee under the last will of J. Hopkins deceased. It was proVed, that the three witnesses, whose names were subscribed to the will, were all dead. The handwriting of two of these witnesses, and the signature of the testator, were proved ; but the hand writing oí the other witness was not proved.

The case was trespass vi et armis for taking away a horse from the plaintiff; and was tried before Brevard, J. in York district. It appeared in evidence, that one Chisolm owned the horse in question, and sent him to his father lo keep for him ; that a younger brother of Chisolm took the. horse to ride, and did not return him.

The action was debt on a bond, and was ¡tried in Georgetown district,before Bay, J. The bond was produced, and the handwriting of the obligor being proved, Bay, Jr, decided that ..such proof jvas sufficient,.in virtue of the late t ct of assembly, of 1802', without any proof by the subscribing witnesses, or proof of .their hand writing.

Special verdict in partition in these word«: “ We find that Ebeneezei Vereen, by his lust will and testament, bearing date, &c., among other things, gave to his twoyouugost daughters, Elizabeth, and June, five negroes, named. &o. with their increase, bis stock of cittle, &.C. to be equally divided between them, share and share alike; and in case his executors should not think it best to dispose of his real estate, then the whole of his real estate to be equally divided…

in Charleston district, on the following question. The plaintiff’s writ was issued prior to the meeting of the district court in January, but after the time limited for the return of writs for that court, that is to say, within fifteen days before the meeting of the court; and was made returnable to the clerk fifteen days before the meeting of the next succeding court, for May term: and whether the writ so returnable was regular or not, was the question submitted.

<p>To intitle a party to distrain for rent, there must be an agreement, either verbal, or in writing, for a sum certain, to be paid as rent.</p> <p>A landlord cannot avoid an agreement for the use and occupation of the land, rent free, on the ground of usury, in an action of replevin to try his right to distrain for rent.</p> <p>An agreement that land may he occupied rent free, in consideration of the loan of a sum of money, cannot be considered usurious. Semble.</p>

Cargo valued at $1544, insured at $1400; freight insured .at $900. Voyage from Savannah, in Georgia, to Savannah la Mar, in Jamaica. Policies dated 19th April, 1799, The schoon•er, soon after she sailed, on the 27th April, 1799, sprang aleak at sea, in consequence oí which she bore away forNassau, New Providence, where she was libelled, and condemned as unseaworthy. The protest made by the captain, two seamen, and the mate, was produced in evidence.

Motion on behalf of defendant for a new trial. The action, which was tried before Grimke, J., in Charleston, was on a policy of insurance from Charleston to Kingston, Jamaica, and from Kingston back to Charleston, on the vessel and freight. The plaintiff was owner of the ship. The protest, which was of the plaintiff, and others, stated a loss of the ship by stranding. The examination of one Birdsall, taken by commission, was read in evidence for defendant.

The verdict was giveti for the plaintiff, in an action tried at Charleston, before Trezevant, J. The action was to recover the amount of a bill of exchange, drawn by one Joseph Doane, as the agent of the defendants. To prove that Donne was an authorized agent, plaintiff produced a letter of defendants, addressed to Doane, of the following tenor : “ Charleston, 10th June, lbOl.

The action was on a charter party, and was tried in Charleston, before Grimke, J. The contract was ior the affreightment of plaintiff’s brig, from Charleston to. Cowes and a market. It appeared that the defendants had chartered the whole brig, and were lading her at a wharf, and had put on board a considerable number of articles.

The action was on a bill of exchange, supposed to have been lost; and was tried before Johnson, J.,in Charleston.

The a In support of the motion, was cited, 1 Esp. Dig. 148, 1 Fonbl. Eq.-888,870, Cowp. 438. The deed was made with a view to defeat one creditor, and any other creditor may take advantage thereof.

Action of assumpsit for vice sold and delivered, tried in Charleston, before Johnson, J. Deience, discount for unsoundness. ft appeared that the defendant bought fifteen barrels of rice of plaintiff; and, at the time of puichase, examined two of the larrels, and might have examined the others.

Motion to reverse the decision of Johnson, J., in this case, in Charleston district; upon the following point: R. B., being in. debted to the plaintiff by bond, dated 1709, for securing the payment thereof, mortgaged a certain house built upon a leasehold estate. The mortgage w; s recorded in August, 1800. in the office of the Secretary of Slate.

Action, in nature of an action for ravishment of ward, brought by plaintiff, as guardia) of a mulatto man, named Michael, to establish his freedom; tried be. fore Gkimkb, J. m Charleston district. The title of the defendant did not come in question.- The evidence was, that Mi. chael was known in Baltimore, in Maryland, where he kept an alehouse, and was generally reputed to be a free man. That he was also known in Wilmington, in Delaware, and appeared to be a free man.

