Volume 35 — South Carolina Law Reports

<p>Before Wardlaw, J. at Abbeville. March Term, 1849. J ’</p> <p>Issue to try the truth of matters, which had been suggest-¡n |3ar 0f tpe defendant’s discharge, under the Insolvent Debtor’s Acts.</p> <p>The suggestion contained 16 specifications. In argument all were abandoned, except the 3 first, which, in various forms, allege that the defendant, after his arrest and before giving bond for the bounds, was at large: and except the 4th, which objects that a sum certain for the wages, which the defendant earned by managing a certain trust property, was not included in the schedule; and the twelfth, which insists that the schedule is false and fraudulent, because it is indefinite and uncertain.</p> <p>The schedule set forth that, in October, 1845, the defendant was discharged under the Insolvent Debtor’s Acts, after making an assignment of all the property he then had, including all his interest in certain trust property ; and that since that time he had made no acquisitions besides wearing apparel, and a few articles which were set down.</p> <p>That in April, 1844, John Hearst, his father-in-law, executed a deed of trust, whereby certain negroes, horses, tools, furniture, &c. were conveyed to Joseph L. Hearst, trustee, with large powers, in trust for the' sole and separate use of Jane, the defendant’s wife, during her life, and after her death the whole, with increase and substituted articles, to be divided by sale or otherwise, between her children living at her death.</p> <p>That in December, 1847, in consideration of $1,300 paid by the trustee, a tract of land was, by John Hearst, conveyed to him in trust for the wife, Jane, and her children : and an adjoining parcel has since been, by the trustee, purchased from one Cochran, and paid for.</p> <p>That in December, 1847, John Hearst died, having made a will, whereby his executor was directed to purchase for each of his daughters, (including Jane,) a gold watch— which purchase for Jane, was never made.</p> <p>That in July, 1848, Jane died, leaving two children living — one of which was born after 1844 : and during her life, two of her children died — one before and the other after 1844.</p> <p>That during his wife’s life, the defendant managed a farm on the land, and with the negroes, horses, &c. above mentioned : and from it drew a support for himself and family, letting the surplus go to increase : and since his wife’s death, he has done the same: that nothing concerning wages was ever said between him and the trustee, and it never has been his intention to charge for his services more than a maintainance.</p> <p>Any interests that the defendant may have under any of the deeds aforementioned, or in the trust property, or in the estate of his deceased wife, or of his deceased child, or of his father-in-law, or in wages that may be due to him, with all demands he may have against the trustee aforesaid, or against the executor of John Hearst, are included in the schedule.</p> <p>The statements contained in the schedule were substantiated by evidence. Further, it appeared that the services which the defendant rendered to the trust estate, were worth about $> 125 a year, over and above his subsistance.</p> <p>The ca. sa. — Jefferson McCracken v. W. S. Ansley — under which the defendant was confined, was lodged in the sheriff’s office, December 8, 1848. Upon it was a return, stating that the sheriff had, by his deputy, D. W. Hawthorn, arrested the defendant on the 14th day of December, 1848.</p> <p>The prison bounds bond was dated December 12, 1848— D. W. Haw.lhorn, deputy sheriff, testified that on Monday (December 11) he saw the defendant in the street, near the sheriff’s office — told him of the ca. sa. (then in the sheriff’s office,) and explained to him what he must do. The defendant asked time for a few days to give bond, and said that when he gave it he would acknowledge an arrest. A few days afterwards, witness was out of the office for a day, or less time — -when he returned he saw this bond and wrote the return of the ca. sa. giving to the arrest the date of the day he wrote, which he understood was the day the bond was delivered to the sheriff: this day he believed was Friday.</p> <p>To whom the defendant delivered the bond, and when it came to the hands of the sheriff, did not exactly appear— for the deputy could not speak of his own knowledge, and no question on this subject was asked of Mr. Spierin, who attested the bond, and was examined to prove it; or of the sheriff, who was in Court and said something at the bar, but was not examined.</p> <p>The circuit Judge held that, to constitute an actual arrest, there must be some corporal touching — some physical detention of the person ; and that the bond took effect from its delivery to the obligee. He left it to the jury to decide whether the defendant was at large after his arrest, and before the delivery of the bond.</p> <p>He held that if there was any contract, express or implied, under which the defendant was entitled to wages for his services, his rights were included in the .schedule, and would pass under the assignment; but that if the defendant had wasted his time in idleness, or improvidently neglected to make his capacities produce the property which they might have acquired, it could not, therefore, be said that he had anything which was not included in his schedule; and unless there was some unfair concealment or corrupt agreement which was calculated to deceive, delay, or hinder creditors, there was, in the defendant’s failing to stipulate concerning wages to be paid for his personal services, no fraud of which his creditors could legally complain: — that the defendant was not bound to decide absolutely the legal questions which might be involved in ascertaining what were his rights, and if he had, upon questionable points, furnished full information, with an offer to assign whatever might be his, his schedule could not be rejected for uncertainty and indefiniteness.</p> <p>The question of fraud, in every shape that had been given to it in argument, was left to the jury.</p> <p>The applicant, W. S. Ansley, was then sworn, examined and cross-examined by Mr. Jones, the counsel for the plaintiff, who opposed his discharge, but nothing was obtained which the counsel deemed worthy of remark. His Honor then asked if there was any further objection to the discharge. and Mr. Jones having answered that there was not, and the final adjournment of the Court being expected that evening, (Friday,) he directed the assignment to be made and the oath to be administered, and signed the order for the discharge of the applicant.</p> <p>A verdict was rendered for the defendant.</p> <p>The plaintiff appealed from the verdict of the jury, and from the order granting defendant’s discharge, and moved for a new trial, and to reverse the said order.</p> <p>1. Because his Honor erred in holding that “ an arrest is a manucaption, or an actual laying on of the hands.”</p> <p>2. Because his Honor erred in holding that the bond offered in proof here by the prisoner, was such as the law required — when the proof was, that the bond here was executed several days before the arrest, and did not come into the sheriff’s hands until after the expiration of one day from the arrest.</p> <p>3. Because his Honor erred in holding that, although the prisoner was at large at least a day after his arrest, before the bond given by him came into the hands of the sheriff, yet he was entitled to his discharge.</p> <p>4. Because his Honor erred in charging the jury that, although the services of the prisoner were proved to have been worth at least $> 125 per year for the three years immediately preceding his arrest, more than was sufficient for his support and maintainance, his creditors had no right to them — and his not including them in his schedule, could not be construed into a fraud upon them.</p> <p>5. Because his Honor erred in expressly telling the jury, that there was no fraud proved that would prevent the prisoner’s discharge : whereas, whether there was fraud or not, should have been left entirely to the jury, as a question of fact, to be determined by them from all the circumstances of the case.</p> <p>6. Because his Hohor erred in permitting parol testimony to be offered to vary the sheriff’s official entries upon the ca. sa. and the bond.</p> <p>7. Because the verdict was contrary to the law and evidence of the case.</p>

<p>One of two Administrators may transfer by indorsement, a note due their intes-' tate.</p> <p>The holder of a note claiming the same as indorsee under a separate writing, which identifies the note in such a way as to satisfy the Cowrh and Jury, may sue and recover as indorsee.</p>

Before Wardlaw, J. at Abbeville, March, 1849. on account for services rendered by plaintiffs, as commission agents. Account admitted — and also admitted that an assignment was in April, 1848, made by the plaintiffs to J. Sibley, in trust for the creditors of plaintiffs, which included this account.

Before Evans, J. at Edgefield, Spring Term, 1849. This was an action of assumpsit by the plaintiff as bearer, against the defendant as maker of a promissory note. On the 3rd January, 1844, one W. B. Brannon gave the note, whereby he promised, one day after date, to pay to L. H. Mundy (the defendant) or bearer, the sum of $589 52-100.

<p>The Act of 1846, imposing a penalty upon sheriffs -withholding money after demand, & c. held, not to apply to sheriff’s bonds given previous to its passage.</p>

<p>By adverse possession for the statutory term, the occupant may establish a right' to the land within his enclosure, or actual occupation. But if he claims possession beyond tire land thus occupied, the extent and limits of that possession must be defined by reference to some'colorable title, as a deed or plat, or by visible marked lines, reputed boundaries, or other equivalent evidence.</p> <p>Two or more trespassers on a tract of land, cannot unite then several adverse possessions, and claim the whole tract as tenants in common.</p>

<p>After judgment obtained, and exeeution issued, forthe amount assessed in lieu of dower, — it appearing, on motion, that the respondent had been served with a copy of a different summons from that on which the subsequent proceedings were based — the Court ordered the execution, the judgment, and all the other proceedings, to be set aside.</p> <p>Generally there can be no doubt that a Court of Law possesses exclusive jurisdiction over the amendment, or vacation, of its own judgments. This applies most usually to matters of form or substance apparent on the face of the record. Sometimes, however, it is exercised as between the parties, on matters out of and beyond the judgment — as when a judgment has been obtained by duress, by misrepresentation to the defendant, by an abuse of the process of the Court, or byfraud.</p>

<p>The sureties of a sheriff are not liable for the printer’s fees, which the sheriff collected, or failed to collect, and refused or neglected to- pay over to the printer.</p>

Before Wardlaw, J. at Abbeville, March, 1849. payable to J. S. Seigle or bearer. There was filed for the defendant in propria persona, a plea in abatement — -a misnomer of the plaintiff’s name, in that he was called throughout the process, A. O. Norris, whilst his true Christian name was Andrew O. The plaintiff’s attorney, ore tenus, replied, that the plaintiff was known as well by one name as by the other.

Before Wardlaw, J. at Abbeville, March, 1849. Held: that Henry Spikes was injured, from the danger incurred by his receipt of and assigning a single bill alleged to be paid. 3d. Because his Honor inferred, and so instructed the jury, that from the production of the single bill in Court, it might be presumed that H. Spikes had the possession of the same, and that it had been returned…

Before Evans, J. at Edgefield, Spring Term, 1849. It appeared from the evidence in this case, that Col. Griffin, Christie and others, had been security for one Cochran, who owned a Newspaper Press at Hamburg. To secure themselves, they took a mortgage of the press. Cochran did not pay the debt, and they were obliged to do so. They proceeded to foreclose their mortgage by sale. At this sale W. M. Bobo, who in the mean time had become the Editor of the paper, purchased at $700.

