Volume 30 — South Carolina Law Reports

<p>Where, in an action on a promissory note, the defence was usury, and the borrower was sworn, and stated that the note sued on was given for another note renewed at twelve and a half per cent interest, a verdict for the principal of the note sued on, with interest and costs, was set aside and a new trial ordered.</p> <p>Wherever the lender is alive, and he suffers the borrower to be sworn, the facts stated by him, it would seem, ought to be credited by the jury.</p>

<p>Before Evans, J. at Abbeville, Spring Term,, 1844.</p> <p>This was a motion in behalf of Wade Speed and James M. Hester, judgment creditors of Hugh H. Stewart, for leave to file a suggestion to try whether a judgment confessed by Hugh H. Stewart to George W. Robinson was fraudulent. The presiding judge refused the motion, on the following grounds.</p> <p>“ On reading the affidavits submitted on both sides, I do not perceive any sufficient reason to believe the confession of judgment by Stewart to Robinson is fraudulent. That Robinson has had about five hundred dollars received on the estate of his wife, is pretty clear, and from his habits and character, it is not likely he has spent it. This sum, there is reason to believe, was loaned to Stewart.”</p> <p>The creditors appealed, and moved to reverse the order of the presiding Judge, and for leave to file the suggestion, on the grounds,</p> <p>1. That the affidavits submitted, shewed sufficient reason to believe the confession fraudulent.</p> <p>2. That his Honor decided on the merits of the case, instead of the merits of the application.</p>

<p>Costs are in the nature of penalties, and statutes granting them, have always been strictly construed.</p> <p>The Act of 1839, allowing costs in cases of appeal from the Ordinary, is prospective, and does not apply to an appeal taken before the Act was passed.</p>

<p>Defendant’s testator gave to plaintiff’s intestate a single* bill, the consideration of which was a bond to make titles to a lot of land. The land did not belong to the intestate, and before the bill was due it became out of his power to make titles thereto. All this was known to the testator, and yet, after the bill was due he made two payments thereon. Held, in an action on the bill, in which the bond was pleaded as a discount, that the plaintiffs were not entitled to recover.</p> <p>Where the consideration ofa specialty has failed, and by the agreement of the parties, a new consideration is substituted, such agreement should be clearly proved; and payments on the specialty, after the consideration has failed, will not, unexplained, be evidence of such agreement.</p>

<p>Before Evans, J. at York, Fall Term, 1844.'</p> <p>This was a sum. pro. brought on an agreement in writing, whereby the defendant, who was the administrator of Henry H. Story, agreed to pay to the plaintiff, out of the funds of the intestate, an amount due the plaintiff by James H. Story on four notes under seal. It appeared that James H. Story, who was absent from the State, was entitled to a distributive share in the intestate’s estate, and that the plaintiff told the defendant that he would attach his share. Whereupon defendant, as administrator, gave the plaintiff the said agreement. The notes were produced at the trial.</p> <p>The presiding Judge was of opinion that as the interest which the said James H. 'Story, the absent debtor, had in the estate was not attachable, the promise was without consideration, and decreed for the defendant.</p> <p>The plaintiff appealed, on the ground that there was a sufficient consideration to support the promise.</p>

<p>The endorsers of an accommodation note for the benefit of the drawer are not liable as co-securities.</p> <p>An agreement, before endorsing, to be liable to each other as co-securities, would be binding.</p> <p>When, after protest, the second endorser agreed to pay half the note, and, jointly with the first, wrote a letter to the holder stating such agreement, and praying indulgence, which was granted,. Held, that the agreement was without consideration.</p> <p>A promise by the second to pay to the first endorser half the amount of the note, if the first endorser would pay the debt and the costs of a suit on the note against the second endorser, would be on sufficient consideration. Ut semble.</p>

<p>As a general rule, where a conveyance of land calls for a certain line as the loundary, the land must be located so as to make that line the boundary; but this rule may be controlled by clear evidence that the parties had actually run another line as the boundary, at or before the execution of the conveyance.</p>

<p>A sheriff has no authority to levy or sell under an execution satisfied in fact, though unsatisfied ón its face; if, however, he has no notice of the satisfaction, he will not be liable in trespass, to the defendant, for acting under it.</p> <p>A purchaser under such an execution, will acquire no title to the property, if, before the purchase, he receives notice of the satisfaction.</p> <p>Where a sheriff has several executions against a defendant, and makes one levy (seizure) of his property, and enters the same on each execution, he is entitled to charge for but one levy, and not for a levy on each execution.</p>

<p>Where an issue is made up by leave of court, to try whether a confession of judgment is fraudulent, the party prevailing is entitled to his costs.</p> <p>In issues which the parties are entitled to' make up as a matter of right, or when the court neglects to make an order regulating the costs, on a feigned issue, the costs follow the result of the case.</p>

Before Evans, J. at Abbeville, Spring Term, 1844. William McDonald, Sen. by his will, gave the plantation where he lived, with several negroes, to his daughter, Nancy Calhoun, and her bodily issue. Nancy Calhoun was the wife of W. Calhoun, who had left the country about 1836, but was still living somewhere in the west.

<p>Before Evans, J. at Pickens, Spring Term, 1844.</p> <p>This was an indictment for hog-stealing. The evidence, in substance was, that on Sunday, the 10th of March, a dog was heard in the mountain, about half a mile from the house of one Rogers. Rogers, supposing the dog was running something, started to go to the place. When he had gone about half way, a gun.was fired. When he arrived near the place, he saw the defendants behind a large chesnut. They were endeavoring to conceal themselves, but whén he approached within forty yards, they ran off, notwithstanding he called to them three times. A dog was with them. From the place where he saw them, he traced them by their tracks nearly one hundred yards, to where he found the hog in a deep hollow, in a hole around a chesnut tree. The hog was shot through the body with a rifle ball. It was between 10 and 12 o’clock. Both had' rifles.</p> <p>The presiding Judge charged the jury, in substance, that the chasing and shooting a hog in the range, with a felonious intent, was larceny, although' it might happen that the actors were prevented, by the intervention of other persons, from carrying off the dead carcass. They were found guilty. ' ..</p> <p>The defendants appealed, on the following grounds.</p> <p>1. Because his Honor erred in charging the jury, that the shooting of the hog, with a felonious intent, was a sufficient asportation, in law, to complete the offence of larceny, without taking possession of, or carrying away, the same.</p> <p>2. Because the testimony did not warrant the finding of the jury, there being no evidence that the hog was moved or interfered with after it was shot.</p>

<p>A receipt is conclusive evidence of payment, unless it be explained, or mistake or fraud be proved.</p>

<p>If the payee of a joint and several sealed note signs and seals it as one of the obligors, the note is extinguished, and neither he nor his administrator can maintain an action thereon.</p>

<p>Before Evans, J. at Union, Fall Term, 1844.</p> <p>The plaintiff, as assignee, was the owner of two judgments against Daniel Thomas, and one against the same defendant and S. A. Ashbey. For these judgments, in 1837, he took the joint note of Thomas and Ashbey, and gave receipts, of which the following are copies.</p> <p>“Lewis A. Shelton vs. Thomas and Ashbey. Received of Thomas and Ashbey, six hundred and thirteen dollars and 27 cents, in full of debt and interest, in the above stated case. March 24, 1837. Joseph H. Dogan, Assignee.”</p> <p>“ Wm. Rice vs. Daniel Thomas. John McLure vs. Daniel Thomas. Received of Daniel Thomas, eleven hundred and twenty-eight dollars and 20 cents, in full of debt and interest in the above stated cases. 24th March, 1837.</p> <p>Joseph H. Dogan, Assignee.”</p> <p>Nothing was said about entering satisfaction on the judgments, and they still remained open. Thomas and Ashbey were then both in good credit, and believed to be solvent. Since then both had become insolvent. The sheriff had raised money from the sale of Thomas’s property, which the plaintiff claimed under his judgments, and this was a rule of court upon him to shew cause why he should not enter satisfaction on those judgments.</p> <p>The presiding judge thought that the taking the note was no satisfaction, and discharged the rule.</p> <p>The defendant appealed.</p>

<p>If a plaintiff makes objections to a prisoner’s discharge under the Insolvent Debtor’s Act, and they are decided against him, he cannot af-terwards bring the same matters in question in a suit against the sureties on the bond for the prison rules.</p> <p>Matters which were not in issue at thé time of the discharge, and which have been brought to light by subsequent disclosures, may, perhaps, be alleged as breaches of the bond.</p> <p>If a debtor, applying for the benefit of the Insolvent Debtor’s Act, after giving bond for the prison rules, omits to swear to his schedule when it is filed, he may, on good cause shewn, be permitted to swear to it, at the time of his discharge, nunc pro tunc.</p>

<p>Before O’Neall, J. at Chambers, Columbia, May, 1844.</p> <p>This was an information, in the nature of a quo war-ranto, against the respondent, to show cause why he should not be ousted of his command, as Captain of a beat company in the 40th Regiment.</p> <p>It appeared that in January or February, 1841, the respondent, without any order for election, and upon an irregular resignation of the Captain in command, was elected Captain of the company. He was not commissioned by the Colonel then in command, who was subsequently promoted to the rank of Brigadier General, and after such promotion, instructed his successor, Col. Hudgens, not to commission him. But Col. Hudgens did commission him in November, 1842, previous to which time he had been nearly two years in command.</p> <p>The judgment of his Honor was as follows.'</p> <p>The 23d§ of the Act of 1841, p. 182, cannot apply to this case, for the respondent at its passage was in command of his company. The Act of 1816, 8 Stat. 534, is that under which his election might, at one time, have been tested. According to it, the Lieut. Colonel or Major commanding the battalion is to order the election, which might be held after twenty days notice. There is no doubt that the election of the respondent was held without such order or notice: and if a proper application for a court of Inquiry had been made, the election would have been set aside; or if the Colonel, Lieut. Colonel, or Major, had thought proper, either had the power to treat the election as a nullity, and the commission as vacant, and to order a legal election to be had and held. But if the people subject to Captain Wadkins’s command were satisfied with his election, and that té manifested by their submission to his command for near two years before he was commissioned, and then the Colonel thought proper to commission him, (as he did,) I do not perceive any ground upon which I can regard him as illegally in an office. He is both defacto and de jure Captain. For the whole object of an election under orders and with, notice is to obtain the choice of the company, in the selection of their officer. If that be equally as satisfactorily obtained without order and without notice, and those interested waive the legal prerequisites, I think there is no valid legal objection to the commission.</p> <p>But I regard the commission as concluding this inquiry. It legally supposes that every act necessary to its validity was done. The Colonel, Lieut. Colonel, or Major, unless there was a protest, was the only judge whether a commission ought to be issued or not. When this was done, (the commission, issued,) the person receiving it was rightfully in command of the Company, and can only be deprived of it by being cashiered for some military offence by a Court Martial. If the Colonel acted wrong in commissioning him (which however I do not, by any means, mean to say) he is responsible on charges, in the usual and proper military- course of arrest and trial by a Court Martial.</p> <p>The Rule is discharged.</p> <p>The relator appealed, and now moved the court to reverse the decision of His Honor, on the following grounds :</p> <p>1. Because it is respectfully submitted that His Honor erred in holding that, although Henry Wadkins was elected without any order or notice, that yet he was legally in office, and his commission concluded all inquiry into his right of office.</p> <p>2. Because the defendant was not Captain, either de facto or de jure.</p>

<p>Plaintiff purchased from defendant a negro boy, who was lame from a wound in the foot, for a full price, and took a bill of sale without warranty of soundness. The plaintiff was informed by the defendant .of the wound, and before purchasing, got a physician to 'examine it, who thought that it was slight, and would soon heal. The boy died a few days after with lock-jaw, produced by the wound in the foot. The plaintiff not having been misled by any false suggestion or concealment, it was held that there was no implied warranty of soundness.</p> <p>As a general rule, no implication of warranty arises where the purchaser knows of the disease from which the death or injury arises, and fails to take an express warranty.</p>

<p>Before Evans, J. at Abbeville, Spring Term, 1844.</p> <p>This was an action jon a promissory jiote. The defence was failure of consideration. Taylor sold to Fulmore a tract of land, described in the deed as containing two hundred and four acres, with a general warranty. To all this land he had a good title, except a small piece, which was represented to be vacant. For this piece, which was found on measurement to contain thirty-three acres, the note s'ued on was given ; other notes were given for the balance. It turned out that this piece was not vacant, but included in an old grant, owned by Price. No part of this thirty-three acres was in the possession of either Price or Fulmore; but Price lived on his tract, and claimed this as included within his lines, of which there whs no doubt.</p> <p>His Honor decided that an outstanding asserted title to land, might be set up as a defence, to a note given for the purchase money. Price was the owner of the land, lived on a part of it, was constructively' in possession, and set up a claim to it.</p> <p>The jury found for the defendant, and the plaintiff appealed, on the ground,</p> <p>Because the presiding judge held, and instructed the jury, that a discount for unenclosed land, claimed by a third person against the vendee, was admissible in evidence against the vendor, when the possession of the vendee was undisturbed.</p>

