Volume 32 — South Carolina Law Reports

<p>Tried before Mr. Justice Evans, at Abbeville, Fall Term, 1816.</p> <p>This was an action of trespass to try title. The land had been purchased by plaintiff’s father, who soon after died intestate, leaving plaintiff an infant. His administrator leased the land for several years, to defendant, amongst others. The land was afterwards sold, by decree of the Ordinary, on the application of the plaintiff’s guardian. At the sale defendant became the purchaser of the land, and paid the money, which went into the hands of the guardian, who was insolvent, and whose bond proved to be deficient. A verdict was rendered for the plaintiff by consent, with leave to the defendant to move to set it aside, and to enter up judgment of non-suit. The grounds will sufficiently appear in the opinion of the Court of Appeals.</p>

<p>The process set out: “The petition of Archibald Kennedy, survivor of James Foster and Jane Faltón, who, together with the said Archibald Kennedy, lately did a mercantile business, under the firm of A. Kennedy & Co., &c:” the proof Was, that no such persons as Foster and Patton were in existence at the date of the note: Held, that all that part of the description beginning with “survivor of,” might be rejected as surplusage, and was not such a variance as would sustain a motion for non-suit.</p>

Tried before Mr. Justice Frost, at Fairfield, Extra Term, July, 1846. This was an action to recover the balance due the plaintiff, on an execution against Isaac Arledge, Jun., son of defendant. Defendant had promised, that if plaintiff would delay said execution, he, defendant, would pay $100 in cash, and the balance in one year. Plaintiff was non-suited. The opinion of the Court discloses the ground upon which he appealed, and moved to have the non-suit set aside.

Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846. This was an action of trespass to try titles. Edward Coleman, by his will, devised to John Coleman “half of the old tract of land that I bought, from Abney;” and to Edward Coleman, in like terms, the other half. The plaintiff claimed under this devise. The defendant claimed under the residuary legatees of Edward Coleman.

Tried before Mr. Justice Frost, at Fairfield, Spring Term, 1846. This was an action of Replevin. The defendant, by his avowry, admitted the taking of certain goods of the plaintiff, as a distress tor the amount of a year’s rent, which was then due, but not alleged to be still due. Issue was joined on the allegation that the rent was due at the time of the distress.

<p>The pica, puis darrien continuance in bar, is a waiver of all former pleas. 1 Chitty, 636.</p>

Tried before Mr. Justice Frost, at Spartanburg, Spring Term, 1846. This was an action on a note. The defence was, that the note had been given for the purchase of a negro, who was unsound. By the direction of parties, the negro had been sold by the sheriff on a credit of twelve months, and purchased by defendants, who gave the note in question.

Tried before Mr. Justice Wardlaw, Chester, Fall Tern), 1S4G. Debt on Judgment. Defence, satisfaction by arrest of defendant under ca sa. Defendant refused to make a schedule, and, as plaintiff would not become responsible for costs, he was discharged by the sheriff. Under the direction of the presiding Judge, the jury found a verdict for defendant.

<p>Tried before Mr. Justice Wardlaw, at Laurens, Spring Term, 1846.</p> <p>This was a rule on the sheriff to show cause why he did not pay over money m his hands. The money was claimed by plaintiff as judgment creditor, and by defendant as assignee of the same party. The presiding Judge, upon cause shown, granted leave to plaintiff to file his suggestion, and make up an issue to try whether the assignnment, be, or be not, fraudulent and void.</p> <p>The defendant appealed.</p> <p>Because ihe Court of Law has no jurisdiction to try the validity oí the assignment in question, and because the plaintiff was barred from questioning it, by the Statute of Limitations.</p> <p>cited, 1 Rich. 4, 3 John. 142.</p>

Tried before Mr. Justice Wardlaw, at York, Fall Term, 1845. Trover for fourteen negroes. The plaintiff sought to recover damages for the conversion of Bet, her children and grand children, fourteen in all, as they were set down in the declaration. Bet, in 1805, was a small girl, and belonged to Abraham Collins, sen. The plaintiff maintained that shortly after that time, Abraham Collins, sen., gave or sold Bet to Patsy Collins, wife of his son, Martin Collins.

Tried before Mr. Justice Evans, at Abbeville, Fall Term, 1846. This was an action on a penal bond, conditioned to pay money in three instalments: two were due when the action was brought. After the commencement of the suit, the defendant paid up all that was due, and the costs; and on the first day of the next term, applied for leave to plead this, puis darrien continuance.

Tried before Mr. Justice Wardlaw, at York, Fall Term, 1846. This was an issue on the return of a garnishee. In November, 1844, plaintiff sued out a writ of foreign attachment against Mrs. Ciciily Herndon, widow, the absent debtor. A copy was served upon the defendant, and a negro woman named Daphne, attached in his hands. Defendant, by his return as garnishee, denied that he had in his possession any thing belonging to the absent debtor.

<p>Tried before Mr. Justice O’Neall, Kershaw, Spring Term, 1846.</p> <p>The first case was an action of debt, on the official bond of the late Ordinary of Kershaw District. It appears, that a part of the personal estate of a deceased testator had been sold under the order of the Ordinary, and purchased by the executor at his own sale. The executor paid the Ordinary the cash part of the purchase money, and gave a bond and security, with a mortgage of the property, lor the payment of the balance. When the bond fell due, he paid in like manner the entire amount.</p> <p>The executor, some time after, demanded payment from the Ordinary of the money he had; and, with this demand, he was unable to comply. Under the direction of the presiding Judge, the jury rendered a verdict against the defendants, whose testator had been a surety of the Ordinary. The defendants appealed and moved for a new trial, on grounds which will appear in the opinion.</p> <p>The second case, differing only in a slight degree from the first, was considered in connection with it. The difference appears in the opinion.</p>

Tided before Mr. Justice Wardlaw, at Greenville, Spring Term, 1846. This was an action of assumpsit on the guaranty of two bonds. The declaration alleged, in various counts, the consideration of the guaranty to have been an agreement to extend forbearance to the obligor of the bonds, for a reasonable time. The pleas were, the general issue and the Statute of Limitations.

Tried before Mr. Justice O’Neall, at Darlington, Fall Term, 1846.

Tried before Mr. Justice Evans, at Greenville, Fall Term, 1846. This was an action of Trover for a slave named Will, part of a trust estate.

Tried before Mr. Justice Wardlaw, at Lancaster, Fall Term, 1846. This was a sum pro for money had and received. The plaintiff claimed that, as assignee of an execution, E. G. Crockett v. Massy, he was entitled to the money which the sheriff had collected under that execution. The defendant maintained, that one Barnett, through his attorney, had a prior right to the money.

Tried* before Mr. Justice Fkost, at Fairfield, Extra Term, July, 1846. This was an action of Trover for five slaves, claimed under a deed 10 plaintiff and wife, the daughter of the grantor. The deed included thirteen slaves. All, except these in dispute, had been delivered to the plaintiff in the life time of the grantor.

Tried before Mr. Justice Wardlaw, at Chester, Fall Term, 1840. Held: that a misnomer of the plaintiff can only be taken advantage of by plea in abatement; and the Court, refer-ing to several authorities, said, “that a misnomer of the plaintiff would only be taken advantage of by plea in abatement.” In that case the plaintiff had sued as Mary Morley, when her name was Martha Morley.

<p>In an indictment for gaming, to subject tho defendant to the pecuniary penalty under the Statute, it is necessary, on the part of the State, to prove the offence to have been committed within six months before the commencement of the prosecution; and when the issue of limited time is found for the defendant, and his guilt before the time found against him, the verdict of the jury should show the finding on each issue, by such words as, “guilty, but at a time more than six months before the commencement of the prosecution.”</p>

Tried before Mr. Justice Wardlaw, at York, Fall Term, 1846. Assumpsit on two papers, whereby the defendant promised to pay to the plaintiff certain amounts in “hubs, or lumber,” viz: 1 for $110 12, dated 1st January, 1845, at one day, credited by $3 00, Oct. ’45, and by $59 25, 20th March, ’46: 2d for $45 80, dated 31st January, ’46, at one week, expressed to be “for value received on settlement up to date.” These papers having been admitted, the defendant proceeded to…

<p>Tried before Mr. Justice Frost, at York, Spring Term, 1846.</p> <p>This was an issue to try whether an execution of John Minter, a. Kidd and Moi’row, lodged in the Sheriff’s office the 11th June, 1827, was satisfied.</p> <p>The proof was, that soon after Minter recovered the judgment, he took in payment of it, the joint note of the defendant Morrow, and one Coonrod; which had been paid by Coonrod to Minter, some years before the assignment, by Minter to Moss, of the said execution. The witness, who paid the money, could not remember how many years had elapsed since the payment. Afterwards, Coonrod being indebted to Moss, procured Minter to make an assignment of the execution to Moss. This assignment is dated the 4th March. 1842, andadas, that the execution assigned, “had been settled with Minter, March 2d, 1843;” appended to the execution was a certificate by Minter, without date, that he “had received payment in full of this case, about October, 1836.” Thomasson, the Sheriff, proved that this certificate had been given and affixed to the execution at his request, and for his protection in applying the proceeds of the sale of a tract of land of Kidd, which he had levied on and advertised for sale in November, 1841, and that the certificate was given between the date of the advertisement and the sale day.</p> <p>The defendant in the issue offered to prove the declarations of Kidd, that the execution in question was not satisfied; and the proof was rejected.</p> <p>The jury found in favor of the plaintiff in the issue; and the defendant appealed and moved for a new trial; because his Honor excluded the declarations of William Kidd, the defendant, in the execution of John Minter.</p>

<p>Tried before Mr. Justice Wardlaw, at York, Fall Term, 1846.</p> <p>Covenant on the warranty oí title in the conveyance of land. It appeared that the defendant conveyed to the plaintiff, with general warranty: that the plaintiff was sued by Stevens and others, at Spring Term, 1844, in an action of trespass to try the title of the land conveyed, and immediately gave notice of the suit, to the defendant, and required him to defend; that the defendant did defend, and upon trial had at Fall term, 1845, recovery of the land was had by Stephens and others.</p> <p>The defendant offered to shew that he had really conveyed a good title, and that the recovery against the plaintiff (then the defendant in the suit brought by Stevens and others) would not have been bad if she had attended Court. It appeared that some copy deeds offered on part of the defendant in the former case, had been rejected for want of the affidavit of this plaintiff, then the defendant, under the act which admits copies, after thirty days notice, and affidavit. The presiding Judge thought that diligence on the pari of this defendant, then defending for this plaintiff, the case of Stevens and others, would have procured the necessary affidavit, but submitted it to the jury, to inquire whether by any collusion with the former plaintiffs, or by any negligence, this plaintiff had procured, or promoted the recovery against her.</p> <p>The jury found for the plaintiff, and the defendant appealed, because the Court held and so charged the jury, that the plaintiff was entitled to recover on the defendant’s warranty, although it was admitted that the title of the defendant to the land, warranted, was paramount to that under which the plaintiff was evicted.</p>

Tried before Mr. Justice Feost, at Columbia, Fall Term, 1848. Motion to set aside the service of the writ in this case. The plaintiff, a resident oí Columbia, sued out a writ in assumpsit, against the defendant, returnable to Richland District, and served a copy on the President of the Company, in Columbia. The cause of action was an alleged loss of the plaintiff’s goods, in the carriage of them by the Rail Road, from Charleston to Columbia.

<p>The widow is the tenant of the heir or owner, for the land held in dower, and he must defray the expense of assigning her her dower, whether by his own act or by legal proceedings; and he cannot exempt himself from the charge by a return to the summons, that he was ready and offered to assign the demandant her dower before the summons was issued.</p>

<p>Where one, not a party to a note, divides with the maker, the consideration for which it is given, promising to pay his half of the amount when the note becomes due, the Statute of Limitations will begin to run in bar of a suit for the breach of this promise as soon as the note becomes due and is unpaid; nor will its subsequent payment in full, by the maker, raise an implied assumption to him, by the party committing the breach, for money paid and advanced.</p>

Tried before Mr. Justice O’Neall, at Marion, Fall Term, 1846. This was an action of trespass to try title. The title to the land had once been in Seacebrook Watson, who died intestate, leaving a widow and eight children, of whom the plaintiff was one. The plaintiff, by purchase, had acquired the shares of four others of the children, making his interest five-eighths of two-thirds of the land in dispute.

Tried before Mr. Justice Frost, at Union, Spring Term, 1846. This was an action of assumpsit for the recovery of a wager.

Tried before Mr. Justice Wardlaw, at Abbeville, July, Extra Term, 1846. Held: that though there was no administration nor will, a sale, by a distributee, of a negro, Dave, the property of Nancy Glasgow, the intestate, a legal consideration to support a promise of payment by defendant’s testator to plaintiff. 3d. Because his Honor held, an action could be maintained by one distributee of five, under the…

Tried before Mr. Justice Richardson, at Horry, Spring Term, 1846. This was an indictment for assault and battery. The only question was—had the defendants, or either of them, assaulted Litchfield, the prosecutor, by rudely stopping bis horse and chair on the road, in order to get a negro then in the chair with Litchfield. Litchfield and his brother had got possession of a negro claimed by Edge. They were carrying him off, under some supposed claim of their mother.

Tried before Mr. Justice Feost, at Fairfield, Extra Term, July, 1846. Trover for five negroes, Rachael, York, Green, Mary, and Charlotte. A. demand and refusal were admitted. The defendant had purchased these negroes, at a sale by the Sheriff, under an execution against David Elkin; and the issue depended on the question, whether the negroes were the property of David Elkin, or subject to levy and sale for the payment of his debts.

Tried before Mr. Justice Fkost, at Fairfield, Extra Term, July, 1846. In this action of assumpsit, the plaintiff claimed from the defendant $1,541, under the following receipt: “Daniel M’Mahon v. Nath.

<p>An indictment will not lie, for obstructing a private way, leading1 to a landing place oil a navigable river, by charging it as an obstruction to a j.ublic landing: nor indeed can the landing be public, if the private way be the only road leading to it.</p> <p>A public landing must be the terminus of a public road.</p> <p>A prescriptive right to a landing cannot be larger than the right of way by which it is reached.</p>

Tried before Mr. Justice Frost, at York, Spring Term, 1846. This was an action of assumpsit, to recover money had and received to the use of the plaintiffs, by the defendant, as Ordinary. Martha C. Lee was the widow of John B. Quirl, who had intermarried with Jonathan Lee. Quirl left two children, to whom his widow had been appointed guardian.

Tried before Mr. Justice Wardlaw, at Union, Fall Term, 1846. This was an action of debt on a sealed note, of which the following is a copy: $2500 00. Three years after date I promise to pay William B. Farr, the sum of two thousand five hundred dollars, with interest from the date, to be paid punctually, at the end of each year, without fail, for value received; as witness my hand and seai, this 1st day of October, 1835. (Signed,) Nathan Sims.

<p>Tried before Mr. Justice Wardlaw, at Fairfield, Fall Term, 1846.</p> <p>This action was brought to recover damages for the battery and false imprisonment of the plaintiff.</p> <p>It appeared that Chambers, on 18th January, 1845, sued out a writ in debt against Stone, which was accompanied by a proper affidavit, and was marked for bail: Stone lived at Morrah’s, 8 miles from Winnsborough. The writ was lodged in the Sheriff’s office, in the evening of the day it was sued out, and Chambers stated to the Sheriff his apprehensions that, Stone would run away from the country that night. The regular deputy of the Sheriff being absent, and the Sheriff himself being unable to execute the process, the Sheriff could only promise that the matter should be attended to next morning. Chambers asked the Sheriff to deputize William Patterson—who had sometimes served writs, but had never made an arrest, and who was an overbearing, boastful, stout Irishman, of little character, and who has since left the State clandestinely. The Sheriff did either 1st, refuse altogether to permit Patterson to exercise the authority of law: or 2d, refused to assume responsibility for his acts, consenting however that Chambers, at his own risk, might appoint him as special bailiff to execute this process: or 3d, contrary to his expressed refusal to deputize him, in effect, by the acts of himself and his Clerk, make Patterson his special deputy, in relation to the writs under which Patterson proceeded, and the bonds he took. The testimony on this point was derived altogether from the Sheriff and from his Writ Book, and the Writs and Bail Bonds in the case of Chambers v. Stone, and another case of Peak v. Stone.</p> <p>Chambers received his writ from the Sheriff, and delivered it to Patterson, who somehow got also Peak’s writs and blank bail bonds. Patterson went, and finding Stone drunk, after some conversation with him which nobody heard, followed him into Morrah’s house, threw him down, and tied his hands behind his back with a silk handkerchief: then applied to Morrah for a cart to haul him in, which being refused, he went to Thomas’s, a mile off, for a vehicle. In Patterson’s absence Morrah untied Stone. Patterson returned with a horse, threw Stone again, tied his hands with a handkerchief, and his feet with a rope, took a pistol and a watch from his pockets, and lifted him upon the horse. Stone fell, but received no damage» or if any, only a scratch on the wrist. Patterson then left him lying on his belly tied, and came off to Winnsborough for a cart: when he returned, Stone gave bail. In all the transaction, no resistance or threats of Stone appeared; nor any explanation of the motives of Patterson.</p> <p>A non-suit was moved upon the grounds, 1st, that Chambers was not liable at all, as he directed a lawful and not an unlawful act: 2d, that the action should have been case, not trespass.</p> <p>The presiding Judge refused the non-suit—and charged the jury to enquire:—</p> <p>1. Whether the Sheriff’s authority had been delegated to Patterson, so as to authorise an arrest by him. If not, he held that Chambers was a trespasser.</p> <p>2. Supposing Patterson to have had authority to arrest— whether he was guilty of unnecessary violence. If so, he held that he, and all who with their assent contributed to his unnecessary violence, became trespassers ah initio.</p> <p>3. Whether Chambers had in any way, by previous pro. curement or subsequent ratification, manifested his assent to the unnecessary violence of Patterson.</p> <p>He held that if Patterson had authority for the arrest, he was, 1st, the Sheriff’s special deputy, for whose acts, (apart from the assent of third persons,) the Sheriff only was responsible: or 2d, the deputy of the Sheriff, appointed at the request and risk of Chambers, in effect the Bailiff of Chambers, for whose acts Chambers only was responsible: or 3d, a special Bailiff irregularly appointed, so that both the Sheriff and Chambers were responsible for his acts. He held that although the Sheriff might be answerable in trespass for the acts of his deputy, yet that for the unnecessary violence of a speeia] Bailiff appointed to do a lawful act in a lawful way, Chambers, without any assent to such unnecessary violence, would be answerable only in case.</p> <p>The jury found for the plaintiff $13, and the defendant renewed his motion for a non-suit.</p>

