Volume 31 — South Carolina Law Reports

Before Butler, J. at Newberry, Fall Term, 1844. Assumpsit on a promissory note; defence, usury. The defendant Clarke was offered as a witness, under the Act, to prove the usury. He was objected to as incompetent, but his Honor overruled the objection.

Before Frost, J. at Abbeville, Fall Term, 1845. The report of his Honor the presiding Judge is as follows. “Sally Reid had brought two actions against Lipford &, Shoemaker. In one suit, verdict was rendered for the plaintiff, for $83,22, and execution entered in the sheriff’s office. The execution was assigned the 28th October, 1843. In the other suit, verdict was for, the defendants, and an appeal taken.

Before EvaNS, J. at Chambers, Columbia, May, 1845. Motion for leave to file an information against the defendant, to inquire by what authority he exercised the office of sheriff of Fairfield district. Held: but granted the mandamus on other grounds. Subsequently, another election was held in the same way, and the defendant again had the greatest number of votes.

<p>in debt on judgment, the nonjoinder of a defendant is not ground for a non-suit. It should be pleaded in abatement, (a)</p>

Before Frost, J. at Abbeville, Fall Term, 1845. The report of his Honor the presiding judge is as follows. “ In this case an order had been entered that the plaintiff should give security for costs, on or before the 1st August, 1845, or be non-suited. At the same term an order was entered giving the plaintiff leave to declare on or before the first day of the present term. “ The plaintiff filed his declaration the first of October, and posted a rule to plead.

Before Wardlaw, J. at Spartanburg, Spring Term, 1845. Writ in debt returnable to this term. The cause of action was a joint and several bail bond executed by the defendants and three others. On the first day of this term, and before an appearance was entered, the plaintiff moved for leave to discontinue as to the defendant Williams.

Before Richardson, J. at Kershaw, Fall Term, 1845. Trover for the conversion of negroes. The negroes in dispute were mortgaged by the defendant to the plaintiff on the 5th October, 1840, to secure the payment of a bond payable on the 1st January, 1846.

<p>In a civil action, a witness, if not interested, is competent to impeach his own conveyance, on the ground of fraud or forgery.</p>

Before Frost, J. at Spartanburg, Fall Term, 1845. This was an action of trover. On affidavits that the plaintiff’s residence was beyond the limits of the State, the defendant moved for an order requiring the plaintiff to give security for costs. The same motion had been made at the preceding term, and refused, but upon what ground did not appear.

Before Evans, J. at Darlington, July, extra Term, 1845. The report of his Honor the presiding Judge is as follows. “These cases were tried together; both depended on the same title. The plaintiff claimed under a recent grant to him, dated 7th January, 1842, for 39 1-2 acres. “The defendants were the tenants of Ervin & Crawford, ' who were the real defendants. There was some dispute about the location, but that is unnecessary to be noticed.

Before Butler, J. at Newberry, Spring Term, 1845. This was an action of debt, by sum. pro. on a prison bounds bond, executed by W. T. Dillen as principal, and the defendant as surety .# The r(ecital preceding the condition of the bond was as follows. “ Whereas, the said W. T. Dillen has been arrested by virtue of a writ of capias ad satisfaciendum, and is desirous of availing himself of the benefit of the Acts' of the General Assembly of the said State, to establish and…

<p>Before Richardson, J. at York, Spring Term, 1845.</p> <p>Trespass to try titles. The land in dispute was purchased by the plaintiff, as the property of the defendant, at sheriff’s sale. The defendant offered in evidence a deed, by which the land had been conveyed to a trustee, for the use of the defendant’s wife for life. The presiding Judge charged that the plaintiff was entitled to a verdict; that the sheriff’s deed operated as. an estoppel, and precluded the defendant from shewing title in another. The jury, however, found . for the defendant.</p>

<p>Before Butler, J. at Marion, Fall Term, 1845.</p> <p>The report of his Honor the presiding Judge is as follows.</p> <p>“ This was an action on the case, brought by one of several persons, against the defendant, for having them arrested under a warrant issued without the sanction of law, and with a knowledge that the defendant had no jurisdiction over the offence covered under the warrant. The history of the facts connected with the case, will present its merits. By a recital in the warrant, dated the 28th of October, 1841, it appears that one James Gaddy made oath that on the 19th of June, William Miller assaulted and beat him, and that the plaintiff aided and assisted him. The place where the beating took place, was not mentioned. The warrant was directed, as usual, to have the parties arrested, and brought before a justice, to be dealt with according to law. The sheriff of the district, to whom it was delivered, gave it to John D. Shaw, one of his deputies, to have it forthwith executed. Shaw immediately apprehended the persons, and had them brought before one McMillan, a justice; not being able, at the time, to find the present defendant. McMillan wrote a commitment, and the plaintiff, with his brother, were put in jail, where they remained for two or three days. They were brought before Judge Earle on a habeas corpus. The judge declined to interfere, but referred the matter to the defendant, with an intimation that it was competent for him to discharge the persons charged, if it should appear that their offence had been committed in North Carolina, as it was alleged. The defendant forthwith caused the plaintiff to be brought before him, and made an order for his discharge, with an indorsement something to this effect:</p> <p>“ ‘That the party having been brought before Judge Earle, on habeas corpus, and the matter being referred to him, he discharged the parties in the warrant, as it appeared that their offence had been committed in North Carolina.7</p> <p>“As facts that were conceded, it may be proper to state that Gaddy lives in Robeson County, a few hundred yards from the South Carolina line — and that the present plaintiff and his brother were citizens of South Carolina, residing in the neighborhood of Gaddy; that while in North Carolina, they had a fracas with Gaddy, the circumstances of which did not come out; and. that after they had their rencoun-ter, in which it was alleged that Gaddy was beaten, the other party returned to their homes, where they remained until their arrest. Immediately after their discharge, they commenced an action of trespass against the defendant, and recovered a verdict of fifty dollars ; which, however, was set aside, on the ground that the plaintiff had misconceived his remedy.* Since that decision this action was commenced. When it was called for trial, the defendant’s counsel moved to have it staid until the costs of the former suit were paid up. Although it appeared from the execution issued for the costs, that nulla bona had been returned by the sheriff, I refused the motion to stay the proceeding on this suit, holding that, prima facie, the costs were in fact due the officers of court; and, further, I thought that, from the fact that plaintiff had recovered a verdict for fifty dollars, he might have merits in his cause of action, notwithstanding he had mistaken his remedy. The further evidence on the part of the plaintiff was as follows.</p> <p>f< Barfield Moody said that he had been applied to as a justice, to issue a warrant against the ■ Millers, but that he declined to act, and sent word to Gaddy that he had no authority to act. This was before any warrant was issued by the defendant. After the suit was commenced against Grice, the witness said he met him in the street, and told him, rather playfully, not to mind the suit; that he might plead ignorance that the beating- had been committed in North Carolina. Grice seemed touched, and said he could not do that; for that Gaddy had stayed at his house, and had communicated with him fully on the subject. This witness said that Gaddy and Grice were intimate, and were distantly connected by marriage. In another conversation, plaintilf did not pretend that he was ignorant that the affray took place in North Carolina; and spoke of the Millers as bullies and trifling characters, that deserved little countenance — spoke of the beating of Gaddy in terms of indignation — and that the Millers ought not to escape punishment.</p> <p>“ The defendant offered no evidence; but, by his counsel, contended that he was not answerable in this action. 1st. Because he issued the warrant without knowing where the offence was committed. But the main ground taken was that the plaintiff, as a justice of the peace, had a right, and was bound, to have the plaintiff arrested as a fugitive offender from another State. I charged the jury to the following effect: — that if the defendant issued his warrant in ignorance of the fact as to where the offence was committed, and in the ordinary discharge of his duty as a justice, the verdict should be in his favor. But I said, if he knew the offence was committed in North Carolina, the case assumed a different character. For that, in any point of view, if a justice in one State undertakes to have arrested a fugitive offender from another, he should do so in good faith, and with the purpose to detain such offender to be dealt with according to the true intent and meaning of the Constitution of the United States. It was very clear to my mind that such was not the purpose of the defendant in this case. The warrant was in the ordinary mode of proceeding, to have the party arrested, and to be dealt with according to law, that is, the law of South Carolina. The explanatory indorsement that the parties charged had been discharged upon information that the offence had been committed in North Carolina, would show that there was no design to proceed under the Constitution of the United States. I said, however, that if such had been the design, I would bold the law to be that, when a fugitive offender from another State, having flagrantly committed treason or felony, he might be justifiably arrested under the warrant of a justice of a different State. But that in cases of mere misdemeanor, such as assaults and batteries, it was never contemplated by the Constitution of the United States, nor sanctioned by the usages under the common law, that they should fall within the scope of a justice’s authority derived from a foreign jurisdiction. In connection with this subject, I said that there might be other crimes besides felony and treason, for the commission of which the Executive of the State offended might make a demand of the culprit. Crimes of deep moral turpitude, or' those of a political complexion, might fall within this class. The security against oppressive and vexatious arrests would, in such cases, be found in the discretion of the Sovereign Authority that would be called in to exercise it. The mischief would be great indeed, if justices of the peace were to undertake to arrest every one coming from another State, that might have been guilty or be charged with any offence of a petty misdemeanor. There was another view in this case; the parties charged were not, strictly speaking, fugitives from justice ; they had returned home, and were arrested while they were relying on the protection of their own laws, and when they did not think themselves guilty of the offence charged; for they were willing to so into evidence to shew that they were not in fault in the rencounter with Gaddy. I said to the jury, that in the points of view which I had taken, the defendant was not justified in causing the plaintiff to be arrested. I said, however, if he proceeded from an honest mistake of what was the law on the subject, and with a bona fide design to have punished the parties charged as lawless culprits, there was much to excuse him. His motives should give character to his acts, and that, however illegal, they might not be altogether without foundation. I was inclined to think that the defendant was not actuated from malice ; but rather thought that vanity had more to do with his judgment. The jury found a verdict of thirteen dollars for the plain tiff.”</p> <p>The defendant appealed, and now moved for a nonsuit or new trial, on the grounds,</p> <p>1. Because a civil action will not lie, the act being judicial.</p> <p>2. Because there was no proof of malice or corrupt motive.</p> <p>3. Because the defendant had jurisdiction, under the Constitution of the United States, to cause the plaintiff to be arrested as a fugitive from justice.</p> <p>Failing in this, then he renewed his motion to stay proceedings until the costs of the first action be paid.</p> <p>contended that, the action cbuld not be maintained where there was mere error of judgment, and no proof of malice or corruption. 2 Bay, 1, 384; 2 N. & McC. 168.</p> <p>The defendant had a right to cause the plaintiff to be arrested under the 2d section of the 4th Article of the Constitution of the United States. The word “ crime,” in this section includes misdemeanor. 4 Bl. Com. 5; 4 Johns. Ch. R. 110 ; 1 Hill, 355 ; Act 1839, p 14 ; 1 Kent, 36 ; 3 Story, 575.</p> <p>On the motion to stay proceedings, he cited 6 T. R. 740; 8 T. R. 645; 4 East, 585; 2 T. R. 511; 2 Sel. Pr. 450; Bac. Abr. Costs.</p>

Before Evans, J. at Chester, July, Extra Term, 1845. Assumpsit for the price of a negro. The plaintiffs, as administrators of Joseph Carter, sold the negroes belonging to his estate at public auction. The defendant bid off a negro woman named Dorcas, for ninety-two or ninety-three dollars. For some reason not explained, possession was delivered of Dorcas, without a note being given according to the terms of the sale.

Before Wardlaw, J. at Abbeville, July, extra Term, 1845. Assumpsit by foreign attachment on a demand for painting the defendant’s house. The defendant had been one of three partners in a firm of D. B. & G. Cade & Co. Some time before the painting was done for which this action was brought, the firm was dissolved, the assets thereof divided, and an account for about $50, which the firm had against the plaintiff, allotted to the defendant.

Before Richardson, J. at Fairfield, Spring Term, 1845. This was a motion to correct the clerk’s taxation of costs. A separate suit had been commenced and judgment recovered against John Ford on the same note — a joint and several one — on which the judgment in this case was af-terwards obtained. Full costs were charged in the case against John Ford, and the question was whether full costs could also be taxed in this case.

Before Wardlaw, J. at Abbeville, July, extra Term, 1845. Appeal from the Ordinary. The report of his Honor the presiding Judge is as follows. “The intestate, Stephen Whitley, left neither wife, nor child, nor lineal descendant, nor lineal ancester, nor brother nor sister of the whole blood, nor children of such brother or sister, but left brothers of the half blood, and children of a predeceased brother of the half blood.

<p>Defendant, after issue joined, by leave, paid money into court. Plaintiff took the money out, and, without requiring the defendant to pay the costs up to the time the money was paid into court, proceeded for the balance of his demand. Verdict for the defendant. New trial ordered, unless defendant pay all costs up to the time he paid the money into court.</p> <p>General order regulating the practice in future cases where money shall be paid into court.</p>

<p>The indorser of a note past due, is not liable until payment has been demanded of the maker and notice of refusal given to the indorser.</p> <p>What is reasonable diligence in making demand and giving notice, where a note is past due when indorsed, must always be left as a question of fact to the jury.</p> <p>The above rules apply as well to notes payable to bearer, as to notes payable to order.</p>

<p>Before Wardlaw, J. at Laurens, Spring Term, 1845.</p> <p>This was an action of assumpsit on a note for $1,300, credited by $760, paid at various times. The defence was usury.</p> <p>The note was given for a negro sold by the plaintiff to the defendant.</p> <p>The plaintiff asked $1,000 for the negro. The defendant was willing to purchase at that price, but could not pay the cash. The plaintiff was willing to give any time that the defendant wanted, if he could have the price increased by the addition to the $1,000 of 10 per cent per annum, until payment should be made. — After consultation with several persons as to the best means of carrying out their bargain so as to steer clear of'usury, it was agreed that the defendant should fix the time, and the plaintiff the price. The defendant said he must have three years; the plaintiff said he must then have $300 more. Whereupon the bill of sale was drawn, expressing the consideration to be $1,000, and the note was drawn in the following words.</p> <p>“The years after date, I promise to pay H. Thompson, or bearer, thirteen hundred dollars, to be paid at such times as I please, and to deduct 10 per cent, per annum off of the amount paid' at each payment.</p> <p>Samuel Nesbit.</p> <p>11th November, 183,9.”</p> <p>The intention was that 10 per cent, per annum should be added to each payment from the time it was made, until the note became due, so that the defendant should have the right of paying as he pleased within the three years, and upon every payment should have interest calculated, in the same manner as it had been done on the $1,000.</p> <p>His Honor left it to the jury to decide whether there was a bona fide sale of the negro at $1,300 upon credit, with a stipulation of advantage to the defendant upon, payments anticipated, or whether there was forbearance of $1,000, upon usurious terms.</p> <p>The jury found for the plaintiff the balance of the $1,300, (after deducting the payments made, with interest thereon at 10 per cent, until the note became due,) and interest on that balance.</p> <p>The defendant appealed, and now moved for a new trial, pn the ground,</p> <p>Because the evidence clearly established a case of usury, and his Honor should have so charged the jury, and the verdict is contrary to law and the evidence.</p>

Before Butler, J. at Sumter, Spring Term, 1845. The report of his Honor the presiding Judge is as follows. “ This was an action of debt, on a judgment recovered against the defendant’s intestate-in 1830. The principal of the judgment was six hundred dollars. “The defence relied on was, that in 1838 the intestate paid to plaintiff eight hundred and fifty dollars, which he directed, at the time, should be applied, as far as it would go, to the satisfaction of the judgment.

Before Evans, J. at Marlborough, Fall Term, 1845. This was an action of trover, commenced in June, 1842, for a negro named Fortune. Fortune was formerly the property of one Bruerton. In 1836 Bruerton and wife were appointed, by the Court of Equity for Georgetown, guardians of Miss Small, the daughter of Mrs. Bruerton. Bellune was their surety, and to secure him against their default, Bruerton and wife mortgaged to him Fortune and other property.

Before Richardson, J. at York, Spring Term, 1845. This was an application for a writ of certiorari to correct a supposed error committed by the clerk of the court, acting as commissioner of special bail, in ordering the defendant, who was an applicant for the benefit of the prison bounds Act, to jail. From the return of the clerk, in answer to a rule, it appeared that the plaintiffs had sued the defendant in trespass quare clausum fregit.

<p>Before Wardlaw, J. at Abbeville, July, extra Term, 1845.</p> <p>This was an action of debt on an administration bond.</p> <p>The ordinary, by his decree, made 19th September, 1842, all parties being present, ascertained that there was in the hands of the administratrix a balance of $262,60, payable to the administrator de bonis non.</p> <p>This suit, in behalf of the administrator de bonis non, was commenced 20th September, 1842.</p> <p>On 22d September, 1842, another decree was made by the ordinary, in which it is recited that the parties having been cited and the defendants having failed to attend personally, the ordinary, by consent of all parties, had proceeded to open and amend his former decree, and by this second decree, an additional sum of $367,93 1-2 is ascertained to be due and payable in like manner as the sum before decreed.</p> <p>Upon this trial, the plaintiff insisted that he was entitled to have a verdict for the whole amount of both decrees. The defendant contended that a suit to recover the sum decreed, even by the first, should not have been brought until the 20 days (during which the right of appeal from the ordinary was allowed) had expired.</p> <p>The presiding Judge held that the right of appeal did not suspend the plaintiff’s right of action, but that the second decree, concerning matters before adjudged, was irregular, or if made regular by consent, shewed a breach of the condition of the bond subsequent to the commencement of the suit, for which damages could not now be recovered.</p> <p>He directed the verdict to be rendered for the amount of the first decree.</p> <p>Both parties appealed. The plaintiff now moved for a new trial, on the ground,</p> <p>That the presiding Judge erred in withholding from the jury the accounting by the administratrix, and decree of the ordinary against her, made on the 22d September, 1842, two days after the commencement of this suit, although it was admitted upon the trial that all the parties in interest consented that the ordinary might take that account, and the decree was not appealed from, and it was admitted that the sum then decreed was due in addition to the former decree.</p> <p>The defendant now moved for a non-suit, on the ground,</p> <p>That the action was commenced before the time allowed by law, and without the proper decree of the ordinary on which to found the action.</p>

Before O’Neall, J. at Fairfield, July, extra Term, 1845. This was an action of trespass for beating a slave. It was clearly proved that while the slave was pursuing the highway to a neighbour’s house, whither he had written leave to go from his master, the defendant met him, and struck him several severe blows over his head and arms with a hickory stick.

This was an action of debt, against the sureties on the official bond of B. M. Pearson, late commissioner in equity, tried before Butler, J. at Union. The jury, under the instructions of the presiding Judge, found a special verdict as follows, to wit. “We find the writing obligatory within declared upon, to be the deed of the defendants, and upon the condition of the bond being submitted to us, as upon a writ of en-quiry, we find for the plaintiff $226,40.