<p>jBefore Butler, J. at Lexington, Fall^ Term, 1844.</p> <p>This was an action of trespass, to try titles to a tract of one hundred acres of land.</p> <p>The plaintiff proved, 1st. A grant to Thomas Vaughan for one hundred acres, dated in May, 1772. 2d. A grant to Thomas Vaughan for fifty acres, dated November, 1771. These two tracts did not adjoin, and the suit was only in relation to the one hundred acre tract. The next link in the. plaintiff’s chain of title, was a conveyance by lease and release from Thomas Vaughan to John Hines, dated in September, 1772, for one hundred and fifty acres, describing the two tracts above mentioned, and including them. To authorize the introduction of this deed as an ancient paper, the following evidence was offered.</p> <p>The deed purported to have been proved before Fair-child, a justice of the peace, some time in the year 1772, shortly after its execution, by one of the subscribing witnesses*, Fairchild’s hand-writing was proved ; and it appeared that he had been dead for many years — probably more than thirty.</p> <p>Samuel Morris, a witness, about seventy-six years old,.. said he was acquainted with the land. He said that Polly Hines, the daughter and' only surviving child of John Hines, lived with her step-father, one Mason Izzard, and rented a field bn the fifty acre .tract, to George Spillers, the step-father of witneis. This was about eight years after Lord Rawdon had camped at the Cedar Springs, on his way to Ninety Six, which was in June, 1781. Settlements had been made on this piece, some time before Spillers rented it, as witness judged from appearances.</p> <p>The houses rented by Spillers from Polly Hines, were subsequently moved by one Jonathan Gilbert, to suit his ■own purposes. Gilbert lived at Cross Road, near Juniper Springs, but had no settlement on this tract. This witness said that there was an old field in the one hundred acre •grant, called the Hines Old Field. It was called an old ¿eld many years ago ; did not know that it was enclosed.</p> <p>Daniel Lomeneck said that he knows the old field on the one hundred acre tract; always called the Hines Old Field. The witness said he recollected the circumstance •of a hearty, fine-looking young woman riding up to Gilbert’s, and asking him if he knew of any one trespassing on her land, and he replied he believed not. She was said to be the last of her family, and witness understood she moved to Long Cane. This was sometime in 1788. The witness, who was seventy-two years old,/always heard the one hundred acre tract called the Hines’s land; it lay about one mile from where Gilbert lived.</p> <p>Under this evidence, the deed was admitted by the court 4o be read to the jury. The rest of plaintiff’s title was then clearly made out, and he had a verdict.</p> <p>The defendant appealed, on the ground,</p> <p>That the court ought not to have admitted in evidence' the conveyance from Thomas Vaughan to John Hines, as there was no proof of possession under it.</p> <p>cited Fleta, 6 Book, chap. 34 j Co. Lit. 6 b; 1 Rolle, 132; Skin. 239; 2 Mod. 323; 1 Wm. Bl. 532; 3 J. R. 292-8; 1 Bay, 364; 2 N. & McC.. 55; 6 Binn. 439.</p> <p>1 Shill. Ev. 477; 5 Cowen, 123; 3' J. R. ,283; 7 Wend. 371; Í0 Sergt & Rawl. 199 ; 1 Hill,. 389; 2 N. & McC. 406 ; 4 Wheat. 213-221. .</p>

<p>Before Evans, J. at Union, Fall Term, 1844.</p> <p>This was an action on the case for obstructing a private way. One Joshua Wilbourn formerly owned the land over which the way passed, and had obstructed the way. This matter was left to arbitration, and a bond given to abide the award, which had been made in favor of the plaintiff. This award the plaintiff offered in evidence, but his Hon- or rejected it as inadmissible.</p> <p>The evidence in relation to the road was, that it was one of those roads leading from one public road to another, through the lands of many persons, the origin of which was beyond the memory of man. One terminus of it was at the Charleston road, and the other at a public road 'which passed by Murphy’s Mill, where the plaintiff had his grain ground. To this mill there was another road, leading by Sparks’s, which divided from this road, at or near the line of the defendant’s land, which was as much used by the neighborhood as that which the .defendant had obstructed.</p> <p>The evidence of right was, that the road had been used for more than thirty years by the plaintiff and those under whom he claimed, as a near way for wagons, carts and horses. But the same witnesses testified, that the road was common to all the country ; all travelled it. It was much used by the neighborhood. There was no hindrance to any one. All could pass.</p> <p>The plaintiff proved an obstruction, and the defendant moved for a nonsuit, on the ground, that if any right of way existed, it was common to every one. The termini of the road were the great highways of the country. Time out of mind it had been used by all who chose to do so. The plaintiff and those under whom he claimed had used it in going either end of it into the public roads, in common with every one else.</p> <p>His Honor considered the road as one of those lesser highways, which are spoken of in fhe old Acts off the Legislature, under the name of broad paths: over which all have a right to travel, and which do not appertain to any individual, and granted the motion for a non-suit.</p> <p>The plaintiff appealed, and now moved the court to set aside the non-suit, on the following grounds, viz:</p> <p>1. Because his Honor, the presiding Judge, erred in deciding that the plaintiff could not acquire a right of way over the road in dispute, because it was a public or neighborhood road ; and the only remedy in case of its obstruction was by an indictment.</p> <p>2. Because the court erred in rejecting as evidence an award made between the plaintiff and .Joshua Winbourn, who was then the owner of the land, but subsequently conveyed to the defendant, who purchased with a knowledge of this fact.</p>

<p>Before O’Neall, J. at Darlington, Fall Term, 1844.</p> <p>This was an application for the benefit of the insolvent debtor’s Act. The discharge was opposed by the, plaintiff, who, without filing a suggestion of fraud, examined the defendant under the Act of ’36. Upon the examination his Honor become satisfied that the defendant had made a fraudulent conveyance of his property, and that he had rendered a false schedule.</p> <p>The application was refused, and the defendant appealed, on the following grounds.</p> <p>1. Because the plaintiff in execution who opposed the discharge of the prisoner on the ground of fraud, filed no suggestion of fraud, and no specifications whatever of the grounds on which he resisted the discharge of the prisoner, and yet the court, without a trial by jury, made a final order refusing his discharge.</p> <p>2. Because, under the Acts of 1759 and 1788 and the Acts amendatory thereof, the final decision on the question of fraud must be by the verdict of a jury ; and the Court erred in deciding that the prisoner could be deprived of the benefits of those Acts without a suggestion and specification of the fraud, and the verdict of a jury thereon.</p>

<p>Demand and refusal are not evidence of the conversion of slaves where defendant has no interest in or control over them, and puts his refusal on the ground that he is not in possession.</p> <p>If the jury, in an action of trover, find the full value of slaves, when the plaintiff is entitled only to a life estate, a new trial will be ordered.</p>

<p>Plaintiff purchased from defendant for a full price a negro woman, who was shortly after taken sick and died of a disease, the remote cause of which was dirt eating. Before the purchase defendant told the plaintiff that the woman was a dirt eater, and expressly refused to warrant her soundness, giving him a receipt for the purchase money, but no hill of sale. Held, that there was no implied warranty of soundness.</p> <p>In an action on the implied warranty of the soundness of a negro, the plaintiff is not entitled recover the amount which he has paid a physician for attending her, where there has been no tender of the negro hack.</p>

<p>Where a plaintiff issued a jifa and a ca sa on his judgment, and had the defendant arrested under the ca sa, and he gave bond for the prison rules and escaped, and the plaintiff took an assignment of the bond, and sued the surety and recovered judgment; it was held that the lien of his fi fa was discharged, and that money, subsequently raised by the sheriff, by levy and sale of defendant’s property, must be applied to a junior execution.</p> <p>By the common law, arrest under a ca sa is satisfaction, and if there is an escape, the plaintiff has no remedy but to sue the sheriff</p> <p>By the Stat. 8 & 9 W. 3, c. 27, plaintiff, in case of an escape, may either re-take the defendant on a new ca sa, or sue out a fi fa.</p> <p>By the prison bounds Act, he may either re-take the defendant, or sue the surety to his bond, and if he sues the surety he cannot after-wards resort either to a jifa or a ca sa.</p>

<p>Influence, in procuring a will to be made, to be undue, must not be an influence obtained by “modest persuasion,” by arguments addressed to the understanding, or by appeals to the affections merely, but must be an influence obtained either by flattery, by excessive importunity, by threats, or in some other way by which a dominion is acquired over the will of the testator; -and must be so great as, in some degree, to destroy his free agency; to constrain him to do what is against his will, but what he is unable to refuse.</p> <p>What is undue influence, is, to some extent, a question of fact for the jury, but if they find undue influence when there is no evidence to sustain their verdict, it will be set aside.</p> <p>What is not a case of undue influence.</p> <p>Where a testator, who died in 1837, by his will, executed in 1828, gave his whole estate to his executor, and by a letter to the executor, written a lew days after the will was made, declared the trusts of the bequest to be for the benefit of two of his slaves, one of whom, it was proved, was his paramour, and the other, his son — It was held that the trusts were not against public policy, and that the will was valid, (a)</p> <p>If a will be executed in duplicate, and one copy be destroyed by the testator, animo remcandi, it is a revocation of the other.</p> <p>But it will not be presumed from circumstances, that a will was executed in duplicate, when the attesting witnesses say that but one copy was executed.</p> <p>A will executed when the testator is under undue influence, is no revocation of a previous will.</p> <p>If a testator is under undue influence when he executes his will, and afterwards, when he is free from the influence, executes a codicil thereto, it will be a republication and confirmation of the will.</p> <p>A codicil, set aside, with the will to which it was attached, on the ground of undue influence, is no revocation of a will executed before the one to which it was attached.</p> <p>The “other writing” mentioned in the 3d section of the Act of 1789, (5 Stat. 107) means an instrument on the same footing and liable to the same objections as wills and codicils.</p>

<p>Before O’Neall, J. at Chesterfield, Fall Term, 1844.</p> <p>This was an indictment for retailing spiritous liquors without license. The defendants had been convicted on another indictment, which was found at the same time, and by the same grand jury which found the.one in this case. Both offences were committed before the term at which the indictments were found. The indictment in the case id which the defendants were convicted, charged a retailing to A. B and to divers other persons. The indictment in this case charged a retailing to C D and-divers other persons.</p> <p>The conviction was pleaded in bar, and the court, on the authority of McBride's case, 4 McC. 332, sustained the plea, but intimated that that case was erroneous, and ought to be overruled. The State appealed.</p>

<p>In serving attachments, either foreign or domestic, the sheriff has no authority to take goods out of the possession of one who claims property in them.</p> <p>Where a sheriff, acting under the process of the court, mistakes his duty, and seizes property when'the process does not authorize a seizure, the court has authority to undo the injury, by ordering the sheriff to restore the possession of the property to the party illegally divested.</p>

<p>Before Evans, J. at Union, Fall Term, 1844.</p> <p>This was an action on a promissory note, to which the defence was failure of consideration.</p> <p>It appeared from the evidence, that in the year 1837, the defendant, and one Gadberry, purchased from James Gillespie a tract of land containing 380 acres, in the State of Mississippi, at the price of $8000, payable in three instal-ments of $2,666 66 2-3. Three notes were given, each for the said sum, and upon one vf these notes this action was brought. The land was pine land, and of little value, except for a mill seat supposed to be on it.</p> <p>Four .witnesses were examined, by commission, for the defendant. The first testified that Gillespie represented the land as having a favorable site for a mill, which was defendant’s object in making the purchase. That one thousand dollars was a good price for the land at the time of the sale. Defendant and Gadberry told witness they had examined the mill seat. They built a mill, which was leased out; but the dam was washed away, and they never received any rent.</p> <p>The second testified that the mill seat was the main object of defendant in buying. Defendant and Gadberry were induced to make the purchase by the representations of Gillespie about the site for a mill. Gillespie gave a great account. of the mill seat.</p> <p>Thomas Hinson testified that his land lies on the creek, and begins about two hundred yards above the place represented as a mill seat. There is, in fact, no mill seat on the land. Before the sale, Gillespie spoke of building a mill himself. The witness objected, because it would overflow his lands and spring. After the sale, he asked Gillespie why he had not informed defendant and Gadberry that the water would flow back on his land ; he replied, he was not bound to tell every thing ; advised the witness to hold on upon his land, and when they got able, they would have to buy him out — to which the witness replied, he did not wish to sell. No dam could be raised, without flowing back the water upon the lands of the witness and Bird, and covering his spring with water. When the purchasers built their dam, the water did overflow his land and spring, and Bird’s land. He threatened to sue them, and they agreed to pay him $400. Gillespie had offered to sell him the tract of land for 4 or $500 — would not give a chew of tobacco for it. Defendant and Gadberry built a mill, and the dam was washed away in a week. They rebuilt it, and it broke again. They leased it for a year, and agreed to rebuild, and it was washed away again.</p> <p>William Bird testified that he owned land on the creek, above the mill seat. Never thought it a good one. Objected to the making of the dam; it overflowed his land, and if the dam had stood, he would have sued them. The defendant and Gadberry were not competent judgbs of a mill seat.</p> <p>For the plaintiff four witnesses, examined by commission, testified that they knew the land. The place was suitable for a mill site. The banks were not good, but the fall was good. That defendant and Gadberry built a mill, but it was carried off soon after, and that a good mill might have been erected, if more precaution, and sufficient work and labor, had been used in building it.</p> <p>His Honor thought, and so said to the jury, that independent of the mill seat, the land was of but little value, and the main object of the purchase was the mill seat. As it regarded the suitableness of the place for a mill, the nature of the banks, and the sufficiency of the fall of water, these were matters of skill and judgment, in which, so far as appeared, the parties were equal, and had the same means of judging correctly. The defendant had not relied on Gillespie’s representations, but had examined for himself, and could not be discharged from his contract, because he had been mistaken in these particulars.</p> <p>He also instructed the jury, that the concealment of an important fact by the seller, the existence of which went to defeat the object of the purchase, and render it of little or no value, was a fraud, which entitled the purchaser to rescission of the contract. That a mill seat, without a pond to contain water to propel the mill, was of no value, and if Gillespie knew that no mill-dam could be made without flowing back the water upon the land of others, and concealed this fact, as would appear from the evidence of Hin-son, from the defendant, it was such a fraud as discharged the purchaser from performance.</p> <p>It was objected, that the purchaser could be entitled to nothing more than an abatement in the price, and if a title had been made, or even a bond for titles had been given, and the purchaser was in possession, he should have concurred in this view, but the witness, Ruth, spoke of nothing, more than an agreement, and the evidence all led to the conclusion that, after the mill dam was washed away, the possession had been abandoned. The defendant had returned to this State. Under these circumstances he thought the jury might, if they were satisfied of the fraudulent concealment, discharge the defendant from the payment of the money, and in this view of the case, he said that he saw no difficulty in their discharging the defendant from the contract. The verdict was for the defendant.</p> <p>The plaintiff appealed, on the following grounds.</p> <p>1. Because the Court charged "the jury, that if they believed James Gillespie, the payee of the note, knew at the time of the sale that if, from erecting a dam of sufficient height to propel the mill, the water would overflow the lands of others, and did not inform the defendant of the fact, he was guilty gf such a fraud as would vitiate the contract, and the jury ought to find for the defendant, when, from the proof,^the defendant and his partner had the same means, of knowing as he did, and there was no proof that Gillespie did know, and the purchasers, with proper prudence and precaution, had the means of fully informing themselves on that point.</p> <p>2. Because the Court of Law cannot rescind the contract in this case, as the purchasers were in possession of the land.</p> <p>3. Because this is no such misrepresentation or concealment as will authorize a rescission of the contract.</p>

