Volume 34 — South Carolina Law Reports

Before Wardl aw, J. at Sumter, Extra Term, July, 1847. Held: that to justify a seizure under the Act referred to, there must be live stock of some of the kinds mentioned in the Act, bred or kept for the peculiar use and benefit of a slave, and such possession thereof by the slave, that it may be taken from the slave — that the right to enter the master’s enclosure was not- expressly given by…

<p>A deed which “granted,” &c. to the tenant and her children, so long as they or either of them should survive, “ the plantation” on which she then resided, “together with the house, outhouses, anjl appurtenances thereunto belonging,” • “ with as much land adjoining the improved plantation,” &c. as they or either of them might “ have occasion to occupy for cultivation,” “ and as much timber for plantation purposes as might be necessary,” was held not to convey a life estate in the whole tract (wood and cultivated) of which the “ improved plantation” formed a part.</p> <p>The term plcmtaimi has no precise, fixed and definite single meaning; it may mean the whole body of land (wood and cultivated) which a man uses together for agricultural purposes, or it may mean only that part which is cultivated. The sense in which it is used, depends very much on the context, or the subject matter to which it is applied.</p> <p>1 Strob-</p> <p>Sfeep. Touch. 278.</p> <p>Bac. Abr. Grant, H.</p> <p>Habart, 174,</p>

<p>The com and fodder, the product of the intestate’s farm, a tract of land which he had, by deed, conveyed to his son, the defendant, in 1837, but of which he retained possession to liis death, in August, 1845 — were held to be unquestionably his goods and chattels, to which the plaintiff, as his administrator, was entitled.</p> <p>The emblements growing oil land, at the death of a tenant, do not appertain to the land, and go to the owner of the freehold. They belong to the executor or administrator of the tenant. Bouvier Law Die. Title Emblements.</p> <p>Where plaintiff’s intestate had, by deed, conveyed a tract of land to his son, the defendant, but had retained possession for life, and had worked it jointly with the defendant, each contributing a certain number of negroes, — the Court held that the crop could not be regarded as co-partnership property — that the most the defendant could claim was to have his share deducted from the aggregate-,, (if any he was to have by agreement;) that after deducting it the plaintiff should have a verdict for the balance, with interest on the value thereof from the time of the conversion — and that the hire of the negroes, (if used by the defendant in his own business,) from the death of the intestate to the last day of December, or until the intestate’s crop was actually gathered, (if that were sooner than the last day of December,) with interest on the same, the plaintiff was unquestionably entitled to recover. Vide Lenoir v. Sylvester-, Young v. Same, 1 Baxley, 645.</p> <p>2 Strob. Eq.</p> <p>2 Bail. 581.</p> <p>Lenoir v. Syl-Bail. 645.</p>

<p>Before Evans, J. at Marion, Spring Term, 1848.</p> <p>This was an action on the joint and several note of the defendants. It appeared from the evidence that Gasque was the principal debtor, and Rowell was his security; Gasque did not defend the suit, and there was a reference to the Clerk as to him. Gasque was now insolvent, and the defendant, Rowell, alone defended the case. The plea was payment of $200, part of the note, made by Gasque. The evidence was as follows:</p> <p>Godbold, the sheriff, said that the plaintiff told him, that Gasque sent her $200 by her son, but she would not receive it; her son had the money, and returned it to Gasque. She said she was not in the habit of receiving a part of her debt.</p> <p>James Baker said his mother gave him the note to try and collect it. He called on Gasque for the whole of it; Gasque did not pay, but promised to do so. A few days after, Gasque called at his house, and gave him $200 to give to his mother; he told her he had the money; she refused to take it, saying she would not receive a part without all; he returned the money to Gasque. This witness said he went to Rowell by his mother’s direction, to inquire what he wished done, whether he wished the note sued; he said no, he thought Gasque could and would pay without suit.</p> <p>Gasque said James Baker called on him for payment; a few days after he called on the plaintiff, but she was not at home ; he then went to James Baker’s and gave him $200 for his mother • soon after this he was at Mrs. Baker’s again ; she said if the $200 was any advantage to him, he might keep it, and told her son, who was present, to return the money, (this was denied by James Baker,) which was done.</p> <p>The first question was whether this was a payment. The Circuit Judge told the jury the plaintiff was not bound, in law, to receive a part, and unless they believed, from the evidence, that she accepted it as a payment, and let Gasque have the money on a new contract, it was no payment. The second question was whether the refusal of Mrs. Baker, to accept ^jg money from the principal, was a discharge to the security. He was of opinion it did not, and so instructed the jury. They found for the plaintiff the whole amount of the note.</p> <p>The defendant moved the Court of Appeals for a new trial, on the following grounds, viz:</p> <p>1. Because his Honor erred in instructing the jury that the payment of two hundred dollars, by Samuel Gasque, the principal, to James Baker, the son of plaintiff, was not a payment on the note, inasmuch as she did not receive it and credit the note with the amount: whereas it was in proof by plaintiff’s and defendant’s witnesses, that, the said J. Baker had been authorized to collect the note, and had received the $200, on account of it, from said Gasque.</p> <p>2. Because his Honor erred in charging the jury that the defendant was not discharged from the payment of the $200 which had been made by Gasque, the principal, when it was in plaintiff’s hands, and allowed by her to pass into the hands of the principal, by which defendant was bound to pay the whole amount, on account of the insolvency of the principal.</p> <p>3. Because, upon the proof, the defendant was entitled to be discharged from the payment of two hundred dollars on the note, which it was proved were in the hands and control of the plaintiff, who allowed the principal, Gasque, to take it back and retain it, to the prejudice of defendant, who was surety, without his consent.</p>

<p>Before Evans, J. at Marlborough, Bpring Term, 1848.</p> <p>The sheriff had levied on sundry negroes, as the property of one Robert D. Thomas, under sundry fi. fas. in his office. These negroes were taken by the defendant out of the possession of William Thomas, son of R. D. Thomas, in whose possession they were left, and from whom the plaintiff had taken a bond and security for their delivery at sale day. The defendant justified the taking under the authority of his fa-yyj]|jara Covington, to whom he alleged they belonged. The facts of the case were as follows, viz: Robert D. Thomas married the daughter of William Covington, the father of the defendant, in L825. Thomas resided in Marlborough district, and William Covington in Richmond county, in the State of North Carolina. In the course of a month after the marriage, Thomas brought his wife home; and shortly after some furniture and two negroes, Luce, a young woman, and Caroline, a small girl, were sent to him by his father-in law. Thomas, after his marriage, resided 3 years in Marlborough, and then removed to North Carolina, where he resided two years, in the neighborhood of Covington. During all this time the negroes remained in his possession. When Thomas was about to return to this State, he sold a piece of land which Covington had given to him, at which Covington be-pame offended, alleging that Thomas had agreed to reconvey it to him at a certain price if he removed from it. The morning that Thomas started, the negro woman, Luce, by Covington’s direction, went to his house, and Thomas, on discovering this, sent Caroline also. The girl Caroline was returned to him by Covington, but Thomas refused to take her, and came back to his former residence without either of the negroes. This was in 1830 or 1831. Within a year after, Mrs. Thomas visited her father, and on her return brought Caroline with her. In 1840, Thomas sent one Easterling With a wagon to Covington, and brought back Luce and her two children, Edmond and Harris, who had been born while she was in Cov-ington’s possession. Prom that time the negroes remained in Thomas’ possession, who exercised all acts of owneiship over them, and they were supposed by all the neighbors to be his, until October, 1846, when they were levied on by the sheriff. In 1838, Thomas was elected Clerk of the Court, which office he held for eight years. He owned a tract of land and five other negroes, which he sold in the beginning of October, 1846, for $11450. He was in good credit and apparently prosperous, but he was, as afterwards appeared, a prodigal man, and on the winding up of his affairs, his debts amounted to near $3000 above the value of his property, ex-eluding Luce and her children, and the 5 negroes he sold. On the 4th of May, 1846, there were executions in the sheriff’s office amounting to 8 or 900 dollars: On the 6th May he confessed other debts, for which other executions were issued, but these did .not amount to more than $30. For the satisfaction of these the sheriff took a levy on the land, furniture, wagon, &c., and on the 5th of October, Thomas gave him in writing a levy of 7 negroes, viz: Caroline and her children, and Luce, Edmond and Harris, to satisfy sundry executions in his office. There was no other evidence of levy, except this which was endorsed on the ecution of M’Daniel, which was the largest in the office. On the 10th October, Thomas privately went off to Florida, leaving the negroes at his late residence, in possession of his son. In a few days afterwards, the sheriff took a bond of the son with security for the delivery of the negroes at sale day. On the 17th, the sheriff advertised all the property levied on, for sale on the 2d November. On the same day, Mrs. Thomas sent her son to let her father know the situation of her husband’s affairs, and on the proposition of William Covington, it was arranged that the negroes should be privately removed to North Carolina, which was effected by defendant, on the night of the 19th. On information of this, the sheriff sent a deputy to North Carolina, who succeeded in bringing off Caroline and her children. On the 2d November, the sheriff sold the land and other chattels for $497, leaving unpaid, of the executions in his office, at the time of the levy, (5th October,) about $500. Between the 5th of October and the 12th, other executions, to the amount of seven or eight hundred dollars, were entered, and on the 21st (two days after the negroes were carried off,) other executions to the amount of near three thousand dollars, were entered. On the sale day in December, the sheriff sold Caroline and her children, for $1190; this paid all the executions in his office at the time the negroes were taken by the defendant, except two or three hundred dollars. All the cases entered on the 21st remain unsatisfied. Subsequently to this, the sheriff brought this aetion for Luce and her children, Edmond and Harris, and William Covington sued the sheriff for Caroline and her children.</p> <p>The first question which arose on a motion for a nonsuit, was, whether there was such a levy as vested the negroes in the sheriff, so as to enable him to maintain the action. The Circuit Judge said, in an action by the sheriff, founded on his title derived from his levy, he would hold him to strict proof.</p> <p>But he thought the indorsement of the written levy, which Thomas had given him, on the execution, with his subsequent proceeding in taking the bond for delivery at the sale day, was sufficient. The paper which was called the written levy, was to this effect: “I give to T. C. Weatherby a levy on seven negroes, by name, to satisfy sundry executions in his office.” This was copied, but not verbatim, on one of the executions, but nothing material was omitted.</p> <p>The second question was, whether William Covington had given the negroes to R. D. Thomas. It appeared in evidence, that by the law of North Carolina, there can be no parol gift of a slave. Every gift must be in writing, proved and recorded in the county where the donee resides. As the donee did not resj<je jn North Carolina, so that the writing, when made, "could be perfected by recording it in the county where he re-jjjg jj0n0l- was 0f opinion the case did not come within the provisions of the Act of the Legislature of North Carolina, but was to be decided by the rules of the Common Law, which was the law of both States, unless altered by Statute. He stated to the jury, that by our law, (which was the Common Law) that if a parent, on the marriage of his child, placed negroes or other chattels in the possession of the child, without any declaration or understanding to the contrary, the law presumed it was an advancement, and therefore a gift.</p> <p>The evidence on this point consisted, 1st. of the examination of William Covington, who said that he loaned Luce to R. D. Thomas, when she first came into his possession after his marriage; that afterwards, when Thomas was removing' from North Carolina, he told her to go home, to his house, which she did; she remained in his possession until she was brought away by Easterling. After Thomas’ removal, his wife came on a visit to his house, and wanted Caroline; he told her she might take her at any time, if she and her husband would take her as a loan; he also told her they might have Luce, also, whenever they would receive her in the same way. Afterwards Easterling came for her with a letter from Thomas, and he sent her; he said expressly, that Thomas received the negroes as a loan. 2d. The examination of several members of W. Covington’s family, all of whom said their father had given to each of his children, on their marriage, but in every instance they had been accepted and held as a loan, subject to his right to resume possession, and in their opinion Thomas had réceived these negroes in the same way. 3d. The evidence of Hamer and Caulk, both of whom said that in 1845, Thomas told them that Covington had never given the negroes to him. His Honor charged the jury, that if they were satisfied from this evidence that Thomas accepted the negroes as a loan, and held them as such, then he had no title upon which the sheriff could levy, and they should find for the defendant, unless the sheriff, representing the creditors, had a right to subject these negroes to the payment of Thomas’ debts, on the ground of fraud. As to the rights of creditors, he charged the jury, that where one comes into the possession of personal estate, under circumstances which ordinarily denote a transfer of a legal title, and another, believing, from these circumstances that he is the owner, buys from him, or trusts him, on the faith and under the belief that he is the owner, in such case the creditor had a right to subject the property to the payment of his debt. This was on the ground, that the real owner had enabled the ostensible owner to obtain a credit on the faith that the property was his. The principle rested on the ground of fraud, and' in all such cases the jury ought to be satisfied that the creditor had trusted on the faith that the property belonged to his debtor. If he did not so trust, he could not complain that he had been defrauded. The cases ,of Archer vs. McFall, and Aiken vs. Elkins, were quoted as illustrations of the principle. A great number of witnesses living in Thomas’ neighborhood were examined, who said they always supposed and believed that Thomas was the owner of the negroes, and they would have trusted him on the faith of his being the owner.</p> <p>The verdict of the jury was for the full value of the property, according to his directions.</p> <p>He was of opinion, that if the defendant was a wrong doer, he should pay the full value. It was contended, that all that could be recovered was the amount, about $500, remaining unpaid of the executions in the office, at the time of the conversion ; but the sheriff was suing for the creditors, who should be put in the same condition as they would have been, but for the defendant’s unlawful act in carrying off the ne-groes. But for that, the sheriff would have sold the negroes, and the junior executions would have been entitled to receive the balance, after paying the balance remaining due of the senior executions.</p> <p>The defendant renewed his motion for a non-suit, on the following grounds, viz:</p> <p>1st. Because there was no legal levy on the slaves, the subject of the suit, and the plaintiff therefore could not maintain the action.</p> <p>2d. Because, -even if there was a legal levy, the slaves having been left in the possession of R. D. Thomas, and the executions against said Thomas under which the alleged levy was made, and all others in the plaintiff’s office at the time of the levy, having been paid before the commencement of this suit, the plaintiff could not maintain the action.</p> <p>And for a new trial, on the same and the following additional grounds, viz:</p> <p>1st. Because his Honor erred in admitting in evidence a paper signed by R. D. Thomas, purporting to be a levy of the slaves in controversy, given to the sheriff by said Thomas, when said paper was not attached to any execution, and without any evidence that it had ever been attached.</p> <p>2d. Because his Honor erred in charging the jury that the •Act of the Legislature of North Carolina, requiring all gifts of slaves to be in writing, was not applicable in this case.</p> <p>3d. Because it was clearly proved that the title to the slaves was in William Covington, under whose authority the defendant took them.</p> <p>4th. Because under the facts of the case the slaves were not subject to the debts of R. D. Thomas.</p> <p>5th. Because, even if there was a legal levy, the plaintiff had no interest in the slaves beyond the amount due on the ’ executions under which the levy was made, and the said executions having been fully paid, his Honor erred in charging the jury that the measure of damages was the value of the slaves with hire.</p> <p>6th. Because, at farthest, the plaintiff was not entitled to recover beyond the amount still due at the time of the trial, on the executions which were in his office at the time of the alleged conversion.</p> <p>7th. Because the verdict was, in other respects, contrary to law and the evidence.</p>

<p>It is not necessary that the names of the jurors should be embodied in the writ of venire facias; it is sufficient if they be arranged in lists below the signature of the Clerk.</p> <p>The writ of venire facias is merely a precept to the sheriff to summon a jury according to a list of the names, or “ panel” annexed. — 10th sec. of the Act of 1839, copied from the Act of 1731 — P. L. 124.</p> <p>The facts of the writ of venire facias not having been issued within twenty days after the adjournment of the Court, nor returned within fifteen days before its sitting, do not afford sufficient ground for arrest of judgment. The important object of obtaining an impartial jury, is secured by tlie manner of drawing them, which is not in the least aifected by the mode of summoning them.</p> <p>A seal to the venire is necessai-y in compliance with the law which requires all judicial process to be issued under the seal of the Court; but it is not necessary that the impression of the device should be manifest on the seal.</p> <p>A divorce, by the law of Georgia, being grantable in a Court of Record, can be proved only by the record of the Court in which it may have been granted. That a witness was allowed to testify, who had heard the opening of the ease, and who, being the first sworn, was not separated from the other witnesses of the State until after the close of his examinaron, affords no ground for a new trial; it defeated in no particular the object of separating witnesses.</p> <p>It is within the sound discretion of the presiding Judge, to allow a juror to leave the jury box for a brief time, even during the trial of a capital case. — State v. Anderson,, 2 Bail. 565.</p> <p>A slight variance as to time between the affidavit before the Magistrate, and the testimony on the trial, of a witness who is an ignorant person, and whose attention may not have been called to the importance of exactness, is not sufficient to invalidate the truth of her evidence.</p> <p>Where a fact stated by a witness at the trial is not contradicted in her affidavit before the Magistrate who issued tlie warrant, and the rest of the affidavit which sets out the material facts is in strict conformity with the testimony of the witness at the trial, the statement of that fact is not an inconsistency which will impair the evidence.</p> <p>A memorandum of the testimony of the witnesses examined before a Coroner, taken by a person who was present, is not competent evidence, even if it bo proved.</p> <p>When the jury have found upon the testimony of witnesses, of whose credibility they were the only competent judges, and their verdict is confirmed by circumstances direct, consistent and cumulative, there is no ground on which t© remand the case for anew trial.</p> <p>p L 134#</p> <p>x 0h;tty Cr_ Law, 507 & 8. '</p> <p>Harp. 91.</p> <p>2 Speers, in: ’</p> <p>tat‘ '</p> <p>S im'</p> <p>Rileys Casea,</p> <p>8 Eagt ^ 1 ’</p> <p>2 Bail, 505.</p>

<p>Undue influence, such as would destroy a will, or prevent its probate, must appear, by the proof, to have been sufficient to deprive the supposed testator of the free exercise of his own will.</p> <p>The exercise of undue influence, in preventing the revocation of a will, will not create an implied revocation. A will of real and personal estate, according to our Acts, cannot be revoked, but by an instrument in writing, executed with the same solemnities as the will itself — by obliteration, oi by burning, or destroying, (unless it be in the case of implied revocation by marriage, and the birth of issue,) — nor will the fraudulent prevention of revocation render a will void; foy at most to say so, would be only giving effect to that, in another form, which it is denied can have effect as a revocation.</p> <p>On an appeal from the decree of the Ordinary, deciding in favor of a will, the correct practice is, that the witnesses to the will be first examined' — that tire appellant then offer evidence to attack the will — and lastly, that the appellee give evidence in reply, and in support of the will. The appellant is not entitled to reply to the evidence last given, unless to discredit the appellee’s witnesses.</p> <p>Cheves, 46. l Rich. 84.</p> <p>Swinb. 887.</p> <p>Swinb. 888 & 889.</p> <p>Columbia, May, 1848. Floyd v. Floyd.</p> <p>33 Eng. Com, L. Rep, 57.</p>

<p>Before Evans, J. at Marlborough, Spring Term, 1848.</p> <p>This was an action by sum pro, against the defendant as sheriff. It appeared from the evidence, that Atlas Jones had borrowed money of the plaintiff, and gave a note with one Norton as security. The plaintiff sued out a bail writ against .Tones, who was arrested by the sheriff, and gave a bail bond, signed by himself and one Enoch Godfrey, as his bail. The condition of the bond was that both Jones and Godfrey should appear at Court to answer. The plaintiff prosecuted his suit against Jones, and on the return of the ca. sa. sued Godfrey, the bail, but, on the hearing of the case, he was non-suited, on the ground of variance between the order for bail and the condition of the bail bond. He then brought this action, and the Circuit Judge was of opinion the sheriff was liable, and decreed accordingly. He thought the bail bond void. It appeared from the evidence, that the name of Godfrey, in the condition, was in the hand writing of Godfrey; but he did not think this made any difference. The taking of the bond, was the act of the sheriff. As regards the second ground, no evidence was offered on the subject. Nothing was said by any witness, except that Nazara Norton was Jones’ security on the note. It did not appear where he was, who he was, or whether he had any thing to pay the note.</p> <p>The defendant appealed, on the following grounds •,</p> <p>1st. That the bail bond was valid.</p> <p>2d. That the decree was for a sum more than sufficient to pay the actual damage of the plaintiff, as the plaintiff still has a remedy for the ‘whole amount of the note sued upon, against the other party to said note, to wit: Nazara Norton.</p>

<p>Where one disposes of his property by a voluntary deed, and afterwards sells the same property to one who had no notice of the gift, for a valuable consideration, the gift is void.</p> <p>The defendant purchased several negroes, which had been levied on, from one who had previously, by a voluntary deed, given them to another, reserving the life estate. The defendant had no notice of the deed, and the money paid by him for the negroes had been applied to the satisfaction of the executions against the donor — held that the defendant had a right to stand on the footing of the creditor whose debt he had paid, and that as to him the deed was therefore void.</p> <p>2 St b E ro '</p> <p>37 Ea¿ Ci ¿</p> <p>50S</p> <p>1 Bail. 580.</p>