<p>The assignee of an execution may, in his own name, without styling himself assignee, bring an action against the sheriff for money collected on the execution.</p> <p>Where a sheriff after his term of office e'xpired, appointed an agent to attend to all the business relating to the office, with full authority to pay out, or to refuse to pay — Held, that a demand from such agent, for money collected, was a sufficient demand to charge the sheriff</p>

Before Wardlaw, J. at Laurens, Spring Term, 1845. Held: (but with much hesitation,) that money made by a sheriff for a plaintiff in execution becomes instantly subject to the lien of a fi. fa. against the plaintiff, and is applicable to it without any order of court; and of consequence, conceding that the plaintiff might, (if the assignment were void,) recover of the money in the…

Before Wardlaw, J. at Greenville, July, extra Term, 1845. This was an action of trover for a negro woman, Emily, and her three children. The question was as to the title. The negroes originally belonged to the plaintiff. In 1837 the defendant married the plaintiff’s daughter, and in 1838 Emily and her children went, in some way unexplained, into his possession. The plaintiff and defendant lived fourteen miles apart.

Before Wardlaw, J. at Spartanburg, Spring Term, 1845. Upon the trial of this sum. pro. the evidence shewed a deceitful misrepresentation, but not a warranty. No reference had been made to the process in the course of a tedious examination of many witnesses. In the argument, the defendant insisted that the plaintiff should fail, because the allegation in the process was of a warranty, and not of a deceit.

<p>Before Frost, J. at Pickens, Fall Term, 1845.</p> <p>This was a sum. pro. on a promissory note.</p> <p>The defendant claimed a discount, arising out of sealed articles of agreement between the plaintiff and defendant, whereby the defendant agreed to rent to the plaintiff a parcel of land, for which the plaintiff agreed to give thirty dollars, to be paid in splitting rails, repairing fences, clearing the brush from some land, and other agricultural labor. The presiding Judge construed the agreement to be a special contract for the performance of the work stipulated, in consideration of the occupation of the land by the plaintiff constituting a claim for damages entirely independent of, and unconnected with, the contract sued on; and ruled that it was not a subject for discount.</p>

Before Wardlaw, J. at Lancaster, Fall Term, 1845. Under some order which had been made at a previous term, in connection with an action of trespass to try titles, pending in Lancaster district, between John E. Ingram, plaintiff, and John W. Belk and Robert Belk, defendants, a rule to shew cause had been served upon John W. Belk and Robert Belk, and their return having been made, a motion, in behalf of John E. Ingram, was made, to set aside a judgment rendered in the county…

<p>Before Wardlaw, J. at Greenville, July, extra Term, 1845.</p> <p>Assumpsit on the written guaranties of two bonds. The plaintiff held two bonds of B. M. Pearson, both dated in January, 1838, payable to herself — one the 1st of January, 1839, and the other the 29th of March, 1839. About the 1st. of February, 1839, the defendant, the brother-in-law of B. M. Pearson, and I. L. Pearson, his brother, signed, in Charleston, writings on the bonds in the following words, viz:</p> <p>First bond. “ I guaranty the payment of the within bond.</p> <p>I. L. Pearson.</p> <p>R. Croft.”</p> <p>Second bond. “I guaranty tbe final payment of tbe within bond.</p> <p>I. L. Pearson.</p> <p>It. Croft.”</p> <p>This action was commenced in June, 1843. The declaration alleged, in various counts, the consideration of each guaranty to have been an agreement to forbear for a ■reasonable time — for one year, for two years, for three years, and for four years. The pleas were the general issue and the statute of limitations.</p> <p>The whole testimony was in writing. The substance of it, as reported by his Honor, the presiding Judge, to the court of appeals, was as follows.</p> <p>“ B. M. Pearson had borrowed money from the plaintiff, for which bonds were given, in Alatama, bearing interest at 8 per cent. The plaintiff, in Charleston, having heard some rumors of B. M. Pearson’s embarrassment, expressed her uneasiness to the defendant, who seemed indignant, and offered to guarantee for him to the amount of $100,000. In the course of the conversation between the parties, at the time the guaranties were signed, the plaintiff said that she did not wish to sue, and if she got the guaranties she would be satisfied ; defendant said that B. M. Pearson was making good crops, and would be good if he got time; she said all she wanted was interest and her debt secured ; but no time was stipulated, nor was there any special mention of forbearance. After the transaction the defendant wrote to B. M. Pearson, saying that out of regard for him he had volunteered to guarantee, as the plaintiff would else have been fretful, and that B. M. Pearson would have no difficulty if interest was paid, regularly. B. M. Pearson paid the interest on the bonds annually, until the 1st. of January, 1843. The residence of the plaintiff, before and at the time of the guaranties, was in South Carolina. The next winter she was in Alabama, and much with B. M. Pearson, and she has since been living with her daughter, Mrs. Pickens, in Alabama.”</p> <p>Under the instructions of his Honor, the jury found for the defendant. He was of opinion, and so charged, that no sufficient consideration for the guaranties had been shewn, and that, if there was a sufficient consideration, the right of action had been barred by the statute of limitations.</p> <p>The plaintiff appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.</p> <p>Under the construction, which has been adopted in this State, of the statute of frauds, the consideration of defendant’s guaranties may be shewn by parol. Fyler vs. Givens, 3 Hill, 48. That forbearance to sue is a sufficient consideration, will hardly be disputed. Is there proof of forbearance in this case 1 It is not the promise to forbear which is the consideration, but the actual forbearance. The stipulation to forbear need not be for a definite time; it is enough if it be to forbear indefinitely, followed by an actual forbearance for a reasonable time. Cro. Jac. 683; 4 Johns. R. 237; 1 Saund. R. 210.</p> <p>When did the statute of limitations begin to run ? Surely not until there had been forbearance for a reasonable time. This question should at least have been submitted to the jury.</p> <p>There was no proof of any promise to forbear at all. But supposing there was some understanding that there should be a forbearance, yet it is not sufficient to support the promise, 1st. because it was too indefinite, and 2d. because it was not binding on the plaintiff. If the promise to pay the debt was void when made, for want of consideration, the subsequent forbearance did not make it good. They cited Cro. Jac. 19; Cro. Car. 241; 1 Penn. R. 383; 3 Amer. Jur. 273; 4 Munf. 273; 2 Hen. and Munf. 124; 3 McC. 160; Pow. on Con. 174, 213; Ch. on Con. 27; 1 Saund. Pl. & Ev. 147; 1 Rich. 9; 2 N. & McC. 135.</p> <p>Is not the plaintiff barred by the statute of limitations'? 1 Mill, 168 ; 2 Ib. 441; 2 Bail. 544: 1 Bail. 620.</p>

<p>Where a new trial is granted, evidence, taken by commission and produced on the former trial, may be used on the new trial, whether it has, in the mean time, been kept by the clerk or the attorney.</p> <p>Where parties join in a commission to take the examination of witnesses, either party may use it on the trial. One party, therefore, cannot withdraw his cross interrogatories and the answers thereto, if the other party desires to use them.</p> <p>To support a motion for a new trial on the ground of misconduct of jurors, as a general rule, affidavits of such misconduct will not be heard, unless they were served on the jurors whose conduct is impeached, before the adjournment of the court at which the trial was had.</p> <p>A new trial on the ground of misconduct of jurors, in separating before they were agreed on their verdict, is discretionary with the court, and confined to cases of abuse, and is invariably refused where no injury has ensued. Per O’Neali, J.</p>

<p>The plaintiff’s uncle, having no children himself, oh his death bed was anxious to bestow some bounty on the plaintiff, at the time an infant one or two years old, and with that view requested his father, the defendant’s intestate, to take charge of a certain fund and pay it over to the plaintiff when he became of age. The father undertook the agency, and in due time collected the fund, and put it out at interest for the benefit of the plaintiff Until the time of his death, a period of more than eighteen years, he held or had control of the fund in right of the plaintiff, and repeatedly acknowledged the plaintiff’s right to it; and during that time no demand or claim was ever made on him for the fund by any distributee, creditor or representative of the deceased benefactor. Held, in an action of indebitatus as-sumpsit for money had and received for the use of the plaintiff by the defendant’s intestate, that the plaintiff was entitled to recover.</p>

Before Wab-dlaw, J. at Laurens, Spring Term, 1845. The report of his Honor the presiding Judge is as follows. “This action was brought upon two notes under seal.

Assumpsit for money had and received. Tried before Butlee., J. at Chester. In 1823, one John Crosby, the brother-in-law of the plaintiff, Mrs. Estes, who was then Miss Hughes, owed her one hundred and sixty-six dollars. In 1824, Miss Hughes gave the defendant, who was her step-father, and who acted as her agent, an order on Crosby for that sum of money. In 1825 or 1826, the plaintiffs were married.

<p>Before O’Neall, J. at Fairfield, July, extra Term, 1845.</p> <p>The report of his Honor, the presiding Judge, is as follows.</p> <p>“ This was an action of trespass for breaking and entering the plaintiff’s close, by throwing down his fences and passing through his field. The proof was clear and undisputed, that where a road, claimed by the defendant Zachariah, passed through the plaintiff’s plantation, his fences had been thrown down three several times by the defendants. They justified these several trespasses by pleading a private right of way through the plaintiff’s land, which he had obstructed by the fences thrown down.</p> <p>“ The land over which the way runs, and now owned by the plaintiff, was once the property of John Chappell, who died intestate, in 1835, leaving several minor heirs, some of whom are still minors. The land was sold for partition, and purchased by the plaintiff in 1838.</p> <p>“ William J. Augustine, under whom the defendant, Zachariah, claims, sold to Laban Chappell the land on which his settlement is, in 1819; in 1821, the said Laban Chappell sold or conveyed to Zachariah Trapp- — his possession, perhaps, commenced in 1820.</p> <p>“Augustine also owned the land of the plaintiff; the two tracts are separated by a tract which he conveyed to Christian Freshby, and which now belongs to some other person.</p> <p>“ While Augustine owned the land, he cut open the road for his own use, from his gin to the Columbia road; but there was no connection between the gin and the plaintiff’s place at that time, by any open way. Augus-line’s gin was in the centre of his plantation, and towards the plaintiff’s place was a large field inclosed and cultivated. Any passage was on foot and over the fence. In process of time, the road was used by the neighbors, by Augustine’s consent, to Freshby’s mill, and after several years, it was used by those owning the plaintiff’s place. In 1819, Laban Chappell rented to Freeman, and he hauled his crop along a part of the road claimed. In 1820, the present defendant, Zachariah, commenced the use of the road, but almost entirely as a bridle path. For there was a bad hill on the road, which prevented it from being used as a wagon way. As a wagon way, the use began in 1824 or 1825 ; and the land of the plaintiff, over which the road runs, was in woods, until 1889, when he cleared the field and shut up the road. He sent, at that time, a message to the defendant, by Mr. Bookman, to whom he said the defendant had a road through his field ; that he was weak handed, and he therefore proposed to cut a way round for Trapp, until Fall, when he would put up gates. This was assented to, and gates were put up, and continued for two or three years, when they were taken away, and the passage stopped by continuous fences. In 1887, the defendant’s overseer, by his orders, cut a log out of the road, and dug down a bank or two on the plaintiff’s land. The defendant has another road by which he can reach his settlement.</p> <p>“It seemed to me that the defendant had failed to make out any right of way by prescription, in several respects; 1st. from 1819 to 1835, the death of John Chappell, when the minority of his children would arrest the prescription, was only 16 years. But, 2d. allowing it to run on notwithstanding their minority, the use of the road as a wagon way began in 1824 or 1825, and the final obstruction was in 1843, so that, altogether, nineteen years had only elapsed. 3d. The fact that the plaintiff’s land was woodland, and no tortious act of occupation shewn, unless it was the working in 1837, when the land belonged to minors, prevented the accrual of the right by prescription. The only fact on which I thought the defendant could rest, was the message sent by the plaintiff by Bookman, and the subsequent erection of gates. This was strongly presented to the jury, and they were told, if this was not done by the plaintiff in ignorance of his right, or as a mere act of courtesy, that then it might be regarded as a recognition of the defendant’s right of way. The jury were told that a right of way, to be prescribed for, must be exclusive in one or more persons. That one man could not prescribe for a settlement road, on the ground that he, in common with others, used it. But he must shew a private use of the way for himself, or for himself, and others, and then the private right of way might attach. Notwithstanding my opinion of the facts as I have stated, yet the whole case was submitted to the jury, upon the length of time, the use of the way, and every other fact in the case.”</p> <p>The jury found for the plaintiff. The defendants appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.</p>

<p>Before Butler, J. at Lexington, Spring Term, 1844.</p> <p>This was an action of trespass quare clausum fregit. The plaintiif, under a grant in his own name for four hundred and twenty-nine acres, dated March, 1838, and under a quit claim from Willis Hartly, had been in the actual possession and cultivation of the field which was the subject of the trespass, for four years. In the latter part of February, or first of March, 1843, the defendant, Daniel duattlebum, who set up some claim to the land, had part of the field sowed in oats. This was done while there was some small quantity of cotton in the patch not picked out. Under his orders, the fences were moved, and the land, from that time to the trial, had been cultivated by the three defendants. Two of the defendants, Spradly and John duattle-bum, by the sanction of the other defendant, destroyed a small turnip patch, under circumstances and with expressions of contempt and derision, calculated to irritate and insult the feelings of the plaintiff.</p> <p>Under the plea of liberum tenementum, the defendant, Daniel Quattlebum, contended, that having a good and perfect title, he had a right to enter upon and cultivate the land. He introduced a copy grant to William Holsten for six hundred and fifty acres, dated 5th August, 1793. The grant, by its south-eastern boundary, embraced the land in dispute. Next, a deed from Russell Gunter, Abel Gunter, and Benjamin Gunter, dated 4th March, 1843, conveying to the defendant the land described in the above grant. These three Gunters were the children of Joshua Gunter, who had been dead about ton years, without a will, and leaving about ten children as his heirs at law. The defendant contended that, under his deed from three of the heirs, he was tenant, in common with the other heirs of Joshua, of all the land embraced in the Holsten grant, and that Joshua Gunter was seized of the land at his death, by virtue of a deed from William Holsten to him. Four or five of the sons of Joshua were sworn as witnesses— they said that their father had lived on part of the land on Chinquipen Creek, opposite Mill Creek, for eighteen or twenty years ; that he went in after one Doget had left the possession, which was a small place of a few acres. They said their father left the land in the possession of one of his sons, and moved to Edisto, where he died. One of these witnesses, Rivers Gunter, said that shortly after the grant was taken out by Holsten, it was understood that his father was to have a part, Ben Hartly a part, and Holsten the remainder — his father and Hartly settled on the land. This witness was asked the question, if he had ever seen a deed from Holsten to his father ? and before an objection could be made to the question, he said he had.</p> <p>Upon the question being raised, the presiding Judge required the defendant to proceed regularly, and by competent evidence, if it was his design to prove the existence and loss of the deed referred to by the witness.</p> <p>The witness was asked what was done with the papers of his father 1 and he said that they were delivered, with all his father’s personal property, to his youngest brother, who was not present. He was further asked, if his father’s deed had not been burnt ? and he replied no, not that he ever heard of. His Honor ruled that, under these circumstances, the witness could not speak of the existence of the deed — especially as no search had been made for the paper, and no effort had been made to procure the subscribing witnesses to it — if in fact there had ever been such a deed. If the evidence of the witness had been received, it would have gone to this extent — the existence and contents — boundaries and all, would have been established — by one of the heirs at law, by his saying he had seen a deed of a certain purport and title.</p> <p>Not having made out his title, the defendant, by way of extenuation, proved that this tract of land had been for many years in dispute, and that there were at this time many claimants to it; and it appeared that other suits were pending in court to try the title to it. Col. Fair represented one of these parties, and had in his possession the original grant to Holsten.</p> <p>In reply, the plaintiff undertook to prove a perfect title in himself, by virtue'of a statutory possession in one Barnet Livingston, under whom he claimed through sheriff’s sale.</p> <p>With a view of giving in evidence"the deed from sheriff Harmon to Willis Hartly, from whom plaintiff bought, a notice was served on defendant during the trial, to produce that deed.</p> <p>The defendant’s counsel objected to produce the deed, upon the ground that the notice was too short to allow their client to get the deed, if he had such an one.</p> <p>His Honor said that if the defendant would then swear that he had not the deed in court, he would not allow the plaintiff to go into secondary evidence to supply its place. This the defendant declined to do, and the plaintiff proceeded as follows.</p> <p>Willis Hartly said that after he purchased some land at sheriff’s sale, he sold a part of it to John Senturfit. It was called the Cargil tract of land, and had been sold as the property of .Barnet Livingston.</p> <p>John Senturfit, being sworn, said that he sold the part of the Cargil land, below what was called the Frederick line, to Daniel Quattlebum, and that he delivered to him the sheriff’s deed, which he got from Hartly, conveying part of the Cargil tract.</p> <p>Harmon, former sheriff, said that by his sale book, which he produced in court, it appeared that he had sold, under fi. fas. against Barnet Livingston, a tract of land called the Cargil tract, to Willis Hartly. The sale took place in December, 1833, upon a bid of twenty-six dollars. The witness could not recollect who were the subscribing witnesses to the deed.</p> <p>Two fi. fas. of Jones vs. Barnet Livingston, were introduced, with a levy indorsed on them of the Cargil tract of land.</p> <p>John Livingston, a son of B. Livingston, then was sworn, and said that before the sheriff’s sale his father was in possession and cultivation of the Cargil tract, and that it embraced the field which was the subject of the controversy; that the field must have been cleared about ten years before the sale, as he had ploughed in it when he was a small hoy.</p> <p>After both parties had closed, and before the commencement of the argument, the defendant moved to strike out his plea of liberum tenementum.</p> <p>His Honor refused to grant the motion, because the plaintiff having framed his pleadings in reference to this plea, was entitled to all the advantages which a decision on it might afford.</p> <p>His Honor held that the plaintiff was entitled to a verdict, and left it to the jury to say what should be its amount. Verdict for plaintiff.</p> <p>The defendants appealed, and now moved for a new trial, on the following grounds.</p> <p>1. Because his Honor erred in rejecting the testimony offered by the defendants, of the existence of a deed from William Holsten to Joshua Gunter, of the land granted to the former.</p> <p>2. Because his Honor erred in ruling, as a point of law, and charging the jury, that the possession of Joshua Gun-ter on the grant to Holsten, could not be extended beyond the actual possession.</p> <p>3. Because his Honor erred in ruling that the plaintiff was entitled to give parol evidence of a deed and its contents from the sheriff to Willis Hartly, upon its being traced to the possession of the defendant, without any notice having been given to the defendants to produce it, until after the defendants had closed their testimony.</p> <p>4. Because his Honor erred in overruling the motion of the defendants, after the evidence had closed, to withdraw their plea of liberum tenementum.</p>

Before Frost, J. at Laurens, Fall Term, 1845. Action of trover for a negro woman named Caroline. This slave, with five others, was claimed by the plaintiff, under a parol gift from his grandfather, Robert Robertson, made to him in 1825, when he was an infant.