<p>The defendant was tried in Sumter district, before Brevard, upon an indictment which charged him with receiving five quarters of beef, knowing the same to be stolen, contrary to the act of assembly, in such case made and provided, it appeared, from the report of the case, and of the evidence adduced upon the trial, that certain cattle were taken feloniously by a negro, and there was reason to believe, at ihe instigation of the defendant, and driven to the place where the defendant resided, at which place they were killed ; and the meat, being the meat of the same cattle, was found concealed in the house of the defendant, and in an out house under his charge, under such circumstances as to leave no doubt of his guilt.</p> <p>The jury found him guilty; whereupon, a motion was made for a new trial, and in arrest of judgment, which was argued by Falconbr, and Simons, for the prisoner, and Wilds, fc'olicitov, for the State. For the prisoner, it was insisted, that the act of 1789, P. L„ 486, against cattle stealing, repeals the act of 1769, P.L. «74, against, receiving stolen goods, so far as the same respects cattle. That the act of 17h9, repeals the common law as to cattle.stealing, and change', the otfe ce from felony lo a misdemeanor, punishable by film, unless the off nder should be unable to pay the same. That the intention of the act was to abate the rigor of the common law in the punishment of eattle-steali'.g: and, inasmut h as it would-contradict a well settled rule and mixim of criminal law, to punish an accessary with greater seventy than his principal, the acce- snry i,i this case, the receiver, could not be punished as a receiver of stolen goods, according to the act of 1769, by which act ho would be subj-ct to a much severer punishment than the xhiei himself, by whom the cattle were stolen. That the rules of common law, which are founded in reason and natural justice, ■must serve to guide us in our construction of statute law ; and, where two legislative acts are in opposition, and repugnant to each ■ether, they can. ot both stand, hut the latter icpeals the former. It ■was further contended for the prisoner, that as it appeared in evidence, that, the principal thief, the negro who stole the cattle, might have been taken and prosecuted, the prisoner could not be prosecuted tor a misdenie.i or for receive g the thing stolen ; because, the words of tne act of 1769 are, “ provided, such princip >1 felon cannot he take i.” Cued Post. C. L. 373, 4 Bl. Com. 38, 132. It was also contended, that the goods stolen, in the contemplation of the act, must he goods nksu and stolen burglariously, as the aci has- relitm i to burglars, and die proviso of the act speaks of burglary. Also, tbar it was not beef which was stolen, as theinuicmietit states, hut cattle.</p> <p>On tile o'her side it was urged, that the thing laid in the indict-meat as siol. o, and received, was beef, and not cattle, and therefore, the net ¡789 does not apply. That the words of the Act of 1769 “ provided the principal cannot he taken,” means provided he has not been take.) prosecuted : and, that a conviction, for the misdemeanor in receiving stolen goods exempts the offender from punishment as accessary, in case the principal felon should after-wards be token ...ed convicted. Cited Leach, 107, King v. Wilks. In the construction of the Stat. 1 Ann. st. 2, c 9, § 2. and 5 Ann. c. 31, and 3 & 4 W. &, \i. c, 9. § 4, the substance of which is con. tained in the act of 1769. other goods, besides such as are taken burglariously, have been held to be within the acts, being within the same mischief; and, therefore, within the equity of the statute.</p>

The defendant was tried in the court of sessions, in Lancaster district, before Johnson, J. upon an indictment, which set forth, “ That Elizabeth Barton, on such a day, at, &c. was delivered of a bastard child, which will become a burthen upon the district; and that the said John Adams, on. &c. at, &,c. with force and arms, diet beget the said bastard oliild. upon the body of the said Eliza-Barton, and is the father of the stone, against the tornaf of the act of the general…

Action on the case for words. The defendant moved for leave to plead, in addition to the plea of not guilty, a special justification, of the truth of the words ; which was granted by Brevard, J., in the district court of Kershaw, although objected to on the score of repugnancy. The motion in this eourl was to reVerse the order miid.e by the distiict court in that behalfi and to support this motion was cited 2 Stra. 876.

On a rule to shew cause, why an entry made in the minutes of the court of sessions, in Kershaw district, in these .words, viz; “ The State v, Brian Spradley.

An action of trespass was brought by the plaintiff, against the defendants, and tried before Brevard, J. in the district court of Marlborough. The declaration alleged, that that the defendants, with force and arms, took and carried away a slave of the plain, tiff; to which the defendants pleaded not guilty, and a justification, that the slave in question, was the proper slave of one of the deffen, dants. On which, issues were taken to the country.

The ac. tion was brought to try titles to land, and was tried be. fore Grimke, J. in the district court of Fairfield. The defendant claimed the land in dispute by virtue of a deed- of conveyance from the sheriff of Camden district, made pursuant to a sale under execution sued out upon a judgment obtained by Minor Winn,against the administrators <>f Win. D’Urphey, deceased, the father of the plaintiff, who claimed as heir at law of the said deceased.

An action of assumpsit was brought in this case, and the parties .submitted the matters in difference between them to arbitration under a rule oí court. The arbitrators made ait award in favor of the plaintiff; whereupon he obtained a rule to shew cause why the award should not be approved and affirmed, and why he should not jiave leave to enter up judgment thereon. shewed cause before Brevard, J. in Kershaw district court, and took several exceptions to the award.

<p>Motion to set aside a nonsuit. The action was an action on the ease for libel, brought in the district court of Laurens, and was tried before Tbbzjsvant, J. The declaration set forth, that the defendants, to injure the character of the plaintiff, exhibited certain charges against him, in writing, to certain officers of the militia, sitting as a court of enquiry, accusing the plaintiff of divers criminal offences, and particularly of the crime of larceny, under the pretence of bringing him before a military court of inquiry, and afterwards before a court martial, in order to degrade him from his rank of major in the militia; and set forth the tenor of the libellous charges exhibited. The defendants pleaded the general issue, aud also a plea in justification, which stated that the charges whereof the plaintiff complains as libellous, were properly exhibited according to martial law, and upon reasonable and probable grounds of suspicion and belief, aud for the honor and benefit of the militia service, without any such malicious motive to injure the reputation of the plaintiff, as alleged by him. Whereupon the plaintiff replied, that the said charges were maliciously made, and without any sufficient cause, by the defendants of their own wrong, &c. and tendered an issue to the country, and issue was joined thereon. At the trial of the cause, the judge, who presided, being of opinion that the justification was sufficient; upon the. ground that the courts of civil justice ought not to subject to damages persons exhibiting such charges against an officer of the army, or in the militia, according to martial law, but the person injured by such an accusation must look for redress in the courts martial; the plaintiff suffered a non-suit, with h ave to move to set the same aside in this court, upon - the ground that this opinion of the court was erroneous.</p> <p>The motion was argued by Dunlap for the plaintiff, and Fab. Itow for the defendants.</p>

The plaintiff in this case, which was an action for a.n assault, Obtained a verdict for fifty cems, and costs of suit, in Kershaw district, before Brevard, J.; whereupon, the defendant obtained a Tide to shew cause, why the plaintiff' should not be restrained from taxing his cosis, and entering up his judgment for the same.

