Volume 37 — South Carolina Law Reports

<p>Before Frost, J. at Edgefield, July, extra Term, 1845.</p> <p>This was an action of assumpsit, for money had and received. In October, 1837, the plaintiff recovered a judgment against one Sullivan for about six hundred and fifty dollars, and in October, 1840, one Hutchinson also recovered a judgment against the same defendant for ten thous- and dollars. Executions on these judgments were duly lodged with the sheriff. In January, 1842, the defendant, as sheriff, sold, for about nine thousand dollars, certain' real estate of Sullivan, and applied the proceeds to the judgment of Hutchinson. It appeared that in the summer of 1840, before the judgment of Hutchinson was obtained, the defendant in execution, Sullivan, sold three slaves, Mary and her two children, to one Holmes, which slaves were, of course, bound by the lien of Furman’s execution. In April, 1842, these slaves, being then in the possession of Howard Gar many, who claimed them, were levied on by the defendant under Furman’s execution. In August, 1842, Furman’s judgment was assigned to Howard & Garmany, and some time afterwards, the attorney of the assignees indorsed on this execution, an order to the sheriff to stay proceedings. This action was brought to recover of the proceeds of the sale of Sullivan’s land, the amount of the plaintiff’s execution.</p> <p>Under the instructions of his Honor, the presiding Judge, the jury found for the plaintiff. The defendant appealed, and now moved this court for a new trial, on the following grounds:</p> <p>1. Because his Honor erred in ruling and charging the jury, that the law of the case required them to find a verdict for the plaintiff for the amount of his execution; that the defence of the defendant was not available in a court of law; and that the execution of Furman vs. /Sullivan was satisfied and ineffectual for the purpose of levy, by sales made by the defendant as sheriff, under a junior execution, for an amount more than sufficient to pay all that senior execution.</p> <p>2. Because the order of the plaintiff, requiring the defendant and sheriff not to sell the negroes levied on under his execution, was a bar and discharge of the plaintiff’s cause of action, if any he ever had.</p> <p>cited Watson on Sheriffs, 176, 203 ; 2 Bail. 495.</p> <p>cited 2 Bail. 412 ; 2 McM. 150 ; 1 Bail. 140.</p>

<p>Before O’Neall, J. at Barnwell, Fall Term, 1845.</p> <p>This was an action of trespass to try titles to a tract of land.</p> <p>The plaintiff bought the land at sheriff’s sale, as the property of Joshua Smith, under an execution at the suit of Ransom and wife, administrator and administratrix of John Taylor, deceased. The defendant was in possession, as the tenant of the heirs of Joshua Smith, deceased. The land was described in the sheriff’s deed, as “containing one hundred and ninety acres, more or less, situate and being in the district of Barnwell, bounded on the lands of William Nimmons, the defendant, and others.”</p> <p>The tract claimed under this description was granted to Elmore Mayne, and contained eight hundred and forty-three acres. A tract adjoining it was once William Nim-mons’ — he had not, however, owned it for near eight years; it belonged to Lane when the land was sold. On the opposite side of the tract claimed by the plaintiff, lay another tract belonging to Joshua Smith. These were all ■the specific boundaries; on another part of the land lay David Rice’s land — the boundary on the other part was not ascertained.</p> <p>The land was not sold until after the death of Joshua Smith, and probably also after the death of Ransom.</p> <p>His Honor thought the description so defective, that if it were a fact for his decision, he could not find for the plaintiff. The jury, however, found the land for the plaintiff, and sixty dollars damages.</p> <p>The defendant appealed, and now moved this Court for a new trial, on the ground</p> <p>Because the description of the premises intended to be conveyed by the sheriff s deed, under which the plaintiff claims, is too vague and uncertain to warrant the jury in finding the land in dispute for the plaintiff.</p> <p>cited 9 Tin. Abr. Ejectment, 2; 3 Con. Eng. Ch. Rep. 238 ; 13 Johns. R., 112 ; lb. 552; Shep. Touch. 237; Bac. Abr. Grant, H. 1.</p> <p>cited 1 Hill, 304 ; 1 Rich. 141; 19 Johns. R. 449 ; Shep. Touch. 247; 3 McC. 84; Harp. 300; 1 N. and McC. 381; 1 Hill, 12; 2 Mill, 101; 4 McC. 434 ; Harp. 291; 1 McC. 209.</p>

<p>Before Evans, J. at Edgefield, Spring Term, 1846.</p> <p>Trespass to try titles. The case depended on the construction of a trust deed, a copy of which is as follows:</p> <p>SOUTH CAROLINA, )</p> <p>Edgefield District. j</p> <p>Know all men by these presents, that I, John Wootan, of the district aforesaid, for and in consideration of the sum of one dollar, to me in hand paid, by Daniel Richardson, of the district aforesaid, the receipt whereof is hereby acknowledged, and also in consideration of the natural love and affection which the said John have and do bear for and unto the said Daniel Richardson, have bargained and sold, and by those presents do bargain and sell to the said Daniel Richardson, a certain tract of land, situate in Edge-field district, on the road leading from Augusta to Columbia, near the Old Wells, whereon I now live, supposed to be one hundred acres, more or less, and also one mare, and five head of cattle and their increase, one bed and furniture, for the use and purpose of my wife Elizabeth Woot-an, during her natural life or widowhood, should she be the longest liver, if not, the said land to continue in the possession of the said John Wootan during his natural life, then to belong to Joab Wootan, son of the above mentioned John Wootan, and should he die without any lawful heir, belong to Ferlina Wootan; the above mentioned mare and cattle, and feather bed and furniture, at the decease of the said Elizabeth Wootan, then to be the just right and property of James Runnells, her son ; the above mentioned land not to be sold, unless by the consent of each party, then the sale to be good to the purchaser thereof, under the limitation, to the use, and upon the trust hereinafter mentioned, to wit: It is hereby expressly declared and intended, that the before mentioned property shall be and remain jree and exempt from the liberty of being sold, or in any measure disposed by the said Daniel Richardson, for or on account of any debt or debts which he may heretofore contract, or any hereafter contracted ; but shall keep and hold the said property for the use and behalf of Elizabeth Wootan, the now wife of the said John Wootan, and shall not sell, convey, or dispose of the said property on any pretence whatever; and it is hereby agreed, and further understood, that the increase, profits, and all and singular the emoluments arising from, or to arise from said property before mentioned, shall be for the use, and under the direction of the said Elizabeth Wootan forever, and to her heirs forever; and I do hereby bargain, grant, sell and confirm, the above mentioned property, and all and every of the increase of the property thereof, of every part and parcel thereof, to the said Elizabeth Wootan, her heirs and executors and administrators or assigns, forever; and I, the said John Wootan, do hereby agree and declare the said property shall be the absolute right and property of the said Elizabeth Wootan and her heirs, forever. In witness whereof, I have hereunto set my hand and seal, this the second day of May, in the year of our Lord, one thousand eight hundred and eighteen, and in the forty-second year of the Independence of the United States of America.</p> <p>JOHN WOOTAN, [L. S.]</p> <p> Signed, sealed, and delivered, in the presence of </p> <p>Test — Peter Hare,</p> <p>her</p> <p>Elizabeth jxj Hearnden. mark</p> <p>The testimony showed that John Wootan, the grantor, died in 1823, that Joab Wootan, his son, died in 1837, and that Elizabeth, the wife of John, died in 1843. The plaintiffs claimed the land as .heirs at law of Joab, and their title depended on whether Joab took the estate after the death of John and Elizabeth. Under the instructions of his Honor, the jury found for the plaintiffs; and the defendants appealed, and now moved for a new trial, on the following grounds :</p> <p>1. That Joab Wootan having died in the life time of Elizabeth Wootan, took no interest whatever, under the deed in question.</p> <p>2. That by a proper construction of said deed, the land in question became the absolute estate of Elizabeth Woot-an, under whom the defendants claim.</p>