<p>In questions of fraud great latitude is allowed in the adduction of evidence, and nothing should be excluded which does not clearly appear to the court to be irrelevant.</p> <p>Parol evidence of the contents of a deed in the possession of the opposite party is inadmissible without notice to produce the original. Where, however, the deed relates to collateral circumstances, and an inference is deducible from the existence and execution of the deed, and not from its contents, parol evidence is admissible without such notice.</p>

<p>Defendant purchased land which was subject to plaintiff’s right to a grist mill, which had been erected previous to defendant’s purchase. Defendant built another mill, which reduced the water so low in the pond that plaintiff’s mill frequently could not grind. Held, that plaintiff’s right to the use of the water was superior to that of the defendant, and that defendant was liable to the plaintiff in an action on the case for having diverted the water from his mill.</p>

Before Wardlaw, J. at Abbeville, Spring Term, 1845. Trover for an old negro man named Bill Brown. Suit commenced 30th September, 1843. Pleas, the general issue and statute of limitations. Bill Brown was a cake baker, and had a wife at defendant’s. In January, 1835, he had, at the sale of the estate of M. Abney, been purchased by B. Broadaway, at the price of $355, payable 1st January thereafter.

Before Frost, J. at Greenville, Fall Term, 1845. Trespass to try titles. The plaintiff and defendant both claimed through Lester Richards. The plaintiff derived title through a conveyance of the sheriff, dated March 4th. 1844, under a judgment of the plaintiff against Lester Richards, entered up the 17th October, 1836.

<p>Before Richardson, J. at York, Spring Term, 1845.</p> <p>This was an issue under the attachment Act, to try the right to fifteen bags of coffee. The coffee had been deposited by one G. W. Bradley with W. H. Steel, in whose possession it was attached on the 21st. September, 1844, by C. Lee, as the property of Bradley. W. Land, the plaintiff in the issue, claimed the coffee under an alleged purchase from Bradley, made prior to the attachment, but after the coffee had been deposited with Steel. The defendant contended that the sale to Land was fraudulent. A good many witnesses were introduced on both sides, and amongst others, W. H. Steel was examined for the defendant. The presiding Judge reported “ that the declarations of Bradley the next day after the coffee was left with this witness, and at other times, were offered by the defendant, and rejected as incompetent.” The jury found for the plaintiff, and the defendant appealed, on the ground,</p> <p>That his Honor excluded all the acts and declarations of G. W. Bradley, under whom the plaintiff claimed, except such as occurred at the time he deposited the coffee with W. H. Steel.</p>

<p>Before Wardlaw, J. at Greenville, Spring Term, 1845.</p> <p>This was an action of assumpsit, commenced on the 28th February, 1842, upon an unnegotiable note for $116, dated the 18th December, 1841, payable to George W. Smith, on the 1st. January, 1842, and assigned by Smith to the plaintiff, on the 19th December, 1841. The defence alleged, by way of discount, and as failure of consideration, was that this note was given in part payment of the price of a tract of land conveyed by Smith to the defendant, and that the defendant had been obliged to pay large sums to remove the liens of judgments against Smith, which 'bound the land. The plaintiff replied, that after payment of those sums, there was still due by the defendant of the price of the land more than enough to pay this note. There was a conveyance from Smith to the defendant, of ninety acres of land, with warranty, dated the 18th December, 1841, in which the consideration was expressed to be $700. It was admitted that the note in question was given in part payment for the land; and that another note for $350 was given at the same time, and upon the same consideration, which was also unnegotia-ble, and at the time of the trial was yet unpaid, in the hands of George Mattison, who became assignee after the 19th December, 1841. From Smith’s declarations, it seemed that he had also received in payment for the land, two horses, valued at $100, and two notes on one Brown-lee, each for $50. The defendant shewed that, in January, 1842, he paid to the sheriff, on judgments against Smith, which bound the land, $347-33. Smith ran away the next day after the conveyance of the land.</p> <p>The presiding Judge instructed the jury that, even if Smith was bound to remove the liens, no abatement of this note could be had, unless, by the payment of the judgments and other payments made towards the purchase money of the land, the defendant had paid so much of the purchase money that the balance unpaid was less than the amount of this note. Verdict for the whole amount of the note.</p> <p>The defendant appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.</p>

Before Wardlaw, J. at Fairfield, Fall Term, 1845. This was an action by the third indorser against the first indorser of a note. The note was for $5000, made the 9th March, 1842, by John J. Myers, payable after two hundred and fifty days, at the office of Robinsons & Caldwell, in Charleston, to the order of the defendant, and indorsed by the defendant, W. T. Woodward, the plaintiff, and Robinsons & Caldwell. The indorsements were all in blank.

Before Frost, J. at Pickens, Fall Term, 1845. This was a suggestion to try whether a judgment confessed by one J. B. Reed to the defendant was fraudulent.

<p>Before Wardlaw, J. at Chester, Fall Term, 1845.</p> <p>The defendant was indicted for maliciously breaking a waste wier of the Rocky Mount Canal, contrary to the Act of 1823, sec. 14, 6 Stat. 2171</p> <p>It appeared that he had taken six or seven large hewn stones from the waste wier, and used them in the erection of his mill.</p> <p>The use of the canal had been abandoned — the banks in many places had been cut, the timbers were rotten, all the iron which could be got at had been taken off by various persons in the neighborhood; and in the general system, of plunder which prevailed, -it seemed likely that all the hewn stones would be removed. The defendant was advised- by a neighbor to take such stones as he wanted, and if he should ever be called on, to pay for them; but he made no application to the Superintendent of Public Works, who occasionally visited the canal, and no person who took any thing there was ever known to pay for it.</p> <p>The presiding Judge held that any evil intent was malice; that the breaking, causa lucri, was not less contrary to the Act, than a breaking in wanton mischief; and that the matters alleged in the third ground for a new trial, if they honestly existed, might go in mitigation, but did not justify.</p> <p>The jury found the defendant guilty.</p> <p>The defendant appealed, and now moved the court in arrest of judgment, on the following grounds.</p> <p>1. Because the indictment does not allege who was intended to be injured by the acts done.</p> <p>2. Because the indictment does not allege under whose care the Rocky Mount Canal was, which was necessary; its by law it was under the care of commissioners for said canal — and the indictment should have charged that the acts done were intended to injure the said commissioners.</p> <p>3. Because the indictment does not allege that the forfeiture incurred was above twelve dollars — which was necessary to give the court jurisdiction.</p> <p>And failing in this, then he moved for a new trial, on the following grounds.</p> <p>1. Because the canal was not in use, and was, for all practical purposes, abandoned at the time of the alleged offence.</p> <p>2. Because the acts complained of were done without any malice, either moral or legal, but were done through ignorance or mistake, and without any intention to injure the State or any other person.</p> <p>3. Because his Honor should have charged the jury that if the defendant did the acts complained of, under the impression that the canal was virtually abandoned, or had taken the rock without any malice, and really then intended to pay the State for the same, then he was not guilty.</p> <p>4. Because the court charged the jury, that every unlawful act was, in law, regarded as being done with malice.</p>

<p>Although, it is convenient and usual to send cases in turn to the. juries, yet there is no law which renders it imperative on the Judge to do so, and he may, in his discretion, send a case to either jury.</p> <p>After jurors have been challenged, under the Act of 1841, and others drawn in their places, neither party can, under the Act, challenge the jurors so drawn.</p> <p>On the trial of a suggestion, on appeal from the Ordinary, to set up a lost or destroyed will, the declarations of the supposed testator, that he had no will, or that he had destroyed his will, are competent evidence for the defendants.</p> <p>The declarations of the plaintiffs in such suggestion, that they did not believe that the deceased left a will, are also competent evidence for the defendants.</p> <p>On the trial of such a suggestion, a subscribing witness to the will, who was named as one of its executors, but who had renounced his executorship, is a competent witness to prove the contents of the will, and, perhaps, to prove the execution.</p> <p>When a testator takes possession of his will and it cannot be found among his papers at his death, the law presumes that he destroyed it animo revocandi. This presumption, however, is one of fact merely, and may be rebutted by evidence shewing the existence of the will at his death.</p> <p>New trial ordered, on the ground of after discovered written evidence which might have affected a witness’ credit with the jury.</p>

Before Frost, J. at Spartanburgh, Fall Term, 1845. This was a motion to have an exoneretur entered on the bail bond taken in this case. The bond had been taken in pursuance of an order of the clerk of the court, that the defendant be held to bail. The motion was made on the ground that the affidavit, on which the order for bail was granted, was insufficient. The plaintiff was a citizen of Virginia, and the affidavit was made by his agent.

Before Richardson, J. at Richland, Fall Term, 1845. This was an indictment for bigamy. Held: in England, to be incestuous, upon the ground that it is against the law of God and sound morals ; that it would tend to endless confusion, and that the sanctity of private life would be polluted, and the proper freedom of intercourse in families would be destroyed, if such practices were not discountenanced in the strongest manner.”…

<p>If the capacity of a testator be doubtful, proof of instructions or reading over is not indispensable to the validity of his will, but it may be established on other evidence of knowledge and assent to the dispositions which it contains.</p> <p>Letters of the testator, written before the will was made, held to be competent evidence to shew the assent of the testator to the provisions of the will.</p> <p>Testator and his wife by letters promised A. B. that, after their death, she should succeed to what property they might leave. Testator made his will leaving his property to his wife. Shortly after the death of testator, the wife made her will leaving two thirds of the property to A. B. and then died. Held, in a contest ás to the validity of testator’s will, that the will of the wife was competent evidence for the executor, to shew the knowledge and assent of testator to the contents of his will.</p>

<p>Before EvANs, J. at Chester, July, extra Term, 1845.</p> <p>The report of the presiding Judge is as follows.</p> <p>“ This was an action on the official bond of - D. G. Ca-been, late sheriff of Chester, for the negligent escape of one Polly. The plaintiffs, Kelsey and Halstead, had a judgment, by confession, against Polly & Cassels, for about $1957, with interest from the 6th April, 1839, on $1,720 58. All their property had been sold under older cases. In the ca. sa. the plaintiffs are styled Charles Kelsey, George Kelsey and Job H. Halstead. In the declaration in this case, in assigning the breach of the bond, they are styled Charles Kelsey, George H. Kelsey and Job H. Halstead, otherwise called C. & G. H. Kelsey & Hal-stead. This is the variance mentioned in the defendant’s notice of appeal, for which a motion for a non-suit was refused. There were five pleas. 1. Performance. 2, Denial of escape. 3. No arrest. 4. The escape was with the consent of the plaintiffs’ counsel ; and 5. There was nothing due to the plaintiffs.</p> <p>“It appeared from Mr. McAlily’s evidence, that Polly & Cassels were wholly insolvent, and that most of their good debts had been assigned to other creditors. That on application to them, they assigned over all their remaining debts by schedule, to the plaintiffs, to be applied to pay their debt, if so much was collected. The notes amounted to 700 or 800 dollars, and the accounts to $1,900. By an arrangement between Kelsey and Cassels, the latter was to take the books and collect what he could or liquidate the debts. Cassels took some few notes and delivered them to McAlily, but what became of the balance no account was. given. Cassels was said to be dead, and McAlily thought the greater part of these book debts were worthless. V Enough was received from the notes by McAlily and Mr. Hemphill, to reduce the debt to about $1,456. Polly hav- ^ ing been arrested by other creditors, McAlily, as attorney for the plaintiffs, lodged a ca. sa. with the sheriff, as he . said, to entitle his clients to come in, should Polly make an assignment.</p> <p>“I thought there was’ no doubt Cabeen was liable for • the full amount due by Polly & Cassels, and interest due thereon. The only question was, what was due. I thought the delivery of the books of account, after the assignment, to Cassels, constituted him the plaintiffs’ agent, and they were responsible for his acts. If, therefore,' he received any thing, or the debts had been lost by his negligence, the plaintiffs were responsible, and such amounts should be credited on the judgment. These debts,-though not received in satisfaction, were taken as collateral security, and I thought it was at least as much, if not more, the duty of the plaintiffs to shew they never had been productive of any thing to them; and in the absence of any satisfactory proof on this point, the jury might allow some deduction of the debt, if there was any evidence which could enable them to say, that the debts unaccounted for, were of any value. The jury found a verdict for the plaintiffs, for such a sum as shewed they did allow something for the debts which had been delivered to Cassels to collect or liquidate.”</p> <p>The defendant appealed, and now renewed his motion for a nonsuit, on the ground that the records, produced in evidence, did not correspond with the allegations set out in the declaration.</p> <p>The plaintiffs also appealed, on the ground of error in the instructions of the presiding Judge, in relation to the liability of the plaintiffs to account for the books and accounts placed in their hands.</p>

Before Wardlaw, J. at Charleston, Spring Term, 1844. Held: at which sixty four seem to have attended.

Before O’Neall, J. at Charleston, Spring Term, 1845. In the case of Swindler against Hilliard & Brooks, the report of the presiding Judge is as follows: “ This was an action against the defendants, the owners of the steamer Kershaw, on the following receipt. “ Received, Columbia, Dec. 11th, 1843, from Calmes & Swindler, in good order, on board the steamer Kershaw, one hundred bales cotton, marked as in the margin, to be delivered in like good order and condition, unto Messrs.

<p>Before Frost, J. at Colleton, Spring Term, 1845.</p> <p>James Bowers'died in July, 1841, and'administration of his estate was granted to H. R. West in March. H. R. West died in May, 1842, and administration of his estate was granted to E. A. West, the appellant. John Clarke married the widow of James Bowers, and administration of his estate was granted to Clarke in August, 1842. The appellee, John Clarke, cited^ the appellant, E. A. West, in the Court of Ordinary, to account-'for H. R. West’s administration of the estate .of Bowers. In December, 1842, the Ordinary made a decree on the accounts, charging the estate of West with the sum of $1,329. In this sum was included $400, and interest, the amount of a note of W. W. Williams •& Co. payable to Bowers, which was charged against the estate of West, on the ground that by his negligence it had not been collected from the makers, who, in the spring of 1843, became insolvent. The issue presented to the jury on the pleadings was, whether the estate of West should be.charged with the amount of that note, by reason oí any negligence on his part while administrator, in prosecuting payment of the note, whereby it was lost to the estate of Bowers. All the parties’ had beeii cited before the Ordinary at the hearing when the decree was made, and appeared by their attorneys ; but no evidence was then offered to exonorate the estate'of West. The •appellant produced witnesses to prove that West had not been guilty of any negligence. It was objected that, on ■the trial of the issue in the Court of Common Pleas, no other testimony could be adduced than such as was offered in the Court of Ordinary. The objection was overruled, and witnesses were examined.</p> <p>The jury found a verdict for the appellant,- for the sum ■of the note and interest, with which the estate of West had been charged in the decree of the Ordinary.</p> <p>John Clarke appealed, and now moved for a new trial, on grounds which, as they were not considered by the Court of Appeals, it is deemed unnecessary to state.</p>

<p>The defendants, the City Council of Charleston, passed an illegal ordinance, imposing on non-residents a higher price for badges for laborers, and licenses for drays, employed within the city, than upon residents. The plaintiff, for some years, as a non-resident, paid the increased price, and then brought this action to recover back the excess so paid. Held, that the action could not be maintained.</p> <p>If a party pay money voluntarily, with a full knowledge of all the facts, he cannot afterwards recover it back, although he was not bound to pay the money, and, at the time he paid it, was ignorant of his rights.</p>

Before Frost, J. at Colleton, Spring Term, 1845. Sum. Pro. to recover the amount of a fine imposed for default of road duty. The default occurred in 1840, and the penalty was adjudged by the Board at a sitting held the 17th April, 1844. The process was issued the 17th October following. The statute of limitations was pleaded.

Before Frost, J. at Colleton, Spring Term, 1845. Summary Process on a Prison Bounds bond, against the defendant, who was surety of John H. Wilson, the principal obligor. The breach assigned was, that John H. Wilson had not filed his schedule within forty days after giving bond for the bounds. The bond was dated the 15th November, 1842, and the forty days expired the 24th December. Some time about the 15th December, J, H. Wilson was taken sick, and died in January following.

<p>A judgment irregularly obtained against an infant, may be set aside after he has attained full age, on motion and rule; and the fact of infancy must be tried per pais, and not by inspection.</p> <p>A judgment against an infant, who has not appeared by guardian, is erroneous.</p> <p>The court is not bound, after the infant has attained full age, to set aside such a judgment, on the mere fact that he was an infant when it was obtained, but may- consider lapse of time, the conduct of the defendant, and other circumstances, as having confirmed the judgment, or rendered the interference of the court improper; semble.</p> <p>The proper practice in such cases, seems to be, on affidavit of the defendant’s infancy, to order a rule to shew cause, on the return of which the judgment may be set aside, or an issue made up to try the fact of infancy, or such other material fact as the case may present.</p>

<p>Before Frost, J. at Colleton, Spring Term, 1845.</p> <p>Rules were taken out against the sheriff of Colleton district, to shew cause why he had not paid the executions of jd. fa in the cases stated. The return of the sheriff shewed that in December, 1844, he had received $507 15, for the defendant, Charles Watkins, under an execution, at his suit, against one Creighton ; and that he had paid to two executions, elder than those stated, all the fund, except a balance of $91 53, which, on the 17th February, 1845, he had paid to the attorney of Michael O’Conner, pursuant to an assignment of Charles Watkins to the said O’Connor of “ any moneys in the hands of sheriff Rumph now, or to come to his hands by virtue of the fi. fa. in Watkins vs. Creighton,” (fee. dated 18th November, 1844, and entered in respondent’s office the the 28th of the same month. The executions in the cases stated were lodged in the sheriff’s office before the assignment.</p> <p>The rule was made absolute, on the ground that the executions had a lien on the money in the hands of the sheriff, as soon as it was received, which could not be defeated by an assignment of the defendant.</p>

<p>Before Evans, J. at Charleston, Fall Term, 1845.</p> <p>This was an action of assumpsit on a promissory note for four hundred dollars, drawn by Lucretia Austin, the intestate of the defendant. Mr. and Mrs. McCants were offered as witnesses for the defendant. Mrs. McCants was a daughter of the intestate and one of her heirs at law. In order to render her and her husband competent, they executed, jointly, an instrument, under seal, whereby, “for •valuable consideration,” they transferred to the defendant the share of Mrs. McCants in her mother’s estate and released him from all accountability. His Honor held that the release was sufficient, and the witnesses were examined. The jury found for the defendant, and the plaintiff appealed, on the ground, inter alia, that Mr. and Mrs. McCants were incompetent witnesses.</p> <p>So far as the instrument is to be considered as the deed of the wife, it is void. It must then be regarded as the release of the husband alone. Now, a husband cannot assign his wife’s choses in an action except for valuable consideration, and it does not appear that there was any valuable consideration passing between the parties in this case ; indeed it is manifest, from the whole transaction, that the deed was only executed to render the witnesses competent, and sur.ely such a motive for the execution cannot be regarded as a valuable consideration. Does the seal imply a valuable consideration ? It. does so doubtless as against the husband, but as against the wife, who is no party to the deed, and is not estopped by the seal, the true consideration may be inquired into. He cited Clancy on M. W. 122 ; 1 Russ. C. R. 1; 1 Bail. 568; 4 Cru. Dig. 22 ; 2 Ves. 675.</p> <p>The release, on its face, expresses that it was given “for a valuable consideration.” These are the words of the instrument, and they are at least sufficient to throw the onus of shewing that there was no consideration, upon the party alleging that there was none. But it is unnecessary to look beyond the seal. That of itself implies a consideration sufficient to support the in* strument. 4 McC. 324. That a husband may assign his wife’s vested interest is not questioned. 3 Russ. C. R. 65; Clan, on M. W. 220 ; 1 Rich. Eq. 76.</p>

Before Frost, J. at Colleton, Spring Term, 1845. This was an action on a promissory note, payable to Thomas Pye, or bearer. The defendant proved that the plaintiff had said that he. had no interest in the note, but that it belonged to B. G. O’Brien. His Honor ruled , that it was not necessary that the plaintiff suing on a negotiable instrument, should have an interest in it, and that the real holder might sue in the name of another. Verdict for the plaintiff.