<p>Before Frost, J. at Barnwell, Spring Term, 1848.</p> <p>This was a new trial case. The declaration originally contained two counts in assumpsit on a contract of warranty. Pursuant to leave, granted by the decision of the Appeal Court, the plaintiff added three counts. The first of these counts was plainly in special assumpsit; and the third contained the common money counts. The second set out that the defendant falsely and deceitfully represented to the intestate, that the slaves, the subject of sale, were sound; and imposed on the intestate, when intoxicated, a contract to pay twelve hundred dollars for Delia and her two children which sum the intestate did pay to the defendant; and in consider- ¶ ation of the premises, the defendant promised and assumed to the intestate that the said negroes were sound; and then assigned a breach of the undertaking. The defendant demurred specially to the declaration for misjoinder of counts in assumpsit and case; averring that the first and second of the new counts were in case. The demurrer was overruled.</p> <p>The defendant’s bill of sale to Garvin for Delia and her two children was produced, dated the 2d January, 1840, for the consideration of $1,200.</p> <p>Evidence of the defendant’s promises and representations, at the time of making the contract and before, was objected to; but admitted to maintain the charge of fraud in the fourth count of the declaration.</p> <p>It was proved that the wives of Garvin and of Hix, sisters of the defendant, acquired from their deceased father a tract of land. It was put up at public sale, when Garvin and the defendant were present; but not sold. Defendant made a private contract with Hix for the purchase of his wife’s moiety for $1,200. Defendant, at the same time, offered to purchase from Garvin, his wife’s share. Garvin was intemperate, and, when in liquor, was easily persuaded to do any thing. He and the defendant had not, for some time previous, been on good terms. Garvin and his wife were invited by the defendant to spend the day with him; and the trade was made the day they went. Garvin went about 10 o’clock. Liquor was put out, and he continued drinking through the day, while he and defendant were talking about the trade. It was not certain that defendant did inform Garvin, that Delia was sick. .When her sickness was adverted to, defendant said she had been sick, but was well, having been discharged by the physician. Garvin and his wife went to see the woman. They found her confined to her house and complaining. The evidence was contradictory respecting the soberness of Gar-vin at this time, and his capacity to judge of Delia’s ailments. On their return to the house, a conversation between Garvin and the defendant was over-heard, in which defendant said to Garvin, “ you shall lose nothing by it.” Defendant after-wards denied having said so. After a short time, he admitted to the witness that he had said so; but said he referred to another transaction. The witness was not satisfied with the explanation. After dinner, Garvin proposed to Cohen to take the negroes in payment of land which he, (G.) had bought from Cohen. I lohen replied, he did not want negroes, at any rate, not sick negroes. On this, Garvin renewed to defendant the objection that the negroes were unsound. Defendant said “ Garvin, did you ever lose anything by me?” Garvin replied “ No,” and added, “ I will trade.” Cohen advised Garvin not to trade for the negroes; but if he would, not to do so that day. This advice was given, because Garvin was not in a situation to make a bargain. Defendant offered to keep the negroes, and said if Delia died, Garvin should lose nothing by it. — The bill of sale was executed late in the afternoon, when Garvin was intoxicated. The negroes remained in the possession of defendant until Delia died — about three weeks after the sale. Speakig of her illness, the defendant said to a witness, if she died, he supposed he would have to make it good. The conveyance of the land, in payment of the slaves, was made the 16th January, and the renunciation of inheritance was dated the 22d January; though Garvin’s widow testified it was executed eight days after the deed. Delia was 40 to 45 years old; one child, eight years and the other sixteen months at the time of the trade. Several witnesses thought, if the whole were appraised at $1,200, the price of Delia should be set down at' half. Only one witness, the brother of defendant, spoke pf the value of the negroes severally, and he thought Delia worth $300; the elder child $400; and the younger $250. Mr. Cohen said, if Delia were a likely woman, the family, in 1840, might have been worth $1,200; it being his impression, that ne-groes then sold high.</p> <p>The jury were instructed that the plaintiff could recover only on the fourth count in the declaration; that the bill of sale prevented a recovery on the evidence of ah express parol warranty; and Garvin’s knowledge of Delia’s illness prevented a recovery on an implied warranty. But that if the plaintiff had established fraud in the contract of sale, that would annul the contract; and would make void the deed by which the contract was executed; and that the plaintiff might, in that case, recover on an express or implied agreement of the defendant to warrant the soundness of the negroes. On the question of fraud, the evidence was fully brought to their view ; and especially the execution of the conveyance and release of inheritance, in a manner of which it was not supposed the defendant could complain. They were told, if the fraud was established to their satisfaction, to find for the plaintiff the value of Delia, with interest from the day of sale. They found for the plaintiff $900.</p> <p>The defendant moved to reverse the decision of his Honor on the question made by the special demurrer.</p> <p>And also for a new trial, on the following grounds, viz:</p> <p>1st. Because his Honor admitted parol evidence, contrary to the principles of law laid down by the Appeal Court in this case.</p> <p>2d. Because the 4th count, (on which alone the plaintiff could recover, if at all,) is not supported, but is contradicted by the proof.</p> <p>3d. Because his Honor charged the jury, that if they believed the defendant was guilty of a fraud, they should find s for the plaintiff. Whereas, it is respectfully submitted that the jury should have been confined to the charge of fraud, as set forth in the fourth count, which was not sustained by the evidence.</p> <p>4. Because his Honor (it is respectfully submitted,) should have instructed the jury that the execution of the bill of sale (without warranty,) and the execution of the deed for the land fourteen days after the trade, and the relinquishment of inheritance twenty days after the trade, were sufficient facts to rebut the presumption of fraud arising from the plaintiff’s proof.</p> <p>6. Because the verdict was contrary to evidence.</p> <p>6th. Because the verdict was contrary to law.</p> <p> Copy of the Declaration. </p> <p>South Carolina, ^ to wit : Barnwell Dist. $</p> <p>1st. Richard C. Ashe was attached to answer to Isaac A* Wood, administrator of all and singular the goods and chattels, rights and credits that were of Edward K. Garvin, deceased, who departed this life intestate, in a plea of trespass on the case, and so forth, and whereupon the said Isaac, by Owens, his attorney, complains for that whereas heretofore, to wit, on the second day of January, in the year of our Lord one thousand eight hundred and forty, (and in the life time of the said Edward K.,) at Barnwell, in the district and State aforesaid, in consideration that the said Edward would, at the special instance and request of the said Richard, buy of the said Richard three certain negro slaves, to wit, Delia ahd her two children, Susannah and Hannah, at and for a large price or sum of money, to wit, the price or sum of twelve hundred dollars, to be paid by the said Edward to him the said Richard, for the same, he, the said Richard, upon himself did assume, and to the said Edward then and. there faithfully promised, that the said negro slaves were sound; and the said. Isaac, as administrator, in fact says that his intestate, the said Edward, confiding in the promise and assumption of the said Richard so by him made as aforesaid, afterwards, to wit: on the day, in the year, and at the place aforesaid, the said Edward, at the special instance and request of the said Richard, did buy of the said Richard the said negro slaves, at and for the said price or sum of twelve hundred dollars, and then and there paid the said sum of money for the samé. Yet the said Richard, not regarding his promises and assumptions so by him made as aforesaid, but contriving and fraudulently intending to injure the said Edward in this behalf, did not regard his promise and assumption so by him made as aforesaid, but craftily and subtlely deceived- said Edward in this, that the said negro slave Delia, at the time of the making of , the said promise and assumption of the said Richard, was not sound, but, on the contrary thereof, was unsound — that is to say, diseased of and laboring under a fever, whereby the said slave Delia then and there became and was of no value to the said Edward and the said Edward was then and there put to great charges and expense in and about doctoring and nursing the said slave; and of which said disease the said slave afterwards, on the day of , in the year aforesaid, and in the life time of the said Edward, died.</p> <p>2d. And whereas also afterwards, to wit, on the day, in the year, and at the place first aforesaid, in consideration that the said Edward, at the like special instance and request of the said Richard, would buy of him, the said Richard, three certain negro slaves, to wit, Delia and her two children, Susan-nah and Hannah, at and for a certain price or sum of money, to wit, the price of twelve hundred dollars, to be paid by him the said Edward, he, the said Richard, upon himself assumed and to the said Edward then and there faithfully promised that the said last mentioned slaves were sound ; and the said Isaac, administrator as aforesaid, avers that the said Edward, confiding in the last mentioned promise and assumption of the said Richard, did afterwards, to wit, on the second day of January, in the year of our Lord one thousand eight hundred and forty, at Barnwell, aforesaid, buy the said last mentioned slaves of the said Richard, and then and there paid him for the same the said sum of twelve hundred dollars. Nevertheless the said Richard, contriving and fraudulently intending to injure the said Edward, did not perform or regard his said last mentioned promise and assumption so by him made as aforesaid, but craftily and subtlely deceived and defrauded the said Edward in this, to wit, that the said slave Delia, at the time of the making of the said last mentioned promise and assumption by the said Richard, was not sound, but on the contrary thereof, was at that time unsound, whereby the said last mentioned slave was of no use or value to the said Edward, and became and was of no use or value to him, and he, the said Edward, was then and there put to great charges and expense in and about doctoring the said slave, and of which unsoundness the said last mentioned slave, Delia, afterwards, to wit, on the day of , in the year aforesaid, and in the life time of the said Edward, died at Barnwell aforesaid, to the damage of the said Isaac as administrator aforesaid, two thousand dollars, and therefore he brings suit, and so forth. And the said Isaac produces here in Court his letters of administration in the form aforesaid, the date whereof is the day of March, in the year of our Lord one thousand eight hundred and forty-five.</p> <p>3d. And the said Isaac A. Wood, administrator, as aforesaid, by his attorney aforesaid, further complains for that whereas also, the said Edward Garvin, afterwards, in his life time, to wit: on the second day of January, in the year our Lord one thousand eight hundred and forty, at the place aforesaid, at the special instance and request of the said Richard 0., bargained with the said Richard to buy from him, the said Richard, three other negro slaves of him, the said Richard, to wit: the said slaves, Delia and her two children, Susannah and Hannah, at and for a certain sum of money, to wit: the sum of twelve hundred dollars, to be therefor paid by the said Edward to the said Richard. And the said slave, Delia, being, at the time of said bargain and sale, unsound and diseased, the said Richard then and there faithfully promised to the said Edward, that if he, the said Edward, would then and there buy of him, the said Richard, the said slave, Delia, and her children, that in consideration thereof, of the price or sum of money to be paid for the said slaves, by the said Edward to the said Richard, he, the said Richard, would well and truly warrant and defend the said Edward against the effects and danger of the said disease and unsoundness of the said slave, Delia. And the said Edward, confiding and trusting in the promise of the said Richard, agreed and bargained with the said Richard, that if he, the said Richard, would well and truly perform his promises aforesaid, and keep the said slave, Delia, in the possession of him, the said Richard, until she, the said slave, Delia, had recovered entirely from the aforesaid disease and unsoundness, that he, the said Edward, would well and truly pay him, the said Richard, the said sum of twelve hundred dollars. And the said Edward confiding as aforesaid in the promises and assurances of the said Richard, afterwards, to wit: in the life time of the said Edward, to wit: on the day, and in the year, and at the place aforesaid, paid to the said Richard the said last mentioned sum of twelve hundred dollars. And the said Edward, after the bargain and sale aforesaid, in accordance with the aforesaid agreement of the said Richard, placed and permitted the said slave, Delia, to remain in the possession of the said Richard, and the said slave, Delia, having become more diseased and unsound, and the said Edward seeing the said slave, Delia, was of no value from the effects of the disease aforesaid, requested the said Richard to give and secure him, the said Edward, in the warranty and defence of the said disease, as he, the said Richard, had promised as aforesaid. But the said Richard, his promise, in form aforesaid made, in no wise regarding, but contriving to deceive and defraud the said Edward, in his life time, utterly refused to warrant and defend the said Edward against the disease and unsoundness aforesaid of the said slave, Delia; and the said slave, Delia, on the day of , in the year aforesaid, from the disease and unsoundness aforesaid, died. By means where- ; of, the said Edward, in his life time, afterwards, to wit: on the day, in the year, and at the place aforesaid, sustained damage to a large amount, to wit: to the amount of two thousand dollars. And the said Isaac, administrator as aforesaid, avers that afterwards, in the life time of the said Edward, to wit: on the day, and in the year, and at the place aforesaid, he, the said Richard, in consideration of the premises, then and there undertook, and faithfully promised the said Edward to pay to him the amount of damage by him, the said Edward, so sustained as aforesaid, to wit: the said sum of two thousand dollars, when he, the said Richard, should be thereunto afterwards requested.</p> <p>4th. And the said Isaac A. Wood, administrator as aforesaid, by his attorney aforesaid, further complains for that whereas also, the said Edward K. Garvin afterwards, in his life time, to wit: on the second day of January, 1840, at the place aforesaid, at the special instance and request of the said Richard C. Ashe, bargained with the said Richard to buy from him, the said Richard, three other negro slaves, to wit: the slaves Delia and her children, Susannah and Hannah, at and for a certain sum of money, to wit: the sum of twelve hundred dollars, to be therefor paid by the said Edward to the said Richard. And the said Edward being then and there in a state of intoxication, from the use of ardent spirits, and being bereft of his power of judgment and natural discrimination, and the said Richard, though well knowing the said last mentioned Delia to be unsound and worthless, by then and there falsely and fraudulently representing and warranting the said last mentioned slaves to be sound, then and there induced the said Edward to buy, and then and there sold to him the said last mentioned slaves, for the said sum of twelve hundred dollars, to be paid by the said Edward to the said Richard ; and the said Edward, confiding in and deceived and beguiled by the said last mentioned warranty of the said Richard, afterwards, in the life time of the said Edward, to wit: on the day, in the year, and at the place last aforesaid, paid the said last mentioned sum of twelve hundred dollars, to the said Richard, whereas, in fact, the said slave, Delia, last mentioned, at the time of the making of the said warranty and sale of the said slaves last mentioned, was not sound, but on the contrary thereof was then and there unsound and of no value, and in con sequence of such, she, the slave, Delia, last mentioned, afterwards, to wit: on the day of , in the year aforesaid, at the place aforesaid, died; by means whereof the said Edward, in his life time, afterwards, to wit: on the day, in the year and at the place aforesaid, sustained damage to a large amount, to wit: to the amount of two thousand dollars. And the said Isaac, administrator as aforesaid, avers that afterwards, in the life time of the said Edward, to wit: v on the day, in the year, and at the place aforesaid, he, the said Richard, in consideration of the premises, then and there undertook, and faithfully promised the said Edward to pay to him the amount of damage by him, the said Edward, so sustained as aforesaid, to wit: the said sum of two thousand dollars, when he, the said Richard, should be thereunto af-terwards requested.</p> <p>,5th. And whereas also, the said defendant afterwards, to wit: on the day, in the year, and at the place aforesaid, was indebted to the said Edward, in his life time, in the further sum of twelve hundred dollars, for so much money, by the said Richard, before that time, had and received to and for the use of the said Edward, and at his special instance and request, and being so indebted, he, the said defendant, in consideration thereof, afterwards, to wit: on the day, in the year, and at the place last aforesaid, undertook and then and there faithfully promised the said Edward, in his life time, the said last mentioned sum of money, when he, the said defendant, should be thereunto afterwards requested.</p> <p>Yet the said Richard, not regarding his promises and undertaking, did not pay the several sums of money demanded in the three counts last mentioned, or any of them, or any part thereof, to the said Edward, in his life time, though often requested; nor hath he, the said Richard, since the death' of the said Edward, paid the same, or any part thereof, to the plaintiff, administrator as aforesaid, but so to do, hath hitherto wholly neglected and refused, wherefore the said plaintiff saith he is injured and hath sustained damages to the amount of two thousand dollars, and therefore he brings suit, and so forth,</p> <p>OWENS, Plaintiff’s Attorney.</p>

<p>Before O’Neall, J. at Newberry — April, Extra Term, 1848,</p> <p>This was an issue made up under an order of the Court, and by consent of parties, to ascertain eertain facts necessary to the decision of a rule against the ex-sheriff, John P. Kinard.</p> <p>The first question was whether the defendant, Kinard, was a creditor prior to the dates of the respective mortgages to the plaintiffs ? The second was — if he was a subsequent creditor, then had he notice, before his debt arose, of the mortgages? . ’</p> <p>About the first question, there seemed no doubt that the defendant was a subsequent creditor to the mortgages; the jury found accordingly, and there is no appeal on that question, and hence it is not necessary to report minutely the facts in reference to it.</p> <p>The mortgages to the plaintiffs bore date, tíie first, 9th 1845; second, 15th July, 1845. They Averejecorded in the Secretary of State’s office, but not in the Register’s 0f[\ce_ at Newberry.</p> <p>The defendant, with a man of the name of James Gaunt, was the security of Nicholas Sligh, in the contract for the purchase of a tract of land, the property of Mrs. Harriet Swann. The contract bore date 17th December, 1844. It stipulated, that as the title to the land had to be made under the authority of the Court of Equity, the purchaser, Nicholas Sligh, should, on titles being made, enter into bond and security for the payment of the purchase money, $3,000, with interest from the 1st of January, 1845.</p> <p>As a means of protecting him from the liability which he, Kinard, was then under, and was to incur, by becoming one of Sligh’s securities, Nicholas Sligh made a note to the defendant, dated the 25th of February, 1846, but it probably was made on the day on which the cozrfession was made; it bore date the 26th, the judgment was signed the 27th, and from .the testimony, it seemed very probable that the defendant, Sligh, confessed judgment on that day, and that the confession was dated back one day, and the note one day still further back. On the next day, the 28th, the defendant, Kinard, Gaunt and Sligh, executed their bond for the purchase money, $3,000, and interest, to Henry Summer, trustee for Mrs. Harriet Swann. Titles were made, and in some way secured to Kinard, for the indemnity of himself and Gaunt. The land has been sold for $1,800. At the same time, Sligh assigned to Kinard his interest in his father’s estate, from which some sums had been received. It was spoken of by Sligh, as being worth probably 800 or $1000. Nicholas Sligh was put on the stand to prove notice, but after some hesitation^ and after admitting he had told the plaintiffs, and their attorneys, that he gave notice to Kinard, of the plaintiffs’s mortgages, said he did not; but that he told him of a mortgage to Wm. McMorris.</p> <p>William Welch proved, that he met with Kinard, and asked him how he came on about* securing himself with Sligh. He said, he could get him to do nothing, and that Gaunt, his surety, was so inert he would do nothing. This witness said, he told Kinard it was useless to trouble himself further than to secure the land, for which he was surety, as all the balance of Sligh’s property was covered by mortgages to the plaintiffs. He said he would go to the Clerk’s (the Register’s) office, and examine. He did so; returned and said he asked no odds of the mortgages, they were not on record. This witness said, that this conversation was before the confession to Kinard.</p> <p>David Boozer, (to whom the plaintiffs were liable, as Sligh’s securities, and to indemnify them on that account, one of the mortgages was executed; the other was executed to indemnify them, as sureties, in a bond executed by Sligh to the Commissioner in Equity, as committee of some one,) was examined, and proved that oh his return from the Springs, he met with Kinard, who was joking him about his expertness in saving himself; and witness then told him about the mortgages, (this was after the confession.) Kinard replied, that he disregarded the mortgages. The witness said he told Kinard, that he knew all about the mortgages to the plaintiffs. He would not answer it. He said the mortgages were executed in the Commissioner’s office, and were notorious in the village where Kinard resided.</p> <p>The questions were submitted to the Jury. They were told, in reference to the Act of 1843, that the question, what would be notice, had not been decided. That under oúr previous recording laws, it had been held, that notice must foe explicit, and to be so, it must be as full as if the deed had been spread on the record. The_circuit Judge told the jury that that decision required more than he would have required had it not been so decided. His own notion would have been, that whatever was sufficient to put the party on the enquiry would be sufficient. But he told them, the law was decided, in Tate v. Crawford, that the notice must be explicit, and equal to spreading the deed on the record.</p> <p>They were told to examine Welch’s and Boozer’s testimony, with that of Sligh, and if they were satisfied from them, and especially Welch’s, that Kinard knew of the existence and contents of the mortgages, that then they might find notice.</p> <p>The jury found that Kinard was a creditor subsequent to the mortgages, but that he had notice of the same, before the debt arose.</p> <p>The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds, to wit:</p> <p>1, Because his Honor erred in charging the jury, that it was not neeessary that the same explicit notice which had heretofore been held to be necessary to invalidate a deed for want of recording, should be proved under the Act of 1843, requiring mortgages to be recorded in the office of the Register of Mesne Conveyances, to allow subsequent creditors to avail themselves of the benefit of said Act against unrecorded mortgages.</p> <p>2. Because his Honor erred in charging the jury, that the conversation between the witness Welch, (who was a mere stranger to the parties,) and defendant Kinard, if they believed it, was before the judgment was taken by Kinard from Sligh, was a sufficient notice of the plaintiffs’s mortgage to Kinard, to deprive him of the benefit of the Act of 1843, although nothing was said by Welch to show the time when the mortgage was given, the amount to be secured, or anything else, so as to give Kinard sufficient information as to the mortgage, to answer in place of recording; and that although the defendant Kinard, went immediate to the Register's office, and found that no mortgage was recorded, and so informed witness, that it could not be so; when nothing further was said by witness, to show that the mortgage was in existence, but not on record.</p> <p>3. Because his Honor should have instructed the jury that the notice required by the Act of 1843, which would stand in the place of recording, should be such as would furnish to the subsequent creditors, certain and correct information, not only of the existence of the mortgage, but of the time when given, as well as the debt secured by it, in some reliable manner, and not such as might be gathered from a casual conversation with a stranger, such as was held between Kinard and the witness Welch.</p>

Before Evans, J. at Darlington — Bpring Term, 1848. It appeared that the plaintifF was the overseer of defendant, for the year 1845. There was a written contract, by which it was stipulated that Boone was to govern the negroes by ly¿e>s direction, and with humanity and kindness.

Before O’Neall,- j.- at Newberry, Spring Term, 1848. This was an action of assumpsit, brought on a note of hand made to the plaintiff’s intestate by the defendant for $600, with interest from the 1st January, 1846, due and payable 1st. January, 1847. The consideration of the note was a negro woman, Clarissa, who was warranted to be sound. The bill of sale was dated the 18th day of August, 1845.

Before EvaNS, J. at Richland — Fall Term, 1847. This was an action on the case, to recover the value of a negro man named John Howell, who was hired by the plaintiff to the defendants, and died of wounds received whilst in their service. As the case depends on’ the evidence, it is stated in full. R. Kelso. —In May, 1846, the defendants had on hire, four negroes, (all carpenters,) belonging to the plaintiff. Jno. Howell was one of them.

<p>Before O’Neall, J. at Barnwell, Fall Term, 1847.</p> <p>The special verdict, with the order of judgment for the defendant, is all the report necessary in this case.</p> <p> >Special Verdict. </p> <p>We of the jury find, That the land in dispute was the estate of the wife of the plaintiff; that on the 12th of February, 1835 — she then being the wife of one Higgenbottom, joined her said husband in the conveyance of the said land to one Mary Carr, by a deed regularly executed. That more than seven days thereafter, to wit, on the 24th day of February, 1835, she went before one George W. Collins, acting as justice of the quorum of Barnwell district, and in apt and proper words, relinquished her right of inheritance. Higgenbot-tom, the husband, afterwards died, but before his death, the said deed and relinquishment of inheritance were recorded in the office of the Register of Mesne Conveyances for Barn-well district, where the land lies. We further find, that Geo. W. Collins, (before whom the said relinquishment of inheritance was executed,) was appointed a justice of the quo-' rum for Barnwell district, by a joint resolution of the Senate and House of Representatives of this State, on the 16th of' December, 1830 — that he qualified on the 10th of March, 1831 — that he was re-appointed on the 17th December, 1834, but did not qualify. He was again appointed, 18th December, 1835, and qualified 7th March, 1836. We further find, that the said George W. Collins acted as a justice of the quorum for Barnwell district, from 1831 to 1837, the time of his death; and that he acted as such, in February, 1835, in another instance besides the execution of this relinquishment. If the Court should be of opinion, that the said relinquishment is invalid, then we find for the plaintiffs the land in dispute, and five dollars damages. But if the Court should be of opinion that the said relinquishment is not invalid, then we find for the defendant.</p> <p>Henry Holman, Foreman.</p> <p>October 30th, 1847.</p> <p> Order of Court. </p> <p>On hearing this verdict, it is ordered, that the Postea be delivered to the defendant.</p> <p>John Belton O’Neall.</p> <p>30th Oct., 1847.</p> <p>The plaintiffs moved to reverse his Honor’s decision, (ordering the Postea to be delivered to the defendant,) on the following grounds, viz:</p> <p>1st. That the renunciation of inheritance of the feme covert, (which was the only obstacle to the plaintiffs’s recovery,) was utterly null and void, because it was executed before a private individual, and not before a justice of the quorum.</p> <p>2. Because his Honor’s decision is contrary to law. '</p>

Before Evans, J. at Columbia, Fall Term, 1847. This was a sum pro. on a penal bond. The facts were these. A landlord, in Columbia, issued a warrant of distress against his tenant, Sarah Russ. The warrant was directed to and placed in the hands of the plaintiff Bofil, as his bailiff, who was also one of the town constables. Bofil levied the distress on sundry chattels of Mrs. Buss.