<p>Before Butler, J. at Edgefield, July, extra Term, 1845.</p> <p>This was a suggestion, on appeal from the Ordinary, to try the validity of the last will and testament of Moses Harris, deceased. The Ordinary had sustained the will. The grounds of objection were — 1st. That the testator never signed the will or heard it read — 2d. That he was non compos mentis.</p> <p>The report of his Honor, the presiding Judge, is as follows.</p> <p>“Testimony. — Henry C. Turner, a subscribing witness. Knew Moses Harris in his life time, and saw him execute the paper purporting to be his last will, dated Aug. llth 1840. Saw him sign it, and witness signed his name as an attesting witness, with William A. Turner and John R. Weaver, in the presence of the testator. Witness was sent for on the 10th, but did not know for what; went, and was there told it was to witness the will. William A. Turner, Daniel Holland and Simeon Mathews were there. Witness went there before twelve o’clock, and remained until evening. Holland was writing what was understood to be the will. After it was finished, Holland talked to testator, and declined then to have it executed, saying that testator was not in a situation to sign. . Holland declined reading the paper to testator, and requested ns to meet next morning, when the fever was off. Parties went home to meet there next morning.</p> <p>Next morning, the witness, William A. Turner, John R. Weaver and Simeon Mathis, met at the residence of the testator, and Wilson Crane was also there. These were all except the family. Witness got there about 8 o’clock, and the witness, Weaver, was copying off the will, drafted by Holland the day before,. After he had finished writing, they went to. where testator was lying in bed. The will was then read to the testator, by Weaver, in presence of witness, William A. Turner and S. Mathis. Wilson Crane also may have been present. Testator was raised up in bed, and supported in his bed by one of the servants, while the will was read. There was another servant in the room. Will was read to testator, clause by clause, by Weaver, and after reading it, Weaver asked testator if that was his will. The testator did not speak, but signified his assent by nodding his head. The pen was handed to the testator, who took it and made an effort to sign. His hand trembled very badly, and Weaver assisted him in signing his name.</p> <p>The witnesses then signed their names in the presence , of the testator.</p> <p>Testator was then asked by Weaver, who should keep the will. Testator looked around for a while, then looked at witness’ brother, and said, Turner. Weaver asked, which Turner? Testator then looked at William A. Turner, and nodded to him.</p> <p>The will was then folded up, and, witness thinks,, sealed, and handed to William A. Turner.</p> <p>Testator was then in bed sick. Witness thought he was in his senses, and knew what he did. Testator was old and weak, but witness discovered nothing to make him suspect that he was not in his senses. Testator recovered from this illness and went about and died last summer, July 11th 1844. Will was proved on the 12th. Cannot say who requested Weaver to read the will. After reading a clause, Weaver would pause — then read again. When it was finished, Weaver asked if it was his will. When Weaver asked which Turner, testator nodded, and witness thinks pointed to William A. Turner. Weaver was copying the will when witness arrived there that morning. The will was executed before 12 o’clock. Did not stay long after the will was executed. Testator put his hand to the paper, but it trembled and he could not write. Weaver took hold of the pen and assisted him.</p> <p>Witness is certain that testator put the pen to the paper. Testator commenced to write, but cannot say how much of his name he wrote. Does not think he could have written his name without assistance.</p> <p>William A. Turner was one of the subscribing witnesses. Saw testator sign in the presence of the other witnesses. He signed the will with the assistance of Weaver. The witnesses signed in the presence of the testator. Testator said but few words, and cannot say whether testator requested him to sign. Witness had been sent for the day before to witness a paper. Went, and saw Holland writing the will; finished after dinner ; by that time the fever of testator rose, and he was unable to sign the paper. It was understood that the parties should return next morning to witness the will. Witness went after breakfast, and found Weaver copying off. the paper drafted by Holland. When it was finished we went into the room where testator was lying. Testator was helped up, and sat on the bed, with his feet hanging off. The will was then read by Weaver. Testator said nothing, but nodded his head while it was reading; and when it was finished Weaver then offered the pen, which testator did not take at first — perhaps not understanding at first, being a little hard of hearing — then took the pen, but his hand trembled so much that he could not hold the pen on the paper. Weaver took testator’s hand and guided it, so as to enable him to make his signature. Witnesses then all signed their names in the room. Testator may have been asked if it was his will. After that, testator was asked, two or three times, who should keep the will. He appeared to be on a stand, and looked round, and then said to the witness, “ I want you.” Weaver said, do you want him to keep it 1 and testator nodded his head. The will was then wrapped up in a sheet of paper, and handed to witness, who kept it till the death of testator. The will was folded up but not sealed. There was no seal on it while he kept it. Testator recovered, walked about, and knew witness had the will. Testator frequently spoke to the witness of being in debt. Witness replied that he could pay by the sale of property, and testator would reply that he had given his negroes oif in families, and did not wish to separate them. He knew that witness had the will. Said he had a notion of altering the will, but told witness to keep it, and let no one have it; and if he, the testator, sent for it, not to let any one have it, but bring it himself. Witness had no reason to think the testator was not in his mind. Testator looked sick, but witness thought he knew what he was doing. Spoke but little, and generally nodded. Was a man of but few words, and went about but little. This was in 1840. The testator recovered, and went about his business as usual, and died in July, 1844. Testator was a very old man — he said between ninety and a hundred years old.</p> <p>Witness is certain that the will was read by Weaver. Cannot say who requested the reading. One of the ne-groes may have held testator up while the will was read. Testator did not wear specs. Testator held the pen after it was presented and put into his hand. Did not write any of his name until Weaver took hold of the pen. No one requested Weaver to take hold of the pen. Witness was a near neighbor.</p> <p>John R. Weaver was a subscribing witness, and subscribed with the other two in the presence of the testator, and the testator subscribed in his presence, and in the presence of the other two witnesses. Witness went, in the morning of the 11th Aug. 1840, to the residence of the testator, and copied the will from one drawn by D. Holland, with an alteration as to one tract of land, on which Hezekiah Harris, a son of testator, lived- — by specifying that tract as a portion of property directed to be sold.</p> <p>The paper drawn by Holland, and from which Weaver copied, was here produced and proved. It was similar in all respects, except the alteration mentioned ill the Iasi clause.</p> <p>Moody Harris sent for witness to alter the will, as to the above tract of land, saying that it had been left out in the one prepared by Holland. Witness copied and made the alteration upon the suggestion of Moody, without conferring with the testator. After it was copied, witness carried it into the room where the testator lay. Simeon Mathis and the two Turners went with him. Testator Was raised up, and witness said, here is your will. Said so more than once. Does not recollect reading the will, but offered the pen to testator to write, and he was unable to hold or guide it. Witness held the pen in testator’s hand, and wrote the name himself. Witness guided the pen between the forefinger and thumb of testator. The hand was tremulous. When the will was signed, the witnesses subscribed their names; and Mathis said, ask what shall be done with the will. Testator made no reply. Mathis then said, shall it be given to Ar'vis Turner ? Witness asked more than once, and testator nodded assent; and the will was delivered to Arvis Turner. Witness does not recollect of folding will up or endorsing it. Does not think it was read — -if it was witness has no recollection of it. Witness was not well acquainted with testator; had but little acquaintance with him. Does not think the testator was conscious of what he was doing when he signed the paper. Four or five months afterwards, testator said he did not know witness had written his will, or was there when it was executed. Witness did not hear testator speak a word, and did not think him in his mind when the will was signed. He looked vacant and unconscious.</p> <p>Testator was an old man, and feeble from sickness, but dont know that he had fever then. Witness never told S. Mathis that it was a good will, and that testator was in his senses. It was about 11 o’clock, A. M. that the will was executed. There were spirits there that morning, and witness may have drank some. Cannot say he did. At that time had drunk but little, and was not in the habit then of drinking. Witness called and told testator that he had copied the will from Holland’s draft, and made an alteration. He did not seem to be conscious of it. Witness called to tell the testator what he would swear if called on — that he was not in his senses. Testator said that he did not Jmow that, witness had been there. Witness assured him that he could not prove the will as one of the witnesses. Witness advised testator to make a new will. He replied he intended to do so, and make some alteration. Then he appeared childish, and not entirely rational.</p> <p>Witness told Wm. McDaniel, the day after the will was executed, that he did not think the will good ; and told the same to David Harris, Hezekiah Harris and several others. Thought he told S. Mathis, but might not have done so.</p> <p>Witness took instruction from Moody, as to the alteration of the will. Testator did not speak a word. Witness was then a young man, and did not know that it was necessary that the will should be read, and had never seen a will executed. Has no recollection of reading the will. Witness thought the testator would die, and signed as a witness to comply with the desire of those present, that there should be a will. Thinks testator never recovered from the effects of his sickness. Witness had a second conversation with the testator, at instance of Moody. He spoke favorably of David, and appeared displeased with Moody. In the second conversation, testator was not conscious of having had the first. Went the second time to have a conversation about negro Jack. The testator spoke of his ne-groes, and said that David Harris would take care of them.</p> <p>Daniel Holland knew testator, and on the 11th Aug. 1840, drew a will for him. On the morning of that day David Harris called at witness’ house, and said his father was worse, and that his father requested him, witness, to be sent for to draw his will, if he got worse. And David Harris asked witness to ride up and see testator. Witness went. Testator was glad to see him. Said that he was sick, but was better in the mornings; I am sorry that you are put to this unnecessary trouble, as you will not have pay. You are sent for to write my will, and it is Moody’s work. I have just given him, the other day, six negroes, in writing signed and delivered, and he shall have no more of my negroes, and I will make no will now — and was excited when he said it. Witness then stated how he was induced to come — that Moody had nothing to do with it. Testator then seemed reconciled. Dr. Nicholson came in about the time. Witness offered to go, and testator said no, stay till dinner. Witness made a motion to go, and testator said no, I would rather you would stay — I have thought about it, and I had rather you would stay and write my will. I am sick, and I may get so I cannot make a will. Witness consented to do so, and was referred to Moody for pen and paper. Witness sat down on a chair by testator, and took down the directions of testator on his knee, Dr. Nicholson being present. Witness then withdrew to the piazza, and begun to write. the will. Thought then about witnesses — went in and told the testator, who requested witness to tell Moody to send for some neighbors, who were requested to come at two o’clock. They sent word that they would come. Testator became restless' — left the room in which he was lying, and being steadied by a negro, went to a bed in a room at the end of the piazza. After he got there, he would' call to witness and talk about‘his will and property. After awhile the testator lay still. The witnesses came, and witness having finished the will, went into the room and found the testator had fever. Witness conversed with him, and found that his mind was flighty, from the effects of fever. Witness advised him not to sign his will then. Testator was anxious to do it, but yielded to the suggestion of witness not to make his will then. The witnesses were requested to come back next morning and attest the will. He told the witnesses to ascertain whether he was in his proper mind — to sign it in his presence, and to read the will or have it read to him. Witness requested the two Turners and Mathis to come as witnesses, and not to sign if testator was out of his mind. When witness took instructions, he thought testator in his right mind, and capable of making a will. The will was drawn in conformity to these instructions, and corresponded with several wills drawn by witness for testator before, and previous designs, except as to Jack being sold, or being given to his son Benjamin. He said that he wanted his son David to pay $500 to some one, but had not before settled down to whom. In this will the $500 are given to Benjamin. He said he had given his Pixley children as much as he intended, and wanted it expressed that he would give Moody no more negro property.</p> <p>In May, 1842, witness saw testator again, and traded for a tract of land, and received a deed for it. In latter years, testator could not superintend the actual management of his farm.</p> <p>Dr. John Nicholson attended testator in his illness, when the will was executed. Was called in on the 7th August— found him in his piazza or in the yard. Testator had no fever then. Saw him next on the 9th. His attacks had been more violent, and he was in bed. He liad chills and fever. Saw him on the day while Holland was there, the 11th. Saw him the next day, the day the will was signed. Witness got there about 12 o’clock, and testator had tome fever. The fever continued to increase until the 14th, when he got into a comatose state. Till that time, testator had his proper mind, when not under the influence of fever. The fever would intermit, and in the mornings his fever would be off. A chill would come on about 11 o’clock, succeeded by a fever in the evening, and he would sweat it off during the night. The violence of his attacks continued to increase till stupor came on.</p> <p>His stupor came on on the 14th, and after that time he was incapable of doing business. Before that, was capable of doing business in the mornings. While Holland was there testator was in his senses. When in a comatose state he was disinclined to talk, but could be roused. Excitement of mental exercise would disorder his mind. On the 12th he got there about 12 o’clock. The fever was rising. The will had been executed, and the witneses had left there.</p> <p>Simeon Mathis was present when the will was executed. The two Turners and Weaver were there. It was about 7 or 8 o’clock when they met there, and two hours after, the will was signed. Witness got there first, and Weaver came next and copied the will. Then it was carried to the testator by Weaver, who read the will. Testator said it suited him very well. Weaver handed pen to the testator to sign, and he took the pen, and his hand, trembled so that he could not write. Moody said, take hold of the old man’s hand and steady it; and Weaver took it and wrote down the name. The witnesses then subscribed their names. Moody or Weaver asked who should keep the will. Testator pointed out Arvis Turner to keep it, and Arvis Turner took it — and testator said; keep it till I call for it, and it was taken. Witness thought him in his senses at the time. The testator was sitting oh the side of the bed with his feet hanging out. Moody requested the will to be written over.</p> <p>After testator recovered from his sickness, witness asked him where his will was, and testator said it was at Ar-vis Turner’s. Spoke of his negroes, and said he was satisfied with the will. He charged witness to see that all should he executed, after his death — to see that it was all carried on. Testator spoke to witness frequently after-wards about the will.</p> <p>Witness talked to testator before Weaver came, about his will, as Holland drew it. He said he was satisfied. Did not hear him say any thing about alteration to be n^ade by Weaver. He was walking about the piazza, and witness conversed with him. There was no drinking until after the will was drawn and executed. Weaver was sent for to add in a piece of land, on which Hezekiah Harris lived. That was what the will was copied for. Does not know where testator was when Weaver came. Weaver remarked after the will was executed, that that was as good a will as any man could make.</p> <p>John Berry. — Witness conversed with testator about his will in 1842. Witness said, you are an old man, and ought to make a will. Testator said he had made a will, and said he had given David a family of negroes, to wit: Harry and his family. To Hezekiah he had also given a family of negroes, Daniel and his family ; and to Moody he had given another family, Emeline and children, by deed. And also said that he had given Benjamin one-fourth of the remainder. Did not say that David was to pay any thing, nor did he mention where his will was. Has been living near Moses Harris, the testator, three years.</p> <p>John C. Allen was acquainted with testator. Saw him in the first week of August, 1840, whilst he was taking the census of the District. Went to take the members of his family. Testator appeared in ordinary health, and competent to attend to business. In the summer or fall of 1841, Moody Harris applied to the witness to sell him a family of negroes, and said that his father desired witness to purchase. Witness went to see the testator about the negroes. Testator pointed them out. Spoke of the value of each. Said he had given them to Moody, and did not want them separated. He thought Moody imprudent, and that they would be sold. Testator also said that he had given his other negroes, in families, to his children. At that time he was competent to do business.</p> <p>The executors here closed.</p> <p>William H. Williams lived near testator in 1840, and knew him from 1839. At times witness thought him in his right mind, and at other times he thought he was not. Thought so while he was passing occasionally by his house. At times testator would ask witness who he was. At other times he would not know him.</p> <p>William McDaniel remembers a conversation with John R. Weaver about the will. Weaver said he did not think the old man knew what he was doing when he signed the will, and stated the circumstances under which the will was signed by the testator.</p> <p>John Wright says that he lives three miles from H. C. Turner — that H. C. Turner’s character is not good, and he would not believe him on his oath. Has entertained this opinion of him for some time. They had a difference last summer, but there is no misunderstanding between them now. Witness has worked for and traded with Turner. Turner traded fairly, and people generally believed him.</p> <p>John F. Martin. — Knew H. C. Turner. His character is not good, and witness thinks him unworthy of credit. Witness lives about four miles from him. Witness once had a difficulty with Turner and his brother. Never heard Turner’s character for truth questioned. Turner’s accounts as a tailor were correct, so far as he knew.</p> <p>Benjamin Raiburn knows H. C. Turner^ — gives him a bad character. Would not believe him on his-oath. Has traded with Turner. Turner sued him — got' judgment, but has not got hisi money. Witness confessed judgment to Mr. Martin. Once had a quarrel with Turner, and has had nothing to do with him since. He brought up a false account against witness. Has heard persons question his' veracity, to-wit: Jacob Wright and his father.</p> <p>Jacob Wright is acquainted with H. 0. Turner. His general character is not good. Witness thinks it very bad, and from his general reputation witness would doubt his oath. Has had no quarrel with Turner, and has traded with him, in his store.</p> <p>William Rabitrn is acquainted with H. C. Turner. His reputation is not good, and from his general character witness would not believe him on oath, t</p> <p>Henry Raburn is acquainted with H. C. Turner. His character is not good, and witness would not believe him where he' was interested: Witness would not like him to swear against him. Witness has traded with him' in his, Turner’s, store.</p> <p>Willis Rotten knows H. C. Turner. His character is bad — would not believe him upon his oath, if he was interested. If he was not interested could not say. Never heard his character for truth questioned. He traded and dealt with Turner, whose accounts were all rights</p> <p>Josiah Howell. — H. C. Turner’s character is not good: would not like him to swear against him. Dealt with him and his accounts were fair. Never heard his character for truth questioned, and witness and Turner once quarrelled, N L. Grijjin. — Hezekiah Harris has. been living on the land he now lives on, witness thinks, for about twenty-two years. ■</p> <p>,In Reply.</p> <p>Daniel Holland. — Knows the general character of H. C. Turner, and would not question his veracity.. In other' respects his character is bad. Has had dealings with Turner and always found him correct.</p> <p>Maj. Allen. — Would believe Turner on oath, and that is the general opinion of him. His character is bad in other respects.</p> <p>Thomas Harvey. — Never heard that Turner had a bad character for truth, and witness would believe him on his oath.</p> <p>This case ivas treated and argued throughout as involving issues of fact for the judgment of the jury. In summing up the evidence and making such comments as the case seemed to require, I said that the testator must have had the presence of his bodily and mental faculties at the time the paper was signed, to make its execution valid as a will — and that if he was then non compos, no subsequent > declarations, however often repeated, could make the will good — but I said that such declarations might be resorted to, to indicate the state of mind at the time of execution. I was myself under the impression that the paper had been well executed, but the jury thought otherwise, and set the will aside.”</p> <p>The executors appealed, and now moved this court for a new trial, on the following grounds:</p> <p>1. Because the testimony established beyond doubt, that the testator at the time he executed the paper was in his proper mind and memory, and fully competent and capable to make a will.</p> <p>2. That the testimony of one subscribing witness only, who knew the testator but slightly, and was wholly unknown by the testator, and merely giving it as his opinion, that testator was non compos, ought not to prevail and overturn a will, against the testimony of all the other witnesses, and against the acts and declarations of the testator himself, long after he recovered, that that paper was his will.</p> <p>3. That his Honor unintentionally misled the jury in stating to them, that the conversations and declarations had and made by the testator, long after he had made his will and recovered from his illness, with the witnesses, Wm. A. Turner, Mathis, Berry and Allen, in regard to his will and its provisions, should have no effect or weight with them in ascertaining the fact whether it was his will or not.</p> <p>4. That his Honor erred in not stating to the jury that it was immaterial to the legal validity of the will whether H. C. Turner was worthy of belief or not, and the jury were thereby misled, and put the whole case and question upon the character of H. C. Turner, confounding legal credibility or statutory competency to attest a will, with the credibility or worthiness of belief of the witness.</p> <p>5. That his Honor erred in not stating to the jury, that they might reject the alterations made by Weaver, and establish the residue of the will.</p> <p>6. Because the will was drawn in conformity to the testator’s frequently expressed designs and previously written wills, and ought not, under the circumstances, to have been set aside, except upon the fullest and clearest proof of incompetency.</p>