An action of assumpsit was brought in Edgefield district court, and tried before Guimke, J. Plaintiff'had got an order for judgment, which defendant moved to set aside ; and ho pleaded the general issue, and filed a discount, which h had moved for leave, to plead, before the order for judgment was taken.

Action of assumpsit, tried before Brevard, J. in Sumter district Plaintiff had obtained an order for judgment, and upon the execution of his writ of inquiry, was allowed by the court to give a promissory note, a copy of which was filed with the declaration, in evidence, without any proof of the hand writing of the maker, or of the subscribing witness.

<p>The truth of the recital in a legislative grant cannot be inquired into in an action by the grantee, against a wrong doer for the thing granted. The reasons set forth by the legislature, whether founded in mistake, or in truth, cannot affect the operation of the enacting clause.</p> <p>An abandonment of the r'ght of the State to personal property will not be presumed from lapse of time, where there is no evidence of a possession by individuals, sufficient to authorize such a presumption in their favor.</p> <p>A grant of the right of the State to personal property, is not unconstitutional, although individuals are in possession claiming it as their own.</p> <p>Detinue lies, although the defendant is not in actual possession of the thing sued for, at the time of action brought, if he has not been lawfully dispossessed thereof, but has wilfully, or fraudulently, parted with the possession, to avoid the suit.</p>

Assumpsit for work and labor, tried before Tkiszevant, J„ in Richland district. The parties had entered into a written agreement, under seal; and afterwards a dispute having ari. sen between them, as to the fulfilment of the same, they came toan agreement by parol, to waive the written contract, and refer the matters in dispute between them to arbitration. The arbitrators made no award.

Action to try titles to land, tried in Abbeville district, before Tkezevant, J. The plaintiff claimed the land under a conveyance from the sheriff of Abbeville county, made pursuant to a sale by execution.

Assumpsit on a promissory note, tried in Abbeville district, before Treüevant, J. The note produced in evidence ap. peared to have been made payable to “ Barbara,” and the surname “ Mouchet” interlined afterwards by another hand. The sub. scribing witness to the note, proved that it was given by the de. fondants to the plaintiff, and proved also the consideration for which it was given.

The action was debt, and was tried before Brevard, J. in Lancaster district. The specialty declared on, was in the form a promissory note, only concluding with the words “ witness my hand and seal;” and having a scroll instead of a seal: and there was not any name of a witness subscribed.

Action for words, tried before Trezevant, J. in Fairfield district. The plaintiff had obtained an order for judgment, which defendant moved to set aside, and to have leave to “plead not guilty,” and a justification. The judge, however, refused to permit the defendant to plead the last plea, on the ground that it was not an issuable plea, within the meaning of the rule of court.

The action was trover, for a negro slave, and was tried before Brevard, J. in Marion district. The plaintiff claimed by the last will and testament of Wm, Cockfi. ld, who died in 1794. It appeared in evidence, at the trial, that the testator, a considerable time previous to his death, divided his property between hi children, and by verbal gifts apportioned to them their several shares, reserving two slaves, and some other property to himself.

Plaintiff brought assumpsit for money-had, &c. which was tried in Charleston district, before Bay, J. The evidence given in maintenance of the action was, that a Mr. Mainvielle, deceased, in his lifetime, occasionally lodged at the house of the plaintiff, Madame Curtois ; but often furnished her with firewood, and used to go to market himself, and purcbars; meat, &c., and did not charge for the same.

Morion for a new trial. Trespass to try titles to land, situate on Kewaw island. Verdict for the defendant. Tried before Johnson, J. in Charleston district.

Specal verdict, viz : “We find that Jos. Byrnes, on the 1st Jan. 1802, purchased from Messrs. Blake & Magwood, 97 barrels and 16 half barrels of lice, at I6s. 4d. per cwt., amounting to £501 13s. 4d., as per bill of parcels delivered at the sale. Also, that Jos. Byrnes invoiced the said rice as his own property, a,nd shipped the said rice on board the brig Washington, belonging to Blake & Magwood, commanded by (). Fuller, the defendant, consigned originally to Capt. Geo.

<p>[ The arguments of counsel, and opinions of the court, were applied to the next case following, as well as to this. These two cases were argued and considered together, as they both turned on the construction of the same will. See the next following case.]</p>

Special verdict. In trespass, to try tilles; before Trezevant, J. in Charleston.

The action was trespass to try titles to land, and was tried in Charleston, before Trezevant, J. The plaintiff gave in evidence a marriage settlement between James M’Kelvey, and Margaret O’Neal, dated in 1753, (not recorded, see act of assembly 1785, P. L. 357,) by which 250 acres, being a moiety of the land in dispute, was conveyed to trustees by the said Margaret O’Neal, and declared for the several uses following, viz. : 1.

Action on the case for harbouring, to try the title to certain negroes, tried in Georgetown district, betore Johnson, J. The act of limitations was pleaded by the defendant; and it appeared in evidence, that the plaintiff had pur. chased the right of two parceners, or joi it heirs of an intestate, of the negroes in question.

This was an action of trespass to try the titles to a messuage and tenements in the city of Charleston ; and was-tried before Brkvard, J. in Charleston, in January, 1804.

Motion to set aside a nonsuit, and grant a new trial. This was an action of trover, for certain negro slaves, tried before Trezbvant, J. in Marion district, last circuit.

This was an action of trespass, to try-titles to land, and was tried before Brevard, J. in Darlington district. The plaintiff produced a grant from the Stale to Cain ; and a conveyance from Cain to himself, dated 4th November, 1800. The defendant, under the plea of the general issue, gave evidence to shew, 1. That the deed of conveyance from Cain to the plaintiff, was obtained by duress. 2. That the consideration thereof was for compounding a felony. 3.

Motion to amend a judgment, by the insertion of the following words, via. “ lands and tenements,” after the words “ goods and chattels,” so as to subject the real estate of the defendant’s intes. tate to seizure, and sale for his debt,- which words were omitted in the judgment. 'Trezevant, J. in Marlborough district court, had refused this motion, and reserved the point for the decision of this court.