<p>If one sells goods to an ostensible partner, and, without knowing that there are dormant partners, takes the individual note of the ostensible partner, on which he sues, recovers judgment and issues execution, which is returned nulla Iona, he will not be thereby barred from his action for goods sold against all the partners.</p> <p>A note, unless given and accepted as satisfaction, will not extin-, guish an open account.</p>

<p>Before Frost, J. at Marion, Spring Term, 1844.</p> <p>This was an action of trover for three slaves, which the plaintiff claimed, as the administrator of John Ray. His letters of administration were granted in this State.</p> <p>It appeared, in the course of plaintiff’s evidence, that the intestate lived in North Carolina until 1839, when he removed into this State, and that he resided here when he died. The slaves had never been in this State, but were before, and at the time of the intestate’s death, and since, in North Carolina. The alleged conversion was after the intestate’s death. The defendant was a citizen of North Carolina, and had been served with process while on a visit to this State.</p> <p>The presiding judge granted a motion for a nonsuit, on the ground that the plaintiff had no title to the slaves at the time of the conversion. The plaintiff appealed.</p> <p>cited 1 Ch. & C. 173; Salk. 670; 3 Black. 387; Story Confl. Laws, 312, note 314; 1 H. Bl. 699 ; Toll. Law of Ex’prs. 131, 241,160; 1 Pr. Wms. 43 ; 1 Atk. 460; 2 Yes. 267; P. L. 32; 1 Ch. <fc.C. 460; 2 Mass. Rep. 384; 2 Bail. 436 6 John. Ch. Rep. 357 ; 7 lb. 49 ; Story Conñ. Laws, 454.</p> <p>cited 2 Yes. 35 ; 3 Pick. 128; Story Confi. Laws, 423, 414; 1 John. Ch. R. 153; 4 Gill & John. 332; .1 Wms. on Ex’ors. 257-8.</p> <p>cited Story Confl. Laws, 431; 11 Mass. Rep. 256.</p>

<p>The testimony of a witness, examined on a coroner’s inquest, in the absence of the prisoner, though taken down in writing by the coroner, signed by the witness, and returned to the clerk, is not competent evidence against the prisoner, on a trial for murder, after the death of the witness.</p>

<p>Before Frost, J. at Darlington, Spring Term,, 1844.</p> <p>This was an action of trespass to try title. The report of his Honor is as follows: “ Both plaintiffs and defendant claimed under a grant to John Norwood, dated 2d April, 1792. John Norwood devised the lands in question to his sons, A. M. Norwood and Jesse Norwood, equally, in common. The plaintiffs are the said A. M. Norwood, and the minor children of Jesse Norwood, deceased. The defendant claims under a conveyance from said A. M. Norwood in January, 1832. The issue respects the location of defendant’s land. The figure subjoined represents the land and points of dispute.</p> <p> </p> <p>purchase of a parcel of land, the remainder of the Norwood grant, which had not been sold by the grantee to Johnson. The evidence is very clear that they mistook the tract designated as the Harrall tract for the residue of the Norwood grant, supposing that such residue was known as the Har-rall land. A. M. Norwood did not know at the time of the sale that he owned any other land than the residue of the Norwood grant, nor was it known to him or Joseph Nor-wood till some years after, when informed that a parcel of land unclaimed, belonged to him. They went round the line of the Harrall land, with the Norwood grant as a guide, and supposed they had found the lines of the grant in the boundaries of the Harrall land. At the lightwood stake corner, marked E, they discontinued their search for the corners and line, and Norwood, comparing the Norwood grant with the lines traversed, affirmed the Harrall land to be the residue of the Norwood grant. The two. parcels of land lie in the opposite angles of two intersecting lines. Griggs took possession of the Harrall tract, and has occupied it since the purchase. Soon after the purchase he became dissatisfied that his title did not cover his land, and he desired Joseph Norwood to make him a title which would cover it. He spoke, however, of the Harrall land as the land he had bought of Norwood. .</p> <p>After the parol agreement for the purchase of the land by William Griggs, Joseph Norwood was employed by A. M. Norwood to draw the conveyance. He described the land in the deed by the lines of the grant, beginning at a pine tree in the southern line at M, to the water oak corner at B, to the pine corner at C, thence to a pine at L, and then “ by an agreed on line, to the beginning pine corner, sepa-' rating the said one hundred acres from the balance of the survey now owned by William Johnson.” The defendant produced in evidence the original Norwood grant, as part ot his title ; and a grant to Richard Jordan, dated November, 1834, for the Harrall land. The plaintiff showed no title to the Harrall land, except some proof of the possession by John Norwood the testator, and by A. M. Nor-wood since his death. The agreed on line, which parts off the land of Johnson from the residue of the grant, is represented by the line KB at right angles, to dotted line L M, described in Norwood’s conveyance to Griggs as the agreed on line.</p> <p>The jury were instructed that if Griggs, from whom defendant claimed, supposed he had bought the Harrall tract, but took a conveyance from Norwood of the residue of the Norwood grant, that the deed must control the mistake of fact, and the defendant’s title to the land in dispute be determined by the description in the deed. That the dispute between the parties related to the location of the land described in the conveyance, and by the proof of the location the verdict should be decided. That the location of the defendant’s title in the Norwood grant, so as to cover the locus of the alleged trespass, was supported by the deed describing it as the residue of the Norwood grant not sold to Johnson, the coincidence of two lines and a corner, and the agreed on line within that' grant, though not corresponding in its direction with the description of the deed ; and the possession of the original Norwood grant by the defendant as a part of his title. Against this evidence, the plaintiff’s location of defendant’s title was supported by only part of a line, which separates the Norwood grant from the Harrali land, and by a boundary, (Dubose’s land.) Both of these facts lost much of their influence when it was recollected that the deed of conveyance was drawn by Joseph Norwood, and the description in the deed proved to have referred to the south west line of the Norwood grant.</p> <p>In the course of the trial the plaintiffs offered to prove by Joseph Norwood that A. M. Norwood had directed him to convey the Harrali land, which evidence was rejected as contradicting the deed.</p> <p>The jury found for the defendant, and the plaintiffs gave notice that they will move the Court of Appeals for a new trial, on the following grounds.</p> <p>1. That the plaintiffs proved title to the land in dispute, and the deed of A. Norwood to William Griggs, under which defendant claimed, did not embrace the said land, and it was certainly the plaintiffs’s.</p> <p>2. That the said deed referred to the tract called the Harrali tract, and not to the land for which the action was brought.</p> <p>3. That the deed was shown by the surveyors to be ambiguous, and that it did not embrace the locus in quo, and it was shown by parol that Griggs, under whom defendant claimed, bought the Harrali tract, and went into the possession of that tract under his deed, which, under the doubtful location, was conclusive as to which tract the deed of A. Norwood conveyed.</p> <p>4. That when Griggs bought the lands, the lines of the Harrali tract were shown him, and he bought that tract and no other, and did not claim for a number of years the other tract to have been conveyed to him by this deed, although he was present when Jordan re-surveyed it for himself, and occupied it; the said Griggs remaining in possession of the Harrall land to the present day.</p> <p>5. That the deed being ambiguous as to the locus, it was susceptible of explanation by parol, and his Honor overruled the evidence of the person who drew the deed, as to what tract was intended to be conveyed.</p> <p>6. That a mistake having been shown as to the description of the land, plaintiff offered evidence of such mistake, which was overruled by the Judge.</p> <p>7. That the description did suit the Harrall land in some respects, but in no respect did it suit the land sued for, and therefore might have been referred by parol to the former.</p>

<p>Where a sheriff had executions of different dates against a defendant, the two oldest of which belonged to A. and were suspended by an injunction obtained by the defendant, and during the suspension the sherifflevied under the junior executions, but before the sale received notice from the defendant, that he consented that the injunction should be dissolved, which was accordingly done, after the sale, and at the next term of the Court of Equity — Held, that A’s executions were entitled to be first paid, out of the proceeds of the sale.</p> <p>Upon the dissolution of an injunction the parties are restored to the same position which they occupied before it was granted.</p> <p>The party, for whose protection an injunction is granted, may at any time waive it.</p>

<p>Before O’Neall, J. at Marion, Fall Term, 1844.</p> <p>These were actions of trespass vi at armis, for an unlawful arrest and imprisonment of the plaintiffs, under a warrant and commitment, issued by the defendants as magistrates.</p> <p>The warrant was issued by Grice, as a magistrate of Marion, on the information of James Gaddy, charging that Hezekiah, Jesse and John Miller, had committed an outrageous assault and battery on his person. Under this warrant they were all arrested and carried before McMillan, another magistrate, who committed them all to goal. They applied for, obtained, and were brought up under a habeas corpus, before Judge Earle; who directed, if the offence was committed in North-Carolina, that the prisoners should be discharged, and remanded the case to the magistrate Grice, who took testimony, and finding the fact to be that the offence was committed in North-Carolina, discharged the prisoners. Upon the face of the information, it did not appear where the offence was committed. It ivas proved by the plaintiffs, that Grice, after these suits were instituted against him, said that Gaddy told him the assault and battery was committed in North-Carolina. It appeared, that when the plaintiffs were carried before McMillan they offered bail, which he refused to take, and committed them to prison.</p> <p>On the plaintiffs’s ca°es being closed, a motion was made for non-suit, on the ground that case, not trespass, was the remedy.</p> <p>His Honor granted the motion.</p> <p>The plaintiffs appealed, on the ground, that the whole proceedings being coram non judice, trespass was the proper remedy.</p> <p> Hezehiah Miller vs. The same defendants. </p> <p>Before Frost, J. at Marion, Spring Term, 1844.</p> <p>This action, which was for the same offence, differed from the other two only in this ; that his Honor overruled the motion for a non-suit, and the plaintiff had a verdict, from which the defendants appealed, on the ground that the warrant under which the plaintiff was arrested being regular upon the face of it, case and not trespass was the proper remedy.</p>

<p>A covenant to stand seized to uses, is an effectual mode of conveying lands in this State; and by it a freehold may be conveyed, to commence in futuro.</p> <p>A father, by deed duly recorded, gave, granted and released to his son, S. W. and his heirs, a tract of land with the appurtenances, at his (the father’s) death, to have and to hold the same; held to be a good covenant to stand seized to uses, and that S, W. on the death of his father, became entitled to the land.</p> <p>If a deed express a money consideration, and that the covenantee is the son, or be without any consideration expressed, and a good one be averred and proved, it may be construed as a covenant to stand seized to uses. Aliter if a money consideration alone be expressed, (vide next case.)</p> <p>■ The case of Welch and Kinard, 1 Sp. Eq. 256, and Craxoford vs. McElvy, 2 Sp. 225, commented on, and held not to apply to conveyances of land.</p>

Before Butler, J. at Lexington, Fall Term, 1844. This was an action of trespass, to try titles to a tract of five hundred acres of land, on the road from Lexington Court House to Columbia. The land m dispute is. the one-half of a tract of one thousand acres, which belonged originally to Zilpha Eddins, who, on the 20th day of February, 1816, conveyed the same to her two sons, James A. and Wm.