<p>Before Frost, J. at Edgefield, July, Extra Term, 1845.</p> <p>The report of his, Honor, the presiding Judge, is as follows :</p> <p>“The plaintiffs were Samuel Kingman and Ellen his wife, James Washington and Mary Ann his wife, and Samuel, Abner and John 0. Hammond. Ellen Kingman and Mary Ann Washington, with the other plaintiffs, were the children of Col. Samuel Hammond.</p> <p>Col. Hammond had bought the tract of land in 1802, and had held possession from that time till his death, in September, 1842. By a copy of a deed of marriage settlement, admitted in evidence, dated 25th May, 1802, it appears that Col. Hammond had conveyed the land to Le-Roy Hammond and Samuel Goodwyn, in trust, for the use of his wife E. A. Hammond, during her life, and after her death in trust for the issue of the marriage. The wife of Col. Hammond died ten years ago. Either as the heirs of Samuel Hammond or under the limitations of the deed of marriage settlement, the plaintiffs acquired good title.</p> <p>It was proved that the defendant went into possession of the land in January, 1842, and that year employed an overseer'and six or seven hands in the cultivation of the land. He pulled down a log house and built others, and cleared up the land, and made fences, (fee. The plantation was in a ruinous condition when he took possession. The improvements he made were estimated to be worth more than two hundred and fifty dollars. In 1843 he worked the land with one Murphy on shares. During this year wood was cut and sold. The quantity and value were variously estimated.</p> <p>For the defence, was produced a deed of release from John 0. Hammond to Oliver Simpson, dated 24th December, 1842, of his share and interest in the land; a deed of release by Samuel Kingman and wife to Oliver Simpson, of her interest in the land, dated 19th January, 1843, with a release of dower. A deed of release from James K. Washington and wife to Oliver Simpson of her interest in the land, dated 20th February, 1843, with a release of inheritance informally executed. Also a deed from Abner L. Hammond to Samuel Hammond of his interest, in trust for the heirs of E. A. Hammond, wife of Samuel Hammond, dated 16th January, 1837. The record of proceedings in Equity in 1821 between the children of Col. Hammond and the trustees under the marriage settlement, whereby the land was ordered to be sold. The deeds of release before mentioned with these proceedings and a sale of the land, pursuant to an order made in the cause, the purchase by one Brooks, and the conveyance by Brooks, in 1830, to Samuel Hammond and Charles L. Hammond, in trust for the same parties and interests mentioned and limited in the deed of marriage settlement of 1802. Also, a lease of the land in dispute from Bouhvare, successor to Christie, sheriff of Edgefield district, to the defendant, for seven years, which had been purchased by the defendant, under a tax execution against the estate of E. A. Hammond. The sale under the tax execution was made the 1st of November, 1841; but the deed from the sheriff to the defendant, granting the lease, was not executed until the 5th October, 1844, which is the date of the deed. The tax execution could not be found, but it was admitted that it directed the sheriff to levy of the estate of E. A. Hammond a certain sum due for taxes by the said estate of E. A. Hammond.</p> <p>B. F. Goudy testified that he had-been tax collector from 1835 to 1844, and knew the land ; returns of it had always been made by Col. Hammond, as trustee of the estate of E. A. Hammond. He was very remiss in paying his taxes. Witness had paid two years himself. The tax execution was issued by witness and lodged in the sheriff’s office in May, 1841, for the taxes of the year 1840, which had not been paid. Witness told Col. Hammond of the execution. He replied, do your duty. The execution included the tax for the negroes of the estate as well as .for the land, and for the roads, poor and public buildings, as well as the general tax payable to the State. Witness also told John O. Hammond that he had lodged the execution. S. Christie, the former sheriff, proved that the land was advertised for sale day in September and October. On the receipt of a letter, (which was mislaid,) from some member or friend of the family, in Augusta, he suspended the sale until November. After the sale witness got a letter from Kingman, complaining of the sale. Col. Hammond was informed that the execution was in witness’s office. Abner Hammond lived in Augusta.</p> <p>The admissibility of the deed of lease from the sheriff to the defendant was excepted to, because it was executed after the action brought; but it was admitted in mitigation of damages. The writ in this case was issued the 15th September, 1843.</p> <p>It was ruled that though the plaintiffs could not recover the land, they might maintain the action for the mesne profits; because trespass could not be supported against one in possession, on the constructive possession of the plaintiffs derived from title merely; and unless this form of action could be maintained, a party Who had aliened or been divested of his" title could not recover against a trespasser for damage done to the land, or compensation for the use of it. But as the' plaintiffs had sued jointly, they could only recover to the extent of their joint interests.</p> <p>The jury were instructed that the plaintiffs had shewn a title to the land in themselves at the time the defendant entered, and could then have maintained this action. That the sale by the sheriff to the defendant of the lease under the tax execution was a valid sale; though the execution was directed against the estate of E. A. Hammond, and not against the plaintiffs personally. For admitting that the legal estate of the land was vested in the plaintiffs at the time the execution was issued, and had been from the time of E. A. Hammond’s death, the return of the property and payments of the taxes by Col. Hammond, ever since the death of E. A. Hammond, authorized the conclusion that he was the agent of the plaintiffs ; and, if their agent, they were bound by his acts or neglects, as if they had, themselves, acted or made default; and that it should be considered as their own act, if the property were returned by Col. Hammond as his own property, or that of any other person, or of the estate of E. A. Hammond. That the tax collector was authorized to issue an execution against any person or estate, in whose name the property was returned for taxation, and the sheriff to sell the property for the' payment of the taxes unpaid: and to permit the plaintiffs to except to the sale of the land under the execution against the estate of E. A. Hammond, would be to give them an advantage from their own wrongful act. That the lease to the defendant being valid, it would protect him from any claim of the plaintiffs for rent.</p> <p>The jury were further instructed, that the defendant was liable for waste; and that the destruction or alteration of houses on the demised premises, was waste ; as well as the cutting of timber for sale. The proof shewed that the waste for the pulling down of one or more houses was more than compensated by the erection of more and better houses ; and during the year 1842, the defendant had improved the premises. That the plaintiffs could not recover for waste, except such as was committed during the continuance of the joint interest of all the plaintiffs; and as the joint interest was severed in December, 1842, by the release of John O. Hammond to Oliver Simpson, the claim for damages must be limited to that period. From January to December, 1842, there was no proof of cutting and selling timber by the defendant. But inasmuch as the defendant had shewn no title to enter and occupy the land until after the action was brought, and was, when he entered, and continued until after this action was brought, apparently a trespasser, damages should be given to the plaintiffs sufficient to carry costs.</p> <p>The jury found a verdict of five dollars damages for the plaintiffs.”</p> <p>The defendant appealed, and now moved this court for a nonsuit or new trial.</p>

