Volume 33 — South Carolina Law Reports

Before O’Neall, J. at Barnwell, Fall Term, 1847. This was a bail sum. pro. issued and lodged with the sheriff 16th July, 1846, and served by arresting the defendant, on the 9th October, 1847.

Before O’Neall, J. at Barnwell, Fall Term, 1847. This was a Sum. Pro. in Trespass, for seizing and selling a bale of cotton, belonging to the plaintiff. He married Miss Owens, who was the ward of Jabez G. Brown. After the marriage the guardian put the plaintiff in possession of the plantation, negroes and crop. The bale of cotton in question he had picked and packed at a gin in the neighborhood.

<p>Before O’Neall, J. at Edgefield, Fall Term, 1847.</p> <p>This was an action of trespass to try title. The plaintiff claimed and derived title from one Bathsheba Worthington, who, in ’99 or 1800, was legally married to Robert Worthing-ton. They lived together a very short time, and then separated. Worthington left the State, and was gone more than ten years; he then returned, and after many years married another woman, in Newberry, and finally removed to Alabama, where he is now residing. Bathsheba, in the meantime, lived in Edgefield, where they resided when married. She acquired real and personal estate, in 1819, and exercised all the rights of a fenvine sole. The land in dispute she bought, and then sold it to the plaintiff, and by deed conveyed it to him, in 1844. He entered upon the land, and is now living upon it. The part in dispute is covered by the title of Bathsheba Wor-thington. The defendant shows no title to it: he has a part of it in cultivation. During the long separation of forty years, Worthington, the husband, never at all asserted any of his marital rights to either the person or property of his wife.</p> <p>To bring the legal question before the Court of Appeals, and to separate it from the question of location, which was fairly submitted to the jury, and on which they found for the plaintiff, his Honor charged them that after such a lapse of time, they might presume a divorce, by Act of Legislature. — • The defendant appealed, and moved for a nonsuit or new trial, on the grounds—</p> <p>1. That the plaintiff exhibited no right to prosecute this action, either by title or possession, inasmuch as the release from Bathsheba Worthington to him was void, by reason of her coverture, and he had never been,- and the defendant was, in actual possession of the premises m dispute.</p> <p>2. That the presiding Judge erred in ruling and in instructing the jury that it might be presumed, from separation by a wife from her husband for twenty years, although the husband remained within the limits of the State, that the wife had become discovert, and entitled to convey as a single woman.</p> <p>3. That the presiding Judge erred in instructing the jury that they might presume from a separation of twenty years between husband and wife, although he continued to live within the State, that an Act of the Legislature had been passed, authorizing the wife to convey land of which she had been in actual possession ten years, against proof that no such Act had been passed, against the settled policy of the State, as to marriage and divorce, and against the interest of married women in such case.</p> <p>4. That the presiding Judge erred in deciding as a question of law, and not of fact, to be submitted to the jury, tfiat the deed of a married 'woman, under the circumstances of this case, was valid to bar her own rights and those of her husband.</p> <p>Divorces are contrary to our laws. The power to divorce has been withheld from our Courts, and has never been exercised by our Legislature.— They then are not to be presumed. Husband and wife cannot, by agreement between themselves, alter their legal condition and liability. Inferences therefrom, then, cannot aid. a presumption of divorce. A divorce cannot be proved, for in our State it cannot exist. The possession of Mis. Worthing-ton is relied on, in this case, but her possession was the possession of her husband. They are as one flesh and blood.— 1 Coke Lyt. 130. If the possession were hers,' could she convey? It is to her conveyance -that we object. Can an infant convey, even if the title is good in him? Woman is protected by this state of things — she is under coverture, <fcc. If this woman could not convey a good title, could she do more •with her mere possession? We set up a title in her husband, to prove that the plaintiff cannot show title in' himself, as he is bound to do. The possession of the wife is not inconsistent with the husband’s right; it is as that of a trustee for his. cestui que trust. It could not be adverse, for that would be ouster of the husband. Plow, against her, could he have acted? Has the law provided any remedy? Vide 2 Starkie on Ev. 561, title Prescription. Could the husband have conveyed his rights? Who has taken them? He surely could not. Can the woman have regained her rights? Will the Court presume any of these things ? A man cannot convey to his wife: they are the same person. Will it be said that she has practically resumed all the rights of a femme sole ? What was she to do ? Her husband threw her off, and she was to be fed, &c. A marriage contract cannot be presumed to be dissolved by the long separation. ShefFord oh Marriage, 579 ; 1 Haggart’s Consistorial Rep. 135.</p> <p>A wife cannot sue as a ferrnne sole. — Boyce v. Owens, 1 Hill, 10; 8 Term Rep. 545. The husband being an alien friend, makes it doubtful whether the wife can be sued. The wife of a foreigner, absent, cannot be sued alone: he is expected to return. — Chit, on Con. 178. It is different where the realm has been abjured, or civil death presumed, from seven years’ absence of the husband.. — 1 Jacob’s L. Die. title Abjuration, and Coke Lyt, 155. The question of the lapse of time cannot be taken advantage of by demurrer. So it is a mixed question of law and. fact. — 3 Brown’s Ch. Rep. 646.</p> <p>The rights of third parties are involved in doing away with all the- many presumptions in this case.— We contend that Mrs. Worthington was not a married woman when she conveyed this land — that she never was married. The Court may presume Worthington to have been dead. A generation has passed away: identity has been lost, &c. The Court may presume against the fact, (as in Riddle-hoover v.-Kinard, 1 Hill’s Ch. Rep. 376,) to quiet title and work other good results. A private act of the Legislature may be presumed, (as this divorce,) or one to invest her with the. rights of a fermne sole. If the marriage is sustained, it may be presumed that he gave her, by deed, power as his agent, to sell for him. — 3 Crews, 20, title 32, Deed, chap. 2, sec. 25. The deed need not recite the power to convey.— 3 Crews, 256, chap. 16, sec. 33; vide the case of Miller v. Reignie, 2 Hill, 592; and Godfrey v. Schmidt, Cheves Eq. 67. In the case at bar the rights of third persons alone are affected: neither of these two persons claim any marital rights. A presumption after twenty years, is not a presumption for a jury, of fact, but a presumption for the Judge, and a jury cannot find against it.</p> <p>A presumption is the belief of a thing, from its connection with a known thing. — 1 Pothier, 478; Best on Presumptions, 110. The presumption should be a fair inference from the facts proved. We object to this specific presumption. Divorces are inhibited by the laws of God — the highest of laws. They are contrary to the settled policy of our State. Presumptions formerly were of usage, easements, &c. — 2 Barn. & Cress. 54, and could not stand, however ancient, against known law. A marriage contracted here cannot be dissolved by a foreign power. Marriage is more than a contract — it is of religious consequence — a sacrament, in Catholic countries. Boyce v. Owens is the first case hinting at the lapse of twenty years as sufficient to raise a presumption of its dissolution. — Vide King v. Johnson, 2 Hill Ch. Rep. 624; Proctor v. McCall, 2 Bail. 298; Marshall v. Sutton, 8 Term Rep. 545. Civil death or abjuration of the realm is alone sufficient. The power of return in the husband prevents any time from raising the presumption.— Vide 2 Wm. Blk. 1082; 2 Wm. Blk. 1195; 2 Bosanq. & Pul. 231. 2 Kent’s Com. reviews the English cases. — 1 Bosanq. & Pul. 357 ; 1 Bing. 292; Beach v. Beach, 2 Hill N. Y. Rep. 260. Where marriage was only presumed at first, facts may disprove it, or other presumptions weaken it. Presumptions juris et de jure are irrebuttable.. — • Vide 11 East, 301; Lewis v. Nee, 3 Barn. & Cress. 84. An existing thing, once proved, is presumed to continue to exist, until the alteration is proved. Dudley Eq. 221. There is no proof that this man is not this woman’s husband now. Could he not, at any time, have resumed his marital rights 1 It was proved that she took the land in dispute, as his wife. The exercise of the right of a femme sole by a wife, can only be permissive.— Vide 2 Stark. Ev. title Presump. 683; Best on Presump. 20. Presump-tiones juris are those which are inconclusive. — Best on Pre-sump. ch. 4, 52. Conflicting presumptions of law are to be decided by the Judge — of fact, by the jury. — Best on Pre-sump. 168; 12 Yesey, 266. The doctrine of presumptions is applied in very ancient cases, because proof cannot be obtained. In England it goes only beyond the memory of man —here twenty years are to govern in all cases. The case in 12 Coke’s Rep. shows how ancient those cases are to which presumptions are applied. There is a very manifest distinction between this case and the ordinary cases, in which twenty years are sufficient to raise the presumption.— Vide 2 Brev. Dig. 41, note, title Marriage; Carolina Law Jour. 95; 2 Stat. at Large, 476 ; 2 DeSaus. Ch. 646, note; Sheff. on Mar. and Divor. 363; 1 Hill Ch. 511; Cheves Eq. 57. After a ■lapse of seven years the wife may marry, but if the husband return the marriage is null and the offspring bastards. — 3 ¡Manning & Ryland’s Rep. 329, note ; Skinner, 78; 1 Cowper, 21.5. These cases do not admit of the presumption of a private Act of Parliament.</p>

<p>Before Withers, J. at Union, Fall Term, 1847.</p> <p>This was an indictment for a nuisance, which consisted in erecting a mill-dam quite across Packolet river, at a point near Swift shoals, and between Grindell’s (or Grindon’s) shoals and the mouth of the river.</p> <p>The fact was not at all questionable that the dam had been erected by the defendant, and that it operated as an entire obstruction of the navigation of the stream above its position. Within a fortnight before the trial the dam had been partially taken down, but so much yet remained (mud-sills, &c.) as still to obstruct navigation.</p> <p>The indictment contained two counts: one for the oifence as at common law, and another contra statutem.</p> <p>The Legislative history of this stream, so far as the same was made known to the Court, and appertained to the question m this case, was as follows:</p> <p>In 1788 (7 Stat. 558,) a charter was granted to certain persons, to be known as “The Company for opening the navigation of Broad and Packolet rivers,” the first from Friday’s ferry, on the Congaree, the last from Grindon’s shoals; by locks, canals, or by any other means, with power to take tolls, &.C., and with stringent provisions for the punishment of those who should injure the work.</p> <p>In 1801 (7 Stat. 576,) the charter was repealed, it being then recited that the same had been relinquished to the State by a majority of the Company. It was directed that six commissioners, three to be appointed by the Governor and three by such of the Company as retained their shares, should choose a seventh, and that board were to enquire and report to the Legislature whether the resumption of the charter would be injurious to the stockholders retaining their shares, and how much would indemnify them. In another section (the 3d,) certain commissioners were nominated to “ superintend and contract for the opening of the aforesaid rivers and were authorized to draw upon the public treasury for a :sum not exceeding $10,000, “ towards defraying the expense that may arise in making the said Broad and Packolet rivers navigable.”</p> <p>In 1813 (9 Stat. 467, sec. 28,) the several boards of commissioners for opening the navigation of Broad and Packolet rivers, were to call out hands liable to work on roads within •one mile of said rivers, to work thereon, not exceeding six days in the year, under the same sanctions as enforced their duty on the highways. And by an Act in 1814, (5 Stat. 726,) such hands were exempt from duty on the high roads; and the commissioners were empowered to remove fish-dams or traps, impeding or in any manner obstructing the navigation of Broad and Packolet rivers.</p> <p>In 1823, (6 Stat. 234,) $4,000 were appropriated for Broad and Packolet rivers.</p> <p>In the same year (6 Stat. 219, sec. 21,) it Avas enacted ■“ That it shall not be lawful for any person to keep up or erect any dam across any river Avhich the Legislature has •ordered to be made navigable, or for improving which the Legislature has made any appropriation, so as to obstruct the passage of boats thereon; and in case any dam now erected or hereafter to be erected, shall not be immediately taken down and opened when required by the superintendent of public works, the same shall thenceforth be regarded and taken to be a public nuisance, and shall and may be abated as such. And the person erecting or keeping up the same, shall, on conviction thereof, be fined at the discretion of the Court, in a sum not exceeding $500, for the use of the navigation of the river, where the said nuisance exists.” In reference to this Legislative provision, the second count in the indictment was framed.</p> <p>The question .that arose upon it, was, whether the action of the superintendent of public works was not a condition precedent to an indictment and conviction.</p> <p>The Circuit Judge says — ■</p> <p>Although I did not regard the question as free from doubt, I held the safer opinion to be, and so instructed the jury, that the action of the superintendent was not an essential prerequisite to indictment and conviction; but it might have been intended that the action of that officer should protect a private person in abating a public nuisance — -such action being sufficient evidence in that behalf. In the first clause of the section, the defendant’s conduct was declared to be unlawful, and I thought it best to consider this basis sufficient for the prosecution. If the Legislature should abolish the office of superintendent, the construction contended for in behalf of the defendant would render the whole clause utterly nugatory. And I supposed it wiser and safer, in view of a considerable public interest, to resolve a doubt in this case in favor of the prosecution ; else, if we mistook the true view, and a verdict should be thereupon rendered for defendant, I feared the State would be remedyless, as it was probable he could plead it in bar to another prosecution for the same nuisance, and I did not see how the State could appeal from the finding.</p> <p>It will, of course, be understood that the superintendent . never made any requisition in regard to the dam in question; at any rate, we had no evidence of it.</p> <p>In respect to the count at common, law, I confess I had not any clear conception of the manner in which the jury ought to be charged. The idea of the Solicitor was, that no matter how Packolet became navigable, if it were in fact so, it was indictable to obstruct it, as at common law. But it occurred to me that, although this might be true, in a case where the Legislature had simply declared that a particular stream should be held and taken to be a public, navigable 'river, yet that there was no such broad declaration in regard to Packo-let. Regarding the count at common law as one parallel to such a count framed in England, touching an obstruction in the Thames, (for example,) within the limits of tide-water, according to English law, I supposed this count should be taken and considered as independent of any statutory provision; and, therefore, 1 advised the jury to enquire whether Packolet river was a public, navigable stream. If so, the defendant might be convicted on that count. Then the enquiry was, what tests should be applied to the determination of that question? I suggested such as occurred to me at the time. The best was, had it in fact been navigated by .the public whenever they had occasion so to do, and as soon ? — for I did not think that the navigation of a stream running back to a period indefinitely remote, would be requisite in this country to give it the character of a public, navigable stream, for our history commenced far within such a period, and there must be streams that would have such character even when the first boat was launched upon them, else there would have been a period in the range of our history when the Mississippi or the Hudson would have been excluded from that position. Was Packolet as much a navigable stream as Broad river, and was this last a public, navigable river ? — which 1 took to be the case. How long had Packolet been navigated? One witness said he had been living on the river for thirty-one years: it had been navigated above the point where the obstruction was, ever since he could remember. He navigated it every year, up to Grindon’s shoals, from 1835 to 1845. That he carried from two to three hundred bales of cotton. Another witness said that boating had been carried on ever since his recollection, as high up as Grindon’s; which was considered the head of navigation on Packolet. Joseph Hughes had carried, in the season of 1824-5, from two to three hundred bales of cotton from Grindon’s shoals. Major Sims had known from three to four hundred bales carried from said shoals; and for twenty years they had been regarded as the head of navigation.</p> <p>I also expressed the opinion, that the appropriation of money by the. Legislature, to facilitate navigation, ought not to extinguish the common law character of a river as a public highway for navigation; else we might not have, perhaps, a single such river in the State. I could conceive that Broad river might have been such a stream, even in the hunter age, provided it was capable for and was navigated by the canoes of that day. And if the advancement of the age induced the Legislature to apply means that should render it capable of sustaining steam-boats or pole-boats, it did not appear that the stream would lose its primary dignity on that account.</p> <p>Since the trial, I observed the following doctrine was propounded in the case of Ex’rs. of Cates v. Wadlington, 1 McCord, 580, to wit: That the English rule as to a navigable stream being confined to. the ebbing and flowing of the tide, is not applicable to this country, and though we have no Act defining what is a navigable river, or whether any of our rivers are so, yet that cannot be so considered, the natural obstructions in which prevent the passage of boats of any description.</p> <p>Supposing the reverse of the proposition to be true, it did not appear on the trial whether the natural obstructions in Broad and Packolet rivers were such originally as to prevent the passage of boats of any description.</p> <p>As to the Statute of Limitations, I saw no application of it. The continuance of the nuisance, existing, as it did, at the time of the warrant, was an indictable offence as much as the creation of it.</p> <p>I. had no doubt the counts might be joined, and so I think the counsel will conclude, if he will examine 1st Chitty’s Criminal Law on that subject.</p> <p>The verdict was a general one of guilty: the punishment at common law would be fine and imprisonment; that under the statute is fine only, and not beyond a maximum. Though I have not been called upon to decide the motion in arrest of judgment, based upon this circumstance, I invite attention to the questions: 1st, • Has not the statutory-provision superseded the common law punishment, whenever a party is convicted of a nuisance to Packolet river? £d, May not the State determine on which count the judgment will be demanded ? , As to this, vide Chitty’s Grim. Law, vol. 1, p. 255, citing 4 East, 179.</p> <p>The defendant appealed, and moved to arrest the judgment, and for a new trial, on the following grounds, viz.</p> <p> In Arrest of Judgment. </p> <p>1st. Because the two counts in the indictment cannot be blended.</p> <p>2d. Because there is a general verdict of guilty, and the Court cannot sentence the defendant under both counts of the indictment — the one at common law, and the other under the statute.</p> <p> For a new,fried. </p> <p>1st. Because, from the c'ase made by the evidence, the defendant is not guilty, either under the common law count, or the count upon the statute, under which he is indicted; and the Court erred in charging the jury that they might convict him under either count.</p> <p>2d. Because the verdict is contrary to law and evidence, and the prosecution was barred by-the Act of Limitations.</p>

<p>Before Withers, J. at Union, Fall Term, 1847.</p> <p>This action was brought to recover one hundred and twenty-five dollars and forty cents, and interest, which the defendant had collected or received, in a case of James M. Askew, assignee, v. L. J. Hancock, judgment having been obtained and execution lodged in Newberry. The money had been received by defendant from Kinard, sheriff, on the 20th November, 1845, as in full of debt and interest upon the case above stated.</p> <p>L. J. Hancock had become surety of one S. B. Hancock on a prison bounds bond, growing out of a ca. sa. issued for J. M. Askew upon a judgment obtained by him against S. B. Hancock, at a previous time, and the prison bounds bond had been assigned to Askew, the same having been forfeited by the said S. B. Hancock, and the recovery was had against his surety, L. J. Hancock. This bond had been assigned by As • kew to the plaintiff, Bradley, on the 15th January, 1844, in writing, under seal, and in presence of a witness, the language of the transfer being “ the within bond and the execution and judgment on which this bond is founded.” The note on rvhich S. B. Hancock had been originally sued by Askew was placed in the hands of Herndon & Pearson, co-partners, as attorneys, on the 5th March, 1843.</p> <p>The consideration of the transfer by Askew to Bradley, the plaintiff, seemed to arise from the arrest of Askew by B. H. Rice, for a demand of $140 and interest, on which occasion Bradley became Askew’s surety on a prison bounds bond, and finally, sometime after November, 1843, paid the debt and interest, to Rice.</p> <p>The defendant, Herndon, resisted the payment of the sum demanded, on the ground that he had obtained from Askew a legal valid tranfer of his demand against S. B. Hancock, and of the liability of L. J. Hancock, before the plaintiff had acquired his interest, in order to pay a fi. fa. of Z. P. Hern-don v. J. M. Askew, entered on 25th January, 1842, for $150 25, and interest from January, 1842, on which there had been sundry returns of nulla bona.</p> <p>To' sustain this position he introducnd the deposition of John H. Pearson, who said that Askew had a claim against S. B. Hancock, who was sued and judgment obtained. That upon his arrest in that case, L. J. Hancock was his surety.— The bond became forfeited and was in the hands of Hem-don & Pearson, attorneys. Askew, he said, at Union Court House, before the transfer to Bradley, told him he had transferred his claim against Hancock to Herndon, for a debt due to Herndon. He supposed it six or eight months before transfer to plaintiff. Pearson said he was the attorney on record, who obtained judgment against L. J. Hancock. Askew said he had transferred the claim against the Hancocks to Hern-don, (who was not, however, present,) nor did he say how he had transferred it, nor how he was indebted to Herndon.— The original demand (a note) of Askew against S. B. Hancock was transmitted by Herndon to Pearson for suit, and he issued upon it in the partnership name.</p> <p>Withers, J. I submitted to the jury the inquiry whether any transfer at all by Askew to Herndon of any thing was proved; and if any, whether it was the judgment of Askew v. S. B. Hancock only, or the prison bounds bond, on which L. J. Hancock was liable, and from which, upon being sued, the money in contest arose. But I expressed the opinion to the jury that however these points might be resolved, I did not think the transfer to Herndon, referred to by Pearson, superseded that made to the plaintiff. I said that, giving the fullest effect to Pearson’s statement, I saw nothing that would have legally prevented Askew from receiving the money from S. B. or L. J. Hancock, and giving them a valid acquittance, nor any thing that would have made a discharge to S. B. or L. J. Hancock by Bradley, after the assignment to him, ineffectual as against Herndon; wherefore I thought that however valid Herndon’s interest might have been, as against Askew himself, I did not think it so. as against Bradley.</p> <p>I think the verdict for plaintiff was based upon this view of the legal question, and if I was wrong on that, the defendant should have a new trial.</p> <p>The defendant, Z. P. Herndon, appealed, upon the following grounds; •</p> <p>1 st. Because his Honor erred in holding that the parol assignment or transfer made by James M. Askew to the defendant, of the claim or demand he held against L. J. Hancock, was not good against the subsequent written assignment of the same demand by said Askew to the plaintiff, Bradley, when the defendant was the party in possession.</p> <p>2d. Because his Honor held that the answer of the witness, Pearson, to the fourth interrogatory in chief, was incompetent evidence.</p> <p>3d. Because the verdict was contrary to the law and evidence.</p> <p>R. S. Wright, for the motion. 1st. The first question is, is a parol assignment of a chose in action, accompanied with delivery, legal and valid ?</p> <p>An assignment may be, 1. By deed attested by witnesses;</p> <p>2.By writing, under the hand of the assignor, endorsed upon the chose in action itself; 3. By parol or words, accompanied with delivery.</p> <p>These are different modes of doing the same thing. The mode of proof and character of the evidence being also dif-' ferent. The first mode, by writing, under seal, being the highest and least exceptionable.</p> <p>2. An assignment is a mode of transfer of a right merely — a sale of a thing or chose in action from one to another; and is in law and fact a contract between the assignor and assignee, and the assignee is vested with the rights of the assignor in the thing assigned ; and the assignee is entitled to the money. The contract or agreement of assignment may be specialty or parol.</p> <p>3. As between different assignees of a chose in action by the same person, he who is first in time is first in right.</p> <p>4. As -to notice of assignment to debtor, as between assignor and assignee of a chose in action, the contract is complete with any notice to the debtor. — 3 N. Y. Rep. 228.</p> <p>5. As to the delivery of the chose in action, “A delivery of personal chattel is a transfer of possession, either by tradition from hand to hand, or by writing, without delivery— the delivery of the writing being a symbolical delivery of the property.” Delivery is a question, in this case, for the jury.</p> <p>Actual and constructive delivery. — Constructive where the thing is not in possession of the vendor, and the vendee has the right to take possession, and does take possession. Or the surrender of all ownership by the vendor, is at least, pri-ma facie, sufficient evidence of constructive delivery. See Story on Sales, sec. 392.</p> <p>The acknowledgment of the assignor that he had made the assignment, implies at least that the assignee had accepted it or consented to it, and that a delivery had been made, and that the assignment was perfect.</p> <p>The assignment of a chose in action, even if it only transfer the equitable 'title thereto, the Coürt of law will recognize and fully protect and enforce. — Chitty on Bills, p. 7, note 2, and authorities there cited, p. 8.</p> <p>Although the assignment be not made according to the form of law, it will vest the equitable interest. So, if defendant be entitled, ex cequo et bono, to the money, this Court will recognize such equity.</p> <p>An assignment of a particular claim passes to assignee all remedies and liabilities which assignor had to secure and'recover it, though they are not specifically mentioned in the assignment. — Mehaffy v. /Share, 2 Pennsyl. 361; 9 Cowper, 747; 5 Cowen, 220.</p> <p>In Alexander v. Adams, (shff,,) 1 Strobhart, 47 — If one place a note in hands of attorney for collection, directing him to pay proceeds to another, in satisfaction of a debt due by him to another — that other being also a client of the same attorney — held to be an actual appropriation of the fund; and the party so assigning cannot revoke it by an after assortment. The phrase verbal assignment is used by the Court in this case.</p> <p>Authorities as to assignment of a chose in action need not be by deed: Howell v. Mclver, 4 T. R. 690; Howell, Jr. ads. Bulkley, 1 Nott & McC. 249; Dawson v. Coles, 16 Johns. R. 50.</p> <p>2. As between different assignee's of a chose in action, by express assignment from the same person, the one prior in time will be protected, though he have given no notice to either the subsequent assignee or debtor.' — Minor v. Schenclc, 3 Hill N. Y. Rep. 228, and cases there cited, as to question of notice to debtor.</p> <p>3. The bare delivery of a note or obligation amounts to an equitable assignment. — 3 Johns. Rep. 71, and 12 Johns. 346. A covenant or mortgage may be assigned by parol, and the mere delivery of a note or execution is sufficient assignment. Jones v. Withers, 13 Mass. Rep. 304; 15 Mass. 485; 19 Johns. 95 ; 17 Johns. 284.</p> <p>The assignments in all the cases cited were in writing, though not under seal. If anything was assigned in the case at bar, that was the original cause of action. If the transfer was by word of mouth, could not Askew have been admitted, to prove it, by either party ? If he could have been, his declarations were not admissible or competent.</p>