<p>Before Earle, J. at Darlington, Spring Term, 1841.</p> <p>This was an issue devisavit vel non, on appeal from the Ordinary, who had admitted to probate, as a testamentary paper, an instrument in writing signed by Moses Sanders, in the presence of four subscribing witnesses. The instrument was as follows :</p> <p>“South Carolina, )</p> <p>Darlington District. $</p> <p>Know all Men by these Presents, That I, Moses Sanders, of the State and District aforesaid, for the natural good will, love and affection which I have and do bear towards the Methodist Church at Darlington Court House, as also the Preachers of said Circuit, and the Peedee Mission, have given, granted and bequeathed, and do by these presents give, grant and bequeath unto the said Church, Preachers of the said Circuit, and the Peedee Mission, the sum of Eight Thousand Dollars, good and lawful money, to be selected by the Trustees of said Church out of my papers; the said eight thous- and dollars to be put to interest forever, and the interest to be paid annually, and to be distributed by said Trustees, according to the several necessities of said Church, preachers and mission.</p> <p>All and singular the above eight thousand dollars, to have, hold and use ; and I do warrant and forever defend the above eight thous- and dollars, the right to said Church, Preachers and Mission forever, against myself, my heirs or assigns, or any other person or persons, lawfully claiming or to claim the same, or any part thereof. In witness, I have hereunto set my hand and seal, this 7th November, 1838.”</p> <p>Three questions were made : — 1. Whether the deceased was of sound mind at the time of its execution. 2. Was it executed as a testamentary paper, and intended only to take effect on the death of the deceased. 3. Was it sufficient on its face to take effect as a testament, or was it void for uncertainty as to the persons who were to take, and who were to be the beneficiaries.</p> <p>The Methodist Church at Darlington was not a corporation. A volume containing the discipline and creed of the church, as well as the regulations for its temporal government, was in evidence ; and a manuscript book containing minutes of the proceedings of the Darlington Church, was likewise in evidence. There were Trustees in office, regularly appointed, at the date of the paper.</p> <p>His Honor submitted the two first questions to the jury, advising, them, if they should be of opinion that the deceased was of sound and disposing mind and memory, and that he executed this instrument as his will, and not as a deed, intending it to take effect in the event of his death, and after his death, that then they should find the paper submitted to them to be the last will and testament of Moses Sanders ; that - although he considered the other question both difficult and doubtful, yet he thought there was enough on the face of the paper to enable the Trustees to fake.</p> <p>The jury found a verdict for the defendants on the appeal, thereby confirming the decree of the Ordinary.</p> <p>The plaintiffs appealed, and now moved for a new trial, on the ground that the paper admitted to probate is null and void.</p> <p>1. Because the Methodist Church at Darlington was not incorporated.</p> <p>, 2. Because neither said Church nor the Trustees thereof, could take in the way intended by the Testator. .</p> <p>3. Because the cestuique trusts, or beneficiaries, are un certain.</p>

<p>Before Frost, J. at Charleston, Fall Term, 1844.</p> <p>This was an indictment for a libel.</p> <p>The first count stated: That James M. A. Henderson, late of Charleston, in the district and State aforesaid, being a person of an evil, wicked, and malicious mind and disposition, and unlawfully, wickedly and maliciously, devising, contriving and intending, as much as in him lay, to scandalize, vilify and defame, divers good and worthy citizens of the said State, to wit, one Allen Spencer, one John Lord, and one Robert H. Quash, otherwise called Robert H. Quash junior, and to bring them the said Allen Spencer, John Lord and Robert H. Quash, junior, into public scandal, infamy and disgrace, and to injure, prejudice, and aggrieve them, the said Allen Spencer, John Lord and Robert H. Quash, junior, on the sixth day of July, in the year of our Lord one thousand eight hundred and forty four, with force and arms, at Charleston, in the district and State aforesaid, of his great hatred, malice, and ill will, towards the said Allen Spencer, John Lord and Robert H. Quash, junior, unlawfully and maliciously did compose and publish, and cause and procure to be composed and published, a certain false, scandalous, malicious and defamatory libel, of and concerning the said Allen Spencer, John Lord and Robert H. Quash, junior, containing therein, amongst other things, the false, scandalous, malicious, defamatory, and libellous words and matter following, of and concerning the said Allen Spencer, John Lord and Robert H. Quash, junior, that is to say— For the Bulletin — 'Goat Racing Club. The first regular meeting of this club was held at Dickey’s, on Friday evening, June 28th. The Chairman called upon those members who had entered dogs,-to come forward and pay entrance money, (treat for the crowd.) Only four dogs were entered. At about half past ten o’clock the club started in pursuit of those' very disagreeable creatures, commonly called goats, but did not succeed in seeing any; they having, for this night only, not made their appearance. The club were about returning to their Hall, (one of Dickey’s boxes,) when the deep bay of one of the dogs was heard in Berresford street, “swift from their covert the merry pack fled,” but. only one other dog took the scent, making but two on the field. The race was very exciting, and it was a beautiful sight to see how the two dogs stuck like leitches to him, (for it was a poor tom cat.) After running about five minutes they succeeded in killing him, though not without a bloody battle. The club having retired to Dickey’s, the roll was called, and two members fined, whereupon they took two Jerusalems apiece, and retired to their virtuous sheets, agreeing to meet the following night. Saturday night, June 29. The club met at ten o’clock; the meeting béing called to order, mascovitus, santacruis, smashers, and of course gin toddys were the first moves that were made. They being put out of sight, there (meaning their) next question was to name a Chairman ; with some difficulty they succeeded, but not until they had laced their spencers (meaning an allusion to the name of the said'Allen Spencer,) a little tighter, by taking a couple of small taughts. After a few words from Kate Kearney, the lord (meaning the said John Lord,) was called upon for his blessing, and after cruising about the city some time, they all agreed to go to the French (meaning the French Coffee House,) and sup, before they went to • their homes. Supper being over, the business was quashed, (meaning an allusion to the name of the said Robert H. Q,uash, junior,) for the night, all bands retiring about one o’clock. Which said false, scandalous, malicious and defamatory libel, he, the said James M. A. Henderson, afterwards, to wit, on the sixth day of July,' in the year aforesaid, at Charleston aforesaid, in the district aforesaid, and in the State aforesaid, unlawfully, wickedly, and maliciously, did publish and print, and cause to be published and printed, in a certain public newspaper, called the Charleston Bulletin, a free and independent press, and thereby then and there did, unlawfully, wickedly and maliciously, publish, and cause to be published, the said libel, to the great damage, scandal, and -infamy, of the said Allen Spencer, John Lord and Robert H. Quash, junior, in contempt of the laws, to the evil and pernicious example of all those offending in like case, and against the peace and dignity of the same State aforesaid.</p> <p>The second count was the same as the first, except that it did not charge that the defendant composed the libel, but only that he printed and published it.</p> <p>At the trial, after the publication was proved, the Attorney General proposed to ask Mr. Quash for the traverser’s admissions, that he was alluded to by the piece. This evidence was objected to, but admitted by the Court, and the witness proceeded to state admissions of Henderson, that they were alluded to; and also that there were words in the publication, which being in italics, were understood to convey a personal allusion; and that the publication was an entire fiction; that there was no such club, and nothing had ever been done by any of the parties, that could suggest any thing in the publication, except that the parties sometimes drank at Richard Jones’s bar, and that Jones was called Dickey.</p> <p>Under the charge of the court, the jury found the defendant guilty.</p> <p>The defendant appealed, and now moved in arrest of judgment, on the grounds— ■</p> <p>Í. That the paper does not purport on the face of it to be written of the parties who are said to be libelled ; that there are no averments to connect them with .the meaning of the writing; and the innuendos, which undertook to enlarge or change the sense of the words employed, are null and void. So that there is no specification of any offence beyond the mere writing and publishing of the paper itself.</p> <p>2. That the paper itself, on the face of it, is not libel-lous.</p> <p>And failing in that motion, then for a new trial, on the ground—</p> <p>That evidence was admitted to prove an innuendo, and to make out a different offence from that charged in the indictment, viz: the offence of writing words which are either innocent or unmeaning, in italics, and then saying that by such italics an individual is meant.</p> <p>contended. 1st. That the writing was not sufficiently charged. 2d. That the paper was no libel.</p> <p>On the first point, he cited Stark, on Sland. 281; Cowp. 684. Where a writing is ironical, and no libel appears on the face of it, the true meaning must be averred and prov-ved, 11 Mod. 86; 1 Ch. Pi. 383. An innuendo cannot of itself extend the meaning of words. It must refer to some matter previously expressed ; 5 J, R. 211. An innuendo cannot make a person certain who was uncertain before ; 4 Cok. 17, 20 ; Cro. Eliz. 838 ; Bac. Abr. Libel, A. 3 ; 1 Bin. 637; Com. Dig. case for def. G. 9, 10; 1 Saund. Rep. 243; Holt on Libel, 258. These authorities show that the innuendos here were void. ■ The indictment therefore must be judged of, as if the innuendos were not in it.</p> <p>On the second point he cited Stark, on Sland: 434; 3 Bl. Com: 125 ; Com. Dig. ease for def. F. 14.</p> <p>On the. ground for a new trial, he said no evidence, can be given to prove an innuendo. An averment or colloquium introducing new facts may be proved; 5 J. R. 210. If facts had been avered which went to show that the prosecutors' were meant, such facts might have been proved, but no such facts were averred ; 4 McC. 317.</p> <p>Cited 1 Russ. 303. The paper is libellous on its face, and the only uncertainty is as to the person. The only question is, who were the persons intended. The indictment charges that the paper was composed of and concerning the prosecutors. T hat is a sufficient inducement and averment; 5 J. R. 224; 3 Ch. Cr. L. 874; Cowp. 672.</p> <p>No evidence was introduced to support the innuendos, but the ^averment that the libel was published “of and concerning,” (fee. This was certainly competent, and what could be better evidence than the admissions of the defendant himself?</p> <p>The Attorney General relies upon the allegation that the writing was of and concerning the prosecutors. This is not enough to authorize the evidence. If there were extrinsic circumstances, necessary to show that the prosecutors were the persons intended, those circumstances should have been averred. The averment, of and concerning, (fee. is sufficient only when it appears on the face of the paper that the prosecutors were intended; 8 Bast, 426 ; 4 M. & S. 163.</p>

<p>Before Frost, J. at Charleston, Fall Term, 1844.</p> <p>These were indictments for different offences. The prisoners were found guilty, and they now moved in arrest of judgment, on the ground, that the grand jury who found the bills, and the petit juries who convicted the prisoners, were summoned by wirts of venire without the seal of the court.</p> <p>submitted the original venires for the inspection of the court, with the certificate of the clerk, that they were the original venires, and that they had not been sealed.</p> <p>asked leave to be heard, against the rule, laid down in the case of the Stale vs. Dozier, 2 Sp. 211, that a venire is a part of the record of conviction ; which the court after consultation refused. Mr. Bailey then contended that under the rule of court, certified copies of the venires should have been brought up, and not the originals themselves.</p>

<p>BSfore Wardlaw, J. at Charleston, Spring Term, 1844.</p> <p>This was an indictment under the Act of 1821, 7 'Stat. 460, for harboring a runaway slave. Before the warrant for the defendant’s arrest had issued, the prosecutor had commenced a civil action against the defendant for the same offence, which action was still pending. The defendant ■ contended that the civil action was a bar to the indictment. His Honor ruled otherwise, and a verdict of guilty was rendered. The defendant appealed.</p>

Before Wardlaw, J. at Charleston, Spring Term,, 1844. A suggestion of fraud bad been filed by the plaintiff against the defendant under the prison bounds Act. ' It was tried by freeholders before the clerk, under the Act of 1833, (6 Stat. 491,) and the defendant acquitted. This was a rule on the clerk to shew cause why he had refused to allow the defendant to enter up judgment and issu.e execution for attorney’s and witnesses’ costs.