<p>To prove, prima facie, the loss of a deed, it is sufficient to shew a search in the place where it was most likely to be found.</p> <p>Where a note was left with an attorney for collection, to prove its loss after his death, held that it was sufficient to shew a search in his office among his official papers.</p> <p>Action on a single bill alleged to be lost. After the plaintiff had proved his case and the defendant was in his defence, the bill was found by a third person and brought into court. Held that the plaintiff was entitled to recover.</p> <p>The statements of a bill in Equity, though evidence against the plaintiff, are very feeble evidence so far as they may be taken as the suggestions of counsel; and, it seems that it makes no difference in this respect, that the plaintiff, for the purpose of using the answer, gave the bill in evidence himself.</p> <p>Three persons entered into partnership, and, in their articles, stipulated to pay A. B. a certain share of the profits in satisfaction of a debt due him by one of the partners. A B was no party to the articles. Held, in an action by A B against the firm, that this stipulation did not make him a partner.</p>

<p>Before O’Neall, J. at Edgefield, Fall Term, 1845.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“This was an action of assumpsit brought against the defendant, in the first count of the declaration, on the following note, viz:</p> <p>“ — 3435. Hamburg, S. C., June 9th, 1841. One day afterdate, we jointly and severally promise to pay H. Hutchinson, Cashier^.of the Bank of Hamburg, S. Carolina, thirty-four hundred and thirty-five dollars, for value received.</p> <p>Wm. Holmes,</p> <p>H. G. Johnson, per</p> <p>A. Wray, Agent.</p> <p>| Security.</p> <p>Indorsed,</p> <p>‘ H. Hutchinson.’</p> <p>In the second count, on the following .bill of exchange :</p> <p>“Exchange $3400. Hamburg, S. C., May 15,, 1841. Thirty days after date of this second, of exchange, (first of same tenor and date Unpaid,) pay to the order of H. G. Johnson, thirty-four hundred dollars, payable in sight check on Charleston, at par. Yalne received, and charge.to account of your obedient servant, Wm. Holmes.</p> <p>To Messrs. Holmes and Sinclair, Savannah.</p> <p>Indorsed, H. G. Johnson, per A. Wray, Agent.”</p> <p>■It appeared from the testimony of witnesses, as well as an advertisement published in the Hamburg Journal, that from the 1st of October, 1840, the defendant carried on a large grocery business, in the town of Hamburg, and purchased and sold large quantities of cotton. The advertisement stated that “ A. Wray will conduct the business and act as my duly authorized agent, in the purchase of goods and every thing appertaining to my business, in the mercantile line." In pursuance of this advertisement, Mr. Wray has ever since conducted the business; the defendant having personally nothing to do with it. From the proof in this case, it appeared that one William Holmes, of Augusta, in 1841, was largely in the cotton trade. Holmes qnd Sinclair, of Savannah, were his factors. He drew bills on them, and by an arrangement with the Bank of Hamburg, he was to draw funds from it to the amount of $10,000, on the indorsement of Britton Mims. About the 15th of May, 1841, Holmes had purchased cotton to theamountof the bill of exchange herein before set out; part of the cotton (if not all) he had bought from A. Wray, the agent of the defendant, who required the money. Holmes’ indor-ser, Mims, was out of town ; he proposed to the Bank to advance him the money, on depositing the cotton bills and receipts. This was refused, and he was told, if Wray wanted the money, let him indorse the bill of exchange, and he should have the money. Wray, (according to Holmes’ testimony,) indorsed the bill, upon the understanding, among all parties, including Mr. Hutchinson, the Cashier, that upon the return of Britton Mims, a new bill, with his indorsement, was to be substituted, and Mr. Wray discharged. The bill was originally drawn payable to H. Hutchinson ; that was struck out, and H. G. Johnson written as the payee by Mr. Wray. Before Mims returned to town, this bill of exchange was sent on to Savannah, and a new bill was thus prevented from being substituted. The money, the proceeds of the bill, went to the credit of Holmes, and was drawn by his check. Before the 9th of June, 1841, intelligence of the failure of Holmes and Sinclair reached Hamburg. Holmes testified, that to secure Britton Mims and Johnson, he confessed a judgment to the Bank of Hamburg. That the note made by himself and Wray, herein before stated, was made to be embraced in the confession, inasmuch as the bill of exchange was not due. The bill of exchange was noted for non-payment on the 18th of June, 1841. No notice of non-payment was given to the indorser.</p> <p>On the foot of the bill was this receipt:</p> <p>“June 9th, 1841. Received of Wm. Holmes and H. G. Johnson, their note for the debt, interest, and expense of this draft, which, when paid, will be in full.</p> <p>H. Hutchiwson, Cashier.”</p> <p>The usage of Banks, to require written powers of attorney, authorizing third persons to draw, make and indorse bills of exchange and promissory notes in the name of another, was fully proved. No fact was proved in the case, which shewed that Johnson had ever conferred the power to draw, make, or indorse bills of exchange or promissory notes for him, to be discounted in the Bank of Hamburg. On the closing of the plaintiff’s case, a motion was made for non-suit, on the ground that A. Wray had no authority to bind his principal by either the note or bill. The motion was granted.”</p> <p>The plaintiff appealed, and now moved this court to set aside the non-suit, and for a new trial, on the grounds:</p> <p>1. That by the case stated and proved, the plaintiff was entitled to a verdict for the amount sued for, against the defendant, H. G. Johnson.</p> <p>2. That in the whole transaction, Addison Wray, as agent, had authority to bind the defendant, both by the draft and note.</p> <p>3. That the order of non-suit was, as is submitted, against the law of the case.</p> <p>cited Oh. on Bills, 32-3; Story on Agency §§ 55, 57, 80, 85, 95, 133; 15 Mass. R. 39; 2 Kent Com. 620 ; 1 Liv. on Agency, 107,120 ; 2 lb. 193; 2 Kent Com. 614, 629; 1 Esp. R. Ill; 3 T. R. 757; 4 lb. 177; 1 Ld. Ray. 224; 15 East, 38.</p> <p>contended, 1st. that the acts of Wray were not within the scope of his authority. He had no power to draw or indorse accommodation paper. The in-dorsement of the bill was for the benefit of Holmes, and the note was given to secure the payment of the bill. 2d. That the bill was not negotiable within the custom of merchants. Ch. on Bills, 152; 4 Mass. R. 245 ; 5 Cowen, 186; 10 Serg. & R. 94; Story on Prom. Notes, 20.</p>

<p>A sheriff may take as bail, one not a resident of his district, and having no property within the same ; and if such bail be in other respects sufficient, the sheriff will not be liable to the plaintiff</p>

<p>Before Frost, J. at Lancaster, Bpring Term, 1846.</p> <p>The report of his Honor, the presiding judge, is as follows :</p> <p>“ The plaintiffs issued their writ in this case, returnable to Spring Term, 1845. At Fall Term, 1845, an order was made extending the time for the plaintiffs to file their declaration ; and the time had expired before the sitting of the court. On motion, further time was granted to the plaintiffs to declare. This seemed to be warranted, because, though a year and a day had expired since the suing out of the writ, yet a discontinuance was avoided by the order made in the case at Fall Term, 1845; and until the case was discontinued by neglect to take any step for the period of a year and a day, the plaintiff had not so let fall his action, as to preclude any further order or proceeding.”</p> <p>The defendant appealed, and now moved the court to reverse the order, on the ground :</p> <p>Because the writ having been issued more than a year and a day, and no declaration filed, the case is out of court.</p>

Before Wardlaw, J. at Pickens, Spring Term, 1846. This was an appeal from the decision of Wm.