Before Evans, J. at Chesterfield, Spring Term, 1848. This was an action of trespass to try title. The land was sold as the property of defendant, and purchased by plaintifF. The land was described in the declaration as bounded on the North by Thomson’s Creek. In this particular there was a variance between the proof and the allegation.

Before O’Neall, J. at Orangeburg, Fall Term, 1847. In these cases the plaintiffs claimed, by actions of trover, to recover the value of several slaves in the possession of the defendants. The defendants are the executors of Edward Thomas, and are jointly possessed of some of the slaves, in that way. They are also sons of the said Edward, and have each of them by gift from him, one of the slaves, in their respective possession.

Before Richarson, J. at York, Spring Term, 1848. Indictment for illicit trading with Dick, the slave of-Bird.

Before Frost, J. at Edgefield — March Term, 1848. TRESPASS TO TRY TITLES. The plaintiff claimed under a deed of conveyance from the Ordinary of Edgefield district, dated 7th July, 1845. The land had been sold by the sheriff, for partition among the heirs of George Horn, under an order made in the Court of Ordinary, in June, 1845.

Before Withers, J. Sumter, Spring Term, 1848, REPORT OF THE CIRCUIT JUDGE. This was an action of trespass to try title, and the complaint in the grounds of appeal has relation to the mesne conveyances offered by the plaintiffs as links in their chain of title; and also to the location of the land claimed as established by the jury.

Before ON ball, J. at Lexington, Bpring Term, 1848. This was an action of trespass to try titles. Both parties claimed and derived titles from Saul Simons. Two tracts of land of 150 acres each, were granted in ’67 and ’68, to Archibald Dunbar. They lie north of Saluda, and resting on it, and running out adjoining each other from it. The defendant’s deed clearly covered the wholé of the grant of ’68.

<p>Land of the defendant in execution, apparently a part of the tract levied on by the sheriff, which did not increase it beyond the number of acres specified, and of which no exception was made at the sale — was held, to have been properly conveyed by the sheriff’s deed which included it within die tract described by specific boundaries.</p> <p>The description of land which seems certain, and without ambiguity, for any thing appearing on the face of the deed, is not rendered uncertain by extrinsic facts.</p> <p>Where land is designated with certainty, by definite boundaries, the further description of it as “ the land on which defendant resided,” is merely incidental and may be rejected.</p> <p>Parol evidence is not admissible to contradict descriptions in a deed, which are certain.</p> <p>When a person purchases land by metes and bounds, said to contain a certain number of acres, more or less, he is entitled to all the land within the limits, whatever the number of acres may be. Yide Peaifs ex’trs. v. Briggs, 2 Mills C. R. 98.</p> <p>2 Mill C. R. 98.</p> <p>1 Plowd. 191, & Com. Dig. E. 4.</p> <p>3 ggg01 1</p>

Before Withers, J. at York — Fall Term, 1847. Held: and so directed, that the verdicts should be indorsed on the declaration.

Before- O’Neall, J. at Laurens, Spring Term, 1848» The defendant was indicted for an assault on Israel Holt. The Solicitor at first gave evidence of an assault in the morning ; after the examination and cross examination of the prosecutor as to that, he recalled him to prove another assault. He was allowed to go on and prove-an assault, in the evening : and then, on motion of the defendant’s counsel, he was compelled to elect on which he would rest the case for the State.

Before O’Neall, J. at Laurens, Spring Term, 1848. This wa,s a sum pro in trover for the recovery of some hogs. The defendant is the trustee of Charles Ellison Mims, ana defended this case in his right. Jemima Mims, the wife of Charles Ellison Mims, was offered by the plaintiff as a witness, and excluded. The circuit Judge thought the case was to be regarded as brought against the husband, and hence the wife co.uld not be a witness.

<p>Before O’Neall, J. at Spartanburg, September, Extra Term, 1848.</p> <p>This was an action of trespass to try titles :</p> <p>The plaintiff was in actual possession of the tract of land on which the defendant had entered, cleared, and cultivated the fields constituting the trespass.</p> <p>In the adduction of his title, the plaintiff gave in evidence the following deed from Jesse Maberry, to him, dated 22d December, 1832, to wit: “ Know all men by these presents, that I, Jesse Maberry, for and in consideration of the natural love and affection I have and bear to my daughter Nancy Maberry, have bargained, sold and given, and by these presents, do bargain, sell and give unto my said daughter Nancy, one negro woman, named Sucky, and her child William, and one feather bed and furniture, to be held and enjoyed by her during her natural life, and in case of her decease without issue, with remainder to the children and heirs of Harmon A. Johnson, by his wife Susan, to be held and enjoyed by them in equal moieties forever; and I do hereby constitute and appoint the said Harmon A. Johnson a trustee for the person and property of my said daughter Nancy, with legal powers to cary into effect the purposes of this deed; and Ido hereby rent and lease unto the said Harmon A. Johnson one hundred acres where he now lives, for the unexpired term of the general lease, which I hold, in trust for the use,be7iefit and behoof of my said daughter Nancy during her life time, and to the said heirs of Harmon A. Johnson, after her death." The land thus leased, was half of a tract of land leased by the trustees of the Wadsworthville Poor School for 99 or 999 years: the defendant’s land was the other half of the same.</p> <p>There was no doubt that the land in dispute was clearly within the limits of the plaintiff’s deed.</p> <p>Nancy Maberry, the cestui que trust for life, has been dead for several years.</p> <p>Since this suit, the defendant bought from three of the children of Harmon A. Johnson their interests in the land. How many other children the plaintiff has, did not appear. The defendant moved for a non-suit, on the grounds:</p> <p>1st. That the deed recited, did not vest such an estate in the plaintiff, as enabled him to maintain this action.</p> <p>2d. That the use, on the death of Nancy Maberry, was executed in the children of the plaintiff, and that they alone could maintain an action of trespass to try titles. The motion was overruled. The Circuit Judge said, “ the interest conveyed is a chattel real — to that the statute of uses never applied, and therefore the legal estate is in the plaintiff, as trustee, even if the cestui que trusts in remainder were certain or determinate persons ; but it seems to me, until Mrs. Johnson be dead, it cannot be said who are the heirs of Harmon A. Johnson, by her. This uncertainty also prevents the execution of the trust. The deed, it seems to me, is a perfectly good lease to Harmon A. Johnson, and conveys to hitn clearly the legal interest in the premises for the unexpired term. The possession, too, was prima facie enough. Until defeated by a paramount title, it entitled him to recover.” The jury were told, according to these views, the plaintiff was entitled to recover the whole damages, and that the deeds from his children could not prevent it. In Equity alone could their rights be noticed. Independent of that, without a plea puis darrein continuance, they could not be noticed. The jury found for the plaintiff, the land and f>50 damages. The defendant appealed, on the annexed grounds.</p> <p>The defendant renewed bis application for a non-suit before the Court of Appeals, on the grounds taken below.</p>

<p>It is not a valid objection to an indictmentfor an escape, that the defendant', who although not formally appointed and qualified as a constable, had assumed to actas such, was charged therein with negligence as a lawful constable.</p> <p>In an indictment for an escape, it is sufficient to set out that the prisoner did escape ; and this may be expressed by other words besides exivit ad largwm.</p> <p>4 T. R. 366.</p> <p>McBee v. Hoke, 2 Spears, 143.</p> <p>1 Mill C. R. 463.</p>

<p>Before Fitos'í, J. at Barnwell —Extra Term, July, 1848.</p> <p>This was an action of slander. The declaration set out a suit in assumpsit, before J. W. Muse, a magistrate, in which George Y. Patrick was plaintiff, and one Thompson defendant, to recover an account for $4 50; in which the dispute was, whether the amount was $4 or 4 50, and the plaintiff was- sworn to prove his demand; and that the defendant, referring to the oath taken by the plaintiff in the said suit, had published of the plaintiff the slanderous words. “You swore to a lie for half a dollar, and I believe I can prove it on the hill.” The dispute in the magistrate’s Court concerned the price of a bonnet, which Patrick’s wife had made for Thompson’s wife; the former swearing that it was $2 50, and the latter affirming that it was $2.</p> <p>It appeared in evidence, that the plaintiff and defendant met at Lowry’s turn out, and settling for some bacon the defendant had bought of the plaintiff, when a dispute arose about the weight, and the defendant charged the plaintiff with keeping false weights and measures. The plaintiff retorted on the defendant very gross abuse; and in the excitement of the quarrel, the defendant made the charge which is the subject of the action. A committee of the church, of which both parties were members, undertook to adjust the difference. Before this committee each party made his statement, and it was decided that the defendant should, in writing, retract what he had said. When a written retraction was offered for his signature, he refused to sign it, because, he said to the member of the committe who offered it, he could prove what he had said, if Thompson would adhere to what he had told the defendant. At the trial before the magistrate, he understood, from both parties, that the agreement for the bonnet had been made between their wives. No witness was offered; and the oath was tendered to Thompson, who declined to take it, because his information was only derived from his wife. The plaintiff then took the oath, that “the account was just and true, and no part paid, to the best of his knowledge and belief.” Mrs. Wessenger and Mrs, Thompson were permitted to testify that Mrs. Patrick had agreed to make the bonnet for two dollars. Evidence that the plaintiff had admitted that the price was two dollars, was excluded; because the direct effect of such evidence would be to prove the plaintiff guilty of perjury. But the evidence of Wessenger and Thompson was admitted, because it only showed grounds of suspicion, which might mitigate, though not justify, the imputation made against the plaintiff by the defendant. When the defendant made the, slanderous charge against the plaintiff, he called on Thompson to prove it; but he declined. Simons, and other witnesses, understood the charge to relate to the oath about the bonnet: not from any prefatory explanation by the defendant which might so apply the words, but from previous information of the dispute about the bonnet, and the defendant calling Thompson to prove what he said.</p> <p>The objections made by the defendant’s grounds of appeal were taken at the trial, on a motion for non-suit; and were overruled.</p> <p>Both parties appealed.</p> <p> Defendant's Grounds of Appeal. </p> <p>On motion for a non-suit.</p> <p>1st. Because, in the case of Patrick v. Thompson, tried before Esquire Muse, (in which the plaintiff was sworn, and in regard to which swearing, the alledged imputation is said to have been made,) the said plaintiff was a voluntary witness, and being such, peijury could not be assigned on the oath so taken, even if false.</p> <p>2d. Because the words as laid in the declaration are not actionable per se, and to make them such it should have appeared, either by the words themselves, or by a colloquium, that they had reference to a judicial proceeding.</p> <p>3d. Because there was only one witness who understood the allusion of the defendant, and his opinion was not formed by any thing that was said on the occasion of the uttering of the words, but on what he had previously heard from another.</p> <p>4th. Because, under the circumstances of the case, Esquire Muse had no authority to swear Patrick, particularly as there was other evidence of the fact to which Patrick swore, to wit: Mrs. Thompson, to whom the oath should have been tendered, as she was the real contractor.</p> <p>5th. Because the case of Patrick v. Thompson, tried before Esquire Muse, and in which the said Patrick was sworn, is stated in the declaration to have been an action of assumpsit] whereas, it is submitted that the magistrate can entertain properly but one kind of action, whether the same is on bond, note or open account.</p> <p>6th. Because, from the evidence of Esquire Muse and Mrs. Thompson, it was clear that Patrick, in his action against Thompson, swore onl y from the representations of his wife, and therefore, even if his oath had been untrue, perjury could not be assigned.</p> <p>7th. Because the oath taken by the plaintiff on the trial of his suit against Patrick before the magistrate Muse is alleged in the declaration to have been taken' “upon the Holy ; Gospel of God,” whereas it appeared distinctly by the evidence that the oath was not taken in such form, but with up-lifted hand.</p> <p>The plaintiff appealed, and moved for a new trial.</p> <p>1. Because his Honor erred in admitting the testimony of Mrs. Wessinger and Mrs. Thompson to prove that the account for fifty cents (in swearing to the justness of which the plaintiff had been charged with perjury) was not due — whereas, such testimony went directly to justify the charge, and was not admissible under the general issne.</p> <p>2. Because even if such testimony was admissible, and if not worthless, his Honor should have charged the jury that it could not avail the defendant, who it was plain did not, when he made the charge, rely on the testimony of Mrs. Wessinger and Mrs. Thompson, but after making the charge on his own authority, called up John Thompson to prove it. Indeed the very facts and circumstances which defendant now alleges as having induced him to made the charge of perjury, ought to have satisfied him before he made the charge, that the -plaintiff was mistaken and not foresworn, if these facts and circumstances existed.</p> <p>3. Because the damages were utterly inadequate — more especially as the defendant not only re-affirmed the odious charge in the most deliberate manner, by refusing to sign the paper drawn up in accordance with the decision of the Church Committee, but by the whole character and spirit of his defence endeavoured to blast the character of the plaintiff.</p> <p> Declaration. </p> <p>“And whereas also before the speaking of the several false, scandalous, malicious and defamatory words by the said defendant, Moses, of and concerning the said plaintiff George Y, in the first and second counts hereinafter mentioned, (a certain action of assumpsit was tried before G. W. Muse, Esquire, a magistrate of the said district, at the residence of the said G. W. Muse, in the district aforesaid, on or about the eleventh day of October, in the year of our Lord one thousand eight hundred and forty three, wherein the said plaintiff Geo. x. was the sole plaintiff, and one Jonathan O. Thompson the sole defendant,) and in which said action, before the speaking and publishing of the said scandalous words, to wit: On the day and year last mentioned, the said George Y. was duly sworn as a witness by the said magistrate, and did take his corporal oath upon the Holy Gospel of God, before the said magistrate, he the said magistrate, then and there having sufficient and competent power and authority to administer an oath to the said George Y.,in that behalf, and the said George Y. being so sworn, and having so taken his corporal oath, was then and there examined, and did give his evidence as a witness in the said suit, at the residence of G. W. Muse aforesaid, on the day and year aforesaid, and did swear on his oath aforesaid, as a witness aforesaid in the action aforesaid, to the following effect, that he, the said J. O. Thompson did owe to him, the said George Y., one half dollar more than he the said J. O. Thompson admitted to be due by him the said J. O. Thompson to the said George Y., in the said action, and the said George Y., further saith that the said Moses, well knowing the premises, but greatly envying the happy state and condition of the said George Y., and contriving and intending to injure the said George Y., in his aforesaid good-name, fame and character, and bring him into public scandal, infamy and disgrace, with and amongst all his neighbors and other good and worthy citizens of the said State, to whom he was in any wise known, and to cause it to be suspected and believed by those neighbors and citizens that he the said George Y., had been and was guilty of perjury, and to subject him to the pains and penalties by the laws of the said State, made and provided against and inflicted upon persons guilty thereof, and also to vex, harrass, oppress, impoverish and wholly ruin him, the said George Y., heretofore, to wit: on the seventeenth day of July, 1847, at the 76 mile station on the line of the Rail Road, belonging to the South Carolina Canal and Rail Road Company, in the district aforesaid, in a certain discourse which the said Moses then and there had with the said George Y., “in the presence and hearing of divers good and worthy citizens of the said district, the said Moses, in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke and published of and concerning the said George Y., and of and concerning the said evidence so given by the said George Y. as aforesaid,” in the action aforesaid, the false, scandalous, malicious and defamatory words following, that is to say : You (meaning the said George Y.) sxoore to a lie for a half dollar, (meaning that the said oath of the said George Y., in the said action in respect to the said half dollar, .was a false oath,) and I can prove it on the hill, (meaning that he could prove it by the said J. 0. Thompson himself.)</p>

Before O’Neall, J. at Spartanburgh, Spring Term, 1848. This was an action of trover, brought to recover the value of two slaves, Phillis and Granville, alleged to be the property of B, J. Crawley, the intestate,' at the time of his death, and converted by the defendant since his death. B. J. Craw- ley disappeared about 1824, and has not been heard of since.

Before Richardson, J. at Sumter, Fall Term, 1848. These were motions made by the defendant in both cases, for leave to enter judgment and issue execution for his costs on the pleas which were found for him, which motions were granted. The facts were as follows — The first case was, debt on a sealed note, to which he pleaded: 1. Non est factum : 2. No assets: 3. Plene administravit.

<p>Before Wardlaw, J. at Edgefield, Fall Term, 1848.</p> <p>In an action of trespass, quare clausum fregit, the jury had rendered a verdict, finding for the plaintiff, five dollars, against each of the eight defendants. The Clerk refused to sign a judgment for the plaintiff’s costs, upon the ground, that the recovery against any single defendant was below J&20 currency. Upon motion made before his Honor Judge Wardlaw, he conceived that the loss of costs was a penalty imposed by the Act of 1747, P. L. 214, for the bringing of an action so frivolous, that the damages, when ascertained, should be found below the sum mentioned, and that if the damages ascertained to have resulted from the injury complained of by an action, should be above that sum, it was immaterial whether those damages should be found against the defendants, jointly, or should be apportioned between them. He accordingly directed the Clerk to sign a single judgment, in which recovery should be awarded against each defendant, for the damages found against him, and against all for the plaintiff’s costs — and a like execution; leaving it to the plaintiff to collect the costs from one, or several, or all, of the defendants, in like manner as he would collect damages, found against them jointly.</p> <p>The defendants appealed from the order, on the ground:</p> <p>That the plaintiff, having recovered a verdict for five dollars, severally, against each defendant, his Honor erred in ordering the Clerk to tax the full costs of the plaintiff against the defendants, to be recovered from only one defendant.</p>

<p>Before Wardlaw, J. at Edgefield, Fall Term, 1848.</p> <p>S’* .. . _ ^ <Bf m “ O ^ $ Cte o EV CD ® « O p-£.p * o ¡3* CD CD i|0^ >-S pi| o rgr3 3 " P Sis' ® '"'a 3 g. H S S § P q* o, i — , O W3'* CD y rrlM¡T,&í 9 S'. w o — C3* ® g' «• OQ a. 2 9 “ £3 » 2. & g S.-*<1 o s £ s-g g G d Cd ó d C-l - ^ S W Ü 'a 3 3 eS -v. n bú CD CD £r Hr §, CD CD CO ^ S’ a cr P» £1 £2. <i 2 CD D p O hí 5 CfQ » £ p —I 03 Qj » g 5 ill CD i-«. SB p'o^ St pb o rO 13"“ PÍ ^ O Pg-” Cfl H H* D- ^ g J 1-a, s^g; g p J""2 GO 1 — 4 ^ 2. o CD CD . d- id1 d © p*cw 3 -. o ^ o' P'S hiuí , h O p Í - Ph O •d rrt - J7 . CO © pH rG r'"2 GO bn ^ o cs g3«p sps m CD W ' CO Hi S3- CD 080 CD S5’ Q O CT P CO G O o ® ,~o T3 s p p g‘</p> <p>** co - J-j. ^ a o CD g. 2 s a.3 H On I S’ S-3 £ 3 d) K a á CD GO CD p§.s gj? P ^ pj <i c<3 on o' P-*r-i ^ Q) - GO 2 r< 7"H ’¿2 *. a l-, a SPO >-1. CO 03 P S. s. benefit of the prison bounds Act. A suggestion was filed by piaiU(;jffS; an(j Upon a trial had at March term, 1847, a verdict was rendered against the applicant, whereby, amongst things, it was found that Simpson had falsely omitted in his schedule, certain moneys and negroes, and had fraudulently removed certain property, to defeat his creditors. — ■ Since the verdict, the plaintiffs had obtained judgment in their action against Simpson, and he, without any other process besides the bail writ, had remained in jail. His jail fees were paid by the plaintiffs until April last, when they refused to pay longer, alleging, in a letter to the sheriff, that Simpson was confined forjan offence against the State, to wit: fraud, of which he had been convicted. A formal demand was made by the jailor, and a refusal made by the plaintiffs in a letter referring to their former letter. The affidavit of Simpson stated that he owned nothing, and was entirely unable to pay the fees; the affidavit of the jailor stated his belief that Simpson was altogether destitute of means to pay.— The grounds taken by the plaintiffs, in answer to the rule, were, amongst others, that the verdict concerning the schedule was conclusive of Simpson’s ability to pay, and that the Act of 1839 does not contemplate any interference by the Court.</p> <p>The Circuit Judge held that before a jailor could discharge a prisoner, or have an order of Court for the discharge of one, under the Act of 1839, he must shew the prisoner’s inability to pay, and there must be a schedule and assignment of the prisoner’s whole estate : that in ordinary cases the affidavit of the prisoner might sufficiently establish his inability, and a schedule to which no objection was made by a plaintiff who had refused to pay on demand, would be deemed satisfactory; but that here the verdict was operative to shew the prisoner’s ability to a certain extent at a certain time; and although subsequent changes proved, might remove the presumptions arising from the verdict, the affidavits exhibited were insufficient for that purpose; that although the sheriff or jailor was entitled to the direction of the Court, an order for discharge could not be made without a schedule and assignment, and the plaintiffs must be permitted to contest, if they will, the schedule offered : if the schedule of the prisoner should contain the property found by the verdict, then he would not appear to be unable to pay, and if his schedule should not contain that property, then (as the case was presented by the verdict on one side, and the affidavits on the other,) the schedule would not be such as the Act requires.</p> <p>From his Honor’s refusal of the motion, an appeal was taken, on the grounds:</p> <p>1st. Because the plaintiffs, in this case, having refused to pay the jail fees of defendant, and it having appeared, by affidavits, that the defendant was unable to pay the same, he was, therefore, in law, entitled to his discharge.</p> <p>2d. Because his Honor erred in deciding that the defendant, under the facts of this case, was not, in law, entitled to his discharge.</p> <p>3d. Because a debtor, convicted of fraud, is not a prisoner of the State, as alleged by the plaintiffs, and whenever it appears that he is unable to pay his jail expenses, and his creditor refuses to pay the same, he is, in law, entitled to his discharge, notwithstanding such conviction.</p>

Before Richardson-, J. at Abbeville — Fall Term, 1847. Addison F. Posey, the executor of the will of Martha Po-sey, deceased, was required to prove the will in solemn form in the Court of Ordinary. It appeared on said trial, that Martha Posey, when she signed the paper produced for probate, was a minor, between eighteen and nineteen years of age. The Ordinary held that a minor of this age could make a will of personalty, and decreed for the validity of the will.

Before WITHERS, J. at Sumter, Spring Term, 1848. The action was debt on an account stated. Mathew James wag; jQ ^jg trustee of an estate in which the plaintiff was interested, and the accounts between James, trustee, and those interested in the estate were adjusted, and a decree pronounced in the Court of Equity.