<p>Before O’Neall, J. at Pickens, Fall Term, 1849.</p> <p>This was an action of Assumpsit, on a promise to marry.</p> <p>The plaintiff was a widow ; she was born and raised, and married, in the immediate vicinage of Pickens Court House. In the lifetime of her husband, he and she removed to Hamburg, where they were living at his death — she lived there a short time afterwards. She removed to Pickens, probably in 1841 — she lived with her husband’s father, whose second wife was the sister of defendant. She was living with him (her husband’s father) at Pickens Court House, in 1846. In that year, the defendant visited the plaintiff, and in December, he requested Capl. Levi Robins, who was boarding in the Hotel, kept by Mr. Capehart, to be at home, on a particular day, when, he said, he and Mrs. Capehart were to be married. He asked him to request the Rev. Mr. Kennedy to attend, and perform the ceremony. Before the day arrived, the defendant wrote to the plaintiff a letter, dated the 13th of December, acknowledging the contract, and desiring, on account of the objections of his family, to defer the marriage. On the 16th, he again wrote, and spoke of the letter of the 13th, and perhaps also of one received from her, apologizing for his delay, and proposing to be up, in a few days.</p> <p>and the brother-in-law of the defendant, proved, that after he left the village, which was in 1847, the defendant, in the spring, visited the plaintiff, at his, the witness’ house, on his plantation, and stayed two nights and a day. The witness said he asked the defendant whether he intended to marry the plaintiff? He replied that he did, in the fall!</p> <p>On the 18th of December, 1847, the defendant married Miss Frederick.</p> <p>The defendant’s defence was placed on the ground that the plaintiff was a woman of bad character. He proved that in 1839 and ’40, reports unfavorable to her character, as a woman of virtue, were freely circulated against her in Hamburg, and obtained credence from many, so as to exclude her from society there. One witness, however, said he boarded in the hotel kept by her husband and herself, and regarded her as a much injured woman.</p> <p>James F. Carradine proved, that in the Spring of 1847 he told his brother, the defendant, of these reports — and further, that he had heard she had contracted then, a disease, which prevented her from having children.</p> <p>and sister of the defendant, proved, that when the defendant told her of his approaching marriage, in December, 1846, she advised him to defer it, on account of reports against the plaintiff. She proved, that in the hotel, where she lived, she, witness, had seen things in the plaintiff she did not like. Her general conduct was not, she said, as discreet as it should be. The plaintiff once shewed her letters, which she had received when in Hamburg — she gave them to her to read, which she did : she advised her to burn them; it was accordingly done. One of these letters, written, as she supposed, by a man, (the name was torn off,) stated that he had seen her in Augusta, was much pleased with her appearance, and wished to know when he could have a private interview with her. On her cross examination, she admitted that the plaintiff lived with her, and kept company with her unmarried sister.</p> <p>In the course of the case, it appeared the- plaintiff could not read.</p> <p>The defendant here would have examined Robert A. Maxwell, Esq., to the character of the plaintiff:-he said he had no knowledge of her; since this suit, he had written, at the request of the defendant, to persons in Hamburg, making inquiries touching her character. His answer to give the information he received, was objected to, and excluded, on the ground that such proof was no evidence of general character! The plaintiff, by James H. Anderson, a witness residing in Hamburg, and examined for the defendant, proved that he knew her in 1839 and ’40 — that he knew nothing against her character. He had heard, he said, the rumors before spoken 0p jje boarded in the hotel kept by her husbanl; he saw nothing calculated to impeach her character for virtue.</p> <p>She by a number of witnesses, a good character fr°™ her birth to her marriage — and for the last eight years of her residence in Pickens, as a widow. Some of these witnesses stated matters to which special reference may be desired. Mr. Mitchell went to Hamburg, fall of 1840 ; knowing the plaintiff in Pickens, and hearing reports against her, in Hamburg, he said he tried to investigate them, and never could find anything like a just foundation.</p> <p>Colonel Jeptha Norton, after stating her character to be always good, said he had heard the Hamburg reports, and never believed them; he said they were, he believed, as little entitled to credit as a statement made to him, by his son-in-law, George H. Taylor, who told him, at his own table, he had seen the plaintiff’s late husband in the evening carrying her over the Savannah River, in a batteau, to, as he be - lieved, a house of prostitution, in Augusta. This statement, the witness said, he regarded as so absurd, that he never gave it, or any of the kindred reports, the slightest belief. It was abundantly proved, she was received into the best society in Pickens. Col. Miles M. Norton said his wife, with a full knowledge of the reports, received her, as a woman of good character.</p> <p>The jury were told, that as the plaintiff had fully proved the contract and its breach,' she was entitled to recover damages. What they were to be, great or small, depended on the defence of the defendant.] His Honor said to them, if it be true, that the defendant, on account of reports injurious to her character, resting on a good foundation, and unknown to him when he made the marriage contract, broke off the contract, then, in that case, small, very small damages ought to be given. If, however, the defendant made or renewed the contract with a knowledge of the reports, they would constitute a much slighter ground of defence.</p> <p>The case was fairly submitted under every view of the testimony.</p> <p>The jury found for the plaintiff, $625. There was no evidence as to the pecuniary means of the defendant.</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 refusing to allow Mr. Maxwell to speak of the general character of the plaintiff, while in Hamburg, because he did not live there; ruling that a witness to speak of the general character of a party, must live in the community in which the party resides.</p> <p>. 3- Because His Honor erred, in charging the jury that in the defence of the general bad character of the plaintiff, the defendant must show that the reports respecting her character, were well founded; whereas it is submitted, that according to the law, it is sufficient for the defendant to show that such reports came to his knowledge, and His Honor should have charged the jury to that effect.</p> <p>3. Because the damages assessed by the jury, according to the testimony, are. excessive.</p> <p>4. Because the verdict is contrary to the law and the evidence.</p>

<p>A trial ordered of a slave after two mistrials, is not a subject of appeal, until the trial be had.</p> <p>Generally an appeal does not lie from a Judge’s order ordering or refusing a new trial in the case of a slave convicted of a crime.</p>

Before Evans, J. at Barmoell, July, (Extra Court,) 1849. There had been a former suit between the same parties.— It was an action on the case for overflowing the plaintiffs’s lands, by the obstruction of a mill dam. The plaintiffs claimed as heirs-at-law of one Mims. The defendant claimed his mill, and the rights incident to it, under one Johnson.

Bejore Evans, J. at Barmoell, July, 1849. W. F. Provost was resident out of the State. C. J. Provost was served with process, and the absence of the other suggested according to the Act of the Legislature. The action was ou joint contracts ; one a note for $50,12th January, 1847; the other a note for $450, dated 17th February, 1847.

Before Wardl aw, J. at Pickens, April, 1849. Debt on a Mississippi judgment. There appeared a defect in the Judge’s certificate, by which the record of the judgment was authenticated. Upon the plaintiff’s motion, His Honor continued the case, to allow time for amendment of the certificate. The defendant claiming a nonsuit.

Before Wardlaw, J. at Abbeville, March, 1849. Assumpsit to recover ($96 60) the balance of mutual demands which had subsisted between the intestate, John B. in his own right, and the plaintiff, Wm. B. Sen.; and ($286 90) the balance of a share in the estate of old Wm. B. which John B. as executor of that estate, owed to the plaintiff. The counts alleged promises by the intestate, and by the defendant as administrator.

Before Evans, J. at Edgefield, Spring Term, 1849. This was an action on the case. The first count charged the defendants as partners in trade ; and the second, with a fraudulent combination to cheat the plaintiffs out of a debt due them by F. A. Schroder. The facts of the case, as disclosed by the evidence, were these: The defendant, F. A. Schroder, was about the town of Hamburg, a year or two, before 1840.

<p>Upon the return of Commissioners, under proceedings had in the Court of Common Pleas, for partition of an intestate’s estate, an order of sale was made, directing certain tracts of land to be sold by the sheriff, bonds, &c. taken, and the proceeds of the sales to be paid over, &c. to the distributees. The Court held that this was sufficient authority for the sheriff to collect and distribute— that the money which he thus collected, was “ money which came to his hands as sheriff;” and that, for his failure to pay it on demand to the persons entitled to it, his sureties were answerable under his official bond.</p> <p>"Where the sheriff, being holder of a bond given to him for the purchase money of land sold for partition, under proceedings had in the Court of Common Pleas, received a payment thereon before it was due, and delivered the bond to the obligor, the Court held that all recourse, either to the obligor or to the land, was lost to the distributees, — and that the sureties of the sheriff became liable for the amount thus received by him, on his failure to pay it over to the parties entitled, on demand.</p> <p>Under the breaches assigned, of not taking bonds, and not turning over bonds— money received by the sheriff, and not paid by him, (although the bond, upon which it was received and credited, had been turned over to his successor in office,) may be recovered, just as if, in violation of his duty, he had taken no bond for so much as his payments are deficient.</p> <p>A suitor shall not be driven from his action on the official bond, to some other difficult remedy, where there has been neglect of official duty by an officer, for the faithful discharge of whose duties the sureties have covenanted. — Yide Lowndes v. Pinckney, 1 Rich. Eq. 177.</p>

<p>Held, that whenever a bond taken tinder an order for sale in partition, is in the hands of a sheriff, and no direction to the contrary has been given, he may collect, and (if the necessery information has been given to him,) may distribute, being always at liberty to apply to the Court for instructions; that money properly collected by him on any such bond, “has come to his hands as sheriffthat even a collection contrary to orders would be a violation of duty which would create a liability for the injnvy thereby done, the least measure of which would be the sum received; and that in a suggestion like this, it is sufficient to assign for breach either the sheriff’s neglect to pay over the money he received, or his neglect to take and turn over bonds as required by law.</p>

<p>Tire Act. of 1847, which extends to four years the time in which a magistrate’s execution may be levied without renewal, held to be prospective, and not to embrace executions which were issued before it was passed.</p>

<p>If one sign a note, or endorse a bill, as agent, when he is not agent, he is person-' ally liable, although he do so bona, fide, and does no other act to deceive or mislead the person with whom he deals, except by the assumption of agency when he is not agent.</p> <p>Falsehood and deceit are not necessary to charge an agent personally with a contract he had no authority to make.</p> <p>The endorser of a bill of exchange, who, with a full knowledge of the failure of the drawee, and of all the circumstances which might affect his own liability, gave his note for the amount of the bill, interest and damages, can, when sued, take no exception to a want of demand and notice.</p> <p>Where judgment was confessed upon a note with a stay of execution which expired before the time when, in the regular progress of a suit against the principal, execution might have been recovered, this was not such an extension of the time for the payment of the note as would release the endorser.</p>

<p>Upon a note due on the 1st of February, 1841, the last payment made by de- c fendant, for himself and co-defendants, was on the 22d of February, 1843.— On the 28th of March, 1845, defendant promised to pay^the balance, which he supposed was to be ascertained upon a final settlement, the materialslbr which were in the hands of the creditor. The demand referred to was not doubtful, being the very note sued upon. According to the creditor’s affirmation on the trial, tire balance of principal due on the 28th of March, 1845, was the same balance due at the trial, (the same not having been reduced.) Plea, the statute of limitations. Plaintiff relied on the promise. The Court, without considering whether or not the promise relied on as evidence would be sufficient as a cause of action, held that, as evidence to keep alive the contract of the defendants, it was ample to rebut the plea of the statute.</p> <p>New trial ordered, where the Court were unable to discover how the jury could have drawn, from the evidence before them, the conclusion upon which they based their verdict.</p>

<p>It is necessary to prove a deed, or any other attested instrument, by the subscribing -witness. The acknowledgement of the grantor is incompetent evidence, though made under oath in an answer to a bill in Chancery. The rule is not confined to an issue between tire immediate parties to the instrument; but is the same if the acknowledgement is offered as evidence against a third person, and whether it is the foundation of the action, or comes in 'collaterally, as part of the evidence in the cause. Vide 1 Phil. Ev. 465.</p> <p>The defendant may prove, by the subscribing witness, as part of the transaction, the conversation of the parties to the instrument, before or at the time of the execution, which may qualify it, or affect its validity. The rule extends to any declarations of the parties forming a part of the transaction, which materially affect the act done.</p> <p>The issue was whether the consideration, the receipt of which was acknowledged in the deed, had in fact been paid when the deed was executed. — When, for the plaintiff, the witness answered that he saw no money paid, which prima, fade falsified the receipt, it was competent for the defendant, in reply, to show, by the admissions of the parties, that something besides money had been accepted in payment, or, in any other way, restore credit to the receipt.</p>