<p>Tried before Mr. Justice O’Neall, at Barnwell, Fall Term, 1845.</p> <p>This was an action of trover, to recover damages for the conversion of a negro woman. She was once the property of a man of the name of Stallings, and purchased at the sale of his estate by J. J. Stallings, who to secure the payment of the purchase money, mortgaged her to Preston Harley, the administrator, on the 13th December, 1846. The mortgage was recorded in the office of the Register for Barnwell district, 5th April, 1837. After this, J. J. Stallings exchanged her with J. P. Walker, for another negro. Walker, on the 21st January, 1837, sold her to A. S. Stansell, for $1000. Stansell, on the 8th April, 1840, sold her to the plaintiff for $670. The bill of sale from Stansell to the plaintiff, was recorded in the Secretary of State’s Office, Charleston, subsequent to the institution of this suit, to wit: 16th August, 1845. On the 4th March, 1844, the negro was seized under the mortgage from J. J. Stallings to Preston Harley, and sold to the defendant for $360. Notice was given of the plaintiff’s claim, to the persons present, when she was sold. A conversion was proved.</p> <p>The question was, whether the plaintiff’s title could prevail against the mortgage ? I thought it could not. The act of 1698 provides, “that that sale or mortgage of negroes, goods, or chattels, which shall be first recorded in the Secretary’s Office, Charleston, shall be taken, deemed, adjudged and allowed of, and held to be the first mortgage, and good, firm, substantial and lawful, in all courts of judicature within South-Carolina, any former or other sale or mortgage for the same negroes, goods and chattels, not recorded in the said office, notwithstanding.” 2d Stat. 137. The title as well as the preamble, show that this Act was intended to guard against double mortgages and sales, by the same person. A mortgage unrecorded is good, and will have effect against every other title inferior to it, except a sale or mortgage from the same person, recorded before it. Here the bill of sale from Stanscll to Youngblood, is the same as if it had not been derived from Stallings. It is, as against the mortgage, the bill of sale of a third person, and the Act gives no precedence to it. But if recording could give it such precedence under other circumstances, it could not in this case ; for when the mortgage was foreclosed, it was not recorded.</p> <p>The jury found for the defendant. The plaintiff appeals on the annexed grounds:</p> <p>1. That his Honor erred in charging the jury, that an unrecorded mortgage of a slave, entitled the mortgagee to seize and sell the mortgaged slave, in the hands of a subsequent purchaser, from the mortgagor, having no notice of the mortgage, and to whom the sale was made by mere bargain and delivery, without any writing, so that there was nothing to record.</p> <p>2. That he erred in charging the jury, that the bill of sale of the negro in dispute, from A. S. Stanscll to R. Youngblood, and which was recorded in the Secretary’s Office in Charleston, was not the first bill of sale recorded within the meaning of the Act of 1698.</p> <p>3. That an unrecorded mortgage is void against a subsequent purchaser of the mortgaged property, without notice of the mortgage.</p> <p>4. That the verdict is contrary to law and evidence.</p>

<p>Tried before Mr. Justice Frost, at Lancaster, Extra Court, July, 1846.</p> <p>This was an action of trespass to try title. Samuel Caston was, at the time of his death, seized and possessed of the land in dispute, and died in 1831, having first made a will, by which he gave to his widow, the defendant, during her life, the plantation on which the testator lived, and his negroes and other personal property, charged with the payment of the testator’s debts, and the support and education of his children; and to his daughter, Elizabeth Caston, the testator devised the tract of land in dispute, “during her natural life; and then to descendió her issue; and if she should die without any living issue, her share to return back to testator’s living heirs, share and share alike.” The will was dated 11th May, 1829, and admitted to probate in June, 1831. One Williams married Elizabeth Caston. Elizabeth Williams died in 1836 or 1837, leaving issue the plaintifFs in this action, who are all under age; the oldest aged seventeen years. On the cross examination of the plaintiffs’ witnesses, it was proved that after the testator’s death, the defendant took possession of the tract in dispute, and has continued to live on it ever since. One witness stated that he heard the defendant say, Williams had told her she might stay as long as she pleased on the land; that he had no use for it; and that he (the witness) had no doubt the defendant occupied by Williams’ permission. About 1835, the house which defendant occupied on the tract, was burned. After the house was burned, the same witness heard the defendant say, she would not rebuild until she got permission from Williams. The witness heard, before the house was burned, that the defendant lived on the land by the permission of Williams. He heard Williams say so. He never heard any agreement, further than they both said so. The defendant did afterwards put up a respectable frame house and out-buildings on the tract, worth five or six hundred dollars. The defendant had cultivated a small part of the land, varying in quantity, but not exceeding twenty acres-The defendant who, with-Caston, was appointed executrix, qualified on the will, and principally, if not exclusively, administered the estate.</p> <p>A motion was made for a non-suit, on the ground that the devise to Elizabeth Caston vested in her a fee simple, which was overruled; because, in the opinion of the circuit Judge, the devise vested only a life estate in Elizabeth Caston; and if the fee were vested in her, that would not justify a non-suit.</p> <p>The second ground for non-suit was, that the defendant entered by permission of Williams; and thus holding by a tenancy at will, was entitled to notice to quit, before action brought. This objection was not sustained, because, admitting that defendant entered as tenant at will to Williams, the tenancy determined when his interest expired, by the death of his wife in 1835, and he had no authority nor guardianship with respect to the land devised to the plaintiffs.</p> <p>The defendant proposed to prove an agreement, by Williams and his wife, that in consideration that the defendant should rebuild the house, she might occupy the land as long as she lived; and the evidence was rejected, because Williams and his wife could not charge nor encumber, any more than they could alien the estate of the plaintiffs. ⅜ * The jury found</p> <p>for the plaintiffs the land claimed.</p> <p>The defendant appealed on the grounds taken below, and because his Honor rejected the evidence of the agreement above mentioned.</p>

Tried before Mr. Justice Frost, at Union, Spring Term, 1846. This was an action on certain notes, and an account for ,$17. The notes were admitted. The proof of the account was, that Rogers, the plaintiff’s testator, carried on the blacksmith’s business, by his slave, who had entire charge of the workshop.

Tried before Mr. Justice Wardlaw, at Spartanburg, Fall Term, 1846. Trover for two negroes, Phillis and Granville. The first count, alleges a trover and conversion in the lifetime of the intestate: the second, alleges a trover in the lifetime of the intestate, and perhaps a conversion too^—but it seems intended to allege also a conversion after his death. The pleas are, the general issue and the Statute of Limitations.

Tried before Mr. Justice Evans, at Chesterfield, Extra Court, July, 1846. This was an action of trespass quare clausum fregit. The land was included within the lines of a grant to one Peed, in 1798. One Hall had lived on it for two or three years, and sold it to Johnson, (the plaintiff,) who lived on it three, four, or five years; but no conveyance to either Hall or himself was produced from Reed, the grantor.

<p>On application for the benefit of the “insolvent debtor’s act,” the Clerk of the Court may, without the signature of the Judge, issue the rule or order for calling in the creditors of the applicant. Though not strictly in accordance with the act of 1759, this practice is too old to be disturbed.</p> <p>Service upon creditors, not appearing, should be verified by affidavit.</p> <p>The creditors should be notified to appear on a day certain.</p>

Tried before Mr. Justice Frost, at Kershaw, Fail Term, 1846. The defendants were the sureties of one Lee, in a recognizance (dated 27th Dec. 1844,) to appear and answer to a charge of gaming. The principal was convicted, and never appeared to receive sentence, but escaped to Georgia. A sci.fa. having been duly served on the defendants, they shewed for cause against the estreat of the recognizance, that the same was irregularly taken and void.

Tried before Mr. Justice Evans, at Laurens, Fall Term, 1846. The prisoner was indicted as principal, and as accessory before the fact, for the murder of N. C. Vance. After the prisoner’s arrest, he was visited by Major Kirby, who said to him, “if you are clear of the charge, I would give one hundred dollars to know it,” and offered to procure the attendance of witnesses, and to be his security to get him out of jail.

<p>Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846.</p> <p>This was an appeal from a decree of the Ordinary, upon the question, Devisavit vel non. Henry C. Turner was one of the subscribing witnesses to the will of Moses Harris, bearing date 21st August, 1840. When he was called on the stand on the part of the Executor, D. Harris, his competency as a witness was objected to, on the ground that he had been convicted of an infamous offence. In support of this objection, an exemplification of a record from the Circuit Court of the United States, for the district of Georgia, was produced, by which, it appeared that the witness had been convicted of opening the mail whilst he was the carrier thereof, and taking money which had been enclosed in a letter. Upon this state of facts, .the presiding Judge held that the witness was incompetent. But upon being-satisfied that he had obtained what his Honor regarded as a pardon from James Monroe, President of the United States, which will be produced, he held that the competency of the witness had been fully restored. He was examined. When William A. Turner was called, another attesting witness of the will, he was objected to on the ground of defect in his religious belief, from which, it was contended, he was not sensible of the obligation of an oath. Mr. Turner was one of the constables of the Court, and although he was a man of ordinary intelligence, he was not a man of reading or philosophical turn of mind. He was asked the question—do you believe in a future existence? and in future rewards and punishments? He replied, ah ! who can tell what is to be after death; none of us can tell; I cant tell. In other remarks, he showed he had no settled belief. But when asked, if he believed in a God, he promptly answered, surely I do; and said, in answer to other questions, if I were to commit a falsehood unknown to any human being, and in secret, I should feel the sting of conscience, and would be certain, that if not after death, in some way I should suffer for it. Mr. M’Daniel, sen., the father-in-law of the witness, said he was a member of the Baptist. Church., and had frequently conversed with W. A. Turner on religious subjects, and that in these conversations W. A. Turner would maintain, that although man was created by a God, he would perish like the beasts of the earth. The witness was held to be competent, and he was examined.</p> <p>The plaintiff appealed. Because, under the circumstances, his Honor, the presiding Judge, held the two witnesses above named to be competent, and allowed them to testify.</p>

<p>Tried before Mr. Justice Butler, at Gillisonville, Fall Term, 1846.</p> <p>This was an action of trespass, quare c7ausum fregit, brought against the defendant, for cutting a ditch on plaintiff’s land, and across a road leading from his plantation residence. The ditch was dug across this road, at its junction with another road, known as a private neighborhood road. It is as to the character of the road, the parties are mainly litigating. It run over the plaintiff's land, from the residence of the defendant and others, to some of their plantations, and into a public road. It was not laid out by any public authority, but for many years— certainly as far back as 1817—it has been indifferently used by persons living in its neighborhood, as they might have occasion to haul over it. Its average width is about ten feet; and at the time of the alleged trespass, it was used by the following persons;—Sams, Fripp, Reynolds, and the defendant, M’Kce. Until within a few years past, it had not been worked on by any understanding of those who used it.</p> <p>In 1840, some, or all of the above individuals, presented a petition to the Board of Roads, for St. Helena, to have it put under their jurisdiction, for the purpose of keeping it in repair. No notice of the application to the Board was given to the plaintiff, nor did it appear from the minutes of the Board, that any action had ever been taken on the petition. All that was known of it was, that such a petition was found folded up in one of the books kept by the Clerk. The road was within the division of the defendant, and as a Commissioner, he assumed the authority to have it worked on by the hands of those who used it. When the, plaintiff was called on to send his hands, he refused to obey the summons, and denied the authority of the defendant. The defendant put the hands that were sent, under the charge of Air. Reynolds, with instructions to work the road. When he came to the plaintiff’s plantation road, he cut a ditch, (the trespass,) parallel with the neighborhood road, and across the plaintiff’s way. Air. Reynolds, who was examined as a witness, said he had it done for the purpose of draining the water off of the road, being under the impression at the time, that the plaintiff had abandoned the use of the road, as he said he had been so informed by Air. Codding, the overseer of the plaintiff. Air. Codding differed in the statement, and said that the plaintiff had instructed him to use a new road in hauling manure to the fields,—not to abandon this, as it was the main carriage way to the house.</p> <p>This witness said that the ditch, about two feet deep, and two and. a half wide, had been a serious inconvenience. That some of the family of the plaintiff had to have fences pulled down to get to the house.</p> <p>It was conceded by plaintiff’s counsel, that Mr. M’Kee had a private right of way in the road, and to that extent, the plaintiff had no objection to his and others using it; but denied the right of the defendant to have it regarded as a public neighborhood road. The main question was, whether the defendant was justified in cutting the ditch, under his authority to work on the road. His Honor held that he was not j ustified under any such authority. First, because there was no evidence that any had been conferred by the Board; and secondly, if it had, it could not avail him, as the Board had no right to assume jurisdiction over the road, without pursuing the provisions of the Act of 1825.</p> <p>He said, however, that it was incident to the enjoyment of the way as a private way, to have the road kept in repair; but that he had no right in thus working on his way, to obstruct the plaintiff; and that if he had occasion to cut the ditch, he should have made a bridge over it for plaintiff's use. The jury returned a verdict of $20.</p> <p>The defendant moved for a new trial, on the following grounds, to wit:—</p> <p>1st. That the defendant had a right to work the road in question, either as a Commissioner, under the several Acts of Assembly, or as an individual who, (with others,) had a right of way, as was clearly proved, in the premises.</p> <p>2d. That the defendant was ordered to work the said road by the Board of Commissioners for the Parish of St. Helena, as a road which was used, and had for a long time existed as a neighborhood road, open and well established; which order did not conflict with the provisions of the Act of Assembly of 1825.</p> <p>3cb That if this case came within the provisions of the Act, the Board of Commissioners in their action thereon, will be presumed to have complied with the provisions of the law, in the absence of all evidence to the contrary.</p> <p>4th. That the particular act, alleged against the defendant, as a trespass, was claimed by the witness, Reynolds, to have been his own act, not authorized by the defendant, or any other person.</p> <p>5th. That the finding of the jury, was contrary to his Honor’s charge and the evidence, and was in all respects unjust and contrary to law.</p> <p>Cited Glover v. Simons, et al. Commissioners; 4 M’Cord, 67; to show that Commissioners have jurisdiction over private paths in their neighborhood, as distinguished from public highways. He said the Act of 1825 provides only against opening new roads, without complying with certain requisitions. That defendant had a right of way in this road, and both he and Reynolds had a right to work it, independent of his being a Commissioner; and that if a trespass had been committed, it was the act of Reynolds, and not of the defendant.</p> <p>Contended that this was no public road. That the Act of 1825 provides that no new road shall be opened without three months notice in the neighborhood, and, if opposed, not until after the hearing of both parties before the Legislature; and that this act would be ex post facto, as to the case cited from M’Cord. He cited the Act of 1798, 9 Stat. at Lar., 293.</p>

Tried before the Recorder, in the City Court of Charleston, July Term, 1846. This was an indictment for assault and battery upon one Mary Jane Adams.

Tried before Mr. Justice Butler, at Gillisonville, Fall Term, 1846. This was a summary process to recover fifty dollars for a surgical operation. The defendant being the plantation physician of Mrs. Eustis, and finding it necessary that a surgical operation should be performed on one of her negroes, requested the overseer to send for the plaintiff. He came and performed the operation necessary, without any assistance from defendant.

Tried before Mr. Justice Evans, at Gillisonville, Spring Term, 1846. This was an action of trespass, quare clausum fregit. The alleged trespass consisted in this. The plaintiff is the owner of an island about eight miles long, and three quarters wide; surrounded by the sea, and deep, navigable waters. There is a house, with a small but dilapidated fence surrounding it, where the plaintiff has sometimes resided, but at the time of the trespass it was untenanted.

Tried before Mr. Justice Butler, at Gillisonville, Spring Term, 1846. These were several cases of executions against the persons and estates of tne defendants, for costs incurred by them under the clerk’s taxation, in certain cases of prohibition instituted by them against the Town Council of Beaufort and their Marshal, in which judgment had been rendered against the relators.

Tried before Mr. Justice Evans, at Gillisonville, Spring Term, 1846. This was an action of trespass de bonis asportatis. One Thompson, about the 5th of June, 1843, sold to R,eid, the plaintiff, a large stock of goods valued at $2803.77. After the sale, Thompson continued in possession of the goods as Reid’s agent, and sold a tew of them.

Tried before Mr. Justice O’Ne all, January, 1847. His Honor reports. From the returns of the election for Brigadier General of the 8th Brigade, it appeared that Col. James M. Commander, had a majority of thirty votes over his opponent, Col. N. G. Rich. The election was contested by Col. Rich, on the ground, among others, that fifty-nine votes were illegal. A board of officers was ordered by Maj. Gen. Harlee, according to law, to try the protest.

Tried before Mr. Justice Butler, at Charleston, May, 1846. Trespass for entering plaintiff’s store, and taking goods from his possession. The plaintiff had charge of a store in Georgetown, and as it seemed was doing business for one Crawford, living beyond the limits of the State. The defendant, Corlies, procured an attachment to be taken out against Crawford, as tin absent debtor, and put it in the hands of Commander, as Sheriff, to have it executed.

<p>When the plaintiff has a prima facie case, that must pass to the jury, and not be turned out of Court by a non-suit.</p> <p>Although the common law liability of carriers be controlled by the custom of excepting fire as a risk in the bill of lading, the carrier should be held to strict proof of diligence and care in avoiding loss to the owner by so dangerous an element.</p> <p>Customs and usages should be plain and distinct, ancient and certain, before men should be required to know them, as constituting the law of their contracts.</p> <p>He who would, by virtue of a special contract, derogate from his legal liability, is bound to give explicit information to all, of the precise limitation intended.</p> <p>Without the concurrence expressed, or plainly implied by the words or conduct of a party, he cannot be bound by the acts of another apparently assuming to be his agent, nor by a mistaken conclusion drawn by a third party, of such agency.</p>

Tried before Mr. Justice Butler, at Charleston, May Term, 1846. This was an action on the case for deceit, alleged to have been practiced in the sale of negroes. Plaintiff bought four negroes, at #500 each, from defendant, a Broker, and took a bill of sale for them from one Pettiway.