<p>Before Wardlaw, J. at. Abbeville, Spring Term, 1848.</p> <p>This was a sum. pro. brought to recover the balance due on three small notes under seal. The plaintiff having proved the defendant’s handwriting, the defendant’s attorney brought to the notice of the Court the fact, that in copying the notes in the process, the plaintiff’s attorney had omitted the date of one of them, and that without that one the case would be below the jurisdiction of the Court; and moved for a non-suit.</p> <p>Upon motion of the plaintiff’s attorney, the Circuit Judge permitted him to amend the process, by inserting the date, upon condition that the case should be continued; and so refused the defendant’s motion, and marked the case continued.</p> <p>The defendant appealed from the decision of the Circuit Judge, and moved the Court of Appeals to reverse the same :</p> <p>1. Because he erred in refusing the motion for a non-suit.</p> <p>2. Because he erred in granting plaintiff leave to amend his process — the sum sued for, apart from the note the date of which was not endorsed on the process, being below the jurisdiction of the Court.</p> <p>3. Because the decision was, in other respects, contrary to law and evidence.</p>

<p>Before Richardson, J. at Sumter, Fall Term, 1848.</p> <p>Sum. pro. on special agreement. The process states that the plaintiff, being a constable, levied, under a domestic attachment, issued against one J. H. June, on a grey mare, the property of June; and “ that the defendant, in consideration that your petitioner would deliver the said grey mare into the possession of the said J. H. June, agreed with and promised to your petitioner that he, the defendant, would immediately sign, make and enter into a bond that the said grey mare should be delivered by the said June to your petitioner on the next day,” &c.; that the plaintiff, confiding in said promise, “permitted June to resume his possession of the marethat June has since absconded with the mare, and defendant has not performed his promise, <fcc.</p> <p>Testimony for plaintiff. W. J. Gibson was the magistrate who issued the attachment. Plaintiff, defendant and June came to him with the mare; defendant agreed, if plaintiff would give up mare to June, he would sign a bond for the return of the mare, by June, to plaintiff, on next day; June took possession of mare, and defendant refused to sign the bond; witness wrote two bonds — neither of which would defendant sign. Witness then indorsed on the attachment, as follows : “ I, Thos. T. Touchberry, agree to stand security for the appearance of the above named grey mare, to be delivered to S. S. Tindal to-morrow, or pay the amount of sixty-seven dollars 47 cents, and all costs that may occur on this attachment, this 6th September, 1847.” Defendant sat down and commenced signing this instrument — put to it the two first initials of his name, “ T. T.” and then refused to complete the execution; finally refused to sign any instrument. Mare was worth $>40 or $50. June has since absconded with her.</p> <p>J. S. Tindal. Plaintiff took the mare in his lot; June got on her, and they went to his store.</p> <p>Charles Jones. Was at Tindal’s store when plaintiff came with the mare ; June got on her, plaintiff holding the bridle; defendant said let him have her, and he would sign a bond to indemnify. Then plaintiff gave up the mare. Defend-_ant was drinking — not very drunk.</p> <p>On the attachment was indorsed a levy of the mare, dated 6th September, 1847. ■</p> <p>The defendant moved for a non-suit, on the ground that the contract, as alleged arid proved, was within the 4th section of the statute of frauds.</p> <p>The Circuit Judge overruled the motion, and decreed for the plaintiff $40.</p> <p>The defendant renewed, in the Court of Appeals, his motion for a non-suit, on the ground taken below.</p>

<p>Before O’Neall, J. at Union, Fall Term, 1848.</p> <p>This was an action of debt on a note, under seal, for $1,603 47-100, dated 24th March, 1837, executed by Daniel Thomas and the defendant, due and payable one day after date.</p> <p>The defence was usury and payment. The defendant contended, according to the testimony of Col. Thomas, that this note was given for $400, paid to sheriff Johnson, and several small debts,' and 18 per cent interest. The plaintiff contended that the note was given in satisfaction of the cases, Lewis N. Shelton v. Thomas and Ashby ; Wm. Rice v. Daniel Thomas; John McClure v. Daniel Thomas. The date of the note corresponded with the receipts given in satisfaction of those cases. The aggregate of those cases was $1,741 47; the note, being for $1,603 47-100, was $148 less than the same. It appeared from the examination of sheriff Johnson, that he did let the plaintiff have a note of about $400 on Col. Thomas.</p> <p>Thomas proved that in addition to the two first credits on the note, viz: $250, 28th April, 1839; $188 50,28th August,1 1841 j he had delivered to the plaintiff a note of L. B. Jeter for $1,250, of which $700 was to be applied to the note now in suit: this was in 1837, after the note in suit was given.— He proved that, 13th September, 1842, he let the plaintiff have a note on Stevenson for $700, due in 1844, which was to be applied in payment of this note; afterwards, he said, the plaintiff applied it to a note of $400, and the balance, after reducing it to cash, was credited on this note, 13th September, 1842, $101 49.</p> <p>It appeared, by the testimony of L. B. Jeter, that Colonel Thomas had his note for $1,100, with interest from the date, February, 1837; and that he traded it to the plaintiff, as Thomas told him, in payment of money which he owed the plaintiff, and a little execution. The witness paid his note to plaintiff in June, 1838.</p> <p>If Col. Thomas’s testimony was entitled to credit, it was clear, beyond all doubt, that the note was usurious ; and that it had been paid. The plaintiff swore sheriff Johnson, ex-sheriff McBeth, (who was one of the jurors trying the case,) the Clerk, Mr. Keenan, and Gen. Gadbury : they all concurred in saying that Col. Thomas was a man of bad character, and unworthy of belief.</p> <p>The defendant offered to prove that it was the usage of the plaintiff to charge usurious interest. The Circuit Judge thought such proof was no more admissible, than would be an offer on the trial of an indictment for larceny, to prove that it was the habit of the prisoner to steal: or, on the trial of an action of slander, that it was the usage of the defendant to speak ill of all of whom he had occasion to speak.</p> <p>The case was submitted to the jury, with very favorable instructions for the defendant. For his Honor told the jury that, from his knowledge of Col. Thomas, and his early associations with him in public life, he should be slow to believe that he would swear falsely. Still he told them that they knew him as well as he did, and so did the respectable gentlemen who had testified against him, and that they had the right to disbelieve him if they chose. He thought it probable that, after the lapse of so many years, he had forgotten how the debt arose, and that he had, by mistake, stated it wrong. He thought that it was most likely that the note was given in satisfaction of the judgments, herein before spoken of. Taking that to be the case, he thought the jury might very well conclude, that the forbearance was on an usurious consideration. If that were the case, and they should be satisfied that the credits on the note were the only payments, the verdict ought to be for $1,063 56, the balance of the principal sum, without interest and costs. If, however, they disbelieved Thomas, then they ought to find for the plaintiff, the balance of his debt and interest; which they did.</p> <p>The defendant appealed, and moved the Court of Appeals for a hew trial, on the grounds :</p> <p>1. Because the plaintiff, well knowing he intended to impeach or attack the character of the defendant’s principal witness, which was not done on the former trial, permitted his principal witness to impeach the defendant’s witness, to remain on the jury ; which gave the plaintiff an unfair and illegal advantage.</p> <p>2. Because the pleas of payment and usury, were fully sustained by the evidence offered.</p> <p>3. Because the Court rejected the evidence offered, by the defendant, to prove the usage, habits and custom of the plaintiff, as to the rate of interest at which he lent money.</p> <p>4. Because the witnesses called to impeach the character of defendant’s witness, did not speak from general character of the witness impeached, but only spoke of and from their individual opinions, when they said they would not believe that witness.</p> <p>5. Because the verdict is for more than is due.</p> <p>6. Because, under all the circumstances of the case, there should be a new trial, as the verdict is contrary to law and evidence.</p>

<p>Unless something appears to constitute the case an exception to the general rule, that the principal is liable for the costs of his surety, the principal is, on that ground, an incompetent witness on the part of his surety in his defence against their common creditor.</p> <p>Beiiv. Bos-575-C’ Trelaw-nyv. Thomas, I H.Blac. 306.</p> <p>3 McO. 7i. p. 62.</p> <p>14 East, 565. p.405</p> <p>2 McCord, 459.</p> <p>ia5¡ Law Lib. vól.40.</p> <p>5 gsp Rep_ 171.</p> <p>20 Eng. C. L. Rep.</p> <p>19 Eng. c. L. Rep. 338. p. 504.</p> <p>26Eng. c. L. 591,</p> <p>p.3i8ofthe 10the<j^mer'</p> <p>note‘, 1</p> <p>g McCord, 459.</p>

<p>The action of trespass to try title cannot be sustained on a sheriff’s deed bearing date subsequent to the commencement of the action, although the sale had been made previous to that period.</p> <p>In the action of trespass to try title, as well as in other actions, the question always is, had the plaintiff a cause of action when the suit was commenced'?</p> <p>jjojmegTRio. Master^ X Rich- Eq. R. 340‘</p> <p>x Rich E R 340. ’</p> <p>7 Stat. 232.</p> <p>9th vol. MS. Deeis. 117. 3 Rich. 27.</p>

<p>The exemption of certain articles from “levy and sale," in all cases of debt, provided for by the 4th section of the Act of 1823, entitled “ An Act to prohibit sheriffs and their deputies from purchasing executions lodged in their offices, and for other purposes” — held to cover every sale by operation of law, which, directly or indirectly, is necessary for the payment of a party’s debts.</p> <p>Acts of 18-23 p. 50. ’</p> <p>P. L. 493.</p> <p>4 McC. 378.</p>

<p>Before Wardlaw, J. at Abbeville, March Term, 1848.</p> <p>1st. case. Sum. Pro. — Decree for plaintiff for $35 75 c., pronounced March 20, 1848, Monday.</p> <p>2d. case. Issue Docket — Assumpsit.—Yerdict for defendant, 22d March, 1848, Wednesday.</p> <p>Assignment of the decree, in the first named case, to H. A. Jones, dated 21st March, made 22d March, after the verdict in the second case was rendered — held not to interfere with those rights of the parties, (as they stood at the time of the assignment,) which the Court notices in the exercise of its general jurisdiction over ils suitors.</p> <p>On'motion of Perrin and Tilman, attorneys for Mr. Dim-can, the Circuit Judge ordered that the sum of thirty-five dollars and seventy-five cents, decreed to the plaintiff in the first case, or so much thereof as may be necessary, be set off against the costs in the second case: and that according as the balance may be against or for the plaintiff, proceedings on the decree above mentioned, be stayed in whole or in part, as to the said sum of thirty-five dollars and seventy-five cents.</p> <p>The plaintiff, on behalf of the assignee, in the case first above stated, appealed from the above order, and moved the Court of Appeals to set it aside, on the ground :</p> <p>That no set-off could be made, inasmuch as the decree, when obtained, was the chose in action of the plaintiff, which could not be set off against costs, which belong to the officers of Court.</p>

<p>Before O’Neall, J. at Pickens, Spring Term, 1848.</p> <p>These were actions of assumpsit. The female plaintiffs were the daughters of Nathaniel Gordon, formerly of Union district, lately of Pickens district.</p> <p>Soon after the death of his wife, in March, 1832, he contemplated breaking up house-keeping, and purposed to live with the defendant. Richard Gordon, an older son, proved that he had determined, after making a crop conjointly with his son, he would, in the fall, sell his share of that, with his horses, cattle, hogs, sheep and a small wagon, and divide the proceeds between these two daughters. That, accordingly, in the fall, he was making preparations to carry out this purpose, when his son, the defendant, objected to it, and proposed that he would take the property, half of the crop, (80 barrels of corn,) two horses, the small wagon, the stock of cattle, hogs and sheep, valued at $412, and pay these plaintiffs, (his daughters,) each $200, at the death of his and their father, the said Nathaniel Gordon. The said Nathaniel accepted his proposition, and delivered to the defendant the property, and he (the defendant) promised to pay to each of his sisters, the plaintiffs, at the death of the said Nathaniel, the sum of $200.</p> <p>The witness said his father gave it to him in charge to see that this contract was performed. He proved that the defendant had repeatedly admitted it to him, and that he had actually paid to Mrs. Scott a mule colt and cow, of the value of $38, in part of the sum coming to her. Nathaniel Gordon died 19th October, 1843. Three other witnesses, Jesse James, Mary Scott and David James, proved promises, on the part of the defendant, in 1844, the next year after the death of his father, to pay the plaintiffs what he owed them.</p> <p>In the course of the defendant’s defence, he gave in evidence a receipt, signed by Nathaniel Gordon, and purporting to be in lull to the date, 10th September, 1842. So, also, he gave in evidence his will, by which he disposed of his negro woman, Betty, and his household furniture; and then stated that the balance of his property had been heretofore disposed of. The will was dated 12th April, 1842.</p> <p>There was much other evidence in the case, but the grouuds of appeal don’t make it necessary that it should be more fully stated The actions were commenced 3d September, 1846. The jury were instructed by the Circuit Judge,</p> <p>1st. That the statute of limitations could not avail the defendant, as the cause of action did not accrue until the death of Nathaniel Gordon, 19th October, 1843, and there was less than four years from that time to the commencement of this suit</p> <p>2d. That the agreement being in part executed, by the de-|{ye,y 0p tjjg pr0perty by Nathaniel Gordon, it was not within the statute of frauds, and was therefore not void.</p> <p>3d. That the promise being in favor of the plaintiffs, and to enure to their benefit, the actions were properly brought.</p> <p>4th. The jury were told, if the promises were made to pay the plaintiffs, the receipt of Nathaniel Gordon would not discharge the defendant’s liability; and so, also, his will could not change or divest their rights.</p> <p>The questions of fact were left to the jury. They found for Thompson and Wife $200, and for Scott and wife $162.</p> <p>The defendant appealed, and moved for a new trial, on the grounds:</p> <p>1st. Because the action was barred by the statute of limitation.</p> <p>2d. Because the agreement, on which the action was brought, being verbal, and not to be performed until the death of N. Gordon, which was fifteen years afterwards, was void by the statute of frauds and perjuries.</p> <p>3d. Because the action should have been brought in the ' name of the executors of N. Gordon, and not in the name of the plaintiffs.</p> <p>4th. Because his Honor, the presiding Judge, charged the jury that the receipt of N. Gordon to the defendant was no bar to the demand of the plaintiffs.</p> <p>5th. Because the will of N. Gordon was conclusive as to this pretended arrangement and agreement between the defendant and N. Gordon.</p>

<p>In a deed conveying land, the descriptive part ascertained a whole tract, declared that part of it was claimed by Goode, and specified that the grantor “ only conveys two hundred acresthat he does not convey the part claimed by Goode, but if it should be found that besides the part so claimed, there is more titan two hundred acres, the grantee shall have it: general warranty of the premises added. It was found that Goode’s claim covered all but one hundred and forty-two acres, and the grantee sued in covenant, alleging a warranty of two hundred acres, and a breach by reason of Goode’s claim — AeMthat a proper construction of the deed, disclosed a stipulation that Goode’s claim should not cover more of the tract than the excess over two hundred acres: that there was, in effect, a covenant warranting that quantity, and that the plaintiff was entitled to recover the value of fifty-eight acres. .</p> <p>2 M’C. 440.</p> <p>1 M’C. 584. 2 sPear>68•</p> <p>5 Mass. 355.</p> <p>19 Johns. 97.</p> <p>3d vol. MSS. Columbia, p. 386, 503.</p> <p>Mass. ReP-5 ‘</p> <p>2 M’C. 440.</p> <p>3 MS. decís. C°l* ° '</p> <p>2 M’G'440</p> <p>5 Mass. 355.</p> <p>2 Spears, 68.</p>

<p>A bale of cotton, belonging to the principal, was in the hands of the payee of a joint note of principal and surety, to meet the note; the defendant haying demands against the principal, made a promise to the surety, that if he was allowed to taire the cotton, he would substitute his note for tire joint note: upon this agreement he received the cotton — promise held not to be within the statute of frauds.</p> <p>A promise is taken out of the statute by a new and distinct consideration, co-extensive with it, and moving not to the third person, but to the promisor; not mere loss to the promisee, but gain to the promisor. In effect, it is the purchase of an interest, not amere undertaking to pay the debt of another.</p> <p>Leigh’s N. P, 1030; Wil-liamsv. Lfper.KL. 3 Bur. 186; Thomas v. Williams, 10 Barn, and Cres. 664.</p> <p>1 Saund. 211.</p>

Before Richardson, J. at Sumter, Fall Term, 1848. Ca. Sa. on Sum. Pro. Ca. Sa. on Sum. Pro. Ca. Sa. on Sum. Pro. Ca. Sa. in Assumpt. The defendant obtained rules on H. Skinner, sheriff of Sumter district, and A. J. Moses, the plaintiff, to show cause why the service, by arrest, on each of the above stated cases, should not be set aside, and the prison bounds bonds taken therein delivered up to be cancelled.

<p>A subsequent sheriff has the same power to complete a sale of land, made by a former sheriff, by executing titles for the same, as the former sheriff himself had. A subsequent sheriff may execute titles to land sold by his predecessor in office, either to the actual purchaser, or to his assignee or legal representative.</p> <p>Where a party, to whom a purchaser of land at sheriff’s sale liad ordered the sheriff to execute titles, had died before receiving them, — titles made by a subsequent sheriff to the executor of the deceased, “for the uses and trusts of his will,” were held to be good.</p> <p>6 Stat. 394.</p> <p>5 Stat. 54.</p>

<p>Before Frost, J. at Barnwell, Extra Term, July, 1848.</p> <p>This was an action of trover, to recover three slaves.— The defendant claimed by purchase, at sheriff’s sale, under an execution against one Pardue, in September, 1842. The defendant had paid the purchase money, and it was applied to executions against Pardue.</p> <p>The plaintiff produced evidence of a sale of the negroes in dispute, by Pardue to Williams, in 1839, and a bill of sale from Williams to plaintiff, dated 4th October, 1841. Also, the entry in the sheriff’s sale book, of a-sale of the same ne-groes, under executions against Gideon Pardue, to Williams, the 2d May, 1842. The issue turned on the validity of this sale. Sheriff Harley testified, that possession of the negroes had never been delivered to Williams; but that they remained in his possession, at the Court House, until the resale in September, — that Williams had promised to pay the purchase money, but never did. But it was proved by four witnesses, that the negroes were in Cochran’s possession, between the sale and resale, and the sheriff’s charge, for dieting the slaves, $3 60, showed that he was mistaken.</p> <p>Elzey proved an assignment of the execution of Terry, Commissioner, v. Pardue, to Williams. In February, 1842, Williams had given to witness, as attorney of the party interested in the execution, his note for $500 or $520, in payment. And the witness, in May, 1842. met Williams aud Cochran going to the Court House, and he then gave them his signature to a blank paper, to be filled up, as evidence of the satisfaction of the execution of Terry, Commissioner, v. Pardue, under which the sheriff had made the sale when Williams purchased.</p> <p>Solomon Cochran proved that the week after the sale, Williams and plaintiff went to Barnwell Court House and got the negroes, and Williams delivered them to Cochran, saying to him, “ take them, you have a good title.”. They remained in Cochran’s possession until September, when the sheriff seized and resold them. The witness gave to Harley a written notice, forbidding the sale, but Harley said Williams had ■'bid them off, and had not paid for them, and he would sell them again. Elzey also testified that he had directed a levy under Terry’s execution, in December, 1841, and in January had delivered the execution to Williams, marked “ satisfied,” but that Williams had paid the execution to protect his sale of the negroes to the plaintiff. Mr. James Patterson filled up the signature in blank, with an assignment of Terry’s execution. The date of the assignment had been altered from 1842 to 1841, but that circumstance was not material.</p> <p>The jury were instructed by the Circuit Judge to inquire, first: Whether the sheriff had delivered the slaves unconditionally to Williams. And if he had so delivered them, the sale and transfer was complete, and the sheriff had no authority to reseize them, under the execution in the possession of the plaintiff. And secondly, whether the slaves had been delivered to Williams, under an agreement that he would, at a future time, pay for them. In which case, if Cochran had notice that the price was unpaid, and the delivery conditional only, he should stand in the place of Williams, as a purchaser with notice, and the second sale would be legal. But if Cochran had no notice of a conditional delivery to Williams, he should be protected as a bona fide purchaser, and the defendant acquired no title under the resale in September.</p> <p>The jury found a verdict for the plaintiff, and the defendant appealed, and moved for a new trial.</p> <p>1. Because the first sale, made in May, 1842, was incomplete and ineffectual, by the non-payment of the purchase money, to vest any title to the negroes in question in Williams, who bid them off; and the plaintiff, claiming under Williams, by a previous purchase, could have no better title than Williams himself, by his purchase from Gideon Pardue.</p> <p>2. Because the defendant, Roundtree, had, and showed on the trial, a perfect legal title in himself — in this, that the execution creditors of Pardue had a lien on the negroes, which was extinguished only at the sheriff’s sale, in September, when defendant purchased, and paid the money to the sheriff.</p> <p>3. Because any arrangement or agreement between Harley, as sheriff, and Williams, as purchaser, to wait for the purchase money, was unauthorized and illegal, and could not affect the right of the execution creditors of Pardue to resell; and the title of the purchaser, at the resale, was good and valid against all persons, and especially against Williams and Cochran.</p> <p>4. Because the plaintiff, if he had any cause of action whatever, had his action against Harley, sheriff, and not against the defendant, who claimed the property under the execution creditors of Pardne, as a bona fide purchaser, without notice of any adverse claim.</p> <p>5. Because the execution creditors of Pardue had a right to disavow, and by the resale, in September, did disavow and refuse to ratify and confirm the incomplete and ineifect-ual sale to Williams, in May ; and the plaintiff, Cochran, in the mean time, between the sale and resale, had acquired no better title to the property than he had before the first sale.</p> <p>6. Because the verdict was contrary to law and the evidence of the case.</p>

Before Wardlaw, J. at Abbeville, Spring Term, 1848. The plaintiff, by the name of Mary A. Quarles, in her summary process, set forth that the defendant was indebted to her by a note, under seal, of which a correct copy was given. The note was produced, and the hand-writing proved. The defendant moved for a non-suit, because the note was payable to M. A. Quarles, and it did not appear that the plaintiff was the payee.

<p>The Statute of Limitations can afford no bar to an easement.</p> <p>"Whether a party has abandoned his right to an easement, is a question of fact an<^ intention, proper for the determination of the jury. 10 Mass. 189.</p> <p>3 Camp. 514.</p> <p>10 Pick. 210. p. 81.</p> <p>3d vol. 448.</p> <p>2 McC. 452 River's v. ’ Lawton.</p> <p>2 Wash R 106; Mun.429; ^Mooliv1’ Kowson, io Com. L. R. 216- mvlass ’ 289. 13 Mass. 120; 3 Kent, 448.</p>

Before O’Neall, J. at Greenville. Spring Term, 1848. This was an action of assumpsit on an account: the balance, about which there was no contest if the defence failed, was $182,25. The defence was payment. It seemed that the defendant in a letter addressed to the plaintiffs inclosed $153. This letter was handed by the defendant’s son to J. Simmons, to be delivered by him to the plaintiffs in Hamburg.

Before O’Neall, J. at Barnwell, Fall Term, 1847. Held: and that he might superadd such terms as he did on this occasion.— That he thought the proof was not at all inconsistent with the sheriff’s advertisement, for that did not define the estate intended to be sold.