<p>Where a promissory note is endorsed by an agent or attorney in the name of his principal, under an authority to endorse notes, that is not a sufficient authority for him to receive notice of the dishonor of the note; for an authority to endorse does not include an authority to receive notice of dishonor. Vide Story on Prom. Notes, sec. 309.</p>

<p>Before Withers, J. at Edgefield, Fall Term, 1849.</p> <p>The prisoner was indicted as accessary to the murder of his wife.</p> <p>His Honor thus reports the case.</p> <p>I held the indictment sufficient in each of the particulars wherein it was assailed. It charged the prisoner, in various forms, with the crime of murder upon Matilda H. Posey, who was prove¿ have been his wife. In the two first counts he was charged as principal in the first degree, in the one by drowning, in the other by beating. In the third and fourth counts he was charged as principal in the second degree, his slave, Appling, being alleged, in the one, as actually perpetrating the deed by drowning, and in the other by beating. In the fifth and sixth counts, upon both of which he was convicted, the prisoner was charged as accessary before the fact in the murder, alleged to have been perpetrated by his slave, Appling, in the fifth by means of drowning, and in the sixth by means of beating. In the seventh he was charged as accessary, before the fact, to Appling and divers other unknown persons, alleged to have committed the murder by beating. The murder was charged to have been perpetrated by Appling, in the usual common law form, and the conclusion was against the peace and dignity of the State, and not contra statutum. This I held to be unobjectionable.</p> <p>There was not any allegation that Appling had either been convicted, or had stood mute, or had- exceeded the right of challenge; but there was evidence that he was dead, and that he had been murdered by the prisoner himself.</p> <p>I do not remember that the doctrine set forth in the third ground of appeal was urged on the trial.. At any rate I should have overruled it, unless the proof had been, as it was not, that the prisoner was present, using his slave as he would any weapon, or vicious beast, to carry out his felonious purpose — in which case it may, possibly, one day be held that one may be charged as principal in the first degree, treating the slave as any other means of destruction should be treated in describing a murder.</p> <p>The fourth ground will be responded to by my notes of evidence, hereto attached, from which I am of opinion the whole case will be seen, and therefore whether the jury were warranted in drawing a conclusion adverse to the position assumed in that ground.</p> <p>The matter of the fifth ground will be understood, from a copy of, the indictment.</p> <p>In regard to the sixth ground, I have only to remark that I suggested to the jury to base their verdict, if it was to be one of guilty, on some one count; since the means alleged to have been used were different in the fifth and sixth, to which the force of the evidence seemed mainly applicable, and there might appear some incongruity in finding the prisoner guilty upon both counts. Yet I do not perceive a necessary contradiction, and therefore absurdity; for the murder may have been perpetrated both by beating and drowning.— There was evidence to show the deceased had been cruelly ^ beaten, and there was also evidence to show that she had been thrown into the mill-pond, therein drowned, thence removed at night and buried.</p> <p>EVIDENCE FOR THE STATE.</p> <p>J. Gabriel Holmes: I am brother of deceased; Lewis Holmes, my father, is dead; he had 7 children, one dead be^fore him ; six now living; father died in November, 1847.— There was administration on estate and property sold. Prisoner bought at sale for himself, and he said he bid off some for my sister Eliza, who was then single, afterwards married, and her husband died last year. He bought all she wanted ; purchased Appling, called App. Estate sold for $29,000, about. Saw Matilda H. Posey on Friday, 16th of February last: got to prisoner’s at 9 or 10, and left there about 1. She came from towards spring soon after I got there. I dined there, she, John Shaw, I and the children, were at dinner. I did not see prisoner that day. Never saw her again ’til she was taken out of the ground. Heard of her being missing next day, Saturday; went to see about it: saw prisoner about the place: did not see deceased. Before that, two or three weeks, Eliza Posey had been at my house. Previous to that time she had been at different places; came to my house from prisoner’s. She went to his house on Monday or Tuesday after deceased disappeared. Saw her there two or three days after. Search was made for deceased — occasionally prisoner went with us — did not appear to do anything, only went along. Several of us went through the piece of woods where she was afterwards found. He said, when we proposed to search that part, it was of no use, it- had been searched sufficient. He was on horseback, and proposed to take the side where she was found, and we the other side, five or six of us. When I went down the next week, prisoner said I was there last and knew where she was, and said he would take ine with a warrant.</p> <p>H We made a little search on Saturday evening late.— Prisoner went in the crowd. I went on Saturday to see what become of deceased. On Sunday I was there and searched. We said something about the children, and I may have asked him if he would let me have two of them; the youngest about two years old. I proposed to take the oldest.</p> <p>M H There were four children : Matilda had been married about eleven years. The mill-pond had been let off Saturday for a search, and I suggested it.</p> <p>2. John Shaw: I was building a chimney for prisoner; went on 7th and began on 8th February. Eliza Posey, Matilda’s sister, was there on 7th and left on the 8th. On the morning of the 8th, hoard a dispute between prisoner and ;his wife, about his and a female’s tracks in the garden. I had a-negro boy sawing a sill, he ceased, and I heard Mrs. Posey say, “well, old fellow (or young fellow) I have caught you at lastthe negro then resumed sawing and I heard no more. Eliza was not at breakfast that morning; she left an hour or so after breakfast. I remained till 16th February. — - Prisoner was on that day at breakfast. I saw him no more till 4 o’clock. G. Holmes, I and Mrs. P. were at dinner.— The last I saw of Mrs. Posey was about 3 o’clock that day, giving directions to a negro woman dyeing some cloth at the end of the house. I met Posey coming out of the South door, and I asked, where have you been ? and he said, I have just taken a snack: asked, where is Matilda ? I said 1 saw her out at the end of the house just now. We walked in the house, and he asked, what o’clock? I said, about 4. He said it was that when he left Squire Rhodes’s, (2 or 300 yards off.) I asked how he came, and he said he came along the creek by the mill: we sat down by the fire and he again asked about Matilda several times, and I asked what he wanted with her. He said he wanted to get clean clothes. I asked what he wanted with them,. He said he wanted to go to an election at Alfred Hatcher’s next day. I said it was a curious time to put on clean clothes in the evening, tie said he wanted to have them ready in the morning. 1 said it was time enough to get them and put them on in the morning. He asked me down to the stable to take something to drink, and I went. Stable is on the way to the mill, half way, 50'yards or so from the house. He took up the liquor and said some big footed fellow had been here at his liquor. I said I supposed it was App. He said he reckoned it was, (I saw App. going that way, towards the mill,) he drank and I declined: put the jug in his pocket, and we started to the house. He stopped and proposed to go to the mill. I declined, saying it was cold, and I would go to the house. He said, go on, I will be there presently: he went to the mill, and after awhile he came up to the house, in 15 or 20 minutes, may be longer. As I returned from the stable, if App. had come the usual way from the mill, I would have met him, but I did not see him. When prisoner came back I asked if he had seen or heard any thing of Mrs. Posey. I think he said no. He sat in the place she usually occupied, and said he would give á thousand dollars, or a thousand worlds, if she was only sitting there ; it is true we used to have some disputes, but damn a house without a woman in it, and said if she did not want to live with him he did not want to live with her. We went to supper, and soon after he went to bed, saying he was tired. I worked, from the * spring, the opposite side of the house. I left. prisoner on Wednesday of the next week, and returned there on Sunday, the 25th, and again was there in March. Last time, I saw Eliza Posey in the room, and prisoner was on the bed in the same room: her dress was unhooked, and hair out of order.</p> <p>M- It was after March sale-day. I worked on the end of the house farthest from the spring, east end. I finished laying brick on Friday. While on the top scaffold, I -last saw Mrs. P. talking to negro woman. Spring 170 or 200 yards from house, westwarclly. Creek, Í think, lies north of the house. Mill-pond rather to the north, as I conjecture. Mill from house 00. 70 or 100 yards, by the road used. Stables between, about half way. App. had been sick a day or two about the house, but I did not see him. as I remember, before the time I mentioned that day. I told prisoner, on his return on Friday, that Gabriel Holmes had taken dinner there, and 1 did say I supposed, perhaps, Matilda had gone off with Gabriel, as the negroes said she had gone towards the spring. I was at the inquest over her body. I was a witness and told all I knew. May not have been the same story exactly I have told to-day. Did then say, and now do, I did not know how she came to her death.</p> <p>MM- I was not asked then the same questions as now.— Prisoner said to me once, (Sunday after she-was missing, I think,) I left Mrs. Posey here with you, and you say Gabriel Holmes was here and took dinner, and I’ll make you both accountable for her. I said if he did I would take the ne-groes up and find the truth about it, or to that effect. I could not have seen to the spring where I was at work. On the lfith of February there was a negro woman about the house nursing the children. App. was there about the yard, and a man and two boys attending on me, not out of my presence. On 17tk I saw App. in the house playing with the children. Saw no other negro fellow there that day.</p> <p>M- There was a cook Woman also.</p> <p>3. Levi M. Churchill: Was at prisoner’s on Saturday, 17th February. I called for prisoner, and negro tried to get into front door to find him, and gave it -up. 1 hallooed again twice, and a daughter of prisoner came and tried the door, and then went to a negro house between house and gate, and she soon came out, prisoner following, and a negro man, slim as I am; and negro leaned on the fence while 1 and prisoner were settling.</p> <p>' M. It was about 1 o’clock. I was travelling in a wagon.</p> <p>4. Allen Smith: I was at-prisoner’s about 9 th of, February, I think before dinner. I passed house and went to the mill. Posey said something to the effect that he was confused and would as soon die as live, and in one week there would be hell to play on that place. He said something had occurred at the house, they had a fray, and Matilda had rose on Eliza and run her off the over evening, and she had ridden his horse off, and he had taken his saddle to the house ■"near the mill, and was waiting for a cart to get a beast to ride and see what .had become of Eliza; thought that she was at Gabriel Homes’s.</p> <p>M- 1 have told this to different ones. I met Posey and Kirkland coming from the mill and turned back. Kirkland was about and may have heard most or all the conversation. I live from prisoner’s between 20 and 30 miles, I think, in Orangeburgh district.</p> <p>¡x¡ ¡xj. My brother was with me and lived in that neighborhood ; was hauling there jug ware.</p> <p>5. Gabriel Holmes : (recalled) I was at inquest, on Monday week after she was missing : saw her body. Dr. Addison made the examination. James Ransford was Coroner.</p> <p>6. Dr. Addison: Made post mortem examination. Wounds extended from near top of right side of head to the lowest rib on right side, and on and under the right arm. On left side of head from near top to the collar bone, and one on the elbow of the left arm. Those on the head caused death, I think ; some were on the temples. Almost all the head, except three inches on the top, was wounded. I think there was concussion. All the blows combined were enough to kill any human being in the world. Wounds in the temples were on the thinest part of the skull and likely to be most fatal — though those on the thicker part might have produced death.</p> <p>K I took off the hair but not skin of skull, and did not ascertain whether there was a fracture, but there was no indentation. That is not necessary to produce death. Skin was not broken. Body was beaten mostly on right side.— From 25 to 50 bruises on that side : head mostly mutilated. Would suppose a stick the size of my wrist might have been used.</p> <p>MM. If I had made an examination, by dissecting, I should have found fracture.</p> <p>7. Samuel Nickolls; I was at the school house near Rhodes’s, 300 yards from prisoneris, on the day Mrs. Posey disappeared. About 11 o’clock prisoner came to the school house. He had not been there before. He staid an hour and a quarter or an hour and a half. Came in and listened to the recitations: took two drinks of liquor. We went to Rhodes’s. I went for dinner. Posey declined to eat, saying he had been to dinner.</p> <p>i*|. Prisoner had three children at the school. I let out school about 12 o’clock, I left him at Rhodes’s about 1 o’clock.</p> <p>N M- I was employed by prisoner, Rhodes and others, to teach, and began in January,</p> <p>8. Cullen: Rhodes : lave about 300 yards direct from prisoner’s. (Witness points out localities on plat: prisoner’s house, Aiken road, pond, Rhodes’s house, spring, Mrs. Po-sey’s grave, school house, &c. &c.) First search I knew of was on Saturday evening after she disappeared. I joined prisoner alone and his father in the search. Search was made the following week, and I was along on Saturday following, the day before the. body was found. Several were engaged. We were to meet on next morning at the Thomas old field. I and my brother went over to prisoner’s on Sunday morning about 8 A. M. and I asked if any thing was divulged. He said “ yes, App. had confessed the murder of his wife to Franklin (another negro) the night before: had had to do with her and. drowned her, and buried her near the head of the branch above the spring branch,” (at which place the grave was found) and he had heard it the night before. I asked if he had the negro secured. He said “ no.” I and Kirkland went in search and could not find him, and I came back and went to bed. I said, perhaps he is at my house, we had better go back and get him. I sent my brother to get him, and when we saw him returning without him, I and prisoner proceeded to meet the other party. Posey said he would not be surprised if the negro would bring as many into the scrape as he could. Before we left, I asked if we should go to the grave, and he proposed to go on and meet the company. He never after asked me to help search for App. I told the company what Posey had said, and we went to the grave. We found the body in the grave. A lightwood knot fire had been burnt over it, and it would not have been easily found. It was completely level. I wrote, at prisoner’s request, a notice of reward for App. and published it in the paper. Some hand bills appeared, 1 think, before the notice in the paper. During Court, I think, in March. Reward was $100. I did not hear of the confession before I met him on .the Sunday morning aforesaid.*— When I would meet him, before and after, he was drinking, and I advised him to quit, and he would reply that he was worth 17 or perhaps $20,000, and I should not be hurt as an indorser, need not be uneasy ; should not suffer by him ; that “ Martin drank a damn’d sight of liquor, but not as much as people thought. Martin knew what he was about.” Such conversation occurred on Sunday after Mrs. Posey disappeared. He then said he would be worth 17 or $20,000 in spite of hell. Posey had not visited my house, more than twice after he got to drinking, which he began about June, ’48.— Came to ask help to raise his mill in October. There was no visiting between our families. At the start, I proposed to take up all his negroes and send them to jail. He opposed such expense; that we could get out all they knew without that. About a week after the inquest, Butler and others (who were after App.) came from the grave with a hoe, and asked whose it was. Posey said it was his, and asked me to take charge of it. I sent it to the Clerk’s office. I think there was blood on the handle. Butler proposed that the hoe should be taken care of. I was in Aiken on the day deceased disappeared, and met Wilson Kirlkland in the end of Atkinson’s lane, some three miles from the prisoner’s house. On that day I saw him in Aiken about one hour by sun, and I think I left him in Aiken. We passed through the woods where the body was found when I first searched.— We searched the creek, branch and swamp. In the latter part of the day Posey was with us, and Posey took a portion of the ground to search, on the extreme right, where the grave was finally found. I don’t know how or by whom the arrangement was made. He was between any other and the gra ve.