<p>Tried before Mr. Justice Butler, at Charleston, May Term, 1846.</p> <p>Assumpsit for the amount of defendant’s bid at Sheriff’s sale.</p> <p>The house and lot that was offered for sale, was situate on Meeting street. The execution—the irregularities of which constitute the main subject of this litigation—reads as follows:</p> <p>State of Soutii-Carolina, )</p> <p>City of Charleston, j</p> <p>To Robert Elfe, Esq., Sheriff of the City Court, or any of his lawful deputies. You, and each of you, are hereby commanded, without delay, that of the goods, chattels, houses, and lands, and other hereditaments, and real estates, of John White, within the jurisdiction of the said Court, you cause to be levied the sum of five hundred which Russel & Hall, before the Recorder of the said Court, at Charleston, lately recovered against the said John White, for damages; which they sustained, as well by reason of certain promises and assumptions, by the said John White, to the said Russell & Hall, made and not performed, as for their costs and charges, by them, in and about prosecuting their suit in that behalf, whereof the said John White, convicted, as appears on record. And also, that you cause to be levied the interest upon five hundred dollars, the principal of said debt, from the twenty third day of May, in the year of our Lord one thousand eight hundred and forty-three, the day on which judgment is entered in this case, up to the day on which levy shall be made and satisfaction entered on this execution. And that you have the money before the Recorder of the said City Court, at the Court to be holden at Charleston, on the first Monday in July next, to render to the said Russell & Sass, for their damages, costs, and charges, aforesaid; and have you this writ before the Clerk of the said Court, ten days next before the sitting thereof.</p> <p>Witness, F. S. Ward, Esq., Clerk of the said Court, at Charleston, the 14th day of May, in the year of our Lord one thousand eight hundred and forty-two, and in the sixty-fifth year of the Sovereignty and Independence of the Uüited States of America.</p> <p>The levy on the execution was made by an acting deputy— Isaac Jones: whether he had been sworn before he entered on the duties of his office, did not appear. He was the generally recognized deputy ofthe Sheriff, and executed an official bond as such. Jos. Sampson; the clerk of the Sheriff, said, he once heard the Sheriff say, that he had not given Jones a regular commission—but did not say whether he had been sworn or not.</p> <p>The return sworn to on the execution, was made after the commencement of this action, but the levy in fact had been made before the land was advertised for sale. For the purpose of obviating objections that had been heretofore made on the part of the defendant, and to show that he was not deceived, or mistaken as to the identity of the premises, the advertisement. of sale published in the newspapers, was introduced and admitted in evidence. There was also evidence that the defendant examined the premises, and was not therefore mistaken as to their identity.</p> <p>The entry on the execution was as follows:</p> <p>“Levied on this day, the defendant’s house and lot, situated in Meeting street, next to the Theatre.”</p> <p>Ninth February, 1843.</p> <p>The return was sworn to afterwards very nearly in the same words.</p> <p>Whilst the execution was in this state, the lot was offered for sale under it, and the defendant being the highest bidder, it was knocked off to him at 81,000.</p> <p>In going home, defendant called at the Bank, and ascertaining that the house and lot was under an incumbrance, for a fire loan, for a larger amount than he had supposed, determined not to comply with his bargain, and subsequently refused to take unexceptionable titles.</p> <p>The entry made by the Sheriff in his sales book, was as follows :</p> <p>“House and lot of John White, ads. of Russell and Hall, sold to Thomas N. Gadsden, for 81,000.”</p> <p>This entry in the book the presiding Judge regarded as a sufficient compliance with the law, especially as it did not appear that there was any ambiguity.</p> <p>The advertisement was admitted in evidence, for the purpose of indicating the identity of the property which was offered for sale at the time the defendant was present and made his bid.</p> <p>If it had been a new question, he would have had some doubt on one ground taken against the action, to wit: that the Sheriff should have resold the premises before he should be allowed to bring an action against the bidder at his original sale. He felt, however, bound by the authority of Moore and Aiken.</p> <p>The annexed grounds of appeal will explain the exceptions that were taken to the execution. He did not think the irregularity such as to affect the rights of purchaser at Sheriff’s sale.</p> <p>With regard to Jones’ not having been sworn as a deputy, the evidence was too vague to lead to any definite conclusion.</p> <p>The Sheriff having recognized and adopted his acts on the execution, his honor regarded them as legal and valid for the purpose of effecting the sale.</p> <p>Under his instructions on the matter of law, which have been adverted to, and which are noticed in the grounds of appeal, the jury found a verdict for the plaintiff.</p> <p>The counsel for the defendant excepted to the execution under which the levy was made, first, on the ground of irregularities in the execution itself; namely, that it directed the interest to be on the sum from the 23d day of February, 1813, the “day on which judgment was entered in this case,” when in fact no such judgment had any existence: again, the execution required satisfaction to-be made to Russell & Sass, instead of Russell & Hall, and was also returnable fifteen days before the sitting of the Court, and notin words “according to law.”</p> <p>The counsel also objected to the levy as having been made by an unauthorized agent, not commissioned and sworn as the law directs, and also contended that this action could not be maintained by the Sheriff, until a resale was made under the Act.</p> <p>The defendant appealed on the grounds,</p> <p>1st. That his Honor erred in allowing the Sheriff’s book to be submitted to the jury, together with the advertisement and book of original entry, of which it was not a true transcript, as the entry in the Sheriff’s sales book, unaided by the memorandum and the advertisement, are insufficient under the statute of frauds to bind the party-—-and as no reference in the sales book is made to either the memorandum or the advertisement, it could not be received in evidence.</p> <p>2d. That his Honor erred in charging that the irregularities in the execution, and want of regular appointment in the deputy, did not constitute valid objections to the levy, and authority to sell in this case.</p> <p>3d. That his Honor erred in charging that the Sheriff could maintain his action without a resale, as is prescribed in the Act of 1839.</p> <p>4th. That the verdict was contrary to law and evidence.</p> <p>The memorandum of one contracting party cannot bind the other contracting party; 5 Barnwell & Alderson, 335. The agent who makes the memorandum must be a third person, and not a party to the contract; 2 Camp., 203. In the case of Moore v. Aiken, 2 Hill, 403, the action was brought for a balance of purchase money. It is therefore not applicable in this case. The Act of 1796 requires the Sheriff to have the property appraised; that of 1798 went further, and requires ten per cent of the purchase money to be deposited, or a resale at the risk of the purchaser. The Act of 1839 orders a resale instantly, or on the next sale day, for noncompliance with terms, by a purchaser; sec. 58, Act of 1839. The memorandum, in this case, did not sufficiently describe the property. The case of Christie & Simpson, 1 Rich., 407, does not aid it.</p> <p>The Court will amend an execution to make it conform to the judgment; Giles v. Pratt, 1 Hill, 239; Vance & Davis, v. Wright & Younge, 2 Spear., 91; Towles v. Turner, 3 Hill, 177. The Sheriff must bring the action; see also page 331. The common law right to sell, is still allowed the Sheriff; Roinest v. Linea, 2 Rich., 465. The Sheriff of the City Court has this right. He is not a Sheriff of the State under the Act of 1839. By reference to pages 46, 334 and 335, of the digest of the City Ordinances, it will be found that there is a difference between the fees of the City Court and the other Courts. That its juries may sit longer, the time of testing writs is extended; also the time for taking sureties in cases of trover, &c., showing it to differ in practice in many respects from the other Courts of the State, and from analogy that its sheriff is not an officer of the State.</p> <p>Cited, Elfe, City Sheriff, v. Gadsden, 2 Rich., 73; Christie v. Simpson, 1 Rich., 407. Said the sheriff, in this case, was bound to bring the action; Towles v. Turner, 3 Hill, 178. That clerical errors did not vitiate the execution; Turner v. M’Crea, 1 N. & M’C., 11; Toomerr. Parker, 1 Mill, 223; Williamson v. Farrow, 1 Bail., 611. That the irregularities complained of were merely formal. That to bring the action at once upon the contract, without a resale, was the proper common law mode of proceeding, and that a resale was not necessary; Martin, et al, v. Smith, 6 East., 554; Scott v. Wilson, 1 M’C., 194; and Towles v. Turner, 1 Hill, 178.</p> <p>Insisted that a sheriff of the City Court is a sheriff of the State; Meadows v. Meadows, 3 M’C., 459; 1 Johns. Chan. Cases, 274; Simons v. Catlin, Kane, 66; and that the ten per cent law directs that a sheriff shall resell.</p>

<p>Tried before Mr. Justice Butler, at Charleston, May Term, 1846.</p> <p>Debt on bonds, executed jointly and severally, by Benjamin P. Colburn and the defendant, (with another.) They bore date 20th November, 1841, and were given to secure the payment of $12,000. The defence was, that these bonds had been obtained by fraud and misrepresentation, and that they were therefore void. The latitude of the defence was seen more in the argument than the plea. The circumstances under which the bonds were given were detailed by Col. Memminger in his evidence, and were as follows: He said, that while James Smith Colburn and B. P. Colburn & Co. occupied adversary relations to each other in respect to their accounts, he, as the representative of the latter, and Mr. Desaussure as the representative of the other, were called on to make a final settlement of them upon strict legal principles. That in the contest between the parties, nothing was conceded except the power of their respective agents to settle the whole matter according to their best judgment. A judgment that had been confessed by B. P. Colburn & Co., for $50,000, was before them, but he said it was not regarded as the true measure of indebtedness; on the contrary, the agents looked behind it. for a true statement of the accounts. After a fair calculation of what was due by B. P. Colburn & Co., he came to the conclusion that the firm owed James S. Colburn at least $12,000, and that for that amount the plaintiff had an unquestionable legal claim, but thought at law J. S. Colburn could have established a much larger amount. Such being his opinion, ho advised B. P. Col-burn, who was present, to give, as required, good bonds with security for that amount; and suggested to B. P. Colburn, the son-in-law of William Mathews, that he, Mathews, should execute the bond, and take an assignment of the judgment for $50,000, it being understood that Mathews was the endorser of the firm for a large amount. In conformity with this suggestion, B. P. Colburn made the application to Mr. Mathews, and obtained his signature to the bonds. In making these arrangements, he had no conference with James S. Colburn,—and throughout, B. P. Colburn seemed to represent Mr. Mathews, and was desirous of protecting his interests. After the bonds and assignments of judgment were executed, heard complaint of judgment, but not before. During the controversy in the settlement of the accounts, B. P. Colburn did produce a paper, purporting to have been signed by himself, in which it is said that J. S. Colburn was not a secret partner'. That seeing such a course of proceeding as that indicated by the son, would lead to very disagreeable and unbecoming developments of transae-tions between father and son, he advised the withdrawal of the paper, as he did not regard it as essential to the settlement of the legal demands between the parties; and said it was not proved, on the occasion referred to, that J. S. Colburn was a secret partner of B. P. Colburn & Co. After these bonds had attained maturity, and when the creditors of B. P. Colburn & Co. were pressing them for a settlement, B. P. Colburn became desirous of setting judgment and bonds aside, upon the ground that James S. Colburn had been secret partner, or on some such ground. The witness declined to institute legal proceedings for the purpose of setting them aside, giving it as his confident opinion, that it could not be done, tie was then employed to compound with creditors, which he did by procuring from them an agreement to accept fifty cents in the dollar.</p> <p>The witness, on his cross-examination, said he did not know that J. S, Colburn was present, when his son produced the paper referred to; the son, B. P., said that his father had taken a blank note with his name on it, and had filled it up with a declaration that he, J. S., was not partner. The witness said, that he had come to the conclusion that J. S. had no such interest in the assets as to make him a secret partner. Throughout Mathews was not present, and B. P. Colburn acted as his agent and representative.</p> <p>On the part of the defendant, two of the plaintiff’s sons were sworn; Fred. A. Colburn, living in Boston, and B. P. Colburn. The first said that, originally, the title of the firm was J. S. Colburn & Co.; that it was afterwards changed to F. A. Colburn & Co. The members of the firm were J. S. Colburn, F. A. Colburn, and Isaac Mordecai. J. S. advanced all the capital; two-thirds of the profits to go to witness; afterwards witness was to go out, and J. S. to receive half. B. P. Colburn said when he joined the firm, it was known as B. P. Colburn & Co. The understanding was, that J. S. Colburn was to receive half of two-thirds, and Mordecai to have one-third. Said the goods were ordered at his father’s instance. James S. would draw out money and goods when he wished. Mathews, his father-in-law, was an endorser for the firm, and has paid out $3,000. When he confessed judgment to his father for $51,000, he supposed it was right then; but before settlement did not think he owed any thing. His father had said that, under the judgment, he would take all the assets of the firm to satisfy it. After Mr. Memminger had examined the accounts, he went to Mr. Mathews, and made a communication ot what Mr. Memminger had said, and asked Mathews to join him in the bond. That he alone went to Mathews, and made all the representations to him that were made; his father was not present, nor did he send any communication, but insisted on enforcing the judgment. The witness said he told Mr. Mathews that his father threatened to enforce the judgment, and that he claimed all the assets under it. He did not tell Mathews that his father was a secret partner, nor did he s^y to him he thought the judgment bad. He induced Mr. Mathews to take an assignment, as the best wa.y of indemnifying himself against liability.</p> <p>Mr. Mazyck was going through a minute examination of the books of the firm, with a view of ascertaining what had become of the proceeds, when the presiding Judge said, if there was no further evidence of misrepresentation and fraud, it was unnecessary, on the part of plaintiff, to take up more of the time of the Court. Upon this suggestion, the counsel went to the jury, and argued the case at great length. His Honor remarked to the jury, that they had heard the case, and had jurisdiction over it; but he said, he saw nothing which, in his opinion, would authorize a verdict for the defendant. Without leaving their box, a verdict was rendered for the plaintiff.</p> <p>The defendant appealed on the following grounds;</p> <p>1st. That under the circumstances of the case, all the representation that could rationally be contemplated in the recent decree of the Court of Appeals, must be contained in the sup-pressio veri of the fact that plaintiff was a secret partner; it being entirely analogous to the fraud committed in the suppression oí the fact of unsoundness in a horse, or negro.</p> <p>2d. That it was the duty of James Smith Colburn, before the sale of the judgment to William Mathews, the confidential endorser of the firm ofB. P. Colburn & Co., to inform him of his secret copartnership in that firm, and his concealment of that fact itself was a fraud.</p> <p>3d. That defendant, in proving that fact, proved all that could be required, inasmuch as in itselfit rendered the judgment valueless to him; because, under the circumstances on which it was taken, it would not be good against creditors, and its presumed availability against creditors was, and could be, the only inducement for defendant to purchase it.</p> <p>4th. Because every judgment entered up in due legal form, on its face holds out presumptive evidence oí being bona fide, and it would be absurd to require that the seller thereof should go and inform a purchaser that he has not transacted a secret fraud in procuring it; the purchaser is already imposed on by the suppressio veri, which, under such circumstances, is fully equivalent to the suggeslio falsi, for all the purposes of fraud.</p> <p>5th. Because his Honor erred in charging the jury, that: there was not evidence before them to warrant a verdict for defendant.</p> <p>6th. Because his Honor erred in charging the jury, that they were not to consider the evidence which had been given as relevant to the issue, and refused to permit defendant to go into further proof corroborating the same.</p> <p>7th. Because his Honor erred in charging the jury, that they were bound at all events to find for the plaintiff, thereby stripping them of all discretion over the issue.</p> <p>8th. Because the charge of the judge and verdict of the jury, were otherwise contrary to law and evidence.</p> <p>9th. Because his Honor, the presiding Judge, totally misapprehended the facts of the case, charged the jury, and rejected the testimony under a false impression, and therefore deprived the defendant of a fair trial of the issue.</p> <p>When fraud is pleaded, the plaintiff may demur and go to equity, or go to trial before the jury; Chew v. Moffet and Wife, 6 Munford, 122 and 123. Going to the jury waives the estoppel. Usually, you cannot go into the consideration of a sealed instrument. The judgment was not such as it purported to be, when sold to Mathews. It is good between the parties, but fraud has been practised on Mathews in the sale of it to him. Colburn suppressed the fact of his being a secret partner, and liable on the notes which were endorsed by Mathews; thus depreciating pro tanto the value of the judgment This judgment was sold to Mathews before the execution of the paper called a dissolution. Wyche v. Macke], 2 Randolph, 427. Joining issue waives the right of estoppel.</p> <p>There was no privity between young Col-burn and the elder, or Mr. Mathews. The act of selling the judgment, was the act of young Colburn, and his the fraud, if any. J. S. Colburn was not a partner.</p> <p>There is no implied warranty in the assignment of a noil-negotiable security; 2 N. & M’C., 28G; 1 Hill, 58. The party would be bound only by an express warranty, which was not made in this case. B. P. Colburn was the agent of Mathews, and knew or must have known that J. S. Colburn was a partner, therefore no deception; 4 T. B., 60. One may be a partner in profits, and not entitled to the corpus of the property or assets; 1 Camp., 330; 2 Hen. Blackstonc, 590; Story on Partners, section 32. As to the property of the firm, J. S. Colburn was a stranger, and could take no lien on it. Ostensible partners bind the firm; and in this case they give a lien to the dormant partner; Story on Partners, sec. 358, page 509. The assignment was good as to all the three partners, and placed Mathews in a better situation than all the creditors. A dormant partner may, or may not, be joined as defendant; Story on Farmers, sec. 241, note, do. 360. The action should have been case, for deceit, if the fraud alleged really existed; 1 Chit, on Plead., 157.</p> <p>Citing 6 Munford, 328, and 6 Randolph, 426. We should have been allowed to go into evidence of fraud. The judgment was itself a fraud on the creditors of the firm. It is for some 851,000, when, it is allowed, only some 812,000 were due. This judgment was good between the parties, but a fraud as to third persons.</p>

Tried before Mr. Justice O’Neall, at Charleston, Spring Term, 1845. In this case Messrs. Petigru & Lesesne, and P. J. Porcher, had been served with copies of the writ of attachment, and had filed returns, denying, that they had any monies, goods, chattels, debts, books of account, lands, leasehold estates, and chattels real of the absent debtor, in their hands, power, or possession.

<p>Tried before Mr. Justice Butler, at Charleston, May Term, 1846.</p> <p>The declaration contained counts on a note set out, according to its purport.</p> <p>The evidence to support the counts was as follows:</p> <p>Eliza Bird, who was examined by commission, said that sbe was a witness to a note executed in her presence. It was executed in the house of Elizabeth Bowman, and was given to her in consideration of furniture sold by her to Margaret Hunter. Margaret Hunter signed her name to the note, M. Senter; it was for $650, and dated some time in 1837. It appeared, on the cross-examination of the witness, that she lived with E. Bowman, who (from the evidence of other witnesses,) kept a bawdy house in New-York.</p> <p>Philip S. Cork, an Attorney in New-York, became acquainted with Elizabeth Bowman in 1837, but did not know Margaret Hunter. Afhr her death, he had delivered to him for collection a note on her for $650, made payable to plaintiff. It was due when he received it. He delivered the note to R. Burney, to be sent to Charleston for collection.</p> <p>William Burney said, he received the note from P. S. Cork, with instructions to have it collected: this was 1st January, 1839: the note was signed Margaret Senter, and dated 17th July, 1837, for $655 76, payable on demand. The witness said he gave the note to Mr. Mazyck, to be collected by suit. He knew Mag. Hunter, but never heard her called Margaret Senter.</p> <p>Mr. Mazyck says, that he recollects seeing such a note as that described; that when Mr. Burney consulted him about having it collected, he advised him to send it to New-York, as the deceased left some estate there; and he thought it ought tobe exhausted before the creditors there should come on the estate here; and his impression is that the note was never delivered to him.</p> <p>The description of the note was taken from Burney’s recollection.</p> <p>Proceedings before the Surrogate in New-York were introduced, shewing that creditors had preferred their claims, and had them established; among others was the demand of plaintiff on this note, amounting at the time to $800. In making out the sum, credits on the note had been allowed, which would go to shew, that either the note, or an accurate memorandum of its contents, was before the officer.</p> <p>Several witnesses residing in Charleston, said they knew Mag. Hunter, and never heard her called Margaret Senter. She left some real estate here, and was in very good pecuniary circumstances. The rents of her houses were transmitted to her in New-York.</p> <p>Some witnesses, examined by commission, proved that Margaret Hunter kept a house of ill-fame in the city of New-York.</p> <p>It was also proved that the plaintiff kept the same house» and from the evidence it was possible, that at the expiration of her lease she had sold out her furniture to M. Hunter.</p> <p>The existence and loss of the note, as questions of fact, were left to the jury with proper instructions as to the law.</p> <p>The consideration of the note was attacked, on the ground that a contract made for the sale of furniture, to be used in a brothel, was immoral and void.</p> <p>The presiding Judge laid down the law to be, that such a contract would be void, if there was any understanding that the furniture was to be paid for out of the profits arising out of the immoral use of such property. But that where a contract had been for the sale of a house, or furniture, from one procuress to another, he would hold it legal, provided the payment was to be made by, or exacted from the purchaser, on her independent and sufficient pecuniary responsibility. In other words, a contract for the sale of a house to a prostitute, would not of itself be void.</p> <p>The plaintiff appeals on the annexed grounds.</p> <p>1. That the existence and loss of the note sued on, were clearly proved.</p> <p>2. That the consideration of the note was not such as to bring it within the description of contracts, which the law regards as immoral, or contra bonos mores, and therefore will not enforce.</p> <p>3. That the verdict is against law and the evidence, and must have been founded upon some misapprehension on the part of the jury.</p>

Tried before the Recorder, in the City Court of Charleston, October Term, 1846. This was an action of assumpsit for rent, or use and occupation by the defendants, of a certain store and premises on East-Bay, let to them by the plaintiff, in which was claimed the sum of $600, as due for three quarters, ending on the 1st of September, 1846. The testimony was as follows: W. If. Hart, sworn—Is the agent of the plaintiff, who owns the house on East-Bay.