<p>Before Wardlaw, J. at Edgefield, Fall Term, 1848,</p> <p>This was an issue, somewhat irregular in form, made by consent, for the purpose of trying the rights of the several parties to certain money in the hands of the sheriff of Edge-field district.</p> <p>John Swanson, of Pittsylvania county, Virginia, before October, 1845, had been a manufacturer of Tobacco, and had sent boxes for sale to various consignees in Baltimore, Mobile, Augusta, and other places: of these many had been received and forwarded by the defendant, W. T. Smith, at Lynchburg, Virginia, and some had been consigned to Gould & Bulkley in Augusta.</p> <p>On the 16th day of April, 1845, John Swanson, by a memorandum in writing, which Gould and Bulkley produced, acknowledged that he had that day settled with them concerning previous consignments, and that he had received from them an advance of $400 on 28 boxes which he then consigned to them.</p> <p>In the latter part of September, 1845, John Swanson sent 40 or more boxes to the defendant, with what instructions or under what agreement, did not exactly appear. Before that time, John Swanson had been in good credit; he then had much property and was known to be largely in debt; soon afterwards he became notoriously insolvent.</p> <p>On the 2d day of October, 1845, John Swanson addressed a letter to Gould & Bulkley, saying to them : “ If you have not sold the lot of old tobacco, you may take it at 20 cents. I have sent you some very prime and will send more in a few weeks, worth 25 or 30 cents. On receipt of this please send me a check on New York for $300.” The check was sent. The demand of Gould <fc Bulkley, against John Swanson, which was admitted, consisted of the two advances, $400 and 300, with commissions and interest, reduced by sales of Tobacco, to a balance of $191 30 on 29th January, 1846.</p> <p>John Swanson was indebted to'Jabez Smith, in large sums amounting to $12,000 or more, secured by various bonds, ,to which Henry C. Swanson, J. M. Swanson and Jesse Carter were sureties. A few days before 2d October, John Swanson told Jabez Smith and others, that his wagons were busily employed in hauling Tobacco to Lynchburg to the care of Wm. T. Smith (the defendant) and that he had sent 40 boxes of prime Tobacco to Augusta to Gould <fc Bulkley and O. H. Lee; which declarations he repeated at the making of the trust deed below mentioned.</p> <p>On the 2d of October, 1845, a trust-deed (as it was called) was executed by John Swanson to James A. Mitchell, in trust for the three sureties aforesaid — being in form an Indenture between John Swanson of the first part, J. A. Mitchell of the second part, and the sureties aforesaid of the third part: whereby John Swánson, reciting his indebtedness to' Jabez Smith and the suretyship of the parties of the third part, sells and delivers to James A. Mitchell “ all the manufactured Tobacco I now have on hand at my manufactory, and all the leaf Tobacco and stems at the manufactory,” all the Tobacco in the hands of Grigg of Pittsylvania, certain factors of Baltimore, Columbus, &c., Gould & Bulkley and O. H. Lee in Augusta, and “ all other manufactured Tobacco in Yirg'inia not specified abovein trust, &c. with power for the trustee to sell and pay, <fcc.</p> <p>This trust-deed was recorded in Pittsylvania county, 3d Oct., in Lynchburg, 7th Oct., in Richmond, 9th Oct., and in Baltimore 10th October, 1845.</p> <p>Samuel J. Jones was a receiving and forwarding agent at Richmond. Virginia, who did not know John Swanson nor anything of the state of accounts between him and the defendant, W. T. Smith, and who had for five months previous to the first of October, 1845, been occasionally receiving Swanson’s Tobacco from the defendant. On 6th Oct. 1845 he shipped on board a schooner, bound for Charleston, 40 boxes of Tobacco, which had, about the first of October, been received from the defendant with instructions. These boxes were, when received, marked John Swanson’s best A A, (which letters were supposed to denote the superior quality.) According to instruction they were forwarded to the Railroad Agent at Charleston, and he, by letter from Jones, was directed to forward 21 boxes to Gould & Bulkley at Augusta, and 19 boxes to O. H. Lee at Augusta. .The bill of lading, signed by the master of the schooner, was in this form: shipped by Jones, on board, etc. 40 boxes, marked “ John Swanson, A A,” to be delivered to the Agent of the R. R. in Charleston ; of this two copies were taken by Jones, one of them he sent to the R. R. Agent, and the other he sent to the defendant, W. T. Smith, who produced it.</p> <p>About the 6th Oct. the defendant was at Richmond, and said he was in pursuit of the Tobacco, and that he had not heard of the trust-deed before 5th of October. Soon after ’the shipment, Jones had a letter from J. A. Mitchell, the trustee.</p> <p>On 19th day of October the boxes reached the R. R. depot in Hamburg, and on the 20th Oct. they were seized by the ■ sheriff, under two writs of attachment sued out that day by W. T. Smith against John Swanson. In Nov. 1845, the 40 boxes were sold by the sheriff, under an order obtained in the attachment cases, for $950 87 nett.</p> <p>In Nov. 1847, W. T. Smith recovered judgments in his suits by attachment — one on a note by John Swanson, to Coffee or order ■ the other on an account of which every thing was admitted tobe true that appeared on its face. This account was in this form. John Swanson Dr. to W. T. Smith. 1845, Jan. 30, Balance of account rendered besides notes $ July 19, Sundries per bill $ August Sundries per bill $ (and so on) Cr. sales of Tobacco f> Balance due on 30 Sept. 1845, $783 16.</p> <p>All parties, confirming the sale, agreed to contend for the proceeds, and this issue was so framed that recovery against the attaching creditor, W. T. Smith, might be had if either or both of the plaintiffs (James A. Mitchell, trustee, and Gould & Bulkley) could show against him a right to any or all of the Tobacco.</p> <p>A certified copy of certain clauses of a registry Act of Virginia, passed 24th Feb. 1819, was produced. By this Act a certain time is allowed for recording a mortgage or a trust-deed of personal property, and it is enacted that such a paper shall not have effect until it be registered in the county where the property to be affected by it may remain. In reference to this statute, opinions of various counsellors in Virginia were read — most of which had been obtained by their exam- . ination under commission, and the case of Lane v. Mason, and other cases from Virginia Reports were cited.</p> <p>Gould & Bulkley contended that, as consignees, they were entitled to have payment of the balance due to them for advances.</p> <p>J. A. Mitchell contended that, by the delivery of the trust-deed to him, he acquired rights to the Tobacco, which, in Virginia, would have been perfected by his recording the deed in any county there, while the Tobacco was in that county, and which, in South Carolina, where such recording was not required, must, in reference to property rightfully brought within the jurisdiction of our Courts, be considered complete without recording.</p> <p>W. T. Smith contended that Gould &. Bulkley never had any actual possession of the Tobacco, nor any constructive possession by means of a bill of lading or otherwise, and so could have no lien : that the trust-deed did not convey the Tobacco in Virginia, for it was never recorded in any county^ there whilst the Tobacco was in that county, or even before it came into that county, and that the removal of the property to South Carolina could not make effectual a disposition of it which was insufficient where the parties resided, and the act of disposition was executed: and even if the trust-deed was here complete, that as factor, William T. Smith had a right to retain the Tobacco for payment of a general balance due to him.</p> <p>The plaintiff replied that the defendant had not shown a balance due to him as factor, and that he had so parted with the possession as to have retained no lien.</p> <p>Leaving the facts to the jury, the Circuit Judge held that without actual or constructive possession, neither consignee nor factor can have a lien: that the trust-deed, although inchoate in Virginia, was complete here, and conveyed to the trustee whatever rights John Swanson had in the Tobacco, so soon as it came into this State, unless it appeared that the contract contained in the deed was to be executed only in Virginia, or that the removal was contrary to the intention of the parties to the deed: that if his account showed a balance due to him as factor, and he had possession of the Tobacco, Wm. T. Smith could retain for payment of that balance ; but if he had parted with the possession by forwarding it, he had lost his lien, and had no right to stop it in transitu.</p> <p>The jury found for J. A. Mitchell, trustee, $950 87.</p> <p>The defendant appealed from the verdict, on the following grounds:</p> <p>1st. Because the defendant was legal owner of the Tobacco, and had the right to the money arising from the sale.</p> <p>2nd. Because the defendant, being the factor of John Swanson, the manufacturer of the Tobacco, and being in the legal possession of the same, on the 2d Oct. 1845, had a clear right to retain the amount of the general balance due him by said Swanson.</p> <p>3rd. Because the deed of trust of 2d Oct. 1845, from John Swanson to James A. Mitchell, not having been recorded in any county of Virginia, wherein the Tobacco was at the time of recording, was void under the registry Act of that State, offered in evidence, and his Honor erred in charging the jury that the said deed was good between the parties in the State of Virginia, although the Tobacco remained in that State for some days after the execution of the deed.</p> <p>4th. Because his Honor erred in charging the jury that the said trust-deed was good in South Carolina, against the attachment of defendant, and against his claim as factor of Swanson.</p> <p>5th. Because his Honor erred in allowing the declarations of John Swanson to be given in evidence by the plaintiff.</p> <p>6 th. Because the verdict was against the law and of evidence the case.</p> <p> Copy of the 11th and 12th Sections of the Registry Act of Virginia, entitled, </p> <p>AN ACT to reduce into one Act the several Acts for regulating conveyances, and concerning wrongful alienations; passed February the twenty-fourth, eighteen hundred and nineteen.</p> <p>SectioN 11. Every deed respecting the title of personal chattels, hereafter executed, which, by law, ought to be recorded, shall be recorded in the Court of that county or corporation in which such property shall remain: and if, after-wards, the person claiming title under such deed, shall permit any other person, in whose possession such property may be, to remove with the same or any part thereof, out of the county or corporation in which such deed shall be recorded, and shall not, within twelve months after such removal, cause the deed aforesaid to be certified to the Court of that county or corporation into which such other person shall so have removed, and to be delivered to the Clerk, to be there recorded, such deed, for so long as it shall not be recorded in such last mentioned county or corporation Court, and for so much of the property aforesaid as shall have been so removed. shall be void in law, as to all purchasers thereof for valuable consideration without notice, and as to all creditors.</p> <p>Section 12. Every conveyance, covenant, agreement, and other deed in this Act mentioned, except deeds of trust and mortgages, which shall be acknowledged, proved or certified according to law, and delivered to the Clerk of the proper Court, to be recorded, within eight months after the sealing and delivery thereof, shall take effect and be valid as to all persons from the time of such sealing and delivery ; but all deeds of trust and mortgages, whensoever they shall be delivered to the Clerk to be recorded, and all other conveyances, covenants, agreements and deeds, which shall not be acknowledged, proved or certified, and delivered to the Clerk of the proper Court, to be recorded, within eight months after the sealing and delivery thereof, shall take effect and be valid as to all subsequent purchasers for valuable consideration without notice, and as to all creditors, from the time when such deed of trust or mortgage, or such other conveyance, covenant, agreement or deed, shall have been so acknowledged, proved or certified, and delivered to the Clerk of the proper Court, to be recorded, and from that time only.</p>

<p>Before Richardson, J. at Columbia, Fall Term, 1848.</p> <p>J- Blakely subscribed $500 to tbe stock of the Charlotte and South Carolina Rail Road Company. The subscription paper was headed thus: “We, the undersigned, agree to subscribe the respective amounts attached to our names, in the stock of the Charlotte and South Carolina Rail Road, provided the said road comes to Columbia.</p> <p>Jonathan M. Blakely, ... $500.”</p> <p>The first count charged that the defendant was indebted to the plaintiffs in the sum of $50, being the amount of two instalments, due by him, upon his subscription to the capital stock of the company, whereof the first of $25 was due upon the opening of the books, on 27th March, 1847, and the second, of the like sum of $25, was called for by the President and Directors of the company, and required to be paid on or before the 1st June, 1848.</p> <p>The second count charges that the defendant is indebted to the plaintiffs in the sum of $50, due to them upon his agreement to subscribe to the capital stock of the company $500, whereof two instalments of $25 each are due, and have been regularly called for.</p> <p>And it is alleged that the plaintiffs have finally laid out their road so as to go to Columbia.</p> <p>In order to try the case upon its merits, the parties agreed upon the following statement of facts, viz :</p> <p>1. That after the Act of Incorporation was passed, but before the company was organized, the defendant signed his name to the subscription paper produced, for the amount therein set down.</p> <p>2. That the defendant did not sign his name in the subscription book which was afterwards opened.</p> <p>3. That the defendant did not pay the first instalment at the time of subscription, nor has he since paid that or the second instalment, although regularly called, upon to do so, by persons regularly authorized by the company.</p> <p>4. That the books were opened on the 27th March, 1847, and the second instalment of $25 was duly called for by the company, to be paid on the 1st June, 1848.</p> <p>5. That the road has been finally laid out to go to Columbia.</p> <p>6. That the paper signed by the defendant, was signed before $300,000 of stock was subscribed.</p> <p>The defendant insisted upon the following grounds of de-fence :</p> <p>That he was not and never had been a stockholder.</p> <p>That he had never been a subscriber under the Act of Incorporation.</p> <p>That the plaintiffs had no legal existence, as a corporation, at the time the proposed contract was made.</p> <p>That the contract was void, for want of sufficient consideration.</p> <p>That the subscription was obtained by misrepresentation and fraud.</p> <p>As the parties expressed their intention to carry the case to the Court of Appeals for final adjudication, the Circuit Judge granted a non-suit after hearing argument on one side only.</p> <p>The plaintiffs moved to set aside the non-suit, upon the ground that the subscription was a valid and binding contract, and that a decree should be made for the plaintiff.</p> <p>The case against Jesse Drafts stood upon precisely the same grounds, and a non-suit was granted, from which the plaintiffs appealed.</p>

<p>Before Evans, J. at Sumter, Fall Term, 1847.</p> <p>These were two Sum. Pros, on, the same note, for twenty dollars and interest, which was given for a horse. The de-fence was, that the horse was unsound on account of blindness. The Court decreed for the plaintiff ten dollars. These cases were tried at some former Court, and the question submitted to the Circuit Judge was, whether the plaintiff was entitled to tax costs on this decree. His Honor ruled as follows : “In the cases of Vaughnv. Cade, and Goodmian ads. Leak,it decided that, when the plaintiff’s demand is reduced by payments, to a sum within the jurisdiction of a Magistrate, the plaintiff is not entitled to costs ; but all the cases recognize the exception, that when the amount of the demand is reduced by a discount below the jurisdiction of the Court, the plaintiff shall still have his costs, because this is a cross action. In the case under consideration, the de-fence was a partial failure of consideration; which could only be allowed as a discount; and although it may be there was no notice of discount, yet it must have been under the belief that there was, that the Court allowed the defence, and I am of opinion the plaintiff is entitled to his costs. The Court must look to the real case as made. In Vaughn v. Cade, there was.a notice of discount, but the Court did not regard that circumstance, as the case made was one of payment and not of discount.”</p> <p>The defendants moved the Court of Appeals to reverse the decision of his Honor, on the following grounds:</p> <p>1. Because the Court which pronounced the decree for f 10 was without jurisdiction.</p> <p>2. Because the plaintiff having failed to recover more than £20 current money, was not entitled to his costs of suit.</p> <p>8. Because no discount was in fact filed, and in no point of view could discounts have been filed in both cases — -if the horse was sold'to one of the defendants (which the testimony shewed) then the other had no right of cross action — if to both, then neither separately had such right.</p>

Before Richardson, J. at Sumter, Fall Term, 1848. This was an action of debt on bond, given to plaintiff’s intestate by one Wm. H. Bowen and the defendant.

<p>Before Withers, J. at Fairfield, Fall Term, 1847.</p> <p>This was a sum. pro. brought by the plaintiff, to recover damages for the violation of a warranty, alleged to have arisen from an undertaking, by the defendant, to make for the plaintiff the wood works pf a four-horse wagon, of the best quality of material and workmanship; and a first rate two-horse wagon complete. The price for the Avood work of the four-horse Avagon was $>45 ; and the same for the two-horse wagon complete. One witness said an axletree in the four-horse wagon was worm-eaten and rotten, and it cost the plaintiff $3 to substitute another. He did not consider it a very good wagon — it was tolerably rough. The price was enough for a first rate article. Another witness said the small wagon was not a good job; bad iron-work was on it— several parts too light — bands on the hub broke.</p> <p>It appeared that the contract was originally made with one William Nelson, for the wood work of the large wagon — and he having sold out to defendant, the latter undertook the contract. Nelson’s contract was that the work was to be warranted, and such he understood tobe the bargain between plaintiff and defendant.</p> <p>' More than one witness proved that, in the progress of the r work, flour was obtained from plaintiff by defendant, on that account- — and Curry had said, before the work was delivered, he could get the money for it when he pleased — and that he had received some. He got some timber from plaintiff.— Thomas Berry, one of defendant’s witnesses, said that plaintiff paid to him, in February last, $17, upon an order delivered to him, for that sum, by the defendant; and this witness evidently thought payment in full had been made, for he said he did not think Curry had any further demands against Owens.</p> <p>In the putset his Honor referred the case to the jury, and they brought in a verdict for $18, in favor of the plaintiff.</p> <p>At the end of the Court, a motion was made for leave to the defendant to enter up judgment as of non-suit, on account of the amount of the verdict — which was refused.</p> <p>The motion was renewed in the Court of Appeals.</p>

<p>The object of recording is to give notice; therefore where the creditor had notice of a deed, that shall stand in the place of recording.</p> <p>The notice which will stand in the place of recording must be, not necessarily a knowledge of the entire contents of the deed, but an explicit notice of its existence, such as the creditor would have had if the deed had been recorded — notice that a deed conveying the property has been executed, and that the title has passed out of the grantor.</p>

Before O’Neall, J. at Chester, Fall Term, 1848. The defendants, under the first sec. of the Act of 1821, were indicted for harboring a runaway slave, the property of George Kaigler. The slave was named Willis, he was purchased by the prosecutor, Geo. Kaigler of Lexington, from Mr. Cook, of Fairfield, last of November, or first of December, 1846.

Before Wardlaw, J. at Barnwell, Fall Term, 1848. A homicide was committed 29th May last, and by an in- • quest held the next day, by a Magistrate, acting as coroner, the defendant was charged of murder.

Befóte Richardson, J. at Fairfield, Fall Term, 1848. This Was an appeal from the decree of the Ordinary, refusing to allow costs to the appellants, who had been successful parties to a suit in his Court. The Circuit Judge dismissed the appeal, on the ground that there had been no appeal from the decision of the Ordinary, on the merits of the case: and the appellants now moved to reverse that decision.

Before Wardlaw, J. at Edgefield, Fall Term, 1848. Assumpsit on note. — The note on its face seemed to be a joint and several note by Elizabeth Clark, Ellington Clark, and lii. D. Wells, payable to M. D. Wells or bearer. It was admitted that, for valuable consideration, Elizabeth Clark and Ellington Clark had made the note joint and several, and delivered it to M. D. Wells.

Before O’Neall, J. at Chester. Fall Term, 1848. This was an action of trespass, for entering the plaintiff’s house in the night time, and committing many alleged acts of violence. The proof very clearly shewed, that a man of the name of Leroy Davis, had, by pretence of great friendship to the plaintiff, succeeded in obtaining bills of sale of the whole of the plaintiff’s negroes.

Before O’Neall, J. at Laurens, Spring Term, 1848. This was an appeal from the decision of the Ordinary, admitting to probate, in solemn form of law, the last will and testament of Alexander Filson,. deceased. The will appeared to be attested by Dr. William Leak, Dr. M. J. Lockhart, and Milton Pyles. Henry C. Young, Esq. drew the will, which was without date ; it gave the testator’s entire estate to a distant relative, the defendant, whom he had never seen.

Before O’Neall, J. at Laurens, July, extra Term, 1848. This was an issue, made up under an order of the Court of Common Pleas of Laurens district, made at a previous term, to try the validity of an assignment by John E. Williamson to Elisha Williamson, of a large judgment, confessed by Reuben Williamson, in favor of John E. Williamson, for $4, 437 68 cts. ‘with interest from 5th November, 1840, credited 9th December, 1840, with $900, and 1st Oct. 1841, with $81952 cents.