<p>It is essential to a writ that it have the seal of the court and he signed by the clerk.</p> <p>Defendant’s attorney accepted service of a paper, issued by plaintiff’s attorneys, which purported to be a writ in assumpsit, but which neither had the seal of the court nor was signed by the clerk. The plaintiff having failed to prosecute the matter further, held, that there was no sufficient commencement of an action on which judgment of non pros, could be entered.</p>

<p>Where a defendant has been arrested and held to bail, and judgment recovered against him, he cannot, in an action on the judgment, be again held to bail.</p> <p>The above rule applies, even though the bail bond in the original action was void; semble.</p>

<p>The Bank, being the holder of a note indorsed by the defendant, who resided in Charleston district, about nine or ten miles from the city, deposited a notice of dishonor, directed to the defendant at Charleston, in the city post office, which was the ner rest to the defendant, and that from which he usually received his letters. Held, that the service of the notice was sufficient.</p> <p>As a general rule, where the parties reside in the same city or town, notice of dishonor must be personal, or by leaving it at the dwelling house or place of business of the party, if absent; but if the parties reside at different places, though in the same district or county, notice sent by mail, or deposited in the post office, may be sufficient.</p>

Before Evans, J. at Charleston, Fall Term, 1845. The report of his Honor is as follows: “ The defendants occupied a house belonging to the plaintiffs’ testator and others, at the annual rent of $450. The lease commenced on the 1st of May. At the expiration of the first year, the defendants continued to hold, and for several years paid the accruing rent, from time to time, at the same rates.

<p>Befoee O’Neall, J. at Charleston, Spring Term, 1845.</p> <p>This was an action of covenant, brought by the plaintiff on articles of partnership under seal, whereby the parties covenanted to carry on business for several years, as partners, unless dissolved by “mutual consent.” The defendant, alleging that the partnership had been dissolved by mutual consent, entered into a new business ; and the plaintiff brought this action for the recovery of damages.</p> <p>The defendant proposed, and was allowed to prove, that after the burning of the “ Exchange,” their place of business in Columbia, he and the plaintiff agreed to come to a settlement and dissolve. He proved that the plaintiff had again and again said they had by mutual consent dissolved their partnership. This testimony was objected to by the plaintiff, who insisted, that as the partnership was by deed, it could only be dissolved in the same way. This, his Honor thought, was generally true — but inasmuch as the deed of partnership here provided for the termination of the partnership by “ mutual consent,” he thought that this, like any other fact limiting the duration of the partnership, such as the expiration of the term, might be proved by any usually competent parol proof.</p> <p>The plaintiff submitted to a non-suit, with leave to move the Court of Appeals to set it aside, on the grounds—</p> <p>1st. Because a partnership formed by articles under seal, cannot be dissolved by any agreement not under seal.</p> <p>2d. Because, even where such articles provide, as in this case, for a dissolution by “ mutual consent,” such mutual consent must be under seal.</p> <p>3d. Because his Honor erred in suffering the defendant to give evidence of a dissolution by parol consent.</p> <p>The evidence might have been competent in mitigation of damages, but it was received and considered by the presiding Judge, as a bar to the whole action. This, under the operation of the maxim, unum quodque eodem modo quo colligatum est dissolvitur, (Noy Max. 11) he thought was wrong. 5 Rep. 26 ; 6 Rep. 44. It is true, that where the deed itself contains a condition, the performance of that condition may be shewn by parol ,• but this is not a condition ; and he submitted that a dissolution by mutual consent, could only be shewn by an instrument under seal. 1 Taunt. 428; 7 Price, 604.</p> <p>The question is whether this being an action for -damages, parol proof could be produced of a dissolution by mutual consent. The rule as to dissolving a contract by an instrument of as high a nature as the original, does not apply. 1st. Because the contract itself provides for its termination by mutual consent, which, like any other fact in pais, can be proved by parol. 2d. The rule of law itself is, that where the action is on the covenant, but to recover damages only, there parol evidence is sufficient. Blake’s case, 6 Rep. 44. The same rule was sustained in Burden vs. Skinner, 3 Day, 126. In an action on a covenant, under the general issue, parol proof of the consent of the covenantee to the non-performance of the covenant, may be given in evidence. If this is good law, it is conclusive, and it is in accordance with the rule laid down in Coke, as “ the action arises immediately out of the covenant, for damages only.” Bac. Abr. Tit. Accord and Satisfaction.</p>

Before Evans, J. at Charleston, Fall Term, 1845. This was an action of slander. There had been an exciting election for Intendant of Moultrieville, at which the plaintiff was the unsuccessful candidate. In the evening, after the- election was over, the defendant was returning to Charleston in a packet boat, in company with the witnesses hereinafter named, and others. Truesdell and Kinloch were of those who voted for Poppenheim.

<p>The bill of particulars filed with the declaration is no part of the count. A variance, therefore, between the proof and the bill of particulars, is not a ground for non-suit.</p>

<p>The defendant, on the 6th December, 1841, agreed, in writing, to purchase from the plaintiff his “farm called the cottage portion of Magnolia Farm, for the sum of three thousand dollars, to he paid as follows, viz : fifteen hundred dollars to paid on the 1st of January, 1842, one thousand dollars in twelve months after that date, and five hundred dollars in eighteen months after the first day of January, 1842, each of the two latter sums to draw interest from the above stated periods, or date of the bond.” At the time the agreement was made the premises were under mortgage, and in May, 1842, they were sold under a decree of foreclosure pronounced against the plaintiff in January, 1842. Held, that the plaintiff, in order to entitle himself to sue and recover on the contract, should have removed the incumbrance and tendered to the defendant titles to the farm. Held further, that it was inadmissible to shew by parol that the defendant knew of the mortgage, and that the agreement was entered into with a view to raise money to pay it off</p> <p>Where a party contracts to purchase land, unless he stipulates for less, good and sufficient titles must be delivered, or tendered, to him, before he can be compelled to pay the purchase monejc</p>

<p>In the City Court of Charleston, July Term, 1845.</p>

<p>In the City Court of Charleston, October Term, 1845.</p> <p>The facts of this case were essentially the same as those in the case of Henken against Gramann. His Honor ruled the evidence to be inadmissble, and the plaintiff appealed.</p>

<p>An. action may be maintained by a corporation against an original subscriber, on a promise made before the Act of incorporation, if it be shewn that he recognised it as binding after the incorporation.</p> <p>There was an association of gentlemen, of whom C D was one, to build a church. C D became owner of one of the pews, and at a meeting of the association, a resolution, seconded by C D, was adopted, by which the pews were assessed at certain sums. Some months after the resolution was adopted the association was incorporated. For several years • C D paid the assessments on his pew, and then died. After his death, his executors refused to pay some of the assessments. Held, that C D, by his acts, had recognised the resolution as one of the by-laws of the corporation, and, therefore, that he was bound to pay the assessments.</p> <p>The question reserved whether the executors were liable for assessments which accrued after the death of C D.</p>

<p>Although it is the custom, in. Charleston, for factors shipping goods to their customers in the country, to pay the wharfage, yet, if it he not paid by the factor, it may be recovered by the wharfinger from the owner of the goods.</p>

Before EvaNS, J. at Charleston, Fall Term, 1845. The plaintiff, as sheriff, sold a house and lot, as the property of John White. At the sale, the defendant became the purchaser at $1000, but afterwards refused to pay the money. Titles were tendered to him for a house and lot in Meeting steet,, bounded north by John White’s land, and south by the Theatre.

Before Fhost, J. at Beaufort, Spring Term, 1845. The report of the presiding Judge is as follows. “ This was an action of debt against the defendant, ad-ministratrix of Samuel B. Webb, who was one of the sureties of James B. Sealy, guardian of Henry Kicklighter, on his bond to the Commissioner in Equity of Beaufort district, conditioned for the faithful discharge of his duty as guardian. The bond was dated the 13th of February, 1824. “ The defendant pleaded performance.

<p>Before O’Neall, J. at Charleston, Spring Term, 1845.</p> <p>The report of his Honor the presiding Judge is as follows :</p> <p>“ This was an action of debt on several bonds of the defendant. The defence stated to me, and as I noted it at the time, was ‘failure of consideration.’</p> <p>“ H. A. DeSaussure, Esq., was sworn, and proved the execution of the bonds. On his cross-examination, he stated the transaction out of which the bonds arose. He said various notes of B. P. Colburn & Co., were placed in his hands for collection by the plaintiff; that after various negotiations, the firm confessed judgement to the plaintiff, 12th June, 1841, for $51,123 33-100, debt, and $18 75-100, costs. After some time, it was found that this judgment would swallow up all the assets; and then B. P. Colburn and Isaac Mordecai began to contest the matter with the plaintiff. Mr. Matthews, also, came into the controversy, and after some time a compromise was effected by Mr. DeSaossure and M.r. Memminger, and Mr. Matthews became the purchaser of the judgment, for, perhaps, eleven or twelve thousand dollars, and gave several bonds of two thousand four hundred dollars each. The judgment was regularly assigned to him. The judgment is unreversed and in full force. The proof proposed to be given, to make out the defence, was, that the judgment confessed by B. P. Colburn & Co. was fraudulent, inasmuch as it was alleged that James Smith Colburn, the plaintiff, was one of the firm. I thought, and so ruled, that the assignee of the judgment could not question its bona fides ; and generally, that a judgment could not be impugned by the parties for fraud, in this collateral way. 1 further thought, that if the allegation was true that James S. Colburn was one of the firm of B. P. Colburn & Co., the assignee of the judgment, if he had any remedy on that account, must have it in another form.”</p> <p>The jury, under the instructions of the presiding Judge, found for the plaintiff.</p> <p>The defendant appealed, accompanying his notice of appeal with a statement of what he had proposed to prove. The statement and ground of appeal are as follows :</p> <p>The defence was, that defendant, being indorser on the notes of B. P. Colburn & Co. to a large amount, purchased a judgment held by James S. Colburn against the said firm, (which had stopped payment,) and which judgment would swallow up all their assets. For the purchase of this judgment, the bonds in question were given. The plea was fraud. That James S. Colburn, being secretly a partner of the said firm, procured himself to be made a judgment creditor, under false pretences; and by aid of this judgment so procured, imposed upon an innocent in-dorser, and induced him to buy the said judgment to save himself as indorser, when, in fact, the plaintiff, as partner, was liable on the very notes which the said indorser had to take up; thus procuring from him bonds without any equivalent consideration. His Honor, the presiding Judge, refused to permit the defendant to go into the proof of the facts, inasmuch as they would impeach the validity of a judgment of this Court. Defendant appeals from the decision of the judge, and asks a new trial, on the following ground:</p> <p>Because his Honor erred in deciding that the evidence, under the circumstances, was inadmissible.</p>

Before Evans, J. at Charleston, Fall Term, 1845. These were actions of debt on judgments entered up against the intestate, R. Y. Jones, on the 29th January, 1842, which was the last day of the term. In the case of O. Mills & Co. a verdict had been rendered on the 15th January, 1842. The case of Miller and Leckie had been referred to the clerk on the 8th January, 1842, who, on the same day, had assessed the plaintiffs’ damages.

Before O’Neall, J. at Colleton., Fall Term, 1845. This was an action of slander, for words spoken. The plaintiff, under the Act of Assembly of 1841, challenged a juror. The defendant’s counsel objected to the allowance of the challenge, on the ground that the Act was unconstitutional, and supported his objection by a well sustained argument from the Constitution of the United States, and of this State.

Before Frost, J. at Beaufort, Spring Term, 1845. This was an action of trespass, for taking the plaintiff’s goods. The plaintiff’s title and the trespass were proved. The defendant, under the general issue, offered to prove that he had taken the goods as a distress for rent. This evidence was rejected by the court, on the ground that the defendant could only avail himself of it under a special plea. Yerdict for the plaintiff.

<p>Defendant, in consideration of a negro, assigned to the plaintiff a bond and mortgage of two negroes, and in the assignment guaranteed, the title. The title of the mortgagor to the negroes was bad, and the defendant knew it was bad before the assignment. Held, that the plaintiff could not maintain an action on the common money counts without an offer to return the bond and mortgage, even if money, instead of a negro, had been paid for them ; and that if he sought to recover damages for a deceitful representation not noticed in the written contract, he should have sued in case.</p>

Before Evans, J. at Georgetown and Horry. Spring Term, 1845. These cases, which were in every respect similar, were rules against the Commissioners of Public Buildings for the districts of Georgetown and Horry.

Before O’Neall, J. at Charleston, Spring Term, 1845. This was an indictment for forgery. The first count was for forging a ten dollar bill of the Bank of the State of South Carolina ; the second for uttering and publishing a forged ten dollar bill of the same Bank, knowing it to be forged. The bill was a genuine one ¿ollar bill, raised to ten dollars, of the Bank of the State of South Carolina, signed by the officers of the Branch Bank at Camden.

Tried in the City Court of Charleston, October Term, 1845. This was an action of assumpsit, for money had and received, money paid, (fee.

<p>Before O’Neall, J. at Charleston, Spring Term, 1845.</p> <p>The report of the presiding Judge is as follows :</p> <p>“ This was an action of assumpsit, on a note made by A. Friday, indorsed by the defendant and John Lee. It was conceded that there had been a demand of payment on the maker, and notice to the indorsers in due time. Since the suit was commenced, and after the declaration was filed, and probably after issue joined, the note was lost. The signatures of the makers and indorsers were proved by a witness, who had seen the original note before it was lost. It appeared that a judgment had been recovered against Lee on this note, which had been paid by his son, on the express understanding that this suit should be continued for his benefit.</p> <p>“ The jury were told that, generally speaking, the rule was, that an action at law would not lie on a lost note. To this, however, there were many exceptions, arising out of this principle ; that where the party could not be put in jeopardy of having the note again to pay, the action at law might be maintained. Here the note was lost after it was dishonored, and that might possibly be enough to sustain the suit. But certainly, the rule did not apply to a case where the note was in existence when the suit was brought. If the action was well brought, no subsequent misfortune, without fault on the part of the plaintiff, could defeat it.</p> <p>“ The case of Noonan vs. Gray, 1 Bail. 437, was that on which the defendant relied to defeat the action, by 'the payment made by Lee’s son. I have always regarded that case as shaken, if not virtually overruled, by Alston vs. Alston, 2 Hill, 362, and that will (if I recollect it rightly) abundantly appear, by referring to the original opinion, (a) Be that, however, as it may, I did not regard the case of Noonan vs. Gray, as standing in the way. The understanding that this case should be continued for the benefit of Lee, Jr. shewed, that although Enston was satisfied, that yet Lee, Jr. was using his name to collect the money which was legally due to him. A note is not discharged by a payment even by an indorser ; it merely discharges his liability, and authorizes him to strike out his indorsement, and pursue those indorsers who preceded him, as well as the maker. As to the alleged incompetency of the proof to shew that the payment was made by John Lee, Jr., the son of John Lee, Sr., I have made no note of anything, except that Mr. Phillips, the plaintiff’s attorney, proved that “ the note was paid by John Lee-’s son; this suit was to be continued for the benefit of John Lee, Jr.” How his knowledge was obtained, I do not remember.”</p> <p>The defendant appealed, and now moved for a new trial, on the following grounds.</p> <p>1. Because it was proved that the plaintiff in this action had received full payment of the note sued upon.</p> <p>2. That the evidence proved a payment of the judgment recovered on the same note against John Lee, another indorser, and that such payment was made hy John Lee, such defendant.</p> <p>3. Because the evidence given to shew payment of the-said judgment by John Lee, Jr., was incompetent.</p> <p>4. Because the note sued upon in this case was lost, and was. a negotiable note, and was indorsed, and could not be recovered by a suit at law.</p>

Tried in the City Court of Charleston, July Term, 1845. The report of the Recorder is as follows. “ This was an action of covenant on a lease, under seal, in which the plaintiffs claimed a balance of one hundred .and fifty dollars, as due for rent. The execution of the lease was proved by the subscribing witness, James Me-Kean, who was sworn on the part of the plaintiffs.