<p>Before Mr. Justice Richardson, at Greenville, Fall Term, 1847.</p> <p>This was an action to try title to land. The plaintiffs adduced regular title, in the following way :</p> <p>1st. A grant to Thomas Lehre, 27th Feb. 1787, for three hundred and four acres.</p> <p>2dly. Release from T. Lehre to Abram Markley, 28th Feb. 1787. This release covers many other tracts.</p> <p>3dly. Judgment of plaintiffs vs. A. Markley, 22d June, ' 1822.</p> <p>4thly. Revival of that judgment, 29th November, 1845, vs1 Charles Furman, administrator of A. Markley.</p> <p>5thly. Sheriff’s release, &c., 7th Sept. 1846, to the plaintiffs. The plaintiffs next located the land and proved the trespass.</p> <p>It appeared, from plaintiff’s evidence, that defendant had been in possession three, four, or five years; that he got the land of Reuben Ayers; ,and Ayers of the heirs of Abram Markley. Ayers had held it to 1843, and then followed the possession of the defendant.</p> <p>6thly. The plaintiffs adduced a judgment and recovery of the land by the heirs of Abram Markley vs. R. Ayers, Spring' of 1832. Further to show that the possession of Ayers was not adverse,</p> <p>Mr. Choice was sworn, and testified — W. Choice was the attorney of the heirs — does not recollect a writ of possession. It was understood that Ayers was to buy the land if recovered. So he remained on the land when witness made the titles, 31st Jan. 1835, for the heirs of Mr. Markley. Ayers remained undisturbed to the titles. Ayers talked of keeping the land; he said he had a title before, as an argument to get it low. Ayers spoke of buying the land.</p> <p>The defence was then gone into. It consisted chiefly in the possession of the heirs of Markley; the possession of Ayers, both before and after his title in 1835, from the heirs of Abram Markley, and of the defendant’s possession and titles’ from Ayers, beginning in 1843. The defence also supposed it a fraud upon the defendant in reviving the plaintiff’s judgment against the administrator of Markley — more than twenty years after it had been obtained. The defendant first adduced a grant to R. Ayers for same land, 21st May, 1822 ;■ and the following evidence:</p> <p>Mr. Edwards — Knows the land Ayers cleared about seventeen years ago, and before that he had a clearing; he kept possession till he sold to defendant, in 1843; he cropped there.-Smyers then took possession and remains there now.</p> <p>T. Rober — Ayers cultivated the land twenty years, and up to the sale to defendant — i. e. the cleared land ; he kept clearing, &c.</p> <p>W. Crowder — Knows the land; the first clearing of Ayers-was twenty years ago; he kept possession to his sale to defendant, who then took possession.</p> <p>Dr. W. Lee — Knows Abram Markley; he died June, 1824,-in Ratliffborough; B. A. Markley was his son — he died 1841-2 or 3. Furman is Cashier of Bank of State of South Carolina.-</p> <p>W. Choice — Ayers spoke of buying the land if recovered.A paper delivered by Mr. Choice to Mr. Thompson.</p> <p>Richardson, J. I charged the jury,</p> <p>1st. That the plaintiff’s paper title, i. e. by deeds of conveyance, was plain and.paramount to that of the defendant’s-paper title.</p> <p>2dly. That the revival of the plaintiff’s judgment against the administrator of Markley, after the lapse of more than twenty years, was regular, without fraud, moral or legal, and the sale of. the land by the sheriff, in virtue of such revived judgment, good, binding on and effectual against the defendant, under the lien of the first judgment of 1822. Each judg-mént was res judicata, and we could not set them aside in favor of the defendant; as they appeared regular. They bound Markley’s land which defendant had purchased; but</p> <p>3dly. That still the defendant might hold the land, or any part of it, provided he had held possession- for ten years or more. Such a possession would be paramount to the best paper title.</p> <p>Under the head of possession, I charged that the only proper legal strength of the defendant’s claim to the land, lay in’ his possession.</p> <p>The jury were first to decide what was the character of Ayers’ possession from 1832, when Markley recovered the land, to 1835, when he purchased the land ; was such possession in his own right and adverse to Markley, or in right of Markley? If the former, the statutory possession began in 1832, immediately after the recovery. If not adverse, such possession could only have commenced after Markley’s release of 1835.</p> <p>This first question of the proper legal defence by possession was one of fact, for the jury to decide, and depended chiefly upon the evidence of Mr. Choice. But if these three years’ possession were in defendant’s own right, the defendant under it could hold no more of the land than he actually occupied. But as the location and extent- had not been defined, I could perceive no way of getting rid of this difficulty, nor how that partial and naked possession could be connected and continued with defendant’s general possession of the whole land under Markley’s conveyance of 1835, and continued to 1843, which would have amounted to full ten year’s possession by Ayers.</p> <p>The next question was also for the jury, to wit: •</p> <p>What was the legal effect of Ayers’ possession, after he took a title of Markley in 1835, and held all the land to 1843, when he conveyed to the defendant, who has held possession ever since. These two possessions — that is, of Ayers for more than eighc years, and of Smyers for more than two years, if coupled together would give the defendant a paramount statutory title.</p> <p>On such coupling the two possessions of Ayers and Smy-ers, I charged the jury as a doctrine of the law, on the authority of Brevard, that it could not be done, and as either possession was of itself short of ten years, the statutory title of defendant had failed. But the jury found for the defendant by metes and bounds all the land he had purchased of Ayers. And the plaintiffs appeal, on grounds of fact. But I have reported the case generally, in order to enable the defendant to take in support of the verdict the grounds taken 'at the trial on the circuit.</p> <p>The plaintiffs moved for a new trial, on the following grounds:</p> <p>1. Because the only title set up by defendant was under the statute of limitations, and there was no proof of ten years’ adverse possession by Reuben Ayers, the grantor of defendant — but on the contrary, that the said Reuben Ayers held possession by permission of the agent of the executor of A. Markley.</p> <p>2. That the said Reuben Ayers had no color of title nor any thing else to designate the extent of his claim, and that if he had acquired a title by possession it was only to the land -in actual occupation, which was not laid down in the plat.</p> <p>3. Because the verdict was wholly unsupported by the evidence and the law applicable thereto.</p> <p>If the possession of Ayers from 1832 to 1835 and to the time when he sold it, was adverse' was it good as a statutory title ? Could it have been adverse after the verdict in 1832 ? Surely not. If, at a trial, one does not set up his best title, he is concluded from after-wards doing so, by the verdict. From the result of the suit Ayers held over and was our tenant. An action would have lain against him for rent, without a contract. A lease would have been presumed. (It happened that no writ of habere facias possessionem had been issued.) There was no appeal in the case, which showed that Ayers submitted to the verdict. He remained, in fact, on the land, by permission, under an agreement to buy when he could. A title by sufferance cannot be set up as adverse, and entitle one to hold, but he must adhere to the terms of his original possession. — • Wha-ley v. Whaley, 1 Spears’ Rep. 232. Nor can one entering by permission, set up a statutory title. — Calhoun v. Perrin, 2 Brev. 248. Nor can one entering under an agreement to purchase set up a statutory title. The very agreement recognizes title in another. In 2 McC. 289, where it was doubtful whether another had a better title, a conditional agreement to buy, if it proved so, prevented the statutory title. Offers to buy show that the person offering enters by permission. — Í2 Johns. 367 and 12 Johns. 429. Manuscript cases of 1822, (Walter v. McBinney) Rice’s Digest. This, then, is a question of law. There was a failure of evidence to prove the possession to be adverse. Ayers had no title. He had failed at the trial. The extent of his claim cannot be determined by the'vacated title.— Williams v. McGee, 1 Mills’ Con. Rep. 85. His possession was without paper to show its extent, and, if entitled to a verdict, it should have been only for that in his actual occupancy.— Gantey v. Platt, 2 McC. 260. The possession of Ayers and Smyers cannot be united to make up a statutory title.</p> <p>This is really a question of fact, and has been passed on by the jury. Ayers did have a grant to show his possession, although it had been nullified by the jury. His possession was adverse. If they neglected to issue their writ,.he continued the same possession under which he entered, which was adverse — shown so by the trial, and continued so after it. After the purchase from the heirs of Mark-ley he had a title, and could no longer be regarded as a trespasser. This title was subject only to the judgment creditors. Ayers conveyed to Smyers, and their two possessions can be joined to make a good statutory title. A judgment .against the executor or administrator cannot be levied on land in possession of the heir. — Jones v. Wightman, 2 Hill, 579, 581 and 582. Nor can a sale of land by the executor, after it has been aliened by the heir, affect the title of the alienee (the judgment being subsequently recovered). If an ancestor has possession nine years and his heir holds one year after, it is one possession, and gives a good statutory title.</p> <p>So far as the plaintiffs are concerned, Ayers did go into possession under his grant, and retained it. Markley’s heirs assented to the continuation of the title in him, and it was under their rights that he held. He does not profess, nor does his alienee, to hold adversely to Mark-ley’s heirs, but under them, and adversely to the plaintiffs. The judgment, in 1842, had been in existence twenty years, and was extinct. The presumption is, that it was paid in 1832; and the rights of third parties have accrued since, who are not parties to the revival.</p> <p>Waddy ThompsoN, in reply. The judgment has been revived. If it is a judgment, it is effectual against them, as Avell as any other persons — good for all purposes. In all the .cases referred to, 'to show that the lands could not be sold, the lands had been distributed — whereas, here, the heirs never had possession, or distribution. The executor held them as trustee of the creditors. Where no partition is necessary, the judgment can sell the property.</p>

<p>In an action brought by the Coronor against a purchaser at his sale, to recover the difference between a sale and re-sale, the Court refused to admit, in evidence for the purchaser, an untried suggestion of fraud, setting forth that the judgment under which the Coronor sold was fraudulent, and that the sale was for the benefit of the defendant in execution, who had applied for the benefit of the Insolvent Debtor’s Acts.</p> <p>A Coronor, in his sales, should pursue strictly the directions of the Act which regulates Sheriffs’ sales; but a sale being advertised for an irregular day, to' which the plaintiff, the defendant in execution and the officer have all assented, cannot work the dissolution of a contract made at such sale by a third person, who has been in no wise affected by the irregularity.</p>

<p>In an action of slander for charging the plaintiff with having sworn falsely to his schedule, it is not necessary to so charge and state the false swearing in the preliminary part of the declaration, as would be necessary in an indictment for perjury; still, enough ought to appear in words, or by legal intendment, to show “ an oath in a court of justice.”</p> <p>After verdict, it is only necessary to read the declaration, with every implication and inference which can arise by or from the words used, and if, on so reading it, the plaintiff’s case is sufficiently stated, it will be sufficient.</p>

<p>On appeal from the order of Mr. Justice Wardlaw, at Marion, Fall Term, 1846.</p> <p>The suggestion set forth these grounds:</p> <p>1. That the offence charged against the slave, who was to be tried before the inferior tribunal, to wit, insolence, was unknown to the law.</p> <p>2. That the statement of the offence made by the magistrate, “insolent language and action,” was not sufficiently distinct.</p> <p>3. That the magistrate had claimed equity powers. .</p> <p>It appeared that the slave Jim'had been arrested under a warrant, which specified the offence alleged against him to be insolent language and behavior towards Mrs. Crook, at a particular time; that, after preparatory steps, the magistrate and freeholders met — when, the magistrate being required to make a distinct statement of the offence, wrote down “ insolent language and action,” and being asked to show the law under which he proceeded, the magistrate said that there was no. law but equity, or something of that kind; and to satisfy the scruples of some of the free-holders, the trial was then adjourned to a day, before which this motion was made.</p> <p>Waedlaw, J. After argument, I was of opinion that insolence in a slave is an offence for which he may be tried and punished; that when the trial was about to commence the magistrate might make a statement of the offence sufficiently minute and distinct; and that by his expression concerning equity, not very accurate or learned, the magistrate meant only that the offence was not expressly created by Act, but was found in a just interpretation of the Acts concerning slaves.</p> <p>The relator moved the Court of Appeals to reverse the order made by his Honor Judge Wardlaw, dismissing the motion for a prohibition in the above stated case, on the following grounds, viz:</p> <p>1st. Because the suggestion for a prohibition, filed by the relator, showed the- want of jurisdiction by the magistrate’s Court; therefore, the writ of prohibition ought to have issued ex débito justitice.</p> <p>2d. Because there is no such offence in the whole of the slave code as “insolent language and actiontherefore, the accused was not bound by the law of the land to answer the same.</p> <p>3d. Because the charge alleged against the accused was too vague and indefinite — therefore he was not bound to answer it. MUNR.0 & KEQJJIEíl, Attys. pro Relator.</p>

Before Withebs, J. at York, Fall Term, 1847. This action was brought to recover a valuable tract of land, the title to which was admitted to have been perfect in the late Richard Thompson, of Spartanburg. The plaintiff claimed the premises by virtue of a devise in the will of Richard Thompson — and the defendant claimed it by virtue of a conveyance from him, dated the 31st August, 1844. The plaintiff and defendant were sons of the said Richard Thompson.

<p>Under an indictment for obstructing a highway, there is no absolute, legal neT cessity for a survey, if the case can be made sufficiently plain to be understood without a plat.</p> <p>Although the indictment for obstructing a highway be at common law, the statute as to roads may be referred to, not to give character to die offence, or as evidence, but to show what ate public ways. None save p-ivate Acts are to be given im, evidence.</p> <p>Where the evidence was sufficient to satisfy the jury, the Court will not, unless there was manifest error, interfere with the finding.</p> <p>A road which has been in general use by all persons, for public purposes', for an uninterrupted period of twenty years or more, is a highway, for obstructing which, an indictment will lie.</p>

<p>Before Mr. Justice Evans, at Chester, Spring Term, 1847.</p> <p>This was an action for dower. The demandant claimed as the widow of Zachariah Reed. It appeared from the evidence that from 1804 to 1816, Zach. Reed and Joseph Reed carried on, in co-partnership, a mercantile business. During the continuance of their business they purchased several tracts of land, and paid for them out of the partnership funds. Amongst others, they bought the land in controversy, of one Elliott, who executed a deed to them jointly, dated 6th October, 1806. It remained their joint property, until after the dissolution, when Zach. Reed, in consideration of $>6000, conveyed this tract and another to Joseph Reed, 28th January, 1817. This deed purports to convey the whole, but in the clause (warranty) something is said about “ his part or share.” The deed is without seal. The defendant claims under Joseph Reed.</p> <p>On the part of the defendant it was contended, 1st. That this being partnership property, should be considered as personalty. 2d. That the two Reeds were joint tenants, and that by the common law, a widow of a deceased joint tenant could not be endowed.</p> <p>The Presiding Judge said — I did not think either proposition could be maintained. There is' a case in 2d DeSaus-sure’s Reports which gives some countenance to the said proposition, but equity is sometimes governed by peculiar rules. In law land is never regarded as personal estate.</p> <p>The reason why a widow cannot be endowed of an estate in joint tenancy, is that the whole estate belongs to the survivor; but this, the right of survivorship, is taken away by the Act of 1791. An estate in joint tenancy is now an estate of inheritance, and I can see no reason why a widow shall not have dower in it, as in other estates of inheritance.</p> <p>I did not consider that there was any estoppel, so as to prevent Joseph Need and those who claimed under him, from averring that Zach. Reed was only a joint tenant, and not the owner of the whole land. I therefore charged the jury that the demandant was entitled to dower in one half of the land, and they found accordingly.</p> <p>The defendant, R. B. Kennedy, appealed from the instructions of his Honor to the jury, and the verdict of the jury, and moved the Court of Appeals for a new trial, on the following grounds:</p> <p>1st. Because the land was held by Z. Reed, the husband of the demandant, and Joseph Reed, as joint tenants, until Z. Reed relinquished his interest in the land, which was not such a seizen by Z. Reed, as to entitle the demandant, his widow, to dower, and the jury should have been so instructed.</p> <p>2d. Because the land was purchased by Joseph Reed and Z. Reed, with profits of a mercantile establishment, in which they were partners, and was held by them, as partners, until they dissolved, when the land, with the other property of the firm, was divided, and the land in question taken by Joseph Reed; it should, therefore, have been held and decided to be in the nature of personal estate, and the demandant, therefore, not entitled to dower in the land.</p> <p>The demandant also appealed, on the ground that she was, or is, entitled to dower in the whole of the tract of land, as Joseph Reed, under whom the defendant claimed, having accepted a deed from Z. Reed, the husband of the demandant, and having held under that deed for more than twenty years, is estopped from denying title in Z. Reed.</p> <p>2d. Because Joseph Reed, having held under the deed from Z. Reed for more than ten years, the land out of which dower is now demanded, gave him a perfect title under that deed, and he is' estopped from denying title in Z. Reed.</p> <p>cited Act of 1791, Stat. L. 163; Acts of 1734 and 1748; 1 Treadway, 90; Hilliard on Real Est. 151; Maybury v. Brien, 15 Peters Rep. 21: Roper on Hus. and Wife, 363; 9 Law Lib. 37.</p> <p>cited Dy. 343; Shep. Touch. 128; Coke Lyt. 224 ; 2 Bac. Abridg. 366, title Dower; Park on Dower, 38, note; 2 Blk. Com. 185; Preston on Estates, 136; Perkins, sec. 500; Finney v. Holbrook, 4 Mass. Rep. 566; Coles v. Coles, 15 Johns. 159; 11 Mass. Rep. 469, and the cases there cited; 2 Yerger’s Rep. 20 ; Park on Dower, 11 Law Lib. 20 ; 17 Wend. 164; 6 Johns. 290.</p> <p>cited 4 Kent’s Com. 37; 2 Dana’s Rep. 186; Winn v. Elliott, Hardin’s Rep. 482; 1 Wheeler’s Amer. Eq. Dig. 296, sec. 4, and p. 298, sec. 29; Hum-phries v. Lewis, 4 Munroe’s Rep. 341; 2 Jacob’s L. Die. 440.</p> <p>cited Act of 1791, 6 Stat. L. 152; Richardson v. Wyatt, 2 Des. E. R. 471; Potter v. Wheeler, 13 Mass. Rep. 504.</p>

<p>Any obstruction of lawful process, whether it be by active means, or the omission of a legal duty, is an indictable offence, (4 Bla. Com. 129.) But the indictment must show what the process was; that it was legal, and in the hands of a proper officer, and the mode of obstruction. — (2 Chit. C. L. 134.)</p> <p>Where, in an indictment for assaulting and resisting a deputy sheriff in the execution of his duty, the obstruction was alleged indefinitely and insufficiently, but there was nothing in the allegation concerning it, from which, in any way, a justification of the assault could be inferred, the Court held that the allegation of the obstruction might be regarded as mere surplusage, and suffered the indictment to stand, as an ordinary indictment for an assault, without a battery, upon an officer, in the execution’of bis duty.</p>

Before Mr. Justice Wardlaw, at Marion, Fall Term, 1847. The prisoner was indicted for the murder of a slave, contrary to the form of the Act, &c. The case which appeared in evidence was substantially as follows: At Gilesborough there was a public celebration of the national festival on Monday, 5th July last.