</p> <p>M- I was security for prisoner for a pretty large sum, and was uneasy. His conversation, stated above, was both before and after his wife’s death. I thought he drank a great deal, lie had land, mills, and negroes, (20,) 1000 acres land. Suppose he was worth his debts and not much more. Had horses, and good stock. I had a hoe in disinterring the body, and saw but one there. Don’t know whether it was the same Butler brought. I was often at prisoner’s when sober, and saw no unkindness towards his family. Saw nothing else. Did not suspect any thing else.</p> <p>MH He told me four or five years before, he had whipped his wife. I saw an apron checked and the leg of a pair of pantaloons, such as App. wore in winter. Leg cut off or torn below the knee. The apron was wrapped around a stone. Can’t say I saw any blood on it; both had been in the water, I suppose. Mrs. Posey’s disappearance created excitement which increased much ’till she was found. I was excited, and it was announced the search should continue ’till she was found. When we found the grave, it appeared a walking cane had been stuck down in three places.</p> <p>9. Martin Rhodes: On 16th February I was at Cullen Rhodes’s. Saw prisoner that day there. He did not eat dinner there. He said to Mrs. Rhodes he would give $500 if his wife was such as she was. He said he would be worth $17,000 in spite of hell, and perhaps $20,000. Mrs. Rhodes is bound over,, but can’t attend Court. I left prisoner there at 3 o’clock.</p> <p>10. Robt. J. Butler: Was at prisoner’s two or three weeks afier deceased was found. - Think it was after Court here.— It was on Sunday. I had been hunting for App. after reward offered by prisoner, and by the Governor. Posey did not aid me, though I asked him. He said he was afraid to leave home, for Eliza, whom I saw there, was afraid to stay by herself. Some one said he thought App. was down upon v Shaw’s creek or thereabouts. Posey said he would be'damn’d if he was, he had as good a right to know where he was as any body else, and he is no where else but on the Island just above Augusta. I said I did not think so, for my plantation was near, and I did not think he would be apt to come about me. Some one said Boatwright had a negro run away, and Posey then said Boatwright’s negro had been at his house, and he had sent him home, and App. was either there or on the Island. Some one remarked, B’s. negro had run away again. Prisoner said, if you will go down there or to the Island to hunt for App. I will go-with you. I proposed to hunt him with my dogs. Prisoner said I could not trail him with them. I said I could, if he made a track; and he proposed to bet I could not, which,I offered to take up. I asked him if he had not offered reward: he said 3res. I said if I found him dead, I suppose I will get the reward, and he said no.— He said he reckoned he had the worst luck of any man in the world — “last year my wife all swelled up; a boy had died ; App. is dead, or as good as dead, and Eliza is swelled up.” Said nothing of his wife’s death. I searched there, and I expressed a wish to see the place where deceased was buried. We went to the spring, and some were about to go over a fence, straight to the grave. Posey proposed to me to go with him along the margin of the mill-pond and up the branch, and we did. We had spoken at the house of the course of the grave; and when we had examined the grave, we went to search for a pine, to see if it was above or below the line of direction of the grave from the house.— Prisoner wanted us to go back as we came ; but Ave Avent by the pine, but saw nothing. Not-satisfied, I hunted on that day and part of the next. I Avent back, through the same piece of Avoods, provoked to it by prisoner’s anxiety before, that Ave should not take that course. Allen Franklin, Coleman and Holmes, Avere along, and afterwards prisoner came. As we Avere alighting to go through the woods, he Avantedus to mount and go up higher, a Avay fresh cut, but we did not. When Ave got down some distance in the line of direction from house to grave, ave found a Aveeding-hoe leaning against a pine stump, 30 or 40 yards from the grave, perhaps 50 or 60. (Hoe produced, Avhich Avitness says looks like the same hoe.) I suppose there are marks of blood on it. Posey said it looked like his. I asked him if he did not think there was blood oil it; he said he thought .so. Allen Franklin Avas Avith me tvhen the hoe was found : prisoner was not present. I said to prisoner, I thought it ought to be taken care of; ánd he asked Rhodes to take care of it.</p> <p>Posey followed behind when rve -first went through from the grave by the pine.</p> <p>11. Allen B. Addison: I am coroner; held inquest on a negro near Lexington line, at the head of a branch surrounded by swamp; bones of legs, and head, and hands were separated ; not in a state to exhibit wounds, but in turning it over a bullet was found; head dislocated from neck; prisoner was not present; some present were from his neighborhood.</p> <p>12. Giles D. Mims ': Was at inquest above; found a ball; it was in the body ; ribs were naked, and in turning over the body ball fell out. One rib was shot 2-3d’s through, perhaps left side ; .discovered no other mark. Saw a leather string, marks of a person having been tied with it; it was tied. — ■ The place from prisoner’s, 10 miles nearly.</p> <p>13. Cullen Rhodes, (recalled) — Was at inquest. I identified negro ; thought remains those of App.</p> <p>H Was flesh on some part of the bones; one shoe on; could see a little skin; skull clean; head detached. App. had a sore leg, and one leg bone was affected, and a rag around that leg bone tied, was all that was found ; that was all that identified remains, in my opinion; the clothing was not such as I saw him wear that winter. Inquest spoken of, was five or six weeks after that on Mrs. Posey. It was the day before Kirkland was arrested, and shortly before prisoner’s arrest.</p> <p>14. Alfred Hatcher : Prisoner came to my house and asked me for a pair of pistols, and carried them off, perhaps the Wednesday after his wife was found ; they looked like horseman’s pistols. I did not know any pistols were in the house. Wilson Kirkland’s wife was living with me then, and he asked her for them, and she said they were there.</p> <p>M. He asked me if Kirkland did not leave pistols there, and his wife was referred to as probably knowing. Mrs. Kirkland is my daughter. Kirkland had undertaken to oversee for prisoner that year.</p> <p>15. Virgil White : Was of party that arrested Martin and Eliza Posey, on Saturday night, 6th or 7th April last. I en-quired for Martin Posey and did not see him. I searched for him and found him up stairs ; asked him to open the door ; he refused. I said it was his father’s house, and I did not wish to break the door open; he refused, and I said I was coming in any how. He ¿greed, on. my proposal, to talk to me in the yard, and did through the window. I could not persuade him to open the door ; I said I was going in any how; he said, if so, I would do it at my own risk. When I went up Posey was standing in the door. Eliza Posey was in room with him, and one Jones. When we came down stairs he asked me to let him go in the room and dress; I consented. He stood by the fire awhile, and I was talking to him, but not about this affair, and he observed: “ you have not got the right man.” I asked him who then was the right man. He said, “ Gabriel Holmes was the last man, ever seen with my wife.”</p> <p>16. Hinchey Winn: Was present at the arrest above ; we had a warrant; I think it was the day after Kirkland was arrested. I called for prisoner twice, and got no answer, but hearing him talk through the window, I went back, and he answered, but he refused to open the door : I threatened to</p> <p>knock it down, and he said, if so, it would be at my own risk. But he came to the door and was arrested.</p> <p>Jxj. We got there about 9, P. M.</p> <p>17. ( Wilson Kirkland called. Prisoner’s counsel produce a warrant against witness by clerk, as principal in second degree in this felony, founded on information given by Gabriel Holmes, on 22d June, ’49; warrant dated 25th June.— Warrant against same, 6th April, by magistrate, charging him as being concerned, or aiding and abetting, or knowing of the murder of Matilda Posey, founded on same information. A warrant against same by clerk, as accessary before the fact, to the murder of App. a male slave, on or about the 1st March, 1849, dated 22d June, 1849, on same information. Argued for prisoner: That when an accomplice is charged with capital felony, Court in its discretion will exclude him ; practice is founded on that of approver. When he confessed, his confederates were put on trial, and approver undertook to convict them, and his pardon depended on his success. If he failed he was hanged on his confession. This is superce-ded, and now the king’s witness is received only on leaking a full and frank confession of his own guilt, and that of his accomplices. To admit him, a motion must be made to the Court, which will not admit him if charged with other felo-liies. Solicitor, contra. — Does not yet appear that Kirkland is an accomplice. He may be unjustly charged. Griffin, for State. — General rule well settled that an accomplice is a competent witness. Carroll, in reply. Held to be a competent witness.) Witness sioorn:</p> <p>Wilson Kirkland: I went to prisoner’s about 1st October, ’48, to live. I had been perhaps a few days at work for him; prisoner came to Alfred Hatcher’s, and he said his wife had fallen out with him that morning, and was jealous of him and Eliza, and he wanted something to drink, as she had fretted him; and after drinking he said he had had something to do with Eliza, and some day or other he intended to make a wife of her. Posey had Jeff hired, belonging to Boatwright, of Lexington; he staid there till about 1st February. Posey said he hired him first to doctor some of his negroes, and understood he was a conjuror, and that the negro probably had told him he could do something that would secretly cause his wife’s death; and he said the negro wanted him to buy, and he said he would not buy the negro till he had first done something to put his wife out of the way; that the negro had appointed several times to do it, and-kept failing ; and he said that App said if Jeff were gone, he could put Mrs. Posey out of the way. I said to him Jeff could not conjure his wife out of the way. He asked me if I could carry Jeff home. I said I could if he would keep him there till next morning. I then went to A. Hatcher’s, got clothes, and next morning carried Jeff home; that is, about the 1st February. (I was Posey’s overseer.) About two weeks before Mrs. Posey disappeared. I heard prisoner say several times, if his wife was out of the way, he would marry Eliza. He was most always drunk, and talked to me freely. Said he thought I possessed some powers Jeff did, and that was the reason he talked to me as much as he did. He said he sent Jeff home because he found he would not, or could not, put his wife out of the way, and he had no longer use for him, and as App said he could if Jeff were gone, he wanted Jeff out of the way that App might. I was at Aiken on the day Mrs. P. disappeared. I left Hatcher’s in the morning, and met Posey the other side of his house, 1-4 mile, where -he had liquor. Pie said he expected to meet me about that place, and I said the same to him. I saw Rhodes before that. Pie may have asked me to go to Aiken, and I said Martin might not know where I was gone. When I met Posey he invited me to go to the jug for a dram, and pulled out a bottle for me to fill. 1 suggested we should not go together to the house, fás Mrs. Posey might fall out with me for fetching him some liquor. I went to Aiken to see about buying a negro, for sale there, at Posey’s instance.. Just before I left him, I asked him what the negroes were doing. He said Luke was driving the wagon; that he had something else for App to do, and it would not surprise him it Tilda was not alive at night. I went right on to Aiken. Posey said he was going to the school house; was a little more sober than common; had not been to the school, and would go and see how the new teacher was coming on. I went to A. Hatcher’s, asked for a horse, got it and went to Aiken ; staid there till sunset or after; came back to Hatcher’s; staid there till after 9; then asked him for 1-2 gallon of whiskey; went to Posey’s, exchanged horses; went to my father’s to meet Blewit Jones,# on agreement. Did not meet him ; staid there till cock-crow •/ left there; went to Posey’s; arrived just as day was breaking; had been up all night, and drank a good deal; went to the room where I usually slept, and found the door locked ; then went round house to Shaw’s room, and went in where he was lying. Then went to Posey’s room, was telling him about my room being locked, and he said Mrs. Posey went off yesterday and had not1 returned, and he had locked the door to keep the negroes out. He said Gabriel Holmes was there yesterday, and he supposed his wife had gone home with him. At breakfast some of the children came in and said, “pa, there is a great'big ñre yonder, not far from the fence.” He said, no, I reckon not. After a while a negro or child again mentioned the fire; and 1 said, I wonder if there can be any fire; and he said, I reckon it is App burning a coal kiln, I told him to burn one. When breakfast was over, I walked towards the stable, and saw the smoke; I thought from what I had heard before, that if App had killed his wife, the fire was burning over her, and I-came up the Edgefield road and went in 20 steps of it, and it did not look like a coal kiln, but pieces-laid strait along, and I thought I had best get away as easy as I could; and then 1 came back to Posey’s house. I never let Posey know that I had looked at the fire. Afterwards, two or three days, he said he would marry Eliza about the 1st June, and go away. He told me App said he had killed her, buried and burnt the coal kiln over her. He and App both told how it was done, that is, App was at the spring, and some little negro children came down after liglitwood, (Mrs. Posey had put fish down there to. soak,) ancl App told them to tell their mistress the spring house door was broken open, and she came down; and he said to her, you have always accused master Martin of having something to do with other women, and if she would go over the fence, he would show her the fact, that he was with another woman. She went a piece and stopped and said — -App, I know what you are after, you want to kill me, and turned back and started towards the house. He caught hold of her and said, 1 want to do it. She said, App, Pll have you hung. He-said you might have me hung, and you might not, which was about the last she said. I asked App how he had killed her, and he Said he had drowned her, said nothing about beating her; had throwed her in edge of mill pond till night, then got Louisa and Franklin, who helped him to bury her. — The foregoing account I had repeated to prisoner, as coming from App, and he said he had told him the same thing. Shaw came to prisoner’s a week perhaps before her death. The morning Shaw began, Mrs. P. and prisoner had a dispute. She said she saw him with Eliza the night before ; out in back of the garden. I and Posey were at breakfast when she began. He said he was not there; she said he was; he said, if so, his tracks were there, and they went out to see if they fit. When he came back he said they did not fit. She said he was there the night before, for she had looked at them as long as she wanted. Before we came to breakfast he said to mo, he had been there, and made'Franklin go and substitute his tracks. In an hour or so Eliza went to Gabriel Holmes’s, 7 miles off; went by the mill. He told me he had sent up to Holmes’s to see if his wife was there, and Eliza had sent him a letter to come after her; read me the letter. He started after her on Tuesday. I started with him, and met my father, and got him to take my horse and go with him. He said Eliza requested him to come for her, he had as good a chance now as he would ever have, and if he ever intended to take her, now was the time, she would wait no longer; had waited a long.time and would not have Joe Morris on his account. Eliza came on Tuesday after the death of his wife. I found her there that evening. She behaved there as if she was at home, as if every > thing belonged to her. There was a door between the rooms they occupied. I have heard them talking together at night in same room. At supper she said, if you don’t mind I’ll tell all I know. He said, tell and be darn’d, if you tell all you know, you’ll tell as much on yourself as any body else, for you first began it. The night before I heard her crying in her room, he in there talking to her, heard some conversation. She said she had destroyed her peace for the sake of him, and she did not believe he would take care of her, as he had promised. He said he would. Prisoner and I often talked of this matter. On Wednesday morning after App had ran away, on Saturday night before deceased was found, he told me he had sent Jake down to Ergle’s bridge with App, on Edisto, and told .him if he could get a chance, to kill him, and to tell App he would send me there to carry him away, as he was to have his freedom for killing his mistress, and he wanted me to go down to the bridge to see if the negro was yet there. In the meantime Jake came, and said he had left App there, and the plan was that whoever first came to take him away, was to throw a stick down, and he was to come out from under the bridge. I started on, got 1 or 1 1-2 miles from mill, met my father and Elbert Po-sey coming to prisoner’s; we talked awhile; I did not go to the bridge, but within a few hundred yards of it. I saw prisoner next, on Thursday morning; he fixed up, and when he came back he told me he had killed the negro, at the head of Bog branch ; shot him, after tying, with pistols. I saw them before he started off. He said he was either going to carry him off or kill him. When he first got off his horse he said he had often heard if any person committed murder, he could not be satisfied any more, but knowed it was not so, for he now felt better than before. He told two tales about the manner of killing him, (which the witness states.) Pistols were large, square barrels, flint and steel, horseman’s pistols; he said he got them from Alfred Hatch-er’s.