<p>Before Fb.ost, J. at Charleston, Fall Term, 1844.</p> <p>The report of his Honor is as follows:</p> <p>“This was a motion for the appointment of commission" ers, under the charter of the company, to make a valuation of so much of the lands of H. W. Oppenheim -and others, lying between Hudson and John streets, on Charleston neck, as may be required by the company whereon to locate their rail road, or to alter the plan thereof; and which the said company may be authorized to take, by virtue of the several Acts of the Legislature concerning the same. No petition was filed, nor any verified statement shewing the court any facts or circumstances in explanation or support of the application for the order ; nor was any information given to the court of the objects, plans or designs of the company, in making the application ; nor of the necessity for the lands proposed to be taken for any of the purposes authorized by the charter, farther than is set forth in a part of the order moved for by the applicants, which has been quoted at the commencement of the report,</p> <p>“ H. W. Oppenheim appeared, and shewed for cause against the grant of the order, that under the charter of the South Carolina Canal and Rail Road Company, that company’s road terminated at Line-street. That the power to extend the road from Line-street to the boundary of the city, was granted by the Act of 1832, amending the charter ; and that this latter Act gives the company no power to appropriate private property to the use of the company, without the owner’s consent; nor is this power conferred by the charter of the Louisville, Cincinnati and Charleston Rail Road Company; nor by the Act of 1843, which changes the corporate name and style of the last named company, to that of the South Carolina Rail Road Company, and grants it authority to purchase the interest of the stockholders in the former company, and merge its charter in that of the South Carolina Rail Road Company.</p> <p>“And further, that the company, in 1838, completed a road from Line-street to Hudson-street, the boundary of the city, passing by the lands of the respondent, now proposed to be taken by the company, which road exists and is practicable; that the said land is therefore not necessary for the construction of a road between Line-street and Charleston, nor for the continuation of the road into the city ; which, under the Act of 1832, may be continued across Hudson-street, and along the streets of the city; that the respondent’s land is claimed by the said company only for the purpose of making a change in the road already constructed, and capable of answering all the ends of public convenience ; and that any alterations which the company may desire to make for their greater convenience or profit, should be made in compliance with the general law of the land, by procuring the consent of the persons whose property may be affected.</p> <p>“The charter of the South Carolina Canal and Rail Road Company, (all the rights, privileges and property of which, under the Act of 1843, have become vested in the South-Carol ina Rail Road Company,) gives power and capacity to have, hold, &c., any lands, <fec., which they may find necessary for the site of the road or branches, or to vary the plans thereof, of such breadth as they may see fit, and to purchase any lands contiguous to the road, which they may find necessary for the procuring of necessary and proper materials for constructing, repairing and guarding the road ; and also for the erecting of store houses, (fee. (fee. The Act further provides, that whenever lands may be “ required for the purposes aforesaid,” and the same cannot he purchased from the owners, they “ may be taken at a valuation to be made by commissioners, to be appointed by the Court of Common Pleas for that purpose, and the land, when valued by the commissioners, shall be vested in the company in fee simple, so soon as the valuation shall be paid or tendered.” An appeal is given from the valuation of the commissioners to the court, which may be re-assessed by a jury; but the appeal does not suspend the exercise by the company of the right of property vested in them, by the payment or tender of the valuation by the commissioners. By an amendment of the charter, passed in 1832, the company is authorized to extend their road from the “ present termination” at Line-street to “ the boundary of the city,” “ through any public streets, roads or squares of the said neck ;” and the City Council is authorized to permit the extension of the road through the public streets and lands of the city, on certain conditions annexed to the power to extend the road from Line-street to the city.</p> <p>“ The charter of the Louisville, Cincinnati and Charleston Rail Road Company empowers the company to have and to hold lands that may be necessary for the road and its branches, for store-houses, (fee., in terms nearly as comprehensive as are used in the charter of the South Carolina Canal and Rail Road Company. But respecting lands which maybe taken by the company at a valuation, restricts the privileges of the company to such lands as may be required for the purpose of constructing their road.</p> <p>“Under the powers conferred on the South Carolina Rail Road Company by these Acts, they insist that it is not necessary to shew to the court any facts in .support of their motion for the appointment of commissioners to appraise the lands of the respondent and others ; and assume that the power vested in the company to appropriate the property of private individuals for the use of the road is unlimited in time, indefinite in extent, and subject to no restraint on the will and discretion of the company.</p> <p>“ The right of property is so deeply and universally impressed on the minds of men, even the most barbarous, that it seems a law of nature. An instinctive sense of justice recognizes the right of ownership, to be enjoyed in possession unalienable without the consent of the proprietor. The preservation of this right is the principal object of government, the most powerful motive for men to unite in political society, and the strongest incentive to industry and enterprise. Accordingly, all the writers on “ natural law,” concur that it should inviolably be respected and maintained. The only exception to the absolute and exclusive dominion of the owner over his property, is allowed in favor of the sovereign power, for the purposes of public utility or necessity. The right of disposing of ihe property of individuals for the public good, is an attribute of sovereignty alone, and is called the eminent domain. These principles of natural law are recognised in the fundamental constitution of all civilized nations, and in no system do they prevail in more vigor than in the common law and political institutions of this country. In the early history of England it was affirmed as the ancient constitution of that kingdom, (not a newly asserted right.,) that no man should be disseized of his freehold, but by the judgment of his peers, or the law of the land. By the law of the land, judicial decisions have well settled, is meant the common law and established customs, and not an act of legislative power. For it is clear that the legislative power cannot by enactment take away the freehold of one and give it to another. That principle of the British constitution was deemed so important and inestimable, that it was incorporated in the declaration of rights in the constitution of this State.</p> <p>“ It is admitted that public roads are among the works of public necessity for which an individual may be deprived of his property by the eminent power of the State, and that this power may be imparted to others, as to municipal corporations and other public functionaries, who may be charged with the execution of such works. It must also be conceded that the road which the South Carolina Rail Road Company was organized to construct, is a public road ; and that the power of the State may be conferred on an incorporated association of individuals, and has been in fact conferred on the said company.</p> <p>“ But though corporations may be the depositories of the eminent power of the State, they are plainly not unexceptionable. The delegation of the power to municipal corporations or public functionaries, such as the commissioners of the roads, in whom that power has always been vested since the settlement of this State, is guarded from abuse by the improbability, if not impossibility, of a combination of interests hostile to the public convenience or the rights of citizens. And by the elective appointment of these functionaries by those over whom the power is to be exercised— affording security against abuse, as well by the manner of the appointment as by an immediate responsibility to the subject of the power. But the commission of the power to a corporation engaged in a work of public convenience, as an enterprise of profit to the stockholders, is attended with no security against abuse, but on the contrary is subject to the strong temptations of interest. The construction of the terms of the grant to such an agent must be made with the cautious and critical allowance conceded to a grant of new and extraordinary powers, unknown to the common law.</p> <p>“The first and most obvious consideration in determining the powers granted to the relators is, what was it competent to the Legislature to confer ? The authority of the eminent domain to take private property for public purposes, is limited to so much as is necessary. When the power is conferred on public functionaries, who can have no interest to claim or take more than is necessary, it is a fair presumption that their discretion is the measure of the power they may exercise. But if the agent has an interest beyond the execution of the work, to grant a power at his discretion, is to grant it for the execution of the work, not only in a manner necessary for the public convenience, but also cbnducive to the profits of the agent. It cannot be pretended that the public convenience and the interest of the company must always be concurrent. It is very obvious that the construction of the road and changes of the plans, direction and arrangements, may be important to the interests of the company when not necessary to the public convenience, and may indeed be determined by the interest of the company against the public interest. To construe the grant of the power to the company as limited only by their discretion, is to grant them power to take private property for the increase of their profits. Such power ■ the Legislature cannot confer on a corporation any more than on a natural person.</p> <p>“ But it may be argued, the obligation to pay the assessed value is a sufficient check against the exercise of the power for any purpose not necessary for the road ; and that the assessment of a jury, made from á regard to all the circumstances of the case, so controls the discretion of the company, as to limit the power practically to its legitimate objects. The argument admits that the company may take private property for its own emolument, if it is willing and able to pay an extravagant price. It may very well happen, that the contingent and speculative advantages of possessing particular property, may induce the company to hazard the verdict of a jury. The difficulty of obtaining all the land the company may desire to purchase, is the disagreement about the price between them and the owners. The utmost a jury can be expected to give is the sum demanded by the owner. If only required to increase the profits of the company, a proprietor may ask what price he pleases for his property, without any imputation. The restraint of an assessment by a jury, does not prevent the company from claiming and taking what is not necessary for the public convenience; but when the company needs lands for any other purpose, permits them to take them without the consent of the owner, with the chance of having to pay less than he demanded. A proprietor, so situated as to share in the profits of the business of the road, has an indefeasible right to possess and enjoy that advantage, and to permit the company to engross and monopolize every source of profit incident to the road, by taking and appropriating to itself all lucrative situations, would be oppressive and unconstitutional. The practical operation of the power claimed for the company, to take private property at their discretion, may be shewn in a striking manner if the road is continued to the wharves of the city. Wharves and store-houses may be very important to the interest of the company, by enabling them to engross the profits accruing to such property at the terminus of the road. They are not necessary to the construction or public convenience in the use of the road. Has the company the right to take such property on paying the assessed value 1 The hazard of an extravagant appraisement may not deter them. If such a power is in terms conferred, it is greater than the Legislature could grant. Every presumption and reasonable construction must be against such a conclusion. If these cannot countervail the expressed intention of the Legislature, the supreme law must be invoked to protect the citizen.</p> <p>“ The charter of each company authorized it to take only such property as may be necessary for the purposes mentioned ; but the company is not left to decide what is necessary. The Act provides, that when any lands are required by the company, they may be taken at a valuation to be made by commissioners appointed by the Court of Common Pleas. The effect of the order appointing commissioners to value, is that of a judgment vesting the land in the company. For it is the duty of the commissioners to make the valuation, and when the appraised value is paid, or (if refused) tendered to the owner, the land is vested, in fee simple, immediately in the company; and though an appeal is allowed to the Court of Common Pleas, and a jury may be required to re-assess the value, the right of property in the company is not impaired, nor its operations suspended by such appeal. It would seem, if provision for the appointment of disinterested commissioners was alone contemplated, the appointment might have been made, as is usually done in cases of arbitration, by each party appointing an equal number, with power to call in an umpire if they should not agree, with the same right of appeal permitted to the parties. But the agency of the court could not have been designed to .be merely ministerial. In referring the parties to that tribunal, some discretion must have been intended to be exercised in the granting or refusal of the order. It can only be exercised in determining how far the land required by the company, may be necessary. If the question depends on facts, a jury may be called to aid the court in the decision. There may be objections of inconvenience and delay in this proceeding, but it is better to submit to them, than to violate the constitutional and natural rights of a citizen. The power to take - the property, without the consent of the owner, is a very extraordinary power to grant to a corporation. They have the entire interest in the profits arising from the. use of the road as a public convenience, besides those derived from arrangements designed exclusively for their profit. If the public advantage can be made to appear, the court and jury would not refuse to confirm the exercise of that power. If it cannot be shewn, the company has no right to take the property. The inconvenience that may 'be suggested, will be principally experienced' in the prevention of the company from taking property for their ■■ exclusive and peculiar advantage, or when the public necessity is doubtful. In both which cases, law and right are concerned that it should not be taken.</p> <p>“This construction of the Act involves no practical difficulty in the exercise of the power of the State, by corporate companies, to execute works of great public utility, which may be best accomplished by the capital and enterprise of individuals. Such companies - may be authorized to purchase and hold lands required for the interest and convenience of the company, and to take such lands at a valuation, as commissioners appointed by and in behalf of the State, may judge necessary to the public convenience, in the construction of a road. All the legitimate powers necessary for .the encouragement of public undertakings by private persons, may be accomplished by such provision. The company not having the power to take the pro» perty of citizens at their own discretion, and the necessity for taking the lands of the respondent, for any of the pur» poses mentioned in the charter, not having been shewn to the court — the motion is refused.</p> <p>The South Carolina Rail Road Company appealed from the foregoing order, and now moved to reverse it, on the following grounds.</p> <p>1. That by virtue of the several Acts of the Legislature concerning the South Carolina Canal and Rail Road Company, the Louisville, Cincinnati and Charleston Rail Road Company, and the South Carolina Rail Road Company, the said South Carolina Rail Road Company are author-ised to take so much of the land of any person or persons as they may find necessary whereon to locate their Rail Road, or to alter the plan thereof; that this power is a delegation to the company of the authority of the State to take the lands of individuals for the public use, in the location or alteration of the Rail Road, and makes the company judges, in the first instance, of the necessity to take the land; and the only agency which the Court of Common Pleas, has in the matter, is to appoint commissioners to value the land, when it appears that it cannot be purchased from the owners, for want of agreement as to the price, or for any other cause ; and it is not necessary,'as preliminary to the appointment of commissioners, that the court should be satisfied that the necesssity exists.</p> <p>2. That the company, in the exercise of their power to take private property, without the consent of the owners, are subject, like all other inferior delegations of public authority, to the supervisory power of the Court of General Sessions and Common Pleas, and may be restrained by prohibition from abusing or exceeding their authority. And when the necessity to take the land is denied, the question may be tried and determined upon the proceedings in prohibition.</p>

<p>The assignee of a bond is not compelled, by the Act of 1798, to sue thereon in his own name ; he may sue in the name of the assignor.</p> <p>Where a Commissioner in Equity sues on a bond payable to himself or his predecessor, he is not bound to shew air order of the court of equity authorizing him to sue thereon.</p>

<p>Where a prisoner’s discharge under the insolvent debtors’ or prison bounds Act is opposed, and a suggestion containing several specifications filed, the jury should find a verdict on each specification ; and where the specifications charge offences of different kinds, and the verdict is guilty generally, a new trial will, it seems, be granted.</p> <p>Note. The reporter regrets that this case is so imperfectly reported ; without copies of the suggestion and schedule, which he was unable to procure before he was compelled to send the case to the printer, some other questions involved in the case would not be intelligible, and even the question, in reference to which alone the case is reported, could doubtless be much better understood if the suggestion or some statement of its contents had preceded the opinion of the court. R.</p>

<p>The owners of a boat are not liable for the loss of a slave employed as one of the boat hands, unless the loss was occasioned by. the wilful misconduct or culpable negligence of the captain.</p> <p>Where the captain of a boat uses a slave as a boat hand, without the consent of his master, the owners of the boat will be liable for his loss, even though it happened without any misconduct or negligence on the part of the captain.</p> <p>The captain of a boat is the agent of the owners, and they are responsible for his acts.</p>

<p>In an action against the surety, on an administration bond, the defendant will not be allowed to shew that the decree in equity against his principal was fraudulently obtained, and therefore void as against him: Semble.</p> <p>In such an action the surety will not be allowed to shew that the distributee, for whose benefit the action is brought, had appropriated to himself a portion of the intestate’s property, to one third of which the administratrix, the principal of the defendant, was entitled, and claim a deduction from the amount of the decree, for the share of the administratrix in the property thus appropriated.</p>

<p>An express declaration, by the vendor of slaves, that he warrants nothing but the title, precludes any implied warranty of soundness.</p> <p>An auctioneer’s duty is to sell 5 he has no authority to rescind the sale, even before it is completed by the payment of the purchase money.</p> <p>At the common law, and independently of the vendue Act of 1785, 4 Stat. 672, the owner of goods sold at auction may, if the purchaser fails to comply with the terms of the sale, resell the goods and sue for damages for the breach of the contract; and as he does not proceed under the Act he is not required to follow its provision by giving seven days notice of the re-sale. The notice of re sale should, however, be reasonable.</p> <p>The Act gives a right of action to the vendue master, but none to the owner. The owner’s right of action is at the common law.</p> <p>Where the action is by the owner, the re-sale does not furnish conclusive evidence of the damages, as it does where the action is by the vendue master under the Act.</p> <p>Where the terms of an auction sale of negroes were “one half cash, the balance in twelve months, and that until the papers were perfected, neither cash nor interest would be required.” Held, that this was notice to the purchaser that some time might he required to complete the sale by the delivery of titles, and that a tender of the negroes and titles twenty three days after the sale was within a reasonable time.</p> <p>The vendor of property is only hound to furnish a good title to the property. He is not bound to tender his own title if the right of property is in another.</p>

<p>The defendants became the indorsers of J S, owner of the Brig Hayne, and for the purpose of protecting their indorsements, J S transferred to them, by surrendering the old register and taking out a new one in their names, the legal title to the Hayne. J S, for some time afterwards, used and navigated the Hayne for his own exclusive benefit, and, during the time that he so used her, supplies were furnished by the plaintiff for her use, for which this action was brought. Held that, if the supplies were furnished on the credit of J S alone, the defendants were not liable; and that, in order to explain the nature of J S’s possession, and shew why it was that he was using the Hayne as his own, it was competent to shew by parol, that the transfer of the title was in the nature of a mortgage to secure the defendants as the indorsers of J S.</p> <p>In general, the owner is liable for all supplies furnished his ship, because, in most cases, she is navigated for his benefit, and this in general is to be presumed, unless the contrary appear. But where it is clearly proved that the legal owner has no interest in her freights, that she is navigated under the entire control, and for the exclusive benefit of, another person, such person pro hac vice is the owner, and if upon his individual credit the supplies are furnished, then the owner is not liable. In such case the question is, to whom was the credit given ?</p>

<p>Before O’Ñeall, J. at Charleston, Spring Term, 1845.</p> <p>Trespass to try title. Jared Neilson was in his lifetime seized of a tract of land on Santee river, containing, by the original surveys, 750 acres, which had been conveyed to him by John Maxwell, by deed dated 12th June, 1761. This body of land consisted of four tracts, which had been separately granted to Mary Betteson, George Beard, and James Beard. Neilson’s ferry is situated on the tract granted to Mary Betteson ; that tract contains 500 acres — but the ferry is on a peninsula, separated from the rest of the tract by the Eutaw creek, containing upwards of seventy acres. Jared Neilson was also seized of a- tract lying between Betteson’s tract and lands of William Ransom Davis, which had been granted to Benjamin Farrar for 300 acres, and by Farrar conveyed to him in 1766. In the year 1774, a judgment ivas entered up against him by George Dickinson, in the court of Common Pleas at Charleston, and in 1786 that judgment was revived by a sci. fa. against William Ransom Davis and Samuel Neilson, executors of Jared Neilson. In February, 1794, James Kennedy, then sheriff of Charleston district, advertised as follows :</p> <p>“ Former ¡Sheriff’s Sales.</p> <p>“ On the first Monday and Tuesday, being the third and fourth days of March next, will be sold,</p> <p>“ The dwelling house, land and buildings, belonging to Neilson’s ferry, on Santee, and that part of the ferry comprehended in Charleston district, having been seized in execution, as part of the estate of J. Neilson — conditions and particulars will be declared at the sale.”</p> <p>By deed, dated the 4th March, 1794, James Kennedy, sheriff, in consideration of £332 15s. 6d., conveyed to Theodore Gourdin as follows : “All that plantation or tract of land, situate, lying and being in the district of Charleston, containing seventy acres by computation, be the same more or less, butting and bounding to the North on Santee river, Westwardly on lands of William Ransom Davis, James Sinkler, and on the line dividing Orangeburg and Charleston districts ; South on lands of James Sinkler, and comprehending all the lands in Charleston district belonging to the estate of Jared Neilson, and known as the Southern part of Neilson’s ferry.” This deed was never recorded till after the trial, though proved in 1803.</p> <p>Theodore Gourdin took possession of Neilson’s ferry, and as early as 12th March, 1798, made a lease to James Richbourg, of the ferry and six flats, and the cleared land, with privilege of cutting timber for the use of the ferry, at a rent of £140 per annum, for three years ; subject to be determined, if, in the meantime, a rival ferry at Daw-shee should be set up. Richbourg’s tenancy did not expire with his lease — but he continued in possession till 1806. In that year,'Jared Neilson, who claimed under the first named Jared Neilson, entered upon and took and held possession of the ferry for some time. A compromise of some sort took place between him and Gourdin, who paid him 1,200 dollars, and he soon after went off to the Western country. Richbourg then resumed possession, and continued the tenant of Gourdin. On the 8th October, 1810, he conveyed to Gourdin the land in dispute, as well as all the land that he held as Gourdin’s tenant. On the same day, Gourdin leased to him the ferry tract, and two hundred acres adjoining, for six years. The peninsula between Eutaw creek and Santee river is described as the ferry tract, containing 50 acres, more or less. The 200 acres are described as bounded North by Santee river, West by lands of John N. Davis, East by Eutaw creek, and South by a line parallel with Santee river. These descriptions include a part of the Farrar tract; and Rich-bourg enclosed and cultivated a small part of the land within the Farrar lines. On the 9th October, 1816, J. N. Davis and T. Lehre took a lease of the same two tracts for ten years. Under that lease, the defendant occupied the ferry,' and cultivated, occasionally, part of the land included in the Farrar tract; but the land generally cultivated by him is on the tract conveyed to Neilson by Maxwell. The line between the several tracts of Farrar and Maxwell, has never been defined, nor was the line run between Davis and Gourdin till 1823 ; but in that year Gourdin had a plat of all Neilson’s land made from a survey of Thomas Gaillard, from which it would appear that the Maxwell and Farrar tracts contain 993 acres. In 1826 he died, leaving nine children, o,f whom plaintiff is one ; and plaintiff shewed a decree for the settlement of the estate of his father, purporting to vest this land in him.</p> <p>The defendant claims under Jared Neilson, as one of his heirs. His father, William Ransom Davis, owned the tract adjoining Farrar’s on the West. He made bricks on the Farrar tract after 1794, and claimed the land against Gourdin. He died in 1799. Defendant entered into possession in 1808, and cultivated and enclosed part of the Farrar tract more than thirty years ago, and has always been in possession of it. The great controversy in the case was, whether the deed of sheriff Kennedy conveys all the 993 acres, with the exception of about twenty acres lying in Orangeburg district, or only the peninsula, containing 70 or 80 acres, between the Eutaw creek and the river, on which Neilson’s ferry is situated, or, at most, the Maxwell tract.</p> <p>The report of the presiding Judge states that he charged the jury as follows :</p> <p>“ The jury were instructed that, it seemed to me, the description in the sheriff’s deed was sufficient to cover the locus in quo; but although I gave this as my opinion and advice, yet they were referred to all the facts which made for or against that construction. It certainly was not intended to take that question from them. But I thought, independent of the sheriff’s deed, the plaintiff had made out two other very sufficient titles. 1st. Under Rich-bourg’s deed, and the parol purchase from Jared Neilson, Possession, in fact, of part of the Farrar grant, had been proved for more than five years in Gourdin, by his tenant, Riehbourg, before the 1st of January, 1816. 2d. Davis’ entry and possession as Gourdin’s tenant, from 1816 to ’23 or ’24, of part of the locus in quo, under such a description in the lease as carried the whole Farrar grant, was an admission of the title of Gourdin, sufficient for the plaintiff to stand upon, at least Until the defendant shewed a paramount title, which he had failed to do.</p> <p>“ I thought, and so instructed the jury, that as the heirs and devisees of Theodore Gourdin were of full age, and parties to the suit in equity, that the decree operated as their conveyance, and vested the land in the plaintiff.”</p> <p>The jury found for the plaintiff the land and $5 damages.</p> <p>The defendant appealed, and now moved for a new trial, on the following; grounds.</p> <p>1st. For misdirection of the Judge; because his Honor .charged the jury that sheriff Kennedy’s deed passed all the land of Jared Neilson included in Charleston district; and that the deed of Riehbourg passed the land, if Kennedy’s deed did not; and that plaintiff had shewn a good title to the whole land conveyed by Kennedy and Rich-bourg; in which particulars, it is respectfully submitted that his Honor’s charge was erroneous.</p> <p>And 2dly. For error in fact, because the verdict should have been in favor of defendant,</p>