<p>Where an action is brought against a sheriff under the 63d section of the Act of 1839, to recover the penalty of fifty per cent, per month, for refusing, upon demand, to pay over money collected on execution, proof that the defendant in the execution directed him not to pay it over, is not, of itself, sufficient to excuse the sheriff.</p>

<p>A demandant in dower need not make out a regular chain of title in her husband, hut it is sufficient for her to shew that he had been in possession during the coverture; and it is then incumbent on the defendant to shew a paramount title in himself.</p>

<p>Indictment for trading with “ a certain slave of W. G. named An-thron." The evidence proved a trading with Antrum, or Antrim. Held, that the variance was immaterial.</p>

<p>What is reasonable time in making demand and giving notice, where anote is past due when indorsed, must always be left, as a question of fact, to the jury.</p> <p>An action against the maker to the first term after the indorsement, is a sufficient demand, and if the indorser knows of the action within a reasonable time, it is sufficient notice.</p> <p>On the 11th October, a note, then past due, was indorsed by the defendant to the plaintiff, and on the 20th February after, the plaintiff sued the drawer and indorser by separate writs. The note was negotiated in Sumter District, and the drawer and indorser lived within a few miles of the place where it .was negotiated, — the plaintiff being a resident of North Carolina. Without further proof of demand and notice, the case was submitted to the jury, who found for the plaintiff Verdict sustained.</p>

<p>Before Wardlaw, J. at Abbeville, Spring, Term, 1846.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was a sum. pro. to recover the sum specified in a wrifteu promise to pay the hire of negroes, clothe them, &c. The writing was thus: “We or either of us promise to pay,” (fee.</p> <p>(Signed,) ¡x¡</p> <p>J. R.</p> <p>G. S.</p> <p>It was proved that John Sale made the ]xj, and had promised afterwards to pay "the money.</p> <p>Upon the allegation of a parol undertaking, I would have decreed against the defendant — but I could not consider him as party to a writing in which his name was not mentioned, and with which his connection could be •established only by parol, altogether dehors the writing.</p> <p>I ordered a non-suit.”</p> <p>The plaintiff appealed, and now moved this court to set aside the non-suit, because,</p> <p>His Honor, the presiding Judge, held that a mark, unaccompanied by a name indicating the maker of the mark, was an insufficient signature to charge the defendant as a party to the instrument.</p>

<p>A plat annexed to a grant, representing the land as containing fourteen thousand nine hundred acres, located so as to cover one hundred and thirty-six thousand acres.</p> <p>In locating lands, course and distance are disregarded where they conflict with marks made by the surveyor, or with well ascertained natural or artificial marks called for on the plat.</p>

<p>The use of a road for twenty years through the uninclosed land of another, will not, of itself, give a right of way by prescription. There must be proof that the use was adverse : and proof that on one occasion the party claiming the road had caused to be removed from it a few saplings that had been felled across it, is not sufficient evidence that his use was adverse.</p>

<p>Plaintiff carried on a carriage-maker’s shop, under the control and management of W. as his foreman. W. owed the defendant by note, and contracted with her to make a buggy for the note. The buggy was made and delivered, and the note given up to W. The plaintiff on hearing of the contract, disapproved of it and brought his action for the price of the buggy, alleging it to have been sold. Held, that he could not recover — that, regarding him as having adopted the contract, then he was only entitled to the note; regarding him as having repudiated the contract, then there was no sale of the buggy, and his remedy was, after demand, to bring trover.</p>

<p>Before Wardlaw, J. at Anderson, Spring Term., 1846.</p> <p>These cases were appeals from the decision of a magistrate ; and were each founded on subpoenas issued at the instance of the appellants, to procure the testimony of the appellees, in an indictment preferred in the court of sessions against Todd and Goodman, for forcible entry and detainer. The appelles had each attended two days, and claimed two dollars each for attendance, and thirty-two cents each for probate of ticket. The verdict rendered against the defendants in the sessions was guilty. The magistrate held that they were liable on the tickets, and gave judgment accordingly. On hearing the cases, on the magistrate’s report, the presiding Judge affirmed the judgments, and dismissed the appeals, from which decision the defendants again appealed, and now moved this court to reverse the decision of the presiding Judge, on the ground,</p> <p>Because a witness subpoenaed by a defendant indicted for a misdemeanor in the sessions, is not entitled to tax his costs, or demand payment for his attendance, whether the verdict on the trial thereof be for or against the defendant.</p>

<p>Before Wardlaw, J, at Anderson, Spring Term, 1846.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“This was an action of assumpsit, brought by the father of Polly Clement against the defendant, charged as her husband, for four years’ boarding, clothing, and other necessaries furnished to her. The questions were,</p> <p>1. Was the defendant her husband 1</p> <p>2. Did the circumstances proved, authorize a third person, without the assent of the husband, to charge the husband for necessaries supplied to the wife ‘l</p> <p>As the appeal seems to be mainly from the verdict of the jury, and as there was a vast mass of testimony, to much of which I might not give the prominence which the defendant’s counsel may suppose it is entitled to, I send my notes of testimony taken on the trial, as my report of the facts, without any attempt to arrange or condense them. *</p> <p>I held that a wife, (not having been guilty of adultery) went abroad with a husband’s credit for necessaries,</p> <p>1. When he had treated her with sevitia, although he may not have desired to expel her from his house.</p> <p>2. When he had driven her away, intending to do so.</p> <p>3. When he had refused to receive her upon her return, although she may have departed without cause.</p> <p>I refused the motion for non-suit, and submitted the evidence on this head to the jury — directing them, if they found for the plaintiff, to consider the value of the wife’s services to him, in estimating the sum to be allowed for necessaries.</p> <p>I held that marriage, like other contracts, required the assent of capable parties; that the ceremony would be void if one of the parties was insane — that insanity from delirium tremens was not to be distinguished from other insanity, but was to be carefully distinguished from mere intoxication.</p> <p>I called attention to what Dr. Evins had said, that every thing here proved might have resulted from mere intoxication, and said that equivocal symptoms should be carefully inquired into-in this connexion examining the testimony, which went to shew that the defendant had quit drinking before the attack, and was not drinking during the continuance of the symptoms described.</p> <p>I adverted to the evidence and medical authorities read, which shewed that disease resulting from the cessation of stimulants, might be mild or aggravated, in any degree, from the ordinary nervousness of a drunkard after a debauch, to the wildest extravagance of a furious madman ; and pointed out the existence of delusion as a plain indication of insanity.</p> <p>I held that the acknowledgment of the wife, after manifest recovery, was not a confirmation of a void act, but strong evidence that the insanity had not previously existed, and may have been believed or supposed.</p> <p>I thought that all the evidence about Polly’s character was misjudged, and, not going farther, was irrelevant; but I heard all that was offered, no objection being made. I said that a marriage to a bad woman was valid, no less than one to a good woman — and that I could not see how the wife’s character was important to the question, unless there was such disparity or degradation as would furnish, of itself, evidence that the man must have been out of his senses.</p> <p>I most carefully abstained from the intimation of my own opinion, and think that neither party could have detected my leaning from any observations I made.</p> <p>The jury found for the plaintiff $300.” (</p> <p>The defendant appealed, and now renewed his motion for a non-suit, on the ground that</p> <p>The conduct of the defendant, to his alleged wife, was not such as authorized her to depart from his house, and carry with her his credit for necessaries.</p> <p>And failing in this motion, then he moved for a new trial, on the following grounds.</p> <p>1. Because the whole proof on the part of the plaintiff, as well as on the part of the defendant, shewed that the defendant was not in his proper mind when the marriage ceremony was performed.</p> <p>2. Because there was no proof that the marriage ever was consummated by the parties ; and the ceremony being in the usual form, the marriage was incomplete until consummated by cohabitation.</p> <p>3. Because the defendant being a laborer, his alleged wife’s services in the house of her father should have been considered a compensation in law for the necessaries furnished by hi«m</p> <p>4. Because his Honor erred in charging the jury that the symptoms proved to have existed, at the marriage, would all apply as well to a common state of drunkenness as to delirium tremens.</p> <p>5. Because his Honor charged that all those symptoms of delirium tremens may exist without producing a state of insanity, or a want of capacity to make a contract.</p> <p>6. Because his Honor charged that if the defendant acknowledged his alleged wife in a lucid interval, it affirmed the marriage and made it valid.</p> <p>7. Because his Honor charged that there was nothing in Polly’s character which would go to prove that the marriage took place in a state of derangement or insanity.</p> <p>8. Because the verdict of the jury was contrary to law and evidence.</p>

<p>On the trial of a suggestion under the prison bounds Act,, a witness for the plaintiff is not incompetent, merely because he is surety for the defendant to a promissory note, on which judgment has been recovered against the witness and defendant.</p>

<p>Before Frost, J. at Chester, Spring Term, 1846;</p> <p>" This was an action on an instrument, dated 31st January, 1843, whereby the defendant promised “ to pay on the first of January, 1844, to W. S. Ferguson, or bearer, nine hundred and two dollars, fifty-eight cents, if cotton should rise to eight cents by the first November next, and if not, to pay five hundred dollars, for value received.” It was admitted at the trial, that this instrument was given in part payment of a tract of land which the defendant had purchased of the plaintiff; and it was proved on the part of the plaintiff, that between the date of the agreement and the first of November, 1843, the highest prices of cotton were, in Columbia, 8 1-2 and 8 3-4 cents, and in Charleston, 9 and 9 1-4 cents.</p> <p>The defendant contended, 1st. That the agreement was a wager on the price of cotton. 2d. That according to the true construction of the instrument, the defendant was only bound to pay the larger sum, if cotton was selling for eight cents on or neos the first of November, and that this had not been shewn.</p> <p>Under the instructions of his Honor, the presiding Judge, the jury found for the plaintiff the larger sum.</p> <p>The defendant appealed, and now moved this court for a new trial.</p>