<p>Notice to creditors under the insolvent debtor’s Act, must in all cases be published for three months in a Gazette, unless a different mode of publication be authorized by a special order of the court; and notice by the cleric, without such order, posted on the Court House, will not he sufficient.</p>

<p>Before Frost, J. at Chambers, Charleston, July, 1844.</p> <p>The report of His Honor is as follows:</p> <p>“This is an application to discharge from custody Dunham Watson, who has been arrested under bail process at the suit of H. E. Vincent, Jr.</p> <p>A suit in Equity was pending in Charleston District, in which the applicant was complainant, and Hugh E. Vincent and son were defendants. By an order in the cause, it had been referred to one of the Masters of that court to take an account between the parties. The applicant came to Charleston to prosecute this account. References were held on the 15th, 16th and 17th days of this month, and it seems they are not yet cloáed. At the reference on the 16th, the applicant was interrogated on oath, respecting several items of set off, claimed by the defendants. Among them was a watch, charged by the defendants to the complainant, which he swore had not been purchased of H. E. Yincent & Son, but of H. E. Yincent, Jr. Whereupon, that and some other items of the set off, it is insisted in behalf of the respondent, were discontinued; and the bail writ in this case issued for the price of the watch, under which the applicant was. arrested on the 16th inst. In the view taken of this case, it is unnecessary to decide whether it is competent for H. E. Yincent <fc Son to discontinue or withdraw, in whole or in part, a claim of set off in due form, put in issue in the suit in Chancery; or whether, if it is competent for Yincent & Son so to discontinue, their acts amount to a discontinuance ; or if the bail writ in this case was improperly issued, as being for a cause of action pending and litigated in the Court of Chancery, whether the Court oí Chancery is not the proper jurisdiction to restrain the irregularity.</p> <p>On the ground that a party to a suit in Chancery, attending a reference before one of the Masters, under an order in the cause, is privileged from arrest, the applicant must be discharged from custody. Parties, as well as witnesses, are protected by Courts of Justice, and privileged from arrest during the necessary time consumed by them in going to the place where their attendance is required — in staying there for the purpose of such attendance — and in returning from the place. A reasonable time is allowed to the parties, as to witnesses, for going and returning ; and in making this allowance “ the courts have not been nice in scanning the privilege, but have given it a large and liberal construction.” 1 Tidd’s. Prac. 196. Thus a plaintiff who was attending from day to day at the sittings, in expectation of his cause being tried, was held to be privileged from arrest, whilst waiting at a Coffee House in the vicinity of the court, before the actual day of trial. 11 East, 439.</p> <p>“ A witness in the Court of Exchequer, living in the country and coming up to London to be examined, and on other business, in the interval between the day on which he had been examined and that appointed for his further examination, was taken- .by the Sergeant at Arms, on process out of the Court of Chancery. The Lord Chancellor said the Court of Chancery was the proper court to apply for his release, and the prisoner was discharged.” 1 Smith’s Ch. Prac. 389.</p> <p>It seems most fit and decorous, in such case of improper arrest of a party or witness, to apply to the court by whose process the “ arrest was made, for the discharge of the prisoner.” The quotation from Smith’s Chancery Practice confirms this view; and in Tidd’s Practice, 1 vol. 197, it will be found that “ if a defendant be arrested by quo minus while protected as a suitor, by the privilege of the Common Pleas, he may be discharged either by that court or the Court of Exchequer.”</p> <p>I cannot doubt that a party to a suit in Equity, attending before one of the Masters, under an order of reference in the cause, is protected from arrest, as much as if he was attending the court at the hearing of the cause. Every argument and consideration which would protect a party attending the hearing of his cause in court, would more urgently require his protection before the Master on a reference to take testimony or adjust accounts. In this stage of litigation the decision of the case is most frequently predetermined, and the advice and information of the parties to the suit indispensable. “It has been determined, that the party to a cause is privileged from arrest for debt, during his attendance on an arbitration, under an order of nisi prius, made on rule of court,” “ or on the execution of a writ of inquiry.” 1 Tidd’s Prac. 197; or “ attending the Insolvent Debtors’ Court, or a meeting of Commissioners in Bankruptcy in pursuance of a notice.” 1 Phil. Evid. 5.</p> <p>The applicant in this case had come to Charleston to attend the references before one of the Masters, ordered in a suit in Chancery in which he was complainant; and while attending the references, continued from day to day, he was arrested at the suit of H. E. Vincent, Jr. under the process stated in the caption of this case.'</p> <p>It is my opinion that the arrest was illegal. It is therefore ordered, that the Sheriff of Charleston District do discharge from custody the applicant, Dunham Watson, under the arrest made in this case.”</p> <p>The plaintiff appealed, on the following grounds :</p> <p>1. That the privilege of exemption from arrest, does not attach to a suitor attending a reference held during vacation, under a general order of reference from the Court of Chancery.</p> <p>2. That if such privilege does exist, it does not extend to the interval between the references, but only to actual attendance on such references, and going to and returning from such references.</p> <p>3. That relief in such case can only be applied by the Court of Chancery, and not by a Court of Common Pleas, or at least not by a Judge of that court at Chambers.</p> <p>The principle on which courts proceed in ordering suitors and witnesses to be discharged, is the contempt committed against their authority; and one court will not take notice of a contempt to another. (4 T. It. 377; 7 Com. Dig. 113; 1 Brownl. 15; Barnes, 200.) He submitted that a party attending a reference before the Master, is not privileged from arrest.</p> <p>Comity requires that one court of Justice should prevent its officers from interfering with suitors attending upon another. In the case exparte Ferris Pell, Ch. Mss. Dec. a party in attendance from another State, in the Court of Appeals, to hear the argument in his case, (Pell vs. Ball) was held to be privileged from arrest.</p>

<p>Tried in the City Court of Charleston, November Term, 1,844.</p> <p>This was a summary process to recover sixty eight dollars, the value of four silk military sashes, bargained and sold by the plaintiff to the defendant.</p> <p>The only witness produced in the case was the clerk of the plaintiff. He proved that the defendant called at the military-goods store of the plaintiff, and ordered from thence four silk sashes, with gilt bullion tassels, one-third black fringe, one-third red, and one-third gilt fringe. The witness informed the defendant tliat such articles could not be obtained in Charleston. He then wrote down in pencil, in defendant’s presence, at his request, while standing near and overlooking him, an order in the following words : “Lieut. Muhlenbrink, of the German Artillery, requests you to order four silk netted sashes, the knot of sash to be gilt, and the bullion fringe to be one-third gilt, one-third black, and one third red — the national sash of Germany.”</p> <p>The plaintiff, on receiving this order, wrote to Messrs. Young & Smith, his correspondents at New York, for the sashes; an answer was received that none of that quality and description could be purchased in New York. The witness communicated this answer to Muhlenbrink, the defendant, at another call at plaintiff’s store, and informed him that the plaintiff would have to send to Europe to have such sashes made there; when the defendant answered he wanted them made according to the order. The plaintiff accordingly directed his correspondents, Young & Smith, at New York, to send to Europe to have the sashes made up, which was accordingly done. The articles were received from Messrs. Young & Smith some months after-wards. They 'were charged to plaintiff by Young & Smith, at $60 38. The plaintiff paid that sum to Young & Smith. The defendant refused to accept the articles unless plaintiff would let him have them at $48.</p> <p>The defendant moved for a nonsuit, on the ground that under the 17th section of the Statute of Frauds, there was no valid contract for the sale of goods proved. His Honor overruled the motion, and in his report to the Court of Appeals, cited the following authorities in support of his judgment : Ch. on Cont. 306 ; Groves vs. Buck, 3 M. & S. 180; Echberger vs. McCauley, 5 Har. & Johns. 213; Bewail vs. Fitch, 8 Cowen, 215 ; 4 Phil. Ev. by Cow. 93; Garbuit vs. Watson, 5 B. Aid. 613; Crookshank' vs. Burrell, 18 J. JR. 59.</p> <p>Decree for plaintiff for the whole amount of his demand.</p> <p>The defendant appealed, and now renewed his motion for a nonsuit, on the ground urged in the court below.</p> <p>cited 2 H. Bl. 67, which overrules the case in 1 Str. 505, and contended, that the rule as settled by the latest decisions, is that a contract for the sale ' of goods in futuro, which are not in existence at the time of the contract, is within the Statute of Frauds ; 17 Eng. C. L. R. 443.</p> <p>relied upon the authorities cited -by the Recorder.</p>

<p>The lien of an attorney relates only to his costs, and not to a fee.</p> <p>After judgment recovered against a defendant, the attorney’s, clerk’s and sheriff’s costs, entered up in the judgment as a part of the damages, constitute a debt due to those officers, which the plaintiff has no right to receive.</p> <p>Where a plaintiff, in a judgment, enters satisfaction on the record, for the whole amount of the judgment, including the costs, the officers of court have a right to have the entry of satisfaction vacated so far as it covers their costs.</p>

Before Richardson, J. at Beaufort, Bpring Term, 1844. This was a sum pro. on a due bill, made by the defendant in'favor of one Samuel B. Colding or bearer, dated December 24th. 1834, Defendant pleaded the statute of limitations.

<p>Where one has a complete and enforcible lien on the property of his debtor, a promise of a third person to pay the debt, on condition that the property under the lien is given up, is not within the statute of frauds.</p> <p>An innkeeper has a lien on the goods of his guest, for the amount of his bill. (a)</p>

Before Richardson, J. at Colleton’, Spring Term, 1844. This was an indictment for cow-stealing. The defendant had been indicted for stealing the cow of John Gruber, and found “not guilty,” at the former term. He was now in-dieted for stealing the same cow, at the same time and place, and of the same individual, but by the name of John Gruber Akerman, which was his proper name.

Tried in the City Court of Charleston, April Term, 1844. This was an action of assumpsit for goods sold and delivered. It was first tried in April, 1842, when the plaintiffs had a verdict, which, on appeal, was set aside ; 2 Sp. 284. The plaintiffs’s book of original entries, sworn to by one of the plaintiffs, was offered and received in evidence. The entry was as follows.

Before Frost, J. at Charleston, Fall Term, 1844. This was a rule against the sheriff.

<p>Where a witness, of his own free will and accord, draws up a memorandum, or has it drawn up under his immediate direction, at the time of the fact, or recently afterwards, for the purpose of preserving the memory of it, he may adopt its contents as his testimony; although at the time of testifying he recollects nothing further than that he had accurately reduced, or procured to be reduced, the whole transaction to writing.</p> <p>But if the paper was drawn up weeks after the fact occurred, or if it was drawn up, or procured to be drawn up, by the party in whose favor the witness is called to testify, he cannot be allowed to testify to its contents, if he does not recollect them independently of the paper.'</p> <p>Can a \\ itness, for the purpose of refreshing his memory, be allowed to refer to a paper which was drawn up by the party in whose favor he is called to testify. Quarel</p>

<p>Tried in the City Court of Charleston, July Term, 1844.</p> <p>The report of the Recorder is as follows:</p> <p>“This was an action of debt, to recover the penalty alleged to be incurred by the defendant, in keeping spirituous liquors in his retail grocery shop without a -license from the City Council.</p> <p>“William N. Wallace was produced as a witness for the plaintiff, when he was sworn on his voir dire.</p> <p>“He deposed that the information in this case was lodged in the name of one Dill — that the witness Wallace was to give the evidence. By virtue of his office he was to share a part of the penalty. If, when the information had been lodged, the penalty had been paid by defendant, witness would have been paid a part of such penalty — it was impossible to say how much, as there was no .understanding between witness and Dill as to what amount. By virtue of witness’s office, as a City Marshall, he would have been entitled to a portion of the penalty. Dill would not have been entitled to more than witness chose to allow him, although a moiety of the penalty would nominally be received by Dill, as informer to the city in the case.</p> <p>“For defendant, it was insisted that the witness bad a direct interest in the result of the case, and was inadmissi ble; after hearing the city attorney, I sustained the objection.</p> <p>“The city Attorney then produced a release from the witness, in which he assigned to the City Council all his right, title, share and interest, in the penalty in this case, or any part thereof-» — and under this release, offered him again as a witness.</p> <p>“Defendant’s counsel objected to his admissibility, ah' though the release had. been executed, on the ground that Wallace having acknowledged himself interested in the penalty, the assignment offered was against good faith and the sound policy of the law — and notwithstanding the release, he would derive a portion of the moiety which Dill would be entitled to, if - defendant should be convicted.</p> <p>“The City Ordinances direct that all penalties shall be disposed of as follows, viz, “One half to the use of the person who shall prosecute the offender to conviction, and the remainder to the use of the city.” Also, “that the marshals shall be entitled to one half of every forfeiture which they may be instrumental in making — provided they prosecute such offence, and prove the same by other evidence than their own.”</p> <p>“It appears to me, even after the tender of the' release, that the witness had a direct and immediate interest in the result of this case ; one half of the penalty recovered would be received by Dill, the informer and prosecutor, and an understanding existed between them, as acknowledged on the voir dire, by which Wallace was to be paid a part. I thought this was an interest from its nature incapable of beiug released or assigned,</p> <p>“It appears to me within the principle ruled in the case of M’Veaugli vs. Good, (1 Dallas, 62,) where, on the trial of an information filed against certain goods, a witness stated on his voir dire that he assisted in seizing the goods, and expected some compensation if they should be condemned, but not otherwise. His testimony was held to be inadmissible. The court there said. “It nearly concerns the administration of justice that witnesses should be free from every kind of bias. It is true, the witness had no positive promise of a reward; but we think the expectation which he acknowledges in ease the goods shall be condemned, must create such an influence on his mind as renders it improper for him to give testimony on this occasion.” The defendant’s counsel also cited the decision of Hon. M. King, Recorder, on the former trial of this case at January Term, 1843, excluding Wallace as a witness, and a decision of the District Court of the United States at Charleston, in a prosecution for breach of the Revenue Laws, to the same point.</p> <p>“I thought such agreements between informers and witnesses were corrupt in their character, and should not prevail in causes where the community in fact were plaintiffs.</p> <p>“I overruled the testimony, and the city attorney submitted to a non-suit, with leave to move the Court of Appeals to set it aside.”</p> <p>now -moved that the non-suit be set aside. He cited Greenl. Ev. 434, 432; 1 Phil. Ev. by C. & H. 47; and contended that the interest which excludes a witness must be certain, direct and legal. The witness was not entitled by law to any part of the penalty, and his agreement to share with the prosecutor his moiety was clearly illegal and void.</p> <p>If his interest was legal, then the release restored his competency; Greenl. Ev. 472. The defendant is driven to this dilemma. The interest was either legal and certain and could be released, or it was illegal and uncertain and did not affect the competency. He cited 1 Serg. & Rawl. 32; 17 lb. 312, to shew that the rule laid down in the case in Dallas, quoted by the Recorder, is not followed in Pennsylvania.</p>