Before Mr. Justice Wardlaw, at Sumter, Extra Court. July, 1847. This was an action of assumpsit, to recover the price of land sold.

Before Mr. Justice Ward law, at Darlington, Fall Term, 1847. This was a summary process, brought to recover money paid by the plaintiff, at the request of the defendant, and for his use.

Before Mr. Justice' Withers, at Laurens, (Extra Term,) July, 1847. The Presiding Judge. The question was, devisavit vel non. The Ordinary had decreed in favor of the will, and the plaiutiff appealed. The alleged testator was James Dillard, and the plaintiff was the daughter of a deceased son. The defendant was nominated executor in the paper propounded. The alleged will bore date the 6th Feb. 1836.

Before Mr. Justice Richardson, at Abbeville, Fall Term, 1847. The Presiding Judge. This was an action of trespass quare clausum fregit. Held: and so charged the jury, that this action would not lie against one in actual occupation of land, by one who was in prior constructive possession. 6. Because the verdict was contrary to the law and the evidence.

Before Mr. Justice Evans, at Chester, Spring- Term, 1847. Abner Lee, by his will, dated 1st August, 1839, bequeathed a negro woman named Less, and her children, Maria and Sarah, to the plaintiff. The balance, after paying his debts, he gave to his wife. The will contains this provision: “that Less and her children should be hired out until” the plaintiff came of age; also, “ I want Ira PI.

<p>The discharge of a prisoner, by order of the Court, under the Insolvent Debtors Act, is a release from and satisfaction of the plaintiff’s ca. sa. and a bar to his action on the Prison Bounds Bond; nor do the facts, that the plaintiff did not appear, and that no issue was made on the truth of the schedule, vary the case.</p>

<p>Tried before Mr. Justice Wardlaw, at Marion, Fall Term, 1847.</p> <p>This was an action in the case, brought to recover damages for the injury done to the plaintiff by the defendant’s ofli-cial misconduct, in this : That the defendant had, under various writs of fieri facias against the plaintiff, levied upon the lands of the plaintiff, called the Mill Lands, and at public auction knocked off the same to Thomas Harllee, highest bidder, at $1310: That Harllee having failed to comply with the terms of the first sale, re-sale of the same lands had been made by the Sheriff to John McQueen for $705, and that the Sheriff had neglected to make entry in writing, as he should have done, in his Sales Book, of the sale to Harllee, whereby the plaintiff was injured, &e.</p> <p>It appeared that the Sheriff had levied, sold to Harllee, resold to McQueen, and failed to make entry, all as alleged: Further, that all the executions against the plaintiff had been satisfied from subsequent sales: That the “Mill Lands” consisted of a tract on the western side of a creek, which belonged to the plaintiff, and was worth about $500, and of an adjoining tract, with a mill on the eastern side of the creek, which had belonged to Charles Ford in his life-time: That Charles Ford died intestate, leaving as his heirs five brothers and sisters, of whom the plaintiff was one: That the plaintiff became administrator of Charles Ford, and entered upon the lands as lands of the estate of Charles Ford; but although plaintiff was in exclusive possession, and some imperfect contracts had been made between him and some of the other heirs of Charles Ford, no conveyance of any of the other shares had been made to him: That before the sale to Harllee, plaintiff had contracted to sell the lands to one Gaddy, for $1800, to be paid in instalments, with an understanding that Gaddy should buy at Sheriff’s sale for a sum not over $900, and pay the balance over of the $1800 to plaintiff: That at the first sale by the Sheriff, plaintiff endeavored to discourage Harllee and other bidders, by talking of an arrangement with Gaddy, and of lands of Gaddy overflowed by the mill-pond, until the biddings had gone above $1,000, at which sum Gaddy stopped, and then the plaintiff had strongly urged Harllee and others to bid, declaring that the title was good, and after the sale, had said to Plarllee— v You’re stuck, for I have only one share in the landand that purchasers from McQueen had got conveyances from the other heirs of Charles Ford.</p> <p>The Presiding Judge said: I thought that unsatisfied creditors of the plaintiff might recover from Harllee the sum lost by the re-sale, if proper entries had been made, and so would, for any loss thereby occasioned to them, have had ground of complaint against the Sheriff, for neglect of duty ; but that if the sale, regarded as a sale by the plaintiff, would, as to the plaintiff himself, have been void for' fraud, the plaintiff had no just cause of action: That if there had been recovery by creditors against Harllee, PXarllee might have recovered over against the plaintiff to the extent of the injury done to Harllee by plaintiff’s misrepresentations; and if this extent equalled or exceeded the difference between the two sales, for which Harllee would have been liable to creditors, Harl-lee might have had from the plaintiff entire reimbursement of the recovery against him; and that therefore the plaintiff could not be damnified by the Sheriff’s neglect to do what would, after the adjustment of the rights of the various parties, have been of no service to the plaintiff.</p> <p>To show that the misrepresentations probably equalled in effect the difference of the sales, $605,1 remarked that if the land west of the creek was worth $500, Harllee had estimated the eastern side of the mill at $810, of which one-fifth was $162, and four-fifths (as to which the title was deficient) was $648.</p> <p>The jury found for the plaintiff $162. I do not know whether they were misled by any thing I said, or acted upon some notion of value, according to which they supposed the plaintiff had been damnified by the defendant’s misconduct, over and above the effect of his own misrepresentations.</p> <p>The defendant moved the Court of Appeals for a new trial, on the following grounds, viz:</p> <p>1. Because his Honor, the presiding Judge, notwithstanding the fraudulent misrepresentations of the plaintiff were clearly proved, erred in charging the jury, that they might find for the plaintiff the difference between the value of the plaintiff’s interest in the land, and what he received by the re-sale.</p> <p>2. Because, the fraud being proved, Thomas Harllee, the bidder, was relieved from the whole contract, as between him and plaintiff; and the bidder being so relieved in this action, the defendant was not liable to plaintiff; whereas, the verdict assumes to enforce said contract to the amount-of plaintiff’s supposed interest in the land.</p> <p>3. Because, if the first bidder was liable to this extent, the plaintiff was fully reimbursed by the re-sale in March, 1841.</p> <p>4. Because, if the said bidder was liable on said bid, it was to the execution creditors of the plaintiff who were unsatisfied, and the plaintiff had no right to sue.</p> <p>5. Because the verdict of the jury was contrary to law and evidence.</p>

<p>Where the Sheriff and his sureties were sued upon their bond, executed prior to the Act of 1839, and sundry verdicts had been before recovered against them, they were not allowed to include the costs of the former judgments, and the interest paid on the former recoveries against them, as parcel of their aliquot portions of the penalty of the bond.</p> <p>Tlie interest which, after judgment, accrues on a cause of action bearing interest, is no p'art of the recovery or damages assessed; and where the damages have been assessed to the whole amount of the penalty of a bond, the subsequently accruing interest is additional thereto, and given, by the Statute, in the nature of damages for the default of the defendant in not paying, at the time of tire recovery, the sum recovered.</p> <p>Costs, in addition to the penalty, may be recovered on a penal bond, for they are given to compensate the plaintiff for his outlay in obtaining justice.</p>

Before Mr. Justice Evans, at Sumter, Fall Term, 1847. This was an action of debt on a money bond given by defendant to John Kirkpatrick & Co. The declaration, after stating the making of the bond, &c. alleged as follows: “ and which bond Benjamin Haile received by assignment from John Kirkpatrick & Company, for value received f and this was the only allegation or averment in the declaration of an assignment to the plaintiff.

Before Mr. Justice Wardlaw, at Abbeville, July Extra Term, 1846. This was an action of debt, brought to recover the penalty of the written obligation, of which a copy is annexed. Under judgment for the penalty, the plaintiff desired to collect the one hundred dollars mentioned in the condition, with interest.

Before Mr. Justice Wardlaw, at Marion, Fall Term, 1847. SUM. PRO. ON NOTE.

<p>On appeal from proceedings before the Commissioner of Special Bail, at Edgefield, 1847.</p> <p>REPORT OF THE COMMISSIONER OF SPECIAL BAIL.</p> <p>Ferdinand A. Schroder, being in the custody of the Sheriff of this District, under sundry writs of capias ad responden-dum, duly endorsed for bail, at the suits of C. M. Gray and others of his creditors, on the 18th June, 1847, filed his petition in my office to be admitted to the benefit of the Prison Bounds Acts, upon executing the assignment required by law ; and on the same day filed in my office-a schedule, purporting to be a full enumeration of his whole estate and effects: an order was therefore made by me, and duly published, requiring the plaintiffs in the said suits to show cause why the defendant’s said application should not be granted. Sundry grounds of objections to the discharge of the defendant were filed in my office, on behalf of the plaintiffs, and an issue in writing having been made up between the said defendant and plaintiffs, (of which grounds of objections and issue a copy is herewith submitted,) the same was, on the 2d July last, duly submitted to a jury, organized in pursuance of the .Act of 1833, and thereupon the following evidence was introduced :</p> <p> Evidence for Plaintiffs. </p> <p>The notes upon which the several writs were founded under which the defendant was arrested, are offered in evidence, and are as follows: One note signed by F. A. Schroder and S. O. Schroder, dated Charleston, -10th Nov. 1846, for $545 2Í, payable four months after date, to S. Mowry & Son; also an account for $1,220 67. One note for $463 43, dated Charleston, 15th Dec. 1846, and payable to Matherson & Simons, four months after date, with two credits endorsed thereon. One note for $488 78, dated New York, 28th Aug. 1846, and payable to O. & A. Wetmore, six months after date. One note for $222 71, dated New York, Sept. 1,1846, payable to O. & A. Wetmore, six months after date. One note for $655 32, dated New York, 8th Sept. 1846, and payable four months after date. One note for $151 18, dated New York, 14th Sept. 1846, and payable to O. & A. Wet-more, six months after date. Demands in favor of Otis J. Chaffee and E. L. Adams. These two last demands were not shown on the day of trial, but the entries of the writs on the Sheriff’s books, proved by the Sheriff, were admitted as evidence.</p> <p>It further appeared in evidence, that the assignment from F. A. Schroder to S. C. Schroder, was executed on the 7th of January, 1847. That F. A. Schroder was arrested on the 11th day of Jan. 1847, at the suit of S. Mowry & Son, and was released upon his giving bail. That on the 10th of May following, the said F. A. Schroder was arrested, and gave bail, at the suit of C. M. Gray. That on the 12th of June, 1847, he was arrested at the suit of O. & A. Wetmore, and gave bail. It did not appear at what time he had been arrested at the suits of Otis J. Chaffee and E. L. Adams, as no writs were adduced in these cases, but the plaintiffs contented themselves by adducing the Sheriff’s writ book, from which it appeared that bail writs had been lodged at the suits of Otis J. Chaffee and E. L. Adams on the 14th of January, 1847. It further appeared that F. A. Schroder was surrendered by his bail, on the 18th day of June, 1847.</p> <p>H. Boulware sworn, says — He knows F. A. Schroder; that he is a grocer in the town of Hamburg, South Carolina; that he owned a storehouse and lot there, and did business in same house last fall; he also knows S. C. Schroder; saw him about the store, but only considered him a clerk.</p> <p>Cross-examined — Says he lived in Hamburg in 1840, and knew F. A. Schroder; does not know when S. C. Schroder came to Hamburg; knew him in 1844, ’45 and ’46.</p> <p>George Parrott sworn, says — He knows Mr. Mowry, in Charleston; that there is a firm of O. & A. Wetmore, in New York; a firm of Matherson & Simons, and a firm of E. L. Adams, in Charleston. That he lives in Hamburg; knows F. A. Schroder; has done business there from three to four years; kept a respectable stock of groceries for two seasons. Last fall moved to his own house; stock supposed to be good; was the ostensible owner of a house and lot in Hamburg, on Centre Street; offered it to him (Parrott). That he saw S. C. Schroder about the store; supposed him to be a clerk; never knew him in business; he is younger than F. A. Schro-der. F. A. is a man of family.</p> <p>A bill in Equity vs. F. A. <fe S. C. Schroder, showing that the notes in suit now, were the notes given for the goods which were transferred to S. C. Schroder.</p> <p>J W. Gibbs sworn, says- — He has been in F. A. Schroder’s house, in Hamburg; it was about the 23d of January, 1847; found him at his store. Saw very good furniture in house.</p> <p>Cross-examined — Says S. C. Schroder lived in house near bridge; F. A. also lived in same house.</p> <p>George Mathis sworn, says — He had execution vs. S. C. Schroder, in August, 1846; that S. C. said he had nothing' to pay it with; therefore it was returned nulla bona.</p> <p>Cross-examined — Says about 4th August, 1846, he called on S. C. Schroder to pay execution. Part has been paid, since 7th Jan. S. C. said he would pay the principal, but would not pay witnesses’ costs.</p> <p>W. Spires, sworn, says — He knows F. A. Schroder was a merchant in Hamburg, about 7th Jan.. 1847; had house and lot, and merchandize; resided in house Woods built, near bridge; that he heard F. A. Schroder had sold out to S. C. Schroder, about the 7th Jan. F. A. resides in Hamburg; that he has seen him about the store, since the assignment.</p> <p>Cross-examined — Says he never saw F. A. sell since the assignment was made. In 1840 F. A. Schroder ran a boat across the river. Afterwards he kept a grog-shop; that he does not exactly recollect when S. C. came to Hamburg; that he knows F. A. increased his stock soon after S. C. came ; F. A. kept grog shop two years before S. C. came to Hamburg ; that he made money by his grog-shop.</p> <p>W. H. Green, sworn on the part of defendant, says — He knew F. A. Schroder in 1840; that he ran a boat across the river between Hamburg and Augusta; that he next saw him keeping a grog-shop, selling by the drink. He was worth $200 or $300. In 1843 he kept pickles, candy, &c.; the stock was worth $2,000; that he cannot say when S. C. Schroder came to Hamburg. Business for the last two years has increased ten times the amount before; that he saw money in possession of S. C. Schroder, $800 at one time; that he borrowed money from S. C. Schroder.</p> <p>Cross-examinéd — Says S. C. Schroder is younger than F. A. Schroder. That S. C. Schroder has been in possession of all the property since the execution of the deed.</p> <p>C. Richter sworn, says — He came to Hamburg in 1842; S. C. Schroder came in 1843; that he saw a large sum of money in his room, of both gold and paper, in 1844; that F. A. Schroder had a small capital in 1842, and until after S. C. Schroder came to Hamburg; that the business of F. A. increased every year after S. C. came, to the extent of more than $2,000; that S. C. promised to go into business with him in Oct. 1844.</p> <p>L. H. Brooks sworn, says — The following amounts of money were given in notes from F. A. to S. C. in the handwriting of F. A. One note dated New Orleans, January 30, 1838, for $3,500. One dated May 12, 1844, for $3,500; one note dated 7th July, 1844, for $2,300; one dated January 4, 1845, for $1,300; that he calculated the interest on the notes; that S. C. became dissatisfied, and urged F. A. to settlement; that he was clerk for F. A. in 1846. After a settlement was made, and F. A. had made the transfer, there was a balance in favor of S. C. of $250; that when F. A. inserted in his schedule some articles of furniture, S.- C. objected, saying they were his property; that he saw the execution vs. S. C. in favor of Mr. Bauskett, but S. C. said it was not just, though he would pay it; that S. C. had money, but he never saw it; that S. C. owned a horse two years ago.</p> <p>Cross-examined, says — He was clerk for F. A. last winter and fall; that he’ bought goods of the plaintiffs, which goods were brought to Hamburg; some of which were sold for cash. They were bought on a credit of four months, in New York and Charleston; that F. A. had accounts with S. Mowry & Son, for a long time; thinks Mowry’s account was made about the date of the account. F. A. did as good business as usual; sales amounted to about $12,000 or $15,000 a year. Knew he paid debts last year. Part of the goods were sold before the assignment was made; did very little business on ■credit; collected money in Nov. and Dec. 1846; paid some to S. Mowry; paid witness some small amount. Sold from 1st July 1846 to 1st January, 1847, about $6,000 worth of articles; that the assignment embraced the house and lot, and all articles, except a few; that he prepared F. A’s schedule of furniture conveyed by the deed; that three-fourths of the articles were always sold for cash; that F. A. received the money; that he.has collected for F. A. since the 1st of January $200 or $300, and given it to him. F. A. purchased since 23d Dec. 1846, 20 barrels of whiskey from Chaffee, and transferred, it to S. C. S. 0. was in Hamburg when F, A. went to Charleston to buy the goods before mentioned. That F. A. is in the habit of gaming, and has been for some years.</p> <p>William Gronard sworn, says — He commenced keeping bar for F. A. Schroder, in May, 1844; that S. C. Schroder was living in Hamburg then; that he saw in his possession a note on F. A. for $3,500; he saw it about eighteen months ago; that he saw money in the possession of S. C.; that S. C. sent $1,000 with F. A. to New York, and paid $200; that F. A. spends a great deal of money; has often seen him gaming.</p> <p>Cross-ex aanined — Says that the business still went on while F. A. was in New York.</p> <p>/S'. C. Schroder sworn, says — tie lived in New Orleans, and made money by keeping a grocery; had about $9,000 when he came to Hamburg; loaned his brother F. A. money, soon after he came there; that F. A. gave him the note for $3,500, for his portion of a legacy that he had spent; loaned him a little money at times, until the amount was $3,500; in 1844, loaned him $1,600; sent him $1,000 when in New York, loaned him $1,300; became alarmed at his spending too much; in 1845, that he was unwilling to come to a settlement with witness, and angry words passed between them before he would settle. Brooks made the settlement; he took possession of every thing in the house; there was a balance in favor of S. C. Schroder after settlement.</p> <p>Cross-examined — Says the assignment was intended to include all the property of F. A.; did not know he owed any debts when assignment was made; he took the house and lot at $900; F. A. wanted $1200 for the house and lot; took goods at cost prices; took furniture at $300, $400 or $500; was in store about $9,000 ; a balance was due S. C. but he took no note; did not want a note; has demanded balance of F. A. but he could not pay it; he had a deed for.what he was worth; that he has sold many of the goods, and has some of them still — probably $2,000, $3,000, $4,000 or $5,-000 — not so much as $8,000; keeps no books; cannot say how much he has sold since he has bought the goods; cannot say 'how much cash he had in January last; he sold the goods for $4,000 or $5,000; frequently aided F. A. in selling goods; heard F. A. say what the goods cost; was present when the assignment was made; saw invoices of the goods; left his notes in possession of Col. Yancey, to prepare an answer to the bill in Equity against F. A. & S. C. Schroder.</p> <p>THOMAS G. BACON,</p> <p>Clerk, and C. S. JB.</p> <p>SMITH MOWRY & SON 1 IN THE COMMON PLEAS, F. A. & S. CJ3CHRODER. ) Edgefield District.</p> <p>The plaintiffs in the above stated case come and object to the discharge of Ferdinand A. Schroder, under his petition for the benefit of the Prison Bounds Acts, and suggest the following grounds:</p> <p>1st. That the said Ferdinand A. Schroder was guilty of fraud in holding himself out to the plaintiffs as a man of property, and worthy of credit, when he contracted the debt on which the suit is brought in the above case.</p> <p>2d. Because the said F. A. Schroder purchased the goods of the plaintiffs, for which the debt in the above case was created, with the view and intention to assign them over to his brother, (S. C. Schroder) and thereby cheat and defraud the plaintiffs out of the means of obtaining payment of their said debt.</p> <p>3d. Because the said F. A. Schroder, on or about the 7th of January, 1847, made a fraudulent assignment of his slock of goods and other property in Hamburg, to his brother, (S. C. Schroder) with a view to hinder and defraud the said plaintiffs, as also his other creditors, of their just debts.</p> <p>4th. Because the said assignment to S. C. Schroder, dated about the 7th of January, 1847, was without consideration, only colorable, and intended to shift the property from the debtor to the hands of his brother, with a view to defraud his creditors, for the sole benefit of the said F. A. Schroder, or the joint benefit of himself and his said brother.</p> <p>5th. Because, if said deed of assignment was for a valuable consideration, then the plaintiffs suggest that the said F. A. Schroder thereby gave an unjust and undue preference to one of his creditors, to the prejudice of the said plaintiffs.</p> <p>6th. Because the said F. A. Schroder has omitted to include, in his said schedule, his interest in the stock of goods, store, furniture, accounts, books of account and other assets belonging to said store, now in the possession of the said S. C. Schroder.</p> <p>7th. Because he has not included in his said schedule the ' house and lot on Centre Street, Hamburg, which he owned at the time he contracted the said debt with the plaintiffs.</p> <p>8th. Because the said F. A. Schroder has not included in his said schedule all the estate and property, chattels, effects, and dioses in action, which are specified and enumerated in the said deed of assignment from the said F. A. Schroder to the said Segismund C. Schroder.</p> <p>9th. Because the said Ferdinand A. Schroder, for the reasons above assigned, and others not herein specified, is not entitled to his discharge, or any other of the benefits of the Acts of the General Assembly of the said State, commonly called the Prison Bounds Acts.</p> <p>BAUSKETT, Plaintiffs1 Attorney.</p> <p>And the said F. A. Schroder, by Messrs. Gray & Yancey, his attorneys, comes and defends the wrong, injury, when, &c. and says that he is not guilty of the frauds and other matters charged against him in the foregoing suggestion, and of this he puts himself upon the country, &c.</p> <p>GRAY & YANCEY, Defendant’s Att’ys.</p> <p>And the said Smith Mowry & Son, the suggestors, do the like- BAUSKETT, Plaintiffs’ Attorney.</p> <p>We, the jury, impanneled to try the issues on the within suggestion, do' find for the plaintiffs on the second, third, fifth and ninth grounds, within stated, and on all the other grounds of the within suggestion, we find for the defendant, F. A. Schroder. E. J. YOUNGBLOOD, Foreman.</p> <p>C. M. GRAY vs. F. A. & S. C. SCHRODER. 'i O. & A. WETMORE vs. F. A. SCHRODER. | Writs of Capias OTIS J. CHAFFEE vs. the same. y ad E. L. ADAMS vs. the same. J Respondendum. S. MOWRY & SON vs. F. A. & S. C. SCHRODER, j</p> <p>Application by F. A. Schroder to be discharged under the Prison Bounds Acts. C. M. Gray and other plaintiffs in the above stated cases, come and suggest the following grounds against the discharge of the said F. A. under the Prison Bounds Acts:</p> <p>1st. Because the said F. A. Schroder is guilty of fraud, in having omitted to include in his schedule filed in the above stated cases, his whole estate, and particularly in not including in said schedule the whole of his household and kitchen furniture; and the said plaintiffs charge the following articles to be so omitted, viz: one wardrobe, one cradle, one crib, one set of chandeliers, two dozen chairs, four bedsteads, four feather beds, four mattresses, four bolsters, eight pillows, eight blankets, and a large quantity of bed clothes, two dozen plates, one dozen dishes, half a dozen waiters, two dozen cups and saucers, one coffee and one tea pot, three bowls and pitchers, two wash stands, three tables, one side board, one bureau, two sofas, one carpet, and other articles of household furniture; three pots, three ovens, and other articles of kitchen furniture; and one house and lot in the town of Hamburg, situate on the west side of Centre Street.</p> <p>2d. Because the said F. A. Schroder is guilty of fraud in not including in his schedule his interest in the stock of goods on hand in the grocery store in the town of Hamburg, wherein he has been doing business as a grocer or merchant for some time past, either alone, or as partner of his brother, S. C. Schroder.</p> <p>3d. Because the said F. A. Schroder is guilty of fraud in making a false return, in not including in his schedule his whole estate, and particularly the articles and estate enumerated in the first ground of the suggestion, and his interest in the stock of goods mentioned in the second grpund of this suggestion.</p> <p>4th. Because the said F. A. Schroder has been guilty of fraud in giving an undue and fraudulent preference to other of his creditors, to the prejudice of the plaintiffs, in this, to wit: that he has assigned or attempted to assign and transfer his house and lot aforesaid; his stock of goods in the said grocery store in Hamburg; his debts due him, notes, accounts, and other choses in action, being his whole estate, to his brother S. C. Schroder, and has, within three months of his arrest, paid other of his creditors their demands, in fraud of the plaintiffs.</p> <p>5th. Because the said F. A. Schroder is guilty of fraud in having assigned to his brother, S. C. Schroder, a house and lot, in the town of Hamburg, situate on the west side of the centre street, his stock of goods, groceries, &c. in the aforesaid grocery store in the said town, at the time of said assignment, and his household and kitchen furniture, and the debts due to him as a merchant or grocer as aforesaid, with the view of defrauding the plaintiffs and his other creditors.</p> <p>6th. Because the said F. A. Schroder has expended more than two shillings and sixpence per day, since his arrest in these cases.</p> <p>7th. Because the said F. A. Schroder is guilty of fraud, and of making a false return, in not including in his schedule his interest in the proceeds of the sale of the stock of goods, wares, and merchandize, (on hand in his grocery store in the town of Hamburg, at the date of the paper purporting to be an assignment thereof to his brother, S. C. Schroder,) which sales have been made since the said assignment, and because he has not included in his said schedule his interest in moneys collected, since the said assignment, on notes, bonds and accounts due him, the said F. A. S. at the time of the assignment — and because he has not included in his said schedule all his notes, bonds and accounts, and evidence of debts due to him, the said F. A. Schroder.</p> <p>8th. Because the said F. A. Schroder is guilty of fraud in buying the goods, wares and merchandize, for which the notes sued on in these cases were given, with the view of assigning said goods to his brother, S. C. Schroder, who was conspiring and confederating with said F. A. Schroder thus to cheat and defraud the plaintiffs and the other creditors of said F. A. Schroder.</p> <p>GRIFFIN, 'Plaintiffs’ Attorney.</p> <p>And the said F. A. Schroder, by Messrs. Gray & Yancey, his Attorneys, come and defend the wrong, injury, when, &c. and says that he is not guilty of the frauds and other matters charged against him in the foregoing suggestion, and of this he puts himself upon the country, &c.</p> <p>GRAY & YANCEY, Defendants Attys.</p> <p>And the suggestors do so likewise.</p> <p>GRIFFIN, Plaintiffs’ Attorney.</p> <p>We find for the plaintiffs on the seventh and eighth grounds of this suggestion, and also all of the fourth and fifth grounds, except so much as relates to the debts, notes and other choses in action, due to the said F. A. Schroder; and we find for the defendant on all the other grounds of this suggestion, and on so much of the fourth and fifth grounds as relates to said debts, notes and other choses in action, included in the deed of the said F. A. Schroder to his brother. E. J. YOUNGBLOOD, Foreman.</p> <p>The defendant appealed from the verdicts of the jury in this matter, and moved the Court of Appeals for a new trial, on the grounds—</p> <p>1st. That the Commissioner of Special Bail erred in allowing the plaintiffs to challenge peremptorily one of the jury.</p> <p>2d. That the Commissioner of Special Bail erred in receiving the Sheriff’s writ book as evidence that the plaintiffs, O. J. Chaffee and E. L. Adams, had issued Bail Writs against the applicant, and of the time of his arrest, without production of the writs, or accounting for the absence of the writs.</p> <p>3d. That the jury rendered two separate verdicts in one matter or trial.</p> <p>4fh. That the suggestions of the plaintiffs and the verdicts of the jury do not set forth distinctly any general charge, such as fraud, false return, or undue preference of one creditor, which might deprive the applicant of the benefit of the Prison Bounds Acts.</p> <p>5th. That the grounds in the suggestions are not specifications under any general charge of time, place, sum, person, item, or other facts, with reasonable certainty, constituting a bar to applicant’s discharge.</p> <p>6th. That the verdicts of the jury against the applicant are inconsistent with so much of the findings as are in his favor; particularly that the finding against him of fraud and undue preference is inconsistent with- the finding that S. C. was his bona fide creditor.</p> <p>7th. That the verdicts are not upon material issues distinctly made, are against law, and without evidence.</p> <p>contended that a debtor may prefer his creditor, if the deed be for valuable consideration. — Smith v. Henry, 1 Hill, 16. That the Act of 1788 (5 Stat. 79) mitigates the severity of the Act of 1759, (4 Stat. 86) and that the Act of 1841 goes farther, showing a gradual relaxation in favor of the debtor; and that the debtor is not strictly in confinement until he has been surrendered by his bail. — 5 Stat. 79 ; Sherman v. Barrett, 1 McMul. 147; 2 Spears, 76.</p> <p>said that each creditor might suggest: then there can be more than one suggestion, and necessarily more than one verdict. — 6 Stat. 492 (Act of 1833); Crenshaw v. Wetsel, 2 Hill,'418; Walker v. Briggs, 1 Hill, 118; Thomson v. Idnam, 1 Bail. 131; Sherman v. Barrett, 1 McMul. 160.</p> <p>cited Robertson 6p Caldwell v. Amy, 1 Rich. 291, and insisted that the 7th section of the Act of 1788 specifies the delinquencies or frauds which will prevent a prisoner from the benefit of the Act. That in this case there was no fraudulent preference of the brother, and that the assignment was made more than three months previous to the arrest of the prisoner, and more than six months before his confinement.</p>