Tried before the Recorder, in the City Court of Charleston, May Term, 1846. This was an indictment under the Act of 1834, for selling, &c., liquor to a slave. The following testimony was given: Solomon Moses, sworn.—Knew the defendants in August, 1844: they lived at the corner of Lamboll and King streets; keep a retail grocery store. D. Bierman, witness thought the principal; regarded them as partners; was generally reported they were partners.

Tried before Mr. Justice Richardson, at Charleston, Fall Term, 1848. Held: as attorney, against B. P. Colburn & Co., receiving in notes thus endorsed, 50 cents in the dollar of the claims.

Tried before the Recorder, in the City Court of Charleston, July Term, 1846. This was a summary process, brought to recover a balance alleged to be due to plaintiff upon an acceptance by defendant, of a certain draft, drawn on them by one R. R. Spann, in favor of plaintiff.

Tried before Mr. Justice Butler, at Charleston, May Term, 1846. This was an action on a Policy of Insurance of certain buildings in Columbia, particularly described in the policy, including two kitchens of wood and shingles, one and a half stories high. Policy, dated the 12th November, 1842. Amount insured, $5,000. Renewed for one year, 11th November, 1843. On the 29tb September, 1844, the buildings were destroyed by fire.

Tried before Mr. Justice Butler, at Charleston, May Term, 1846. This was an action to recover from the defendant one hundred dollars, which had been paid to him in consideration that defendant would make to the plaintiff good and legal titles to a tract of land lying in Colleton District. See agreement dated 18th September, 18o8.

<p>Tried before Mr. Justice Richardson, at Horry, Spring Term, 1846.</p> <p>This was assumpsit lor several rafts of timber delivered at Bucksville; and also upon an order drawn by Buck’s agent, in payment for the timber.</p> <p>This order was charged to have been accepted by Buck. The defence was, that one Cade owned a part of the timber, and he ought to have been joined in the action.</p> <p>Upon receiving the timber at Back’s Mill, Delettre, the agent of Buck, gave the following order and acknowledgement to plaintiff.</p> <p>Order.—Mr. H. Buck will please pay L. Watts, one hundred and twelve dollars, 25-100, for two rafts of timber, purchased from him this morning. Signed, W. A. Delettre. $112 25.</p> <p>Watts called on Buck, who had gone to Conwayboro.’</p> <p>The evidence of Buck’s acceptance of the order, and of the delivery of the timber at his mill, was as following:</p> <p>W. Prince. Delettre gave this order to plaintiff—he transacts defendant’s business.</p> <p>Plaintiff told defendant he had such an order. Defendant said he wanted Cade and Watts to settle, and was ready and willing to pay it.</p> <p>The timber was delivered at defendant’s mill for plaintiff. Plaintiff and Cade claimed the timber together: that is, Cade had a part. Plaintiff hired him and the Watts’ for wages, to get the timber,—Cade said he was to have a part for hauling. Witness helped to haul. Cade was to pay one half the stump-age, and plaintiff the other half. Cade was to pay ox-feed and $17 over, of his part, and he sold twenty dollars worth of the timber.</p> <p>Plaintiff here closed, and defendant’s counsel moved for a non-suit, which was refused.</p> <p>The defendant then proved the following paper given by plaintiff, after the timber had been delivered and the order given.</p> <p>John H.Cade, v. John Watts, Levy Watts, EveretWatts, Wm. li. Prince.'—Bail writ in trespass.</p> <p>~Wc, the above named defendants in this case, do hereby for ourselves, heirs, executors, administrators and assigns, remise and release forever all right and title to rafts of timber, which are now in the possession oí the said John Ii. Cade, upon his coming forward and paying all costs and charges in the above named case.</p> <p>In witness whereof, we have set our hand and seals, 27th day of March, 1845. this</p> <p>Witness,</p> <p>John Bruton, James Potter.</p> <p> Signed, </p> <p>h:s John ¡x] Watts. Levy ¡x! Watts. Everet ¡H Watts, Wm. R. fx¡ Prince.</p> <p>See Potters & Hughes’ evidence, on the manner of getting this paper.</p> <p>T. H. Holmes then proved for defendant as follows :</p> <p>Plaintiff said Cade had one half of timber, but the ox-feed to come out in consequence.</p> <p>B. Defendant paid him $15, and witness $16 86—-$31 86. Defendant told them he was ready to pay, if they would settle among themselves.</p> <p>Delettre drew the order at the mill when the timber was delivered.</p> <p>Buck was at Conwayboro’ at the time.</p> <p>The presiding Judge charged the jury,</p> <p>First. That the delivery of the timber by the plaintiff to Delettre, the agent of the defendant, being proved, the plaintiff might recover upon his general count for the timber, independent of the order of Delettre upon defendant. That this order, whether accepted or not, proved by its terms, the timber delivered, and by the plaintiff; and was good evidence of the fact, under the hand of Delettre; and that the contract was with plaintiff.</p> <p>Second. That although other persons, as Cade, Holmes, &c., might have been interested in the timber with Watts, yet this was no reason why Watts should not recover, on his delivery of the contract. Watts would be liable to them if they had any right. But as far as defendant had actually paid such persons, it might be good for so much. Defendant ought, therefore, to be allowed the $31 86, he had paid to Holmes and Cade. But he could not, therefore, get rid of the action of Watts, without having paid in full, merely because such supposed claimant had not joined in the suit: and when it appeared that Watts was the vendor of the timber.</p> <p>Third. That independent of the manner in which the release was obtained by Cade, while Watts was in jail, he perceived nothing in its terms, that could release the right of action of Watts in this case.</p> <p>The jury found for plaintiff the balance, and the defendant renewed his motion for a non-suit in the Appeal Court, on the following grounds:</p> <p>1st. Because it appeared by the plaintiff’s own showing, that there were other parties interested in the timber, who ought to have been joined in the action.</p> <p>2d. Because the plaintiff’s declaration counts upon an accepted order by the defendant, whereas it appeared by the plaintiff’s own proof, that he refused to accept it.</p> <p>And for a new trial, on the following ground:</p> <p>That by the release of Watts to Cade, the whole interest in the timber, vested in the latter—who, by virtue thereof, is entitled to recover the amount from the defendant, notwithstanding the present recovery.</p>

Tried before Mr. Justice Butler, at Charleston, May Term, 1843. Action of debt on judgment. It appeared that the judgment had been recovered before defendant applied for the benefit of the bankrupt act.

Tried before Mr. Justice Richardson, at Charleston, October Term, 1846. This was an action of summary process, brought on the written acceptance of the following order: “Mr. Sol. Clark—please pay to Mr. H. Schaub, forty-one dollars and fifty cents, and charge the same on account of a black horse. April 2d, 1846. (Signed) Thomas P. Chandler. The witness, Chandler, stated that he was indebted to the amount of the order, to II.

<p>Tried before Mr. Justice Richardson, at Charleston, October Term, 1846.</p> <p>This was an action on the case for taking insufficient bail against Mr. Brown, late Sheriff of Charleston District. The facts of the case, as established by the plaintiff’s evidence, and important to the motion, were as follows:</p> <p>On the 23d July, 1841, the plaintiffsued out abail writ against B. W. Basden, of Mantanzas, Cuba, then living at Stewart’s Hotel, in Charleston. On lodging the writ at the office of the sheriff, the plaintiff’s attorney directed the sheriff not to take Angus Stewart as bail.</p> <p>On the 9th. of August, the sheriff took Angus Stewart as bail, and made the usual return to that effect on the writ. After the tail was taken, the plaintiff’s attorney expressed his dissatisfaction at the office of the sheriff, either to the sheriff personally, or his representative.</p> <p>Judgment was duly obtained against Basden, and return of N. E. I. was made on the execution, whereupon plaintiff applied lor and obtained an assignment of the bail bond, and instituted suit against Stewart, obtained a judgment, issued afifa., which was returned Nulla Bona. No ca. sa. was issued. It was also proved, that at the time the sheriff took bail, there wras of record in his office, an execution fi fa. and ca. sa., against Stewart, with “wait orders,” endorsed thereon, which execution was subsequently paid and satisfied. Stewart testified to his own insolvency at the time, but said he did not indicate it to the sheriff; he might or not be aware of it.</p> <p>Other witnesses were introduced, who testified that they had no doubt of Stewart’s insolvency ever since the fire of 1836. The plaintiff here rested his case; when the defendant moved for a non-suit, on the ground that the plaintiff having taken an assignment of the bail bond, was estopped in his action against the sheriff.</p> <p>The presiding Judge granted the motion for a non-suit, and the plaintiff appealed on the grounds annexed.</p> <p>1st. Because taking an assignment of the bail bond, and suing ihe bail to insolvency, is not a discharge of the sheriff’s liability for taking insufficient bail, nor an “estoppel” of the plaintiff’s right of action; but it is a proper', if not necessary, part of the evidence, to show that the sheriff had taken insufficient bail, and to fix his liability for having done so.</p> <p>2d. Because the rule of the English law, as to the effect of an assignment of the bail bond, applies to a system of bail and law of bail, which is not in force or known to our laws, and the rule does not apply, and has never before been applied in this State. But if the English law is to bo applied for the first time to this case, the plaintiff had a right to the application and benefit of the whole English law, and the bail bond was, according to that law, insufficient and irregular for want of the “sureties” required, under the Stat. 23 Henry VI., and is not such a bond as the plaintiff was entitled to have as a discharge of the sheriff.</p> <p>3d. Because the plaintiff had at all times from the taking of the bail to the present time, protested against the conduct of the sheriff, in receiving such bail, and avowed his intention to hold the sheriff liable, and not to discharge him. And the plaintiffhad a right to the verdict of a jury, as to whether this evidence was or was not sufficient to establish, that the assignment was made and accepted under such protestation and implied understanding by both parties, and the plaintiff did not waive his rights against the sheriff, or discharge him from liability, further than he might obtain payment from the bail, by pursuing him to final execution.</p> <p>4th. Because the circumstances of the case, as developed by the evidence, were sufficient to warrant the inference, that the bail bond was put in suit upon an understanding or implied agreement between the plaintiff and the sheriff, that an effort should be made to recover the money from the bail, for the benefit of all, without prejudice to the plaintiff.</p> <p>Taking an assignment of the bail bond to the sheriff, is no discharge to the sheriff in this country; 1 Hill L. R., 272 and 276; (Treasurers v. Barksdale;) Murrel v. Halbert, 7 Bail., 238; In 3 Chit. G. P., 364, is a copy of an English bail bond. A bail bond to the sheriff here, is bail to the action, and the adoption of the Statute of Anne makes it assignable. The assignment is no more a discharge to the sheriff, than is the sci. fa. on the bond; 1 Bail., 238. The State of Massachusetts adopted our own ideas of bail bonds; Rev. Stat. Mass., 56.2; Sparhawk v. Bailey, 2 Mass. Rep., 188 and 202; --- v. Lithbridge, 2 Hen. Bl., 36; 1 Saun., 195; 3 Bing., 56. Taking an assignment of a replevin bond, is no acknowledgement of the sufficiency of the pledges. This is surely a case analogous to the taking of the bail bond. No one should, but by his own consent, be injured by the mis or malfeasance of a public office. The sheriff can’t be injured by the action against the sureties. If the English law is to be applied for the first time to this case, according to that law, this bond is insufficient and irregular, and thus taken by us, cannot work the discharge of the sheriff; 2 Metcalf, 492; Long, v. Billing, 9 Mass. Rep., 482; Rice v. Hosmer, 12 Mass Rep., 130; 1 Sel., 559.</p> <p>Does the assignment of the bail bond discharge the sheriff? The bail bond was for the security of the sheriff. Bail to the sheriff was bail for the appearance; when appearing, defendant put in bail to the action; failing to appear, the plaintiff could proceed against the sheriff, or take the bail bond by assignment. This assignment discharged the sheriff; it was his security, and the assignment took it out of his hands; Etherel v. Cooper, 1 Salk., 99; Petersdorff on Bail, 221. Accepting the assignment, is an admission of the competency of the sureties to the bail bond; see 3 Tidd’s Practice, 74, for the forms as in England. Bail in South Carolina, by the Act of 1809, and the previous Statutes, only alter and extend the liabilities of the bail; it provides no other than the bail now taken by the sheriff, and which ho assigns by law according to the Statute of Anne; Steedman v. Keith, 1 Bailey, 476. A reassignment cannot be made of the bond but by the consent of the sheriff. The plaintiff has other remedies. He may have his action for insufficient pledges; (in this case the bail has not been proved to be insolvent by a ca. sa.;) he can also pursue the bail by sci. fa,, without taking an assignment. The bond is a matter of record, sufficiently so for the plaintiff to get a sight of it. It is the duty of the sheriff to show it. This special remedy is provided to avoid the necessity of the bonds being assigned and proceeded on in an action of debt. In the Massachusetts case referred to, there was no assignment of the bond. The sheriff is not compelled to take a bond, but if taken and assigned, it must operate as a discharge to him; Treasurers v. Barksdale, 1 Hill L. H., 272 and 276; One surety is sufficient to the bail bond; 10 Coke, 101; 2 Saund., Cl, note 5; 9 Mass. Rep., 479.</p> <p>The bond here is a security for the plaintiff as it is in England. By taking the bail with a ca. sa.,, the principal is discharged; Pctersdorffon Bail., 370.</p>