</p> <p>jxj. I have been in jail near six months; was confined before Posey, for being something knowing, or party concerned, in murder of App and Mrs. Posey. I made a statement to squire Addison ; was sworn on inquest over Mrs. Posey; not know as much then as now ; 1 have heard much from prisoner since. I did not tell on the inquest all I knew, for I was afraid; don't recollect I told any thing false then. I reckon what I then said was true. I told inquest that I told App to burn coal on Monday, after Mrs. Posey was missing. Negro Franklin was twice examined before the inquest. Between those times, I talked to Franklin, and said he had forgot or falsified in saying he had not seen me on Saturday night at the room door; I don’t recollect threatening him if he did not go back and rectify it. I got to A. Hatcher’s at supper time on Friday night, from Aiken; several were there, (named.) I went off about nine, and returned next day at late breakfast. Hatcher talked to me, and I told him I had slept none : told him I had been to my father’s to meet Jones. Franklin came to me before day on Sunday morning, before inquest; I told the fact to Posey also, before day; Franklin may have gone to him afterwards. That night, before day, X went to the negro houses to search for App, and did not find him, and Posey was along; but it was all a made up affair, for it was known App was gone. It was not made up that Franklin should come to me that night, but it was made up between prisoner and me, that Franldin should tell App to go awa]q that he might not be caught. I think I told Franklin to tell App to go, Saturday night sometime before day; 1 did not tell him where he was to go. — (Franklin, I stated on the inquest, came to me at night or Sunday morning, and told me he had found out that App had killed Mrs. Matilda; I told Posey and we went to search for App, &c.) This was true, but it was all a made up affair for Franklin to come tome. (Another portion of the inquest, signed by the coroner, and not by witness, is read, and the witness says he does not recollect he said so before the inquest, about Fra'nklin’s being threatened if he told us App would get away.) I did tell Franklin not to tell about our making up for App to go away, or I would be the death of him. I did not state it exactly that way before the inquest; did not give the inquest a true representation of what occurred between me and Franklin. I was afraid if I told what I knew, my life would be in danger, it was agreed.between me and prisoner, that it was not to be known that Franklin had said any thing lo me. I do not know that Mrs. Posey was dissatisfied with App or me. At one time she seemed so, because I would take a drink with prisoner. I told Elbert Posey I told App that if his master did not carry him away, I would. Tnis I told App one day at the mill, who was complaining of want of something to eat, and talked to me of his master wanting him to put his mistress out of the way, and his master was to carry him away, and he feared he would not, and I told App if he did not I would. was ju Mrs. Posey’s life-time. But I did not think he would kill the woman. I don’t know whether I am to fare pg^g,. for this testimony ; I think so. Probably I have been told that they thought I would fare better by coming out and telling the facts about the whole affair; more than one has told me so. — Bacon advised me so, and I think the sheriff, and Luke Lott who arrested me. The Solicitor told me it would be best for me to tell the truth about the whole affair ; or if I would do it, it might be the best for me. I made a statement before squire Addison, sworn to I suppose. It was as true as I could then recollect, but I was then much scared, soon after I came here. On Sunday morning, after Franklin had got out, I had conversed with old Ben Hatch-er, and I said that nothing had been heard of Matilda, for the plot with Martin was, that 1 was not to tell I had heard any thing of her; he was to say the negro came and told him after I went away. But he told, and this alarmed me lest he would implicate me some how.</p> <p>¡xj . I was low in health when I made communication to Goi. Christie; 1 thought I would not live, and wished to tell the truth before I died. I might not be able to remember now what I said to him.' I think Posey said the message to Gabriel Holmes was sent on Saturday.</p> <p>18. James Ransford: Am magistrate ; acted as coroner at inquest over Mrs. Posey; found body buried two or three hundred yards from house. Prisoner was sworn on inquest, • first witness. He swore the body was that of his deceased wife ; he did not know how she came to her death, he wished he did. He said he saw her last, morning of Friday, 16th February, and they had made frequent search, and had found the body, through information from negroes; that App had told Franklin that he had killed her. App’s character was bad; and he and the overseer had made search for App that morning, and did not find him; that App had said, I think, he had killed and buried her, and burned a coal kiln over her; that he knew of no bad relation between App and her. Franklin was recalled before inquest, at the instance of a juror.</p> <p>¡x¡. I took down the testimony at inquest. Prisoner said, I think, he returned the after part of the day and eat, and enquired of several persons for his wife, of Shaw, his daughter and the negroes. Shaw was sworn. He said no more than I took down, though I pressed him to tell all he knew. He only said he saw Mrs. Posey on the 16th of February, afternoon, about 3 or 4 o’clock, and not since till he saw her body; knew not how she came to her death. Wilson Kirkland was the next witness. He said, having occasion to go out of the house about two hours before day on Sunday morning, a negro, Franklin, came to him and stated what App had told him; that Frank said App told him he had destroyed Mrs. Matilda; he went in, put on his clothes, and called on' Posey, and told him what Franklin had said, and Posey and he went out to look for App, and did not find him. He had not seen App since Saturday evening, 24th February; knew him for 5 or 6 years; character bad. He ordered him to burn coal on Monday, 19th, and App said he burned some on Saturday before. — (He signed the testimony after it was read to him.) Franklin was examined and was admonished to speak the truth. Kirkland voluntarily came forward as to a discrepancy, and tried to reconcile it; made a statement, which I took down, did not regard it as testimony. He said he had told Franklin that if he told any one what App had told him, he would have him hung for it, and he did this to deter Franklin irom making this known, lest App should escape. Inquest was on Monday, 26th February.</p> <p>Wilson Kirkland was asked to relate what he knew in relation to the death of Mrs. Posey.</p> <p>19. Wilson Kirkland, recalled: App said she was killed near the spring, which is in this District. On the morning that Posey went to kill App, he said to me, when I told him I had seen App, he would rather than $601 had killed him. I said to him, I could not do that, he had never done any thing to me for me to kill him. Elbert Posey said, if any body has to kill him, Martin, I think you ought, for if he is to be killed, it is to screen you. He said he would do it. Before Mrs. Posey’s death prisoner told me he liked Eliza very well, and she appeared to like him, and his wife kept him constantly frustrated, and he would like to get shut of her by some means or other if he could. We frequently talked of the matter. Before and after her death, prisoner' told me he had told App to put her out of the way, in order that he and Eliza should get together. App was lulled on Thursday, as prisoner said, 1st of March, 1 think.</p> <p>¡xj. I saw App on same Thursday morning, about half a mile from my father’s, and went with him on Thursday morning before day, below Mims’s mill, and shewed him the path that went to the head of Bog branch. While search was making for the body I knew where they told me it lay. I told prisoner where I expected App was, that I had showed him the way to the head of the branch; told prisoner the way there. I was here a short time before her body was found ; conversed with Mr. Bacon ; prisoner got me to come and consult Griffin about his wife being gone, and got some blacksmith’s work. Don’t remember Bacon or any one else told me to go back and bury the body decently. Bacon, after I was imprisoned, told me he could see by my countenance, I knew something about it. Don’t remember asking Bacon how he knew I knew where she was buried. We not determino to take App off in consequence of any conversation here before I was arrested.</p> <p>¡xj. (xj • Prisoner said he had been to the head of the branch, but he did not know he could then find the way.</p> <p>20. Tillman Kirkland: Brother of Wilson Kirkland. (Were any efforts made to bail Wilson Kirkland?. Objected to as irrelevant — -Objection withdrawn.) I think there were efforts made to bail him. I was offered money to pay the counsel fee to procure bail for Wilson Kirkland. Mr. Mo-range was brother’s general 'counsel, but the money was not to be paid to him. The money was not to be paid by my family. No particular'person was mentioned as bail, but the bail was not to be worth the bond. I do not know that the prisoner had any thing to do with the transaction.</p> <p>21. Cullen Rhodes, recalled: Spring from Posey’s house is 150 or 200 yards; to the mill 250 yards; from mill to spring 300 yards; going from mill up, the bond, house top can be seen, but would not be seen from the yard; could pass from mill to spring without being seen, by one on opposite side of the house, and Shaw could only have seen one from top of the chimney.</p> <p>¡xj. For some days before prisoner’s arrest, he was suspected of being implicated in the murder, and he knew it, a- good many'days before, more than a week, perhaps two.</p> <p>22. Wm. M. Johnson, Magistrate: Kirkland was arrested on the evening of the day of inquest over App. I was asked next day to go to Mr Francis Posey’s and carry a marriage ceremony ; I did not go.</p> <p>¡xj. Prisoner did not ask this.</p> <p>The prisoner pffered no testimony.</p> <p>The jury found a verdict of guilty on the 5th and 6th counts, which charge the prisoner as accessary before the fact to the murder of Matilda Posey, at the common Jaw, by his own slave, App; in 5th count by drowning her, and in 6th count by beating her with a. stick.</p> <p>The prisoner moved in the Court of Appeals for arrest of judgment, or for new trial, on the grounds:</p> <p>1. That the indictment does not charge the murder by the principal, to be against the Act of General Assembly in such case.</p> <p>2. That there was neither allegation nor proof that the principal had been convicted of the murder, or had stood mute, or exceeded his right of challenge.</p> <p>3. That the prisoner could not, by the law of the land, be an accessary before the fact to murder committed by his own slave, by his command and coercion.</p> <p>4. That there was no proof that the prisoner had incited his slave to murder, by physical means, or otherwise than by conjuration.</p> <p>5. That neither of the counts upon which the defendant was convicted, contains the general conclusion necessary in such indictments, that the defendant had committed murder.</p> <p>6. That the verdict of the jury is inconsistent and absurd, as one cannot kill the same person by drowning and by beating too.</p> <p>The charges in the indictment áre ás follows;</p> <p>1. The first count charges that the defendant murdered the deceased by drowning.</p> <p>2. The second, that he murdered her by beating with a stick.</p> <p>3. The third, that the defendant and his slave App had committed the murder by drowning, both making the assault upon her, App throwing her in the pond, and the defendant being present aiding and abetting.</p> <p>4. The fourth is same as the third, except that the death is alleged to have been caused by beating with a stick by App, instead of drowning.</p> <p>7. The seventh charges that App, and certain persons unknown, committed the murder by beating, and that the defendant was accessary before the fact.</p> <p>The fifth and sixth counts are as follows:</p> <p>5. “And the jurors aforesaid, on their oaths aforesaid, do further present, that a certain negro slave named Appling, the property of Martin Posey, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the sixteenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, with lorce and arms, at-Edgefield Court House, aforesaid, in the District and State aforesaid, in and upon one Matilda H. Posey, in the peace of God and of this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said negro slave named Appling, then and there feloniously, wilfully and of his malice aforethought, did take the said Matilda H. Posey into both the hands of him the said negro slave named Appling, and then and there feloniously, wilfully, and of his malice aforethought, did cast, throw, and push, the said Matilda H. Posey, into a certain pond there situate, wherein there was a great quantity of water, by means of which said casting, throwing and pushing of the said Matilda H. Posey into the pond aforesaid, by the said negro slave named Appling, she, the said Matilda H< Posey,-in the pond aforesaid, with the water aforesaid, was then and there choked, suffocated and drowned ; of which said choking, suffocation and drowning, she the said Matilda H. Posey, then and there instantly died ; and so that he, the said negro slave named Appling, her, the said Matilda H. Posey, in the manner and by the means last aforesaid, feloniously, wilfully and of his malice aforethought, ' ¿id. kill and murder, against the peace and dignity of the same gtate aforesaid: And the jurors aforesaid, on their oaths aforeresaid, do further present, that Martin Posey, late of the District aforesaid, befoie the said felony and murder was committed, in manner and form last aforesaid, to wit, on the sixteenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, with force and arms at Edgefield Court House aforesaid, in the District and State aforesaid, unlawfully, feloniously, wilfully and of his malice aforethought, did incite, move, procure, counsel, command, hire and maintain, the said negro slave named Appling, to do, commit and perpetrate the felony and murder last aforesaid, in manner' and form last aforesaid, against the peace and dignity of the same State aforesaid.</p> <p>6. And the jurors aforesaid, upon their oaths aforesaid, do further present: that a certain negro slave named Appling, the property of Martin Posey, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the sixteenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, with force and arms, at Edgefield Court House aforesaid, in the District and State aforesaid, in and upon one Matilda H. Posey, in the peace of God and of this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said negro slave named Appling, with a certain stick of the value of ten cents, which he, the said negro slave named Appling, in both his hands then and there had and held, her, the said Matilda H. Posey, in and upon the right side of the head, in and upon the left temple, in and upon the right shoulder, in and upon the left breast, and in and upon the left arm, of her the said Matilda H. Posey, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto her, the said Matilda H. Posey, then and there, with the said stick, by the strokes last aforesaid, in manner last aforesaid, in and upon the right side of the head, in and upon the left templo, in and upon the right shoulder, in and upon the left breast, and in and upon the left arm, of her the said Matilda H. Posey, divers mortal wounds: to wit, one mortal wound on the right' side of the head, of the length of three inches, and of the depth of two inches; one other mortal wound on the left temple, of the length of three inches, and of the depth of two inches, and one other mortal wound on the left breast, of the length of three inches, and of the depth of three inches, of which said mortal wounds she, the said Matilda H. Posey, on. the said sixteenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, at Edgefield Court House in the District and State aforesaid, did languish, and languishing did live ; on which said sixteenth day of February, in the same year last aforesaid, at Edgefield Court House aforesaid, she, the said Matilda H. Posey, of the mortal wounds aforesaid did die; and so that he, the said negro slave named Appling, her, the said Matilda H. Posey, in the manner and by the means last aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid : And the jurors aforesaid, on their oaths aforesaid, do further present: that Martin Posey, late of the District aforesaid, before the said felony and murder was committed in manner and form last aforesaid, to wit: on the sixteenth day of February, in the year of our Lord one thousand eight hundred and forty-nine, with force and arms, at Edgefield Court House aforesaid, in the District and State aforesaid, unlawfully, feloniously, wil-fully and of his malice aforethought, did incite, move, procure, counsel, command, hire and maintain the said negro slave named Appling, to do, commit and perpetrate, the felony and murder last aforesaid, in manner and form last aforesaid, against the peace and dignity of the same State aforesaid.</p>