<p>Where a deed is proved by evidence of the signature of a subscribing witness, who is beyond the State, it is competent for the opposite party to introduce evidence of statements made by the same witness, as to circumstances of its execution, differing from those which he had made when examined by commission.</p> <p>In trespass to try title, the declarations of a deceased person, not a part of the res gestes, are not competent evidence that he was the agent, in possession, of the party from whom plaintiff derived title to the land in dispute.</p> <p>A party whose father had accepted a deed, for a part of a tract of land, from A, containing a recital that B, the grantee, had conveyed to A, is not thereby es-topped from afterwards denying that B was the real grantee of the whole tract. The facts necessary to authorize the presumption of a grant of land, are, that the possession was adverse, and that it was continuous for twenty years.</p>

<p>The Commissioners of Public Building's are not bound to provide the books for the Sheriff, which he is required to keep,-by the Act of 1839.</p>

<p>Before Mr. Justice Wardlaw, at Darlington, Fall Term, 1847.</p> <p>This was an action of debt on bond. The bond was payable by the defendant to the plaintiffs, and after a recital that the defendant had been charged as the father of an illegitimate child, was conditioned to be void if the defendant should annually pay to the plaintiffs $25 for the maintenance of the said child.</p> <p>The declaration set forth the bond and condition. The defendant after oyer demurred generally, and. for causes specified : first, that the bond was void at common law, as it had been entered into under show of legal process; second, that it was void under the Acts of Assembly concerning bastardy, as not the recognizance payable to the State, which those Acts required.</p> <p>The Circuit Judge says: I sustained the demurrer— chiefly on the authority of the case of the Commissioners of the Poor against Gains, 1 Tread. 459, which I thought not overruled by subsequent cases, which hold that a contract good at common law may be enforced, although some directions of a statute, under which it is entered into, have been disregarded.</p> <p>The plaintiffs moved the Court of Appeals to reverse the judgment in favor of the defendant on demurrer to the plaintiff’s declaration, on the ground following:</p> <p>That the bond of the defendant, though not taken according to the Act of Assembly, was good at common law, and the plaintiffs were entitled to recover thereon.</p> <p>This was a bond to pay to the Commissioners of the Poor, instead of an acknowledgment of indebtedness to the State. It is not void, because of illegal consideration. It has at least moral obligation to support it. Is not the natural and moral obligation of the father to maintain his offspring, sufficient consideration at common law to support this contract, under seal? If there was no statutory provision on the subject, would not this bond be binding at common law? Unless the Act provide some other form for the bond to be in, or otherwise to be void, it is not void if it is not in violation of common law. — >State v. Mason, 2 N. & McC. 425; Moyer v. Folk, Har. 50; Treasurers v. Bates, 2 Bail. 376. There was no fraud — no force — in this case. The act of giving the bond was lawful and moral. Commissioners of the Poor v. Gaines, 1 Tread. 459, is an old case, and overruled. It also appeared on the face of the bond in that case, that the party was arrested under legal proceedings. — Swindler v. O’Conner, 2 Rich. 24.</p> <p>As to the facts of this case, there can be no question. The magistrate supposed he was pursuing the details and requisitions of the Act. The demurrer set up two objections. At common law no man is bound to support a bastard child, and although it is not illegal to enter into an obligation to do so, he is not bound to do so; nor can the Commissioners of the Poor require him to do so. The Acts of our Assembly alone prescribe certain forms by which the father is required to come forward and be bound, so as to relieve the parish or district. The Act of 1830, 6 Stat. 410, first provided for bastards being bound out by the Commissioners of the Poor. This case assumes to be under the Act, and to conform to it. The case of Moyer Folk does not affect this; there is no analogy between them. In all the other cases cited the obligations were voluntary, and good at common law, though not good under the statute. In this case the bond was not a voluntary bond, but the party under arrest entered into such a bond as the magistrate required of him (as he believed) under the Act of Assembly. This bond ought not to be, and should not be enforced, for the father may again bé subject to prosecution. Under this bond the Commissioners have no right to receive or spend the fund for the benefit of the child, or to preserve the district harmless. A voluntary bond is alone good at common law. The Act should be strictly complied with, or the bond will be void. The case in Treadway has never been overruled.</p> <p>Dargan, in reply. The common law is so comprehensive and so philosophical, that it embraces all cases as they arise. It holds a man bound to perform his obligation to do that which he is bound morally to do. As to the father being again liable, no voluntary act or deed of his will be a bar to indictment. It is his own fault. It would be his own act. If a party under arrest do what is legal, he cannot afterwards say it was under duress, when no improper advantage had been taken, nor any improper use made of the process of law. —Meek v. Atkinson, 1 Bail. 84.</p>

<p>Before Mr. Justice O’Neall, at Edgefield, Fall Term, 1847.</p> <p>The Presiding Judge. This was an action of trespass to try title. The defendant claimed, under the plaintiff, by two deeds of conveyance. Upon the location of the last deed, 29th Dec. 1819, depended the plaintiff’s title to recover. The description in the deed was as follows: — “a tract of land, supposed to contain one hundred and fifty acres, lying, &c. bounded on the south by a part of the said tract conveyed by William Foy to Hugh Neal, the 20th day of Aug. 1817, and on the west by land granted to David Richardsoa, and on the north by part of the same tract designated by a line beginning on the west line near the road leading from Mrs. Culpepper’s to Mrs. Strother’s, and running from thence nearly parallel with the said road, till it intersects the east line or land of Hugh Neal, it being fart of a tract of land granted to Daniel Brown, and conveyed,” &c. The plaintiff when he conveyed was not only the owner of the Daniel Brown grant, but also of a junior grant to himself, of the 6th of Sept. 1813, containing 610 acres — and not only covering the Daniel Brown grant, but also several acres of vacant land on the west.</p> <p>If the defendant’s deed were located according to the Brown grant, then the plaintiff was entitled to recover: but in that event, the defendant would have much less than the quantity mentioned in his deed, and the land of William Foy would be a boundary on the west.</p> <p>The corner of the west line, near the road, from Mrs. Cul-pepper’s to Mrs. Strother’s, was found and ascertained to be on the line of the junior grant to the plaintiff, and running thence, and following its lines, the boundaries of the deed would be preserved, and the defendant would have (149 acres) within one acre of the quantity mentioned in the deed. The grant to David Richardson was for a large quantity of land, junior to the plaintiff’s grant to himself, and its lines would run into the Brown grant. Running out the plaintiff’s junior grant would cut off the land in dispute from it (the Richardson grant); still the boundary of the defendant’s deed, uwest by land granted to David Richardson,” would be true; for a large part of the tract would remain as the western boundary.</p> <p>I am not aware that the plaintiff was entitled to recover any of the land in dispute, on which there was a trespass proved, according to the construction of the defendant’s deed, contended for by the defendant.</p> <p>The case was submitted to the jury, and they, as I think, .properly found for the defendant.</p> <p>The plaintiff moved the Court of Appeals for a new trial, on the grounds following, viz:</p> <p>1. That by the proper construction of the deed of 1819, from the plaintiff to the defendant, the latter is restricted to the line of the Brown grant.</p> <p>2. Because the plaintiff was entitled to a verdict for a part of the land in dispute, upon the construction of the said deed, contended for by the defendant, and because the verdict was contrary to law and the evidence of the case.</p> <p>cited Gibson ads. Chappel, Harp. 28.</p> <p>cited Dyson v. Leake, 2 Rich. 554.</p>

Before Mr. Justice Withers, at Union, Fall Term, 1847. This was an action in debt, brought upon a note alleged to have been destroyed, and to have been executed by the defendant in favor of the deceased, for the sum of four hundred and forty-four dollars. In one count it was alleged to have been under seal — in other counts it was described as a promissory note, not under seal. The substance of it was stated in the bill of particulars, in various forms.

Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847. The following abstracts from the pleadings, &c. are all which will be necessary to the understanding of these cases: Condition of Bond.

Before Mr. Justice O’Neall, at Edgefield, Fall Term, 1847. This was a sum. pro. to recover money belonging to the plaintiff’s intestate, received by the defendant in 1843 or ’4. The defendant would have set up a discount for a sum of money previously received by the plaintiff, belonging to him. To the allowance of this discount, the plaintiffs, at the trial, presented the objection that it was barred by the statute of limitations.

<p>Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.</p> <p>This was an action of trespass, quare clausum fregit, to which the defendant had pleaded the general issue and libe-rum Ienementum. At the trial the defendant moved to withdraw the plea of liberum Ienementum. The Circuit Judge thought the application too late, and refused it.</p> <p>The evidence was, that the plaintiff was clearing within the lines to which he claimed; the defendant went to his negroes, and stopped them, and told them he wished to see their master — he was making his clearing too near to his house. This was the trespass proved. The title to the land was in the plaintiff — unless, under a deed from Daniel Bordeaux to Daniel Miller and Jane his wife, the wife of the defendant was entitled to a life estate.</p> <p>That deed recites that a covenant had been entered into by Daniel Bordeaux, in favor of Jane McLewrath; that notwithstanding a sale, under execution, of the land of her late husband, Robert McLewrath, the said Jane shall not be divested of, “ but shall continue to enjoy, during her natural life, quiet and peaceable possession of the plantation on which she now resides, on the east side of said stream,” (the Lower Three Runs,) “together with the house, out-houses and appurtenances tnereunto belonging, as also the use of as much land on the east side of said stream, during her natural life, as she may for her own individual purpose have occasion to cultivate.” The deed then goes on to enlarge the covenant thus recited, as follows: “that the use, possession, occupation and enjoyment of the premises aforesaid,” &c. “shall not be limited to the lifetime of the said Jane, as the deed sets forth,' but that such use, possession, occupancy, and enjoyment thereof shall be extended beyond the natural life of the said Jane to the lifetime of the children of the said Jane by her former husband, Robert McLewrath, (deceased) Margaret Thomson, widow, Elizabeth, John, Polly, and Charlotte McLewrath, as also to the children of the said Jane by her present husband, Daniel Miller, namely, Cornelia and Maria Miller, so long as such children or either of them shall survive, and collectively or individually shall choose to remain in the occupancy, enjoyment, and possession of the premises aforesaid, after the decease of the said Jane, with as much land adjoining to the present improved plantation, and buildings, fields, and settlement, as he, she, or they at any time hereafter may wish to clear and cultivate, in addition to the present clearing, for his, her, or their own planting and cultivating, either collectively or individually. But it is not understood, nor is it the intent and meaning of these presents, that the extension granted by this agreement, beyond the natural life of the- said Jane, shall go further than what relates to the plantation, house, and out-houses, and other improvements on the said plantation, on the east side of the stream of the Lower Three Runs, with as much land adjoining to the present settlement as the children of the said Jane by her former husband, Robert McLewrath, (deceased) as also by her present husband, Daniel'Miller, during their and each of their respective lifetimes, may have occasion to occupy for cultivation, with as much timber for plantation purposes as may be necessary. And to enjoy the privilege of grinding at the Grist Mill,” &c.</p> <p>The land in dispute, with that west of the Three Runs, was sold by the Sheriff of Barnwell as the property of Daniel Bordeaux, an'd purchased by Angus Patterson, Esq. There was no dispute about his title, further than the burden created by the covenant. The widow of Robert McLewrath is dead. The defendant’s wife, her youngest child by Miller, is the only one of her children now on the land. The settlement at the execution of the covenant is half a mile from the present settlement of the defendant. The defendant, Jarrell, applied to Mr. Patterson to buy the fee, in part, of the land; he told him to lay off as much as he wanted. He accordingly laid off about 300 acres,, including the old and present settlement, and obtained from Mr. Patterson, at a small price, a release of his interest. The residue of the land lying east of the Three Runs, Mr. Patterson conveyed to the plaintiff, informing him of the claim of the defendants, if any they have.</p> <p>Mrs. Jarrell received from her mother’s estate a negro woman and two children. For her husband, with that force and its natural increase, the Circuit Judge thought the land now in their possession, and adjoining the old settlement, was abundant both for cultivation and timber for plantation purposes; this he, however, left to the jury, and they were told if they were satisfied that the defendants had land enough for the purposes mentioned in the deed, he thought the defendants had no right to disturb the plaintiff in the enjoyment of the land in his possession. They were also' told that the plea of liberum tenementum was an admission of the trespass. The extent of it as proved, and the amount of damages, was for them. They found for the plaintiff $ 15 damages.</p> <p>The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds:</p> <p>1. Because the defendant, having pleaded the general issue and liberum tenementum,• had a right, upon the case being called for trial, to withdraw his plea of liberum tenementum, and go to trial on the other plea, and that his Honor erred in refusing the defendant’s motion to that effect, unless the plaintiff would consent.</p> <p>2. Because there was not sufficient evidence of a trespass committed by the defendant.</p> <p>3. Because the plaintiff did not prove a legal title in himself to the’ locus in quo.</p> <p>4. Because his Honor erred in charging the jury that the quantity of land to which the defendant was entitled, was limited and restrained by the circumstances and condition of his wife at the time of her mother’s death, and was not to be extended or increased by her marriage, or the gradual improvement of the condition of herself and husband afterwards.</p> <p>5. Because his Honor erred in charging the jury that the defendant, having pleaded liberum tenementum, the plaintiff was entitled to recover, unless the defendant had a perfect title to the locus in quo, whether the defendant had committed any trespass there or not.</p> <p>6.- Because it is submitted that the defendant, in right of his wife, has a life estate, under the deed of Daniel Bordeaux, to the whole of the land described in that deed.</p> <p>7. Because the verdict is contrary to law and evidence.</p>

Before Mr. Justice Withers, at Chester, Fall Term, 1847. Held: that, as appeared in his hand writing in the cash book, under date the 16th April, 1838, $531 65 were paid to Harrison, the keeper of the lunatic asylum, for the defendant, on account of his lunatic son there; the balance of the $1,056 48, proceeds of the 34 bales of cotton, to wit, $211 27, was entered as a credit on the note sued…