This was an attachment, brought by way of summary pro', ijess, in Chesterfield district, and was tried before Trezevant, J.y who gave a decree for the plaintiff, subject to the opinion of this court, whether the procedure by way of petition and process, in cases of foreign attachment, be proper and legal, or not. argued that the process was legal, the debt being within the summary jurisdiction of the court.That when the attachment act passed in 1744, all actions were begun…

Motion to reinstate a plea. To an action of debt brought in Lancaster district, on a judgment, there was a plea of nul tiel res cord, and by leave of the court, a plea of payment was also put in ; which latter plea was set aside as frivolous, by Trezevant, J. on motion. This motion was to restore the plea so set aside. insisted that the plea of payment in such case as this, was a proper plea, and could not be set aside as frivolous.

This was an action of debt on a judgment, in Kershaw district. A motion was made before Trezevant, J. for leave to plead payment, and accord and satisfaction, in addition to the plea of nul tiel record, which was refused. The motion here was to review this decision of the district court, and to obtain leave to file the pleas aforesaid.

In the district court of Kershaw before Trezev ant, J., B landing obtained a rule to shew cause why the judgment in this case should not be set aside for irregularity, and because the same is not warranted by the proceedings in the cause.

Motion to set aside an order of court. The plaintiff brought a writ of foreign attachment against the property of the defendant, in Abbe-ville district, which was levied on certain goods, &c. of the defendant. These goods were delivered to H. &• C. upon their entering into a recognizance of special bail for the defendant.

This was an appeal from the decision of Brevard, J., in Union district, in April, ISfOfL The question was, whether eiecutors plaintiffs, upon a verdict against them, are liable to pay costs. The decision was, that judgment and execution might go against the property of the testator, to levy the costs of the goods, &c. of the testator, if <&c., but not to levy the costs of the proper goods of the executor, unless he has made himself liable.

<p>An administrator is not liable for costs, on a verdict against him, in así action brought by him in right of his intestate.</p>

<p>Motion to sat aside an order -mude by Watxes, J. in Newberry district. This was an indictment for an assaull ; and it appeared, that the prosecutor, Brook, had also brought a civil action for damages, for the same trespass.</p> <p>moved that the prosecutor should be compelled to make his election ; and cited the case of the ¡átate v. Blyth, 1 Bay, 164.</p> <p>opposed the motion.</p>

Motion to set aside a nonsuit. Action on an indorsed note, brought in Laurens district. At the trial before Watif.s, J. the plaintiff offered that the act of assembly.of lw02.

in Edgefield district. The case was this : The plaintiff and the defendant’s intestate had been partners in trade ; and during the existence of the partnership, the intestate had paid, out of the partnership stock, his own private debt to one S., and had omitted to make the proper entry thereof tn the pari net-ship books.

<p>Where goods levied by domestic attachment are replevied by the defendant under the act of 1785, the plaintiff is intitled to file Ms declaration, sign judgment by default, and execute a writ of inquiry, in the same manner as if the suit had been commenced by process against the person. He is not bound to obtain a special order that the defendant plead within a given time, as in cases of foreign attachment under the act of 1744.</p>

Scire facias to revive a judgment, brought in Orangeburgh dis. trict. The plaintiff stated in his writ and declaration, that his in. testate had recovered against the defendant a certain debt of £609, Gs. sterling, and £G, 12s. costs of suit, &c. The defendant pleaded nul lid record, to which issue was joined. The original record was produced before Grimke, J. Upon inspection of the record, there was found no writ, or copy of the bond declared on.

Motion to set aside a nonsuit, ordered by Trezevant, J. in Rich'land district. This was an action to try titles to iand. In proof of his title, the plaintiff produced in evidence a deed of conveyance of twenty seven years standing, and proved the death of the grantor, or person conveying, and his handwriting; and also the death and handwriting of two of the subscribing witnesses to the deed.

Motion to reverse an order, made by Trezevant, J., at Rich-land, quashing an attachment issued under the act of 1785, P. L. 367 ; which authorises a justice of peace to issue an attachment against the estate of a debtor, where the creditor shall make oath how much is justly due to him, and that he has just grounds to suspect, and verdy believes, that such debtor intends to remove his effects.

This was an indictment for an assault and battery, against the defendant, and two others, tried before Brevard, J. in Charleston. It appeared in evidence, that the defendant was master of a vessel, u hich was lying in the harbour of Charleston, not far from another vessel, on board of which the prosecutor was.

This was an action of trover, foi- certain slaves, and was tried in Charleston district. The jury found a special verdict, which stated, that the negroes in question we/re included in a settlement made by the plaintiff’s father on her, in 1782, by which the same negroes were limited to the father for life, and after his death were then to go to the plaintiff.

This was a summary process, tried in Charleston, in May, 1803:, before Bay, J. who decreed for the plaintiff, subject to the opinion of this court upon the question, whether the defendant, against whom a commission of bankruptcy bad been sued out, after the cause of action in this case had accrued, under the act. of congress, of 1800, was intiiled to a discharge from the demand, and protected from the action of the plaintiff in this case, under the circumstances of the case.