<p>Tried in the City Court of Charleston, July Term, 1845.</p> <p>The report of his Honor the Recorder is as follows :</p> <p>“ This was a summary process case. The only question raised was one of jurisdiction. There were various statements and admissions made in regard to the facts, from time to time, in the progress of the case, which will be stated in the order in which they occured. Mr. Northrop, on the part of the defendant, admitted that Mr. Brisbane served on the jury in the city court for the week commencing Nov. 20th, 1844, and that he was personally served. The first witness sworn on the part of the plaintiff was Alexander Sharlock. He stated that he had summoned the defendant as a juror in the city court; that he after-wards met him and told him that he was summoned; defendant thanked him for reminding him of it. Defendant served as a juror upon that summons ; does not know whether it was in November or January last. Defendant used to live in Meeting-street towards the Battery ; he is a planter, and goes into the country in winter; he has lived two or three summers in the city. Defendant’s counsel here admitted that the defendant has resided in the city from four to five months in the summer season for several years past. A statement was here made by the defendant’s counsel, which was assented to by the plaintiff’s attorney, that the defendant, on being summoned as a juror, objected to his liability to serve, and that the city sheriff informed him that in his opinion he was liable, whereupon he served.</p> <p>“ Mr. Northrop was then called as a witness on the part of the plaintiff, and sworn. He said that the defendant passes his time in the city of Charleston, at the residence or house of Mrs. Lowndes, in Meeting-street, that is, the summer season. That defendant lives there as a guest from four to six months in the summer season ; defendant’s family live with him. This was admitted by the defendant’s counsel to have been his habit or custom since his marriage, some eight or ten years since, into the family of Mrs, Lowndes, his mother-in-law. Plaintiff’s testimony here closed.</p> <p>“ On the part of the defendant, Mr. L B. Gvimball was sworn. He said that the defendant’s plantation is near Wiltown, in Colleton district. Defendant is a neighbor of witness; he is intimate with him.' Defendant passes every winter there with his family ; defendant owns two plantations near each other ; resides on one; both are in Colleton district. Defendant at one time held a commission as captain in the Beat, at St. Paul’s Parish; he has done duty also as a private; does not know if defendant has done jury duty in Colleton dictrict; knows the house of Mrs. Lowndes in Meeting-street, in which defendant stays in the summer; witness’ position as to residence is in some respects like the defendant’s. Defendant has no other business than that of a planter; is very active in his business; the general habit of planters who live in the city in the summer, and in the country in the winter, is to go into the country after a frost, say about the first of November, and generally to come into the city some time in May. On his cross-examination, he said that the defendant does not carry' on any business in the city, in the summer; he is living in the city now; came down at the usual time. Witness resides in the city in the summer; spends as much time in the city as in the country. In answer to the court, Mr. Grimball stated that he thought the habit of defendant as to residence has been as it is now, and as he (the witness) had stated it, from the marriage of defendant into Mrs. Lowndes’ family, with perhaps some exceptions ; one summer defendant hired a house in Church-street.</p> <p>“ Mr. Northrop here stated (which statement was agreed to be taken as evidence,) that the defendant had been summoned to attend as a juror in Colleton district; that he (Mr. Northrop) had carried up an excuse on one occasion to the presiding Judge at Colleton, on account of sickness.</p> <p>“ Here the testimony closed, and the question of jurisdiction was fully and elaborately argued, the defendant’s counsel insisting that, under these circumstances, the defendant could not be considered a resident of the city of Charleston. That where there was, as it were, a sort of divided residence between two places, as in this case, between the city and country, that place in which the party carried on his business or occupation, should be considered as his true domicil, and cited to this purpose several authorities. (5 Yes. 750, case of Somerville vs. Somerville ; Domat, Lib. 1, Tit. 16, §3, p. 462; Civil Law Code, Lib. 10, Tit. 39, 1.7; Bynkershoek, vol. 6, p. 186 ; Vat-tel, Book 1, ch. 19, §218 ; Story’s Conflict of Laws, §47.) The court, giving to the question the best consideration in its power, decided in favor of the jurisdiction, and decreed for the plaintiff for the amount of the debt, on which a notice of appeal was duly served on me by the defendant’s attorney.</p> <p>“ As the question raised in this case is one for the court exclusively, and is thought to be important, as affecting the rights and immunities of a considerable class of citizens, situated with respect to residence like the defendant in this case, it is perhaps desirable that this court, should give, at more length than it would be otherwise necessary to do, the reasons upon which its judgment is founded. It is not, however, necessary for the decision of the question of jurisdiction involved in this case, to go into any very elaborate or thorough examination of the subject of domicil, as defined in the civil law or by elementary writers. They refer, for the most part, to conflicts arising between the laws of different countries, in which the rights of property or succession depend upon the domicil of the party, and in ascertaining which, considerations of much subtlety, and circumstances of the most minute character, are sometimes resorted to. Thus, while successions to real estate are,admitted to be governed by the lex rei sites, successions to personalty are governed by the law of the domicil, or in other words, by the laws of the country where the party from whom the right of succession is claimed, was a resident at the time of his death. In this latter case, the question of domicil often arises upon a conflict between the laws of one State and those of another ; that is, where by the law of one State, the property would be distributable in one way, and by the laws of another State in a different way; the general rule being, that the succession to personalty is to be governed by the law of the domicil of the deceased owner : it is seen how important the controversy on this question may become, in order to ascertain by what rule the succession shall be determined. In such a case there is, of necessity, a real conflict of laws, because the rules which are set up on either side, emanate from two or more separate and independent jurisdictions, and, therefore, distinguishable from a case like the present, where the rule by which the rights or liabilities of the party are adjusted, is prescribed by one and the same sovereign authority, to wit, the Legislature of the country. Certainly it is competent for the Legislature to decide by positive enactment what shall be the duty and obligation of the citizen, under a certain state of facts, and where that speaks plainly, it is not necessary to resort to mere general or analagous reasoning. Now, although some of the authorities, in regard to a particular case, as that of a party having two contemporary domicils, and a residence in each, alternately, of equal portions of time, indicate that the place where the party’s business lay, should be considered his domicil, which was the rule Ld. Alvanley was induced to adopt, (see Kent’s Com. 2 vol. 431,) yet if the Legislature has laid down a different rule, in the very case, there can be but little doubt which is the rule we are bound to follow.</p> <p>“ Having premised this much on the subject of domicil, let us see what the sovereign authority, the Legislature of the State, has enacted on the subject before us. The Act of 1801, establishing the city court, in §. 4, after defining the class of cases in which the court shall have jurisdiction, provides that nothing herein contained shall be construed to bar any person from suing any person resident in the said city, in the said court, for any sum not exceeding $100, exclusive of costs. Sec. 5 enacts that no citizen of this State, not having resided within the limits of the city for three months immediately preceding the commencement of the suit, process or action, or who shall not have been in the habit of residing there during four months in the year preceding the commencement of the suit, shall be liable to be sued in the said court. The Act of 1818, enlarging the jurisdiction of the court, both in amount and the class of cases to which it is extended, provides “ that nothing contained in this Act shall be so construed as to extend to any inhabitant of this State who may not be a resident within the city of Charleston, and no person shall be construed to be a resident of the said city, unless he shall have resided in the said city three months prior to the commencement of the suit or prosecution, or shall have resided within the said city four months during the year immediately preceding the commencement of the said suit or prosecution.” By the Act of 1821, the jurisdiction of the city court is enlarged in amount, and by the Act of 1825 extended to a particular class of cases, leaving the jurisdiction of the court, as far as it depends on the residenoe of the party, as it stood under the previous Acts referred to.</p> <p>“Under these Aets, in order to make a citizen of the State liable to the jurisdiction of this court, he must in all cases be a resident of the city of Charleston at the time of the action being brought. This is the first and indispensable requisite. But who shall be considered a resident ? The Act declares that “ no inhabitant of the State shall be construed to be a resident of the city, unless he shall have resided in the same three months prior to the commencement of the action, or shall have resided in the same four months during the year immediately preceding the commencement of the suit.” Now, what is meant by the terms “ resident in the said city,” “ or who shall have resided in the same?” Do they not necessarily include all persons having families, who live with them within the city (as in the case before us) habitually in the summer months, indeed for five or six months in the year, even although such persons may reside out of the city the rest of the year ? If the resident of the city for the summer, occupy his own house, or hire one for the season and occupy it, it would seem to admit of little doubt that he would come within the meaning of the term resident used in the Act. Does he become less an actual resident of the city, if, making Charleston his habitual place of abode for years in the summer months, he puts up with his family at an hotel, or that he and they live as guests in the house of a friend or relative? In the opinion of the court, he does not, and that all the obligations and liabilities imposed upon persons within the city on the ground of residence, whether by way of taxation or civil jurisdiction, are equally applicable to such as to any other class of residents. The original Act of 1801 seems to have contemplated the very class of residents to which this defendant belongs, that is those (planters for the most part or exclusively,) who were in the habit of residing on their plantations in the winter, and in the city during the summer, or for four months in the year. The very basis of this provision is founded upon the assumption or declaration, that for the purposes of this Act certain persons may be regarded as having a divided or double residence, and furnishes a conclusive negation of the idea, that a person cannot be considered as having, for the purposes of the law, a contemporaneous residence in two places at the same time, and that with regard to these very persons they are considered and declared by the Act "to be residents of the city of Charleston, and subject to the jurisdiction of the city court. The case of Gildersleeve vs. Alexander, (2 Speers, 298,) fully sustains these views, and recognizes this construction of the Act of the Legislature in regard to the jurisdiction of the city court.</p> <p>“ The argument attempted to be drawn from a supposed conflict in the performance of double jury duty in the country and the city, has no direct application to the portion of liability to process in the city court, and taken in its whole extent, only shews that a party situated as to residence like the present defendant, occupies the same position with that of every other resident of the city, who may be called on to do jury duty both in the city court and the court of sessions and common pleas for the district. If one were summoned to do jury duty at the same time in the city and State court, it would afford an occasion for the exercise of that comity between courts, and that discretion which belongs to all such tribunals, which would, in relieving him from duties in one or the other court, save the party from any injury or embarrassment. Other supposed difficulties as to conflicts in the discharge of militia or other duties, may be as easily reconciled.”</p> <p>The defendant appealed, and now moved for anew trial, on the ground that the defendant is not a resident of the city of Charleston, and not subject to the jurisdiction of the city court.</p>

<p>Before Frost, J. at Beaufort, Spring Term, 1845.</p> <p>This was an application for a writ of prohibition. The suggestion and answer shewed that in June, 1840, the Town Council of Beaufort passed an ordinance, wherein, among other things, it was ordained, “ that from and after the passing of said ordinance, it shall be lawful for any person or persons, hereby declared liable to perform patrol duty in the town of Beaufort, to send any able bodied white person, other than a person liable to perform duty at the time, between the ages of eighteen and sixty, to perform patrol duty for him or them ; and if any patrol man shall neglect or refuse to perform the duty required of him by the Town Council, or to procure a substitute to perform the same, without a legal excuse, he shall forfeit and pay a fine of two dollars for each and every such default, and ten per cent, on Iris general tax for the year preceding paid by him on the property owned by him in the district or parish.” That in pursuance of the said ordinance the town council, in November, 1844, imposed on the relators fines of four dollars each for neglect of patrol duty, and issued, for the collection thereof, writs of fl. fa. That the said writs of fi.fa. were returned nulla bona, and thereupon writs of ca. sa. were issued, directed to Paul H. Barnes, marshal of the town of Beaufort, and to the keeper of the jail of Beaufort district, authorizing and commanding the said marshal to take the bodies of the relators and to convey them to the said jail of Beaufort district, which is distant more than thirty miles from the corporate limits of the said town of Beaufort, and requiring the keeper of the jail of Beaufort district to receive the bodies of the relators and them safely keep, until the said fines, besides the costs, be paid, or they be discharged by due course of law.</p> <p>The suggestion prayed that a writ of prohibition be¡ granted to restrain the town council and marshal of the town of Beaufort from collecting the said fines and enforcing the said writs of capias ad satisfaciendum, on the following grounds :</p> <p>First. — That the said “ Town Council of Beaufort” had no right to try and impose fines upon the relators for non-performance of patrol duty, as under the Act of Assembly they should have been reported to and fined by the regimental court martial.</p> <p>Second. — That if the said Town Council' had a right to impose the said fines, yet they had no authority to imprison the relators in default of the payment thereof, as by their Act of incorporation they are only authorized to imprison persons for penalties or forfeitures inflicted by any of the by-laws of the said corporation; and this is clearly an offence against the 'State law, and not a by-law of the corporation, which is provided for by the Act of Assembly of 1839.</p> <p>Third. — That if the said Town Council had a right to fine and imprison the relators, yet the said writs of ca. sa. are clearly bad, as they are directed to a local and not a State officer, and authorize and command him to take the bodies of the relators to a place more than thirty miles beyond the corporate limits of the said town of Beaufort.</p> <p>Per Curiam. “ The power and jurisdiction against the exercise of which a prohibition is prayed, are claimed by the Town Council of Beaufort, under the Acts incorporating that town, (8 Stat. 221,) and an Act of Assembly, passed in 1825, (6 Stat. 264,) by which the “power and duty of regulating and superintending the patrol within the limits of the town of Beaufort, is transferred and devolved on the Intendant and Wardens of the said town, who are vested with full powers to make all such ordinances, relative to the time and manner of performing patrol duty within the limits of the said town, as may be necessary to preserve the peace, order and safety of the in-, habitants thereof.”</p> <p>“Under the authority supposed to be conferred by these Acts, the Town Council, in 1840, passed an ordinance, declaring what persons should be liable to the performance of patrol duty, and imposing a fine for default. For an alleged violation of this ordinance, in neglect to perform patrol duty, the Town Council proceeding, as under the charter of the town they are empowered to do for a violation of any ordinance, have required the relators to answer for the default before them, and have given judgment against them for the amount of certain fines incurred, and having issued executions against their goods, which were returned nulla bona, they issued executions against their persons, directed to the marshal of the town, Paul H. Barnes, commanding him to arrest the bodies of the relators and commit them to the jail of Beaufort district, there to he detained by the sheriff of Beaufort district, until discharged by due course of law.</p> <p>“ The relators have been arrested under these execro-tions, and they pray a prohibition against the proceedings of the Town Council of Beaufort, on the ground that under the power of “regulating and superintending the patrol in the town of. Beaufort,” and “ of making all such ordinances relative to the time and manner of performing said duty, as may be necessary to preserve the peace, order and safety of the inhabitants thereof,” the Town Council have no authority to try and impose fines on them for non-performance of patrol duty ; but that under the 17th section of the Act of 1839, (p. 61,) to reduce all Acts relating to the performance of patrol duty into one Act, they should have been tried and the fines imposed by a court martial.</p> <p>“ The first and obvious consideration in determining the question presented, is, that the Town Council can claim no power or authority which is not expressly granted to them ; that the terms of the grant must be strictly construed against them ; and that every presumption is in favor of the general jurisdiction of the State, and against the assertion of any right, by a municipal corporation or inferior jurisdiction, to withdraw the citizen from the protection and privileges of the general law, and subject him to the limited and special control and authority.</p> <p>“ ‘The patrol’ is a part of the general State police, organized, regulated and enforced as a part of the military organization of the State. It is provided by law who shall be liable to this duty ; and the captain of the beat company is .required to establish the'patrol districts; make a roll of those liable in each district to the performance of duty ; designate from time to time those who may be called out; and appoint leaders, who are particularly charged with the time and manner of performing the duty, and on whom the performance is principally devolved. All defaults or misconduct are to be reported to the captain of the Beat; and the fines imposed by the Act are directed to be recovered and enforced by a court marshal.</p> <p>“ This recapitulation presents three general divisions of the patrol system. First, its organization, by declaring who shall be liable to the duty, the establishment of districts, the designation of those who shall, from time to time, perform the duty, and the appoinment of leaders. Second, the time and manner of performing the duty, which, with the exception that, the leaders shall call out their men at least once a fortnight, the law; intrusts very much to their discretion. And third, the penalties for default or misconduct, and the mode of enforcing and collecting them.</p> <p>“ The power to regulate the time and manner of performing the duty does not necessarily, nor seems ev.en properly to include the power to declare who shall be liable, nor the fines for default or misconduct, nor the mode of enforcing them, which the ordinance of 1840 does undertake to prescribe, , The town Council, then, has no power to legislate in these particulars; and the executions against the relators, as for penalties imposed by a valid by-law of the corporation, are unwarranted.</p> <p>“ This construction of the Act of 1825, which restricts the power of the town Council to regulation and superintendence, still places at their disposal an organized police force, by giving them the control over the time'and manner of performing patrol duty, which may be sufficient for the purpose designed by the Act, of preserving the peace, order and safety of the inhabitants, and is not .liable to the objection that the Act so restricted is ineffectual. The police might be more efficient if the town Council possessed the power of enforcing the payment of fines for default. But this only presents a reason for applying to the Legislature for the grant of that power, and cannot avail to prove that such power,exists.</p> <p>“ That the power to regulate the time and manner of performing patrol duty is distinct from that bf enforcing the performance, may be inferred from the fact, that in many of the Acts incorporating villages both powers are conferred, while in some others only the former is granted.</p> <p>“ By the Act of 1823, (8 Stat. 330,) the “power and duty of organizing, detailing and enforcing the performance of patrol duty in the Beat company or other companies in the town of Beaufort,” were transferred to the town Council. Having thus devolved on them the duties of the captains of Beat companies, the Act further provided, “ that the town Council should be subject to the same penalties for the neglect of patrol duty, that the captains of Beat companies were by law subject to.” This Act conferred on the town Council full power over the subject. It may be presumed to have been found onerous or inconvenient; for in 1825 the Act was passed which is the subject of construction, limiting the town Council to the regulation of the time and manner of performing patrol duty. All the additional powers conferred by the Act of 1823, which the town Council now claim to assume, were relinquished by the Act of 1825, and were re-transferred to the respective depositories under the law of the State.</p> <p>“No power over the patrol seems to have been given by the Act of incorporation in 1803. It is unnecessary to refer to the particular provisions of that Act to support this conclusion, since the corporators and town Council, by strong, if not necessary, implication, admitted it when the Acts of 1823 and 1825 were passed, which were merely nugatory, if the powers by them conferred already existed in the town Council.</p> <p>“ Having decided to grant the prohibition on the first ground made by the suggestion, it is unnecessary to consider the other objections which affect the legality of the execution.</p> <p>“ It is, therefore, ordered, that the town Council of Beaufort, and Paul H. Barnes, be prohibited from further proceeding to enforce the payment of the fines alleged to have been incurred by the relators for default of patrol duty, and that they be discharged from arrest under the executions issued against them, according to the prayer of the suggestion.”</p> <p>The respondents appealed, and now moved this court to reverse the order of the presiding Judge, on the following grounds:</p> <p>1. That his Honor erred in construing the Act of incorporation of the town of Beaufort, as conferring no power to enforce, by ordinance, the performance of patrol duty within the limits of the town.</p> <p>2. That his Honor erred in so construing the Act of 1825 as to restrain the power of enforcing the performance of patrol duty, conferred by the Act of 1823, to regulating the time and manner of performing patrol duty.</p> <p>3. That his Honor’s decision was, in other respects, contrary to law and the true construction of the Acts of Assembly in the premises.</p>