<p>Before Mr. Justice O’Neall, at Barnwell, Fall Term, 1847.</p> <p>This was an action on the case for overflowing the plaintiffs’ land. The plaintiffs produced a grant to Reuben Roberts, dated 5th June, 1786, for 80 acres: part of this grant, twelve acres of low marsh or swamp, was covered by the defendant’s mill-pond. The plaintiffs produced and proved a deed from Lewis Bates and wife to Thomas Mims, their ancestor, for the 80 acres granted to Reuben Ro*berts, dated 7th November, 1837. The plaintiffs are the widow and children of Thomas Mims, who died in ’42 or ’43 — he, his widow and children, have been generally in possession of the land.</p> <p>In ’38, Haley Johnson, who then owned the mill, took out a grant for 775 acres, and included the Reuben Roberts grant in it. The ancestor of the plaintiffs was present at that survey. Either before or soon after, he covered the lands in question with the water of his pond. The land and mill of Haley Johnson was sold by the Sheriff, in the case of Townsend, Mendenhall 8f Co. v. Haley Johnson, on the 5th June, 1843, and purchased by Steedman & Merrit: they conveyed to the defendant, 5th June, 1845. It appeared, that about the time that Johnson flooded the land, Mims said he had let him have some land, and pointed out the lane, the boundary now claimed for the defendant, as that to which he had sold. About the sale, by the Sheriff, he said to other witnesses he should lose largely by Johnson, and in particularizing his loss, he said he should lose the price of the land he had let him have: one of the witnesses asked him if there were no chance for him to save himself — he said there was none — his wife had not relinquished her dower, and should not. To another witness he said he had made rights for the land to Johnson — he was sorry for it, and would not do it again if he had it in his power. To another witness he complained of his loss, and showed the corner. It appeared, too, 'that the plaintiffs had in their possession a deed from Haley Johnson to Thomas Mims for 8 acres of land; to dam and pond upon. To this testimony was, however, opposed the following facts: To Mr. Jowers, Mims, just after the Sheriff’s sale, said if he had known Johnson’s land was to be sold, he would have attended, and forbid the sale. A Mr. Bell proved that he heard a conversation between Johnson and Mims, in which Johnson spoke of drawing off his water. — -Mims objected — Johnson said he would not draw off the water until after frost — Mims told him if he did, he should never back the water on his land again.</p> <p>About the time of the defendant’s purchase, when he was in the act of repairing the dam, Mrs. Mims gave him notice not to raise the water on the land. He, however, did so.</p> <p>Johnson, the former owner of the mill, is alive, in an adjoining State — he had been at Barnwell since this suit, and the plaintiffs would have given in evidence his statement, since the sale, that Mims never executed titles to him: but the defendant objected to the proof, and it was excluded.</p> <p>The erection of the mill-dam, and the consequent flooding of the land, had rendered, some of the witnesses said, the plaintiff’s place unhealthy. Dr. Haigood, however, said the effect of a pond, in that respect, was very doubtful, and he thought the covering of such land as that of the plaintiff was of more benefit than injury to health. The land, it was proved, was worth very little.</p> <p>The PresidiNG Judge says: The jury were instructed that the plaintiffs’ title to the land was sufficiently shown, by the adduction of the grant to Roberts, and the deed from Bates to their ancestor, with possession. If this had, however, been insufficient, the defendant’s proof showed that his title, if any he had, was derived from their ancestor, and therefore there could be no reason to question the plaintiffs’ title in such a case as this.</p> <p>If I did not in terms say, that the grant to Johnson could not avail the defendant, I certainly in substance so charged and ruled, when I said to the jury that the defendant’s de-fence rested upon the question whether he had shown such facts as would create a presumption that Mims had executed a deed to Haley Johnson. This question was fully and fairly submitted to the jury. They found for the plaintiffs $15 damages.</p> <p>The defendant appealed, on the grounds following:</p> <p>1. Because the plaintiffs did not prove either sufficient title or possession to the land in question, to maintain the action.</p> <p>2. Because the defendant showed a right to overflow the land in question, the proof being ample and full that Haley Johnson and Thomas Mims (of whom plaintiffs are the heirs at law,) had exchanged lands, and that said Thomas Mims had executed a deed to that effect.</p> <p>3. Because no damages were proved.</p> <p>. 4. Because his Honor erred in not. charging the jury on the question whether the defendant’s legal title to the land under the grant to Haley Johnson (which covered the very land overflowed) did or did not constitute a bar to the recovery of the plaintiffs, who failed to prove their title.</p> <p>5. Because his Honor erred in not charging that the defendant’s legal title to the land under the grant to Haley Johnson (which covered the very land overflowed) was a bar to the plaintiffs’ recovery.</p> <p>6. Because the verdict was contrary to evidence.</p> <p>7. Because the verdict was contrary to law.</p>

Before Mr. Justice Withers, at York., Fall Term, 1847. This was an action of trespass to try title against the defendant, Zachariah Massey. The land in dispute had been sold as the property of defendant, under a judgment and fi, fa. of the plaintiff against him, and bought by the plaintiff, who received from the Sheriff a conveyance.

Before Mr. Justice Wardlaw, at Sumter, July Extra Court, 1847. Assumpsit on note — plea of statute of limitations — -replication that maker of note died about two years after it became due, and that suit was brought within four years and nine months after action accrued. Bemwrrer to Replication. Demurrer overruled by the Court.

Before Mr. Justice Evans, at Sumter, Fall Term, 1847. This was Sum. Pro. brought against the defendant, under the following circumstances, viz: One David Garrett made a note payable to one It. S. Gerald, or bearer. This note, after it was due, was transferred to the plaintiff, as was admitted, for valuable consideration. At the time of the transfer, the defendant wrote his name on the back of the note, and verbally agreed to be responsible for the amount of it.

Before Mr. Justice Waedlaw, at Sumter, Extra Courtr July, 1847. ACTION OF DEBT ON JUDGMENT. Pleas: 1. — Nul iiel record. Upon this, issue was joined. 2. — Plene administravit. 3. — Special—That defendant had no assets at the commencement of the suit, or at any time since'. With the pleas was filed an affidavit that the third plea is true, and that no account has been filed with the second, because there have been no receipts or expenditures.

Before Mr. Justice O’Neall, at Edgefield, Fall Term, 1847. This was a rule against the Sheriff, for not collecting the debt in this case.

Before Mr. Justice Fkost, at Lancaster, Spring Term, 1846. Action of trespass to try title. The plaintiff claimed under a grant to Joseph Singleton, for 2000 acres, dated in March, 1793. It was proved that Singleton married a widow Armstrong, and they left surviving them a daughter, Mary, who married William Ingram. The plaintiff was the only issue of this marriage.

Before Mr. Justice Withee.s, at Fairfield, Fall Term, 1847. Held: finally, that the provisions of the Act of 1839, above referred to, were directory to the Sheriff — and though not in this case complied with, yet I thought the sale to Mobly valid; and that the provisions of that Act were not intended for the protection, convenience, or advantage of the defaulting purchaser.

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. INDICTMENT FOR RECEIVING STOLEN GOODS. The proof was as follows: Samuel Dubose proved that he lost a saddle, the last of Oct¡ or 1st of Nov. ’45. He got a search warrant, went to Jack Williains, (the prisoner) charged him with having the saddle. He denied it; the prisoner went and brought ¿n old saddle.

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. This was an action of trespass for an assault and battery. The pleas were not guilty, and molliter manus imposuit, to Remove the plaintiff, and to recapture the defendant’s keys.

Before Mr. Justice Frost, at Charleston, October, 1847. This was an action to recover a balance of $535, claimed to be due from the defendant, on a special contract with the plaintiff for the construction of two double horse threshing-machines, at $600 each; two corn-mills, to be attached, at $85 each; and for certain repairs, $125; making a total of $1495. Credit was given for $960, leaving the balance claimed.

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. This was an application for a mandamus, to be directed to B. K. Henegan, Esquire, Secretary of State, and Thomas S. Jones, Esquire, his deputy, “commanding them to give to Robert Q,.

<p>Before Mr. Justice Frost, at Georgetown, Spring Term¡ 1847.</p> <p>A runaway slave of the plaintiff had been taken and lodged in the Georgetown Jail, and escaped. The defendant, who was Sheriff of that District, advertised the escape, and offered a reward for the retaking of the slave — who was taken in Horry District. The plaintiff, having discovered that the slave was his, went to Georgetown, and received possession from the defendant, paying the amount of the reward and advertisement, and expense of carrying the slave from Horry District to Georgetown. This action was to recover back that sum, as money obtained by duress.</p> <p>The slave had first been taken and lodged in Georgetown Jail in August, 1845, and was advertised as the property of one in Mississippi. He escaped, with a white prisoner, in January following. They got out by cutting a hole through the roof. Neither the slave nor prisoner was confined in any room. They had the range of the Jail, and were not locked up at night. The plaintiff at first objected to paying the charges for retaking the slave; said it was hard for him and for defendant also; complained of a want of money; offered to give a note, but finally paid the disputed and other charges of the defendant, and carried away the slave.</p> <p>The evidence appeared, to the Presiding Judge, sufficient to have charged the defendant with all the expenses of retaking the slave, on the ground that the escape was through his negligence. But the plaintiff having paid the expenses, with a full knowledge of all the facts, he was held to be concluded by the voluntary payment, and thereby to have waived his claim against the plaintiff for the negligent escape. It was also held that the expenses, which the plaintiff sought to recover back, were not fees of office; and that the circumstances of the case showed no duress.</p> <p>The plaintiff took a non-suit, and appealed from the Circuit decision, on the grounds—</p> <p>1st. That his Honor erred in decreeing that the disputed charges of the defendant were not his official charges, and such as were prohibited by the Act of the Legislature, limiting the fees of Sheriffs, when by the evidence it was shown that they were made under color and cover of his official account, and part of it.</p> <p>2d. That his Honor should have decreed that, under the peculiar exigencies of the case, the plaintiff was constrained, by a sort of duress, to pay the disputed items, and his payment thereof did not amount to such a willingness as to extinguish his right to recover the amount so paid.</p> <p>3d. That by the express words of the Act of the Legislature, and the general policy of the law, the defendant, as Sheriff, should not have “ received,” even i/- the plaintiff were willing to pay the charges; and so receiving, he was bound, under the circumstances, to restore.</p> <p>4th. That his Honor erred in deciding that if the plaintiff paid the charges under the impression that he could recover the money again, waiving the penalty fixed by the Act of the Legislature, he had mistaken the law. And</p> <p>5th. That his Honor should have decreed, that if the plaintiff did pay the money under the erroneous belief that he could recover the amount paid, waiving the penalty, it was such a mistake of the law as would entitle him to recover.</p> <p>The general rule of law is, that a man cannot recover back what he has voluntarily-paid. But when, colore officii, one extracts money, he should be compelled to refund it. When he does so by fraud, or extortion, or duress — or in any other way in which ex atquo et bono he should not retain it, he should be compelled to refund it. — Goddard v. Bulow, 1 N. and McC. 45 ; Boors v. Watson, 1 Mills’ Con. Rep. 393. Should a public officer hold on to the profits of his own fault? An action in such case, lies for money had and received. If the debt was Alston’s, Durant had not been requested to pay it, and had no right to make himself Alston’s creditor. 1 Espinasse, 383, and 6 do. 29, are cases in which there was a threat of action, and a refusal to communicate facts. The demand was made in this case, and the receipt given by defendant, as Sheriff. It was paid unwillingly by the plaintiff, and amounts to duress. Sheriffs are bound to receive negroes, as Sheriffs, as public officers — and escapes are, prima facie, proof of negligence. In this case, there was proof of actual negligence. Robertson v. The City Council, in 2 Rich, seems to be against our position; but what is a voluntary payment? It must be with good will, which was not the case here. It is where the officer takes more than what he is legally entitled to, that he is liable under the penalty. Any excess, is the excess meant — any higher, or other fees.</p> <p>The excess was received by the Sheriff, in this case, in a private capacity. — Vide the Act of 1839, 11th Stat. 11, as to fees, &c. Excessive fees of the officers are punishable, as the same Act prescribes. The act of negligence was not an official act There was no bond to be' resisted — no fraud — no .suppression of facts; nor was there duress. If the Sheriff had refused to deliver up the negro, and had been sued for it, no doubt he would have suffered. Vide again the Act of 1839, 11th Stat. 36, as to the obligation of Sheriffs to keep negroes. There is no difference between this case and that of Robertson v. The City Council.</p>

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. The defendant was indicted and convicted in three several eases, for trading with the skives Prince, Frank, and William, the property of Mrs. Prioleau. The fact was most clearly proved, hy Henry F. Porcher,. that the defendant, the overseer of Mrs. Prioleau, having charge of the slaves Prince, Frank, and William, in February, 1846, in Charleston District, exchanged with them whiskey for their weekly allowance of com.

<p>Before Mr. Justice Frost, at Georgetown, Bpring Term, 1847.</p> <p>By indenture, dated 5th September, 1835, the defendant bound to Susan Hawkins his slave Lydia, then two or three years old, as an apprentice, for the term of years. Susan Hawkins covenanted to feed and clothe the girl, and to teach her to sew. Before the expiration of the term, the defendant took possession of the slave; and this was an action of covenant, on the indenture, to recover damages. Susan Hawkins, at the date of the indenture, was the wife of-Hawkins. After his death, the plaintiff married his widow. She is joined in the action.</p> <p>The evidence was, that Lydia went into the possession of Susan Hawkins, and continued until July, 1845, when she ran away, and was discovered by plaintiffs in the possession of Mrs. Abrams. Lydia was demanded by the plaintiffs of defendant. He said he had possession, and had sold, or was going to sell her to Abrams, and claimed to exercise absolute property over her.</p> <p>A motion was made for a non-suit, on several grounds: That the wife of Tuttle should not have been joined in the action; that the indenture was void, having been made by a married woman, and defendant had no reciprocal remedy against her husband for breach of her contract: or that, if the indenture were valid, the interest in it vested in her first husband, Hawkins, jure mariti, and in his legal representative after his death, who alone could maintain an action on the indenture.</p> <p>The motion was refused, because the wife, being the meritorious cause of action, was properly joined ; and the defendant’s covenant in the indenture to Susan Hawkins was valid, notwithstanding her coverture, even though her reciprocal covenants were void; but defendant was not without remedy, because, on the implied assent of the husband to his wife’s covenant, from the possession of Lydia, he might be sued in assumpsit for the non-performance of the wife’s agreement, contained in the indenture. And it was further ruled that the indenture to Susan Hawkins was a chose in action, and her husband not having assigned, or otherwise constructively reduced the same into possession, it survived to his wife, and on her marriage with Tuttle, a right of action accrued to them jointly, for a breach of .the covenants of the defendant,contained in the indenture.</p> <p>The defendant renewed his motion for a non-suit or arrest of judgment, in the Court of Appeals, upon the following grounds:</p> <p>1st. Because his Honor erred in deciding that the covenant sued upon was a chose in action belonging to the wife, to which the marital rights of her first husband, Hawkins, had never attached; that the same survived to her upon his death, and that the legal right to it vested in the plaintiff, Tuttle, upon his intermarriage with her.</p> <p>2d. That as the said Susan was a femme covert at the time of the execution of the said covenant, the same was absolutely void, inasmuch as the defendant had no remedy for a breach of it, either as against the said Susan or either of her husbands.</p> <p>3d. That if the said covenant was valid at the time of its execution, then the legal right to it vested in Hawkins, the first'husband of the said Susan; and after his death, it then vested in his legal representatives. ■</p> <p>cited Boozer v. Addison, 2 Rich. Eq. 173; 3 Stat. 545; Eddings v. Brotan, 1 Rich. 255: 1 Lee’s N. P. 653.</p>

Before Mr. Justice Frost, at Charleston, October Term, 1847. The indictment charged the defendant with receiving from George W. Faxton- various drugs, paints, and other articles, stolen from Haviland, Harral & Allen. The articles, charged to have been stolen, were found in the house occupied by the defendant, as a grocery, concealed in various places.

<p>The peculiar organization of Magistrates’ Courts, established by various Acts, for the Parishes of St. Philip and St. Michael, prior to the Magistrate’s Act of 1839, remain unchanged by that Act, according to the exception contained therein: It is therefore requisite that two Magistrates shall preside on the trial of a slave, within those Parishes, for a capital offence.</p> <p>The 4th section of the Act of 1830, “for the further regulation of Magistrates, &c. of the Parishes of St. Philip and St. Michael,” is, by necessary implication, repealed by the Act of 1832, relating to the same subject — so that the Magistrate or Magistrates, who form part of the Court for the trial o" a person of color, may and should consult freely with the other members oí the Court, in forming their judgment.</p> <p>Being clearly of opinion that the 18th section of the Act of 1751, “for the better ordering, &c. of negroes and other slaves,” &e., is still of force, the Court held the ignorance of that fact, on the part of the freeholders of a Magistrate’s Court, to be sufficient ground for a new trial.</p> <p>The grievous wmmding, maiming, or bruising of a white man by a slave, must be done with evil intent, and must be more severe than is expressed by saying that “it must inflict pain, distress and suffering.”</p> <p>In no case does there lie, in behalf of the State, an appeal from an order of a Judge, granting a new trial on appeal from the judgment of a Magistrate’s Court, under the Act of 1833.</p>

Before the Recorder, in the City Court of Charleston, July Term, 1847. RECORDER’S REPORT. This was an action of assumpsit against the defendant, as maker of a promissory note, in the following words: Charleston, March 1st, 1846. $134 53. On demand, I promise to pay to Martin Roddy & Son, or order, one hundred and thirty-four 53-100 dollars, value received. (Signed) JAMES PAINE. The note was without indorsement.

<p>The fact of the presiding Judge having answered an inquiry of the foreman, (which he came in to make, after the jury had retired for consultation,) without communicating its purport to the parties, or their counsel, affords no ground for a new tiial.</p> <p>All matters necessary to the proper administration of justice in a Court, which are unregulated by precise rules, are within the discretion of the Judge.</p>

Before the Recorder, in the City Court of Charleston, July Term, 1847. This was an action on the case. The declaration alleged, in. substance, “ that the defendants agreed and undertook to sell to the plaintiff a certain canal boat, which they alleged to be the property of them, the said defendants, by reason of (which) said affirmation, he, the said John Stockfleet, was induced, and did then and there buy the said canal boat, of the said defendants, for the sum of $50.

Before Mr. Justice Fb.ost, at Charleston, October Term, 1847', This was an action of replevin. The defendants avowed for rent in arrear. To the avowry the pleas were, non tenuii and non demisit. The case was stated to be, that one Mrs. Geiser was tenant for life of the demised premises, with remainder, m fee. to Elizabeth Roper.

Before Mr. Justice Frost, at Charleston, May Term, 1847. This was an action of trover against the defendants, owners of Union wharves, for thirty-one bales of cotton. On the 7th January, 1846, R. C. Smith obtained from Hill-iard an advance of $7,500, on a pledge of 321 bales of cotton, which were stored on Union wharves. He gave an order to Hilliard, and the cotton was transferred to Hilliard. On the 9th, Smith applied to the plaintiffs for an advance of $7,000, on cotton.