<p>Motion for a new trial. This was an action of assumpsit, tried before Bay, J. in April, 1803, in Georgetown district. The declaration charged the defendant for meat, drink, &c. found for his wile. The jury found a verdict in these words: “ We find for the plaintiff the amount of Or. Grant’s assumption, made through Mrs. Anna De Bruhl, of £35, per annum, with interest on the same each year to the 1st of April, 1803, amounting to 1986 dollars, 85 cents.” Besides the count for meat, drink, -&C. at a certain price, the declaration contained another upou a quantum. meruit, for the same consideration ; and another for money had and received. The defendant gave evidence of his wife’s criminal connection with a Mr. Sykes, which was fully proved; and of his separation from his wife, and of their living apart at the time, and prior to the time, during which the plaintiff charged for her support. Upon their separation the wife went to live with the plaintiff, who is her father, and has lived with him ever since. Mrs. De Bruhl, by whose testimony the infidelity of the defendant’s wife was provetb gave further evidence, that shortly after Mrs. Grant had removed and lived separate from her husband, in 1798, and was liv'ing with her father, she had a conversation with the defendant, who desired her to acquaint the parents of Mrs. G., that he would allow them £35, per annum, for her maintenance, which he would pay quarterly. That sho,- the witness, communicated this proposal of the defendant to the mother of Mrs. G., who asked whether the separation was to be for months or years : to which the witness answered, that she hoped it would be for a short time only. That the witness some time afterwards saw the defendant, and told him that she had mentioned to Mrs. Grant’s parents what he desired her to mention. The witness could not tell whether the plaintiff had ever been acquainted with the defendant’s proposal. The account filed with the declaration, charged the defendant for seven years board of Mrs. G.', at £50 per annum, from the 25th July, 1793, to the 35th July, 1800. The jury found as above, contrary to the opinion of Bay, J., who charged them that the defendant was not liable for necessaries for his wife, without an express promise ; and that the evidence did not prove a promise, but a proposal only.</p> <p>For the defendant, it was argued, that in a case of this sort, where the husband is charged for necessary meat, drink, &c. fur. mshed his wife, if he can prove that the wife, in consequence of her misconduct and infidelity towards him, was separated from him, and was living apart from him, with one who was well acquainted with the cause of separation, he will not be liable to pay such charge, to the person who may, entertain and support her under such circumstances. See 6 Mod. 147, 171, 163. 1 Salk. 119. 2 Vern. 386,493, 671,752. 1 Ld. Raym. 444,1006. Str. 127, 647, 706, 875, 1122, 1214. Bl. Rep. 197, 1195.</p> <p>That in this case it was not proved that the defendant undertook to pay the plaintiff any thing for the board of his wife ; for that it did not appear, that the proposal, made by him for that purpose, was ever made known to the plaintiff, and acceded to by him, without which there could be no contract. Pow. on Con. 6.</p> <p>That even if the proposal had been accepted, it would not con. stitute a good agreement, for want of consideration. 1 Esp. Dig. 86. That the plaintiff had voluntarily undertaken to receive and support the defendant’s wife, without any expectation of reward, and was not therefore entitled to any. It was voluntary courtesy. 2 T. R. 80.</p> <p>That the verdict was founded on the evidence of a special agree»,. inent to pi.y so much per annum,; but the evidence did not prove any such agreement: a> d moreover, interest was found, which is not warranted by any evidence given. Besides, that the plaintiff had not declared on any such contract as the jury had found by their verdict, and therefore the verdict was not good. 1 Lofft's Gilb. 165. 1 Esp. D.g. 133, 166, 139. Bull. N. P. 139. 1 Str. 648.</p> <p>The jury had confounded the evidence. The evidence of the overtures made by the defendant were improperly given, as there was no count in the declaration to which it could apply, even if the overtures had been acceded to : but not having been acceded to, the jury should have taken no notice of them. Pow. on Con. 330, 331. The verdict is imperfect, and incapable of being mould, ed into any form so as to serve.</p> <p>Oil the other side it was contended, that the proposal of the defendant was founded on a good consideration ; wad there was presumptive evidence, of its h; vi.-g.been commu.-mated to the plaintiff, and of his having acceded thereto. That the verdict is suffii. cient, being warranted by the evidence adduced. It finds a sum certain; and whatever may be added thereto, which is not pertinent, may be rejected as surplusage. Utile per inutile, non vitiatur. 7 Bac. Abr. 21, 22, 42. Although no count in the declaration of a special contract, yet after verdict it shall he presumed that the evidence applied to the declaration as it is. 5 Com. Big. 378. A good finding on the money count. The non.application of the evidence should have been challenged upon the trial; and after verdict it is too late. But there was no surprise operated by giving evidence of the special contract, al1 hougti not stated in the declaration ; and therefore no reason for a new trial on that ground. 1 Esp. Dig. 121. 1 T R. 133. 2 Wils. 380. As to the objection to the verdict on the ground that the jury had allowed interest, it was proposed to remove it.by releasing t.-ie interest, if improperly allowed ; and that the amount, might be ascertained by adverting to Mrs. De Bruhl’s evidence, and the account filed.</p>

This was a scire facias against the defendant, as bail to the sheriff for William Thomson, setting forth that the plaintiff brought an action against said Thomson, and held Mm to bail; and that the present defendant became bail for Thomson to the sheriff, for his appearance to answer to the plaintiff id the said action, and if Thomson should be condemned therein, that he, the said M’Clure, should satisfy the said condemnation and costs, or render the body of the said Thomson…

This was an action of detinue, to recover two negroes, and was tried in Charleston. A special verdict was fouud, whiph states, that Robert Baron, of St. Bartholomew’s parish, by his last will and testament in March, 1704, devised, among other things, as follows : “ I give and devise unto my daughter, Jean Baron, my plantation on Island Creek, &c, fo her, her heirs, and assigns, forever.

At the trial of this cause in Charleston» before Bay, J., it appeared that the plaintiff was a British subject, resident abroad ; and proof of a power to an agent in fact, competent to authorise the attorney at law to bring and prosecute the, action, was required: whereupon a letter was produced, purporting to be a letier of agency under the hand and seal oí a person bearing the name of the plaintiff, and purporting 10 be subscribed by the writer in the presence of iwo…

Motion on behalf of the plaintiff for a new trial. This was an action on a bill of exchange, and Was tried in Charleston, before Trezevant,J. The case, was this. J Black* agent of the plaintiff, Fleming, a merchant in London, purchased for him a bill of ex. change, drawn by Nathaniel Douglas, in favor of the defendants, which was indorsed by them. The bill was dated 1st October, 1801, and made payable sixty days after sight.