<p>The plaintiffs’ negroes were purchased from a third person, by C; D., on the joint account of himself and the defendant. After notice of the plaintiffs’ title, C. D. sold the negroes for the benefit of himself and the defendant. Htld, that the sale by C. D. was a conversion by both himself and the defendant.</p> <p>Ordered, in trover-, that a new trial be granted, unless the plaintiffs release apart of the damages.</p> <p>Before Evans, J, at Georgetown, Spring Term, 1845.</p> <p>This was an action of trover, for a negro woman named Elsey, and her four children.</p> <p>Elsey formerly belonged to E. Barnett, who, by his will, gave the residue of his personal estate to his four daughters. The will contains a limitation over, that if bis daughters Elora or Jane should die without leaving issue of their bodies, the proportion or share of such to return to the other, and to his son John. The testator died soon after, and on the division of the estate Elsey was allotted to Elora, who. married Thomas White. Mrs. White died about • a year before the trial; all the rest of the family died before her, except Jane,, who, with her husband, were the plaintiffs in this action. The negroes were in White’s possession up to the death of his wife, except the third child of Elsey, named Leah, who had been sold to J. J. Dickinson some short time before. Within a few days after Mrs. White’s death, Elsey and her remaining children were carried to Georgetown, and sold to Dickinson for $800. Perhaps the case will be better presented by giving .the whole evidence.</p> <p>Moses Playor. Knew Elsey in White’s possession j she had four children ; the eldest a girl about twelve years old when sold — the next a boy, two years younger; the next a girl, two years younger than the boy; the youngest about a year old ; they were. “ exactly good looking children.” The children’s names were Lydia, Charles, Leah and Anthony. He warned- Dickinson that the property had teen entailed before Mrs. White’s death. White offered to sell the oldest to him for three hundred dollars.</p> <p>Captain Eldridge. In March, 1844, he was master of the sch. Consul, sailing between Georgetown and Charleston ; he carried Elsey and her four children to Charleston; the defendant, Kerton, requested him to take them ; he did not say whose they were ; Kerton directed him to deliver them to Dickinson, in Charleston; they were entered at the custom house on the evening of the 4th March ; he sailed the next morning, and arrived in Charleston at 2 o’clock the next day, when Dickinson took charge of the negroes ; he received the passage money at Kerton &> Dickinson’s store.</p> <p>Mr. Roberts. Was in the custom house as assistant, in March, 1844; the negroes were entered there ; he received the manifest from Capt. Eldridge — Kerton was present; the manifest states that Kerton & Dickinson were the shippers ; they had previously shipped slaves. It is usual to ask the names of the owners, which he supposes was done on this occasion; Dickinson <fc Kerton are engaged in merchandize, and in buying and selling negroes.</p> <p>R. E. Fraser. Served a written demand of the ne-groes on Kerton, on the 5th March, at 3 o’clock; Kerton made no answer to the demand. A previous written notice and demand were served on Kerton by Mr. Wilkinson, at half past 2 o’clock, and a copy left for Dickinson.</p> <p>V. Anderson. Guerry did not know the negroes, and he came with him to Georgetown in pursuit oí them, and to identify them. This was within two weeks after Mrs. White’s death ; saw the names of the negroes at the custom house, and determined to pursue them to Charleston ; went to the stage office, kept by Mrs. Lester, and paid for their passage in the stage, to start at 4 o’clock; when the hour arrived, went to the stage office — the driver refused to receive them, although the stage was empty ; said ail the seats were engaged some weeks before ; offered to ride on the box, the top, or the baggage, but were refused. The stage left the office without any passengers; started to Charleston on horseback, and arrived there on the morning of the 8th ; went immediately to Col. Memminger; they had some information that the negroes were in the possession of Gilchrist, a broker; carried a letter to him making a demand, but he said he did not have them ; saw Dickinson there; he asked if' they were the men who had come in pursuit of the negroes ? said he had sent them from Georgetown to Charleston, and from thence to New Orleans 5 returned to Col. Memminger’s, and told him, and received a written demand and‘notice, to be served on Dickinson — searched for him, but he was no longer to be found.</p> <p>G. C: Munro. The negroes were brought to town for ■sale; the man who brought them said they belonged to White, and that Dickinson had the refusal of them ; Mrs. Lester is the stage agent; Dickinson is her son-in-law now; there are two stages on the line — one holds six and the other four passengers, besides those who go outside ; would not have given much more than $800 for the he-groes ; on a credit tKey might have sold for 20 or 25 per cent more.</p> <p>Mr. Atkinson valued the negroes as follows : Elsey 4 or 500 hundred dollars, Charles 275 dollars, Leah 200 dollars, Anthony 100 dollars, and Lydia 300 dollars, from Playor’s description of them.</p> <p>Mr. John A. Allston valued them, from description, as follows: Elsey 500, Lydia 300, Charles 200, Leah 150, and Anthony 100 dollars.</p> <p> Defence. </p> <p>White. Mrs. White; his step-mother, requested the ne-groes should be sold after her death, and told his father to use the money for his own purposes. He sold Leah to Dickinson during Mrs. White’s lifetime, in 1843; there were mortgages and judgments against his father-, which were paid out of the price of Leah ; he brought them to Georgetown a few days after M.rs. White’s death, and offered them for sale openly to several persons ; bargained them to Dickinson the evening of the day he brought them, for $800. Dickinson told him Kerton had nothing to do in the buying the negroes ; they sometimes bought negroes together; he left the negroes in Dickinson’s charge, and went home to Williamsburg; Dickinson came to his father’s, and the bargain was confirmed, and the price paid; Elsey was a common field negro ; his father had her 15 years ; he represented her as good property; had heard the property was entailed; it was the last of February that he sold' them ; he brought them openly in a cart; Moses Playor assisted him in selling Leah,' and represented her as good property, to Mrs. Lester and Dickinson.</p> <p>Buflcin. In February, 1844, Dickinson lived with Ker-ton ; all his property was there; they merchandized together, and sometimes bought negroes; Kerton sent a negro girl to his house to nurse; said, when applied to for one, he would send her if Dickinson was willing ; had her 3 or 4 weeks ; the woman went about the town ; Ker-ton or Christie was Dickinson’s agent, when absent.</p> <p>A. W. Dozier. Bought a negro from Dickinson in 1843 ; did not know Kerton in the trade ; they have both bought negroes.</p> <p>Col. Commander. Dickinson lived with Kerton, and had his property there, up to the time of his marriage in May. He is a speculator, and has an interest in a steam’ saw-mill now erecting ; has known Dickinson buy property at sheriff’s sale, and the title made to him, whilst he was in company with Kerton.</p> <p>G. C. Munro. Recollects the negroes had been brought to Georgetown before the time they were sold ; this was in Mrs. White’s lifetime; the man who brought them said' there was some jealousy between the woman and her mistress.</p> <p>Mr. Munro. Dickinson and Kerton trade in negroes as a part of their business ; recollects to have heard at the time that Dickinson bought for himself; Kerton was not the owner of the stage from Georgetown to Charleston,1'' but of the Cheraw stage, connecting with it at Georgetown.</p> <p>The jury was instructed, 1. That if Kerton had no interest in the negroes, and was a mere agent to ship them, aud had done so before he had any notice of the plaintiff’s title, then he was not liable.</p> <p>2. If they were joint owners, then the shipping them off for sale by Kerton, coupled with the subsequent shipping by Dickinson, and sale, (after notice of title in the plaintiffs) on their joint account and for'their joint benefit, was a conversion by both, and rendered each liable. The jury found a verdict for the plaintiff for $1850, which, according to the evidence, was above the value of the ne-groes ; but the valuation set by Mr. Atkinson, the foreman of the jury, and by Mr. Allston, was founded on no personal knowledge, but on the description given of them.</p> <p>The defendant appealed, and now moved for a new trial, on the following grounds, viz:</p> <p>1. Because his Honor erred in charging the jury, that if they found the negroes in question to have been purchased in the co-partnership name, the conversion of them by one of the co-partners was suificient to charge the other co-partner in an action of trover.</p> <p>2. Because, in the verdict of the jury, they have neither confined themselves to the highest value of the negroes, as proved on the trial, together with the hire, or to the interest thereon — but have given vindictive damages, which is not allowed in an aetion of trover.</p> <p>3. 'Because there was not the slightest evidence that the defendant had any participation whatever in the purchase of the said negroes ; so that the verdict of the jury is not only without evidence, but in the very face of the evidence.</p>

<p>An incorporated insurance company, having its office and doing business in the City of Charleston, is subject to the jurisdiction of the City Court, and may he sued therein.</p> <p>A corporation has its place of legal residence wherever its corporate business is done.</p>

<p>Where a vessel is under the entire control and is navigated for the exclusive benefit of the mortgagor, the mortgagee, although the legal owner, is not liable for repairs made on_the credit^f the mortgagor alone.</p> <p>Where the mortgagee is sought to he charged as owner for repairs, he may give in evidence his private transactions or course of business in reference to the vessel, in order to shew that'the vessel was not under his control or navigated for his benefit, and that his connection with her was that of agent or consignee.</p> <p>Where two instruments of writing relating to the same matter, are written at the same time and on the same piece of paper, if one is offered in evidence against a party, he has a right to insist that the other shall be considered as evidence also.</p>

<p>Before Evans, J. at Barnwell, Spring Term, 1846.</p> <p>These were rules on the sheriff, requiring him to shew cause why he had not paid over money in his hands to the plaintiffs’ executions. The money arose from the sale of the individual property of Odum. There were executions enough against him to take it all. There were certain proceedings among the parties in equity, in which the question had been made, whether the individual creditors were not entitled to be paid out of the funds, in preference to the copartnership creditors 7 His Honor’s own judgment was, that at law the money in the sheriff’s hands should be paid, without reference to the copartnership, according to the priority of lien, but as the matter had been brought into controversy in the court of equity, he refused to interfere, and dismissed the rule.</p> <p>The plaintiffs appealed, and now renewed their motions to make the rules absolute.</p>

<p>Where the trustee of a married woman recovered judgment on a note payable to himself as trustee, and the sheriff collected the money, the court refused to order an attachment to compel the sheriff to pay him the money, it appearing that he had been removed by the Court of Equity from his office as trustee, and another appointed in his place, and that a bill for account was pending against him.</p> <p>Attachment will not be granted to compel a sheriff to pay over money, unless the justice and necessity of such proceeding be clear.</p>

<p>Before Evans, J. at Orangeburg, Spring Term, 1846.</p> <p>These were actions of trespass to try titles, which were tried together. His Honor permitted the plaintiff to give in evidence an office copy of a deed, covering the land in dispute, from one James D. Erwin and his wife to James Stuart, on proof that the original was recorded and that search had been made for it and it could not be found.</p> <p>The jury found for the plaintiff. The defendant appealed, and now moved for a new trial, on the ground,</p> <p>Because his Honor admitted in evidence the office copy of the deed from Erwin and wife to Stuart, without sufficient proof of the existence, execution and loss of the original, and without requiring the plaintiff to comply with the requisitions of the Act of 1843, which requisitions, it is respectfully submitted, should have been complied with.</p>

<p>The presiding Judge for Edgefield, at Fall Term, 1845, ordered an extra court for that district, to be holden on the 4th Monday in February, 1846. The Legislature, in December, 1845, extended the judicial term for Edgefield to two weeks instead of one, but omitted to provide for juries for the second week of the next Spring term. In January; 1846, the Judge who had ordered the extra court, made an order at chambers, postponing it to the second Monday in March, which was the second week of the extended regular term. The jurors for the extra court had been summoned, and the sheriff, after the order was made, notified them to attend on the second Monday in March. An indictment was found by the grand jury, at Spring term, 1846, against the defendant for the murder of a slave, and on the second week he was tried and found guilty. Held that, whether the Judge had authority or not to postpone the extra court, the jurors summoned for that court could not be regarded as jurors of the regular term, and consequently that the trial was illegal and the conviction void.</p>

<p>la trespass quare clausum, fregit, although, under the general issue, the defendant may justify by proving title in himself, or that he entered as landlord to distrain for rent; yet if the plaintiff’s title be proved or admitted, matters in discharge of the right of action must be specially pleaded.</p>

<p>Before Butler, J. at Barnwell, March, Extra Term, 1846.</p> <p>These were actions of trespass to try titles. The jury found for the plaintiffs, and the defendants appealed, and now moved for new trials.</p>

<p>Before Evans, J. at Edgefield, Spring Term, 1846.</p> <p>This was an action of trespass to try titles. The sheriff, under a fi. fa. had sold land belonging to the defendant, which was purchased by Dyson. In the sheriff’s deed, the land was described as one thousand acres, more or less, adjoining lands of F. W. Pickens, Proctor, and others. The land claimed by the plaintiff consisted of two parcels ; one called the Anderson land, which had been sold by Dyson to Leek, containing one thousand and seven acres, the other was called the Owens land, containing two hundred and eighteen acres. This tract had been purchased by Leek from one Owens, after his purchase from Dyson. Leek lived on the Owens land, and cultivated on both tracts, before and after the sale. The question was, whether the Owens tract was included in Dyson’s purchase. The only description was that abovemen-tioned. The boundary adjoining Pickens’ and Proctor’s land, applied equally, whether the Owens land was included or excluded. The witnesses spoke of some ageeement between the parties about the purchase of the land, before the sheriff’s sale. This, for some reason, was not perfected, and the sale was made by the sheriff. There was an agreement that Leek should retain possession of portions of the land for 1844, the year of the sheriff’s sale, but he did not deliver it up at the end of the time. One of the witnesses said that about Christmas of that year, Leek said he wished to remain on the land, and did not wish to have it for nothing. He requested of this witness to enquire of Dyson if he would rent it for the next year.</p> <p>The jury found for the plaintiff only the Anderson land, and he appealed, on the following ground.</p> <p>That the plaintiff was entitled to a verdict for the two hundred and eighteen acres of land, called the “ Owens land,” as well as for the other parcel found by the verdict for the plaintiff, because the two hundred and eighteen acres composed a part of the tract of land on which defendant lived at the sheriff’s sale, February, 1844 ; was recognized by defendant as included in the deed, by his offer to pay rent for it after the sheriff’s sale; and because the two parcels were, by the witnesses, proved to constitute one tract; and because the deed embraced the said parcel of two hundred and eighteen acres.</p>

<p>Trespass to try titles. Tlie laud in dispute was granted to one Thomas Adams.. The plaintiff claimed under a conveyance from one who was called Sandhill Thomas Adams. The defendant contended that the true grantee was Edgefield Thomas Adams, who was dead. Held, that a brother of Edgefield Thomas Adams, who, asoné of his heirs at law, was entitled to a portion of the land, was a competent witness for the defendant to prove that he, Edgefield Thomas Adams, was the true grantee.</p> <p>A witness is not incompetent, unless he has a direct interest in the result of the suit, or an interest in the verdict as an instrument of evidence.</p>

<p>These were actions of assumpsit on a promissory note drawn by Wingard & Muller, and indorsed by Richard Sondley. The action against the drawers was tried before RichaRdson, J. at Richland, Fall Term, 1845 ; and the action against the indorser, before O’Neall, J. at the same place, Spring Term, 1846.</p> <p>The note was due the 13th October, 1844, and was payable at the Commercial Bank, Columbia. It was made to comply with a purchase of goods by Wingard & Muller at •auction. The goods were the property of John McCully, and were sold by his order, to enable him to raise money to' pay a debt for which a friend was bound for him in Charleston. The note was intended to be discounted in the Commercial Bank, but when lodged for discount it was understood that Wingard & Muller intended to set up a defence against it, and it was, therefore, not discounted. On the same day that it was offered for discount at the bank, which was the 19th June, 1844, it was purchased by the plaintiff from McCully. Prom the evidence, it was probable that the plaintiff knew of the defence set up by the defendants when he purchased the note. The de-fence set up by way of discount, was a note of nearly an equal amount on John McCully, not due until the 14th November, 1844.</p> <p>In the case before Richardson, J, the jury, under the instructions of his Honor, found for the defendants, and the plaintiff appealed. In the case before O’Neall, J. the jury were instructed that, inasmuch as the note held by Wingard & Muller, the makers, on McCully, was not due at the time the plaintiff purchased their note from him, nor at the time it became due, the note of McCully could not be set up as a discount against the plaintiff, a bona fide holder. The jury found for the plaintiff, and the defendant appealed.</p>

<p>Bail may surrender their principal to the sheriff at any time before the end of the term to which service of effective process against them has been returned; and such surrender, even after the ca. sa. has been returned and the bail bond assigned to the plaintiff,' may be made without any previous order of court; though, if made after the return of ca. sa., an order is necessary to confirm it and give it effect.</p>

<p>Before Richardson, J. at Newberry, Fall Term, 1845.</p> <p>Sum, pro. to recover fifty five dollars, paid by the plaintiff to the defendant under the following circumstances. The defendant held the plaintiff’s note, payable to the defendant’s wife, and on the 8th February, 1842, the plaintiff paid him fifty five dollars on the note. This amount was not credited on the note, and the defendant afterwards sued the plaintiff thereon, and no appearance being entered, obtained judgment by reference to the clerk. In the assessment and judgment the fifty five dollars were not allowed as a payment. His Honor held the plaintiff estopped by the judgment, and decreed for the defendant.</p>