<p>Before Mr. Justice Fe.ost, at Chambers, Charleston, February y 1847.</p> <p>CONFESSION OF JUDGMENT FOR, $5,000, DATE MAY 17, 1845.</p> <p>This was a motion to stay the execution in the above case, and for a rule against the plaintiff, to show cause why satisfaction should not be entered on the judgment.</p> <p>AFFIDAVIT OF THE DEFENDANT, SAMUEL GASQUE.</p> <p>The State op South Carolina, )</p> <p>Georgetown District. $</p> <p>Personally appeared before me, Samuel Gasque, the defendant in the above stated case, who, being sworn, made oath that, on the 17th May, A. D. 1845, he confessed a judgment, in the city .of Charleston, for the sum of five thousand dollars, in favor of the plaintiff, Thomas N. Gadsden — on a bond of indemnity in the penal sum of five thousand dollars, dated the 16th May,-in the same year, a copy of which is attached to the record in said case — and this deponent further says, that pursuant to the stipulations contained in the said bond of indemnity, on the 19th day of May, in the year above mentioned — -the day on which the entry of said judgment bears date, he drew a draft on the said Gadsden, for the sum of five thousand dollars, payable at ninety days, which was accepted by the said Gadsden — that on the 20th August following, the day before the said draft was payable, this deponent remitted to the said Gadsden, for the purpose of meeting said draft, the sum of fifteen hundred dollars — and on the following day, the 21st August, he remitted to him the further sum of fifteen hundred dollars — making, in all, the sum of three thousand dollars, which he had remitted to him in cash, which sums the said Gadsden acknowledged to have received by his letter, dated 21st August, 1845: and this deponent further says, that some time between the date of the said judgment and the time when the said draft had arrived at maturity — that is, between the 19th of May and the 21st of August, deponent had shipped from Georgetown to the defendant in Charleston, the following negro slaves, viz: Sam, Sarah, Bob, Joe, Dinah, Tom, to be sold by defendant in order to place him in funds to meet the payment of said draft; that defendant sold Tom for the sum of $585 — and although the said Gadsden has never furnished to deponent an account of the sales of the other negroes, he however acknowledged, by his letter of the , that they were worth at least $1600, making, in the whole, the sum of two thousand one hundred and eighty-five dollars — -so that, with the three thousand dollars which defendant remitted in cash, as above stated, the said Gadsden was in the possession of funds belonging to the deponent, to the amount of five thousand and one hundred and eighty-five dollars, before the said draft became due, to enable him to meet, the payment thereof. This deponent further says, that notwithstanding he had placed the said Gadsden in the possession of funds, to an amount more than, sufficient to enable him to meet the said draft, when it should arrive at maturity — the said Gadsden, instead of entering satisfaction on the said judgment, pursuant to the provisions in the said bond of indemnity, upon which judgment is predicated. — -nevertheless refuses so to do, but insists upon enforcing the same against the property of this deponent, in fraud of the rights of the bona, fide judgment creditors of deponent — deponent further says, that there are judgments against him to a considerable amount, in the District of Marion, where he resides, junior in date to the one confessed by him to Gadsden — that nearly all his property is now under levy, and advertised to be sold on the sale day in February next — that Gadsden, with the view of defeating the just rights of the other judgment creditors of this.deponent, has sent his execution to the Sheriff of Marion, in whose office deponent has heard it is lodged- — and insists upon being paid the amount of his said execution, out of the proceeds arising from the sale of deponent’s properly, notwithstanding the same has been fully paid and satisfied.</p> <p>SAMUEL GASQUE.</p> <p>Sworn to before me, this 2§th January, 1847.</p> <p>D. L. McKay, Notary Puilic.</p> <p>Mr. S. Gasque :</p> <p>Dear Sir — I received, per your brother, a negro boy, named Bob, and will do the best I can with him, as you have directed— though, as a guide for me, I would like to have his cost price: do this by return mail. The fellow you sent me a few days since, I was offered $525 for, and I think the same man will give me $550, which, if he does, I will accept, if you please. I am very short of money — therefore must beg you to be sure to attend your draft — negroes are getting higher every day, particularly men and boys; not so small as the one you have sent — two sizes larger.</p> <p>Yours truly, THOMAS N. GADSDEN. .</p> <p>Charleston, Mayj 1-845.</p> <p>Charleston, 21st August, 1845.</p> <p>Mr. Samuel Gasque:</p> <p>Dear Sir — Enclosed, you have your draft accepted: remember, for I have no security, the judgment must be renewed— I will therefore expect shortly to see you in Charles-tbn, to renew the judgment; also to sign an agreement, which I will draw out for us both to sign, according to our present arrangement, for the future transaction of business. If you will act fairly with me, I can make considerable of commissions, and you can make good profit if you buy judiciously. I do not know what effect the Mexican War will have on slave property — as soon as I can find out what public sentiment is, I will write you again, though you had better come down and see me in person. I received by mail yesterday, fifteen hundred dollars; your draft is payable to-day of $5000.</p> <p>Yours as usual, THOMAS N. GADSDEN.</p> <p>P. S. — I received fifteen hundred more dollars by mail this morning, from you. Yours, «fee. T. N. GADSDEN.</p> <p>$5000 drawn, 90 days, through Bank of Georgetown, da- ■ ted 20th May, 1845, paid 21st August, 1845.</p> <p>22d August, 1845, $5000 at 90 days,' — -27th November, 1845, $2500 at 60 days, paid.</p> <p>COPY OP DR. LEE’S .CERTIFICATE.</p> <p>I certify that Joe has a curvature of the spine and small limbs, which are probably the consequence of this first defect —I do not consider him capable of enduring continued hard work. (Signed,) LAWRENCE LEE, M. D.</p> <p>Charleston, Sept. 16, 1845.</p> <p>Charleston, 17th September, 1845.</p> <p>Dr. Gasque:</p> <p>I am happy to inform you that I sold your man Tom this day, for five hundred and eighty-five dollars; I also sold Joe, but he was returned as unsound, as per above certificate r what shall I do 1 Shall I sell him at a less price than I had sold him for, or not ? I got, in the sale just broken up, $563. 1 have been offered $462^ for the girl; I am trying for $500; I think I had better sell at $475, when I get it offered. You paid too much for the little boy; he is not likely; I fear you have paid also too much for the old man : I will do my best, however. Send me on prime negroes, and I can do well for you. Yours truly, T. N. GADSDEN.</p> <p>You can give $525 for men; they will bring $575 to $600; women, $400, will sell for $475.</p> <p>Charleston, November S2d, 1845.</p> <p>Mr. Samuel Gasque:</p> <p>Dear Sir — Your letter of the 21st instant reached me safely, and, much to my astonishment, I have seen no provision made for your draft of $5000, which is this day payable. You may imagine my situation no ways difficult, but you are much mistaken; the negroes Sam, Sarah,' Bob, Joe and Dinah, when all sold at their outside value, will not bring more than $1600, which in itself is not sufficient to meet the balance against you in our last settlement; I am, therefore, placed in a position which I never expected — more especially, when I take into consideration your frequent promises “to make myself easy,” that you would not suffer the draft to fall due, without funds to meet it; judge now of my disappointment, thrown altogether on my own resources, and at a time by no means favorable, as I have been frequently pressed for this month past, owing to the dullness of the season. I am compelled to make this matter more obligatory on you, and request you to come to Charleston forthwith, in person, and arrange this business — it can never continue this way any longer. I will expect a reply from you by returning mail.</p> <p>THOMAS N. GADSDEN.</p> <p>Received from Samuel Gasque two hundred and fifty-six 67-100 dollars, in full of all demands, to date, for balance due on ledger and interest. THOMAS N. GADSDEN. ■</p> <p>August 27th, 1844.</p> <p>COPY OP THE AGREEMENT,</p> <p>The State op South Caholina:</p> <p>Know all men by these presents, that I, Samuel Gasque, of Marion District, in the State aforesaid, am hold, and firmly bound unto Thomas N. Gadsden, of the city of Charleston, in the State aforesaid, broker, in the penal sum of five thousand dollars, to be paid to the said Thomas N. Gadsden, his certain attorney, executors, administrators or assigns, to which payment, welL and truly to be made and done, I bind myself, and each and every of my heirs, executors, and administrators, jointly and severally, by these presents.</p> <p>Sealed with my seal, and dated at Charleston, this sixteenth day of May, in the year of our Lord one thousand eight hundred and forty-five, and in the sixty-ninth year of American Independence.</p> <p>The condition of the above obligation is such, that, whereas, the said Samuel Gasque, for the consideration hereinafter expressed and set forth, covenants, promises, and agrees to and with the said Thomas N. Gadsden, from time to time, and with all reasonable dispatch, to purchase slavesj and cause them to be sent and delivered, with as little delay as possible, to the said Thomas N. Gadsden, in the- city of Charleston, then and there the said slaves to be held by the said Thomas N. Gadsden, at the risk of the said Samuel Gasque, and to be sold from time to time by the said Thomas N. Gadsden, as in his judgment is for the best interest of the said Samuel Gasque, and on his account. And it is further covenanted and agreed, by the said Samuel Gasque, that the proceeds, arising from the sale of the said slaves, after first deducting all incidental costs, and charges and cormnissions for the sale of the same, shall be applied by the said Thomas N. Gadsden to the payment of all such liabilities as the said Thomas N Gasden shall incur by virtue of his agency in the said sales. And whereas, the said Thomas N. Gadsden, in consideration of the aforesaid covenant on the part of the said Samuel Gas-que, will, from time to time hereafter, accept, either at' sight or on time, and when due, pay all such draft and drafts, bill and bills of exchange, as the said Samuel Gasque may from time to time draw upon him, the said Thomas N. Gadsden, in the purchase of slaves, as the said Samuel Gasque may purchase for sale, as aforesaid, to the amount of five thousand dollars, and not more — -which said draft and drafts, bill and bills of exchange, may be made payable to any Bank in the city of Charleston. And the said Samuel Gasque hereby further covenants and agrees not to limit the prices and sales of any or all such slaves as may by him be sent to the said Thomas N. Gadsden by virtue of this covenant and agreement, but the said Thomas N. Gadsden shall, at any and all times, sell the same at the best possible prices in his discretion, without limitation or restraint, by the said Samuel Gasque. And it is the true intent and meaning of these presents, that the said covenant and agreement, herein entered into, the said Samuel Gasque may dissolve the same, and the said Thomas N. Gadsden may, at his pleasure, dissolve the same, at any time either may desire, upon thirty days notice of such intention of either party, being given to the other. And it is the further intent of these presents, that the foregoing bond is intended to secure and indemnify the said Thomas N. Gadsden for all loss and injury which he may sustain or suffer, by reason of any acceptance or acceptances of all such draft or drafts, bill and bills of exchange, he may from time to time accept for and on account of the said Samuel Gasque, by virtue of the true intent and meaning of these presents. And if the said Samuel Gasque shall well and truly perform all his aforesaid covenants and agreements, then the above obligation to be void and of non-effect, or else to remain in full force and virtue.</p> <p>Witness my hand and seal the. day and year aforesaid.</p> <p>(Signed) SAMUEL GASQUE, [l. s.]</p> <p>Signed, sealed, and delivered in presence of John S. Riggs.</p> <p>OPINION.</p> <p>The Presiding Judge. The rule to show cause must depend on the result of the motion to stay the execution, for all the objections which can be made to the judgment, apply equally to the execution; and if this be not stayed, it would be inconsistent to direct an inquiry whether the judgment is satisfied. The motion to stay the execution is not supported by the allegation of any irregularity in the proceedings, or of fraud in the judgment, nor by any evidence or complaint that the defendant owes to the plaintiff nothing, or not so much as the judgment; but it is rested entirely on the ground that the bond of indemnity, on which the judgment is entered, has been fully satisfied by the defendant’s repayment of the first draft for $5,000, which was accepted and paid by the plaintiff. This depends on the construction of the condition of the bond, and presents a mere question of law.</p> <p>First, it is to be remarked that the agreement consists of mutual covenants between the immediate parties to the consideration, and is not a guaranty or engagement to pay the debt of a third person. The plaintiff’s acceptances, to whatever amount, enured to the benefit of the defendant. The limit of the amount of acceptances was stipulated for the benefit of the plaintiff, and not of the defendant, as in cases of guaranty. It is the plaintiff who covenants that he will accept the defendant’s draft, for the purchase of negroes, “to the amount of $5,000, and not more.” The defendant covenants to indemnify the plaintiff against loss from all such acceptances. This covenant expresses the just liability of the defendant, hut if it exceeds the security which the plaintiff contracted for, the claims of other creditors require that the plaintiff should not take more, under the judgment, than is secured by the bond. Is the security of the bond and judgment confined to the first acceptances of the plaintiff, not exceeding $5,000? This is to be first determined by the express terms of the agreement. If they admit of doubt, the whole transaction may be brought in aid of the construction. The covenant of the plaintiff is, that he shall accept and pay “all such” drafts as the defendant may “from time to time” draw on him, in the purchase of slaves, “to the amount of $5,000, and no more.” The defendant covenants that he will indemnify the plaintiff from all loss, “by reason of any acceptance or acceptances of all such draft or drafts as he may from time to time accept, by virtue of the true intent and meaning” of the agreement. Even if the terms of the agreement are to be construed by the rules which determine a continuing guaranty, a reference to the cases collected in Chitty on Coirtracts, 525-6, will show that the defendant’s liability for subsequent acceptances is not discharged after acceptances to the amount of $5,000 have been satisfied.</p> <p>This construction receives confirmation from the whole agreement. The defendant had undertaken an agency for the sale of the slaves, on commission, to be purchased by the defendant with funds to be raised on the plaintiff’s accept! anees. The agreement was to continue indefinitely, and be dissolved at the pleasure of either party, on thirty d^s notice. The business required a large outlay of funds. The defendant’s purchases depended on the advances procured by the plaintiff’s acceptances.</p> <p>If the bond were satisfied by the first draft for $5,000, much pains were wasted in preparing the terms of the agreement.</p> <p>It appears, from the plaintiff’s letter of the 21st of August, that he then supposed the judgment did not protect any acceptances after the first. But he is not concluded by that opinion, as by an admission of facts. He did not take a new security; and subsequently accepted for the defendant, to the amount of $7,500. He may have been advised that the judgment was a security for future acceptances, and in confidence of this, gone on. This misapprehension of the effect of the agreement, cannot change it. There is no evidence of an admission, in fact, that the judgment was satisfied by the payment of the first drafts, or that the subsequent acceptances weré not made on the security of it.</p> <p>The motion is refused.</p> <p>The attorney for the motion moved to reverse the decision of his Honor, refusing the motion, on the following grounds:</p> <p>1. Because his Honor erred in deciding that the bond on which the confession of judgment was given, was continuing in its nature — and not discharged by the parties being indemnified for the first advance, to the amount of the penalty.</p> <p>2. Because his Honor erred in deciding that the plaintiff on the judgment was entitled to set up the security against what was acknowledged to be the intent of the parties, and against his own admission, that the judgment was no longer of force.</p> <p>3. Because his Honor’s decision was, in other respects, contrary to law.</p>

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. This was an action of trespass to try the title to a lot in Pinckney street, in the city of Charleston. After issue joined and the case had been continued, the defendants pleaded in abatement that the plaintiff’s wife, in whose right the action was brought, had died, leaving issue living puis darrien continuance. To this plea the plaintiff, the husband, demurred, and the defendants joined in demurrer.

<p>Before Mr. Justice Frost, at Charleston, May Term, 1847. '</p> <p>This was an appeal from the decree of the Ordinary for Charleston District, granting to the appellee administration of the estate of Charles T. Brown, deceased.</p> <p>The facts stated in the following opinion of the presiding Judge, will sufficiently elucidate the points in the case:</p> <p>The Presiding Judge. Application had been made to the Ordinary for administration on the estate of C. T. Brown, by the appellee, “ under a nomination by Mrs. Brown, widow of the said C. T. Brown.” At the return of the citation, a petition was filed by the appellant, “claiming the administration for himself, as a creditor and party principally interested in the estate.” “At the hearing of the case, a petition from Mrs. Brown was filed, claiming letters of administration to herself, in person, should her nominee not be appointed.”</p> <p>The suggestion and grounds of appeal present, principally,, questions of law. The special verdict agreed on by the parties, finds a purchase, by the appellant, from C. T. Brown and wife, of their interest in the partnership property and effects of George and Savage Smith, and the pendency of a suit in the Court of Equity, for the settlement of the accounts between the parties interested in the said copartnership property: which will more fully appear from the pleadings, exhibits, and decree in that cause. The verdict also finds that C. T. Brown died insolvent; that the appellee was the nominee of Mrs. Brown, but not a relative or creditor of C. T. Brown; and that he was concerned in the Equity suit as Assistant Solicitor in behalf of the heirs of Savage Smith. It appears, from the proceedings in Equity, that George and Savage Smith were possessed of a large copartnership property, consisting of both real and personal estate, and died intestate— the one in 1817, and the other in 1818. A bill was filed in 1822 by Brown and wife, sole distributees of George Smith, against the distributees of Savage Smith, and against the administrators of both estates, for an account of the joint estate, its debts and assets, and of the mutual demands of the partners, and for partition. In February, 1825, it was decreed that certain plantations on Peedee, with the negroes thereon, should be partitioned and assigned to the distribu-tees of George Smith and Savage Smith, respectively — each share to be liable to .an aliquot proportion of the partnership debts, and to remain subject to the final decree which should be made on the mutual demands of the parties, plaintiff and defendant. Soon after the partition in Feb. 1825, Brown and wife assigned to the appellant all their interest in the plantation and negroes allotted to them: and also all their claim and interest in the joint estate of George and Savage Smith,- and their interest in a demand of Josiah Smith against the said firm, “ subject, however, to the debts due and owing the said firm, and to the accounts between the parties interested therein: and the final adjustment of the copartnership and accounts.” The deed of assignment further provides that the appellant “ should thenceforth stand and be in the place and stead of the said C. T. Brown and Sarah E., his wife, and of each of them, in the adjustment and settlement of the said partnership estate and effects.” “The said B. F. Hunt being entitled to all the rights, privileges, demands and claims, and subject to all the duties, obligations, and responsibilities of the said C. T. Brown and Sarah E., his wife, and each of them, in the final settlement, adjustment, and division of the said copartnership estates, real and personal.”</p> <p>Appellant, as assignee, and the heirs of Savage Smith are engaged in a litigation in the Court of Equity, for the settlement of the various matters of account before stated. The appellant objected to the proceedings in Equity, that necessary parties for the final adjustment of the accounts, were not parties to this suit. It was thereupon decreed that the appellant “was entitled to the assistance of Brown or his representative in taking the account, and it was ordered that the administrators of Brown and of George Smith should be made parties.” In consequence of this decretal order, application for administration on the estates of Brown and George Smith was made to the Ordinary, whose decree, granting administration to Charles McBeth, is the subject of appeal. The appellee has no legal claim to the administration of these estates, having no interest in them, and being neither of kindred to either of the intestates, nor a creditor.</p> <p>Nor has the appellee any right as the nominee of the widow. The Ordinary rests his decree on the authority of Hutchet Sp Thompson, 2 Hill’s Rep. 437, which he assumes to have decided, that when a widow waives her right, and appoints a stranger to take administration, it must be granted to her nominee in preference to another stranger or creditor. That case only decided that, in the absence of kindred and creditors of the intestate, it is discretionary with the Ordinary to whom he will grant administration, as well by the common law as by the Act of 1789: and that as at common law he had the power of revoking administration at pleasure, there was nothing in the Act of 1789 to divest him of that power in reference to strangers: though the temporal Courts may control him in the exercise of it, by judging of the sufficiency of the grounds on which he proceeds. The decree of the Ordinary in that case, revoking the administration which had been granted to Thompson, a stranger, and granting it to the attorney of the widow, who was resident abroad, and entitled to the estate, was affirmed, on the ground that the Court would not undertake to say the Ordinary had not exercised a sound discretion in revoking administration to a stranger, and granting it to one who would have been preferred to Thompson, though not entitled in strict right. The Judge who delivered the opinion of the Court, after reviewing the English cases, expressly declines to affirm the rule to be deduced from them, that the .attorney of the next of bin, resident abroad, has any preferable legal claim to the Administration.</p> <p>The case in appeal is, besides, excepted from the authority of Huchet v. Thompson, by material and controlling circumstances. The preference, which in that case was allowed to the nominee of the widow, before another stranger, depended on her residence abroad, and her sole interest in the estate. Mrs. Brown is not resident within the jurisdiction, nor has she any immediate interest in the administration. The estate of C. T. Brown is insolvent. The. property assigned to appellant by Brown and wife, is, by the order for partition, charged with the payment of any balance which may be found due by the representatives of George Smith, in the accounts ordered hy the' decree to be taken; and even if the appellant could, eventually, be a creditor of the estate of C. T. Brown, (which is denied on behalf of Mrs. Brown,) she having received nothing from that estate, cannot be affected by any liability to which it may be subjected.</p> <p>The case of Huchet Sp Thompson recognizes the controlling authority of the temporal Courts in the grants of administration, when it is discretionary with the Ordinary. The objection to the appointment of the appellee, that he is the Solicitor of the heirs of Savage Smith in the pending litigation in Equity, seems to be irresistible. That litigation is substantially between the appellant and the heirs of Savage Smith. The share of each in the copartnership property will he increased or reduced by the result of the account. As assignee of Brown and wife, the appellant claims, against the copartnership property, certain charges in light of George Smith and of Brown and wife, against Savage Smith in his life time, and against his heirs since his death; and the heirs of Savage Smith, in like.'manner, in the right of Savage Smith, and in their own right, since his death, claim against the copartnership property certain charges against George Smith in his life time, and against Brown and wife and their assignee. To confer on one of the heirs of Savage Smith the power which an administrator of George Smith and C. T. Brown may exercise over the subjects of litigation, would be a virtual surrender of one of the parties in the suit to the ■ other. The complainants would then have possession of all the vouchers and evidence by which the assignee of Brown and wife might maintain his own claims or resist those made against him; and in so far as his rights may depend on the admissions, acts and defaults of the administrator, as a party to the suit, ho would be represented and controlled by his adversary.</p> <p>The case is not varied if the Solicitor be substituted for one of the heirs. The high character of the Solicitor is no reply to the objection. In the administration of law, general principles must be enforced, without respect of persons. It is sufficient that the party interested against the appointment makes the objection.</p> <p>It is contended that the appeal comprehends the right of each of the parties to the administration, and- a decision only reversing the decree of the Ordinary would be partial; and that it is necessary, to the full and complete decision of the appeal, that the right of the appellant to the administration should also be adjudicated.</p> <p>It is conceded by both parties that an appeal does not confer on this Court an original jurisdiction in the grant of administration. It follows that, if an appointment be reversed, this Court cannot proceed to.substitute an administrator in the place of him whose appointment it has refused to confirm. The appointment of an administrator, when strangers only apply, is vested in the discretion of the Ordinary. The authority of this Court is only supervisory. The power of supervision would be exceeded, and the jurisdiction of the Ordinary assumed, if this Court, having reversed one appointment, should proceed to nominate a substitute. An appeal is limited to the affirming or reversing the judgment, sentence, or decree, which is the subject of appeal. The proceedings which may be rendered necessary by the result of the appeal, must be resumed in the original jurisdiction. The decree of the Ordinary in this case is limited to the grant of administration to the appellee. The duty of this Court seems to be discharged when it has decided respecting the validity of that appointment. The appointment of the appellant was not a necessary alternative, imposed by law on the Ordinary, in case of his refusal to grant administration to the appellee. The appellant’s right cannot therefore be affirmed by this Court, as a legal consequence of the revocation of the grant to the appellee. If it undertook to decide that the appellant should have the administration, that could only be done by the exercise of a discretionary power in the selection of a suitable person. But such discretionary power does not belong to this Court. Mrs. Brown was also an applicant for the administration. It is to be inferred, from the decree of the Ordinary, that he would have felt constrained to grant administration to her, if he had not granted it to her nominee. They represented the same right, and Mrs. Brown cannot be concluded, by an implied assent to the decree, prejudicial to her personal claim, by her omission to appeal against her own nomination.</p> <p>It is argued, that the grant of administration to the app el-lee, is a “denial” of the same to the appellant; and that the Act of 1839 gives an appeal from every “judgment, decree, sentence, determination, denial, or order” of the Ordinary. The proper construction of the Act requires that the right of appeal should be limited to such “denial” only as may be the direct and immediate subject of a judgment or decree of the Ordinary. If it comprehended such implied and consequential denial as may result from the preference of one applicant for administration over others, who may contest the right of the successful claimant, it would throw on this Court, in many cases, the duty of granting administration, without the opportunity of being directed, in such discretionary exercise of power, which, deciding as in the first instance, it should possess. The claims of other parties who might be entitled to a preference, in case the administration first granted be revoked, would be precluded,.since no citation can issue from this Court for such parties to appear and make their claim.</p> <p>Without deciding the right of the appellant, it is ordered that the decree of the Ordinary, granting administration to the appellee, be reversed, and judgment rendered accordingly on the suggestion.</p> <p>Notice was given, on behalf of Chas. McBeth, as the nominee of Sarah B. Brown, widow of the deceased, C. T. Brown, that he would move the Court of Appeals to set aside the order of his Honor, Judge Frost, reversing the decree of the Ordinary in the above stated matter, for error, on the following grounds:</p> <p>1. Because his Honor has decided that the Solicitor of one whose interests are or may be adverse to those of the deceased, cannot be appointed his administrator under the nomination of the widow.</p> <p>2. Because it did not appear, by the finding of the jury, according to the special verdict drawn up by the attorney of the appellant, from the Ordinary’s decree, that the said appellant had made any application for the administration himself; and in the absence of any adverse application, the Ordinary was bound to grant the administration to the nominee of the widow- — -and his Honor, being confined to the facts found by the verdict, should so have decided.</p> <p>3. Because the only persons interested in an estate being kindred and creditors, the appellant, (even if his claim might properly be considered by his Honor,) a stranger, and not interested for any such persons, should not have prevented the grant of administration to the nominee of the widow.</p> <p>4. Because, under all the circumstances, the grant of administration to the nominee of the widow was right and proper, and the Ordinary’s decree should have been confirmed.</p> <p>5. Because the sentence of the Judge being to reverse the decree of the Ordinary generally, it would operate as a revocation of the administration granted to Charles McBeth, of the estate of George Smith, from which there was no appeal.</p> <p>6. Because his Honor’s decision is, in other respects, contrary to law.</p>

<p>When an'agent is sued for negligence, whether in assumpsit for breach of contract, or in case for violation of duty, the gist of the action is the negligence, and the Statute of Limitations begins to run from the time of the negligence, and not from the time of the loss thereby occasioned.</p>

Before Mr. Justice O’Neall, at Charleston, Spring Term, 1847. This was an action of debt on an attachment bond.