<p>Ti’ied before Mr. Justice O’Neall, at Charleston, Spring Term, 1845.</p> <p>This was an action of trespass for breaking and entering the close of the plaintiff. The defendant, John Hannahan, is an owner of part of the plantations of the late Mr. Murray, on Edisto Island: his land adjoins that of Captain John Jenkins, and is separated from it by a straight line, which was supposed to be represented by an old line ditch hereafter to be spoken of. During the life time of Mr. Murray, he opened for his own use a road on his own land, the line ditch was on its margin next to Mr. Jenkins’ land. This private road runs into the public road leading to the Church. The plaintiff, who is the Clerk and Sexton of the Church, and keeper of the only public house on Edisto Island, and who was abundantly proved to be a man of unexceptionable character, leased from Mr. Jenkins a lot of land fronting on this private road; so did Mr. Leverett, the Rector: they both built, and the plaintiff for four years had occupied his house and lot. His only means of reaching the Church without opening a new road, was along Mr. Hannahan’s private road to the public road. In front of his house, he put up, and enjoyed a vegetable and flower garden, which extended beyond the old line ditch, which had been filled up, and occupied a part of the bank along the road. Mr. Jenkins proved, that knowing the old ditch did not preserve the exact mathematical line between him and Mr. Hannahan, he authorized the plaintiff to put his garden as he did. The outside fence was, he said, partly on Hannahan’s land, eighteen inches at one end: at the other it was on his: this statement supposed the old line ditch not to be the true line, and if that was so, then the garden fence would have been cut something like this diagram:</p> <p> </p> <p>but the proof was clear, that the old line ditch had been an acknowledged boundary for more than twenty years, pursuing nearly the exact mathematical line; and the presiding Judge therefore thought it was to be taken as the line, and as that was assumed by him, and the jury instructed accordingly, and they must be considered as finding in conformity to such instruction, which was in favor of the defendants, it cannot be necessary to state the proof further in reference to it. The plaintiff’s occupation beyond the old ditch was known to Mr. Hannahan, the elder; he made, so far as the Court was informed by the proof, no complaint about it, until in January, 1844, when the defendant, the elder Hannahan, directed Johnson, the plaintiff, to remove his fence, so as to leave the ditch outside of his garden. This he declined doing, saying that Capt. Jenkins had authorized him to place it where it was. On the morning of the 7th of February, 1844, the defendant, the elder Hannahan, accompanied by his gardener, Welch, two ditchers, Carney and another, all of them Irishmen, proceeded to re-open the line ditch. Welch laid it out, and Hannahan directed him to take a foot off of his land, rather than trench on his neighbor. The work was laid out through the garden; and the laborers, Welch, Carney and another, began to open the ditch through the plaintiff’s garden: the plaintiff and defendant, the elder Hannahan, saw and saluted each other; nothing was said about the work; soon after the work commenced, Hannahan rode olf. The laborers broke the garden fence where the ditch crossed it, and took the gate down. The plaintiff, finding his garden was exposed by the opening of the ditch, after dinner, with an Englishman of the name of Bates, the witness, Hills, and two negroes, were about removing the outside line of the garden fence, which the ditch cut off, and placing it on Johnson’s side of the ditch, so as to inclose the garden. To do this, they were about taking it up entire and setting it over the ditch, which had been opened three feet at top; when they were thus employed, the two defendants, father and son, rode up together, and John Hannah.an asked what they were doing on his land, and as the witness Hills said, the defendant, the elder Hannahan, jumped off his horse, took up one of the rails of the garden, and knocked the Englishman, Bates, down over the ditch on Johnson’s land; as he rose, the other defendant, John James Hannahan, kicked him; then he raised an axe, which the Irishmen, Welch, Cai'ney and the other, took from him. In the affray, Mrs. Johnson and her youngest daughter came out. The Englishman cursed the Irishman; Hannahan the elder, threatened him, told the Irishmen to tie him up and give him fifty lashes; he, the witness Hills, advised the Englishman to go into the house, which he did ; he also advised Mrs. Johnson and her daughter to go back into the house, which they did, Mrs. Johnson standing in the door of the piazza. Hannahan, the elder, told the plaintiff he was an old lame hypocrite, (the plaintiff is a cripple.) As the Irishmen approached the house in pursuit of the Englishman, Mrs. Johnson standing in the door with her arm across it, asked if her house was not sacred; the elder Hannahan said he had as much right to be there as she had; one of the Irishmen pulled her arm out of the way; they went into the house, and one to Mrs. Johnson’s bed-room, searching for the Englishman who had been advised to fly, and who escaped through a back window. The defendant, John Hannahan, was at this time in the piazza. When Hannahan the elder saw that the Irishmen were in the house, he called to them to come out, told the witness to tell them to come out. Hills said that the elder Hannahan a part of the time was in the garden, and much excited. The plaintiff’s family appeared to be much excited, and went to a neighbors, Mr. Blacks, where they stayed all night. Mrs. Leverett, the wife of the Rector, whose house is very near, so near that what passes at Johnson’s can be heard, proved that on the day of this affair, as she lifted the sash of a window towards Johnson’s, she heard intemperate and boisterous language. She said she saw several men digging a ditch, and the elder Hannahan. He was using loud words towards Mr. Johnson; he was at one time in the road, at another in the garden; his language was rude and insulting. She saw something like a scuffle, heard loud language and oaths; saw a little man rush into the house pursued by men dressed as laborers; she saw him make his escape by a back window. More than one entered the piazza; after they entered it, she saw a man, she took from his dress and appearance, to be one of the defendants in the piazza. The men entered the piazza, appeared to stop at the door; she heard a scream. It was after the dinner hour of country people. In the evening she saw the garden, the fence was down, the flowers and vegetables trampled down; the plants flung into the road; It was the day previous a very neat place. The accounts given by these witnesses were utterly denied by Welch and Carney; they testified that neither of the defendants was on the land of the plaintiff, that they both remained on the land of the elder Hannahan during the whole affair. Neither of them, they said, were in the piazza or on Johnson’s side of the ditch. They said that in consequence of the Englishman taking up an axe and striking at the elder Han-nahan, he knocked him down with the rail; that the younger Hannahan did not touch him; that they interfered and took the axe from him to keep him from striking Hannahan with it. The Englishman called them “Irish sons of bitches” when he was standing in the piazza. Welch, Carney, and another Irishman, went in after him: the elder Hannahan called to them to come out, they did so; he did not say any thing to induce them to go in; the act was their own, and the result of passion, from the opprobrious words used towards them by the Englishman. The elder Hannahan compelled them to apologize to the plaintiff for their intrusion, which they did; he said he would turn off the Englishman for behaving towards the elder Hannahan as he had done, The plaintiff and the elder Hannahan talked together, and the plaintiff after their apology, accepted and said he was satisfied. They said that Mrs. Johnson was in her room when they entered the piazza after the Englishman. They said Hills was on the piazza when they were: the elder Han-nahan, they said, never called Johnson a damned lame old hypocrite. They said the garden was uninjured, except where the ditch ran, and then every plant dug up was set out again; no plants, they said, were flung into the road. They proved that tbe elder Hannahan told Johnson after the affray was over, that he might have his pailings, and might plant the land too if he wanted it. The whole object, Hannahan said, was to make the boundary.</p> <p>It appeared that Hills, the witness, was armed next day, and said if Hannahan or any of his workmen stopped his cart (lie was a bricklayer, and was hauling bricks along the private road) he would put a ball through him. The defendant is a man of wealth.</p> <p>The jury were told that the action was for breaking and entering the plaintiff’s close, and committing many enormities incident thereto. That in such a trespass, all who were concerned or took part by word or deed, were principals. Generally, (they were told) possession is enough to maintain this action. But yet if the rightful owner enters peaceably and without actual power, on the ¿ocus in quo, and ousts a mere wrong doer, that his justification arising from his title, would be complete and ample. But if in making such entry, and after an entry, but in connection with it, the defendants did any act unnecessary to the assertion of the title of the elder Hannahan, such as the exhibition of power, in arms, or deadly weapons, or the commission of a trespass, in entering upon the acknowledged soil of the plaintiff, beating his wife, children or servants, it would malee them trespassers ab initio.</p> <p>The jury were told that the just question was, had the defendant, the elder Hannahan, shown title to that part of the close where he ran his ditch ? For if he had not, the possession was in the plaintiff, and his action inadmissible. But his Honor told them the proof clearly showed, that the ditch opened by the defendant through the garden, was the line ditch of more than twenty years standing, and veas the true boundary between him and Jenkins, and that having the right to re-open it as a boundary, if lie did no more, the plaintiff could not recover. But if he did more than was necessary to that purpose, and in doing it, committed in connection with it other trespasses, it might make him and all concerned, trespassers ab initio. They were told to inquire, first, did either, and which, or both of the defendants enter upon the acknowledged soil of the plaintiff, or on his side of the ditch in the garden, or into the piazza, and with what object? If such entry or entries was or were made, against the will of the plaintiff, and to injure him, then there was no doubt, that such would be a trespass or trespasses. Secondly, they were directed to inquire, whether the entry of the Irishmen into the house, and the assault upon Mrs. Johnson, was to be attributed to one or both of the defendants? They were carefully pointed to the facts connected with this branch of the case. They were next told, if they thought the elder Hannahan had committed a trespass, to inquire whether John James Hannahan was also guilty. They were told that his only participation seemed to be in kicking the Englishman, (if he did so); this, if it was done, on the plaintiff’s side of the ditch, might make him guilty of a technical trespass; and then if they thought he came to aid his father in the quarrel with the plaintiff, they might hold him equally guilty: but if not, they ought to find for him, or at most, they should find against him moderate, and perhaps only nominal damages.</p> <p>The jury were told that the question for damages was entirely for them. If they thought the acts done by the defendants or one of them, were done in the pursuit of a right, and exceeded the bounds of justification from passion and not intention, that then the verdict ought not to exceed actual compensation for the injury done: but if the defendants or one of them, committed the acts which were in their judgment attributable to them or one of them, from a settled purpose to oppress the plaintiff that then their verdict against one or both of the defendants, should be for such a sum as would amply compensate the plaintiff for the injury, and teach the defendants, one or both of them, a good lesson of moderation for the future.</p> <p>The jury (certainly one of as much intelligence and respectability, says his Honor, as ever I saw empannelled,) found a verdict for the plaintiff for 82,500, and after a review of the case, he should not be disposed to disturb it. »</p> <p>The defendants appealed on the annexed grounds.</p> <p>1. That it was established by the evidence, that the defendants cut open the old line ditch, and committed no trespass upon the freehold or possession of the plaintiff in relation to the cutting the ditch or removing the fence, and they were not liable to any action on that account.</p> <p>2. Because the alleged trespass in entering the close and house of the plaintiff, was the act of persons not under the direction of the defendants, and it was the uncontradicted testimony that defendants repressed and disavowed the act.</p> <p>3. That at all events the trespass complained of was slight, and no actual loss of property ensued, and no gross outrage was committed, and the verdict was so unreasonable as to afford conclusive evidence that it was not the result of a fair judgment upon tlm evidence.</p> <p>4. Because the Court charged, that the subsequent proceedings, after the opening of the ditch, might make the defendants trespassers ab initio; whereas, the act of marking the line was lawful in risclf, and any quarrel which may have taken place subsequently between the workmen, had no connection with the lawful act of defendants in marking the line, which act could not be rendered illegal by the subsequent transaction.</p> <p>5. Because there was no evidence to warrant the conclusion, that the passing into plaintiff’s house was either by the authority of the defendant or sanctioned by him; and no one is responsible but the parties who took part in it; and the testimony was, that the only act done by defendants was to recall the parties.</p> <p>6. Because there was no evidence at all that the younger Mr. Hannahan ever left his father’s land, and no evidence that he committed any assault on the plaintiff; and the verdict against him was without any evidence.</p> <p>7. Because there were two unimpeached witnesses, who testified expressly that the defendants did not leave their own land, and the jury were not warranted in disregarding their testimony.</p> <p>8. Because the verdict was so clearly unwarranted by the law and the evidence, as to render the verdict altogether dis-proportioned to the trespass alleged or proved, and is against the just and impartial administration of justice.</p> <p>9. Because the verdict is so extravagant, as to amount to a perversion of the law and a destruction of the very notion of legal right, and in fact breaks every barrier which has been established, for the protection of the individual against the influence of public clamor, or private prejudice and caprice.</p> <p>10. Because the verdict is in other particulars, and in all respects, contrary to law and evidence.</p>

Tried before Mr. Justice Butler, at Charleston, May Term, 1846. This was an action of assumpsit against the maker of several promissory notes. At the time of their execution, both the parties lived in Paris, and the plaintiff, the payee, still lives there, never having lived in this State. About the time that these notes fell due, to wit, in July, 1839, the defendant left France, and arrived in Charleston on the 12th of September, 1839.

Tried before Mr, Justice O’Neall, at Charleston, Spring Term,1845. The plaintiffs respectively in the above stated cases, by scaled articles of agreement between them and the defendants, dated the 30th of July, 1838, and which were produced in evidence by the plaintiffs, contracted to perform certain work in excavating and embanking a road-way, for which the defendants promised, on their part, to pay them a certain stipulated price expressed in the articles.

Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846. This was a special action of assumpsit, in sum. pro., to recover back money which the plaintiff had paid the defendant, under the following circumstances: On the 4th November, 1844, the defendant applied to the plaintiff, as Ordinary, to be qualified as executor of Nancy Wells’ will, and for letters, warrant of appraisement, and order of sale. It was on sale day, when there were several in the office.

Tried before Mr. Justice Evans, at Union, Spring Term, 1847. This was an action on an account for money loaned. It appeared on the trial, that Smith had loaned Thomson two hundred dollars or more. To secure the payment, a negro boy named Ned was put in pledge, on an agreement that his hire was to pay the interest. The boy was twelve, thirteen, or fourteen years old, and one witness said he thought his hire worth at the time #25.

<p>Tried before Mr. Justice Frost, at Darlington, Spring Term, 1847.</p> <p>The defendants had been convicted of larceny, and were sentenced to receive each twenty lashes. They were pardoned, on condition that they should leave the State and not return. In violation of the condition, they returned to Darlington District, their former place of residence. At the last term, a bench warrant was issued for their arrest, to compel them to enter into recognizance, to appear at the present term, and submit to the sentence which had been imposed on them: The magistrate took a recognizance for their appearance at this term, to answer to an indictment for larceny. The case, being on the docket for sentence, was called, when the defendants appeared in Court, and, by their counsel, were fully heard in opposition to the sentence. The presiding Judge, in deciding the questions made, having referred to the caso of the State v. Smith, 1 Bail., the objection was interposed that the defendants had not been served with a rule to show cause. It seemed that in that stage of the case, after the defendants had been notified by the bench warrant to appear for sentence, and were present in Court, and their counsel had been fully heard, the claim for the service of a rule was merely dilatory and evasive. The defendants were required to show cause why the sentence should not be passed; and their counsel having replied that they had no other cause than had already been presented, the former sentence was ordered to be inflicted.</p> <p>Among the objections taken by the counsel, it was insisted that the defendants were entitled to a trial by indictment, which was not sustained.</p> <p>An appeal was taken on the grounds annexed.</p> <p>The defendants give notice, that they will move the Court of Appeals to set aside the sentence of Judge Frost, by which the defendants were ordered to receive twenty lashes, on the first Monday in July next, on the following grounds:</p> <p>1. That before sentence could be passed on the defendants,</p> <p>for violating the condition of the pardon of the Governor, they were entitled to a trial by indictment, or on a rule to show cause, and neither of these proceedings were instituted against the defendants in this case. ,</p> <p>2. That it did not appear that the defendants had any notice whatever, that an application would be made to pass sentence on them, for violating the condition of the Governor’s pardon, until the moment they were called up to receive the sentence.</p> <p>This is a criminal proceeding, and the prisoners are entitled to all the forms which a humane principle of our law has thrown around them for their protection. The violation of the condition of a pardon may involve constitutional questions and others of great moment. The power of annexing such a condition has been gravely questioned; whether the condition was not void and the pardon good? These parties are entitled to a rule to show cause. An illegal or impossible condition would be void; the former in law, the latter in fact. Suppose the party to bo physically unable; this would be a question for a jury. Parol notice was not sufficient, but a iormal rule of the Court was necessary. It would not do to say, the party had opportunity at the moment he may require time for witnesses, &c. This was a new trial, involving new questions of law' and fact; the pardon should have been produced by the State, its violation shown, &c. The party may have been brought back by force, &c. The State, v. Smith, I Bail., 283; the defendant in this case had returned voluntarily and fled from arrest afterwards; he was arrested in North Carolina and brought back. In the State, v. Addington, 2 Bailey, 516, the defendant received a part of the s cntence, and could not receive the other for want of time. It was a question both of Jaw and fact. He also plead the recent act of the State, his trial twice for the same offence, &c. The State, v. Fuller, 1 M’Cord, 178, does not show the mode of proceeding. In the People of New York, v. James, 2 Kane’s Cases, 57, a rule was taken to show cause, although the party was in the custody of the Court. The King v. Madden, 1 Lietche’s Cases, 263, is the leading case on the subject. In this case the original order did not provide for a rule, nor was the bench warrant entire in itself; it does not even name the case, or for what the party was called up to receive sentence. The Court cannot presume this knowledge in the parly. The recognizance is also indefinite, and calculated to mislead the prisoner; it was to answer to an indictment. None of the papers of the case can be called notice. If it was even a scire facias to renew a judgment, a form, such as this, would be insufficient. The judgment is described, the parties named, and notice given to show cause. This is a parallel case; both are to revive. In the gravest matters of life, involving what is to many dearer than life, is the party to be less formally dealt with? A recognizance should show all that the party is to expect, specify the charge, &c.; 2 Greenleaf Ev., 62; Goodwin v. The Governor of Alabama, 1 Stewart & Porter, 465; Simpson v. The Commonwealth, 1 Dana’s Rep., 523, shows how necessary is the connection between the warrant and the recognizance.</p> <p>The prisoner did appear in Court, with counsel, to show cause; why then send this case back for a mere informality? The motion for a rule to show cause, was an after thought of the counsel, and by going on to show it, he waived his right to the rule, if he had any. The rule is only notice, and the party has had notice. His conduct showed that he had notice. The warrant had the effect of a rule to show cause. There is a reference to the order, in the warrant. Motion to sentence, is always made by the Solicitor, and the parly can show cause and will be heard. The State v. Smith settles all the questions started by the counsel for the prisoner.</p> <p>Contended, that it did not appear on the face of the proceedings, for what the prisoners were to receive sentence. He meant legal and proper notice, that nothing was to be presumed against them, and that he did not waive an offer of time to show cause.</p>

Tried before Mr. Justice Richardson, at Barnwell, Spring Term, 1847. Indictment for cow stealing. The defendant was indicted under the A. A., 1789, for cow stealing. The defendant introduced no evidence; that offered on the part of the State, was in sum and substance as follows: The prosecutor testified, that on the 26th July last, he met defendant, Kersh, with a drove of cattle—afterwards suspected and followed him, and found his steer in his drove, in Colleton District.

Tried before Mr. Justice Frost, at Marlborough, Spring Term, 1847. The indictment for retailing, in this case, concluded against the form of the Act of the General Assembly. A motion was made in arrest of judgment, on the ground that the conclusion should have been against the Acts of the General Assembly. This point was submitted without argument or authority, and the motion was refused. The defendant renewed his motion before the Court of Appeals.

Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847. The following is his Honor’s Report: A motion was made on the part of defendant to set aside the service by the sheriff, on the ground, that one of the two notes sued upon was not correctly copied on the copy sum. pro: It was incorrect in this: that the date of the note was not copied as it appeared on the original. I did not think this irregularity affected the service: and overruled the motion.

<p>Where the proof is no moro than that the sheriff has paid, on an execution, to the plaintiff or to his attorney, a certain sum of money, the reasonable inference or presumption of fact should be that he has derived the means of payment from the party who is liable on the execution; but this is not a presumption incapable of explanation, not one juris et de jure, and hence where opposing facts are adduced, it is the proper function of the jury to settle the dispute.</p> <p>Where the jury have been neither forestalled nor misled by any remarks of the Judge, it is within their province to solve all doubts connected with the facts of the case.</p>

<p>In civil cases, where the nature of the action itself does not involve the general character of a party, evidence as to that character cannot be offered to contradict an imputation of dishonesty, or even of fraud.</p> <p>The transaction presented in an ordinary civil case, must depond upon its circumstances, and not upon the character of the parties. In such a case, no matter how serious a moral delinquency may be involved in a fact, and how much the establishment of that fact may affect a party’s reputation, he cannot invoke the aid of his previous reputation to disprove the^fact</p>

Tried before Mr. Justice Withers, at Laurens, Spring Term, 1847. Judge’s Report. The prisoner was tried for the murder of Nathaniel C. Vance, upon an indictment containing several counts, one charging him with the commission of the offence by his own hand, one as being present aiding and abetting one Aaron Lee, and one as having procured and incited a negro, Dave, the slave of the deceased, to commit the crime.

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1847. The following is the report of the presiding Judge. The defendant was sued in trespass for an assault and battery upon the plaintiff. The grounds taken require a full narration of the circumstances attending the alleged assault, i nd I transcribe the evidence from my notes. James Miller, April 25, 1845, saw Gomilion strike defendant times. J. Day shoved Gomilion back.

<p>A party cannot recover on an implied contract, if he has made a special contract which is void for fraud; he is not at liberty to say, I have made two contracts, and if one of them is void for fraud, I will set up the other. Vide, Selway v. Fogg, 5 Mees & W., 83; 9 Car. & P., 59; 1 Adoh & EL, 40.</p> <p>It is at the option of the party, to be affected by a fraud, whether or not, he will treat the contract as void, or rescind it; but the right to rescind is subject to this restriction, that if, after the discovery of the fraud, he still avail himself of the benefit of the contract, or permit the other parly to proceed with the execution of it, he will thereby be held to have waived the tort, and affirmed the contract.</p> <p>It is well settled, in the Courts of this State, that where there has been a sale, either upon a warianly as to the soundness of the article sold, or upon a fraudulent misrepresentation of its value, if a suit be brought upon the original contract of sale, the defendant may, upon notice, give the unsi.undness, or fraud in evidence; which will be an answer to the whole demand, or in mitigation of damages, according to the circumstances. And this principle applies with equal, if not greater force, to a building contract.</p> <p>The declarations of a party, though sufficient to charge himself, are not evidence of a partnership against any other parly.</p>

Tried before Mr. Justice Richardson, at Orangeburg, Spring Term, 1847.

Tried before Mr. Justice Butlek, at Barnwell, Fall Term, 1846. This was an action of assumpsit for the breach of an express warranty of soundness in the sale of a negro woman. The facts that cams out in evidence were as follows: Richard C. Ashe, Senior, by his will, gave to his two daughters, Mrs. Hext and Mrs. Garvin, three hundred acres of land. For the purpose of effecting partition, the land was advertised for sale. From some cause it was not sold at the place advertised.

Tried before Mr. Justice Richardson, at Barnwell, Spring Term, 1847. This was a rule on the Sheriff, N. G. W. Walker, requiring him to show cause why he had not paid over certain monies made by him on executions against the defendant, to Joseph Cosnahan, assignee of the plaintiffs.

Tried before Mr. Justice Richardson, at Edgefield, Spring Term, 1847. This was an action of trover for the conversion of two promissory notes.