<p>Before Frost, J. at Charleston, Fall Term, 1844.</p> <p>This was an indictment, at common law, for cheating by a false token.</p> <p>The report of the presiding judge is as follows:— “ The defendant, Stroll, on the night of the second of October, after nine o’clock, went to the store of D. L. Levy, and purchased from a clerk, fifteen years of age, who had been employed in the store about three months, two shirts and a scarf, for three dollars and a half. He gave in payment a five dollar bill of the Bank of Tallahassee, in Florida, which was in part filled up, but no names were signed in connection with the words, “Cashier” and “President,” printed on the bill. An illegible scrawl was prefixed to them, which, on a careless inspection of the bill, might be mistaken for the names of those officers. As Stroll was leaving the store, Levy came in, and asked the clerk what he had bought, and being shewn the bill, found it an imposition. Levy immediately followed after Stroll, who crossed the street, and joining Carr, was proceeding down Fitzsimons’s wharf, which was opposite Levy’s store. Overtaking them, Levy stopped them, and said to Stroll he had given a bad bill in payment of his purchase, and desired him to change it for a good bill. Stroll replied, that he had just come from his tavern, and had bought nothing. Levy replied, you have the goods now, and tearing off a piece of the paper of the parcel, saw that it contained the articles bought. Stroll threatened to knock him down, and giving the parcel to Carr, desired him to go aboard the brig. Levy called the guardman, who was not far off, who pursued Stroll down the wharf, and took him. Carr went off. He was much intoxicated. Stroll was carried to the guard house, and Carr was afterwards carried there also. The goods were taken from the brig, or a smack alongside, and carried to the guard house. Stroll refused to answer any questions of the Mayor. Carr, at first, said he knew nothing of the matter ; afterwards, he admitted that he had got the bill in St. Augustine, and had given it to Stroll, and was present at the house when Stroll filled it up. He also admitted that he had gone with Stroll, and waited on the opposite side of the street, when Stroll went into Levy’s, and that the shirts and scarf were purchased from Levy. The change given to Stroll, was a one dollar bill and two quarters. A dollar bill was found in Stroll’s possession, which Levy and his clerk identified by a large figure one, of a red color, on the bill. Levy and the clerk both said that bill, or one resembling it, had been taken that evening in payment of a hat. They also said, the shirts and scarf were Levy’s property, though they could not identify them by any mark. They were new. Captain Axworfhy proved that Carr had come to Charleston in his vessel as cook. Carr had possession of a Florida bill, not filled up, and without signatures, which was shewn to Capí. A. on the voyage, and he told. Carr it was worth nothing, and he had better tear it up. Capt. A. could not swear the bill produced in court was the same bill, but it had a strong resemblance to it. The bar-keeper of Prentiss’s house proved that Carr and another man, whom he could not identify, asked him for a pen and ink, and they went to the table and wrote something which he did not see. William Turner testified that he was a passenger with Carr, and had seen a Florida bill in his possession, but he did not think the bill shewn was the same. Levy said the bill could not have been imposed on any prudent person, and-that he would not have taken it.”</p> <p>The verdict was guilty.</p> <p>The defendants appealed, and now moved in arrest of judgment; and that motion failing, then for a new trial, on the grounds following, to wit.</p> <p>1. That an indictment for cheating, in a private transaction between individuals, by a token which is not calculated to affect the public, cannot be sustained at common law; nor for cheating in a public or private transaction by a privy token ; that the instrument in this case is a privy token.</p> <p>2. That no cheat could have been effected by the instrument in this case, except by absolute negligence and want of prudence in the receiver.</p> <p>cited 3 Ch. Cr. L. 756, 758. The indictment here is at common law, and no person can be indicted at common law for passing a false token, where it is not of a character to affect the public ; 2 Russ. 1369, et seq. The deceit must be effected by some device which might affect the public.</p> <p>The instrument passsed by defendants, was a privy token ; Dud. 275. It purports to be the bill of a private corporation. A public token is the semblance of something of a public nature, as a treasury note, a weight, false scales, <&c.</p>

Before Frost, J. at Charleston, Fall Term, 1844. This was a summary process upon a verbal acceptance of an order for thirty-three dollars. It was proved, by a clerk of the plaintiff, that Lide, one of the defendants, called at the store of plaintiff, when plaintiff said to him, I have a small order on you, for stores supplied to the steamer Congaree. Witness thought the order was shewn at the time to Lide, but was not positive that it was shewn, or the amount stated.

<p>Tried in the City Court of Charleston, July Term, 1844.</p> <p>This was a feigned issue, made by leave of court, to try whether the defendant was a person of color. In the course of the trial, the defendant offered as evidence the record of a prosecution before a magistrate and freeholders in the year 1839, against the defendant, for returning to this State, contrary to the Act of 1835 ; 7 Stat. 470. The record, it was said, showed that the defendant was acquitted, on the ground that he was not a person of color. The recorder rejected the evidence as incompetent, and submitted the case to the jury, who found “the defendant to be a mulatto.” The defendant appealed, on the ground, inter alia, that the recorder erred in rejecting the evidence as incompetent.</p>

Before Frost, J. at Charleston, Fall Term, 1844. This was an action of covenant for the breach of a warranty of soundness, contained in a bill of sale ; by the terms of which, “ Catharine Brown per R. E. Brown, Trustee,” conveyed “ CATHARINE BROWN, l. s. .

Before Frost, J. at Charleston, Fall Term, 1844. This was an indictment under the Act of 1816, 6 Stat. 26. On the first count, the defendant was found guilty, and he now moved in arrest of judgment. submitted the case without argument. cited 1 Ch. Cr. L. 250; 1 Russ. 433 ; Arch. Cr. PI. 31.

Tried in the City Court of Charleston, November Term, 1844. The following is the report of the Recorder. “This was an action of assumpsit brought to recover $468 85, on notes, checks and moneys lent. The questions in the case arose entirely on the state of the pleadings.

Before Wardlaw, J. at Charleston, Spring Term, 1844. This was an action of assumpsit for money had and received. William T. Hieronymus was offered as a witness on the part of the plaintiff. He was objected to as incompetent, on the ground of interest, but the objection was overruled.

Before Butler, J. at Beaufort, Spring Term, 1843. This was an action of debt on a penal bond. The writ was returnable to Fall Term, 1842. At that term, no appearance was entered. Upon the rising of the court, the plaintiff filed his declaration, and had it marked by the clerk, “order for judgment,” and at the end of thirty days, he entered up judgment and issued execution. This was a motion to set aside the judgment.

Before Frost, J. at Chambers, Charleston, September^ 1844. This was an application for a prohibition. The suggestion stated that the relator was tenant, for one month, of Edward W. North, under a parol lease of a house in Meeting Street. That the lease expired on the 22d August, 1844, and on that day the rent in full was paid.

Before Wardlaw, J. at Charleston, Spring Term, 1844. This was an action of assumpsit, brought upon the defendant’s guaranty of a bond. Held: that if the bond and guaranty were complete before their delivery to the plaintiffs, it was not material in what order their various parts had been written ; unless it should appear that some writing had been done in fraud of the person to be charged thereby, or without his assent or authority.

<p>A confession of judgment cannot amount to an undue preference under the prison bounds Act.</p> <p>An assignment under the prison bounds Act, is to be presumed to be involuntary, until the contrary appears.</p> <p>A preference to one creditor, to be unclue, within the meaning of the prison bounds Act, must be fraudulent.</p>

Tried in the City Court of Charleston, November Term, 1844. This was a motion to set aside a scire facias, on the ground of irregularity.

Before Frost, J. at Georgetown, Spring Term, 1844. This was an action against the sureties oh the official bond of J. L. E. Easterling, late sheriff of Georgetown district. The object of the action was to recover the proceeds of two lots of land, sold by the sheriff, as the property of Percival E. Vaux, and alleged to to be applicable to a judgment for $1,185 74, entered up on the 17th April, 1830, owned by the plaintiff, T. H. Taylor, as assignee.

Before Wardlaw, J. at Charleston, Spring Term, 1844. This was an action upon the case to recover the value of a slave named Frank, the property of the plaintiff — said to have been lost through the wrongful acts of the defendant. There were three counts in the declaration.

<p>Two partners, on settlement with a creditor of their firm, after dissolution, gave their separate bonds to the creditor, each for one-half of the debt, and agreed that the amount which might be recovered on a certain chose in action, in the hands of the creditor, which belonged to the firm, should be applied to the payment of the bonds. Held, that the joint interest of the partners, in the chose in action, was severed by the agreement, and that one partner afterwards had a right to direct his half to be applied to the payment of his bond, and that the creditor had a right so to apply it.</p> <p>Defendants agreed, as “agents and creditors” of the plaintiff, to collect a demand due the plaintiff, and apply it towards the payment of a bond which they hold against him. They collected the demand, but failed to inform the plaintiff of it, or credit it on his bond, and afterwards sued him on the bond, and recovered judgment for the whole amount. Held, that the plaintiff was not barred by'the recovery against him, from suing the defendants for the amount they had collected on his account.</p>

Before Wardlaw, J. at Charlestonh Spring Term, 1844. These were actions of debt, founded upon statute. Held: that the Board, as a quasi corporation, might sue without setting out' the names of the several Commissioners ; that the warning was sufficient, given in the name of the Board, and not of a single Commissioner ; that the action was for the original default, to which the defendant might answer by any sufficient excuse, if he had one,…

Before Waudlaw, J. at Charleston, Spring Term, 1844. This was an action of debt on bond against the defendant, as surety on the guardianship bond of B. R. Carroll, guardian of the four minor children of Edward D. Perry. The plaintiff duly proved the bond, and produced the decree of the Court of Equity, settling, as against the guardian, Mr. Carroll, the amount due to his wards, and claimed a verdict for the same amount. The bond was executed in February, 1835.

Tried in the City Court of Charleston, July Term, 1844. Sum. pro. for twenty dollars, the amount of a penalty alleged to have been incurred by the defendant, for a breach of a city ordinance, which provided that all persons using wagons for hire within the city, shall take out a license, or pay a fine not exceeding twenty dollars.

<p>If the indorser, for valuable consideration, of a note over due, promises at the time of the transfer to pay what the indorsee fails to collect from the drawer, it is a waiver of his right to require proof of demand and notice.</p> <p>Neglect to give notice to the first indorser, does not discharge a subsequent indorser who has had notice;</p> <p>Under a count which contains the usual averments of demand on the maker, and notice to the indorser, is it sufficient to prove a state of facts which dispenses with actual den and and notice? Quare?</p> <p>A note may be given in evidence under the common money counts, in an action by an indorsee against his immediate indorser, (a)</p>

Before Frost, J. at Chambers, December, 1844. The report of his Honor is as follows : “ Brown & Welsman entered up a judgment against Lewis Rebb, in the Court of Common Pleas for Charleston-District, the 30th January, 1841. The defendant filed his petition in bankruptcy, the 25th October, 1842 — was decreed a bankrupt the 21st November, 1842, and obtained his discharge the 24th April, 1843. The debt due to the plaiutiffs was not included in the petitioner’s schedule.

Before Wardlaw, J. at Charleston, Spring Term, 1844. Assumpsit by the indorsee against the indorser of a promissory note. The note was drawn by Lewis Jones & Co. payable to the defendant, and by him indorsed to the plaintiffs.

<p>Before Wardlaw, J. at Charleston, Spring Term, 1844.</p> <p>This was an action of trespass to try title. The parcel of land in dispute was a long slip, the right to which depended upon the location of the line separating the tracts of the parties. Neither party was in the actual possession of the slip in dispute, though, outside thereof, each was in possession of his own tract.</p> <p>The plaintiff’s tract is called Snee Farm. He produced the copy of a grant to Nathaniel Law for 1,055 acres, dated 22d of April, 1698, but no plat accompanied the grant. After some intermediate conveyances, a copy was produced from the registry, of a deed dated 5th May, 1738, from Benjamin Law, son and heir of Nathaniel Law, to John Allen, for 715 acres, part of the 1,055 acres, referring to a plat of the 715 acres, certified by the said Benjamin Law, which was recorded along with the deed, and a copy of which was given in evidence. The title was further traced to John Savage, and the copy of a deed was produced from John Savage to Charles Pinckney, (father of Governor Charles Pinckney,) dated 17th September, 1754, referring to a plat annexed to the record, which was nothing more than a copy of Law’s plat of 1738. From Charles Pinckney, the title was deduced to the plaintiff through Charles Pinckney, the son, and F. C, Deliesseline. Upon this tract there had been continued possession since the conveyance to Charles Pinckney, and perhaps long before, and a handsome garden, and adjoining pleasure grounds, besides houses and fields, had long existed on it, and been carefully tended and embellished by Charles Pinckney, Governor Pinckney, and the plaintiff.</p> <p>The defendant’s tract is 'called Boone Hall, and was claimed under several grants dated in 1696 and 1697, to John Boone and others, of which grants a memorial was to be found, but without any plat, except for a tract which did not touch the place in dispute. The land granted to John Boone, and the lands contained in at least one of the other grants, were held by Thomas Boone, a descendant of John Boone, in 1737, and then, or afterwards, the whole was united in the Boone family, and descended to John Boone, who died in 1792, he and his ancestors having long before that time had possession of the mansion, which is half a mile from the parcel in dispute, and of cleared lands not embracing the disputed parcel. By deed dated 19th of September, 1811, Sarah Boone and others, heirs of John Boone, (in whom continued possession had remained of Boone Hall since 1792,) conveyed to Thomas A. Var-dell, the tract called Boone Hall, described by reference to a plat thereof, made by Joseph Eaves, dated March, 1811. No other plat of Boone Hall, or of the land claimed by the defendant, was produced. From Thomas A. Var-dell, through John Horlbeck and others, the title and possession of Boone Hall came to the defendants.</p> <p>The plaintiff claimed the contents of Law’s plat, and the defendants the contents of Eaves’s. It was clear from the evidence that both plats covered the slip of land in dispute.</p> <p>The presiding Judge held, that as before Eaves’s plat there appeared no plat, or other sufficient description of boundary, to shew what land was covered by the grants under which the defendants claimed, or what land had been held by those from whom they claimed title; and as the time after Law’s plat, and before Eaves’s, was sufficient over and over again to confirm title in the persons under whom the plaintiff claimed, to all that was covered by the plat under which he held — there being no opposing possession which by constructive extension to ascertained bounds could interfere with this plat, — Law’s plat should be preferred to Eaves’s; and that the question was, “how should Law’s plat be located;” which question he submitted to the consideration of the jury. The jury found for the defendants, and the plaintiff appealed.</p>

<p>Under the charter of the village of Walterhorough, the town council have the power to declare all hogs, whether they belong to residents or non-residents, running at large in the streets, nuisances, and authorize them to be seized and sold by the marshal.</p>

Before Frost, J. at Orangeburg, Spring Term, 1845. Assumpsit on a promissory note, payable to the plaintiff, or bearer, one day after date, and dated December 6, 1836. Plea, the statute of limitations. The signature of the maker was proved. A credit for ten dollars, dated 22d September, 1841, was indorsed on the note, signed with the name of the plaintiff, but not proved to be in his handwriting. .