<p>On the trial of an indictment for the murder of a slave, evidence to show that the prisoner had but a short time before, through the instrumentality of the slave, procured the murder ofhis own wife, was held, to be admissible, as supplying an inducement to the murder of the slave, and indicating the character of the motive with which it was perpetrated.</p> <p>Where the Court perceived sufficient evidence to sustain the conclusion of the jury, they refused to disturb the verdict on the ground that it was inconsistent in having affirmed the guilt of the principal, and acquitted those charged as accessaries on the same testimony; (that of accomplices.)</p>

<p>To exempt himself from liability, the carrier must show that the damage proceeded fi om some cause which was within the exceptions to his general liability.</p> <p>When there has been neither evidence as to the condition of the vessel when she sailed, nor evidence as to any storm encountered, seams found open, and bolts loose at the port of delivery, raise a presumption that the vessel was unsea-worthy when she sailed, rather than that she encountered a storm on her voyage.</p> <p>Even where a violent storm has been encountered, if it cannot be fairly inferred that the damage resulted from the storm, a ship that has turned out to be unfit for sea, without apparent or adequate cause, ought to be presumed by ajury, to have been unseaworthy before the commencement of the voyage.</p> <p>The presumption that the unseaworthyness which has been developed, without adequate cause shown, existed at the commencement of a voyage, which has been carelessly called a rule of law, is one of those presumptions of fact which are recognized by the law, and recommended to juries as settled conclusions that have acquired an artificial force even beyond their natural influence to produce belief.</p>

<p>The presumption always is, in the absence of proof, that the parties to a written agreement between them have, on the subject matter, expressed their whole agreement.</p> <p>Where under the instructions given to the jury they might well be considered as having negatived the sufficiency of the evidence to rebut the presumption that the bill of sale of a vessel contained the whole agreement, to the exclusion of any implied warranty of soundness, the verdict was sustained.</p>

<p>Where there was no suspicion of unfairness, a writing on a separate sheet of paper, not signed by the testator, but connected by the sense and the dependence of one part upon the other with a second sheet, the last page of which was properly signed and attested, and which, when offered for probate, was recognized by the witnesses, was held by the Court to be a part of the will.</p>

Before Fuost, J. at Charleston, October, 1849. This case had been called several times, and as often passed, because the attorney for the plaintiff did not appear to answer to it, and no other attorney was instructed to do so in his stead. The defendant’s attorneys were present, and declared they were ready, and desirous that it should be disposed of; and demanded a trial. This demand was put off until the last and peremptory call of the docket.