<p>Before O’Neall, J. at Lexington, Spring, extra Term, 1846.</p> <p>This was an action of trespass, to try titles to a tract of one thousand acres of land, granted in June, 1813, to one George Steedman, under whom the plaintiff claimed. The annexed diagram, though not a copy of the plat used on the trial, for the Reporter has not been furnished with one, will, it is believed, sufficiently illustrate the decision of the Court of Appeals.</p> <p> </p> <p>The part marked A, must be understood as representing a tract of six hundred and forty acres, granted in 1785, to one Simon Connor; B a grant in 1795, of several thous- and acres, to Robert Starke; and C, the land claimed by the plaintiff, and which was granted, as above stated, in 1813, to George Steedman. The grant to Steedman being junior to cither of the other two, the plaintiff could, of course, claim the land covered by the elder grants, only under the statute of limitations; and the question in the case was as to his title under the statute. The asterisk on the land covered by all three of the grants, represents the possession, herein-after mentioned, of Arnold, tenant of George Steedman; and the letter O, on land covered by Starke’s and Steedman’s grants, represents the trespass for which the action was brought.</p> <p>It was proved, to the satisfaction of the jury, that one John W. Arnold, as tenant of George Steedman, was in possession, and cultivated about three or four acres at the place marked with an asterisk, for at least five years between the years 1813 and 1823 ; and the only question considered by the court, was, whether this possession, within the lines of all three of the grants, could be extended, by construction, beyond the lines of the Connor grant, that being the oldest, so as to give George Steedman a title by possession to so much of the Starke grant, outside -of the Connor grant, as was covered by bis, Steedman’s, grant. At the time of Arnold’s possession, the Starke and Connor grants were owned by different persons.</p> <p>Under the charge of his Honor, the presiding Judge, the jury found for the plaintiff.</p> <p>The defendants appealed, and now moved for a new trial.</p>

<p>Before Wardlaw, J. at Abbeville, Spring Term, 1846'.</p> <p>Sum. pro. for the price of a mule sold and delivered.</p> <p>The delivery and value of the mule were proved on the part of the plaintiff. The defendant had a demand against one Freeman for money paid on a judgment, to which he, the defendant, was surety for Freeman, and, in his behalf, several witnesses testified that the plaintiff agreed, when the mule was delivered, to accept this demand against Freeman in payment of the price of the mule. One witness testified that, on one occasion after the sale, the defendant offered to the plaintiff either the mule or the judgment against Freeman, and he would take neither. Freeman was in bad circumstances, and it was doubtful whether the demand against him was worth any thing. The plaintiff, however, was his neighbour, and was well acquainted with his circumstances.</p> <p>His Honor decreed for the defendant, and the plaintiff appealed.</p>

<p>Before Frost, J. at Chester, Spring Term, 1846.</p> <p>This was an action of covenant on an agreement, dated 9th January, 1840, whereby, in consideration of $500 “ paid” by the defendant to the plaintiff, the' plaintiff assigned to the defendant the services of a negro, on condition, however, that whenever the plaintiff repaid the defendant the sum advanced, the defendant should return the negro. The breach alleged was, that the defendant had retained the negro, and had not paid the stipulated sum ; and the damages claimed were the difference between the interest of $500 and the hire or value of the services of the negro, and the costs of certain judgments recovered against the plaintiff’, as it was affirmed, in consequence of the defendant’s default.</p> <p>The only witness sworn on behalf of the plaintiff, proved that he was present at the execution of the agreement. The negro was delivered to the defendant. No money was paid, but the defendant gave his note to the plaintiff for $500, payable one day after date. The plaintiff, at the time the agreement was executed, desired the defendant to pay a note of the plaintiff, held by Dunovant, thenamounff ing to about $350; and said he did not care to receive the balance until fall. The defendant did pay this note about ten days after. He also proved, that the defendant had offered to return the negro to the plaintiff, if the plaintiff would refund the amount of Dunovant’s note; but plaintiff refused, wanting the defendant to pay hire. This offer was made after the action was begun; and the witness thought, was also made when Dunovant’s note was paid. The defendant still had the negro at the time of trial, and had had him since the date of the agreement, except for a few days, when the plaintiff took him away.</p> <p>His Honor refused a motion for a non-suit, and, after testimony heard on behalf of the defendant, the case was submitted to the jury, who found for the plaintiff $22.</p> <p>The defendant appealed, and now renewed his motion for a non-suit.</p>

<p>Application was made before a court of magistrates and freeholders, by a landlord against his tenant, for restitution of the demised premises. On the trial, the applicant produced, as evidence of the tenancy, the tenant’s note to him for the rent of the land. The tenant then offered to shew that the applicant was not, in fact, the owner of the land, hut the agent of A. B., the true owner; that A. B.’s title was only for life, and that she died shortly after the note was given; and that he, the tenant, had become, by purchase from one of the remainder-men, a part owner of the land. This testimony the court of magistrates and freeholders refused to receive. Held, that a writ of prohibition would not lie, to restrain their judgment, on the ground that the testimony should have been received.</p> <p>Prohibition will not lie to restrain the judgment of an inferior court on the ground that they committed an error of judgment in refusing to receive legal evidence; semble.</p>

<p>The owner of an execution, satisfied in fact, though unsatisfied on its face, induced the sheriff to sell a tract of land under it, and became himself the purchaser. There were two junior executions in the sheriff's office against the defendant, which were under stay, and under which the sheriff did not act in making the levy and sale. Held, that the purchaser acquired no title to the land.</p>

<p>A surety will not be discharged from his contract, because of an agreement for indulgence between the creditor and principal debtor, unless the agreement be obligatory on the creditor, and be for a certain or definite period.</p>

Before Frost, J. at Fairfield, Spring Term, 1846. This was an action on a note dated 30th November, 1840, by which the defendants promised to pay to the plaintiff, on the first day of January, 1841, eight hundred and fifty-three dollars, with interest from the first day of August, 1835. A special verdict was found.

<p>Before O’Neall, J. at Lexington, April, extra Term, 1846.</p> <p>Trespass to try titles. The plaintiff claimed under a deed from Artemas Watson, who claimed under Barnet Livingston, the grantor. Barnet Livingston first conveyed a part of the land covered by his grant, to his daughter, Naomi Gunter — describing the land intended to be conveyed, very imperfectly — -and afterwards conveyed another part, excepting the piece before conveyed to his daughter, to Artemas Watson. The plaintiff was in the undisturbed possession of a part of the tract, and the defendant, having taken out a junior grant/ trespassed on another part. The questions were, first, was the land on which the defendant had trespassed, covered by the deed to Naomi Gunter*? If not, then 2dly. Was it covered by the deed from Livingston to Watson ? If so, then 3dly. Was it covered by the deed from Watson to the plaintiff? The only legal question made in the case, will sufficiently appear from the ground of appeal, and the decision of the Court of Appeals.</p> <p>The jury found for the plaintiff, and the defendant appealed, on the ground, inter alia,</p> <p>Because his Honor erred in excluding the parol testimony offered to shew what land the grantors, Barnet Livingston and A.rtemas Watson, understood to be meant by the descriptions contained in their respective deeds.</p>

Before O’Neall, J. at Fairfield, July, extra Term, 1845. The report of his Honor, the presiding Judge, is as follows : “ These were actions of assumpsit brought on notes of hand, made by the defendant. Anne, in New York, for the purchase of goods. > The proof very clearly was, that every year the defendant went to New York to purchase goods, her husband remained at home.

Before Frost, J. at Fairfield, Spring Term, 1846. This was an action by the last indorser, who had taken up the note, against the first indorser. The note was made by J. J. Myers, dated 9th March, 1842, for $5000, and the name of the payee left in blank. It was indorsed first by the defendant, and by W. J. Woodward, and then by the plaintiff.

Before O’Neall, J. at Kershaw, Spring Term, 1846, The report of his Honor, the presiding Judge, is as follows : “ Mrs. White, William Bass and John Bass were the rel-atrix and relators in these cases in prohibition. They claimed to be white people, and not liable to the capitation tax imposed on them by the tax collector. Their ancestry was thus established. The grandmother of the relators was a well known and much respected mulatto woman about Camden.

<p>Before O’Neall, J. at Kershaw, Spring Term, 1846.</p> <p>Trover for tbe conversion of negroes. This case was first tried at Fall Term,' 1845, when the plaintiff was non-suited. On appeal, the non-suit was set aside, and a new trial ordered ; see 2 Rich. 13. At this, the second trial, it appeared that after the bond, to secure the payment of which the mortgage was given, became due, to wit: in January, 1846, the plaintiff seized the negroes under the mortgage, and was proceeding to sell the same to satisfy the bond, when, by agreement between the plaintiff and defendant, and one Joseph A. Black, the principal of the debt was paid by Black, and the negroes delivered to him ; and it was stipulated, in substance, that the action should proceed for the purpose of ascertaining the amount due to the plaintiff by way of interest or hire, and that this amount, when ascertained, with the costs, should be paid by Black.</p> <p>The defendant had given security for the production of the property under the Act of 1827. At the trial, John English and C. H. Davis, who were the sureties to his bond, were offered as witnesses in his behalf, and were rejected on the ground of interest. Verdict for the plaintiff.</p> <p>The defendant appealed, and now moved this court for a new trial, on the ground,</p> <p>Because his Honor erred in refusing to permit John English and C. H. Davis to be swoin as witnesses, who were bail for the delivery of the negroes, under the Act of 1827, after the fact was proved'and admitted that the plaintiff had taken the' negroes under the mortgage, and had delivered them to a third person for value received, agreeing to take other and different security.</p>