<p>Defendant’s intestate, in a conversation with her own attorney, said “ that the plaintiff was to receive compensation for his services” to her, and “that she had never paid him ” —held not to be such a promise as would revive, a debt already barred by the Statute of Limitations — According to the rule laid down in Yowng v. Montpoey, 2 Bail. 278.</p> <p>Acknowledgments, or promises, to obviate the Statute of Limitations, are not sufficient, unless they specify or plainly refer to some particular demand or cause of action, to be revived or created by them. — Dualey’s Rep. 321, Lockliarrt v. Eaves.</p>

Before Mr. Justice Frost, at Charleston, Oct. Term, 1847; This was an action on two notes, payable the first and eighteenth of January, 1839. A few days before the death of the iutestate, which occurred the 18th June, 1841, he acknowledged the notes to be due to the plaintiff. Whitesides married the widow of the intestate, in March, 1844.

Before Mr. Justice Frost, at Charleston, Oct. Term, 1847, This was an action on the case to recover damages for the destruction of the house aud out-buildings on Lansdell’s plantation, charged to have been burnt by the negligence of the Company’s servants, in the conduct of the locomotive. The plantation, consisting of about two hundred and fifty acres, is situate in the fork of the State and Dorchester roads, about six miles from Charleston.

Before Mr. Justice O’Neall, at Horry, Fall Term, 1844. REPORT OP THE CIRCUIT JUDGE. This was an action of trespass to try title* It appeared by the record, that several plaintiffs of the name of Alston, had sued the defendant, Clarke, in an action of trespass to try title, and in it, had recovered the land in dispute, except eleven acres, which was found for the defendant, Clarke, as his actual possession of more than ten years before action brought.

Before Butler, J. at Charleston, Spring Term, 1846.. FIRST CASE. Declaration in Covenant for the Apprenticeship of a servant by the name of Augustus. On a deed of Indenture hereunto annexed, the defendant filed a general demurrer. The Circuit Judge did not doubt that it was the intention of the parties,, that the deed should have been the legal obligation of W. A. Alston, instead of Alexander Robertson, the Agent. But by a strict legal construction, he could not so regard it.

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. This was an action of trespass to try title to a tract of land, called the Red House tract, on Edisto Island. The title to the land was in the late Ephraim Mikell. By his will he devised the balance of his Red House tract, after deducting 50 acres devised to his son, John Calder Mikell, to his wife for life, and after her death to his son, William Mikell.

<p>Before Mr. Justice Richardson, at Gillisonville, Spring Term, 1847.</p> <p>This was a motion to reform the Clerk’s taxation of costs in a suggestion of a further breach of the official bond of Sheriff Mulligan. The object of the motion was, to raise for adjudication by the Court of Appeals, the question, whether, in suggestions of this kind, against a sheriff and his sureties, the plaintiff is entitled to tax any, and (if any) what costs. Regarding each suggestion against the sheriff and his sureties as a new action against them, the Circuit Judge decided that the plaintiff is entitled to have his usual costs taxed, but expressed no opinion as to the items of the bill of costs as taxed by the clerk in this case.</p> <p>Vide the bill of costs annexed.</p> <p>Attorney’s Costs.</p> <p>Notice 400</p> <p>Suggestion 4 00</p> <p>Argument - 5 00</p> <p>6 Subpoenas - 6 00</p> <p>Jury 1 00 — $20 00</p> <p> Cleric's Costs. </p> <p>Notice, 50 c.; Suggestions and Rule, 75 c 1 25</p> <p>Plea, 25 cents ; 8 Subpoenas, $4 00 4 25</p> <p>Docketing twice .... 25</p> <p>Attendance on trial, ... 50</p> <p>Entering Verdict - 25</p> <p>Affidavit for continuance 25</p> <p>Enrolling Judgment, ... 75</p> <p>Recording proceedings, 1 50</p> <p>Satisfaction - - 25</p> <p>Filing Replication or Similiter 25 — $9 25</p> <p> Coroner's Costs. </p> <p>Service of notices on parties - - 10 50</p> <p>Serving Subpoenas ... 4 50 — $15 00</p> <p> Sheriff's Costs. </p> <p>Service of Subpoenas - - - 4 50</p> <p>Witnesses..... 60 50-$65 00</p> <p>The defendants appealed and moved to reverse his Hon- or’s decision, on the following grounds:</p> <p>That his Honor erred in allowing the plaintiff to tax any costs, as by the Act of 1827, costs are not provided for in cases of suggestions, and no costs are allowed by law, except such as are provided for by that Act.</p> <p>The State of South Carolina, for the benefit of some plaintiff, having already obtained and entered up judgment against the defendants, Clara Rowell, administratrix of David Rowell, filed her suggestion in due form of law, under the rule laid down by the Court of Appeals, in the case of Treasurers v. Bates, (2 Bailey, 362,) against the defendants, for a breach of the official bond of Edward Mulligan, sheriff. The jury assessed damages to Clara Rowell, the party in interest, (whom I shall hereafter, for convenience, call the plaintiff,) ai d the Clerk taxed costs to the plaintiff for the rule to plead, served on the defendants, the suggestion, and the usual costs for all cases tried in Court. The defendants contended that they were not liable for costs, and moved his-Honor, the presiding Judge, to have the Clerk's taxation reformed. The motion was refused and the defendants appealed.</p> <p>I apprehend that the question cannot be seriously made, so far as relates to those items of costs specified in the Acts of Assembly of 1827 and 1839, (the former prescribing the Attorney’s costs, and the latter those of the Clerk and Sheriff;) and of the Act of 1791, which allows to each witness, (see also Bratton v. Clendenin, Harper, 454,) so much per day; and to the Coroner “the same fees as are payable to the Sheriff for the same services.” Those Acts evidently contemplate the necessary expenses to which one is put in the prosecution or defence of his suit, and allow so much for services rendered by the officers of Court.— They have reference only to the services rendered, and none whatever to the nature of the proceedings had. I conceive, therefore, that the Court cannot, without overriding those statutes, refuse to allow these costs. The-form of the proceedings is prescribed by the Court, it is true, and not by statute ; but this cannot change the rights of the parties nor the nature of the services for which costs are allowed. But the questiou is already settled in this State, and it is needless to argue it. Beyond doubt, this is an issue which the plaintiff was entitled to make up-as a matter of legal right, and costs follow the result of the case. See Baker, Johnson <$• Co. v- Bushwell, 2 Mc-Mullan, 21, and Leslie Calhoun v- Taggart, lb. 71, for the principle. It is true, the Court in these cases refused costs as against the sureties on the respective bonds; but that was because the costs of the proceedings had formed no part of the condition of the bonds entered into by the sureties, and because they were not, and could not be, made parties to the proceedings. Had the sureties been sued on their bonds and judgment obtained against them, it would have been otherwise.</p> <p>The only question in the case, is whether the plaintiff, or party in interest, is entitled to costs for the suggestion and the rule to plead. The doubt in settling this question avises from the fact, that no statute says any thing about costs for these proceedings by name. I think, however, that so far as relates to the suggestion, the conclusion is inevitable, that- the plaintiff is entitled to costs either by the general terms of the statutes relating thereto, or by decided cases. For declarations, the statute allows certain, costs. Now, I hold that each suggestion is for a separate cause of action, which must be declared upon in the suggestion ; for although a judgment on the Sheriff’s bond must first be entered, before proceedings by suggestion can be had, the causes of action of the judgment and the suggestion are different from, and independent of, each other, and may be of very different natures. Indeed, if the causes of action were not different, a former recovery might be successfully pleaded to every suggestion filed on such judgment. But besides this, since Bates’ case, I take it, that after judgment on the Sheriff’s bond, suit by suggestion ■ is the only proper mode of proceeding against the Sheriff and his sureties, whether the nature of the suit be debt or case; and if costs were not allowed for the suggestion, the Court, by ordering this mode of proceeding, would be defeating the object of the statutes in relation to costs, and the rights of the parties under and by those statutes, by refusing, to allow the same costs ior the same services contemplated by the statutes.</p> <p>But I go further, and say, that a suggestion is in spirit and in fact a declaration. What is a declaration ? It is a legal specification on record, of a cause of action by a plaintiff against a defendant. What more or less than this is a suggestion 1 It is the same thing, only going a step further and pointing to a judgment already obtained against the defendants ; and pointing to the judgment only to show that the plaintiff has the right to come into Court by a specification of his cause of action in this form. In this view of the case, costs for the suggestion are specified in the statutes, and should be allowed.</p> <p>If, however, the Court should think a suggestion is not, in legal contemplation, a declaration, and that costs cannot be allowed upon that ground, we have the aid of decided cases, which we will here avail ourselves of, to show that the plaintiff is nevertheless entitled to costs for the suggestion. In 2 Tidd, page 946, it. is deduced, from cases decided in the English Courts, that costs are sometimes given, though they are not particularly mentioned in the statute on which the case arises ; and to establish this, are cited, amongst others, the cases of Cresswell v. Haughlon, (6-Durnford & East, 355,) and Greetliam v. the Inhabitants of the Hundred of Heate, (3 Burrows, 1723.) 1 quote these cases to show, that a liberal construction is always given, by the English Courts, to the statutes respecting costs, and that when in justice they ought to be allowed, they are given by the Court; and for the further purpose of applying the case in Burrows to this case, with the view of claiming what the Court there terms reciprocal costs ; by which I understand, that though a party defendant is not entitled to costs by statute if he should defeat a suit brought against him, yet, the Court will allow him costs, where, if the plaintiff had been successful in the same case, he would have been entitled to costs. And I argue, that if the position of the parties be changed, the rule will apply with equal force to the plaintiff. Now, since the decision in the case of the Treasurers v. McKie, (1 Nott & McCord, 575,) the fact that the defendants in this suit would have been entitled to costs from Mrs. Rowell, had they defeated the suit, is not only settled, but they might have compelled her to enter into an agreement to pay costs in the event of the failure of her case, and the Court would have staid proceedings at any time before judgment, until such agreement should have been entered into. Whether'the defendants make the requisition or not cannot change the principle. It is certain they had the’ right to do so, and the neglect to enforce their rights cannot defeat the rights of the plaintiff.</p> <p>But from the rules on this subject, established by our own Courts, I do not think the Court can refuse to allow the plaintiff costs for the suggestion and other proceedings in this case. In Clifton v. Phillips, (I McCord, 469,) the Court gave costs when no damages were given, because the'action was not '■'■frivolous and paltry,” hut to effect, an important object. In Kirkly v Nolly, (1 Hill, 398,) it was held, that the party recovering was entitled to “ actual expenses, necessarily incurred in the prosecution of his case,” because he would have been entitled at common law to reimbursement of these expenses; therefore, the expenses of witnesses examined before Commissioners, and of the Commissioners themselves, were allowed to be taxed as costs, although no provision was made by statute for such case. Thorn v. administrators of Denson, (1 Spears, 29,) sanctions and confirms this latter case. Now the suit before the Court was not frivolous, and paltry, as is shown by the assessment of the jury; it was to effect the just rights of the administratrix of Rowell in the only way she could effect them, and the expenses incurred were necessary in the prosecution of her case, and therefore, the Court is bound, by the principles on which its own rules are founded, to allow costs on the suggestion as for a decla-claration, to be taxed to her.</p> <p>The foregoing argument will also apply to expenses necessarily incurred for the rule to plead.</p> <p>We, however, have something more to say as to the expenses incurred for the rule to plead. By Bates’s case, a thirty rule is made necessary. Leaving out of the question, the fact, that plaintiffs generally cannot reasonably be presumed to know anything about the form of proceedings in cases like the one before the-Courl, and that they, therefore, necessarily submit the whole matter to an Attorney, who cannot be expected to render gratuitous services, let us enquire, what is the nature of this rule'? Whence it should issue ? And who should serve it *?</p> <p>1. As to the nature of the rule. It is, as I conceive, a legal proceeding, in the nature of a writ, and may, in some degree, be considered as the substitute for a writ. As a writ is the commencement of a suit and notice to a defendant, so is a rule to plead. The only difference is this, to wit: in the case of an original action, the writ must be served and imparlance given the defendaut before declaration filed ; whereas, in this proceeding, the suggestion should be first filed,- and then the rule to plead served on the defendant. But, nevertheless, as a writ is the commencement of a suit and notice to defendant, so is a rule to plead ; and damages on a suggestion can no more be assessed by a jury until service of a rule, than could a judgment be obtained in an original action without the previous service of a writ. The service of the rule is the pre-requisite to the assessment of damages. Suppose, that after suggestion filed, the defendants should remove from and reside without the State, no rule to plead having been served upon them, could the plaintiff have damages assessed on the suggestion? I presume not — and if the action were joint, and only one or two of the defendants had removed, the suggestion would fail. In this view of the case, the rule to plead, and not the suggestion, should be regarded as the commencement of the suit. To say that the suggestion was, would be to say that a suit might have a legal beginning which could have no legal end— and this would be absurd. In this point of view then, as "well as in the value of the , services rendered, the rule to plead assimilates and is analogous to a writ, and the plaintiff ought to be allowed to tax costs as fora writ.</p> <p>2. Whence should the rule issue? I hold, that when the Court requires a notice to be given or a rule to be •served, it means that the notice or rule shall issue from the Court in due form, and with all necessary evidence of its authenticity. Its regulations as to proceedings issuing from the Court, to command respect, must bear the impress ■of the Court, and should have regard only to those matters of which it properly has the control, and which it can enforce. It would be derogating from the dignity of the Court to suppose it would command a thing to be done, the ■doing of which it could not sanction by it authority. It ■would not do to hold, that when the Court requires a notice to be given or a rule to be served, as a part of its proceedings, it means the notice or rule to issue from an irresponsible citizen of the State, unconnected with the Court, and over whom it has no control; nor would it be proper to presume that the Court would require unrequited service of one of whom it had no legal right to require any service at all. It is true, the Court does say, in establishing this mode of proceeding, “ that any one who may conceive himself aggrieved,” (fee. “ and would have the right to come in and suggest,” (fee; “and upon serving a thirty day rule,” (fee; but it cannot be argued, from this mode of speech, that the Court meant to say that “ any one who may conceive himself aggrieved” should, in person, issue and serve the rule himself. If it meant this, it meant also, that any “ oue.-aggrieved,” should, in person, write out his own suggestion and conduct his own case, for the language will apply as well to the suggestion as to the rule to plead. But it is the usual mode of speech applied to both plaintiffs and defendants touching their duty in regard to all proceedings in Court, and argues nothing. If I am right in this position, then the original rule to plead in this case was properly issued from the Court and signed by the Clerk; for which service, he is entitled to costs from Mrs. Rowell, and therefore, she ought to be allowed to have them taxed to her.</p> <p>3. Who should serve the rule? I hold, again, that when the Court requires a paper to be served, in a legal proceeding in Court, the requisition should be regarded as being made of the officers whom the Court alone has the right to command, and whose duty it is to serve papers issuing from the Court —such as the Sheriff and the Coroner. The same argument will apply in this place that is used above, in regard to the issuing of the rule. I know the reply to this will be that Mrs. Rowell, for whose benefit the suit is brought, was interested to have the rule served, and that therefore she ought to have had it served, or have served it herself. The same reply may, with equal force and propriety, be made to an argument for costs in every suit in Court. But why should she have been required to do this ? The reasons for allowing costs in all other cases apply in this case — her money was withheld from her by those who owed and should have paid it. She was driven to suit by the refusal of the defendants to pay the money, due by them, to the estate she represents. She was thus compelled to incur costs. The defendants might have saved her the necessity of incurring costs, by paying the debt. Had she not incurred costs, by pushing her rights and duty, she would have lost the debt due the estate she represents, and that too by the fault of the defendants.</p> <p>But, again — what certainty would there be in the enforcement of the mandates of the Court, unless the officers of the Court are made to execute those mandates? Suppose from age, bodily infirmity, and poverty, a party interested to bring suit against the Sheriff and his sureties to enforce his just rights, should neither be able to serve the rule to plead himself, nor procure it to be done with his own means — would there be any certainty in the faithful and proper administration of justice, unless the public officers of the law were in duty bound to serve the process issuing from the Court?— Surely not. And when they do serve such process, are they not of right entitled to costs from the plaintiff or defendant according to the event of the suit ?</p> <p>But leaving these arguments to their chances of success, I will submit to the Court the following point of law, to wit: Could Mrs. Rowell legally have served the rule to plead in this case? It has been long since settled that a Sheriff cannot, even by his deputy, serve a paper in a case where he is only a nominal party. See May v. Walter, (2 McCord, 470.) It is true that, in this case, the decision of the Court is founded upon the Act of Assembly of 1706, prescribing that, in cases where the Marshall is either plaintiff or defendant, the Coroner shall serve and execute all such papers as are against him and in his favor — in other words, that wherever the Sheriff is interested in a proceeding in Court, the Coroner is substituted in his place. But the Court goes beyond the Act, and says “that by the rules of the common law,” «fee. “ the service of the writ by the Sheriff is void.” From this I take it, that if the Act of 1706 had never been passed, the rule would still have been the same. The reason, I presume, is that the Sheriff was responsible for costs — was, therefore, an interested party, and could not prove the service of the paper. The case now before the Court is, certainly, in this point of view, a strong case. Mrs. Rowell, might not only have been made responsible for costs had she failed in her suit, but she was directly interested in the event of the suit, as one of the distributees of her husband’s estate. Suppose the defendants had chosen to deny the service of the rule to plead, and had made a motion to set aside the finding of the jury, and vacate the proceedings, alleging that the rule to plead had not been served on them — could Mrs. Rowell’s oath, had she served that paper, have been taken to prove the service ? I presume not. This would be making her a witness in her own case, which is contrary to law. tier own safety, then, as well as the ends of justice, would require that some other person should serve the rule to plead; and whether that person were a public officer or a private agent, employed and paid by her, matters not. She would, in either case, be entitled to her costs, for the service of the notice, under the rule established in Kirldy v. Nolly.</p>

Before Mr. Justice O’Neall, at Charleston, May Term, 1847. REPORT OF THE CIRCUIT JUDGE. This was an action of debt, on the official bond of the defendant, as Cashier of the Union Bank. Under it, two demands were presented, 1st, for a deficit in the money of $20,400; 2d, for a balance of overdrafts. The bond is dated 26th September, 1837. Wilkie, who preceded the defendant as Cashier, left the bank 2d August, 1837, and never returned to it any more.