<p>Before Frost, J. at Edgefield, Spring Term, 1845.</p> <p>Sum pro. on a note of Geo. Williams, defendant’s intestate, payable to John Coker, and dated the 3rd December, 1841 ; defence, the statute of limitations. The process was entered the 7th February, 1845. Two witnesses, one of whom had been administrator of Geo. Williams, proved the signature to the note. It was proved that the intestate died in July, 1841, and Coker, the payee, in February of the same year. The plaintiff was ordinary of the district when Coker died, and took charge of his estate, and it was supposed by one of the witnesses that the note by that means passed into his possession.</p> <p>It being impossible that the note eould have been made at the time it bore date, it was held to be incumbent on the plaintiff to shew when it was made, and that it was made and delivered in the life time of the parties, and to prove how and when he became possessed of it. For want of any proof beyond the production of the note, the plaintiff was non-suited.</p> <p>The plaintiff appealed, and now moved that the non-suit be set aside.</p>

<p>Before Evans, J. at Edgefield, Spring Term, 1846.</p> <p>The report of his Honor the presiding Judge, is as follows :</p> <p>“ The questions presented by the brief, arose out of these facts: The plaintiff let the defendant have five bales of cotton; he owed the defendant two debts ; one was in judgment, the other on a note. The question was whether the cotton was a payment on the judgment, as the plaintiff contended, or on the note, as the defandant contended. It was not allowed on the judgment, and Leek sued Goodman for the amount of the cotton, with some demands, which were rejected by the jury and unnecessary to be stated. I told the jury it was wholly immaterial on which of these debts the cotton was received in payment, except that in the event it was received as a payment on the note, it might be that the plaintiff would not be entitled to any costs, if they rejected his other demands. The jury found for the defendant; and at a subsequent period of the court, upon my attention being called to the matter, the foreman of the jury said that they considered the cotton as received in payment on the note, and as only about six dollars was due to the plaintiff after deducting the note, they had found for the defendant — understanding my charge to be, that the plaintiff could not recover, unless the amount due him was over a magistrate’s jurisdiction. I did not feel at liberty to direct any alteration in the verdict without consent. About the state of pleading I was not informed— something was said about notice of discount.”</p> <p>The plaintiff appealed, and now moved for a new trial, on the following grounds :</p> <p>1. Because the jury understood his Honor to say that, if they allowed the defendant’s discount, they could not find a verdict for the plaintiff, unless the balance in his favor amounted to twenty dollars or more.</p> <p>2. Because admitting that the discount of the defendant was fully proved, yet the balance was in favor of the plaintiff, and the jury should have found for him.</p> <p>3. Because upon the foreman’s stating to the court, after the publication of the verdict, that it was given upon a misapprehension of his Honor’s charge, the jury should have been directed to correct their verdict according to a just understanding of the charge.</p>

<p>Before Frost, J. at Edg-efield, July, extra Term, 1845.</p> <p>This was an action of trespass to try titles. The jury found the following special verdict.</p> <p>“We, the jury, find that one William Ashley recovered a judgment, in Barnwell district, against William W. Williams, which was enrolled and entered on the 20th November, 1840, and an execution fi. fa. was lodged in the sheriff’s office for Barnwell district, on the same day. That by virtue of the said execution, the same being then in full force and unsatisfied, William J. Harley, as sheriff of Barn-well district, levied on, and on the 4th of November, 1842, sold at public outcry, a tract, of land as the property of William W. Williams, containing one thousand and thirty-eight acres, more or less, and called and known as the Coker Spring tract. That the plaintiff became the purchaser thereof, and received the sheriff’s deed therefor, bearing that date. We further find, that the dividing line between the districts of Edgefield and Barnwell runs through and intersects the said Coker Spring tract, leaving 708 acres thereof in Barnwell district, and 330 acres in Edgefield district. On the portion in Barnwell district, the said William W. Williams resided. We further find, that the sheriff of Barnwell district, at the time of his sale, intended to sell the entire tract, so far as he had authority, as well that portion lying in Edgefield district as that in Barnwell district, and his deed to the plaintiff embraces and includes the whole. We further find, that the lot of land in dispute is a lot containing six and eight tenths. acres, at or near the foot of the inclined plane of the Hail Hoad ; is located in Edgefield district, and was conveyed to the defendant, an incorporated company, by William W. Williams, by deed of release, bearing date the sixteenth of October, one thousand eight hundred and forty-one, and duly recorded in the register’s office at Edgefield, March 7th, 1842. This lot of land is part and parcel of the Coker Spring tract of land, then owned by, and in the possession of, the said W. W. Williams. If the court should be of the opinion that the sheriff of Barnwell district could, under the circumstances above stated, sell that portion of the Coker Spring tract which is situated in Edgefield district, then we find for the plaintiff the land in dispute, and five dollars damages. If otherwise, we find for the defendant.”</p> <p>His Honor the presiding Judge, ordered the postea to be delivered to the plaintiff. The defendant appealed, and now moved this court to reverse the order of the presiding Judge, on the grounds — ■</p> <p>1. That a sheriff has no jurisdiction or authority beyond his district — consequently, that the sheriff of Barn-well district, under an execution fieri facias, lodged in his district only, could not sell and convey land lying in Edgefield district.</p> <p>2. That a corporation aggregate is not liable for acts implying actual force and motive ; consequently, that the defendant is not liable to the suit of trespass to try titles.</p> <p>cited, on the first ground, Act 1839, p. 26 ; 1 N. & McC. 356 ; Dud. 152; 1 N. & McC. 252; 7 Stat. 209; 8 Johns. R. 520; and on the second ground, 1 Sp. 580; 2 Hill, 571 ; Ang. & A. on Corp. 328.</p> <p>on the first ground, cited 4 Stat. 665; and on the second ground, Ang. & A. on Corp. 333 ; 3 Peters, 409 ; 15 East, 6 ; 8 Stat. 354, 384.</p>

<p>In an action for slander, contained in letters written to a lady to whom the plaintiff was engaged to be married, held, that it was incompetent to shew by the declarations of the lady, that the engagement had been broken off on account of the charges contained in the letters.</p>

<p>In an action of slander, if the words be proved substantially as laid, or if the words are in themselves actionable, and some of them which . are actionable be proved precisely as laid, it will be sufficient.</p> <p>A verdict will aid the omission of that which was necessary to be proved at the trial, and without which the1 jury could not have found for the plaintiff! Where, therefore, in an action of slander, the declaration, without laying any time, alleged a trial before a justice of the peace, at which the plaintiff was sworn as a witness, and in reference to which words imputing perjury to the plaintiff were spoken, it was held, that the verdict aided the omission of proof that the person before whom the trial was had was a justice of the peace, and had jurisdiction of the case, although the proof shewed that the trial was had in October, 1841, after the office of justice of the peace had been abolished, and that of magistrate substituted.</p> <p>The words “ you swore a lie,” held, with proper averments and a colloquium which were sustained by the proof, to impute perjury, and therefore to he actionable.</p> <p>The words, u you get your living by sneaking about when other people are asleep.” “ What did you do with the sheep you killed ? Did you eat it f “ It was like the beef you got negroes to bring you at night.” “ Where did you get the little wild shoats you always have in your pen.” “ You are an infernal roguish rascalhelcTto be actionable, as containing a charge of larceny in more instances than one.</p> <p>It is not necessary that the words in terms should charge a crime. If, taking them altogether, in their popular meaning, such is the necessary inference, they are actionable.</p> <p>Where the meaning of the words is doubtful or ambiguous, the witnesses who heard them may be examined as to the sense in which they understood them.</p> <p>In order to shew actual malice, publications of the slander, made y more than six months before, and after the action was commenced, may be proved.</p> <p>Testimony tending to shew that the defendant was actuated by a mercenary and selfish purpose, as that he coveted the plaintiff’s land, and hoped by defaming him to compel him to remove, may be introduced to shew actual malice.</p> <p>Where one party gave in evidence the declarations of a free negro? held, that the other party might give in evidence his declarations at another time, to discredit his testimony.</p> <p>Motion for new trial, on the ground of excessive damages, refused.</p>

<p>A mercantile partnership is liable to the innocent indorsee of a promissory note, signed by one of the members in the name of the firm, without the knowledge or consent of his partner; although the note was given for a debt unconnected with the business of the partnership.</p>

<p>The sureties to a note are liable, although the note is void as against their principal, because she was a feme covert when it was signed.</p> <p>Where the surety to a note, given for property purchased at an administrators’ sale, when requested by the principal to sign it, was told by the'payee that his signature was only wanted as a form, to comply with the order of the ordinary; held, that no fraud was thereby practised on the surety which avoided the note as to him.</p>

<p>Before Evans, J. at Orangeburg, Spring Term, 1846.</p> <p>The report of his Honor the presiding Judge, is as follows :</p> <p>“ This was an appeal from the ordinary. The facts as stated where these: George Irick, many years ago, gave a tract of land to his widow for life, and after her death to his children. There were four children — two died without issue. Susannah Gates and Yalentine Irick survived. Yalentine is now dead, leaving six children. George Gates married one of them. Many years ago, I think it was said forty years, Yalentine, in the life time of his mother, lived on the land, and his family, or some of them, still live on it. The widow died about 1829, An application was made by Susannah Gates, to divide or sell the land and allot her one half to which she was entitled. George Gates, who in right of his wife was made a party, objected to the sale or division, alleging that Yalentine, his wife’s father, had acquired a title to the land by possession. The ordinary ordered the land to be sold, setting out in his decree the objection, and that he did not consider himself competent to decide on the right set up by George Gates. From this decision there was an appeal. The grounds of appeal were: 1st. That the ordinary’s jurisdiction was ousted when there was an adverse claim to the land. 2nd. That the ordinary should have discharged the appellant from the proceedings, so as to enable him to contest his title with the purchaser. I was of opinion that the ordinary was not bound necessarily to stay his hand, because a defendant claimed the land. There must be something more than a mere pretence of title. But in this case the ordinary had set out, in his decree, that he bad not adjudicated the title set up by the appellant; and therefore, the order of sale would be no estoppel to the assertion of his title hereafter.' Being of this opinion, I dismissed the appeal. Regarding it as a question of importance and difficulty, I requested the appellant’s counsel to take the opinion of the Appeal Court by an appeal.”</p> <p>The defendant, George Gates, appealed, on the grounds :</p> <p>1st. Because the cause shewn against the partition of the said land was sufficient, and the ordinary had no jurisdiction in the matter, since it involved a question of title to land, — and he should, therefore, have dismissed the case• whereas, in and by the said decision, a question of title to land has been decided without trial by jury, and contrary to law.</p> <p>2nd. Because the ordinary should, at least, have dismissed and discharged the said George Gates from the proceedings in partition, since he claimed adversely, and offered to, and did, adduce sufficient proof in support of his claim, to shew that the ordinary should not have decided against the title of the said George Gates, and thereby deprived him of his freehold.</p> <p>3rd. Because his Honor, in dismissing the appeal, as effectually decided the question of title, as the ordinary did in decreeing partition, and the appellant would be estopped from hereafter disputing the title, since the intimation of the ordinary that “ it appeared to him that it was not his province to examine into a question of title between the parties,” (however inconsistent,) cannot invalidate, or in the slightest degree impair, the legal force and effect of the decision — the ideo consideration est — whereby, “ on due examination and mature deliberation,” the question of title was decided, and partition awarded among the parties who were thus judicially pronounced to be joint tenants, and on all and each of whom the order for sale is conclusive as the judgment of a court upon the same subject and be- ' tween the same parties.</p> <p>4. Because if his Honor was correct in refusing to set aside the proceedings of the ordinary, it is respectfully submitted that an issue should have been ordered to try the question of title.</p>

<p>Where the service of an attachment is illegal, no lien is created on the property.</p> <p>Where the service of an attachment was declared illegal and void, and the defendant in the attachment afterwards confessed judgment thereon, and thereby waived the illegality of the service, held, that such waiver, on the part of the defendant, could not be regarded as relating hack to the original service, so as to defeat the lien of an attachment regularly served in the mean time.</p> <p>The taking of a higher security, if accepted as satisfaction, extinguishes a lower one for the same debt, and the law, it seems, will imply, in the absence of proof to the contrary, that the higher security was taken as satisfaction; but if it be made to appear that it was not taken as satisfaction, then it will be merely additional or cumulative security.</p> <p>If the fact, that the higher security is for the same debt, be proved by parol, then it may be shewn by parol that it was not taken as satisfaction.</p> <p>Where the sheriff acquires illegal possession of property under color of an attachment, he cannot charge the defendant in the attachment for keeping the property.</p>

<p>The Rail Road Company hired a slave from the plaintiff, to work on their road, and it was agreed that the slave should not be employed on the cars or locomotives, but that he might be carried on the cars or locomotives, “ from any one place, to another place on the Rail Road where his services may be required.” The slave, with the knowledge of the conductor, went on the cars, and was carried beyond the place at which his services were that day required, and in jumping from the cars while they were in motion, was killed. Held, that the company were liable to the plaintiff for the loss.</p> <p>Tf the hirer of a slave violates his contract, by using the slave in a way different from that for which he was hired, and a loss occurs, although by the voluntary act of the slave, the hirer will be liable therefor.</p>

<p>The road leading from Broad River Bridge to Newberry Court House is a public road, and under the jurisdiction of the commissioners of roads.</p> <p>Where earth and gravel had been for ten years taken from the same place near a highway for the repair of the road, it was held that it might be presumed that it had been set apart for that purpose, by the commissioner in charge of the road; and, therefore; that the overseer might use it for the repair of the road without the presence' or express directions of the commissioner; and that for obstructing the overseer in the attempt so to use it an indictment would lie under the 16th sec. of the Act of 1825.</p>

<p>Before O’Neall, J. at Barnwell, Fall Term, 1845.</p> <p>This was an action against one of the sureties to an administration bond. The case was on the inquiry docket, the defendant having failed to appear. The bond was given in evidence, and the ordinary’s decree which established the amount of the plaintiff’s damages. For the defendant, it was contended that Artemisa Bonnett, the widow of the intestate, was one of the sureties. It appeared that the bond had been fully executed, and subsequent thereto, a slip of paper, on which the name Artemisa Bonnett was written to the right, and that of a witness on the left, was attached by wafers to the foot of the bond. It was without seal. His Honor thought that Artemisa Bonnett was not a co-surety. The jury found for the plaintiff, and the defendant appealed, on the ground that the presiding Judge erred in charging the jury that Artemisa Bonnett, the widow of the intestate, and one of the real plaintiffs, was not one of the co-sureties to the bond sued on.</p>

<p>Before Bütler, J. at Edgefield, July, extra Term, 1845.</p> <p>This was an action of trespass to try titles. The plaintiff claimed under a deed from the sheriff, dated the 7th. March, 1838, which recited that the land had been levied and sold under a fi. fa. of Seaborn Randall against Robert Holsonback. The case of Randall against Holson-back was an action of slander, commenced in December, 1834, in which a judgment was obtained and entered up in November, 1835. It appeared that the land had been sold for partition in 1832, by the Commissioner in Equity, as part of tha estate of Derick Holsonback, and bought by Phillip Brogden. Brogden sold it to one Bryant, who, as it was said by a witness who had seen the deed, but the deed itself was not produced, conveyed it to one Lithgo. Lith-go, in January, 1835, executed a deed conveying it to Eliza Bodie. About the time this conveyance was executed, and not before, the defendants entered on the land. Eliza Bodie was the mistress of Robert Holsonback, and it was contended that the deed was made to her for the benefit of Holsonback, and to defeat the recovery in the then pending action of slander, and that Holsonback had paid the purchase money. His Honor, the presiding Judge, charged the jury that, if it was true that Holson-back had paid the purchase money, and that the deed was made to Eliza Bodie for his benefit, yet the legal title was in Eliza Bodie, with a resulting trust in his favor, which could not be the subject of levy and sale under a fi. fa. so as to defeat the legal title. He therefore thought there could be no recovery against Eliza Bodie, but that Holson-back was estopped from disputing the plaintiff’s title, and, as against him, there might be a verdict. The jury found a verdict for both defendants. The plaintiff appealed, and now moved for a new trial.</p>

<p>Before O’Neall, J. at Lexington, Spring Term, 1846.</p> <p>The report of his Honor, the presiding Judge, is as follows.</p> <p>“ This was an action of trespass to try title. The plaintiff claimed and derived title from a grant to James Gregg, dated 6th January, 1812. The heir of the grantee conveyed the land to Thomas L. Yeale, by whom it was conveyed in moities to Frederick Kelly and the defendant. In the deed, one hundred and seven acres were conveyed without a warranty. Frederick Kelly conveyed to the plaintiff, November, 1829, between whom and the defendant a partition was soon after effected. The one hundred and seven acres, on that occasion, was separately divided between them, and they drew lots for choice of parts. The part in dispute fell to the plaintiff. No deeds were executed. The defendant claimed under a grant to George Hipp, in 1774. This grant covered the locus in quo.-The defendant purchased this grant subsequent to the partition before spoken of, (to wit, in ’43 or ’44.) The plaintiff had his land surveyed in 1833, (5th February); the re-survey plat covered the locus in quo; he cleared upon the land which he bought of Kelly, but outside of the Hipp grant, in 1829. His possession continued from that time to the trial, but he had no possession, at any time, within the limits of the Hipp grant.</p> <p>“ The jury were instructed, that to give the plaintiff a title by possession against the Hipp grant, it was necessary that the plaintiff should shew a possession of ten years within its limits. That his constructive possession of ten. years, arising from an actual possession outside of the limits of the Hipp grant, could not confer title against it. The only matter about which I entertained any doubt, was, whether the partition between the plaintiff and defendant, accompanied by ten years possession of other parts of the land, might not have the effect of estopping the defendant from denying the plaintiff’s title. But as I was not aware of any case in which a period short of twenty years had been held to be enough to presume the execution of a deed, I was reluctantly brought to the conclusion, that there was nothing in the case which would justify me in holding that the defendant was estopped from denying the plaintiff’s title. This being the case, and the defendant having the unquestionable legal title undivested by the plaintiff’s possession, the Jury found a verdict for the defendant.”</p> <p>The plaintiff appealed, and now moved for a new trial, on the following grounds, to wit.</p> <p>1. Because it was proved, on the trial, that the plaintiff held the land in dispute, by metes and bounds, more than ten years previous to the trespass; and this was known to the defendant.</p> <p>2. Because defendant admitted the metes and bounds of plaintiff’s lands, having agreed to the lines as established by Cook, the surveyor, on the 5th February, 1833.</p> <p>3. Because his Honor erred in charging the jury, that the possession of plaintiff for ten years, claiming by metes and- bounds, did not give plaintiff a statutory title.</p> <p>4. Because his Honor erred in charging the jury, that the plaintiff’s ten , year’s possession, as above stated, was not good against all the world, particularly the defendant, who agreed to the lines between himself and plaintiff, and subsequently claimed under a senior grant.</p> <p>5. Because the parol agreement between the plaintiff and defendant operated, after the lapse of ten years’ possession by plaintiff, as a deed from defendant to plaintiff.</p>

<p>The proprietor of lands below, may, by prescription, acquire the right to have water, which, in its natural course, flowed through and over his lands, diverted from its natural course, and thrown back upon the lands of the proprietor above.</p>