<p>The only time necessary for a ca. sa. to remain in the sheriff’s office, is that which will enable him to search for the defendant, and truly to return non est inventus. Three days held to he sufficient.</p> <p>To an action against bail, it is no 'defence that the cause of action in the original declaration against theprincipal, is defectively stated.</p> <p>An objection that the affidavit to hold to bail does not state how or on what account the defendant became indebted to the plaintiff, nor that the debt was due, 'cannot be made by plea to the action against the bail. It should be made by motion to have an 'exoneretur entered on the bond.</p> <p>An affidavit to hold to bail which states that the defendant is justly indebted to the plaintiff in the sum of, &c. by promissory note dated, «Sic. is sufficient.</p> <p>Where the bail plead that the condition of the bond does not conform to the stat. 23 H. 6, c. 9, a replication affirming that it does conform, should not conclude to the country ,</p> <p>On a demurrer the rule is to give judgment against the party •whose pleadings were first defective.</p> <p>Where, in an action against bail, the f bond, is set out in the declaration, an objection that the condition does not conform to the law, should be made by demurrer and not by plea. .</p> <p>A bail bond is not void because the damages aire set out in the condition..</p>

<p>Before Frost, J. at Fairfield, Spring Term, 1846.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was a sum. pro. to recover the amount of a note given by the defendant to the plaintiff, for a year’s rent of a tract of land, which the defendant rented of the plaintiff.</p> <p>The plaintiff had bought the land at sheriff’s sale, and then rented it to the defendant. One Harrison, who claimed the land, was offered as a witness, to prove that the plaintiff had told the defendant, after the note had been given, that he, the plaintiff, would not claim the rent, if the title to the land were not in him. The competency of the witness was admitted, but the proof rejected.</p> <p>It was proposed to .prove that the plaintiff had no title to the land; and this proof was also overruled. A decree was rendered for the plaintiff.”</p> <p>The defendant appealed, and now moved this court for a new trial, on the grounds,</p> <p>1. Because the defendant should have been permitted to show that the plaintiff had no right to the land which he had rented to the defendant.</p> <p>2. Because the defendant should have been permitted to show that the plaintiff had promised not to require the rent note, if the land was not his.</p> <p>3. Because the proposed evidence of the witness, James Harrison, should have been received.</p> <p>submitted a written argument.</p>

<p>Ia 1837, the Legislature chartered “the bridge over the Enoree river, near the site of the old ferry, lately erected by” the plaintiff, and by the same Act authorized the defendant to erect a toll bridge over the same river “ at or near Littleton’s old ferry landing,”— which was near three miles above the plaintiff’s bridge. The de. fendant’s bridge was erected at the proper place, and in 1840 both bridges were swept away by a freshet. The plaintiff re-built his bridge 200 yards lower down on the same stream, and the defendant re-built his bridge 720 yards lower down. The plaintiff then brought his action against the defendant for disturbance of his franchise, contending that his, the plaintiff’s, bridge, as re-built, was within the meaning of the charter, and the defendant’s was not. Held, that one bridge was as much within the meaning of the charter as the other, and, therefore, that the plaintiff was not entitled to recover.</p>

<p>Before Frost, J. at Lancaster, Spring Term, 1846.</p> <p>This was a sum. pro. to recover overseer’s wages from the 10th July to the 16th November, 1845, at the rate of $12 50 per month. The service of the plaintiff was proved. In defence, the written agreement between the plaintiff and defendant was produced, wherein, after the usual stipulations in such a contract, the plaintiff covenanted to abstain entirely from all intoxication, and to forfeit his entire wages if he got drunk and was dismissed.</p> <p>Stratford proved the plaintiff was turned away for intoxication. Caldwell proved that he saw plaintiff going home from court, at fall term, so drunk that he fell off his mule. Faulkner saw him drunk once, going home. He fell from his horse', and witness caught it, and supposed plaintiff went home. Once before this, the same witness saw him staggering, so that he could hardly keep his feet. Short proved that he saw plaintiff, “ what witness would call drunk,” twice — once at the house of witness, on Sunday, a short time before the plaintiff was discharged.</p> <p>Dr. Wiley proved, that having called on the plaintiff for payment of his medical account, after the plaintiff had been discharged, the plaintiff told him he had settled with defendant, and $14 was due to him, for which sum the plaintiff gave Dr. W. an order on the defendant. Payment was refused. Caldwell proved that the plaintiff had bought some bacon from the defendant, and had no means of supporting his family. Also that the plaintiff had the services of a woman, which were worth $4 per month. But the defendant having filed no claim for discount, this proof was withdrawn from the consideration of the jury.</p> <p>The plaintiff claimed a jury, and the case was submitted to them. On the law of the contract between the parties, they were instructed that if the plaintiff got drunk during his employment by the defendant, and was dismissed on that account, he forfeited all claim for compensation, and could not recover for any estimated value for his services. They found a verdict for the defendant.</p> <p>The plaintiff appealed, and now moved this court for a new trial, on the following grounds :</p> <p>1. Because his Honor charged the jury, that if they believed the witnesses (who swore that plaintiff did get drunk twice in October, and once in November, while in the service of the defendant) the terms of the written agreement, precluded his recovery; and as a matter of law, they were bound to find for the defendant.</p> <p>2. Because the evidence in the case shews that the parties changed the written agreement, and that the defendant waived the penalty.</p>

<p>To shew a confirmation of an infant's contract, there must he, after he attains maturity, and with a full knowledge of his rights, one of these three things, viz : 1. Acquiescence, from which assent may be fairly inferred. 2. An adequate benefit enjoyed, which has grown directly or indirectly out of the contract 3. Some direct act of express assent.</p> <p>If an infant, fraudulently representing himself to be of age, sell, or permit another to sell, his goods, he may, nevertheless, disaffirm the contract, and bring trover against the purchaser for the conversion of the goods.</p>

<p>Before Wardlaw, J. at Abbeville, Spring Term, 1846.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The defendant was indicted for retailing spirituous liquors without license.</p> <p>The indictment charged the acts of retailing to have been committed on the third day of February, 1845. One count alleging a sale to A. B. Arnold ; and another, a sale to A. B. Arnold, F. P. Robinson, Henry Power, and certain other persons.</p> <p>Before evidence was offered, the defendant moved to quash the indictment, for uncertainty in the description of the third persons mentioned therein — contending that A. B. Arnold should have been styled Alexander B. Arnold, and F. P. Robinson, Francis P. Robinson, if these were the persons meant.</p> <p>I held that if by proof it should appear that the individuals meant were known by the names which had been used in the description, that was sufficient certainty. This did fully appear, and I overruled the motion.</p> <p>Some evidence had been offered as to retailing on the first Tuesday of February, 1845 ; and then a question was propounded, as to retailing on the day preceding. Objection was made, and I admitted the testimony, holding that time was not material in this offence, more than in others.</p> <p>I charged the jury, that if the evidence showed that the defendant had retailéd without license to either of the individuals named in the indictment, at any time within six months next preceding the commencement oí the prosecution, they might find him guilty.</p> <p>The evidence went to show retailing, carried on openly, by persons asking for spirituous liquors, and drinking in the house of defendant — then' laying money down on the table, and going off without seeing who took it. Generally the wife of the defendant answered the calls for liquor; sometimes he was in the house, and sometimes out. I left j$fto the jury to inquire whether, from the circumstances, they were satisfied that the violation of the law was done according to the defendant’s contrivance, or with his knowledge and sanction — saying, that if satisfied of either, they might find him guilty.”</p> <p>The defendant appealed, and now renewed his motion to quash the indictment, on the ground of uncertainty in the description of the persons to whom the act of retailing is charged to have been made.</p> <p>And he also moved in arrest of judgment on the same ground.</p> <p> And for a new trial, </p> <p>1st. Because his Honor charged the jury that proof of any single act of retailing by the defendant, to any one of the persons named in the indictment, at any time within six months immediately preceding the finding the bill of indictment, was sufficient to convict the defendant; and permitted evidence to go to the jury of any act of retailing to the persons named in the indictment, within that time.</p> <p>2d. Because his Honor charged, that from the sale of spirituous liquors in the house of defendant — though without any proof of his presence or knowledge — the jury might infer that the sale was made by his sanction and authority, and was sufficient to warrant conviction.</p> <p>3d. Because the verdict is contrary to law, and without evidence.</p>

<p>Before Richardson, J. at Chesterfield, Spring Term, 1832.</p> <p>This was a motion to set aside the_ service of the writ in this case, on the defendant C. L. Prince. The writ was returnable to Chesterfield court, against five defendants, four of whom lived in that district and were served there. The defendant, C. L. Prince, lived in Marlborough district, and was served with a copy of the writ by the deputy sheriff of Marlborough district. At the time of the service, there was no original writ in the sheriff’s office of that district, nor had it ever been lodged there, although it had been lodged in the sheriff’s office of Chesterfield district. His Honor decided that the service of the writ was void, because the sheriff had not been in possession of the writ at or before the time the copy was delivered. The plaintiff appealed, and moved to reverse this decision, on the ground that the existence of the authority, without the possession of it by the sheriff, justified the service.</p>

<p>Before Gantt, J. at Barnwell, Spring Term, 1832.</p> <p>This was an action of debt brought against the defendant, the sheriff of Barnwell district, to recover the penalty of £.10 imposed by the Act of 1794, 1 Faust, 314. The Act provides that “ all arms and accoutrements which by this Act are required to be provided, also the troop horse of each trooper, duly entered and registered with the captain of the troop, so long as said trooper shall continue in the troop, shall not be liable to be seized, distrained, or taken in execution for any cause, matter or thing, whatsoever. And in case any person shall seize, levy, or distrain upon any such arms, accoutrements, or horse, every such person shall forfeit the sum of ten pounds sterling money, to be recovered in any court of record in this State.” The plaintiff produced in evidence a commission to Richard Johnson, as captain of a troop of cavalry in the Militia of this State, and proved by the secretary, that he, the plaintiff, was a member of the company and performed duty as such, with a horse, which the defendant had levied and sold under an execution, and that the horse levied and sold was the only one which the plaintiff had which was suitable for that service. This witness further said, that the horse had not been entered and registered with the captain of the troop, and that it had been supposed not to be usual or necessary to make a register of the troopers’ horses. His Honor non-suited the plaintiff, holding that he could not recover, inasmuch as the horse had not teen registered. The plaintiff appealed.</p>

<p>Against a note payable on demand, the Statute of Limitations begins to run from the date.</p>

<p>Before Richardson, J. at Marlborough, Bpring Term¡ 1832.</p> <p>Trover for the conversion of a slave. The conversion (demand and refusal) occurred on the 17th July, 1828, and the slave died in the possession of the defendant, about the 17th March, 1830. The only question made, was as to the amount of damages. When converted, the slave was worth from $350 to $400, and his hire from $35 to $60 per annum. His Honor instructed the jury that the true measure of damages was not the value of the negro at the time of the conversion, but his value for the term of twenty months, during which time the defendant had the possession of the negro previous to his death. The jury found for the plaintiff $60, and the plaintiff appealed, on ground of error in the charge of the presiding Judge.</p>

<p>In an action by the bearer on a note payable to A. B. or bearer, the defendant, that he may be let into his defence against the payee, may shew that the plaintiff is not the owner of the note, or has no interest in it, or that he gave no consideration for it.</p>

Before MaRtin, J. at Edgefield, Spring Term, 1832. The plaintiffs having issued their writ against Jesse Blocker, the defendant’s intestate, filed their declaration to Fall Term, 1831, and an order for judgment was given for want of an appearance ; but no interlocutory judgment was entered up, and before final judgment Blocker died. A sci. fa. was then issued against the defendant, the administrator, to shew cause why final judgment should not be awarded.