<p>Before Mr. Justice Richardson, at Gillisonville, Spring Term, 1847.</p> <p>REPORT OP THE CIRCUIT JUDGE.</p> <p>This was an action of assault and battery. The plaintiff, Mr. Cohen, is a respectable Baptist clergyman (formerly of the Jewish persuasion). The defendant, Mr. Robert, is a respectable planter. The defendant beat the plaintiff indignantly and severely with a cowskin, upon the allegation that Mr. Cohen had slandered him to a young lady, and caused the loss of his marriage with her. In this very novel case, I will first report the material evidence.</p> <p>J. Gelston — 30th August, 1845, at Robertville, witness saw defendant beckon to a boy, who went to J- — s, and Cohen came towards defendant, and the boy too. Saw defendant’s arm go so, {i. e. defendant appeared striking, as if whipping,) but witness could not see Cohen (the .witness stood at some distance); witness then withdrew; witness could see no weapon. Afterwards, in half an hour, defendant asked witness if he saw it, &c. Defendant told witness not to tell it, or he would be brought into Court.</p> <p>Cross-examined — Cannot say if Robert or another was striking him (Robert). This witness several times said he was very confident defendant was whipping Cohen, but was confused. He afterwards saw an advertisement, with defendant’s name to it, to leave the State, <fcc.</p> <p>R. G. Norton saw an advertisement of Robert, of his land, referring to an agent, which said-he had gone to Texas about the same time, i. e. of issuing a warrant. Witness issued a warrant, Sept. 1845, and soon after he (R.) was taken.</p> <p>• F. Baker — Lived near Robertville; saw defendant on Blst of August, at witness's store, in Robertville, between 3 and 4 o’clock; he had a cowskin; he said he heard that plaintiff had been interfering between him and a young lady, and if he acknowledged it he would give him “ ginger.” Cohen was not then in the village. Defendant remained until sundown. Witness advised defendant to act cautiously. Saw it advertised that he had or would leave the .State.</p> <p>Cross-examined — This lady was Miss‘Porter; the defendant was courting her. Witness had received a note from plaintiff, and was cautious-in what he sáid. Does not know that plaintiff is meddlesome in such matters. Defendant said Jaudon had told him of it, the intermeddling, fyc.</p> <p>H. Jaudon — Saw defendant at Robertville, in Baker’s store; R. had a cowskin that day.</p> <p>The plaintiff introduced the following'aífidavit:</p> <p>State op South Carolina, )</p> <p>Beaufort District. 5</p> <p>Lucius C. Robert, being sworn, deposeth and says that he was induced to chastise the plaintiff, Mr. Cohen, from information given to him by one Charles Jaudon, who is at Robert-ville, where he resides, considered a respectable man ; “ that the said A. D. Cohen had informed a young lady, who was then residing in the family of him, the said Charles Jaudon, and to whom this deponent was paying his addresses, that this defendant was a dissolute, immoral man, and did not seek her honorably, but intended to seduce her if he could, or to that effect, and as this deponent believes, in stronger terms, and that he, the said Charles Jaudon, had just left the young lady in tears.” That excited beyond control by this information, and especially from the fact of his having been a short time previously rejected by the lady — believing the report of Mr. Jaudon, this deponent did assail Mr. Cohen with a cowskin, but before he struck him a single stripe, said to him, “ you have been slandering me to a lady, sirthat Cohen did not deny the fact at the time, and deponent did chastise him. This deponent further.swears that his friends and his relations, from his mother down to bis cousins, have refused to stand bail for him in the enormous amount of ten thousand dollars, and that having failed in his applications to them, he knows no others to whom he could apply to be bound for him in so large an amount.</p> <p>This deponent, on oath, further says, that if he has been deceived by the information of Mr. Jaudon, and the plaintiff is innocent of the charge of having slandered him to the ladyr there is nothing in the way of-reparation, in his power to make, which he would not tender. All which this deponent • respectfully submits. L. C. ROBERT.</p> <p>Sworn to before mo, this 6th April, 1846. \</p> <p>W. B. Ficklinq, Magistrate. J</p> <p>And this deponent further shows, that a State prosecution for the same cause for which plaintiff sues, has been commenced against him in this Court, and he has been compelled to give security for his appearance in that suit.</p> <p>L. C. ROBERT.</p> <p>Sworn to before me, the 7th April, 1847. )</p> <p>Ed. Morrall, Magistrate, f.</p> <p>T. W. Rambout — Saw Cohen stripped; he was severely marked; not cut; disgusting to see; the stripes were over his left shoulder, to the opposite side over the arm.</p> <p>Cross-examined — Cohen said he had submitted, from Christian principles.' Witness said he and Cohen had differed on this principle ; “ he had caught the cowhide, and defendant was striking him with his fist, when he let go the cowskin, and defendant still struck him with the cowslrin.”</p> <p>W. Mocock — Plaintiff lived with witness. Saw his back; he had been whipped; 3 or 4 marks of a whip from left shoulder obliquely to the right. It was the latter part of the summer.</p> <p>A. N. Ruth — Defendant returned 55 slaves and 2,000 acres of land in 1847, i. e. to the Tax Collector. Youmans proved a judgment vs. Robert, of $500.</p> <p>I charged the jury, that the assault and battery being proved, the plaintiff’s case was clear, and presented but one material question. What damages would the jury give the plaintifF, under all attending circumstances? This was a question exclusively for the jury — damages might be increased, to deter others from similar violations of law — to encourage men to pursue legal rights for such injuries — for public example, or the like, as well as for the actual damages to person and feelings. The jury were unrestricted in this respect, &c.</p> <p>The first ground of appeal requires exposition. The evidence, all for the plaintiff, having brought out the whole der-fence, by the defendant’s affidavit, as well as plaintiff’s case, there was little reason for judicial exposition, after the very able arguments made in opposite extremes. But the defendant’s counsel had contended, with much apparent effect, upon the moral inconsistency of one submitting to be beaten through a religious principle of submission to evil, and then seeking to punish the assailant by law — urging that the thirst for pecuniary gain was the absorbing-object of the plaintiff, which should not be indulged. Upon .this, supposed inconsistency of conduct, the defendant’s counsel had been very impressive, and made the keenest thrusts at the plaintiff, upon the assumption that the original Jewish propensity of the plaintiff, a converted Jew, had, at the prospéct of gold, supervened and cast aside his assumed Christian forbearance and acquiescence' under wrong.</p> <p>And I observed to the jury, that although it appeared,, strictly speaking, inconsistent so to act, after a religious submission to the beating, yet that the plaintiff stood before the Court with all the rights of a litigant, and must be dealt with as other men who had a good^ cause of action, notwithstanding any supposed inconsistency in suing defendant, with the religious injunction by which he had professed to be bound,• to return no evil.</p> <p>Upon the second and third grounds, I have but to observe, that the provocation for the defendant’s trespass being proved by the affidavit introduced by the plaintiff, and from the lips of Robert by another witness of plaintiff, the Court did not and could not assume this part of plaintiff’s evidence, as morally false, or requiring to be further proved by defendant, i. e. prima facie, Jaudon had made the communication. Accordingly no specific charge was given on this head. If 1 had charged upon it, it would have been that the plaintiff could not dispute the moral truth of the evidence introduced by himself;' but my impression is, that, in referring the jury to the evidence of Gelston, Rambout, and the affidavit, as presenting the whole case, Í observed that the jury were not bound to believe every part of it alike.</p> <p>With regard to the 4th ground, I have to observe, that whatever were the feelings of the case, which were vehemently exalted on the one side, and as lowly undervalued on the other, the Court deemed It proper to avoid unnecessary comment.</p> <p>On the one side, $20,000 was demanded again'and again, as the only just verdict. The other side admitted damages, but pressed for very slight, holding the plaintiff’s demand for money, as unworthy the humility and forgiveness assumed.</p> <p>Upon this ground, I ought to observe that plaintiffs counsel required the Court to charge upon only one point, which was done.</p> <p>Finally, upon all the grounds of appeal, I would observe, .that the plaintiff, having given in evidence the defendant’s affidavit, and thereby fixed the fact of the -beating, it equally proved, at least till contradicted, the fact of Jaudon’s communication of the slander, and of defendant’s belief of plaintiff’s conduct; which constituted the whole matter of defendant’s excuse for his passionate outrage.</p> <p>It follows, that if this view of the main facts be correct, the case of itself, and aside from excited feelings, presented little else than the question of quantum damnijicatus for the jury alone.</p> <p>To my understanding, the case, however difficult for the jury to assess, was, of itself, of. the simplest law.</p> <p>The misfortune was, that the boy spoken of, as present at the whipping, had gone off, and the plaintiff introduced defendant’s affidavit; and, of course, gave him the advantage of having his defence stated without other evidence ; and the reply in argument, which I repeat, was masterly, and perhaps, too successful. For the jury, after being confined all night, brought in the sorry verdict of $250. And the question is, can the Court grant the plaintiff a second trial, either on the law, or on the evidence, and such a recompence, to so rare and humble a Christian follower, for so high-handed an infliction of personal chastisement 1</p> <p>The plaintiff moved the Court of Appeals for a new trial, on the following grounds :</p> <p>1. Because his Honor stated to the jury, that, if the plaintiff’s reason for submitting to being beaten by the defendant, was his belief, that asa Christian and a clergyman, he could not do otherwise — in his opinion, the plaintiff’s conduct in bringing the present action was inconsistent with that belief — whereas, it is submitted, that it was perfectly immaterial to the issue, what was the plaintiff’s motive for his conduct.- While such an opinion, expressed by the presiding Judge to the jury, was calculated to, and did, most materially prejudice the plaintiff’s case.</p> <p>2. Because his Honor neglected to charge the jury, that even if Robert had ever been told by Jaudon that Cohen had spoken disparagingly of him, Robert, it constituted no justification — and until proof was offered by Robert that Jaudon did so tell him, and that such was the truth, it ought not to go in mitigation of damages.</p> <p>3. Because his Honor ought to have charged the jury, that if Jaudon did tell him, the defendant, that Cohen had spoken disparagingly of him or injuriously — it was incumbent on him, Robert, to prove it, and not the duty of the plaintiff to prove that he had not so spoken of defendant, as this would have been to require him to prove a negative.</p> <p>4. Because, though the case was one of magnitude, in which many important legal points were made, and the opinion of the Court asked upon them — the presiding Judge did not bring them to the view of the jury, and dismissed the cause to them with a charge of less than five minutes.</p> <p>5. Because the verdict was contrary to law and evidence, and grossly inadequate to the outrage proved.</p> <p>6. Because, in the progress of the said trial, and before its close, the defendant and his friends and agents ap-preached the jury out of Court, and endeavored to influence, and did influence, their decision in defendant’s favor.</p>

Before Mr. Justice Frost, at Charleston, May Term, 1847. Held: that a prisoner in custody on mesne process, at the suit of the plaintiff in the action, is entitled to a supersedeas and discharge from custody, if the plaintiff does not, within two terms ■after final judgment, -charge the defendant in execution ; «that the lodgment of a Ca.

Before Mr. Justice Withers, at Columbia, March Term, 184S. This action was brought by the plaintiff, as assignee of a bail bond against the defendant as one of the sureties of Asa Bell. The issue presented in the pleadings, and the only question contested in the cause was, whether the defendant had rendered up to the Sherifi (Kennerly) his principal, Bell.

Before Mr. Justice Withers, at Kershaw — Spring Term. 1848. The action was for slander; the proof sought to be made was, that the slander was nttere.d and published by an affidavit made by the defendant before one William Ward, a Magistrate, imputing to the '¡plaintiff the offence of hog stealing. The original affidavit was not produced.

<p>On appeal from the verdict of a jury summoned by the Commissioner of Special Bail, for Lexington District, March, 1848.</p> <p>REPORT OP THE COMMISSIONER OP SPECIAL BAIL.</p> <p>State or South Carolina, ></p> <p>Lexington District. $</p> <p>Be it remembered, That on the seventh day of December, in the year of our Lord, one thousand eight hundred and forty-seven, the defendant, John J. Craps, filed a petition, with a schedule of his estate, sworn to, (the contents of which was his wearing apparel,) in the Clerk’s office for said district, petitioning for the benefit of the prison bounds Act, at a suit of capias ad satisfaciendum, in favor of Andrew Wallace, Adm’r. of C. C. Patrick. I, John Fox, as clerk of the Court of Common Pleas for the district aforesaid, published a rule, notifying and ordering the said plaintiff to appear before me on Monday, the twentieth day of the same month, to show cause why the said defendant, John J. Craps, should not be entitled to the benefit of the said Act. Accordingly on the twentieth day of December, the day appointed, the said John J. Craps, with his Atty’s. L. Boozer and H. A. Meetze, and the plaintiff, with his Atty. William Wallace, appeared. The defendant’s Attorneys moved for his' discharge, when the plaintiff’s Attorney objected to his discharge, and filed a suggestion containing the following grounds, viz: 1st. Because the said John J. Craps fraudulently conveyed and sold within less than three months from the time of his arrest, - a certain tract of land, for the purpose of defrauding his creditors, for which land he received three hundred dollars, and no mention thereof has been made in his schedule. 2nd. Because the said schedule is false and fraudulent; not mentioning the last crop he has made, and which he still has. 3rd. Because the said schedule is false and fraudulent, inasmuch as it does not mention a certain wagon and horses, which said John J. Craps has in his possession. 4th. Because the said John J. Craps falsely and fraudulently omitted to insert in his schedule, divers other property belonging to him, the said John J. Craps.</p> <p>The parties then agreed to have the facts tried by jury on Wednesday, the 5th day of January, 1848. 1 proceeded then to have a jury summoned in pursuance of the Act of 1833. The parties with their Attoneys appeared on the day appointed. The jury impannelled, Plaintiff’s Attorney read his suggestion and grounds, and proceeded to examine Joseph A. Wolf, a witness for the plaintiff.</p> <p>Witness says the defendant, Craps, sold to him a tract of land about the last of September last; he took a title from Craps and his wife, inasmuch as it was understood in the neighborhood that his wife was a freedealer. Says that Craps has horses, wagon, cattle and negroes on the plantation whereon he lives, and makes a crop with them; made corn, cotton, &c. the last year; this is the place witness purchased of Craps last September; the defendant plants corn and cotton on another place ; witness heard Craps say that there was something between him and Patrick, but not as much as the plaintiff, Wallace, claimed ; says that Craps’ children went to school to Patrick a long time ; heard'Craps say that his wife said that Wallace sent for him to come to Columbia, in order to make a settle-menf, if there was anything wrong it should be rectified. Witness says that in small transactions, be would take Craps’note alone, say $8 or $10; in large transactions Craps and his wife would generally sign together, inasmuch as it was the impression that his wife was a free-dealer, and that the contracts would be more valid ; says that his father, about the year 1832, took a note of Craps and his wife for a large amount; says he does not know that Craps’ wife carries on any trading in the neighborhood, such as merchandizing, (fee.</p> <p>Cross. — Witness says he gave his note of $400 to Craps for his land, from which he took $90 00 blacksmith account ; Craps then gave the note to John C. Geiger to secure him and Craps’ father, as they were sureties to Henry Muller for him; witness says, so far as he was concerned, the purchase of the land from Craps was a fair sale; says he never heard Craps say that he wished to sell the land to defeat his creditors ; soys that it is said that a part of the negroes on the place came by Craps’ wife; she was a widow before marrying Craps ; one negro on the place by the name of Bob, said to come from his father; he was on the place not long since; Mrs. Craps refused to sign the title for the land to witness until she saw the note for $400 which he gave for the land, as there was only $300 expressed in the title ; witness says, heretofore he would not have been willing to have taken Craps’ note for any considerable amount without his wife would sign the note with him ; witness understood that one of the negroes (not Bob) was hired in Columbia, and that Mrs. Craps went to Columbia, to see to the hiring, or to receive the money for the hire ; witness is under the impression that the wagon alluded to was purchased by Craps about the year 1831 or 1832 ; says* it is quite old.</p> <p>Witness further examined by Plaintiff. — Witness says that he heard Craps say that hp had an idea of sending one or two negroes to the west with his father, to make a crop for him. Witness says there is furniture in the house, say clock, sideboard, beds, (fee.; cannot say who it belongs to.</p> <p>Washington Craps, witness for the plaintiff, and son of defendant, says, that the negro man Bob is in his grandfather’s possession, that he came from his grandfather and went back to his grandfather again ; his grandfather started to move on yesterday, and Bob has not returned. Witness says his mother bought the horses and furniture with the proceeds of the crops, which she receives; his mother uses the proceeds of the crops as she pleases, buys necessaries, <fcc., for the family ; witness says there is a negro naan hired in Columbia, and his mother goes and receives the hire. Witness does not know who is his mother’s Trustee; he does not know within his own knowledge that his mother owns any property; witness says his father attends to the plantation; he does not know that his father ever sold any cotton in Columbia ; Bob was with him in Columbia last week driving the wagon ; Bob has been with his father about nine or ten years, or as long as he can-recollect ; Bob worked for his grandfather and father both ; Bob went off with his grandfather; witness says, by reports, the negroes on the place belong to his mother ; he says there are nine negroes on the premises, and one in Columbia ; witness says there are about 6 head of cattle, 16 head of hogs, 3 horses and one mule ; witness says he went to school to Mr. Patrick about two or three years, and his sister went to school to Mr. Patrick also.</p> <p>Cross. — Witness says, from reports, the cattle and property belong to his mother.</p> <p>Upon this evidence, all of which was received without objection by either party, the parties closed and argued the case, and submitted the same to the jury — who returned a verdict of not guilty on all the grounds. The plaintiff’s Attorney gave notice forthwith, that he would appeal, and filed his grounds of appeal'the 27th-of March, 1848, which are as follows, viz:</p> <p>1st. Because the legal presumption is that possession is prima facie evidence of property, and there was no proof offered to rebut this presumption.</p> <p>2d. Because evidence to establish personal property in the wife by general reputation was improperly admitted.</p> <p>3d. Because the rule of law is, that all personal property belongs to the husband, and nothing less than a deed of settlement or other instrument will enable the wife to hold property to her separate use, and there was none produced in this case.</p> <p>4th. Because the verdict was, in other respects, contrary to law and evidence.</p>

Before Mr. Justice Withers, at Columbia, March Term, 1848. REPORT OP THE CIRCUIT JUDGE. These were actions of sum. pro. brought by the Plaintiffs, who sought to recover from each defendant an amount of arrearages arising from certain periodical contributions required of each member of the lodge, under provision of the Constitution aud By-Laws of the plaintiffs.

Before Mr. Justice Evans, at Sumter, Fall Term, 1847. REPORT OF THE CIRCUIT JUDGE. The prisoner was indicted for the murder of Marcus his own slave. There was but a single count in the indictment. On the trial, there was no reasonable ground to convict the prisoner of murder, and the question was whether he could be convicted of tlie second offence, mentioned in the Act of 1821, for killing in sudden heat and passion.

<p>Participation in profits is enough, in most cases, to make a man a partner: but although it makes him a partner in the concern, yet it gives him no title to the capital stock, if his interest be merely in the profits.</p> <p>Where one does not become a member of a concern, but is to act as an agent or clerk in effecting sales, and his compensation, for his services, is to be measured by the profits, there is no doubt that in such cases he would, not be a partner.</p>

Before Mr. Justice Frost, at Barnwell, Spring Term, 1848. The indictment charged the defendant with “ taking grain from a fieldconcluding against the form of the statute. The Act makes it larceny to take cotton, rice, “corn or other grain from a field. The indictment pursued the words of the Act. It was proved by the prosecutor, that peas had been picked from his field ; about half a bushel.

Before Mr. Justice Richardson, at York, Spring T, 1848. This case was before the Court of Appeals last term, and the plaintiff’s title to the gin-house settled. This was an action for^Hing a gin, Dutch fan and thresher, found in the gin-hous^B>ught at Sheriff’s sale by the plaintiff.

<p>Before Mr. Justice Withers, at Columbia, March, 1848.</p> <p>The action was brought for money had and received.</p> <p>The plaintiff had undertaken a job connected with the water works in Columbia, which required a quantity of brick and pebble.</p> <p>The plaintiff produced the following receipt; which a witness said was subscribed by defendant, viz : “ Received, Columbia, March 28, 1846, of Mr. Scofield, forty dollars, on brick account.” The same witness said, he saw in the plaintiff’s possession, in 1847, another receipt, which he had no doubt was also subscribed by the defendant, in a form similar to the above, acknowledging the receipt of three hundred dollars from the plaintiff.</p> <p>Another witness had also seen the last mentioned receipt, and stated that Kinsler, the defendant, told him it was for $300, for brick, he was to furnish for work Scofield had •engaged to do at the water works. This witness saw the receipt mentioned, in the summer of. 1846. This witness, (Maybin) and Kinsler, were securities for Scofield, upon his engagement.</p> <p>The plaintiff produced an account for brick, which the defendant admitted he had rendered to him, charging the delivery of brick, from 21st Feb., 1846, to the 5th August, 1846, and gravel, on the 6th August, 1846, amounting to $179 41.</p> <p>S. B. Welch said: I was working with Scofield, from the 15th June, 1845. I don’t think defendant delivered brick or tile, to Scofield, before the first date in the account rendered, nor after the last date. I think a few brick were delivered to Brown & Scofield, at the Church. Gravel was delivered, by Kinsler, to Scofield ; 15 loads, which I considered equal to 13 good ones ; delivered at the basin. I received all the gravel delivered at the basin, and I think no more was delivered by Kinsler, than the above quantity. It would take 170 loads of gravel, for the whole work at the basin. Other persons delivered the better part of it.— In the reply, the same witness said : I kept the account of gravel, when the work was going on, and I think Kin-sler could have delivered none without my knowledge there were 15 (equal to 13) loads.</p> <p>The defence insisted on, was, that Kinsler had delivered brick and gravel, to the full amount of the two sums advanced. His testimony was to the following purport: In August, 1846, his wagon was seen engaged in hauling gravel to Scofield — 4 horses hauling — engaged, perhaps, two or three weeks off and on, with one wagon ; but the number of days were not specified. Another witness said, defendant was engaged 4 or 5 weeks with 2 wagons — not the'whole time. He could not tell how many loads were hauled — one wagon, with the force Kinsler had engaged, might haul 4 or 5 loads a day — a load was supposed to be worth $1 75, (and that was the price charged in the account rendered to plaintiff.) The estimate of the witnesses for defendant, as to the quantity of gravel it would take to complete the work on which plaintiff was engaged, ranged from 600 to 1000 loads. This was quite conjectural, however, and the witnesses spoke with no confidence. It is before stated, that one of plaintiff’s witnesses, who was engaged with Scofield, said it required 170 loads.</p> <p>The above comprises the substance of the whole testimony. Reported, because the 2nd of appeal seemed to require it. The presiding Judge told the jury he did not think interest should go on the two sums advanced by plaintiff, from the time oí the deposite; but should be allowed on such balance as they might conclude was in defendant’s hands, when he .ceased to. deliver brick or pebble — and from that period. They were fully instructed as to the general merits of the case; that the true inquiry was whether the money had been advanced as alleged by plaintiff, and how much. If so, whether defendant had accounted for the'whole sum in materials furnished, or for how much ; and their verdict would be according to their conclusions, on these points.</p> <p>The jury returned a verdict for the plaintiff, for $160 50 ; with interest from 25th March, 1845.</p> <p>The defendant moved the Court of Appeals for a new trial, on the following grounds :</p> <p>1st. Because the sum sued for, was not an interest bearing demand, and the jury should not have given interest.</p> <p>2nd. Because the finding of the jury was contrary to the law and the evidence.</p>

Before Mr. Justice O’Neall, at Walterborough, Fall Term,-1845. REPOET OF THE CIRCUIT JUDGE. This was an action of slander for words spoken. The' plaintiff, under the Act of Assembly of 1841, challenged a juror. Mr. Solicitor Edwards objected to the allowance of the challenge, on the ground that the Act was unconstitu tional, and supported his objection by a well sustained argument from the Constitution of the United States, and of this State.

Before the Recorder, in the City Court of Charleston, 1846. REPORT OP THE RECORDER. This was a summary process to recover the penalty imposed by the 2d section of an Ordinance of the City Council of Charleston, ratified 2d May, 1801, entitled “an Ordinance for the better observance of the Lord’s day, commonly called Sunday, and for other purposes therein mentioned.” — (See City Digest, p. 272.) That section is in the following words : “ Sec. 11.

Before Mr. Justice O’Neall, at Charleston, Spring Term, 1845. REPORT OF THE CIRCUIT JUDGE. This was an action of trover, brought by the plaintiff, for the recovery of damages for a mulatto woman, Mary Anne, and her four children, alleged by.him to have^ been converted by the defendant to his own use. The plaintiff claimed title under the will of Mrs/'E. Peake, dated 22d August, and proved 28th August, 1822: the plaintiff was the Executor.

Before Mr. Justice O’Neall, at Columbia, March Term, 1846. In this case, the defendant had been served with a rule to show cause why he should not be attached for a contempt, in not paying over to the clerk of Richland district, the sum of $5,700, with interest thereon, from the 29th February, 1840 ; the said sum being the proceeds of certain slaves found by a verdict, on a suggestion in attachment against the defendant, as garnishee in the case of this plaintiff against…

Before Mr. Justice Butler, at Charleston, May Termt 1846. Two rules had been taken ont against the Sheriff, to :-show cause why he should not be attached, for not having-made the money on two executions, or warrants of distress, against the defendant, lodged by the plaintiffs in the Sheriff’s office, for the collection of certain fines, incurred by .default in the performance of public duty, in relation to* .New Town Cut.