This was an action on a policy of insurance, and was fried before Buevakd, J. in Charle-ton. The circumstances of the case were these: Tiio insurance was on goods, shipped on board the American brig Wexford, at, and from Bordeaux, to Charleston, at the rate of 3 1-2 per cent. No insurance against loss under 5 per cent., unless general average.

Special verdict as follows : “We find that the defendants insured, ®n goods on board the ship Pomona, the sum of $800, as appears by the policy attached,and forming a part of this verdict.

Demurrer. In the district court held for Kershaw district, November term, 1805, before Brevard.

Motion to reverse a decision of Johnson, J., in Charleston. The case was, th at the plaintiff distrained for ren t in a rrear, on the 7th ¡VI ay, and the goods were replevied on the 13th of the sumo mouth.

This was an action on a policy of insurance, on the schooner Perseverance, for a voyage from Charleston to New Orleans, effected by the plaintiff, for captain Howe, as the owner of the vessel. The policy was opened in the name of Howe, who was known to be an American citizen ; but he was not, in fact, the owner. The vessel was thq property of Santa Maria & Cuesta, subjects of Spain, at the Hevana.

Before Johnson, J., in Charleston. Parker, for the assignees of the defendant, obtained a rule on the sheriff, to shew cause why the moneys tendered in satisfaction of certain executions against the defendant, should not be received, and the executions returned satisfied.

Sci. fa. brought in the district of Sumter, before Grimke, J. Issue on the plea of mil tiel record. The record produced, was against the defendant’s testator, as “ administi ator of William Brisbane whereas, the sci. fa. stated a judgment against him, but not as administrator.

8ci. fa. against defendant,' to revive a judgment against her testator, in Kershaw district, before Trezevant, J. The sci. fa. stated the recovery of adebtot £ ;20, ami £12, 10s. lQd. dam.g-s for the detention of the said debí, &c. Plea nul tiel record, on Which issue was joined.

Motion to reverse a decision of Grimke, J. in Lancaster district, and to confirm the return io a writ of partition. The writ issued to divide the estaie of James White, who died intestate.

A writ of inquiry being about to be executed in Orangeburgh district, before Bat, J.s Egan moved to quash the proceedings : 1. Because the writ requires 'he defendant to appear at Orangeburgh, instead of Orangebu gu Court House. 2. Because the writ commands the sheriff to attach the defendant, who is sued as administrator, whereas, it should have commanded the sheriff to summon the defendant. Bat, J, overruled the motion, which was now made in this court.

The defendant being committed on a charge of forgery, was ad. Blitted to bail, and at April sessions, in Richland district, prayed to be brought to trial. At the next court in November, 1S04, he mo, ved for his discharge, no bill of indictment having as yet been pr?» ferred against him. This was opposed by the counsel fi>r the State: and Bay, J. who presided, refused to release him from bis recognizunce.

Stark moved before Bay, J. in Richland district court, to have $n order for judgment set aside in this case, and for leave to plead pon assumpsit, and the s’alute of limitations, which was refused, on the ground, that the defendants were not imitled to the benefit of •Jspth these pleas, and especially the last, on a motion oi this sort.

In the district court of Sumter, it was moved, before Grimke, J. an behalf of the defendant, that a commission should be granted to take the examination of Adjutant General Manning, 4e bene esse, although it was not stated that he was sick, or infirm, but only, that he was the only witness who had knowledge of a fact, material to the defence; which was stated by affi lavit.

Motion to reinstate the' cause on the docket, in Sumter district. It had been oh the docket for six terms, and- had been postponed at every term, except the last, at the instance of the defen» dant. At the last court in Sumter district, it was agreed by the parties to let the cause stand over. Grimke, J., however, when it was-galled, ordered that it should be tried» or struck off the docket;. and-the parties not being pn pared for trial, it was struck off.

Action of trespass for taking a inure, tried in Abbeville district, before Bay. 3. 1 he motion lor a new trial was abandoned, and ihe defendant relied on the motion in arrest: on the ground, that it appeared, by th#' record of the proceedings in the cause, that the action was brought,as well as prosecuied, in the name of Little J mies Hamilton, friend and guardian of A. M. Hamilton and that it did not appear, that L; J. Hamilton was ever admitted, by the couit, to prosecute…

Sci. fa. brought in Abbeville district; against the defendants, as special bail for J. S. Rushton. The defend dants pleaded a surrender of their principal, and concluded their plea with a verification ; whereupon, the plaintiff demurred, and shewed for causé bf demurrer, that such conclusion was ill, and that the same should have been grout gatet per recordum: Defendants joined in demurrer, and this issue was determined by Bay, J. in favoi’ of the plaintiff.

Action of assumpsit, tried in Abbeville district, before Bay, J. The declaration stated, that the legislature had vested in the piain'iff, ids heirs and assigns, for 14 years, the right of receiving toll at his bridge over Saiuda river, in exclusion of every other person, for a certain distance on the said river; and that the defendant had erected a toll bridge within the prescribed limits, and had received considerable sums of money, which of right belonged to the plaintiff.

Motion to set aside a nonsuit, &c. Trespass to try titles, before Bay, J. in Union district. Plaintiff claimed under a conveyance from the sheriff, who had sold the land in dispute under an execution issued pursuant to a judgment obtained in the county court of Union. It appeared that the judgment had been obtained upon a process of attachment, issued under the act of 1785, which had Tifien levied upon land.

<p>The district court has power to judge of the constitutionality of acts of the legislature.</p> <p>The act of assembly of 1801, extending the jurisdiction of justices of the peace to thirty dollars, was adjudged to be unconstitutional.</p>

Trespass to try titles to land, tried-before Bay. J. in York district.

Trespass to try titles to land : tried before Wilps, J. in Fairfield district. Plaintiff claimed by descent, iand proved a title in his ancestor.

Motion to set aside a nonsuit. Trespass to try titles to land, tried before Wilds, J. in Fairfield district. Plaintiff claimed under a sheriff’s conveyance, made pursuant to a sale under execution.