Before Wardlaw, J. at Edgefield, Fall Term, 1844. This was an action of debt on judgment against the defendant, as administrator of G. W. Mason. Under the plea of plene administravit, the defendant claimed to retain the proceeds of the sale of certain furniture, which had been conveyed to him by Mason, to secure the payment of certain moneys which had been loaned to buy the furniture.

Before Wardlaw, J. at Orangeburg, Fall Term, 1844. The report of his Honor is as follows : — “ The plaintiff, Mixon, having been arrested under a ca. sa. at the suit of Jesse Stephenson, to obtain his enlargement under the prison bounds Act, rendered a schedule and made an assignment to Stephenson. In his schedule was included a demand against Thomas Jones, the defendant’s intestate, for work done by Mixon on a mill dam, under a contract with the intestate.

Before Waedlaw, J. at Edgefield, Fall Term, 1844. The report of the presiding judge is as follows: “This was an action by the indorsees against the indor-ser of a promissory note. The declaration alleged the in-dorsement of the note after it was due, its presentment for payment within a reasonable time to the maker, and notice of non-payment to the indorser.

<p>Before Wardlaw, J. at Edgfield, Fall Term, 1844.</p> <p>This was an action of assumpsit, brought to recover the difference between the sums bid by the defendant at sheriff’s sale, for two lots in Hamburg, and the sums produced by a re-sale of those lots.</p> <p>Under executions against Henry Shultz, a great many town lots were sold by the sheriff — the sale, by agreement of parties, being made at Hamburg. The sheriff himself was crier of the sales, and a young attorney, who was no deputy, by request of the sheriff acted as clerk. During the sales, the sheriff moved from place to place — the clerk was sometimes near to him, and sometimes ten feet or more distant, and set down the bids as they were announced by the sheriff, but was not overlooked by the sheriff. The entries of the clerk were in a thin paper book, in which, under a general caption of “Sales under Executions,” cfec. three columns without heading, written as there were follows:</p> <p>No. 163 Corner, <fec Oliver Simpson $495</p> <p>No. 170 “ Oliver Simpson 80</p> <p>After the sheriff’s return from Hamburg to his office, the entries of the clerk were, by a regular deputy, copied into the “sales book,” which had like columns without heading.</p> <p>The presiding judge sustained a motion for a nonsuit, on the ground that the entry being made by the agent of the sheriff, was not a sufficient memorandum within the statute of frauds.</p> <p>The plaintiff appealed, and now moved the court to set aside the nonsuit, on the grounds,</p> <p>1. That sheriffs’s sales are not within the statute of frauds.</p> <p>2. That the entry was a sufficient compliance with the statute.</p> <p>The question whether sheriffs’s sales are within the statute of frauds, though taken for granted in many cases, has never been settled in this State. 2 Brev. 46, 180; 1 McM. 255; 3 McC. 447; 2 Bail. 292. In England, and the same rule prevails in this State, Master’s sales are not within the statute. I Ves. sr. 218; 12 Ves. 466; Rob. on Frauds, 114; Bab. on Auc. 67; New. on Con. 204; Sug. on Vend. 43 ; 2 Tread. 835 ; 2 McC. Ch. 151; Bail. Eq. 119; and they submitted that sheriffs’s sales should be placed on the same footing.</p> <p>On the second ground of appeal, they cited 3 McC. 458; 2 Hill Ch. 590; Chev. 69 ; 2 Sp. 292; 7 East, 558; 24 Eng. C. L. R. 97; Acts 1839, p. 27; 4 Johns. Ch. 661; Sug. on Vend. 67, 73.</p> <p>cited 2 Cain, 61 ; 2 Johns. R. 250; 1 McM. 453; 2 Ves. jr. 335; Riley Ch. Cases, 187.</p>

Before Frost, J. at Edgefield, Spring Term, 1845. This was a rule on the sheriff to shew cause why he had not paid over to the plaintiff, in satisfaction of his judgment and execution, certain moneys raised by the sheriff by sale of defendant’s goods. It appeared that prior to the entering up of the plaintiff’s judgment, and the lodgment of his execution, foreign attachments' had been levied by the sheriff on the goods, the proceeds of which were in question.

<p>Defendant sold to the plaintiff a tract of land in gross, and not by the acre, with the common warranty to defend the premises unto the plaintiff, &c. In the deed of conveyance the tract was described by reference to the original grants, by metes and bounds, and as containing a certain number of acres. A plat annexed to the deed was referred to in it, in which the description, by metes and bounds and by the number of acres, was the same as in the deed. Held, 1. that there was no warranty of the number of acres mentioned in the deed, and that that part of it was mere description. 2. That there was a warranty of title to the whole tract as described by metes and bounds, although -.he plat annexed to the deed might cover more land than the grants referred to.</p>

<p>A return of non est inventus cannot be made on a ca. sa. so as to fix the liability of bail, before the return day of the ca. sa.</p> <p>The return day of final process, is the first day of the term succeeding its first lodgment with the sheriff</p> <p>After the liability of bail has been fixed by a return of non est inventus, they are allowed, ex gratia, the whole time till the return of process against them to surrender their principal.</p>

<p>In an action on an administration bond against the sureties, plaintiff, in his replication to the plea of performance, alleged a judgment recoveiedby A, against the. administratrix, on a debt of her intestate, and a devastavit. The rejoinder alleged that partition had been had in the Court of Equity, of the property of the intestate, before A’s judgment was recovered, and that the decree provided that the property allotted to the distributees should be subject in their hands to the liens of any judgments and executions which might be recovered against the administratrix, and should be subject to be sold by virtue thereof. That A. afterwards recovered his judgment and issued execution, and that the sheriff “under and by virtue of the execution, sold” some of the slaves allotted to the distributees, and that they were bid off for a sum more than sufficient to satisfy A’s execution. Held, on general demurrer,</p> <p>1. That A had a right to levy and sell the property allotted to the distributees.</p> <p>2. That under the allegation, “that under and by virtue of the execution, the sheriff sold” property, the law inferred a levy, and that the sheriff had received the proceeds of the sale, and therefore that A’s execution was satisfied.</p> <p>A levy under an execution is an implied satisfaction of the debt, to the value of the property levied on. Vide Mayson vs. Irby & Ray, in note.</p>

<p>Before Frost, J. at Edgefield, Spring Term, 1845.</p> <p>This was a motion, predicated on a rule, to compel the sheriff to pay over to the plaintiff, in satisfaction of his judgment and execution, certain moneys which the sheriff had raised by sale of the defendant’s property.</p> <p>It appeared that in November 1844, Charles Hall, Moore and Davis and others, issued writs of attachment against the defendant, Enoch Byne, under which the sheriff took the property, the proceeds of which were in question, out of the possession of W. H. Byne. That W. H. Byne immediately instituted proceedings, which resulted in an or-' der of the Court of Appeals, (see Moore and Davis vs. Byne and Must, ante, 98) that the sheriff restore to him the possession of the property. That the bonds which were given before the writs issued were signed in the names of the agents who executed them, and not in the names of the plaintiffs. That on the 21st. December, 1844, the jailer of Edgefield district, in pursuance of the order of the court of Appeals, delivered to L. T. Wigfall, for W. H. Byne, the property which had been taken out of Byne’s possession; that as soon as the property was delivered, John Mays, a deputy sheriff for said district, announced that he took possession of the said property, and did take possession, at the same time forbidding the negroes to leave the jail; that after the deputy had thus resumed the possession of the property, he was asked by N. L. Griffin, by what authority he had acted, and that he then drew from his pocket writs of attachment at the suits of Charles Hall, Moore and Davis and others, which had been issued that day, and handed copies to L. T. Wigfall, who accepted them for W. H. Byne. It further appeared that before the second writs were issued, the first had been marked discontinued by the plaintiffs in the clerk’s office, but the costs had not been paid; and that the condition of the bond which was given to the defendant before the issuing of the second writ in the case of Charles Hall, (to which the conditions of the bonds in the other cases conformed) was as follows.</p> <p>“Whereas, the above bound Benjamin C. Yancey, as agent aforesaid, is about to issue and sue out of the Court of Common Pleas for the district of Edgefield, a writ of attachment, to attach the moneys, goods, chattels, debts and books of account, as also the lands, leasehold estates, and chattels real, of the above named Enoch Byne, now said to be absent from and without the limits of the said State, for a certain debt due by the said Enoch Byne to the said Charles Hall:</p> <p>“Now, therefore, the condition of the above obligation is such, that if the above bound Benjamin C. Yancey, as agent aforesaid, his heirs, executors or administrators, shall and do well and truly pay or cause to be paid unto the above named Enoch Byne, his certain attorney, executors, administrators or assigns, all such damages, costs, and charges, as he the said Enoch, his heirs, executors or administrators, shall be put to or sustain by reason or in consequence of any illegal conduct in obtaining the writ of attachment about to be issued as aforefaid, then the above abligation to be void and of none effect; or else to remain in full force and virtue.”</p> <p>The plaintiff’s judgment was obtained some time after the second writs were issued and served.</p> <p>On behalf of Enoch Byne, and in support of the plaintiff’s claim to the funds in the sheriff’s hands, a motion was made to set aside the attachment writs which were issued on the 21st. December, on the grounds, 1. That the writs issued for the same causes in November had not been legally discontinued. 2., That the bonds on which the second writs issued, were void. The plaintiff further moved that the funds in the sheriff’s hands be paid to him, on the ground that the service of the writs on the 21st. December, was illegal and void.</p> <p>The presiding Judge overruled all the objections, and discharged the rule against the sheriff. The plaintiff and Enoch Byne appealed, and now renewed their motion that the sheriff be ordered to pay the money over to the plaintiff</p>

<p>Before Evans, J. at Edgefield, Fall Term, 1843.</p> <p>This was an action on the case, for erecting a mill and dam on an unnavigable stream running into the Savannah river, called Stephens’s creek, whereby the water in the channel of the creek, along the plaintiff’s land, was raised above its natural level. Stephens’s creek is a dull, muddy stream, with very little fall, and with banks which are some eight or ten feet above the ordinary level of the water. The plaintiff and defendants were both land owners on the creek. The defendants owned land on both sides of the creek, and the plaintiff had a large plantation on the east side, the creek being the boundary. In the summer and fall of 1841, the defendants erected a mill and dam on the stream, twelve hundred yards below the plaintiff’s land. According to the testimony, it was clear that the water in the channel of the creek, along the plaintiff’s land, was raised, by the dam, several inches above its natural level — some of the witnesses said, eight or ten inches, others, eighteen inches or two feet. Some of the counts in the declaration contained allegations of special damage, but they were not sustained by the testimony.</p> <p>The presiding judge charged the jury, that it was a sufficient cause of action, to prove that the water had been so obstructed by the dam, as to raise it higher along the plaintiff’s land than its natural elevation. That the plaintiff’s land extended to the middle of the stream, and to deepen the water upon it, or to raise it along the banks, was an interference with his legal dominion over his own property, for which an action would lie without proof of special damage.</p> <p>The jury found for the defendants, and the plaintiff appealed.</p> <p>cited 4 McC. 100; 1 Ch. Gen. Prac. 610; 2 Bl. Rep. 1233; 21 Eng. C. L. R. 47; 23 lb. 242 ; 27 lb. 489 ; 1 Saund. Rep. 346, b ; 3 Kent, 439, note a; Cro. Jac. 553 ; 1 Stra. 634; 6 Bac. Abr. 554; 1 McC. 545 ; 15 J. R. 213.</p> <p>cited 4 T. R. 71; 2 East, 154; 1 Smith’s Lead. Cases, 212; 10 J. R. 251 ; 17 lb. 306 ; 1 Cond. Ch. Rep. 95 ; 27 Eng. C. L. R. 18; 23 lb. 76 ; 1 B. & Aid. 258 ; 2 B.& C. 910 ; 9 Conn. Rep. 162; 10 lb. 213; 1 Root, 535; 4 Dali. 211; 7 Mass. 136; 17 lb. 289; 4 Mason, 397; 3 Kent, 321, 357, 441, 445; 2 Burr. 1353 ; 3 Com. 317 ; 3 Caine, 307 ; 1 Rawle, 27 ; 3 lb. 256 ; 6 Car. <fc P. 529 ; 2 Hill, 634, 470.</p>

Before Butler, J. at Richland, Fall Term, 1844. This was a rule on Jacob Cohen, the garnishee, to shew cause why he should not be ordered to pay into court, to satisfy the plaintiff’s judgment, certain sums of money, amounting in the aggregate to the sum of $5700, with interest thereon, which the plaintiff alleged had been found, by the verdict of a jury, to be in his possession, and to belong to Judah Barrett, the. absent debtor.