<p>Before Wardlaw, J. at Abbeville, Spring Term, 1848.</p> <p>At the instance of the appellees, proceedings had been had before the Ordinary for proving the will of John Calvert in solemn form: the Ordinary had granted probate of the paper propounded, to the appellees, as executors: the appellants had upon appeal to this Court suggested many grounds of dissatisfaction with the Ordinary’s decision, and this was a trial of the question, as to the proof of the paper as a will, had de novo.</p> <p>The paper propounded purported to bear date 20 August, 1846, and to have been signed by the testator in the presence of Benton W. Stewart, William S. Robinson and Hugh Dickson, who subscribed their names as attesting witnesses “ in the presence of the testator.”</p> <p>It appeared that B. W. Stewart had since the date of the will died in Mexico.</p> <p>William S. Robinson testified as follows:</p> <p>“ I lived near to the testator, and knew him well. He was old and blind; could not hear as well as I do, but still could hear ordinary conversation, and had a good understanding. On the 20 August, 1846, a boy came for me, I don’t know by whom sent: I went in company with Stewart, who was also a neighbor: we found the testator and Mr. Dickson sitting together in an open passage of the testator’s house. The testator recognized Stewart and myself by our voices, and called our names. -Mr. Dickson said that we had been sent for to witness Mr. Calvert’s will — in the testator’s hearing; and told the testator that all was ready. The testator said “ well.” The will Was not then read, nor any thing said of its contents ; but the testator and Mr. Dickson seemed to have been talking about it before we came. The will was laid on a his book, the name “ John Calvert” being already written on mark it. The testator, as I had heard, never could write. The book was laid on the testator’s lap — a pen handed to him, and with his right hand guided by Mr. Dickson, he made a mark at the place where the blank had been left for a mark. The book with the will on it was then laid on a chair about two feet from the testator, and we all signed our names as Witnesses to it upon the chair, Stewart first, then I, and last Dickson. I think that the testator knew what we were doing when we signed — he might have heard the scratching of the pen — but 1 do not recollect that any thing was said during the signing, and I know that the testator, although he might have done so, did not touch me whilst I signed — -I believe he did not touch any of the other witnesses. The testator did not have the will in his hands after he signed it. Mr. Dickson said it was done, and the testator told him to take care of it. Soon afterwards Mr. Dickson went away, taking the will with him, and the testator conversed upon other matters.”</p> <p>Rev, Hugh Dickson, aged and infirm, was examined by commission, and testified in substance as follows:</p> <p>“I was for more than forty years a near neighbor of John Calvert. He died in January, 184T, and was at his death 92 or 93 years old: he was unlettered, but had a firm and vigorous understanding, and was a particularly cautious man who would not act when he did not understand. He had been blind 12 or 14 years before his death, but at the date of the will his mental capacity had undergone no perceptible change.</p> <p>“He sent for mé, and wished me to draw his will — gave me all instructions and desired mé to do all so that it would stand. I prepared the will according to his instructions at my his own house, writing there the name “John Calvert,” because mark I knew that he never could write. I took the will to him, and told him that witnesses were necessary. He mentioned Stewart and Robinson, and had them sent for. I read the will over to him — he seemed to listen attentively, and once or twice stopped me and called for the reading over of one or two sentences: when the reading was done, he expressed his entire satisfaction, and I believe fully understood the contents.</p> <p>“ He recognized Stewart'and Robinson when they came. I said to them in his presence that they were called to witness his will. He was sitting in the passage of his house. A large family Bible was laid on his lap, and I announced that we were about to proceed to the execution of Mr, Calvert’s will. I put the question, do you consider Mr. Calvert capable? The other witnesses answered, yes. Stewart and Robinson stood close to the testator on his right, I on his left. I put a pen into his right hand — he’adjusted it to his fingers. I held his hand and directed it, and he made the mark which is now in the space that had been left blank for a mark. Stewart having been then asked to sign, drew a chair near to the testator, removed the Bible from the testator’s lap to his own, and signed sitting in the chair: Robinson did the same, and then I — so near that the testator must have been aware of what we were doing. Holding the paper, I then asked what should be done with it, and the testator requested me to take charge of it till his death, which I did. Neither the testator nor any of the witnesses spoke during the signing. He did not touch them when they signed, but might easily have done so. He did not have the will in his hand, after it was signed.”</p> <p>, There is a good deal of contradictory testimony concerning the state of the testator’s sense of hearing, and some feeble attempt was made to show his want of capacity, and an undue influence exerted over him. Many points of law were discussed, and instructions as to them all were given to the j«iy-</p> <p>The following were amongst the instructions, and are those which seem to be referred to by the grounds of appeal:</p> <p>By the law, independent of any of the statutes which direct the mode of executing a will, and prior to them all, a testator must be of sufficient capacity, must be free from undue influence, and must fully know the contents of the paper considered his will. On these heads the jury must be satisfied: of the degree of proof which will serve they must judge: no statute or other law requires any prescribed number of witnesses. In proportion as a testator is old and infirm should the testimony be clear of his capacity and self-will: and where no presumption of knowledge can arise from the possession of the paper, or other circumstances which might suffice in ordinary cases, (as none can in the case of a blind man,) it is necessary that knowledge of the contents of the paper should be clearly established by proof of instructions or of reading over. If the jury be satisfied with this proof made by one witness, the law requires nothing more on this head.</p> <p>The signing required by the statutes which direct the 'mode of execution, may be done by making a mark: and it is of no consequence that the testator’s hand was held and guided by another person, if his will concurred and his body1 assisted.</p> <p>A blind man can make a will under the statutes, if sufficient care be observed.</p> <p>The words “in the presence of the testator” are usually, and in reference to ordinary men who can see, defined to mean within his sight, at reasonable •proximity : to cover the case of a blind man, that definition would be extended so as to be within the observation of the senses at reasonable distance. As, however, the will of one who can see is valid, although he may turn his head away whilst the witnesses are subscribing, so, in analogy, the will of a blind man is valid, if he be aware that the witnesses are attesting and subscribing his will, and have the power, at his discretion, by his touch and other senses, to ascertain that they are subscribing the same paper which he signed, although he may notin fact exert his senses when nothing hindered him. The question, then, carefully submitted to the jury, was, whether the witnesses attested and subscribed the will within the reach of the testator’s remaining senses, when he was conscious of what they were doing, and might, if he choose, have ascertained that they were subscribing his will. If nothing hindered him, his refraining from touching them and his will, or other-, wise ascertaining for himself what they were subscribing, did not affect the validity of the will. His Honor did not speak much of the degree of effort which might be required for an ordinary testator to see, or for a blind one to perceive by his remaining senses, and yet the will be good: He spoke of the case where, by mere volition, and an act so easy as reaching out the hand, the testator might have perceived and did not — . and used the common jih rases, do it easily, without effort. He noticed as material, the circumstance that the witnesses did not in any wise withdraw themselves from the observation of the testator, but whether with the purpose of remaining within his reach or not, seemed actually to have done so, whilst they subscribed. He used the term conscious; so also the terms sensible of, aware of: The jury certainly understood that it was necessary for the testator to have known what the witnesses were doing, and to have known that, when he had the ability at any moment he pleased to have touched the will and the witness who was subscribing.</p> <p>The jury found that the paper propounded was the last will and testament of John Calvert.</p> <p>The defendants appealed, and moved the Court of Appeals for a new trial, on the following grounds :</p> <p>1. Because the presiding Judge charged that the testator, though totally blind, was capable of making a will.</p> <p>2. The testator being blind, 93 years of age, and partially deaf, the will should have been read to him in the presence of all the attesting witnesses.</p> <p>3. Because his Honor erred in charging, that in reference to a blind man, the words of the statute, “ attested and subscribed in the presence of the testator,” would be complied with, if the witnesses subscribed the paper “ within reach of the testator’s remaining senses — within the power of his observation — he (the testator) being conscious that they were subscribing” — and that whether in fact he did or did not exert his senses, and by such exertion actually perceive that the witnesses were subscribing,- and within his reach, was immaterial, provided he could, had he made the effort, have done so.</p> <p>4. Because his Honor should have charged that it was not only necessary that the witnesses should subscribe the paper “ within the reach of the testator’s remaining senses, and within the power of his observation”- — but that the testator, by the exertion of his senses, should have known that they were so subscribing and within his reach ; and also by such exertion of his senses, have had actual perception of the act of attestation — otherwise it was done out of his presence.</p> <p>5. Because though the witnesses subscribed the paper within three feet of the testator, and where, had he known the fact, he might, perhaps, if he had pleased, by the sense of touch, have perceived them — yet the testimony was that in fact he did not do so — the attestation was therefore out of his presence.</p> <p>6. Because there was no testimony to show that the testator knew by the exercise of his powers of observation that the witnesses were subscribing the paper within the reach of his senses — nor were the jury instructed to inquire whether he did know it, and if so, by what means.</p> <p>7. Because, from the charge of his Honor, the jury may have regarded it as immaterial whether the testator knew that the attestation took place within three feet of him, or within ten feet of him, provided he was conscious that it was taking place at all.</p> <p>8. Because the word “ conscious,” as used by his Honor in his charge to the jury, was indefinite and equivocal, and may have been understood by them to mean any impression, knowledge, or belief whatever of the testator, whether derived from the exercise of his own senses, or taken upon trust from the assertions of those around him.</p> <p>9. Because, in reference to a blind man, the words of the statute, “ in the presence of,” are not satisfied, unless the testator actually knew by the positive exercise of his perceptive faculties that the witnesses were subscribing the paper with-jn of his senses, where he might, if he pleased, have touched them — and then if from the testimony it appeared that in fact he did not do so, the attestation is out of his presence.</p> <p>10. Because his Honor held that the testator though blind could sign by his mark — his hand being held and guided by another.</p> <p>11. The charge was in other respects erroneous — and the verdict contrary to law and evidence.</p>

<p>Before O’Neall, J. at Fairfield, Fall Term, 1848.</p> <p>The plaintiff, on the 9th January, 1844, levied an execution of James B. Betts v. Thomas Lumpkin, on 859 acres of land in Fairfield district, adjoining lands of M. Baily, Robert Adams, and George S. Peay, as the property of the defendant. It, was sold 5th February following, (sale day,) and purchased by James Cathcart, at and for the sum of $2650. He arranged with Dr. W. L. Pickett, with the knowledge of the plaintiff, to take his bid. On the 1st of April, 1844, Picket paid to the Sheriff $750, but in other respects failed to comply with the defendant’s bid. On the sale day in November, (the 4th,) the successor of the plaintiff, Jeremiah Cockrell, Esq., re-sold the land at the risk of the former purchaser. It was purcased by Pickett for $2000. He not complying with the terms, the sheriff, on sale day in February, 1845, re-sold the land at the risk of the former purchaser, (meaning, as he said, both Pickett and the defendant.) It was purchased by Mr. Mobley for $825, who complied, and to whom the land was conveyed. This action was brought for the loss on the re-sales, $1025. The sales and re-sales were shown by proper entries in the sheriff’s sale' books. Ample opportunity was given to the plaintiff to prove, if he could, that he did not re-sell, at the first sale day after the sale to the defendant, by the direction of the plaintiff in execution ; he, however, failed. His Honor ruled that he had no right to re-sell at the risk of the defendant, at the time when either of the resales were made. Having sold and conveyed the land to another, he could not now recover on the original bid of the defendant.</p> <p>A nonsuit was ordered, which the plaintiff moved to set aside, on the grounds :</p> <p>1st. Because the evidence showed plaintiff was entitled to recover, and the case should have been submitted to the jury.</p> <p>2d. Because the failure by the sheriff, Yongue, to re-sell on the same or succeeding sale day, and the re-sale after that, cannot operate to discharge the defendant from his bid.</p> <p>3d. Because the directions in the Act of 1839, as to the resale, are merely directory to the sheriff, and his failure to pursue them cannot of itself operate to discharge the defendant.</p>

<p>In an action for malicious prosecution want of probable cause cannotbe inferred as a consequence from any degree of malice that may be shown~although the legal inference, prima fade, of malice might be allowed from proof of the want of a probable cause. The action rests confessedly upon the existence of the one, and the non existence of the other, as distinct elements; the bur-then of proof, as to both, being on the plaintiff.</p> <p>The question of what is probable cause, and whether the proof of certain facts establishes the same or not, is for the Court — always so where facts are given. The facts from which the conclusion of law is to be drawn, are to be submitted to the jury whenever they are doubtful or disputed.</p> <p>Per Tíndal, C. J- in Delegal ”^02.’</p> <p>parís v. Wad-dell, i M’Mul. 358-</p> <p>3 B- ira</p>

<p>Before Richardson, J. at Fairfield, Extra Court, July, 1848.</p> <p>This was an action of assumpsit, brought by Alexander W. Yongue against David H. Ruff; tried at an extra Court, held for Fairfield district, in July, 1848, on the following order, to wit:</p> <p>Mr. John Cockrell,</p> <p>Will please to pay A. W. Yongue, Esq. two hundred and thirty-seven 78-100 dollars, and oblige, respectfully, D. H. Ruff.</p> <p>$237 78.</p> <p>The signature, as well as the order itself, was admitted to be in the hand writing of the defendant Ruff.</p> <p>There was no date to the order, and the statute of limitations was pleaded. The action was commenced on the 20th day of March, A. D. 1845. There was no proof of the time when the order was executed.</p> <p>David McDowell, Esq. proved that a settlement had been made in his office, between J. Cockrell and A. W. Yongue, in the early part of the year 1844, when A. W. Yongue presented the order to Jno. Cockrell for payment, and that Cock-rell refused to pay it. The order was afterwards presented by A. W. Yongue to D. H. Ruff for payment, and D. H. Ruff was informed that Cockrell had refused payment. Ruff then refused to pay. There was no proof that either of the parties interested recollected the time or circumstances under which the order was given. There was proof that D. H. Ruff, as executor of Wm. Kincaid’s estate, and also in his own right, had many settlements in the sheriff’s office, and that A. W. Yongue was the sheriff of Fairfield district in 1844, and for some time before.</p> <p>John Cockrell, examined by commission, denied that he had any funds in his hands belonging to D. H. Ruff, individually, when the said order was presented to him for payment, though it appeared that he was indebted to him as executor of the estate of Wm. Kincaid.</p> <p>The defendant moved the Court for a non-suit, on the ground that there was not evidence of notice to defendant, of demand and refusal to pay, according to law. The motion was refused, because there was evidence that ought to go to the jury; and because no notice was necessary, as Cockrell proved that he had no funds of Ruff’s in his hands.</p> <p>The jury were instructed, that if they believed from the evidence that the order was made within four years from the time the action was brought, they ought to find for the plaintiff ; otherwise, to find for defendant.</p> <p>The jury found the amount of the order, from the time it was presented for payment, by the plaintiff, to Cockrell, April 1st, 1844.</p> <p>The defendant moved for a non-suit, on the following grounds:</p> <p>1. Because there was no date to the paper on which the action was founded, and not a particle of proof to shew when it was executed; and the statute of limitations being pleaded, the plaintiff could not recover unless he had shewn by testimony that the paper was executed within four years next preceding the commencement of the action.</p> <p>2. Because the paper on rvhich the action was based, being in the form of an order, or bill of exchange, there should have been a demand upon the drawee, and notice of non-payment to the drawer, within a reasonable time, to entitle the plaintiff to recover.</p> <p>And for a new trial:</p> <p>1. Because there was no testimony on the part of the plaintiff, which could prevent the bar of the statute of limitations.</p> <p>2. Because the evidence was utterly insufficient to warrant the jury in finding for the plaintiff.</p>

<p>Before O’Neall, X at Lancaster-, Fall Term, 1848.</p> <p>This was a sum. pro. to recover the amount-of the de--fendant’s bid for property, sold by the plaintiff, as a constable.</p> <p>It appeared that the. plaintiff had levied ón, and advertised, for sale, property liable to the lien of executions belonging ■to the defendant. . . . ,-</p> <p>The sheriff gave notice to the constable that he would claim that the proceeds of the sale about to be made by him, should be applied to the executions belonging to the defendant. The defendant bought, and insisted that the constable should permit his bid to be credited on the executions belonging to him, issued by the Court of Common Pleas.</p> <p>This he refused to allow, and brought this action.</p> <p>The Court decreed for the defendant.</p> <p>The plaintiff moved the Court of Appeals to reverse the decision of the Circuit Court, on the following grounds:</p> <p>1. Because his Honor erred in holding that the defendant was not bound to pay his bid, inasmuch as the sheriff had given notice to the plaintiff to pay over to him the proceeds of the sale, to be applied to executions in his office, when the property had never been levied on by the sheriff.</p> <p>2. Because the purchase money was never credited on any of those executions.</p>

<p>Before O’Neall, J. at Edgefield, Fall Term, 1847.</p> <p>This was an action of trover for the recovery of the value of a slave named Isaac. There was no doubt that the slave had been the property of Mary Jones, (now deceased,) and that in her life-time she had conveyed him to her son, Joseph P. Jones, the plaintiff’s testator. The main question in the case was, whether she could convey to him. She was the wife of one Perrin Jones : she and her husband died in a few days of one another. They separated in 1819, and lived apart from that time to her death, in 1844. At the time of their separation, she had in her possession the slaves Soo-key and her son Isaac. Over them, as well as the other property which she afterwards acquired, she exercised all the rights and the power of a feme sole. In 1822, or perhaps a little before, at the sale of her father’s estate, she purchased Fortune, and to indemnify Hughes Moss, in being her surety for the purchase money, she executed, on 23d January, 1822, to him, a mortgage of Fortune, Sookey or Susan, and Isaac. This appeared by a copy of the mortgage, taken from the records of the register of mesne conveyances of Edgefield district. Before this was given in evidence, it had been proved by L. B. Cochran, that Hughes Moss, deceased, told him such was the fact. The record of the bill and other proceedings in equity, for the partition of the estate of Thomas Jones, (deceased,) the father of Mary Jones, in the case of Wm. Wash and Wife v. Wm. Jones, Perrin Jones and Mary, his wife — and the cross bill of Wm. Jones v. the complainants and the other parties, were given in evidence. It appeared, that without any order giving leave to answer separately, Mary Jones, on the 11th January, 1824, filed an answer, in which she stated that .she and her husband, Perrin Jones, had separated by mutual consent, and were, then, living apart, and that by articles regularly executed, they had renounced all claims upon the property of each. The commissioner made two reports, one of the 25th of January, the other of the 10th of May, 1825, in one of which, Sookey, the mother of Isaac, was set down as an advancement by Thomas Jones to Mary Jones. In the other the commissioner speaks of the separation between Perrin Jones and Mary Jones, and the execution of articles, and recommends that the property acquired by her, from her father’s estate, should be settled upon her. The report was confirmed by the Court, and an order made, that her share of her father’s estate should be paid to her, independent of the claim of Perrin Jones.— Perrin Jones did not answer, or in any shape interfere with the proceedings in equity. Various recoveries, in the Court of law, for debts against Mary Jones, as a feme sole, were given in evidence. In one of these cases a levy was about being made, and to prevent it, application was made by the defendant, who had married a daughter of Perrin and Mary, Jones, to Perrin Jones for the loan of money; he refused to lend it, until Mr. Mims became the surety. When the deputy sheriff did levy on a negro girl, as the property of Mary Jones,' and told Perrin Jones of it, he asked the deputy why he did not levy on Isaac. He replied that he understood Mary Jones had given Isaac to Joseph P. Jones. Perrin Jones, who was then old and blind, was helped into another house in his yard, where Mary then lived with the defendant, and asked her if she had ever given Isaac to Joe. She said yes. He exclaimed, “ good God, what will the devil do with you ?” The old man, Perrin Jones, frequently spoke of the indebtedness of the old lady, said she would not make her negroes work, and she would have to sell property. He said, too, he was anxious that their respective property should be equally divided among their children ; but he said the old lady would not divide equally; he said she could do as she pleased. It appeared that Joseph had advanced money, and purchased provisions for his mother. A bill of sale, executed by Mary Jones to Joseph P. Jones, of the slave Isaac, dated 24th May, 1838, with another paper covenanting on the part of Joseph P. Jones, that his mother should have the possession of Isaac during her life, and a note for his hire, ($10,) for 1838, were given in evidence. Mr. and Mrs. McClendon proved that Mary Jones lived with them in ’39, and that she had repeatedly told them that Isaac belonged to Joe, and that he was to have him after her death. In the case of Terrey v. Belcher, Perrin Jones was offered as a witness, and on ing objected to on account of his interest in the estate of Thomas Jones, (deceased,) he offered to release all his own interest, but refused to release that of his wife, saying he was bound by bond not to interfere with her property. Mary Jones died 9th July, ’44. Perrin Jones died 29th July, ’44. Joseph P. Jones administered on his father’s estate, and inventoried all of his mother’s property, except Isaac, as his father’s. He died second Monday in October, ’44 : the defendant then administered on Perrin Jones’s estate, and on the 2d December, 1844, sold Isaac for $400.</p> <p>The case made by these facts turned upon the question, whether a deed of separation had been executed by Perrin Jones, giving to his wife thejus disponendi, in her life time, of the property in her possession. This depended upon remote transactions, and was matter of presumption, and hence the declarations of Hughes Moss were received; but after the fact to which they pointed was otherwise most abundantly proved, his declarations became altogether unimportant, and were not at all regarded in the case.</p> <p>The declarations of Mary Jones were received, on the ground that if she were the owner of Isaac, and had the p0wer 0f disposing of him, then they were part of the plain'tiff’s title.</p> <p>The jury were instructed that after a lapse of 25 years, any thing might be presumed which was necessary to give effect to Mary Jones’s title. If they were satisfied that she had, during that time, exercised the jus disponendi, they might presume the execution of a deed giving that power — or that her husband had made her his agent to convey the slave.</p> <p>The jury found for the plaintiff $477.</p> <p>The defendant appealed, on the annexed grounds, for non-suit :</p> <p>Because it appeared manifest, from the plaintiff’s own shewing, that Mary Jones, from whom the plaintiff’s testator derived title to the negro in question, was, at the time she executed the deed, the wife of Perrin Jones, and had no authority, directly nor by implication, to transfer or dispose of the right or title to said negro; and certainly not beyond her supposed life interest.</p> <p>And for new trial, on the additional grounds :</p> <p>1st. That his Honor erred in ruling that the declarations of Mary Jones were competent evidence, on the behalf of the plaintiff.</p> <p>2nd. That his Honor erred in ruling that the declarations made by Hughes Moss were competent evidence on the behalf of the plaintiff.</p> <p>3rd. Because the verdict was contrary to the law and evidence of the case.</p>

<p>Before Frost, J. at Abbeville, Fall Term, 1848.</p> <p>This was an action of assumpsit to recover compensation for services rendered by the plaintiff’s wife, when single, to the testatrix. The bill of particulars was read, setting forth a claim for services. It was proved that Jane McKay, the wife of the plaintiff, lived with her aunt, Jane Finley, for twenty years. Mrs. Finley died old and very infirm, and, for years, required the constant care of an attendant. Jane McKay was grown up when she went to her aunt’s, and was the only white person living with her. She attended to all housekeeping affairs, and in part, for a time, attended to the farming affairs, weighing cotton, &c. She had every thing to do about the house and yard. Alexander Houston testified that he had heard Mrs. Finley say that Jane had been very kind to her and she would .repay her well by her will. Mrs. Finley frequently spoke of the value of Jane’s services, and that she would compensate them by her will. This was said in the presence of Jane; and on one occasion the witness was called on to make a will, but it was prevented. Scott had heard the deceased say that she had given Sukey, a negro girl, to Jane, and that she intended to give her more by will. To Dowdy, the deceased said she intended to do something for Jane by her will — that she could not do without her services. She said that she called Sukey, Jane’s; and she reckoned Sukey might as well be so. Sukey was bequeathed to Mr. Mitchell. Jane McKay married the plaintiff' in November, 1841. She and her husband lived with Mrs. Finley, till the end of 1843. Mrs. Finley died in 1845. The suit was issued in 1846. The services of Jane McKay were estimated fiom $40 to $75 per annum. The will of Jane Finley was offered in evidence.</p> <p>The jury were instructed that .services rendered should not readily be presumed to be gratuitous. For gratuitous services an action would not lie, nor for services rendered in expectation of a legacy, and that if the evidence made, in their opinion, such a case, they should find for the defendant. They were further told that in order to recover for services, there must be evidence of a contract, express or implied, such as would create a debt. That if the evidence showed a case of ordinary employment from year to year, they should find for the defendant, on the plea of the statute. They were told that a person might make a contract for services to be paid by will, or by a legacy, as well as make a contract to pay on any contingent future event, as the death of a father or a relative. That in such case the statute of limitations would not begin to run until the time of demand. That a promise, express or implied, to pay for services rendered by a legacy or a will, was not demandable till the death of the promiser; and the statute would begin from that time. It was submitted to them on the evidence to determine whether there was proof of a contract, express or implied, by Mrs. Finley to compensate the services of Jane McKay by her will. If they were satisfied with the proof, they should find a verdict for the plaintiff for the time she had served; collecting from the evidence what should be a reasonable compensation. They were further instructed that in this view of the claims of Jane McKay, the value of what she took under the will of Mrs. Finley should be deducted. On referring to the will it appeared that Mrs. Finley had bequeathed nine negroes to the mother of Jane McKay and her children, equally to be divided among them. It was necessary to ascertain the number of Mrs. McKay’s children and the value of the negroes, to compute the plaintiff’s claim, in case the jury should find such a contract as was last suggested. The plaintiff was permitted to offer evidence to these points. The negroes were appraised at $2,800 — and the evidence was that Mrs. McKay had seven or nine chilren. The jury found for the plaintiff"$600 00.</p> <p>Defendant appealed, and moved for a new trial, on the grounds:</p> <p>1st. That from the evidence, the services rendered were gratuitous, and noton any contract for wages, either express or implied — that if any thing was expected in return, it was from the liberality of the testatrix, and not from any legal obligation on her part to pay, either in her lifetime or by legacy at her death.</p> <p>2nd. Because his Honor charged the jury, that from the declarations of testatrix, that she would leave a legacy to plaintiff’s wife, they might imply a promise to pay at her death by will whatever .the services rendered were worth — ■ that such implied promise was binding, would prevent the bar of the statute of limitations, and that they might upon it give a verdict for services rendered twenty years previous to the death of testatrix.</p> <p>3rd. Because his Honor charged the jury, that if from the evidence they could infer a promise by testatrix, either express or implied, to leave to plaintiff’s wife a legacy in consideration of her services, it would constitute a legal liability, against which the statute would not run till the death of testatrix. — And that if the services were rendered in expectation of a legacy, the legacy given in the will was no satisfaction ( or discharge of the legal liability — unless it was in value equal to that of the services rendered.</p> <p>4th. Because his Honor held that services rendered in expectation of a legacy constitute a legal obligation — and that a promise, express or implied, to give a legacy in compensation for services rendered, is binding in law.</p> <p>5th. Because his Honor, after the case was argued, and in the midst of his charge to the jury, suggested a new ground of recovery, which was not contained in the declaration, had not been taken on the trial of the case — either by evidence or in argument — and allowed plaintiffs to give evidence in support of it.</p> <p>6th. Because if a promise, either express or implied, to pay for the services rendered by a legacy at her death, was shown by the testimony, and constitutes a good cause of action-then it made a case altogether different from that contained in the pleading, and to which defendant was required to answer — and the plaintiffs cannot recover in this action, upon a quantum meruit count only, charging the sum to be due and unpaid, and the testatrix bound to pay in her lifetime.</p> <p>7th. Because defendant had, from the declaration or bill of particulars, no notice of a special contract to pay by legacy at the death of testatrix — no opportunity to defend himself against it — and the evidence of it was inadmissible under the pleadings.</p> <p>8th. Because the verdict is excessive, inconsistent with the pleadings, contrary to law, and without evidence.</p>

Before O’Neall, J. at Union. Fall Term, 1848. The bond of the defendant Huson, as the administrator of William Brummett, deceased, and the other defendants as his sureties, had been put in suit in the name of the Ordinary, John J. Pratt, and a recovery had : the damages of Daniel Wallace, administrator of Thomas McMeekin, deceased, were assessed by the verdict of the jury at $1270 88 cents, and judgment entered up for the penalty.