Sum. Process on a note of hand, brought before Wilds, J. in the district of Fairfield. It appeared, that prior to the cause being brought before the court for trial, the defendant had confessed a judgment for the sum due, according to the note, with interest, but no judgment had been entered up thereon ; and, that the defendant had, afterwards, paid the plaintiff the said sum so confessed, and took his receipt for the same, as in full for the debt in the said case.

On sum, process, before Wilds, J. in Newberry district. After a decree was made for the plaintiff, the bail to the sheriff, for the appearance of the defendant, moved for leave to enter himself special bail, in order to intitle himself to surrender the deiendant, in his own discharge; which was refused. The motion in this court, was to correct the decision of the district court on that point.

On the return of commissioners to a writ of partition, it appeared, that the return was made by four of the commissioners only; whereupon, it was objected, before Wilds, J. in Edgefield district, that all the five commissioners should have joined in making the return, according to the A. A. 1748. P. L. 218 ; which objection was sustained, and the return was rejected. The motion in this court, was to reverse this determination of the district court.

The defendant was indicted before Wilds, J,, in Edgefield district, for making and passing counterfeit Money. The indictment contained two counts. The first charged the prisoner with the counterfeiting, and the other with the passing, or attempting to pass, two false and counterfeit pieces of coin, in the similitude of Spanish milled dollars, composed of lead, pewter, tin, and other mixed metals.

This was an action on a bond given with a condition, well and truly to administer the estate of Jacob Geiger, deceased, and was tried before Wilds, J. in Orangeburgh district. The defendants set out the condilion, and pleaded performance. Plaintiff replied, and stated a breach in not returning a true inventory.

<p>The distributory part of the estate of an intestate, under the act of 1791, though it vests immediately on the death of the intestate, yet it does not vest in possession, but in interest only: therefore, where the widow of an intestate married a second husband after the death of the first, and died intestate before partition or distribution of the first husband’s estate, her second husband surviving her, was held not to be in-titled to her share of her first husband’s estate.</p>

<p>A sheriff, in whqse hands, is placed a fi. fa., and who is directed to exe¡cute the same by levy and sale of the defendant’s lands, i$ not bound to search the public offices, to find whether the property be incumbered with mortgages; nor is lie bound to sell the same by virtue of any mortgage; but he may sell, subject to all incumbrances, under the execution.</p>

<p>Motion to set aside a nonsuit. The action was trover, brought to trial before Johnson, J'. in Charleston. The object of the suit' was forty-three barrels of coffee, which the plaintiff had deposited1 in the hands of Maurice Clayton, a factor, to sell; and for which, he-took a receipt from Clayton, in the following words: “Received, 20 March, 1803, 45 bairels of coffee, which, when valued, to be gsld ou bis account, and the nett proceeds, alter deducting amount!of hie account, to be subject to his order. Signed, M. Clayton.55 Maurice Clayton, having sold two of the barrels of codee, died in. testate, leavi, g tho forty-three barrels oil hand, unvalued, and un. sold. After his death, his administrators possessed themselves of co®e<3 hi question, and sold the same at vendue. Before the sale, the plaintiff made a demand of the coffee, to which demand the defendants replied, that they did not know they had any coffee' of the plaintiff’^ to deliver These facts appearing in evidence,Johnson, J. directed the plaintiff to be uonsuited, on tho ground, that as M Clayton had a qua!died property, and a power to sell, coupled with an interest, it was such a power as would survive to his persoual representatives ; and, therefore, there was no proof of a tortious conversion.</p> <p>quoted I Sir. 051.- 4 Buiv 3214, 2219.</p> <p>It appeared by Clayton’s receipt, that he had a lien on the coffee, to satisfy an account which he had against the plaintiff. lie had also a lien for storage. Whenever a party has a lien, he may retain in t- over. A factor may retain for his general account. 1 Bur. 494. 4 Bur. 2311. Defendants were not, therefore, bound to give up the coffee on demand. There was no proof that the plaintiff tendered the amount of Clayton’s account; and, therefore, defendants might retain.- The factor was' authorized to sell, to pay himself out of the proceeds.- Mo had, therefore, an interest in the coffee,-and the power to salt, survived' to his administrators. His right could not be divested by his death.-3 Vin. Abr 436. A power, coupled with an interest, is assignable and transmissible. 2 Mod. 317. 1 Mod. 210. The property was out of the plaintiff. He was only intitled to the oveiplus of the money, after payment of Clayton’s account, therefore, trover is not maintainable. 7 Ü. & E. 9, 12. The power, and the right tosed, are convertible terms. Cited Cowp. 819, 818. Bull. N. P. 72. A power not revokable. Esp. Dig, 581, 589. fciee 3 Esp. R. 566.-An innkeeper, or livery stable keeper, may lawfully sell the horse’ of another, where the keeping amounts to the value of the horse.>So here, the keeping might be bunbensome to ihe person in possession. The property was in possession, in the nature of pawn. It was the same as if mortgaged for the payment of a certain sum,’ and could not be legally demanded until that sum was first paid or tendered. Also cited 4 T. R. 489.</p>

This was an action of debt, on an arbitration bond'. Defendant craved' oyer of the bond and condition ; set forth the condition; and pleaded no award made. The condition Was in the usual form, and required an award to be made in writing, and delivered on or before the 4th day of March, then next, ensuing.

In this case, the plaintiff obtained a verdict in Charleston district, before Grimke, J., and the defendants gave notice of a motion to be made in this court for a new trial; but, before the motion could be made, the plaintiff died. J. Ward, for the defendants, submitted^ whether the motion could be heard, as he said the party, plaintiff, ■was out of court; and whether, the action had not abated by his death ?

This was an action for assaulting and beating the plaintiff, in his dwelling house, and tearing down part of his house, throwing about his goods; &c. The defendants pleaded jointly the general issue. At the trial before Brevard, J, in Charleston, the plaintiff recovered a verdict for five hundred dollars, to be paid, so much by one defendant, so much by another. The motion for a new trial was argued upon two grounds: 1st. That the damages were excessive.