<p>Tried before Mr. Justice Evans, at Lancaster, Spring Term, 1847.</p> <p>Debt on sealed note.</p> <p>The writ in this case, was to “render to the plaintiff one hundred and twenty-six and fourteen cents,” omitting, the word dollars, after six. The declaration set out the amount correctly, one hundred and twenty-six dollars and fourteen cents. To the declaration, the defendant demurred, and set out for causes of demurrer this variance between the writ and declaration. A copy of the demurrer is annexed, and forms a part of this report. The presiding Judge thought the amount of the debt demanded should be set out correctly in the writ, which by our law forms apart of the record,—but it did not seem that on principle, the variance was a proper subject for demurrer. But the cases quoted, Young v. Gray, and some others from our own reports, seem to have decided that such variance is the subject of special demurrer, and he decided in conformity with these decisions.</p> <p>Copy Demurrer. Cause assigned, to wit: That the said declaration varies from the writ, and instead of corresponding with the same, contains a charge that the said defendant is indebted to the said plaintiff in an amount much greater than is set forth in said writ, which said charge is wholly distinct and irrelevant to that contained in said writ, by reason of which the said defendant has been taken by surprise, and also that the said declaration is in other respects uncertain, informal, and insufficient,—and this he is ready to verify,'—wherefore, by reason of the insufficiency in this behalf, the said defendant prays judgment, &c.</p> <p>The plaintiff moved to reverse the decision of the Circuit Judge sustaining the defendant’s demurrer, on the following grounds, viz:</p> <p>1st. Because the cause assigned could not be taken advantage of by demurrer.</p> <p>2d. Because his Honor erred in holding the cause assigned, sufficient cause ol demurrer.</p> <p>3d. Because his Honor erred in holding that there was a legal variance between the writ and declaration.</p> <p>The writ need not have set out the precise sum: it is therefore an improper subject of a demurrer. The writ is only to compel the appearance of the defendant. If it had said for debt, or for slander, or any such special charge, without specifying the sum, &c., it would have been sufficient. There cannot be a variance between the writ and declaration as to the form of action, I admit. In this case the improper sum is mere surplusage. The declaration informs defendant of the precise complaint, and the warrant or writ only cites him to appear; Stephens on Pleading, sec. 6, paragraph 14 and 15; 3 Black Com., chap. 18; 2 Brev. Dig., 165; 2 Hill’s Rep., 585. If this was the amount in cents only, the Court would not have jurisdiction, (an absurdity;) the defen-should have then moved to quash the writ or set it aside. The entering an appearance, instead, is a waiver of the objection to the writ; Wayne v. Kirby, 2 Bailey, 551; 2M’Cord, 15; Cherry v.-, 1 Brev., 91; Boag ads.-, 2 M’Cord, 380; Young v. Gray, 1 M’C., 211, does not apply; it veas an action on the case, and the declaration was in covenant; it was a surprise and departure; so also in Boag, the writ was in case and the declaration in trespass vi cl armis; 2 M’C., 380. The demurrer here does not point out the variance as it should have done; the defendant finds fault and commits one himself; 5 Bacon’s Abridg., 461; 3 Black Com., chap. 27; 1 Tidd’s Prac., 021; 3 Chitty’s Plead., 145; furnished the precedent of the demurrer. The demurrer is not signed by council, and is not a demurrer; therefore, 1 Selwyn Prac., 335, and 1 Tidd’s Prac., 051, it should have been treated as a nullity, (.joining may have cured it.) It is necessary only in bail writs, to slate the exact amount sued for; 3 Black Com., 290; 1 Henry Black Kep., 402; Grim-kc’s Pul). Laws, 70. It veas not necessary to set out the cause of the action in the writ until this statute; 1 Chitty’s Plead., 228, 317 and 390; 2 Mills Con. Ilcp., 247; inconsiderable variance not vitiating the case. Tins is too insignificant. Law Library, 40, containing Brown's Legal Max., “Mala Grarn-malica not filial chai lam, &c., &c.</p>

Tried before Mr. Justice Frost, at Columbia, Fall Term, 1846. This was an action on three bonds, payable to one Weston, and assigned to the plaintiff. Held: not to constitute a new principal 'bearing interest. The plaintiff appealed, and moved for a new trial, on the grCftnds annexed: 1.

Tried before Mr. Justice Evans, at Union, Spring Term, 1847. Judge’s Report: This action was on a joint and several sealed note, signed by D. Thomas, and the defendant, Ashby. The note was for $ 1,603 47-100, dated 24th March, 1837. There was no doubt this note was given for judgments of Rice, M’Clure and Shelton, which the plaintiff had paid and taken an assignment; but there must have been some payments, as the note was for a less sum than the amount of the three judgments.

Tried before Mr. Justice Frost, at Darlington, Spring Term, 1847. This was an action against the defendant, as surety to a trover bond, in an action by Leslie v. Bennett. That suit was for the recovery of a buggy and pair of cart wheels; and the plaintiff recovered a verdict for $140, on which he^entered judgment and lodged a fi. fa., the 8th March, 1843. The bond was dated the 8th May, 1840.

<p>In the ordinary case of conveyance for Hie, with remainder—sale by the tenant for life, and contest between the p1 rchuser and remainderman, if neither party be affected by registry, the remainderman must prevail, because bebas the prior and better evi fence of title.</p> <p>The Court held, that the registry of a deed of personal property, in the Secretary of States’ Office, was sanctioned by our statutes, so as to be notice to all subsequent purchasers,</p>

<p>Tried before Mr. Justice Evans, at Fairfield, Spring Term, 1847.</p> <p>This was an action of assumpsit on three notes. They were in the common form of promissory notes, by which one M’Dow-ell promised to pay the several sums of money expressed in them, to order of B. R. Cockrell, the plaintiff. There was nothing in the body of the notes which indicated that they were intended to be sealed notes; but there was at the end of M’Dowell’s name the letters, l. s. or s. s., which the witnesses thought were made by himself; and it was also proved that his habit was to take and give Ins notes generally with a seal. The name of the defendant, Milling, was written on the back of the note in the ordinary form of a blank indorsement. Above Milling’s name had been written since, such words as are generally used for guaranty. The facts as proved, were these: Cockrell had sold to M’Dowell the furniture of a hotel in Winns-borough, the price to be ascertained by appraisement. To secure the payment, before delivery, M’Dowcll was to give notes with indorsement or security. After the price was ascertained, J. R. Aiken wrote the notes; they were signed by M’Dowell, who mentioned several persons whom he could give as security, and the defendant among them, who was selected by Cockrell as of sufficient ability, and known in Columbia, where he expected to raise money on the notes.</p> <p>M’Dowell then took the notes to get the security. He sent his brother to Milling, who told him that M’Dowell wished him to come to Winnsborough and go his security, or indorse (the witness did not recollect which) his note to Cockrell for the furniture. Milling came, and wrote his name on the back of the note. The notes were then delivered to Cockrell, and M’Dowell took possession of the furniture. As the notes became due, the payment was demanded of M’Dowcll, and notice given to Milling of non-payment. There were many counts in the declaration charging the defendant as maker, as guarantor, and as the drawer of a bill of exchange, and also on a special agreement to sign the note as maker.</p> <p>The presiding Judge re tu sed a motion for a non-suit, and charged the jury that but for the supposed seal to the note, the case was in all its important particulars like the case of Stoney v. Beaubien; that he doubted very much if the letters added to M’Dowell’s name made it a sealed instrument, but he regarded that as an immaterial circumstance. Two might sign the same promise to pay money, one with a seal and the other without, and if it was a several promise, both would be bound, although they would have to be sued in different forms of action. He thought they might well consider the defendant as a drawer of the note, and as such find a verdict against him, which they did.</p> <p>The defendant renewed his motion for a non-suit, on the following grounds:</p> <p>1st. That the court ought to have granted a non-suit, inasmuch as the evidence established the notes on which the action was brought, to be scaled notes or single bills, and the law would not charge the defendant on his naked indorsement, either as maker of a promissory note or single bill, or as a guarantor, or as maker of three bills of exchange, or in any manner or form as charged by the plaintiff, whether the defendant knew the terms of the contract between the plaintiff and Henry M’Dowell, beforehand or not.</p> <p>Defendant also moved for a new trial, on the following grounds:</p> <p>1. That the Court permitted parol testimony to contradict and give construction to the written contract, at variance with its legal meaning and operation:</p> <p>2. That the Court instructed the jury, and charged that the law made defendant answerable as maker, whether the notes were under seal or merely promissory, inasmuch as the plaintiff refused to sell to H. M’Dowell without a good indorser, and this fact was made known to defendant before his name was added to the notes.</p> <p>3. That plaintiff, by filling up the defendant’s blank indorsement, deprived himself of all right to recover, unless upon the ground chosen by himself, and that he could not recover in law upon the ground chosen.</p> <p>4. That the verdict was contrary to law and evidence, inasmuch as there was not evidence to make the undertaking of the defendant an original undertaking, and the law did not bind him on a collateral undertaking.</p>

<p>The record of a judgment, obtained against the purchaser, in an action of trespass to try title, to which action the warrantor, though notified, did not appear, will not. be considered as evidence of paramount title in the plaintiff to that suit, in an action brought by the purchaser on the warranty.</p> <p>The English practice, touching voucher, has no place with us.</p>

Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847. Report of the presiding Judge. Accompanying this report is a copy of the bond of Thcmas L. Whitlock, and S. O. Sullivan, binding them to submit the matters embraced in a bill in equity by the plaintiffs against them, and a memorandum of the state of the proceedings in equity on that bill: there is also to accompany this report a copy of the award.

Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847. Indictment for unlawful trading with a slave. Judge’s Report: The indie'ment contained two counts: the 1st charged the defendant, in character of vendor of spirituous I.quors, with having given to Soloman, belonging to Tenant Lomax,spirituous liquors: the 2d count was framed under the A. A. 1817.

Tried before Mr. Justice Wardlaw, at Newberry, Spring Term, 1847. The following is his Honor’s Report: Debt on a single bill for $888,24, made by defendants to plaintiff, dated and due atone day, credited by Defence, Usury. The defendant, Chandler, having been offered to sustain the defence, the plaintiff chose to be sworn.

Tried before Mr. Justice Wardlaw, at Columbia, Spring Term, 1847. Held: that the defendant was liable as a common carrier. In the list which accompanied the coach from one end of the line to the other, called the way-bill, the plaintiff’s name was entered, but no mention made of his baggage.

Tried before Mr. Justice Wardlaw, at Lancaster, Fall Term, 1847. Held: that the sheriff was entitled to twenty- five cents for his schedule-return te each Court, and fifty cents for his search and return to the clerk, when the active energy of the execution expired, and not to each Court.

Tried before Mr. Justice Wardlaw, at Columbia, Spring Term, 1847. Assumpsit by indorser, who had taken up a note of $800, against the makers. Counts on the note, and money counts. Defence, that the note had, after the dissolution of the partnership which had subsisted between the defendants, under the name of Huggins & Stein, been made by Huggins in the partnership name, without the authority of Stein.