Before O’Neall, J. at Laurens, Spring Term, 1848. This was an action of trover, brought by the plaintiff against the defendants, by their proper names, for the recovery of damages, for the consideration of six slaves, viz: Sally, Eliza, Lindy, Edward, Hetty and George. The defendants were trading in slaves, and bought those in dispute, from one William Dollar, under whom the plaintiff claimed. The plaintiff’s wife, Rhoda, is a sister of William Dollar.

<p>Misjoinder of counts, and general verdict for the plaintiff: on motion in arrest i of judgment, the verdict was supported on those counts to which the evidence applied, and the plaintiff had leave to strike out the others.</p> <p>2 Hill, 654.</p> <p>2 Bay, 439.</p> <p>2 Bay, 162.</p> <p>1 Strob. 112.</p> <p>1 °619 Rep’</p> <p>l Chit. Plead, 205. ’ i Chit. Pi.</p> <p>206. 1 Hyiof Ia°k’</p> <p>l Chit pi 206. ' l Tidd’s Pr. 7i3,2d d°. 9 19 9‘</p> <p>Sims^rltrob H5. '</p> <p>Debruhl Neuffer," i Strob. 426.</p>

<p>To charge a mandatary with an article lost, it is not necessary that, in every case, the delivery should have been to him individually, or to one expressly or specifically authorized to receive for him; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire.</p> <p>Cited in 1 Livermore, 314.</p> <p>1 Starkie, p.82.</p>

Before O’Neall, J. at Charleston, May Term, 1847. This was an action on the case for obstructing the flow of water in an inland swamp, whereby the plaintiff’s rice field above was injured. The defendant owns a highly cultivated and well secured vice inland swamp plantation. The plaintiff is a wood cutter, but cultivates rice in a small way above him. The natural vent of the swamp is through the defendant’s plantation.

Before the Recorder, in the City Court, at Charleston, February Term, 1848. This was an action to recover the penalty of one hundred dollars, for retailing spirituous liquors without a license, imposed by the City Ordinance of April 19th, 1841.

Before Wardlaw, J. at Charleston, May Term, 1848. This was an action of assumpsit, brought to recover damages for the breach of an agreement in writing, which was dated 13th March 1842, and was not sealed, although the draftsman probably intended that it should have been.

<p>Tried in the City Court of Charleston, May Term, 1848.</p> <p>This was a suggestion of fraud tried by a jury in the City Court. The jury found a verdict of not guilty. The, nature and history of tíre case will best appear by directing the report to their respective grounds of appeal in the order in which they are made.</p> <p>The character and extent of the four grounds made in the suggestion, and referred to in the first ground of appeal, will be best understood by the following copy of them.</p> <p>First. “ Heeau se, on the day of Anno Domini, 1847, the said defendant obtained from the said plaintiff the goods of the said plaintiff by means of false and fraudulent pretences, the value of which goods so obtained was the cause of action for which the judgment of the said plaintiff against the.said defendant, and the said execution thereon, were obtained and issued; and therein was guilty of fraud against the said plaintiff: for that he the said' defendant well knew that he could not purchase the said goods on his own personal credit, and promised and engaged that he would deliver to the said plaintiff in payment of the said goods a promissory note, to be made by the said defendant, and endorsed by one Edward Harvey, now deceased, for the sum of money for which the said goods were to be sold; and in consideration of the said special agreement, the said plaintiff was induced to deliver the said goods to the said defendant, who never fulfilled his said special engagement.”</p> <p>Second. Because the said defendant well knew at the time he induced the said plaintiff to deliver to him the said goods, that he could not procure the said endorsed promissory note from the said Edward Harvey.”</p> <p>Third. “ Because, after the delivery of the said goods, and while they or the larger portion of them were yet remaining in the possession of the said defendant, and might have been returned to the said plaintiff, the said defendant fraudulently deceived the said plaintiff by pretending and falsely representing to him at times, that the said promissory note would be endorsed by the said Edward Harvey, and afterwards that it had been so endorsed and would be delivered according to his promise.”</p> <p>Fourthly. “Because the said defendant fraudulently and by fals^ pretences, obtained the said goods, not for the purpose of carrying on a fair and regular business and to pay for the same, but with the fraudulent purpose of appropriating the proceeds of the said goods to the use of himself, and to the loss and injury of the said plaintiff, and of concealing the same so as to defeat the just and legal remedies of the said plaintiff.”</p> <p>These four grounds, as stated in the notice of appeal, were, on motion of the defendant’s counsel, ordered by the Court to be stricken out, as irrelevant and insufficient, and as constituting, even if found to be true by the jury, no bar to the defendant’s discharge. As to the second ground of appeal, there being no such question before the jury, and their province being to decide the matter submitted to them under the other grounds of the suggestion, the jury cannot well be supposed to have based their verdict upon matters connected with the grounds which (from being stricken out) were withdrawn from their consideration. As to the 3d ground, in stating to the jury the prominent scope and design of the Acts for relief of insolvent debtors and the prison bounds Acts, his Honor observed that the leading purpose apparently contemplated by the Legislature, was that in order to be entitled to the privileges conferred, the applicant should make a fair and full surrender of all his estate and effects, retaining nothing covertly for his own use, and having made no false conveyances or fraudulent preferences. That an application for discharge under the provisions of these Acts, did not involve a general inquiry into the morality or propriety of one’s whole past life; and that looking to the evident intention and meaning of the Acts, if, as was assumed, the petitioner in this case had committed any fraud in the original purchase of the goods bought from the plaintiff, it would not, of itself, constitute any well founded objection to his discharge — the petitioner complying with the requisitions of the law in giving up all his effects and having made no undue preferences, or covert and fraudulent assignments of his estate.</p> <p>As to the fourth ground of appeal, he refused the motion of the plaintiff, that the defendant should be examined, under oath, on the trial of the issues made by the suggestion, holding it as a novelty and a violation of all principle. The plaintiff, upon the application of the defendant before him for his discharge, sitting as the Judge, had exercised the right conferred on him by the Act of 1836 in such cases, and had examined him fully, under oath. It was after that examination that ‘ the plaintiff filed his suggestion of fraud, the trial of which, in open Court, forms the subject of this report. He refused evidence as to what the prisoner said at the examination before him personally, holding his own notes of that examination or unaided recollection of what the party said, if important, much higher and more appropriate evidence. As there was no complaint upon the merits of the case, or of the verdict, as against law or evidence, it may be only proper and due to the defendant to say, that after considerable evidence, and a very full and thorough examination of the testimony, and an able argument of the case on both sides, the jury found a verdict of not guilty upon the four remaining grounds of fraud alleged in the suggestion.</p> <p>The plaintiff appealed and moved for a new trial, on the grounds:</p> <p>First. Because his Honor the Recorder ordered the four first grounds of the plaintiff’s suggestion of fraud against the defendant to be struck from the record, thereby ruling that the jury were not competent to inquire into the alleged fraud of the defendant, in originally obtaining the goods of the plaintiff by means of false and fraudulent pretences, and in retaining the said goods and inducing the plaintiff to permit his retention of them by false representations and deceit — and with a deliberate design to apply the proceeds of the said goods to his own use, without any prospect of payment or intention of using them in the regular course of business.</p> <p>Second. Because his Honor the Recorder charged the jury that the obtaining of goods by false and fraudulent pretences, although proved upon the defendant, would not prevent his discharge upon an application for the benefit of the prison bounds Acts.</p> <p>Third. Because his Honor the Recorder charged the jury that the only questions for them to determine were, whether there was any property belonging to the defendant at the time of rendering his schedule, which had not been included therein, and whether he had made any undue preference.</p> <p>Fourth. Because his Honor the Recorder refused the motion of plaintiff, that the defendant should be examined under oath, and also refused to allow evidence to be given of the declarations made by the defendant, when under oath, on his first application before the Court for his discharge. Respectfully submitted,</p>

Before Withers, J. at Horry, Fall Term, 1848. The action was trover for two negroes, Jim and Joe.

Before Wardlaw, J. at Charleston, May Term, 1848. The declaration in case contained two counts : first, alleging that the defendants had harbored the runaway slave Nelly, of the plaintiff; second, that they had converted to their own use the slave Nelly, the property of the plaintiff. Damages laid at $5,000.

<p>Before Evans, J. at Charleston, Fall Term, 1848.</p> <p>The plaintiffs were factors, and the defendant a Christ Church planter. In August, 1838, the plaintiffs, as factors of defendant, sold seven bales of' long cotton to Murray, the agent of Hyde, a cotton-buyer at Liverpool, for thirty-three cents a pound. In March, 1839, Hyde sold the cotton at a profit, to a manufacturer, who kept it unbroken until May, 1840. At that time, the packages were broken, for the purpose of manufacturing it. It was then discovered that six bales of the cotton were falsely packed. The outside was fair white cotton, and had been wet with fresh water, and, as was supposed, repacked in America. The cotton was examined by brokers, who decided it was unmerchantable, and should be returned to the seller. The cotton was accordingly returned to Hyde, and resold at a heavy loss. Hyde refunded the money, for which he had sold the cotton, being a greater stun than he had paid for it. The plaintiffs were no-rifled, and, as they alleged, gave notice to the defendant, from whom no answer was received. They declined to pay, and were sued by Hyde, in July, 1843; and at May term, 1846, the case was tried, and a verdict rendered against them for the sum for which the cotton was sold in Charleston, deducting the price of resale, after the discovery of the alleged fraud. The money was soon afterwards paid, and this action brought to recover it from the defendant.t When the plaintiffs were sued, they gave notice to the defendant and required him to defend the action, but he wholly neglected to do so, or to give them any information in relation to the cotton. On the trial of this case, the defendant proved by his nephew, who lived in his house, and by his overseer, that the cotton had been carefully handled, ginned, moated and packed, and if their statement was true, it went very far to disprove the evidence of the brokers, who had examined the cotton in England. To the action of Hyde against the plaintiffs, they pleaded the statute of limitations, but it did not avail them on the trial.</p> <p>On the trial of this case, the defence mainly insisted on, and that which is made the ground of appeal, was the statute of limitations. On this point, the jury were charged, that the statute did not bar the action.- The plaintiffs being mere agents to sell, and not buyers of the cotton, no action accrued to them, by reason of the sale. They could not sue the defendant, until they paid the money. The cases quoted, were cases, where there was a contract of sale, and an implied warranty between the seller and buyer.</p> <p>And that the relation, between the principal and agent, imposes on the former a liability to imdemnify for any necessary expenses, growing out of the agency, andas the plaintiffs were obliged to employ counsel to defend an action for the benefit of the defendant, he should pay the fee paid to their attorney.</p> <p>On the question of the fraudulent packing of the cotton, the jury were charged that the verdict of Hyde, against the plaintiffs, was not conclusive against the defendant, but that under the circumstances, he ought to make out a. very clear case, that the cotton was not such as it was proved to be in England. He had the opportunity to make his proof, when the case of Hyde against the plaintiff, was tried, and should have done so then. The1 jury found for the plaintiff, the whole demand. ' .</p> <p>The defendant moved the Court of Appeals for a new trial, on the following grounds:</p> <p>1. That the plea'of the statute of limitations was a good bar to the action, and that his Honor erred, in charging the jury to the contrary.</p> <p>2. That his Honor erred in ’charging the jury, that they were at liberty to find for-the plaintiffs the amount of seventy-five dollars, paid by them to Messrs. Bailey & Brewster, as a counsel fee, for defending a suit brought against them, by, one R. E. Hyde.</p> <p>3. Because the verdict was otherwise contrary to law and evidence.</p>

Before Wardlaw, J. at Charleston, May Term, 1848. Two rules had been taken out against the sheriff, to shew 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.

<p>Before the Recorder, in the City Court of Charleston, February Term, 1848.</p> <p>This was an action of trover for six hundred and twenty-five bags of corn. The testimony was as follows:</p> <p>H. Cook, sworn. — Said he was employed at the Rail Road; witness informed plaintiff that the corn from Col. Hampton’s place had come. This was on Sunday; don’t know how many bags ; this was twelve or thirteen months ago; plaintiff had begged witness to inform him when the corn arrived.</p> <p>L. F. Behling, sworn. — Said the corn came on Sunday, went with the plaintiff to demand the corn ; the bags were marked in Mills’s name; it came consigned to Mr. Adger, and was carried away by Mills’s drays. This corn came from Hampton’s; witness went with plaintiff about the corn, applied to Beach for it; Beach said he could not have it.— Mills came in and said, you cannot get the corn: plaintiff deposited the money in the S. W. R. R. Bank, and brought a check. Mills said he had no objection on account of the check ; witness, however, went and got the' money in gold and silver, the exact amount of the price of the corn. Plaintiff went with the money, and offered it to Stocking ; Mills said there is no use for all this. I consider this a legal tender. It was alleged by plaintiff, that defendants had sold him 625 bags of corn, containing bushels each, at 78 cts. a bushel, amounting in the whole to $1,218. 75. This was not denied. Mr. Mills was present at this time. Beach said he had sold the corn, if it suited; plaintiff said it did suit. Nothing was said at this time, about a sample; the corn was hauled by Mr. Mills, after the tender of the price; witness thinks the bags were marked in Mills’s name; com had taken a rise in the interim. This corn was very superior; at the time of the tender of price, com was worth about $1 a bushel.</p> <p>Cross-examined. — Only knew this corn came from Hampton’s, from the clerks in the Rail Road office. It arrived about the 8th or 10th of February; saw the corn at the Rail Road before the tender. Mr. D. Amy was present at the tender — Mr. Mills, Mr. Beach, and Mr. Stocking; there may have been others ; nothing was said about a sample; no reason was given by Mills or Beach, for not giving the corn; good com was worth, at this time, $ 1 a bushel, by the quantity: witness sold horse com at 88 and 90 cents, about this time.</p> <p>James R. Pringle, sworn. — Is one of the house of James Adger & Co. In January, 1847, he made a sale to Mills & Co. of 3,000 bushels of com at Hampton’s plantation, at 68 cents ; Mills & Co. were to haul it from the Rail Road. Mills sent his bags to the plantation ; the corn was put into them. Some time afterwards com rose; as each parcel was delivered, the com was charged to Mills & Co. On the 8th of Feb. 500 bushels; on the 20th February, 1,065; 16th of March, 1,435 bushels; making in all 3,000. Before it was all delivered, corn rose in the market. Adger &. Co. were to pay the freight on the Rail Road; it was to be delivered to Mills at the Rail Road. Price current of 13th February, quotes North Carolina and western com, from 93 to 103 cents per bushel. This is the price for the week. Witness and Mills had no written contract. A delivery order is considered, among merchants, as á delivery of goods sold; this is according to the custom of merchants. [The delivery order spoken of,-was here introduced, and was-in the following words.]</p> <p>“ Mr. John King, jr. Agent Rail Roa'd Company. Sir: — . Please deliver to C. Sahlman six hundred and twenty-five bags of corn, consigued to us, and oblige</p> <p>O. Mills & Co.</p> <p>P. S. — We are not certain that all the com has arrived at the depot, but when it comes, let Mr. S. have it.</p> <p>January 25, 1847.”</p> <p>Witness resumed. — In case of loss by fire, after the order, loss would fall on the purchaser. Hampton’s com is a superior one, is better than the ordinary Georgia or western corn ; some of the best brands in North Carolina, are better.</p> <p>Cross-examined. — Does not know how much the bags held, it was measured at Hampton’s place. Mills was to have the privilege of measuring here, trying some of the bags. Witness, in buying a quantity of corn, would not buy without a sample ; witness sold this com by sample, shewed it to Mills. This is the first time witness has sold corn for Hampton. Mills made no objection to the com.</p> <p>Mr. Stocking, sworn. — Is book-keeper to the defendants; did not hear the sale; the entry in the defendants’s books was made by Beach. [Here the books of defendants were produced, and the entry was in the following form :]</p> <p>At Rail Road.</p> <p>C. Sahlman, (S. T.) Null.</p> <p>Bush. Corn, (S. T.)</p> <p>Witness said the price was put down in a cipher, meaning 78 cents. The word “ null” is written in the margin of the en-t try; it is usual to buy and sell by sample ; date of the entry is the 25th of January ; the first arrival of corn was on the 8th of February.</p> <p>In reply. — The word “ null” was not written at the time of the entry, but some time afterwards ; thinks, before the corn arrived ; Beach made the entry; the word “ null” is in his hand writing. This is made in the defeudants’s book of original entries. Here the plaintiff rested his case. The defendants’ counsel moved for a non-suit, upon the same grounds substantially, as are now taken in his notice, (annexed hereto.) In the exercise of my best discretion, although having very decided impressions upon the points of law involved, I thought it would be more conducive to the ends of justice, to submit the case, upon the evidence, to the jury, with proper instructions to them upon the law, and refused the motion.</p> <p>The defendants then introduced the following testimony:</p> <p>Robert C. Brown, sworn. — Is clerk to the defendants ; was present on the 25th of January; plaintiff brought a sample of com to the defendants’s store, and said it was defendants’s corn at the Rail Road depot. On this representation, the defendants sold. The first arrival of the Hampton corn, bought by defendants, was two hundred bags on the 8th of February. At the time of the sale, defendants had no com at the Rail Road ; 426 bags arrived on the 20th of February, and 574 bags on the 15th of March, according to the entries.— This corn came from Hampton’s. On the 27th of January, defendants sold prime corn to Adger, at 75 cents, as good as Hampton’s; don’t know when it was first discovered by defendants, that they had no corn at the Rail Road.</p> <p>Cross-examined. — Corn rose after the sale; the sample exhibited by plaintiff, was not inferior to Hampton’s corn ; witness thinks the sample could not have been Hampton’s corn ; there is North Carolina corn like Hampton’s. Plaintiff said that defendants’s com was at the Rail Road ; witness did not see the sample ; can’t say whether the sample was or was not Hampton’s corn.</p> <p>In reply. — Thinks corn had declined between the 25th and 27th of January; it took a rise early in February, after some steamers had arrived. The sale spoken of by witness to Adger was afloat, and North Carolina com. Plaintiff was to take his corn at the Rail Road.</p> <p>George Kinloch, sworn. — Witness deals in corn ; witness purchases corn by sample — if the bulk does not correspond with sample, witness does not consider himself bound to take it.</p> <p>Mr. Stocking, recalled. — Again referred to the entry of the sale in defendants’s book, which was exhibited to the Court and jury. He said it was not unusual to enter “ null” to entries, as in this case.</p> <p>Here the defendants closed their testimony.</p> <p>In reply. — The plaintiff introduced the following evidence.</p> <p>D. W. Miscally, sworn. — Witness is employed at the Rail Road. Plaintiff presented an order for corn; cannot say that the one now produced is the one presented to him. Plaintiff, previous to the arrival of the corn, made frequent enquiries. Plaintiff, on the 8th of February, had a sample of Hampton’s corn, which he exhibited, and said he was satisfied with it. On the 24th of January, there arrived at the Rail Road, 157 bags of Hampton’s corn, to James Adger, marked P. 315 bushels. On the 7th of February 200 bags, containing 500 bushels of Hampton’s corn, arrived at the Rail Road to James Adger. Mills got Hampton’s corn on the 8th of February.</p> <p>Cross-examined. — Plaintiff was and is frequently at the Rail Road — he lives near by. The order which plaintiff had was not left, because the com had not arrived. Witness saw an order some days before the 7th of February, presented by Sahlman, for Hampton’s corn. Here the testimony closed, and the case was fully argued by the respective counsel.</p> <p>In his charge to the jury, his Honor said the first question that presented itself to his mind, and appeared to call for instruction upon the law, applicable to the case, was, whether or not the alleged contract of sale tvas rendered void by any misrepresentation on the part of the plaintiff, or mistake (on the part of the defendants) of the facts upon which the contract was based. A misrepresntation, in the contract of sale, was alleged to have been made in the statement by the plaintiff, that the defendants’s corn had arrived, and that the sample which he exhibited to them was a portion of, or true sample of the same, when, in fact, it was contended by the defendants, that the defendants’s com had not arrived, and consequently that the sample exhibited by the plaintiff, was not and could not be a portion of, or a true sample of the corn of the defendants.</p> <p>In the absence of any fraud on the part of the plaintiff, in the statement which he made to the defendants, he charged the jury that assuming the supposed mis-statement and mistake to be satisfactorily established by the evidence, (of which they were the judges, and were first to determine upon the testimony,) the next step was to consider and decide whether the supposed misrepresentation and mistake, or either, were substantial and material, or unimportant and immaterial. If the former, the contract might be avoided — if the latter, it would not be. As a test, by which to determine the materiality of the supposed mistake or misrepresentation, he charged the jury that if the fact, supposed to be misrepresented or mistaken, was of such a nature as to induce the conclusion that either the party would not have sold at all, or would not have sold at the stipulated price or terms, except upon the assumption of the truth of the supposed fact, and it should turn out not to be true, the contract would not be binding, otherwise it might generally be regarded as immaterial.</p> <p>The next question was, as to the validity of the contract of sale upon other grounds, and especially in relation to the 17th section of the statute of frauds. First, was there a sufficient memorandum in writing of the contract of sale, in this case, to take it out of the statute. He charged the jury that the entry in the defendants’s books was entirely insufficient. A memorandum, to satisfy the requisitions of the statute, must furnish all the necessary terms of the agreement ; a designation of the thing sold, the price to be paid; presenting at least the evidence of a contract definite upon its face, and capable of a certain and specific execution or performance.</p> <p>In this entry, neither the quantity of corn sold, nor the price to be paid was mentioned; for, in regard to the latter requisite, the cipher (S. T.) which it was said, was intended to designate the price, to those who were supposed to understand its secret meaning, was not of the least effect. He charged the jury that the order of delivery was equally insufficient to take the case out of the statute; whether considered by itself, or in connection with the entry in the defendants’s books. The objection to the entry, in the defendants’s books, in regard to the thing sold, was that it was put down as-bushels, leaving the quantity indeterminate and uncertain. The order, as expressed to the jury, was obnoxious to the same objection in a different-way. For that, though it mentioned the number 625, spoke of 625 bags of com. Now was this not equally uncertain and indeterminate as to the quantity of the thing sold 1 He was not aware of any usage in trade, nor was there any evidence adduced to shew that a bag of corn, necessarily or ex vi termini, must consist of any certain and determined quantity. A bag of corn may consist of one bushel, or two or three, or any other quantity. It differs in this respect from a bale of cotton or barrel of rice, these being sold by weight; and corn by measure. There was evidence to shew, from the admissions of the defendants, that the 625 bags of corn, sold by the defendants to the plaintiff, were to contain 2J bushels each'; but this was by parol, and not in the writing required by the statute, and if permissible, opened a door for the very mischief which the statute was intended to prevent.</p> <p>The next question which seemd to occur, and which was submitted to the jury was, whether there was or not an actual delivery, by the defendants or their agents to the plaintiff, of the corn purchased by the plaintiff, from the defendants. If so, it was held that the plaintiff was entitled to recover for any subsequent conversion by the defendants. This, how-r ever, was not pretended, for if such had been the case, that is, if the corn had actually been delivered to the plaintiff, there was no reason to suppose that the present or any such action would have been brought, or have been necessary. — ■ But it was urged that there was a constructive delivery of the corn by operation of law; that the order of defendants in favor of plaintiff, directed to the Rail Road Agent, transferred the possession of the 625 bags of corn to him upon their arrival, and that the present action of trover could be well sustained against the defendants for subsequently taking and carrying the' corn away, and converting it to their own use. But upon this part of the case, the jury were instructed that the obstacles to the plaintiff’s recovery, interposed by the law, were in no way diminished. Giving to the order of delivery, in this case, all the force assumed for such orders in the testimony of Mr. Pringle, the custom of merchants, or the decided cases, it appeared that such orders could only have the effect claimed for them, where the goods sold are clearly designated or specifically pointed out, and capable of actual delivery, so that the purchaser may (if not prevented) lay his hands upon the very articles sold, and say these are mine. When the order in this case was given, it was clear the corn, belonging to the defendants, had not arrived; it was deliverable at the Rail Road. The order was for 625 bags of corn; for an indeterminate and uncertain quantity. Suppose the defendants’s corn had come in four bushel bags, would the plaintiff have been entitled to demand and receive them ? If (as was the fact) the corn came in parcels, at different times, amounting in the whole to 3000 bushels, could each parcel, say of 200 or 300 bags, or any other number less than the amount of the order, be considered as specifically transferred from time to time to the plaintiff? Suppose again the whole 3000 bushels of corn, bought by the defendants from Hampton, through Adger & Co. in 1200 bags, (allowing as was the fact,) bushels to a bag, had come at one time, would the plaintiff, under his order from the defendants, for 625 bags, have had a specific property and right of possession to any 625 bags ; and if so, to which, by force of a constructive and not actual delivery ?</p> <p>In addition to all this, the jury were reminded that under the contract between Mills & Adger &. Co. the defendants had the right of measuring the corn, on its arrival at the Rail Road, if they saw fit to exercise it, before the delivery was to be considered as complete between them and the defendants, under their contract. Upon-the whole, leaving all questions of fact to the jury, he charged them that if without violating the principles of law, laid, down for their guidance, they could consistently find a verdict for the plaintiff, they ought to give him, byway of damages, the difference of the price at which he had. purchased the com, and the highest price the market, at the time of the conversion of it by the defendants. The jury found a verdict for $312 40.</p> <p>The defendants appealed from the verdict, and renewed their motion for a non-suit, on the following grounds:</p> <p>1. That the alleged sale was uncertain, inchoate and incomplete in itself, and was moreover void, for want of a sufficient memorandum in writing, under the 17th section of the statute of frauds.</p> <p>2. That even if the contract of sale was complete and binding, there was no proof of a delivery to vest the plaintiff’s title, and no possession to enable him to maintain this action.</p> <p>And they also moved for a new trial, on the same grounds, and on the further grounds :</p> <p>3. That the sale was made under the belief, created by the plaintiff’s representation, that the corn had arrived, which was not the fact; and as soon as the truth was known, the defendants annulled the sale, nor was any claim set up by the plaintiff, until a fortnight afterwards ; and after the corn had arrived, and been sold by the defendants to another person. Wherefore, the sale having been made under a mistake, and that mistake created by the misrepresentation of the plaintiff, it was not binding upon the defendants.</p> <p>4. That for all the reasons above stated, the verdict was plainly and palpably against law and the evidence, and could not be sustained except by investing the jury with legislative authority pro hac vico.</p> <p>argument.</p> <p>cited in support of the 1st ground, Story on Con. 2nd ed. sec. 800 — 2 Saund. PI. and Ev. 41; 2nd ground, 2 Saund. PL and Ev. 873 ; 3rd ground, Story on Con. sec. 419 and 420.</p> <p>said the transfer order carried the title of the goods — 2 Camp. 243 ; 5 Johns. 335 ; Story on Con. 312; 3 Caines’s, 182; 7 T. R. 278; 4 Camp. 251; 2 Hill, 587; 2 Esp. 598, — and that the delivery order satisfied the statute of frauds. It was symbolically, a delivery of the thing itself.</p> <p>said that no recovery could be had in the suit, for possession was necessary in trover, and there was none in this case. Nor was there any memorandum in writing, of the contract. — 17th sec. Stat. of Frauds.</p>