<p>j0-n). grippers liable to general average, for expences arising by capture»</p>

Trespass to try titles to land, in Spar, tanburg district, before Bay, J. The defendant offered to prove by his own oath, the loss of a mortgage under which he claimed; but was not permitted to do so. The defendant also claimed under a sheriff’s title ; and it appeared, that the sheriff had levied on and sold the land, after the writ of execution, under which he sold, was returnable ; although the execution had been levied on other pro. perty before it was returnable.

Trespass to try titles, before Bay. J. in Union district. The plaintiff offered to prove by his own oath, the loss of the original grant, under which he claimed and offered in evidence to prove the existence and contents of said grant, by a co. py certified by the Deputy Secretary of State, and a copy of the plat, certified by the Deputy Surveyor General, which being ob« jected to, the same evidence was rejected. • In this court, it was contended, in support of the motion,…

The action was tried before Bay, J. in Charleston district. Debt on a promissory note, with a seal.

Motion to reverse an order of court in Barnwell district; per Waties, J. The defendant had pleaded to an action of assump; sit, for money paid for his testator, that he never was executor of the said J. C. Smith; and to which plea the plaintiff replied, that as executor of the said J. C. Smith, he, the defendant, administered certain goods'of the deceased, and prayed that the same might he inquired of by the country; upon which issue was joined.

Motion to reverse a decree on a sum. process, made by Bay, JY in York district. Defendant pleaded the act of limitations. Plaintiff proved an acknowledgment of the debt, by the administrator, within four years, which the court said was not sufficient to take the case out of the limitation act; and, thereupon, decreed for the defendant.

Motion to reverse an order of the district court of Richland, per Bay, J. Plaintiff had sued out a ji. fa. against the defendant, re. turnable fifteen days before the court then next to be holden, viz. in November, 1803. In a short time after, viz. in June, 1803, the sheriff1, at the request of the plaintiff, returned the said writ “nulla bona” Whereupon the plaintiff immediately sued out a ca. sa. against the defendant, by virtue of which he was arrested and con. fined.

Assumpsit on a promissory note, tried in Lancaster district, in October, 1804, before Grimke, J. The defendant gave notice of a discount, and gave in evidence an original grant to the plaintiff of 3500 acres of land, and a conveyance of the same land from the plaintiff to himself, and proved that the-note in question was given in consideration of the land, so conveyed ; and also gave in evidence an original grant from the State to one Etrees, of 766 acres of land, and proved…

Motion to set aside the verdict, and enter a nonsuit. The case was tried in Lancaster district, before Grimke, J., in. November, 1804. The action was trespass to try titles to land. The declaration stated that the trespass was committed in a tract of three hundred and twenty-three acres of land, originally granted, to one John Hood.

<p>Debt on a bond, tried before Johnson, J., in Charleston. Defendant pleaded the statute against usury. The case was — J. S. borrowed of the plaintiff £600, and gave his bond to secure the repayment of the money, and £100 more, arid gave a mortgage* Sundry payments were afterwards made by J. S., which were receipted for on the boud : then J. S. died, leaving his wife, and the defendant, his executors ; but the defendant did not qualify as executor. After the death of J. S. the plaintiff pressed for the payment of the money due op. the bond, and threatened to push the mortgage. Then the defendant, in order to protect the estate of J. S. from the operation of the mortgage, gave to the plaintiff his own bond for the balance due upon the said bond of J.,S., and took up the bond and mortgage given by J. S., and took an assignment thereof; but the executrix of J. S. soon after gave him notice that she would not pay the money due on the said bond of J. S., as the same had been given for an usurious consideration. It did not appear whether the defendant, when he gave the bond to the plaintiff in lieu of the bond of J. S., was coguusant of the usurious consideration on which it was founded.</p> <p>The action was brought on the substituted bond given by the de"fendant. The judge, at the tria!, charged in favor of the defendant, for whom the verdict was given. The motion in this court was for a new trial.</p> <p>admitted that the bond given by X S. was usurious and void ; and that the defendant, when he gave the bond in question, might have been ignorant of the usurious tineture that affected that which he took up : yet he contended the statute a¿p inst usury could not be pleaded, to avoid a recovery oti the substituted bond, although it -mgiit be objected to, as wanting a sufficient consideration. It ought to have been taken advantage of under the discount law. The contract in regard to the second bond was fair, at least it had no concern with the receipt or securing of illegal interest, or attenpt to elude the act against usury. But at any rate, the assigned mortgage cannot be affected by the act, and if so, there could be no reason to say the second bond was without consideration.</p> <p>The first bond was clearly usurious and void, having been openly taken for more than the legal premium. The defendant was ignorant of the usury, and to befriend the estate of his deceased friend, gave his own bond for the other. The plaintiff did not disclose to him the truth of the case, or he would not have entered into the transaction. It was, in this respect, a fraud practiced by the plaint.ff, an act contrary to the rules of common honesty. But the original bond, for which this was given, being void by the express provision of the legislature, and this having been substituted in the room of, though by another person, if. is also void, being to secure the payment of the same unlawful premium, which polluted the first bond. 3 T. R. 536, 7. 8 T. R. 390. The plaintiff is not an innocent assignee without norice of the usury, but the very person claiming the usurious premium. As to the mortgage, it does not alter the case ; but it must stand or fall fay the bond on which it is bottomed.</p>

Indictment for trafficking with a negro slave, tried before Wilds, J., in Abbeville district. It appeared in evidence, that the over? seer of the negro, with whom the defendant traded, had secretly permitted the negro to carry corn to the defendant, to deal with him, in order to .ascertain whether the defendant would trade with the negro for it, when it did not appear to him, the defendant, that the negro had any permission so to do.

<p>An administrator is not bound by the conditions of his bond, to perform the acts therein specified, until he has been required to do so by thg¡ Ordinary.</p>