Before Butler, J. at Richland, Fall Term, 1844. This was an indictment for gaming. The time at which the offence was commited, as laid in the indictment, was within six months before the commencement of the prosecution.

Before O’Neall, J. at Newberry, July, Extra Term, 1844. This was an action of trespass to try title to a tract of land, represented on the plat used at the trial, by the letters F and 0, The land was first owned by James Lyles, who died intestate during the Revolution. F« left a widow named Lucy, (who afterwards married one Goree) and three daughters, Ruth, Elizabeth (who married Benjamin Maybin) and Nancy.

<p>Before Wa:rdi.aw, J. at Barnwell, Fall Term, 1844.</p> <p>These were actions against the sureties on prison bounds bonds given by L. P. Cook and D. L. Law, dated the 23d. of April, 1839.</p> <p>Law <fe Cook had been co-partners in trade. In the two cases first stated the bonds were given after arrests on bail writs, and in the two last cases, after arrests on writs of ca sa. On the 24th of April, Cook <fc Law filed joint and separate schedules, and made application for the benefit of the prison bounds Act. On the 4th of May, on behalf of the plaintiffs on the bail writs, a suggestion was filed containing charges (1,) of undue preferences; (2,) of previous fraudulent assignments; and (3,) that the schedule was false. The clerk of the court, as commissioner of special bail, ordered a jury to be summoned for the 17th of May, to meet at the Court House, and also gave the sheriff a written order to have the debtors before him at the Court House, on the day appointed.</p> <p>The Court House was 35 or 40 yards beyond the prison bounds, as they then existed, but it was the place where such trials before the Clerk had always taken place. On the 17th May, as the sheriff, with Cook and Law in his company, (who had been living since the bonds were given in a house within the bounds,) reached certain stakes which had been put down to mark the bounds, the defendant Addison, speaking, as he said, for himself and the other sureties, said to the sheriff Riley, that if the debtors were taken out of the bounds, he and the other sureties would stand no longer, but consider themselves discharged. The sheriff said he had authority and was obliged to do it, and Addison answered that he was done with the matter. The sheriff then went with the debtors to the Court House —they not appearing to have said any thing or to have been spoken to.</p> <p>At the Court House, nothing was said about place. The issue upon the suggestion was tried — witnesses were examined, and counsel on each side addressed the jury. The commissioner, at the direction of the debtors’s counsel, said nothing to the jury. The jury retired, and the debtors’s counsel went to his house, half a mile off. The jury brought in a verdict, finding, in substance, that the estates of the debtors were not more than sufficient to pay their judgment creditors ; that the debtors had made payments to some creditors, in’ preference to others, but not to the injury of the plaintiffs, and were entitled to their discharge.</p> <p>The verdict having been read, at the suggestion of the plaintiffs’s counsel, who maintained that the verdict should meet the specifications of the' suggestion, in the absence of the debtors’s counsel, without objection and without special instruction from the commissioner, the jury voluntarily retired, and returned with a second verdict, finding that 'they, the said debtors, had made payments prefering some creditors to others 5 that they had sold their assets and applied part to some creditors, and a part to their own use; and that the schedule was true. The debtors’s counsel was still absent. No motion for discharge was then made. The commissioner decided that both verdicts were nullities, and that the debtors must return to the bounds, saying that they might appeal, or that he would grant to them a new hearing and trial, at any time they would request. The debtors’s counsel on his return insisted upon the debtors being discharged, and directed them to go at large. The commissioner directed the sheriff to take the debtors back into the bounds; and they got back soon afterwards, either through the interference of the sheriff or of their own accord, where they stayed, Law some weeks, and Cook some months afterwards. They never made an assignment within the knowledge of the commissioner, and never received an order of discharge from him. After the trial, on the same day, the commissioner entered upon his notes of evidence, which accompanied the petition and suggestion, his decision, in which he stated, in substance, that the second retirement of the jury was without his directions ; that the attorney for the debtors had directed them to go at large, and he had directed the sheriff to take them back into the bounds —that he considered both verdicts as nothing, and had told the debtors they could appeal, or that a new trial might be had when they pleased.</p> <p>No proceedings of any kind were afterwards had- until the departure of the debtors and the commencement of these actions.</p> <p>The presiding Judge held that no verdict upon the suggestion could, of itself, have operated as a lawful discharge of the debtors, without an assignment or any order of the commissioner; that if the commissioner erred, the remedy was by appeal or mandamus, or other proper proceeding, and not by disregarding the decision of the officer appointed by the law to judge in the matter, or substituting his refusal to act, for the action which the law required of him ; and that the erroneous opinion of the commissioner, as to the effect of the verdicts, (if error there was,) and his neglect to order the debtors into close confinement, when no application was made for such order, did not release the sureties or discharge the debtors.</p> <p>He said that, although it was of no consequence, in the present case, to decide which verdict was the true verdict of the jury, he saw no objection to the jury’s retiring again voluntarily, of their own motion, or at the suggestion of another, before they had separated, and where no suspicion of unfairness could attach, for the purpose of making such alterations as they thought proper i a their finding.</p> <p>He held that the removal of the debtors to the Court House for trial, could not, in any possible view, have amounted to a discharge of the sureties. If the removal was the act of the sheriff, and compulsory, whether with or without lawful authority, being involuntary on the part of the debtors, it would not be a breach of their bond, and after the return of the debtors to the bounds, it gave no grounds of complaint to the sureties. If the removal was the act of the debtors themselves, against the remonstrance of their sureties, it might, itself, have been urged as a breach of the bond, but could be no discharge of the sureties, or excuse for a subsequent departure.</p> <p>The verdicts were for the plaintiffs ; debt, interest and costs of the cases in which the prison bounds bonds had been given.</p> <p>The ' defendants appealed, and now moved for a new trial, on the following grounds.</p> <p>1. Because his Honor- erred in charging the jury, that after the jury who tried the suggestion of fraud had rendered their verdict, the authority of the commissioner of special bail over the petitioners, Cook & Law, returned.</p> <p>2. Because his Honor should have charged the jury, that the finding of the jury, upon the suggestion of fraud, entitled the petitioners, Cook <fe Law, to their discharge, and was a discharge in law.</p> <p>3. Because his Honor erred in charging the jury, that the sheriff had a right to remove the petitioners, Cook and Law, from the bounds, against the express orders of the sureties.</p> <p>4. Because there was no proof whatever made, that the petitioners, Cook <fe Law, did not assign the property mentioned in the schedule.</p> <p>5. Because his Honor erred in charging the jury, that the jury who tried the suggestion of fraud, had a right, after the publication of the first verdict, to retire a second time, and in the absence of the attorney of the petitioners, Cook <fe Law, bring in another verdict.</p>

Before O’Neall, J. at Williamsburg, Fall Term, 1844. In the case first stated, the report of the presiding judge is as follows: “ This was an action of trespass to try titles. “ The plaintiff claimed and deduced title from Robert Ful-wood, (his father,) under a grant to him of eleven thous- and five hundred acres, dated 5th of Sept. 1791.

Before O’Neall, J. at Richland, Spring Term, 1844. This was an action on a promissory note, made jointly and severally to the plaintiff, by John Neuffer and Nathaniel Pope. The note was signed as follows : “John Neuffer. for Nath’l Pope, Sam’l Byers.” John Neuffer proved that the note was made by himself, and Samuel Byers, as agent of the defendant. Under the charge of the presiding judge, the jury found for the plaintiff.

Before, Richardson, J. at Beaufort, Bpring Term, 1844. The report of the presiding Judge is as follows. “John Daley, the elder, died intestate, in the year 1824, leaving a widow and one child. Administration of his estate was, by the Ordinary of Beaufort district, committed to his widow Sarah Daley, who, on the 24th of April, 1824, filed an inventory and appraisement of the estate, and continued in the possession and use of the property until 1838, when she died.

<p>Before Wardlaw, J. at Beaufort, Fall Term, 1844.</p> <p>This was a suggestion on appeal from the Ordinary, to try the validity of the will of Henry Taylor. The first question was as to the domicil of Henry Taylor at the time of his death. This question was submitted to the jury, who found that he was domiciled in South Carolina.</p> <p>Henry Taylor died on the 19th day of January, 1841. His will, which disposed of both real and personal property to a large amount, was dated on the 24th of January, 1840, and was attested and subscribed by three witnesses. John P. Williamson was one of those witnesses, and was named as one of the executors in the will. After the death of Henry Taylor, he qualified on the will, by a dedimus from the Ordinary of Beaufort District, and received commissions as executor, but had died before these proceedings were commenced. The only remaining question being as to the competency of John P. Williamson, as an attesting witness, the facts, after the question of domicil was decided, were turned into a special case for the judgment of the court. The presiding judge held that the case was within the Stat. 25 Geo. 2, c. 6, and directed judgment to be entered in favor of the will.</p> <p>The defendant, Mary-Caroline Taylor, appealed, on the ground:</p> <p>That the case is not within the Stat. of Geo. 2, even if that Stat. be of force in South Carolina ; and that John P. Williamson was not a competent attesting witness to the paper propounded as the will of Henry Taylor.</p> <p>The case was argued in Charleston, January 1845, in the Court of Appeals, by Petigru & Martin, for the appellant, and by De Trevitte & Colcock, for the appellee ; and in this court,, at this term, by Petigru & Preston for the appellant, and by the same counsel for the appellee.</p> <p>it was contended that the Stat 25 Geo. 2, c. 6, does not extend to wills of personal property, or embrace the office of executor. That an executor being entitled to commissions in this State, 3 Stat. 668, 5 lb. 112, and his office not being vacated by the Statute of Geo. 2, is interested in the will at the time of attestation; and being interested at that time, which is the period to which the competency relates, is incompetent as an attesting witness to a will of personal property under the Act of 1824, 6 Stat. 238. The following authorities were cited. Carth. 514 ; 2 Stra. 1253 ; 1 Ld. Ray. 508 ; 1 Ves. 503 ; 17 Yes. 508 ; 4 Bur. Ecc. L. 105 ; 3 Russ. 437; 2 Ecc. Rep. 498 ; 3 Sim. 40 ; Sug. on Powers, 326 ; 1 Burr. 414 ; 1 Day, 41, note ; 1 Bur. Ecc. L. 97 ; 5 B. & Aid. 589 ; 5 B. & C. 335; Gres. Eq. Ev. 259 ; Doiig. 139 ; 12 East, 250 ; 1 Mad. R. 155 ; 3 Atk. 95, 603 ; 1 Ball & B. 97, 45 ; Orph. Leg. 3 ; 3 Com. 36 ; Bac. Abr. Office ; 1 M‘C. Ch. 328 ; 1 Phillimove, 23 ; 3 lb. 334, 577 ; 1 Vic. c. 26 ; 3 Hill, 344 ; 4 M.[C. 24; 2 Bay, 448 ; 4 Des. 280 ; 2 Bail. 24; 3 P. Wms. 249, 181.</p> <p>it was contended that the Stat. 25 Geo. 2, c. 6, is of force in this State ; 2 Stat. 570 ; 4 lb. 90, 101; 7 lb. 191 ; 1 Des. 424; Dud. Eq. 185; 1 Story’s Com. 175; IDall. 67 ; Rob. on Frauds, 315, note; 1 Sp. 83 ; 1 Stat. 134, 144, 190 ; that although it,may not apply to wills entirely of personal property, it does apply to wills both of real and personal property ; and that in slich a will, if the executor takes an interest, it either vacates his ofh.ce entirely, or, at least, destroys his beneficial interest. It was further contended, that whether the Statute applies or not, the executor is competent on common law principles ; 1, because his interest, if he takes any under the will, is, at the time of attestation, too remote and contingent to affect his competency ; 2, because he, in fact, takes no interest at all under the xoill; his commissions being given to him, not by the will but by the law, as a compensation for his care and trouble. The following authorities were cited. 3 Yes. 35; 2 Bail. 432; 4 J. R. 311 ; 1 Johns. Ca. 163; 2 lb. 314 ; 1 Bl. R. 365 ; 2 Ecc. R. 529 ; 5 lb. 80 ; 2 M‘C. Ch. 474 ; 12 Mass. R. 368 ; 5 lb. 219 ; 6 Taunt. 220; 1 Mad. R. 87; 1 P. Wms. 287 ; 3 Stark. Ev. 1689 ; 1 Mod. 107; 4 Burr. 2254 ; 1 Root, 494.</p>