<p>Tried before Mr. Justice Wardlaw, at Sumter, Spring Term, 1847.</p> <p>Report of the Presiding Judge:</p> <p>The prisoner is a man rather under the ordinary size, about thirty years old, of swarthy complexion, black hair, and black eyes.</p> <p>He was charged with having murdered his wife, Julia B. Stark, on the 30th day of January, 1847, by striking her on the head with an axe, and cutting her throat with a razor. That he killed his wife and only two children, in the most shocking manner, was made manifest. In his defence, it was contended that he was, at the time of the deed, laboring under mania a polu, so as to be an irresponsible agent. The following is the evidence that was given in the case, which I report entire, lest possibly, in an attempt to condense it, I might omit something which, on one or the other side, would be deemed material.</p> <p>Testimony. Dr. W. L. Felder. I have been a practising physician since 1832, and live in Sumter district, near Fulton, about eight miles from Manchester, and half a mile from the house the prisoner lived in. On the morning of 30th January last, about 8 or 9 o’clock, whilst I was sitting at breakfast, I was called to see the body of Mrs. Julia B. Stark, wife of the prisoner; said to have been killed. I went immediately; found Mrs. Stark lying in the floor of the chief room in the house, at the left side of the fire place, her feet towards the fire, and on the hearth. On the back part of her head was a bruise, and her throat was cut through windpipe and swallow, by some sharp instrument. Three feet from her, in front of the fire-place, was lying her little son, perhaps three years old, on his back, and by his side her daughter, about six years old, on her face. The throats of both children were cut also, and there were bruisdfe on their heads. The wound on Mrs. Stark’s head looked inconsiderable; but I thought that alone might have been sufficient to take life, as it seemed to me, from her position, that she had not moved after falling, and that the blow had been given on the head, whilst she was stooping about the fire; given before the cutting of the throat, and probably with an axe.</p> <p>There was a plate of meat at the fireside; one piece of meat outside of the plate, and the frying-pan lying on the plate, upside down; a coffee pot and some smoothing irons at the fire; an axe on the hearth with blood on the handle, and part of one side, and marks of bloody fingers on the handle. There was much blood on the floor, and about the bodies, partly congealed, but not entirely. Life had gone perhaps half an hour.</p> <p>Some gentlemen preceded me, and had found the prisoner. I went and saw him in an out-house, which had a few shucks in it, and seemed to have been used as a corn crib, about twenty steps from the house. He was lying down. I saw a wound on the upper part of his neck, but his position concealing its extent, 1 said it would not be fatal, and turned away; I returned, and found that the incision on his throat reached both sides, and was greater than I had imagined; I went home for some instruments, returned and dressed his wound.</p> <p>He was placed on a door shutter at the end of the crib. I commenced sewing up his wound. He asked, “Doctor, can the dead come to life?” I said “no.” He requested that I would not sew up his throat, and said, “I did not cut it to be sewed up.” I told him to be still; he resisted by moving about. I threatened to tie him. He said, “let me alone, let me go out of this God d-d world to a better.”</p> <p>I put no questions to him then. An inquest was held, and after that was over, I conversed with him. I told him that he and I had been friendly, and that I thought it was his duty to make some acknowledgments as to the deed. He made no reply. I urged him further. He said that he wished to make no confessions on the subject. I said, that as to consequences, he seemed to be regardless, as he had evidently purposed to destroy himself. He was silent. I asked if he was aware that he had imbrued his hands in the blood of his wife and children. He said nothing. I told him that he could not live; that in the course of twelve to thirty-six hours, if secondary hermorrhage ensued, as was probable, he would die. He said, “I wish to die, and wish to make no confession.” I asked whether he had cut his own throat; he turned and said, “Doctor, don’t you see my throat is cut?”</p> <p>1 perceived in him no indication of drink, from smell or otherwise. He answered readily and rationally, all questions which I heard put to him, except those about his wife and children.</p> <p>With him were living his wife, two children, and a negro girl of Mrs. Elliott’s, named Mary, about eleven years old; no other inmates of his house; the house in this district.</p> <p>Cross-examined. He lived in a neighborhood thickly settled. James G. Hinson about three hundred yards off; Edward Broughton, Sr., six hundred yards; Thomas Maples, four hundred; M. Goodman, four hundred; and other families within half a mile. A good many negroes and workmen about Brough-ton’s. Lawrence's store house a few hundred yards beyond Broughton’s.</p> <p>On my way to the house I met Edward Broughton, Jun. There was a low rail fence about the house, which I stepped' over. The house was a small one; besides the corn crib, there wa«, on the other side of the house, twenty steps off, an old carriage house, and a scaffold, which seemed to have been used for cooking.</p> <p>The crib was boarded up with rough edge boards. In the house, besides the hall room, (where the preparations for breakfast seemed to have been made,) there were two other rooms: one opening into the hall, and having a. window at the end, in which were beds, not made up when I went: the other used as a store-room, and opening into the piazza, which was on the back side of the house.</p> <p>I saw an indistinct impression under the window of the bedroom—if of a person’s track, there had been no shoes on. I looked at this very particularly.</p> <p>In conversation with the prisoner, I told him that if he had any messages to leave, he could leave them with me—he has sisters in the neighborhood very respectably married. He said he had no messages.</p> <p>I have known him since about ’36. He has been an intemperate man—drunk whenever he could get liquor—having an inordinate thirst for spirits: growing worse for four or five years past. I heard, that before this deed, he had taken No. 6 and peppermint, for want of other stimulants.</p> <p>In 1843 or ’44,1 attended him. Lie then lived at Manchester, in the house of his father-in-law,-Campbell. I found him then under delirium tremens, a state produced by the sudden cessation of stimulants after the excessive use of ardent spirits. It is a disease affecting both body and mind. The symptoms ofit are fearfulness, with occasional disposition to turbulence, watchfulness, wakefulness, nervous agitation, delusions of the fancy—sometimes rage with friends, then again cordiality. The effects somewhat different in different persons. In general, there is in all insanity, greatest bitterness towards the nearest relations.</p> <p>I found him at this time in Manchester, timid—alarmed when I entered: he said some persons were trying to hurt him; did not wish me to approach him. I remained with him all day. His wife came in, he seemed affectionate; he took a nap; she came again, he seemed alarmed and apprehensive that she would injure him. and would not go to sleep till I agreed to sit by and watch him.</p> <p>His wife was a lady of fine appearance and good character; twenty-four or twenty-five years old when she died; then pregnant, in the fifth or sixth month, as I supposed.</p> <p>In reply. Search was made in a drawer for the razor; the razor case was found open, but no razor in it. Some traces of blood were found, and the razor was found under the piazza, very bloody and open. This before the wound was sewed up. House is two or three feet from the ground; not underpinned; one to get under must go on all fours. The traces of blood were on the back side of the house; same side on which the crib was.</p> <p>I am not certain of the season of the year in which I visited him at Manchester; think it was between March and July. He exhibited no disposition towards violence then. I visited him two consecutive days. Ho then recovered. 1 often saw him afterwards, sometimes drunk, but never again under delirium tremens.</p> <p>For the greater part of last year he lived three hundred yards from me, with his half sister, Mrs. Jenkinson, and about a month before this deed, removed to the summer house of Ed ward Brougton, Jr., in which he was living when the deed was done. I saw that morning a little furniture, some beds and a bit of middling. He had seen better days; his estate had been squandered by intemperance, and he was then considered very poor.</p> <p>According to medical authorities, delirium tremens is after the debauch has terminated; in it the pulse is excited over one hundred, and tense; the expression of countenance wild and incoherent. I did not, on the day of this deed, observe in the prisoner any indications of that disease. His pulse was very low’, there was no appearance of timidity, no wildness of look, nothing like a symptom of the disease, except at one time. After the inquest, and after I had done conversing with the prisoner, Mr. Theodore W. Brailsford was talking to him, and I heard him say, "‘do you see that hawk?” I think the word was hawk. I turned to him, and he said, “do you see it there? see! see! see! one, two, three.” His countenance being directed downwards just after his eye and finger had been raised. He was then in the yard, and was considered to be in the custody of the constable. Before that I had observed nothing at all indicating disease.</p> <p>Cross-examined again by permission. I think he owned once a small tract of land and two to four negroes, and had been engaged in a little store. About the hawk, he said it was flying over, then said pointing up and looking down, see, see, mentioning two or three smaller objects. I thought from his manner that this was feigned. This occurred in the afternoon, just before I came away, say five minutes after I had conversed with him. I suspected feigning, from the manner in which he moved his hand and dropped his head.</p> <p>I did not think the attempt on his throat feigned, but believed that it was his fixed purpose to destroy his life.</p> <p>I did not apprehend his death, unless secondary hemorrhage ensued, but I thought that very likely to occur.</p> <p>Permanent insanity is said, by the books, sometimes to result from frequent attacks of delirium tremens.</p> <p>I have heard of his being in broils when sober. In his manner he was, when sober, usually silent and retiring.</p> <p>I think the axe was used both before and after the razor, for there was on the head of the deceased wife a bruise, and also another on her left shoulder, perhaps a fracture. The blow on the head probably preceded the use of the razor. She was lying rather on the back of her head, with her legs somewhat drawn up.</p> <p>M. Goodman, a foreign Jew. I kept a store and lived about seven hundred yards from the prisoner. I was eating my breakfast, and was called by the negro girl, Maiy. I went, met in the road W. Hinson, Vvho seemed afraid to go up by himself. I ran; found three bodies lying on the floor. Mrs. Stark’s hand warm as life. She was lying on her side, and on her left arm, close to the fire, her feet to the fire, her legs drawn up. I did not see her throat, and supposed she had fainted. I tied her right arm, and turned her; I then looked at the children, both lying with their faces down, the boy on the axe. I picked up the axe, did not notice the handle, but blood a plenty and fresh.</p> <p>I hunted all the rooms for him; did not find him; ran home; called the neighbors, Deschamps and others; went back; people then there, and he in the shuck house. Edward Broughton and others with him. I saw the razor brought from under the house very bloody.</p> <p>Cross-examined. I have not known him very long; saw him three years ago, and I settled near him two years ago. I once employed him as a clerk. He was about my store drunk. I asked him, “Mr. Reuben, why you drink so hard?” He said, “No employment.” I say, “You lost property—get it again.” He say, “If you employ me, I quit drinking—when you see me; clean shaved and with clean shirt, I sober.” This was the week before. His wife begged me to employ him. He came shaved and clean about sunrise Thursday morning next, before the Saturday of the deed. He wanted something to drink; I gave him a glass of wine. I offered Madeira, but he said that too strong, he wanted Malaga to taper off. lie wrote a letter for me, very well. We went to breakfast; he ate hearty. I felt sick; he said he could attend to the store, I left it to him, and went to sleep in my house. I had wine in a cask, but I took the key of the cock. My wife went on a visit; I got out of bed and 1 sat in a chair by the fire, slept till 12 o’clock or thereabouts; my wile returned, called me, and said Stark drunk. I went, and found him with red spots on his face, and other signs of drinking. I missed nothing; had paregoric and peppermint in vials, and cordials and porter in bottles. I dont know how he got liquor; I would have missed cordial or porter if taken. He had got a bushel of corn from me, and I let his wife have some sugar and coffee. He went off about 12 o’clock. I still held out to him that I would employ him if he would be sober. I saw no more till his wife was dead.</p> <p>Edward Broughton, Jr. When I and my fat her got into the house, Airs. Maples had just entered, and Goodman and Hinson had been there. I found the wife and two children on the floor, the boy next the mother. She on her left side, her feet drawn up; the blood fresh, measurably clotted; the axe lying by the fire, with blood on the handle and side. There were spots of blood from the bodies out of the door, through the piazza and on the steps.</p> <p>I went to the outhouse. The prisoner was lying with his face next the partition wall, his head in the corner and his feet towards the door, which was ajar, opening outwards from the partition. He was in his shirt sleeves, his shirt bloody, and the blood seemed to have dried in some places on him. I called to my father; several persons came and looked at him. He lay still some time, then got up and walked backwards and forwards across the door. J could sec that his throat was cut on both sides. He said not a word.</p> <p>The house he lived in was my summer house; he had gone into it about 1st Janury last. I did not speak to him when I saw him. It was perhaps half an hour before he got up. After walking about a little, he leaned over and seemed to be pulling open bis throat, or as I then thought, cutting it again. Some persons went in and tied him. A iter he had been searched and tied, and locked up, before his wound was dressed, he asked to be let out; said he would sit down by the door, and go no further; he was shivering, and seemed cold. Dr. W. L. Felder said, “may be we had bel ter not.” When any question was asked about his family, he would avoid answering. Mrs. Campbell, his wife’s mother, came; he had been talking to the doctors; he clenched his teeth and would not say one word to her.</p> <p>Cross-examined. His pantaloons were buttoned, but without suspenders. His cloak was in the house, but he had not that on, nor his hat nor shoes. It was a cold day.</p> <p>Ivy and others tied his hands across before him. The doctor had returned with his instruments when he said, “may'' be not.” I saw two places of blood under the house, about five feet back from the outer edge of the piazza, and two or three feet apart; there seemed to have been a considerable quantity in each place, soaked up in part by the sand.</p> <p>I did not look for tracts under the window. I recollect no wood in the yard: there was some lightwood in the house lying near the body of Mrs Stark.</p> <p>Theo. IV. Brailsford. Good many persons there when I went. I went to the crib and looked at. the prisoner. He was standing, stooping, very bloody, and seemingly cold: said nothing. I saw the bodies on the floor, and the razor brought out with blood and sand on it.</p> <p>In the afternoon, after the inquest, and after Dr. Felder had been t alking to the prisoner, I spoke to him, and asked if he prayed. He said he was always praying. Then he said, ‘•dont, you see that hawk?” ,1 looked and saw nothing.</p> <p>I told him he could not dive long, and asked if he did not-wish to see his wife? He said “No.” His children? “No.” He lay uneasy. I asked if he did not wish to go in and lie on a bed? “No.” This 3 or 4 o’clock. I soon afterwards came away. He was then lying where the doctor had sewed up his wounds.</p> <p>Dr. John Boyd. Got there about 10 o’clock. Prisoner was at the end of the crib, lying on boards; his wounds not yet dressed. I was much overcome by the spectacle. My hearing is bad. I endeavored to converse with the prisoner, but he shewed great unwillingness. He was almost naked—very cold—-his pulse much depressed. I gave him a dose of paregoric and camphorated spirits, and he revived somewhat— his pulse afterwards rather frequent and feeble, such as loss of blood would occasion. When I was feeling his pulse, he asked whether I thought he would die? I said “Yes.” “How long before?” I did not know. The same when I felt again. He seemed impatient, and wished me to give him something to kill him.</p> <p>I have known him long. I thought him that day perfectly conscious. In my opinion, there was no delusion. Generally in ddirium tremens, some, indication in the eyes and appearance may be detected—1 saw none in him.</p> <p>The wounds on the bodies of wife and children occasioned their death—probably those with the blunt instrument might not have done so. On the wife, wound back of the head, at the junction with the neck.</p> <p>Cross-examined. I had not seen the prisoner for some time till I saw him that day.</p> <p>There may be cases in which loss of blood would restore a patient suffering under delirium tremens: the ordinary treatment is by stimulants. Probably an attempt at cutting the throat would have the effect of great bloodletting. Cases have been known of sanity restored by attempted suicide.</p> <p>No doubt there have been instances, when after suicide attempted by an insane person, no evidence of insanity could be gathered from his conversation.</p> <p>Edward Broughton, Senior. Monday evening, before the event, the prisoner was at a North Carolina wagon, drunk— spoke to me. I said, “drunk as usual.” I saw him no more till Thursday evening next, afterwards. That day, about 1 or 2 o’clock, he came to my house, and rushed into my chamber where I was dressing, after having come from the swamp, lie was very drunk:—did so again: asked me for liquor: I said he should not have a drop. He sat down by the fire and went to sleep in his chair—could not be waked—after sleeping two hours or so he waked up, asked for something to eat, went off, and I saw him no more till the fatal Saturday morning.</p> <p>Saturday I went with my son; found three bodies lying on the floor, in their blood; I was struck with a pain in my side, which I did not get over for two hours. My son called to me that the prisoner was found. I went after some other persons had gone, half an hour before he spoke. We searched for knives and razor; there was blood from the door to the crib, and on each side of the steps, and two puddles under the house; the razor was found.</p> <p>I was out of temper; he said, “take me out and hang me.” I said he deserved burning.</p> <p>Cross-examined. His throat was badly cut. He frequently inquired, “can I live?” Somebody said, if he was in my son Edward’s place, he would bum the house.</p> <p>Prisoner would get drunk wherever he could get liquor. He had no bottle Thursday that I saw.</p> <p>On the second Monday of January last, at the election for clerk, prisoner was at the Fulton polls, drunk; began to abuse me, soon after I went; I went at nine or ten, and found him there drunk. Two hours or so afterwards, Capt. Richardson came, and he and I were talking; prisoner came and spoke to Capt. Richardson, and then offered his hand to me; I asked, why abuse me and then come to shake hands? He said he had not done so, that he had not seen me before that day.</p> <p>James Harwin. Day of the inquest—many there when I went. Afternoon, I heard Mrs. Jenkinson, half-sister of prisonr er, ask him if he wanted to die? He said, “yes, you know I do; I expected to have been dead five hours ago.”</p> <p>Last Christmas, at my house, he said he expected to live till he was thirty, and no longer—that he had given himself that time. I attached no importance to it. I married a sister of his wife; his family and mine were all present.</p> <p>William S. Belser. About three years ago, prisoner settled with mo some rent he owed for house, &c. He complained of his difficulties, and reduced circumstances; asked, “is there no way for a man to get rid of all this?” I said, “there is nothing to be made by a man’s killing himself; you are young, go to work.” He had then gone through most of his property.</p> <p>Dr. Marcus Reynolds. Have had a good deal of experience in cases of delirium tremens. Loss of blood I think would aggravate—produce greater depression. The ordinary treatment is by stimulants, and they are decidedly efficacious.</p> <p>Optical illusions would be produced in a healthy subject by extreme loss of blood.</p> <p>Cross-examined, Insanity in general is a very difficult subject.</p> <p>I recollect no instances of partial cure of insanity by strange means applied by the patient.</p> <p>I think delirium tremens is not likely to grow worse by repetition; doubt whether permanent insanity ever results from intemperance.</p> <p>I have seen cases of mania a potu, in which for the time there was insanity—disordered perception, delusion.</p> <p>Acts of violence are not likely to be committed in mania a potu, but such cases are given in the books.</p> <p>Mania a potu is an aggravated form of delirium tremens. Tremulousness is an invariable symptom, but that sometimes results from ordinary intoxication just ceased.</p> <p>There is always in mania a potu some indication not to be mistaken.</p> <p>Eli Weeks. I saw the prisoner the night after the aflair, in his house. I went after dark; he Was in bed. I asked how he came on, he said, “badly.” I visited the room often through the night, perhaps once every hour. Every time I asked him where his family was; the second or third time I asked, he said, “I expect they are somewhere about the place: I have been asked that question fifty times to-day.” He seemed then a little roused. He asked me what I would take to be in his place. I answered, “not the world.”</p> <p>I supported him to the cart next morning; he got in himself. He asked me where they were going to carry him. I said, “to the doctor’s.” Lie asked, “what doctor?” and then said, “I expect they are going to take me to the gallows.” I said, “they will not take you to the gallows now, but I expect they will after a while.” Lie drew the cover over his face, and I saw him no more till to-day.</p> <p>Cross-examined. I went with my father-in-law, and staid because I was requested. I expected that he would find a doctor here in jail. I was born and raised about sixteen miles from Statesburg. I supposed Chewning, the constable, had a warrant when he took the prisoner off in the cart.</p> <p>Defence. John Powers. I have known prisoner since he was a boy; known his wife and children. Lie lived within one hundred and fifty yards of me the year he lived with Joseph Richardson, and I frequently traded in his store.</p> <p>I know nothing contradictory of entire harmony in his family; he was indulgent beyond his means; affectionate, and fond of having his children about him.</p> <p>I left the neighborhood twelve months ago; up to that time I had seen him drunk three times. First time there was a Tray with counsel; two other times at Goodman’s store. When sober, quiet and silent.</p> <p>Cross-examined. He had no property after his marriage. Before that had lived with Broughton, and kept store, then sold his negroes and bought goods. He stopped, became clerk to Joseph Richardson (which was two summers ago;) then lived with his half-sister, Mrs. Jenkinson, doing nothing at all, and I thought he was living with her still till I heard of this disaster.</p> <p>Thomas Maples. Prisoner lived within a mile of me since ’36. I knew his wife and children.. He seemed very friendly in his family. I never heard a word to the contrary; affectionate to his children.</p> <p>In the last year or so, he became a very hard drinker. Tuesday evening before affair, I saw him at a wagon camp, near to Counsel’s wagon, where liquor was. Hinson took him home. I saw him again at Goodman’s on Thursday, somewhat excited by liquor. I heard of him Friday evening.</p> <p>Saturday, when I got there, five or six persons there. I live four hundred yards off.</p> <p>James G. llinson. I have known the prisoner from his infancy. I lived three or four hundred yards from him at the affair; nearest neighbor to him. Last summer, when he was at Mrs. Jcnkinson’s, I was within a mile of him. I was familiar with his affairs. He seemed affectionate in his family, attached to his children.</p> <p>I saw him Thursday morning and Thursday night; morning at Goodman’s, sober, night at my house, drunk.</p> <p>Wednesday he was out of liquor, and was bad off for want of some; none could be got. He came to my house, and insisted on my giving him No. 6; he had previously sent for peppermint; he drank a table spoonful of the No. 6, and another drink of it, as I was told, and that night finished the bottle.</p> <p>I went Friday evening to sec how he was—as he had been in a frolic all the week. I found him in bed, covered up. I staid about half an hour. Soon after I got into the house, he heard me, and called me into the room where he was; asked me what he had been doing; asked me if he had not been at Dunn’s & Dyson’s, and had not seen Mrs. Logan; said he had insulted some ladies badly; said, “did’nt William (Jenkinson, his half-sister’s son, who was talking in the hall) say they were going to take me?” I told him to get up and take some coffee. He said, “no, I have done something horrid,” and turned over. I came out of the room, and his wife, at my direction, took in some coffee and bread for him, and brought back the bread.</p> <p>Cross-examined. I was one of the jury of inquest; was not sworn as a witness then, but stated to several what had occurrd the evening before.</p> <p>Thursday night Mrs. Stark came to my house. I never said for protection.</p> <p>The bottle of No. 6 held a gill.</p> <p>The prisoner is my nephew. I never said that I sent over there Saturday morning to see if any thing had happened. I said I sent over.</p> <p>Goodman and I were the first persons there—went together and found the bodies dead: did not find the prisoner. I looked for him in the bed where he was the evening before, in the room adjoining the hall.</p> <p>I had heard from the negro girl; started, and turned back to get camphor—said I did not like to go by myself.</p> <p>William Jenkinson, (a slender youth, about twenty years old.) I have known the prisoner ten or fifteen years: lived with him for about eighteen months after his marriage: since had been clerk to him; very intimate. His treatment of his wife and children was always kind and affectionate: he was fond of his children.</p> <p>On Thursday, after he left Goodman’s, I was trying to take him home; he insisted on going to Goodman’s. I went into Hinson’s, and after a short time he came in there about three parts drunk; he stayed twenty minutes or so; went home; I went to his house: he was lying on the floor across the fireplace; had complained of being hungry. I advised him to eat; he would not; rolled about, raised up and fell down, looked foolish. His wife was at home. I went off.</p> <p>About 12 o’clock, Friday, I passed his house, and heard he was in bed. Just before night, Hinson and I went to see him; he called Hinson into the room. After some time H. came out, and the prisoner called me in; he said he had insulted a good many ladies; had been to Dunn’s, Butler’s, Dyson’s, Logan’s, Belser’s, &c. I said he had not seen all those people for some months. He said that he had done some great crime, and I would not tell him. I said “No.” His wife came in with bread and coffee; he said he would take the coffee, but did not want bread. He opened his eyes and stared; gritted his teeth when taking the coffee; would chew the coffee. I asked “what’s the matter, that you grit your teeth so?” he said some tobacco had got between his teeth. I said that’s a queer way to get tobacco out, to grit your teeth so;” he went on so all the time he took coffee, chewing it; paid no attention to what I said. He then had on his pantaloons, but no coat or vest. I was in the room twenty minutes after his wife went out; he was still talking of having insulted ladies. I went home and saw him no more till next morning.</p> <p>Cross-examined. Prisoner is my half uncle. I kept store for him. Sheriff and constables sold the remnant of his goods. I was with him four or five years ago; since then, I have been with Joseph Richardson, Goodman and Tuning: and he has been part of the time a clerk, and other part doing nothing.</p> <p>I was sworn before the inquest; told them nothing of the matters which had occurred the evening before; I think if I told any body of them, I told Mr. Brailsford. I told him about Barwick; that is, twelve or fifteen months before this affair and whilst the prisoner lived at Manchester, I and the prisoner were riding together and passed Barwick and his wife plough-ing: he said, “do you see that?” I said, “what?” he said, “there is Barwick and his wife a ploughing; before I would come to that I would cut my own throat and my wife’s and children’s too.” This I told to Brailsford.</p> <p>The sun was not down when Hinson and myself went to see him. We came away before dark. He drank all the coffee; looked wild at the time; his wife did not stay whilst he drank the coffee; he drank no liquor that day, that I know of; he was not on Thursday night real drunk: real drunk I call when one cannot get up.</p> <p>Examined in reply. Squire Johnson acted as coroner, and I think asked questions. Conversation about Mrs. Barwick twelve or fifteen months before the event, and jocular. It is unusual for white women to plough. “ I’d cut my throat first,” a common form of expression.</p> <p>Dr. C. R. F. Baker. I have known the prisoner since he was a child; attended him in 1844; he was then soldering under monomania from intemperance*, which lasted longer than delirium tremens usually does, and was a modification of delirium tremens, wanting some of the. ordinary symptoms; ho had not then just come from a debauch, but had been maniacal for several weeks, and continued so for a month longer, gradually getting better. He said he had not slept for three weeks, and that his heart was enlarged and had bulged out his chest; his eyes were restless and. wild. I could not persuade him that there was no enlargement, although obviously there was nothing misshapen about his chest. I attended him two months, and think I left him restored.</p> <p>I think a person who once has had delirium tremens is more likely than another to have it again; and that by repetition it becomes more easily produced and more aggravated. 1 knew a case in this village (Sumter) of permanent insanity produced by repeated attacks of delirium tremens.</p> <p>Hypochondriasis is not usually produced by intemperance; it may arise from it as a remote cause.</p> <p>I have heard of cases of insanity relieved by bloodletting made in attempted suicide, the desire to save life supervening.</p> <p>Insanity cannot be always detected from conversation.</p> <p>Cross-examined. There may be a design to kill one’s self, which may cease upon the feeling of pain.</p> <p>This was a case complicated; mania and delirium tremens united—monomania—derangement upon one subject only—an hallucination as to the state of his body, with some wildness and restlessness, and an imagining that he did not go to sleep. I did not use stimulants upon him; his nerves were shattered; I used anodynes, purgatives, sedatives and bathings; once I took a little blood. He had, in the beginning, a small pulse, and bleeding would have been unsuitable.</p> <p>Intemperance is more fruitful of insanity than any other one cause. A person who has been drinking for several years, is more liable to attacks of delirium tremens than one who has lately become intemperate; one who has a vigorous constitution not so liable as one whose constitution has been shattered. Usually a day or two intervenes between intoxication and delirium tremens; when the excitement of the liquor has subsided, the delirium tremens ensues, may be a day or a week after, usually between these times.</p> <p>There is another form of the disease, in which inflammation is produced by continued intoxication; inflammation may come on during the intoxication, and continue after it has ceased. In this some depletion might be serviceable, but not great, since drunkenness usually weakens. Of active delirium tremens of this kind, the indications could not be mistaken.</p> <p>In the first mentioned form, there are found usually timidity and shyness, sometimes a belief that urges the patient to deeds of violence. Frequently these manifestations are strongly developed; but there may be all shades of the disease, from trifling incoherence to phrenzy.</p> <p>Dr. John Felder. Practising physician for twenty-two years. Delirium tremens and mania a potu, two names for the same disease, produced by the immoderate effect of ardent spirits. Some writers say the disease comes on during the drunken frolic, and 1 think it as frequently comes during the frolic as after; it continues after the intoxication has gone. The stomach and the digestive organs are affected, the brain sympathizes, and an irritability of the nervous system is produced. I have heard of cases of cure from attempts to cut the throat, but it is improper to bleed in a majority of cases.</p> <p>Various grades of disease of the mind—a case in this village, of permanent insanity, produced, as supposed, by intemperance; and a case of insanity (not from intemperance) cured by the shock of jumping into the water.</p> <p>Cross-examined. Delirium tremens may be spoken of as a more violent form of the disease. It may come on within twenty-four hours after the abstraction of the stimulants; more frequently during the drinking. It is hard to draw the line between drunkenness and mania a potu, not hard to distinguish the symptoms of one plainly existing, from the symptoms of the other fully established, but hard to say exactly, where one ends and the other begins.</p> <p>After long drinking, one may continue to drink, and take the disease; if he should continue to drink on it might be speedily fatal.</p> <p>In delirium tremens I administer opium, camphor and calomel; do not bleed, unless there be a determination to the brain. The symptoms are fearful apprehensions of danger, wildness of the eyes, violence resulting from fear, friends taken for enemies, optical illusions, tremulousness, strange imaginings, delusion.</p> <p>Doctor C. W. LeSesne. Practising physician fifteen years. Delirium tremens and mania a j>otu the same. Caused by use of ardent spirits; often commences during the revelry, sometimes after the abstraction of stimulants. Symptoms, nervous tremor, quickness ef pulse, inability to sleep, apprehensions, illusions.</p> <p>If the arterial action strong, blood-letting might be useful in the beginning. That could never be so, if the disease has been produced by a cessation of stimulants, then the surface would be cold and moist. Persons who have the means of indulging their appetite, usually take the disease from their stomach’s rejecting the liquor, then blood-letting would be unsuitable. Insanity is sometimes cured by attempted suicide, that is, by copious blood-letting.</p> <p>Cross-examined. The first indication of delirium tremens, is usually watch lulness, then tremor, &c. Whenever the patient sleeps sound, he is cured.</p> <p>If the disease were coming on a person of robust constitution, during his revelry, blood-letting might be cautiously used, in general it would be dangerous.</p> <p>Robert Bradford, Esq. I have seen the prisoner once or twice in the street, and once he was at my house. I had no acquaintance with him; and six or eight months ago, I was sitting by the fire at night, about to retire to bed, when I heard somebody running; presently the prisoner ran right in, bareheaded, saying that he had been pursued by Mexicans, and had escaped. He sat down; I saw he was under the influence of liquor; he jumped up and cracked his feet together, and I sent him off by a boy.</p> <p>Cyrus Morse. I have seen the prisoner occasionally since he was a child; of late he has been intoxicated whenever I have seen him. When drunk I have seen him like other drunken men, not knowing what he was doing.</p> <p>Last fall at Court, he came to me and said he was a candidate for sheriff, asked me and others to vote for him. He was walking about without staggering, although he had the appearance of a drunken man, not dead drunk. The election for clerk was pending, and took place last January.</p> <p>Cross-examined. He was a great fool, drunk.</p> <p>Rei>i,y. Theodore W. Brailsford, recalled. On the day of the inquest, Jenkinson said that the prisoner had observed, that before he would work as hard as Martin Barwick did for so large a family, he would cut his own throat and his family’s too.</p> <p>James Harwin, recalled. Nothing.</p> <p>Dr. William L. Felder. In the books, delirium tremens and mania a potu have been generally spoken of as the same, but a distinction is now drawn; mania a potu now regarded as an exalted state which may come on in the debauch; delirium tremens ensuing from the abstraction of stimulants. Dickson thinks the disease more frequently arises during the debauch. Ellerbe, Hunter, &c., say that it is brought on after abstraction of stimulants. As to delirium tremens, I agree with the latter.</p> <p>Mania a potu is a determination of blood to the brain during the debauch; delirium tremens, an influence upon the nervous system; the former might be treated by blood-letting, the latter not unless there were special circumstances. Either easily detected when the reason affected.</p> <p>I have known of no case of delusion which could not be detected in short intercourse; there is delusion in mania a potu as well as in delirium tremens.</p> <p>I think that if there had been any insanity in the case of the prisoner on that day, I must have detected it, and that it could not, after the act, have passed away so as to leave no trace.</p> <p>In ordinary health, blood-letting carried to great excess might produce optical illusions. In this case it was excessive.</p> <p>Cross-examined. There may be moral insanity; great varieties of insanity.</p> <p>If mania a potu previous night, and throat cut in the morning, whether I would say the cutting proceeded from mania, would depend on circumstances. There might have been rationality restored if mania a polu; not so likely if delirium tremens.</p> <p>If I saw the throat cut, and nothing more, I would not say there had been mania.</p> <p>I said that I supposed he feigned when he said,‘‘dont you see hawk, &c.” that was the impression his manner made on me, and I was pressed for my opinion. He held his head down when ho pointed up; there would, however, have been more pain in his holding his head up then; and I wish it to be considered a matter of doubt with me whether he feigned, and if he did not, whether some optical illusion may not have been produced by loss ofblood.</p> <p>I know William Jenkinson; he is of good character; I would believe him.</p> <p>Richard J. Manning. At the inquest, I saw the prisoner lying on boards. I asked him about the transaction; he was silent. Dr. Boyd came; the prisoner asked about his pulse, and seemed anxious to die. He would answer no question about his family. There was nothing striking in his manner. lie seemed, I thought, to have an averted look, when questioned about his family.</p> <p>The case was fully and ably argued by Messrs Smart, W. F. DeSaussure, and Moses, for the prisoner, and by Mr. Solicitor Fair for the State: and I summed up with all the care which the importance and difficulty of the case demanded.</p> <p>I regret that the great pains which I took should have been so ineffectual, that such wide mistakes of my meaning seem to have prevailed as the grounds of appeal indicate.</p> <p>Upon the various points made in the argument, involving the extremely difficult subject of insanity, I made such remarks as I deemed necessary to direct the inquiries of the jurors, and with full instructions concerning their powers and responsibility, presented the questions to them, and invoked their decision. I shall confine myself now to the matters which arc suggested by the grounds of appeal.</p> <p>I held, that actual insanity, no matter from what cause proceeding, nor of what duration, rendered its unhappy subject unaccountable for acts committed under its influence: that mania a potu, or insanity, of which drunkenness was the cause, was like insanity which has been produced by some other vice, but was to be carefully distinguished from mere intoxication, which being a temporary and voluntary suspension of the faculties given for control of the conduct, constitutes no excuse for crime: that mania, which might arise during the fit of intoxication, could not be distinguished from other extravagancies of drunkenness, so long as the ordinary time of intoxication lasted, and whilst the ordinary evidences of intoxication were manifested; although it would be like other mania a potu, if an inflammation of the brain, or other direct effect of stimulants, accruing during the intoxication and producing insanity, should continue after the intoxication had ceased. But that the questions concerning mania arising during intoxication were of small moment here; for in this case, if there had been mania a potu, at all, it must have been of that kind which is spoken of in books on Medical Jurisprudence, which comes on after the intoxication has ceased, and is escribed to an abstraction of stimulants.</p> <p>I carefully avoided the terms, “permanent”—•“settled”—“fixed” which the Solicitor-had used; and (terrible as may be the consequences of the doctrine,) not being able to discover the principles upon which I could distinguish between madness of an hour and madness of a year, directed that mania, if it existed even for a short lime, distinct from intoxication, formed an excuse.</p> <p>Amongst many comments which I made when I called attention to the testimony ol Hinson and Jenkinson, (which had been mainly relied on as evidence of those symptoms of mania a potu, which the physicians examined, and the books read had described.) 1 remarked that these witnesses seemed to describe rather a bewilderment of the memory concerning what had transpired during the intoxication, than those optical illusions which were said generally to attend mania a potu. Delusion I spoke of as the most certain manifestation of insanity, and I gave instances of delusion in the senses, and in the fancy, recognizing the opinion that; insanity usually deduces correct conclusions from premises misconceived through delusion; but I gave no opinion as to a case where memory alone was affected, (although I can conceive of no such case of insanity,) and if I made any distinction between delusion as to things supposed to be present, and delusions concerning matters conceived of as absent or past; I spoke only in reference to the symptoms of mania a potu, which had been detailed.</p> <p>The great question seemed to be, whether the prisoner perpetrated the horrid deed whilst he was really suffering under mania a potu, or whether his gloomy temper, under the depressing influence of sickness and exhaustion from drunkenness, brooding over his desperate fortunes and the frustration of his last effort at reformation, had brought him to yield to the demoniac imagination before indulged, and with only such madness as attends all great crimes, to resolve that death should end at once the misery of himself, and of all that belonged to him.</p> <p>I professed, as I felt, my inability to explain what mind was, or to show how it was operated on by the body, or what changes were wrought to develope that state which we call insanity"; but I held that depression of spirits was not insanity, nor was much disturbance of the ordinary operation of the mind by bodily ailment, or other extraneous cause, nor much weakness of particulai- powers, called faculties of the mind; that to constitute the insanity which forms an excuse for crime, (not to speak of fatuity,) there must be delusion—some such perversion of the means of intelligence and judgment, that the agent does an act unconscious of what he has done, or under disordered conceptions, such as, if true, would render the act blameless.</p> <p>In answer to the argument, that no indication of any insanity was detected by any of the many persons who, from a short time after the act, for five or six hours, saw and conversed with the prisoner, it was urged in his behalf, that blood-letting may have relieved his mania, or that his insanity was of that lurking kind often existing, which cannot be detected by ordinary observation, or by conversation on ordinary subjects.</p> <p>On the other side, it was urged, that in a case of mania supervening intoxication (the only mania a potu which the prisoner could have had,) blood-letting would have aggravated the disease; that the hawk spoken of in the afternoon, was either an act of feigned insanity, or an optical illusion produced by excessive blood-letting; and that the enormity of the offence was not itself to be taken as sufficient evidence of insanity— but for this monstrous act proved against him, the prisoner must be held to account as he would have been for a less offence, unless there had appeared evidence to show that he was not an accountable being.</p> <p>The former suffering of the prisoner, under mania a potu, as shewn by Drs. Baker and W. L. Felder—his conduct at Bradford’s, and the circumstances mentioned by Morse and Edward Broughton, Sen., were adduced by the prisoner’s counsel as confirmation of the conclusion they drew with confidence from the testimony of Hinson and Jenkinson, and from the absence of all motive for the dreadful deed.</p> <p>On the other hand, it was maintained that none of the symptoms, before so obvious to the physicians, could be detected on the day of this deed; that Hinson and Jenkinson did not describe a case of mania a potu, nor at the time of the matters they spoke of, act like men who had observed any thing unusual-that the conduct proved by the other witnesses was only the result of ordinary intoxication: and that the enormity of his crime stood as the only evidence in favor of the prisoner.</p> <p>I arrayed the evidence and arguments on these points, and with merciful admonitions submitted them to the jury.</p> <p>The jury was a very intelligent one, evidently selected of the best of a good pannel; and after an hour’s consultation, rendered a verdict of guilty.</p> <p>The prisoner moved for a new trial, on the following grounds:</p> <p>1st. Because his Honor charged the jury, that if mania a potu existed during the fit of intoxication, the party would not be excused for any act committed under its influence.</p> <p>2d. Because his Honor charged, that before the jury could excuse, by reason of the affection of mania a potu, they must be convinced that it had induced a permanent and settled disease of both body and mind.</p> <p>3d. Because his Honor charged, that there could be no delirium sufficient to excuse, where the memory of the party was alone affected.</p> <p>4th. Because his Honor charged, that no delusion was evidence of insanity, except delusion of things present, and supposed to be transpiring at the time.</p> <p>5th. Because the evidence submitted made a case of insanity? and his Honor should so have charged.</p> <p>6th. Because the verdict was against law and evidence.</p> <p>The difficulty here is, to ascertain what case is made out by the facts, so that the law can be applied. First, the prisoner had mania a potu, or delirium; and if he had either, it is sufficient. Second, it is at least a case of doubt, and then a new trial should be had. The fact of his insanity is to be ascertained from many circumstances; there is a difference of opinion among the physicians as to these, and the fact itself is, therefore, of doubtful existence. Vide Hooper’s Med. Die. as to the various effects produced on the brain, by gun shot wounds in the head. On the 1st ground of appeal, see 1 Beck’s Med. Jur., and 2d Dickson’s Prac.; title mania a potu or delirium tremens: if it is secondary, it is an excuse. Where is the difference, if mania a potu exists during drunkenness? Mania or delirium, either should excuse, and neither is drunkenness, but, remotely only, a consequence of it; 2 Dickson’s Prac., 388; and 1 Beck’s Med. Jur., 634.</p> <p>The law is a rule of conduct for rational beings. This man was not rational. A maniac cannot commit crime. Revenge is not the object of the law in the infliction of punishment, but to deter others by the example. Can example deter a madman? If the insanity arise from a man’s own act, is he excusable for crime? Drunkenness is no excuse, for he may get drunk to commit crime; but mania, induced by drunkenness, is an excuse, whether the intoxication runs into it at once, or it is an after consequence. The .Judge instructed the jury that if mania existed independent of drunkenness, then it was an excuse. 1 Russel on Crimes, 12. Insanity, whether from the voluntary act of the party or not, is an excuse. In this case, the enormity of the act itself, and the loss of blood, were sufficient to restore him. Hatfield ads. The King, 1 Russel, 17. The idea of the prisoner’s feigning insanity, is preposterous. Did he fly? Did he seem desirous of living! No! The act itself was evidence of insanity, connected with the attempted suicide, certainly. Dickson’s Prac., 384, 393 and 399; Ebcrly, 175; Watson’s Prac., 253 and 254.</p> <p>Contended that the jury should be allowed to judge whether one gets drunk to commit crime—• admitted, that irresponsibility attaches to any insanity, however induced, but thought that was carrying the matter too far. Insisted that the case of insanity should be fully made out to the satisfaction of the Court and the jury, and urged that the rule should be strict on this point. It must not be from drink; he allowed no difference between intoxication, and the after, immediate consequence. Cited, Grey’s Forensic Medicine, 331, note—.as containing the answers of the English Judges to the questions of the English Parliament, on insanity. At the time of the act, the party should be proved ignorant of right and wrong. Said the plea of insanity was often made use of to avoid the punishment of crime; abolish capital punishment, and that it would be seldom heard of. He urged that, in this case, the doubt should not be given to the prisoner. That the homicide had been established, and that he should positively prove his insanity,—and that insanity should be also proved to be an existing and continuous disease.</p> <p>Winslow on Insanity, 42, Law Lib., Cooper’s Medical Jur. Is insanity a disease of mind or body? The prisoner was not under the immediate effects of liquor, but of mania or delirium. Mania, if it existed at the time of the act; no matter how long it lasted—no matter how induced, orto what extent, is sufficient; the law excuses. Mania and delirium are the same, for the purposes of this trial. In the beginning, the prisoner was not treated as a man in his senses. The shock of blood-letting, afterwards sobered him, and cooled the mania. Elliotson's Prac., by Stewartson, 531; Marshall Hall’s Prac. Med., 440; Elliotson’s Prac., 558. To be mad, a man must have an alienation of mind, rendering him incapable of attending to ordinary duties, or disposing him to injure others. 1 Grey’s Med. Jur., 270. A maniac never refers to a hallucination under which he had labored when mad, but a drunkard does, to facts committed by him while drunk. There must bo a motive in crime, and that motive must be bad to entitle it to punishment. See Erskine’s speech, in Hatfield ads the King. Doubts are given in mercy to the prisoner. I cannot agree with the answers of the English Judges on the subject. A total deprivation of reason is not necessary to excuse crime; U. S. v. Drew, 5 Mason’s Rep., 28. The prisoner must know that he is committing crime, violating the law of the land, &c.; to decide otherwise, the Court would be going backward towards barbarism. Winslow on Insanity, 74. Delusion affecting the particular act, is sufficient to excuse : each case must be viewed practically. In Grey, 334, it is shewn, that where the case excites interest enough to elicit all known of the prisoner’s acts, he is likely to escape. Dickson at page 279, says, it is a difficult subject; and so does Winslow, at page 73. Winslow, at page 61 says, the motive must always be looked to. The maniac murders those nearest to him. Winslow, pages 15 and 76. The lunatic must have control over his actions at the moment of the deed. Grey, 237, note.</p> <p>Smart added: That as the prisoner had been proved to have said that he would commit this very act under certain circumstances, which he almost anticipated; and that as when the mind dwells for a long time on one subject, it often causes insanity; this may have been a case of insanity not at all connected with drunkenness.</p>