<p>If account books offered in evidence are so kept as to be intelligible, there is no reason why they should not be equally admissible whether kept by double Or single entries, or by setting apart a page or part of a page, for each customer, and exhibiting in one view the whole account.</p> <p>To make an account book evidence, all that our cases seem to require, are that the book be regularly kept, and that it be the book of original entries. The evidence offered must not be loose memoranda, not a book into which the charges have been transferred from some other book, but the book in which the entries are made cotemporaneously with the facts which they record.</p>

<p>Where a tenant entered nnder a landlord claiming as absolute owner, and enjoyed the premises without disturbance, neither he nor those claiming under him can defeat the rights of the landlord’s heir, upon the ground that a better title than the landlord’s subsists in some third person, or by lapse of time has been transferred to the tenant.</p> <p>The title which the landlord claims, is the title which the tenant acknowledges, whether that claim be well dr ill founded.</p>

<p>The sheriff may suffer a prisoner arrested on mesne process to go at large, without being liable for an eseape, but the bail bond is the only sufficient excuse which he can have for not bringing in the.body at the return of the writ.</p>

Before Withers, J. at Gillisonville, Fall Term, 1849. The action was trespass quare clausum fregit: and the act of trespass was charged to have been committed in the plaintiff’s family burial ground — and consisted in girdling or chopping round a walnut tree, so as to destroy it, which the plaintiff insisted was within the limits of the graveyard, aud in moving posts that had been set in the ground as ‘ landmarks.

<p>The defendants, appointed by a resolution of the Board of Commissioners of Roads to rebuild a certain bridge, advertised as usual for proposals — bargained with plaintiff and took his bond for the faithful performance of the contract, signing and inserting their own names simply as “committee.” To an action on the contract the defendants pleaded in abatement the non-joinder of the other members of the Board. The plea was sustained, and on appeal, the Court ordered a new trial.</p> <p>When an agent maltes a contract as agent and at the same time names his prin- , cipal; in other words, when in making the contract, credit is given exclusively to his principal, he is not personally liable. Stoi'y on Ag. Sec. 263.</p> <p>' A person contracting as agent will be personally liable whether he is known to be an agent or not, in all cases where he makes the contract in his own name, or voluntarily incurs a personal responsibility either express or implied; whenever from the form of the transaction he has become a direct personal party to the contract. Story on Ag. Sec. 269.</p> <p>If the terms of a written contract made by an agent, show explicitly that he is an agent,and that he means to bind his principal and not himself, that construction will be adopted, however inartificial the instrument may be ; but if the terms are not thus explicit, although it may appear that the party is an agent, he will be deemed to have contracted in his personal capacity. Story on Ag. Sec. 155.</p> <p>In cases of unwritten contract, the question whether the agent is liable, or the principal, or both, is a matter of fact, generally left to the jury. The inquiry is, to whom is the credit knowingly given according to the understanding of both parties 1</p> <p>In general, where credit is given either to the agent or the principal, a presumption will arise that it is an exclusive credit. This doctrine applies to cases where the agent is acting for a known principal, and the party dealing with the agent elects to credit one and not the other. But where the agent acts without disclosing that he is acting as an agent, or when acting as a known agent he does not disclose the name of his principal, although credit is given to the agent it is not deemed to be an'an exclusive credit; on the contrary, when the principal is discovered he also will be deemed responsible as well as the agent. Story on Ag. Sec. 291 — 288—279—270.</p>

Before Frost, J. at Chambers, Charleston, January 26th, 1850.

Before Frost, J. at Charleston, October, 1849. Watson, Johnston & Go. had recovered judgment against Charles Hall, for whom the defendants were the bail. A ca. sa. on the judgment having been returned non est inventus to term of this Court, the plaintiffs sued out a scire facias on the bail bond, returnable to this term. When the case was called on the Enquiry Docket, Messrs.

<p>Without proof aliunde of the existence of the debt during the continuance of the partnership, the acknowledgment of a partner, made after the dissolution, ■will not suffice to establish a debt against former partners.</p> <p>Distinction between continuance of a former promise, and a new promise; none between a new' promise and a new acknowledgment, taken of itself, to establish a foi mer promise.</p> <p>T.he ease of Qaddes v. Simpson <$• Morrison, in 2 Bay, 533, questioned.</p>

Before Evans, J. at Georgetown, Fall Term, 1849. SUM. PRO. IN TRESPASS. It appeared from the evidence, that the Town Council oí Georgetown had issued two executions against the plaintiff, one for a p0U tax, amounting to a small sum, two or three ' dollars, aud another for a fine for not performing patrol duty. fptie Town Marshal had levied these executions on the plaintiff’s goods, and it was for this levy that the action was brought.

Before Withers, J. at Charleston, May Term, 1849. The plaintiff, as endorsee, sued the defendant, as maker, upon the following note: “ Ashepoo, 19th April, 1845. — $452 85. Twelve months after date, I promise to pay John Shanahan or order, four hundred and fifty-two dollars, 85 cents, for value received.” Signed by defendant. Various credits reduced the balance due upon the note on the 29th September, 1847, to $ 121 78, the last credit being of that date.

Before Withers, J. at Gillisonville, Fall Term, 1849. The action was trespass to try title, and related to a lot in the town of Beaufoit. One Givens, the father of Mrs. Hopkins, lived on the premises from 1811, and according to all appearances occupied and treated them as his own. He died in 1843, and the defendants succeeded him in the occupation. In 1847 the house was burnt.

Before the Recorder, in the City Court of Charleston, July, 1849 His Honor makes the following report: This was an action of debt to recover the penalty imposed by the City Ordinance of 1st June, 1840, upon retail grocers, for having liquor on their premises, without a license to retail the same.

Before Withe its, J. at Charleston, May Term, 1849. The action was brought to recover damages for the loss of a horse, and injury to the wagon and its freight, alleged to belong to the plaintiff, by reason of the bad condition of what was called Rantowle’s bridge.

Before Fhost, J. at Charleston, October, 1849. INDICTMENT l?OR CONSPIRACY. One count of the indictment charged the defendants with having conspired to defraud N. A. Cohen and others, creditors of Shumaker, without sefling out the means by which ihe fraud was to be effected.

<p>Case ordered for new trial, rather than re-argument, where it involved interests affecting the public at large, and of far greater moment than those which were the immediate cause of the suit; where the questions involving these interests had not been sufficiently noticed or argued, and where the delay would be as long by an order for re-argument, as by an order for a new trial.</p>

<p>The Master in Equity, on granting an injunction to stay the enforcement of an execution, took the bond of the applicant, for the sum recovered, payable to himself, his successors in office, &c instead of taking it payableto “ the plaintiff at law,” in the express terms of the Act of 1784. The bond was held to be substantially a compliance with the statute, and adjudged to be good.</p> <p>The bond required to be taken by the Commissioner in Equity on granting an injunction to stay the collection of money recovered at law, held to be assignable, and the action on the same to have been properly brought by the assignees in ilwirown names.</p>

<p>The writs of venire facias had, over the Clerk’s name, a small slip of paper attached by a wafer. The Court held this to be a sufficient sealing.</p> <p>The grand and petit jurors were summoned to attend, and the indictment alleged that the bill was found at “Harry Court House,” instead of “ Comuay-barough,” (the place appointed by law for holding the Courts of Horry District ;) the Court held, that '■ Horry Court House” was the more precise term ; but that in one sense both meant the same, and might be regarded as equivalent convertible terms.</p>

Before the Recorder, in the City Court of Charleston, July Term, 1849. This was an action of trover for sundry articles of household furniture, particularly set forth and described in the declaration. The plea was not guilty.

Before Frost, J., at Charleston, October, 1849. Held: that the levy on the horse and cart being void equally with the attachment under which it was made, did not protect the same from levy, in the hands of Gyles and Dusenbury, under the foreign attachment; and that the plaintiffs in the foreign attachment might, on motion, vacate the domestic attachment.

Before Evans, J., at Gillisonville, Spring Term, 1849. TROVER FOR A NEGRO MAN NAMED PROPHET. The grounds of appeal render only a concise history of the case necessary. One Mulligan, the sheriff of Beaufort District, under ajñ. fa. sold, as the property of one Ferguson, the negro Prophet, with others. He was bid off, and set down in the sheriff’s book to one Langford, whose name was used by Mulligan, to elude the law which prohibited him from buying at his own sale.

<p>There had been no formal demand upon the maker of the note, but upon its being presented to the endorser, he said he would try to get the money out .of the maker, and if he could not, “ he would have to pay it himself, as he was the endorser of the note” — held that the promise amounted to a waiver of a regular demand and notice.</p> <p>A promise, by the party entitled to notice, to pay the bill, is deemed a full and complete waiver of the want of due notice: but in all cases of this sort, the promise must be unequivocal, and amount to an admission of the right of the holder; or the act done must be of a nature clearly importing a like admission of his right. Story on BiUs, 363, See. 320.</p> <p>Where a man promises to pay a dishonored note, it is proof that every thing necessary to fix his liability had previously taken place; and if he is to have any benefit of his promise being made in mistake, he must show that the antecedent facts to his liability did not occur, and, therefore, that he was discharged when he made the promise; then if he can show that he was wrongly instructed in the law, and his promise was made in mistake of the law, it may avail him; otherwise not.</p> <p>A promise to pay, made after a bill becomes due, is considered an admission of a regular presentment for payment, and of due notice, or at least, waives the objection, because the party must be supposed to have known when the bill became due, and must have actually known, or might readily have ascertained, the fact, whether or not there had been laches; and therefore, when such a promise has been made, the plaintiff may avail himself of it without proving that the defendant knew that the bill had been actually presented and refused. Chit, on BiUs, (10th Amer. from the 9th London Ed,) page 504.</p>

Before Frost, X at Charleston, October, 1849. The indictment, in one count, charged the defendant with knowingly receiving stolen goods from Csesar, the slave of T. N. Gadsden, which were the property of C. 0. Henderson, otherwise called Charles C. Henderson. The other count charged the goods to be the property of a person unknown.