Before Wahdlaw, J. at Charleston, May Term, 1848. Held: that the relators were not mechanics pursuing a trade, in contemplation of the Ordinance ; that they were bound, by 20th day of April, 1845, to have returned their estimated income for the current year, and for default thereof, were liable to a double tax on the assessment which had been made, whether there had been any nett profits…

Before Wardlaw, J. at Charleston, May Term, 1848. J ’ These were actions of debt on bond, commenced February, 1844.

Before Wardlaw, J. at Charleston, May Term, 1848. Trover for a slave named Thornton. F. T. Morgan, of Augusta, Georgia, was owner of Thornton and had him in possession there. 3rd Nov. 1845, Morgan, in Augusta, executed a mortgage, whereby Thornton, a wagon, and various other chattels, were mortgaged to Turner Clanton, the defendant (who also resided in Augusta) to secure the payment of $500 within six months, which (as it was recited) Morgan owed to Clanton by note.

Before Wardlaw, J. at Charleston, May Term, 1848. Held: each, up to the fence, keepingmfnílíe fence by common contribution.

Before Wardlaw, J. at Barnwell, Fall Term, 1848. Five several judgments against John Bowie, and the other defendants, his sureties. Each judgment is for $13,635 55.

<p>The presumption of payment, from lapse of twenty years, is a presumption of fact, but one which has acquired an artificial force. In considering admissions to rebut it, the same principles are applicable as in considering admissions to take a cause of action out of the statute of limitations.</p> <p>After the expiration of full twenty years, a mere acknowledgment that the debt has not been paid, will not suffice to rebut the presumption: there must be (if there be no payment of interest, nor promise to pay, nor other sufficient rebutting circumstance,) a distinct admission of the subsisting legal obligation of the debt, unaccompanied by any conduct or expressions indicative of an unwillingness to pay.</p> <p>Arrest under a ca. sa. is prima facie evidence of satisfaction: to rebut it, it must appear that the imprisonment ceased in some way, which constitutes an exception to the general inference of satisfaction from the body taken.</p> <p>266.</p> <p>x Camp. 217.</p>

Before Withers, J. at Marion, Fall Term, 1848. The action was for slander, and the following is a copy of the plaintiff’s declaration. “ James R. Hays, the defendant, was attached to answer to Samuel Gale, the plaintiff, in a plea of trespass on the case, and so forth.

Before Feost, J. at Chester, Spring Term, 1849. This was an action of trespass de bonis asportatis. The declaration charged that the defendant, in the night time, and in a tumultuous manner, to the terror of the plaintiff and his family, entered the plaintiff’s premises, and carried off negroes.

Before O’Neall, J. at Sumter, Spring Term, 1849. Held: and so instructed the jury, that notwithstanding the deeds, the legal estate was in the intestate, subject, it might be, to a trust for his own support, and that of his wife, during their respective lives: but, on the death of his wife, that trust was discharged, and the legal estate, unincumbered, was in his administrator.

Before O’Neall, J. at Kershaw, Spring Term, 1849. This was an action on the case for seducing and getting with child the plaintiff’s daughter, Charlotte E. Yillepigue. The case, made by the proof of the daughter, who was' the only witness, was in substance as follows: At the birth of the child, 12th June, 1848, she was in her 23d year.

Before Wardlaw, J. at Chesterfield, Fall Term, 1847. This was an action of trespass quare clausum fregit, for injury done to land of which the plaintiff claimed to have been in possession.

Before O’Neall, J. at Sumter, Spring Term, 1849. REPORT OP HIS HONOR THE CIRCUIT JUDGE I This was an action of debt on a note under seal, payable, either to the estate of the intestate, or to the plaintiffs as administrator and administratrix of the estate of the intestate. The defendant did not plead ; an order for judgment, for want of plea, was made. The case was called on the inquiry docket, and an order of transfer on the usual terms made.

Before Withers, J. at Darlington, October Term, 1848. The parties (B. and J. B. Parnell) had a litigation pending in the Court of Equity, and they agreed to refer it to arbitration. A bond was accordingly executed by defendant, in the condition whereof the terms of arbitration were specified.

<p>Oae co-surety to a single bill, is a competent witness to prove the hand-writing of the other surety — the latter alone being sued.</p> <p>gee B . Bills, p e330.n 5 M. ¿Sel 7 i. g m. &w.' 733.</p> <p>page 31&</p> <p>5M. &Sel.</p> <p>Stra. 34.</p> <p>6M. &Wels. 734.</p>

<p>It is the general rule that, if a wife voluntarily leave her husband, he is not liable for necessaries supplied by one who had notice. Medical services are, in no case, excepted from this rule.</p> <p>If a wife leaves her husband, and is received back by him, he does not become liable for necessaries supplied 10 her during her absence.</p> <p>Holt’s Rep. 103.</p> <p>2 Com. 147.</p> <p>13 J. R. 293. 11 J. R. 281.</p> <p>Lead. Cases, 2 ra' ' 8 Car. & P. 506. 2 Smith’s</p>

Before Evans, J. at Marlborough, Extra Courts July, 1848. Debt on bond. This was an action by the ordinary, against the defendant, as surety to one William L. Adams, administrator of one Shochley Adams. Shoehley Adams left a widow and several children, all of whom had been paid off except Caroline, his youngest daughter, who had married one Alexander Mc&ueen; and this action was to recover her share of the estate.

Before Frost, J. at Barnwell, Extra Term, 1848. This was an action of trespass to try title. The plaintiff derived title from a grant to Stephen Smith, Daniel Bourdeaux, and Muckelrath, 3d July, 1786. A sale of Stephen Smith’s share of the grant by the sheriff, under judgment and execution, to William Dunbar, October 7th, 1793.

Before O’Neall, J. at Kershaw, Spring Term, 1849. In this case the prisoner was indicted for stealing three slaves, Isaac, Yerg, and Hagar, and for aiding them to run away. It appeared, that on the 28th of January last, at night, John Truesdale, of Kershaw district, and within the limits of the same, lost two slaves, Isaac and Hagar. A month or five weeks previous, Yerg had run away from him. Isaac and Hagar disappeared at night.

<p>-’No one, by paying an account against another, can maintain an action for the amount, without the promise, express or implied, of the original debtor:</p> <p>2 Bail. 56.</p>

<p>The defendant in execution is a competent witness for the sheriff, in an action to recover from a purchaser the amount of his bid, at a sale of the defendant’s property.</p> <p>Gibb. Ev. 107. l Phiil. Et. 55."</p> <p>j fail 568' 2 Hili 447! 1 Car. & P. 253‘</p> <p>2 New. Rep. 331.</p>

Before Withers, J. at Fairfield, Fall Term, 1847. In this action the plaintiff, sought to make the defendant liable for official misconduct while sheriff, in relation to a process for bail, lodged by the present plaintiff, during the pendency of a cause instituted by him against Elisha and Henry Owens — the charge being, either, that defendant did, not. arrest the said parties, as in duty bound, or suffered them to escape after, arrest.

Before O’Neall, J. at Columbia, Spring Term, 1849. This was an action of trover to recover a Piano Forte. The case made by the evidence was as follows: The plaintiffs are manufacturers of Pianos in New York; the late Samuel Weir was acquainted with them, and had been, at one time, engaged in the sale of Pianos; though not at the time of this transaction. He was esteemed an excellent judge of such a musical instrument.

Before Frost, J. at Barnwell, Extra Term, 1848. This was an action of trespass for assault and battery. Two of the defendant’s servants had been taken up, under an ordinance of the village of Barnwell, for riotous behaviour on Sunday, and, with others, were about to be flogged at the market place, Monday morning, when the defendant came up — asked what they were whipped for; and said they should not be whipped ; that he would whip the marshall.

<p>Before O’Neall, J. at Columbia, Bpring Term, 1849.</p> <p>This was an action of trespass, to try the title to a lot of half an acre in the town of Columbia, of which the defendant was in the possession. The plaintiffs alleged that of this lot, one Sarah C. Colvin, alias Egan, alias Thomson, was, at her death, on the 24th of May, 1845, legally seized; that she was the lawful wife of one Daniel Colvin, who died 19th September, 1847; that the plaintiff, Lavinia, was the lawful child of that marriage, and was consequently entitled to recover the lot.</p> <p>The facts in relation to the title to the lot in Sarah C. Col-vin, alias Egan, alias Thomson, had better be stated together. On the 4th May, 1819, Ainsley Hall executed a deed to her by the name of Egan, reciting that he had bought this lot and another, making an acre, at sheriff’s sale, as the property of Thos. Egan, and by it conveyed the lots to her. She was proved, in this case, to have had possession from Egan’s death, 3d April, 1820, to the 20th June, 1824, when, being about to marry a man who had been previously called Twitched, but who had then changed his name to Thomson, she conveyed the lots to Guignard, trustee, to hold for the separate use of herself, daring marriage, and on the death of either, to the use of the survivor. She, or Guignard for her, had possession from that time until 17th July, 1834, when she and Thomson and Guignard, by several deeds, conveyed the lot in dispute to Miss Jane Bryce. She conveyed to John Bryce, the defendant, 1 Jan’y. 1844, who had possession and admitted a trespass before action brought. The deaths of Sarah C. and of Daniel Colvin were proved to have taken place at the time stated above.</p> <p>The proof established that the plaintiff, Lavinia, was the same person who had, when a mere infant, been received into the family of Thomas H. Egan, and was raised by his reputed wife, Sarah C., until 1818 or 1819, when she disappeared, and was unknown here until five or six years ago, when she returned.</p> <p>Who was she ? was she the child of Sarah C., or a found ling, adopted by her ? If she was the child of Sarah C. then was she the legal child of her marriage with Daniel Colvin, or was she illegitimate ? These were questions to which the voluminous proof was addressed, which it is unnecessary to detail.</p> <p>The case was fully and most carefully submitted to the jury. The rule was fully explained to them, if the child was the child of Mrs. Colvin, when there was a possibility of access to her by her husband, then that the child would in law be the child of that marriage, unless the facts should satisfy them that, notwithstanding the possibility, there was in fact no access, then in such case they might find the child to be not the child of the marriage. The main question, however, was whether the plaintiff, Lavinia, was the child of Mrs. Col-vin. The Circuit Judge says, he was clearly of opinion she was not. The facts were overwhelming against the plaintiffs. The jury, however, were told, the facts were for them, and the Judge’s opinion, if they discovered it, ought not to influ-encethfm. ’</p> <p>His Honor told the jury he thought it was clear that Guig-nard’s possession for ten years would make his legal estate, under the deed of Mrs. Egan, perfect, and then that his conveyance conveyed the whole fee to Miss Bryce. But he directed and positively instructed them, that as the whole of the facts had come out, and the defendants had made no such point, it was better the case should be decided on the facts, and therefore they might assume that Guignard’s possession was Mrs. Egan’s, alias Thomson’s, and at her death the fee was in her, as her conveyance was void, being a married woman ; and if the plaintiff, Lavinia, was her lawful child, she would be entitled to recover. He said to the jury, that if Jane Bryce had continued her possession to the 17th July, 1844, instead of conveying to her brother 1st January, 1844, who had continued the possesion beyond the time which would have perfected her title, it would have saved this entire investigation, and that it was a pity she had not. But this was a mere remark, not intended to, and which could not have influenced the decision of the jury. For they were told that John Bryce’s possession could not be connected with Jane Bryce’s, and therefore the statute could not operate in favor of the defendant.</p> <p>The jury found a verdict in favor of the defendant.</p> <p>The plaintiffs appealed on many grounds, in which a different view was taken of the evidence from that taken by the jury, and in which several exceptions were taken to the charge of the Circuit J udge, but it will be perceived, from the opinion of the Appeal Court, that it is unnecessary that they should be reported at length.</p>

<p>J The testator was sustained and encouraged by his son in his opposition to his daughter’s marriage, in resentment for which he made his will depriving her of any portion of his property, and giving it wholly to his son: although there was no proof that the son had exercised any such undue influence in the procurement of the will as would legally vitiate it, the jury still found against it. A new trial was ordered.</p> <p>A will cannot be set aside on account of the general influence of a legatee, and the natural claims upon the testator, of as near, or nearer relatives, combined.</p> <p>Undue influence, of whatever sort, alleged to avoid a will, must be so great as in some degree to destroy free agency.</p> <p>The jury will not be allowed, under the influence of prejudices and feelings, however honorable and praise-worthy, to overthrow the rules of law, or divert the current of justice.</p> <p>31 P g ’</p>

Before Evans. J. at Darlington, {Extra Court) July Term, 1848. This was an action for malicious prosecution. The facts were these. Held: nor any charge made by her family, implicating Sims as connected with her death. In the summer of 1844, Sims’ brother was killed ; and a prosecution for murder was instituted by Sims, against several persons, of whom the defendant was one, for the murder.

<p>Before Frost, J. at Barnviell,-— Term,. 1848.</p> <p>This was a case in dower, in which detnandarit declared in the usual form. The pleadings presented several issues of fact; but the case was decided on demurrer to two of the pleas.</p> <p>The defendant pleaded in bar that Sarah Lamar, the de-mandant. had assigned her right of dower to Prothro, and on this plea there was a joinder in demurrer. Judgment was given for the plaintiff, because, whether the right of dower be assignable or not, the action was properly brought in the name of the demandant.</p> <p>The sixth plea alleged that,'at the time of Lamar’s death, he and the demandant were domiciled1 in Georgia, and that, by the law of Georgia, the widow is not entitled-to dower of land whereof the husband was not seized at the time of his death, and that Lamar, at the time of his death, was not seized of the land of Which the demandant claims dower. On this plea there was a joinder in demurrer.</p> <p>Judgment was given for the defendant, because the right of dower is not an-.estate in land, büt a personal demand. That, being incidental to the contract of-marriage, which is a personal-contract, and governed by the law of the domicile, the claim of Dower must be. decided by reference to the law of Georgia ; ánd that as the widow, by the law of that State, acquired no right of dower in the land in which her husband was not ’seized at ;the time of his death, no greater effect can 'be -given to the contract of marriage in this State, than is given to it-in1 Georgia,'and therefore-the demandant is not'entitled to d'owér.</p> <p>The plaintiff moved, in the Court of Appeals, to reverse the judgment of the Circuit Court on the demurrer to'the ’defendants sixth plea, and for a new trial.</p> <p>1. Because the said demurrer ought to have been sustained, and the judgment thereon ought to be for the plaintiff.</p> <p>2. Because the said judgment was contrary to law.</p>

Before Frost, J. at Lancaster, Spring' Perm, 1849. This was an action of trespass to try title. Both parties claimed title by purchase under executions against John In-grem. For the plaintiff, were produced a judgment against John Ingrem, at the suit of Arant, entered up the 14th Nov. 1845, and a fi. fa. lodged 14th Nov. 1845, endorsed for the collection of $100, with interest from the 15th August, 1844, and costs.

<p>The 38th section of the Act of 1740, for the government of slaves, which imposes a penalty on an owner for refusing or neglecting to provide for his slaves sufficient food and clothing, to be recovered before a magistrate, is not unconstitutional.</p> <p>That section is not repealed by the Act of 1839, regulating the office and duties of magistrates.</p> <p>The Act does not piovide what kind or quantity of food or clothing shall be sufficient : but leaves that to be determined by custom.</p> <p>No appeal lies from the decision of the magistrate in a prosecution under that section.</p> <p>2 Strob. 564.</p> <p>1 Bail. 209.</p> <p>7 Stat. 37a</p> <p>4 Stat. 540.</p>

<p>In an action for malicious prosecution, the fact that the grand jury had returned “ no bill” against the plaintiff, is not prima fade sufficient evidence of the want of probable cause for the prosecution which had been brought against him by the defendant, so as to save the plaintiff from a non-suit.</p> <p>The case of Slider v. Myers, (MSS. Columbia, Spring Term, 1838,) reviewed and reversed.</p> <p>Decided in 1828, at Col.</p> <p>Col. Spring Term, 1828.</p> <p>4 Taunt. 7.</p> <p>Taunt. 187.</p> <p>qE _ ^47.'L</p> <p>5 Taunt. 187.</p> <p>M~Mu1. 74.</p> <p>13 Pet. Abr. 296.</p> <p>9 East, 361, & 1 Camp. 199.</p> <p>1 Camp. 199. Note A. 203.</p> <p>Ib. note A. 203.</p> <p>2 ’499‘ Rice’ 51.' RiceiS06-</p> <p>19 Eng, c. L. Rep. 47.</p> <p>4~Eng. C.L.</p> <p>1. McMul. 558.</p> <p>24 Pick. SI.</p> <p>Rice 309.</p>

Before Frost, J. at Newberry, Fall Term, 1846. This was an appeal from the decision of the Ordinary, refusing probate of the will of Margaret Dominick. The will was dated 20th July, 1841, and attested by three subscribing witnesses, of whom John Hair, who was appointed executor, was one. John Hair had not intermeddled with the estate, and on the 8th March, 1844, when the will was offered for probate, renounced the executorship.

Before Frost, J. at Charleston, Fall Term, 1847. This was an action brought to recover certain duties, taxes, or fees, imposed by ordinances of the City Council of Charleston, passed on 2d September, 1840, and 17th May, 1841. See digest of City Laws, pages 104 — 112.