<p>It appears to be an essential quality of a real covenant, that it relate to the realty, having for its object something annexed to, or inherent in, or connected with land, or other real property; and that a personal covenant does not bind the assignee of a covenanter, even though expressly named, but charges only the executor or administrator; and that it makes no difference if such personal covenant is connected with real covenants, so as to form one entire consideration.</p> <p>Ferries have no legal or necessary connection with land, but, like public roadsj arc public franchises which are granted to private persons for a limited time.</p> <p>A covenant, with the assignment of a ferry, by the owner of the landing places, in whom the ferry may be vested, has no more the qualities of a real covenant» than if it were made with a stranger to the land.</p> <p>Case maybe, in many instances, a convenient remedy, with assumpsit, on implied contracts; but not on special agreements; 6 Barn. &. Gres., 273.</p>

Tried before Mr. Justice Wardlaw, at Kershaw, Spring Term, 1847. Held: that for truly proximate consequences, which, in the ordinary course of nature, do actually result from a wrongful act, even where there is no wicked intention, recovery to the extent of the actual loss may be had, although the consequences may be such as are neither necessary nor easy to be foreseen.

Tried before Mr. Justice Evans, at Barnwell, Spring Term, 1840. Report of the presiding Judge: This was an action of trespass to try title. The land belonged to Dr. Gillett, who, by his will in 1818, devised it to his daughter, Julia, who subsequently intermarried with James liiggin-bottom, an Englishman, who was never naturalized. On the 12th February, 1835, Iiigginbottorn and his wife, Julia, joined in a conveyance to Mary Carr for the land.