Before Frost, J. at Charleston, October, 1849. Motion to set aside the execution for costs in this case. T. H. Jervey, Tax Collector of St. Thomas’s Parish, issued an execution for a capitation tax against Tavel, as a free colored person. Tavel applied for a writ of prohibition against the levy of the said tax, and an issue was made up to try his status. A verdict was rendered in favor of Tavel, by which he was exempted from payment of such tax.

<p>Ordinance of tlie City Council of Charleston, entitled “An Ordinance to prevent the establishment of any new burial grounds within the limits of the City,” is both constitutional and within the powers granted to them by the City charter.</p> <p>The law will never, by any construction, advance a private to the destruction of a public interest; but, on the contrary, will advance the public interest, as far as it is possible, though it be to the prejudice of a private one.</p> <p>If the power exists in the City Council to pass an Ordinance, the court has no jurisdiction to control its discretion in the exercise of it, provided it be exercised consistently with the laws and the constitution of the State: nor is it necessary to the existence of the power, that .there be a present occasion for its exercise. It is sufficient that a future occasion may demand it. The province of the court is merely to declare whether the power is granted.</p> <p>If an Ordinance be exceptionable on these grounds, an appeal against its enforcement, lies only to the corporators.</p> <p>The power which enacted an Ordinance may repeal it, unless the rights or privileges it conferred might be claimed in the nature of a contract.</p>

<p>A denial of guilt is not excluded by the terms of the rule which excludes confessions, nor is it excluded by the reason of the rale. The denial of the prisoner that he had been near the place of the theft, or had even seen the stolen goods, may be given in evidence and shown to be untrue, for the purpose of establishing his guilt.</p> <p>Though the prisoner cannot be convicted by his confession of a fact tending to criminate himself, yet his statement of the fact may be received in evidence, and his knowledge of the fact may be connected with proof of its existence, so that his guilt may b'e inferred.</p> <p>The rules of evidence are directed to the proof of the issue by competent testimony. They do not require that all the witnesses who may have been present when the oifence was committed, or who maybe supposed to possess information respecting it, should be produced. If the case be fully proved, the verdict will not be set aside on tire suggestion that, if a certain witness had been called for the prosecution, he would or might have given evidence to show the prispner’s innocence in Court. If any doubt arises respecting the guilt of the prisonev, from the obscurity which rests on any material circumstances of the offence, that is considered by the jury.</p> <p>The obvious and necessary condition of the presumption of larceny, from the possession of the article unaccounted for, is that it should have been stolen; yet where the evidence against the prisoner was not limited to the presumption arising from possession, and where the whole evidence was brought to the view of the jury, which sufficiently established the fact that the article was stolen and that the prisoner was the thief, the Court will not disturb the verdict.</p>

Before the Recorder, in the City Court of Charleston, February, 1849. The first case was a summary process, under the City Ordinance against loitering. The process alleged that the defendant did permit and allow certain negro slaves, whose names anc| owners were unknown, to assemble and loiter in his shop, The question was argued by Mr. Pressly for the defendant, and by Mr. Porter, the City Attorney, for the plaintiffs. Ya-rious authorities were cited. 1 Chitty’s Crim.

Before Frost, J. at Charleston, October, 1849. REPORT. Held: and still holds, a violation of the courtesies of the profession, and calculated to bring it into ridicule and contempt; and deponent is yet to learn that such an expression of his real opinions transcends the liberty of speech, and much less, that it is matter cognizant by a Judge by way of criminal prosecution.

Before Wardlaw, J. at Charleston, May Term, 1848. The plaintiff shewed title to a lot of land in Pinckney street, the eastern half of which was the subject of suit, in Thomas Coveney under a conveyance from John Gruber, dated 22d May, 1801. and duly recorded ; and from Samuel Fluit to John Gruber, dated 8th March, 1800, also duly recorded.

Before Richardson, J. at Gillisonville, Spring Term, 1847. This was a motion to reform the clerk’s taxation of costs in a suggestion of a further breach of the official bond of sheriff Mulligan.

<p>In trespass to try title, a former recovery against one of the distributees of the land, and his acknowledgment m writing that the land in controversy was the plaintiff’s, will not operate as a conveyance to the plaintiff of the share of the distributee. Even if it could otherwise so operate, it cannot when there is nothing in the record of tire former recovery which shows that the trespass therein complained of was on the parcel of land in dispute. The utmost effect of it would be to bar the distributee himself, if so pleaded, should he af-terwards claim alone. It will not be a bar to such distributee when suing jointly with his co-distributees, nor prevent their recovering the whole of the land.</p> <p>The case of Edson v. Davis, 1 McCord, 555, approved of, and that of Barino v, M’Gee, 3 McCord, 452, questioned.</p>

<p>Before Richardson, J. at Gillisonville, Spring Term, 1847.</p> <p>REPORT OP THE PRESIDING JUDGE.</p> <p>This was a rule on the sheriff, to show cause why he had not applied certain moneys in his hands towards the satisfaction of the above entitled case. To the rule the sheriff made •the following return..:</p> <p>“In answer to the rule in this case, the sheriff shows far cause the following facts: At April term, 1845, a judgment was rendered in the name of the State of South Carolina, against Edward Mulligan and the sureties,- on his official bond as sheriff of Beaufort district, for twenty thousand dollars, the penalty of the said bond; and execution, therefor, was lodged in the Coroner’s office, and marked “ lodged and entered 14th April, 1845, R. F. Roberts, C. B. D.” , This execution, when first lodged in the Coroner’s office, was endorsed with the following words :</p> <p>“Penalty, $ 20,000</p> <p>Collect for Wm. Youmans, jr. 608 70.”</p> <p>This sum ($608 70) was afterwards collected and paid.— At April term, 1846, another breach of the said bond was assigned, whereon the sum of $816 37 was assessed for the said Wm. Youmans, jr. and the execution aforesaid was farther marked with this endorsement.</p> <p>“ Second entry, 13th April, 1846 — J. J. Finley, Sp. Cor.”</p> <p>“ Collect for Wm. Youmans, jr. $816 37.”</p> <p>This execution, after sheriff Mulligan’s term of office expired, was lodged and entered in the office of this respondent, Í3th February, 1847.</p> <p>The sheriff further shows that, at November term, 1845, the plaintiff in the above entitled case, obtained a judgment against Edward Mulligan in his individual capacity, and execution, therefor, was lodged in the Coroner’s office and marked “lodged and entered 17th Nov. 1845. T. S. Brun-son, Coroner B. D.,” and after sheriff Mulligan’s term of office expired, was lodged and entered in the office of this respondent, March 19th, 1847.</p> <p>On sale day in this month, this respondent, as sheriff, sold two tracts of land as the property of Edward Mulligan, for the sum of $ ; and certain personal property, for the sum of $ ; making a total of $4602 50; and after applying the sum of $3708 06 to senior executions, a balance of $894 44 remains in his hands, which is now claimed by Wm. Youmans, jr. in satisfaction of the sum of $816 37, assessed for him as above stated, and by the plaintiff in the above stated case, under his execution.</p> <p>The sheriff, being unable to decide these conflicting claims, has refused to pay either: and submits the question to the Court.”</p> <p>Upon the hearing the foregoing return of the sheriff, the Circuit Judge ordered the money in dispute to be paid to the plaintiff in the above entitled case.</p> <p>The securities of Mulligan appealed, and moved to set aside the order,-on the following grounds</p> <p>1. That the judgment against Mulligan and his sureties, signed April 14, 1845, for the penalty of the official bond of( said Mulligan, binds the property of the defendant to the amount of that judgment, and stands as security for all prior and subsequent breaches.</p> <p>2. That the said judgment is anterior in date to the judgment of Norton, ordinary, and being yet unsatisfied, takes precedence of it.</p> <p>3. That the assessment on the second suggestion of Wm. Youmans, jr. for whom the money is now claimed, was made anterior to the sale of Mulligan’s property, from which sale arose the money now in dispute.</p>

<p>The Act of 1823, which exempt» from levy and sale, a mechanic’s “tools of his trade” — held to exempt the tools of all mechanics, whether master workmen or journeymen, who personally work with their own tools, and with their own hands — in contradistinction to contractors, superintendants, capitalists, or mere owners of machinery.</p> <p>A landlord held liable for the trespass committed by his bailiff in distraining for rent in arrear, the tools of his tenant, which, by the Act of 1823, are exempted from levy and sale.</p> <p>A principal is liable for the conduct of his agent, when he acts improperly and unlawfully, but within the scope of his agency.</p>

<p>The Court of Appeals may give judgment after dismissal of an appeal in case of felony; and this, although the appeal has been abandoned and benefit of clergy prayed.</p> <p>Where the indictment charges the burning of a house, benefit of clergy is not taken away by tire statutes which take it from tire burning of a dwelling house, or barn having corn or grain in it.</p>

Before Withers, J. at Charleston, May Term, 1849. REPORT OP THE CIRCUIT JUDGE. Hyams had caused Valentine to be arrested on mesne pro cess for a very large debt, and after the trial of the case, obtained judgment against him for a sum exceeding, I think. $16,000. Valentine had filed a schedule, containing nothing but his wearing apparel, and sought relief under the law in behalf of insolvent debtors.

Before Richardson, J. at Horry, Spring Term, 1849. This was an action of trover to recover the value of a raft of timber. The plaintiff, R. M. Powell, employed B. Powell to carry the timber to Georgetown, to Mr. Waterman, to sell it for him. Instead of carrying it to Georgetown, B. Powell sold the timber at Bull Creek Ferry, to the defendant Buck, acting through his agent, James Smart, and received the money.

Before Withehs, J. at Charleston, May Term, 1849. This action was in assumpsit, and the plaintiffs claimed $235 04, balance of $463 10, for goods sold by them, as vendue masters, on the 6th April, 1844.

Before Frost, J., at Charleston, October, 1849. The plaintiff declared, in debt on bond. The defendant pleaded three several pleas. A motion to strike out part of the second plea, and the third plea, as “frivolous and deceitful,” was refused. This refusal is the subject of appeal. In the argument of the motion, the plaintiff’s attorney relied much on the proceedings in the Court of Equity, in which the bond was given.

Before Frost, J. at Charleston, October, 1847. This was an indictment for assault and battery. Held: referred to the tribes or nations of Indians 4 which then occupied a large portion of the Province, whose independence and national character were recognized by the Provincial Government; and that between independent nations only, could the relation of “ amity” properly be said to subsist; the relation of an individual to the…

Before Evans, J. at Walterborough, Spring Term, 1846. By the will of Peter Sinkler, his sister, Mrs. Jane Glover, was entitled to certain negroes. Supposing herself the owner, she disposed of them by will, and appointed her son, Dr. Glover, her executor. The negroes went into his possession. A bill was filed by Lemacks and wife against him for partition, in February, 1843. In May, the Chancellor made a decree, settling the rights of the parties, which was never reversed.

Before Richardson, J. at Columbia, Fall Term, 1848. This was an action to recover the price paid for a negro that had proved unsound. The verdict has settled the main question of the case. But the jury returned with their verdict after 12 o’clock on Saturday night, of the first week of the term, for the price, $300, and interest. See 1st Ground of Appeal. Dr. Toland was a witness to prove the negro sound.