Before Richardson, J. at Kershaw, Spring Term, 1832, This was an action of covenant on a warranty in the following words: “I bind myself to warrant and forever defend the premises against myself and my heirs, and all other persons lawfully claiming or to claim the same.” The plea was. the statute of limitations.

Before Gantt, J. at Barnwell, Spring Term, 1832. The report of his Honor, the presiding Judge, is as follows : “ John Allen, the defendant’s intestate, purchased at the sale of the estate of Christian Faust, a negro fellow, at $ — . He gave his note for the amount, with William Roberts, the intestate of plaintiff, as security, to Wm. McMillan, the administrator of Faust. $530 of this debt was paid by Wm.

Before Gantt, J. at Richland, ¡Spring Term, 1832. The report of his Honor, the presiding judge, is as follows : (i This case has already been before the Court of Appeals, and a new trial granted. In the former case, Clis-sey, the defendant, was allowed to give evidence j in the trial before me he was not made a witness.

<p>Before Martin, J. at Edgefield, Fall Term, 1831.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>:i This was an action to recover from the defendant, one hundred and twenty-seven dollars, as the difference between a first sale by the sheriff of a negro woman, at which the defendant was purchaser, and a second sale made the next day, in consequence of his refusing to complete his purchase. ■ It appeared that most, if not all, the plaintiff’s negroes had been levied'on, and were about to be sold under various executions. That plaintiff on the day of sale represented them as a prime gang of negroes, the pick, as he said, of about two hundred. When this particular negro was about to be sold, or when the sheriff was crying her, Dent asked Minter as to her capacity, <fec. &c. and Minter said he had lately bought her in Alabama, and could not say any thing of her of a definite character. The witness, Mr. Brooks, thought Minter disposed to evade Dent’s enquiry; he further said it was possible that this conversation may have taken place after the sale, but he thought it was before she was knocked off to defendant, if not before she was put up. The witness himself had promised Minter she should not go for less than $300, and he would have given that sum for her. She was stout, fat, and looked hearty. A slight examination of her countenance would convince any one that she was not a “ bright negro, but no one would suppose her to be an idiot or a fool, nor did he believe her to be either.” Ne-groes sold rapidly and high, and the women generally sold for about $350. No proclamation was made that the property would be re-sold if the terms of sale were not complied with. The sheriff’s original sales book, with the account of sales proved to have been made at the time, was produced, and this negro was set down to the defendant at $300. She was sold the next day for $173, in presence of defendant, who refused to comply with his purchase of the previous day At the close of the evidence on the part of the plaintiff, the defendant moved for a non-suit, which I overruled. See this case, 2 Bail. 291. A witness was sworn by defendant, who stated that plaintiff recommended these negroes very highly, by saying they were good negroes — that no better gang could be selected, as he had picked them out of two hundred. No exception was made as to this woman. As a gang they were likely, as good as usual. See Colcock vs. Goode, 3 McC. 513. The defendant then proposed to go into evidence to shew that this negro, by the weakness of her intellect, was valueless. I ruled that this testimony could not be received unless it was preceded by evidence of fraud, of misrepresentation, or express warranty on the part of Minter as to this particular negro. It was admitted that no other testimony could be adduced on these points, and the plaintiff had a Verdict, under the instructions of the court, for $127. See 2 Bay, 169 ; Davis vs. Murray, 2 Mill, 143. In this latter case, the defendant in execution substituted a sick negro for his land which was under levy, and used various artifices on the day of sale to conceal the negro’s situation. ' Yet on the statement of the case, the plaintiff (who had brought an action to recover back the money from the defendant in execution) was non-suited, and the opinion of the circuit court was sustained in the Court of Appeals. In delivering the opinion of the court, Mr. Justice Cheves says : “ If the plaintiff has any remedy, it must be tried in an action of deceit.” Dent in this suit was tendered the privilege of going into evidence of fraud, deceit, or even an express warranty, but it was admitted none other could be afforded ; and no one will pretend that the evidence in this case proves fraud or deceit on the part of Minter.”</p> <p>The defendant appealed, and now moved this court for a new trial, on the following grounds.</p> <p>1. That the judge erred in sustaining an objection to the competency of evidence to prove that the negro was valueless for the want of common sense, and particularly after proving Minter’s representations.</p> <p>2. Because the judge erred in charging the jury, that the defendant was liable in this action for the difference between the first and second sale.</p>

Before Richardson, J. at Kershaw, Spring Term, 1832. This was an issue made up under the order of court, by consent of the parties. The suggestion charged that the defendants, Mazyck & Bell, on the 7th May, 1830, obtained a judgment against the plaintiff, James McEwen, for $509 67, and that he paid $478 in part satisfaction thereof, on which issue was taken.

Before Martin, J. at Edgefield, Fall Term, 1831. The report of his Honor, the presiding Judge, is as follows : “ This action was founded on an agreement, bearing date the 1st November, 1828, by which the defendant agreed to purchase from the plaintiff, by his agent, B. Mc-Kennie, three tracts of land. • The agreement is as follows: ‘ That the said Thurmond agrees to pay said Breithaupt, trustee as aforesaid, fifteen hundred dollars for three tracts of land,’ (describing…

<p>Action against the surety on the administration bond of C. D'. administrator of J. S. After the death of J. S. his land, which was under mortgage, was sold under fi. fas. junior to the mortgage, and purchased by a stranger. C. D, the administrator, repurchased the land out of the assets of his intestate, taking the conveyance to himself : he then paid the mortgage debt out of the assets of his intestate, and afterwards sold the land at a considerable profit. On bill filed in equity a decree was obtained against him, as administrator, for the advanced price at which he had sold the land. Held, that the surety was liable for the amount of the decree.</p> <p>The sureties of an administrator are liable for profits over and above legal interest made by an administrator on a prudent investment.</p>

<p>Before Earle, J. at Lancaster, Spring Term, 1832.</p> <p>The plaintiffs obtained judgment and issued a ft. fa. against the defendant, which was lodged with the sheriff on the 3d. November, 1829. On the 6th September, 1830, they issued a ca. sa. on the same judgment, on which the defendant was arrested. The defendant died in jail, and with the consent of the plaintiffs, was removed and buried. After his death, the sheriff, having the fi. fa. in his office, and also junior executions, levied personal property and raised about one hundred dollars, and was ruled to pay it over to the plaintiffs. The junior execution creditors claimed it, on the ground that the arrest being satisfaction, the plaintiffs’ lien was gone, and the junior fi. fas. were entitled to the money. His Honor discharged the rule, and the plaintiffs appealed, on the ground that the arrest was only a suspension of the lien, which continued only so long as it remained doubtful whether the body would produce satisfaction ; and that an arrest on a ca. sa. is no satisfaction, nor does it destroy the lien of the ji. fa. but only its active energy.</p>

<p>Before Martin-, J. at Union, Bpring Term, 1832.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“The words charged in the plaintiff’s declaration, were, in the first count, “some fitne ago Mr. Norris’ stables were burnt, and I lost my horse, and public opinion says you was the author of it, and what public opinion says, I believe to be right.” Second count. That in speaking to plaintiff in relation to burning the stables and docking the horse, the defendant said to plaintiff, “ public opinion says you did it, and I am not sure but what public opinion is right.” In both these counts, the plaintiff, by inuendo, alleged that defendant intended to charge him with arson. The third count contained the same charge as to the horse. The fourth the same as to the burning the stable. The fifth, that public opinion charged plaintiff with burning the stable; inuendo that he intended to charge him with arson. It appeared that Norris’ stables, which were situated on the lot upon which he lived, about sixty yards from the mansion, and, as the witness thought, with a fence between, had been burned in the night time; and . the night before the speaking of the words for which the action was brought, the defendant’s horse, with others, had been swabbed (as the witness termed it) in Norris’ stables. The defendant came into the plaintiff’s house, and in presence of witness and another, said, with some agitation, to plaintiff, “ I have something to say which may hurt your feelings. Some time ago Norris’ stables were burnt, and I lost a horse; last night my horse was docked, and public opinion charges you with it.” The plaintiff asked if he charged him with the offence; defendant answered hedid not. The plaintiff then asked what he meant by public opinion, and defendant replied : “ what every body says, and I am not so sure but what public opinion is right.” The witness understood defendant as speaking in reference to the burning the stables, and docking or swabbing the horse ; and he regarded it as tantamount to charging plaintiff with both those acts. But the question propounded by plaintiff to defendant,- when the charge was made, was, “ do you charge me with docking your horse?” to which the defendant answered by reference to public opinion, as before stated. The defendant, in another conversation, with Bates, in the presence of McJunkin, concerning the burning of Norris’ stable, and the docking of his (defendant’s) horse, said “ it was the general opinion,” or public opinion, that plaintiff did it. He (defendant) did not charge plaintiff with’ it, or express any- opinion as to the correctness of the charge. McJunkin, in relating the conversation alluded to by Bates, said that defendant said public opinion charged plaintiff with it, and he understood him to allude to the burning of the stable, for he heard nothing as to the docking of the horse. There was a great variety of testimony as to the good character of the plaintiff, to shew malice in defendant — that public opinion had never charged him with this offence, &c. — and there was much testimony on the part of defendant, in answer to all that plaintiff proved. But as the grounds of appeal do not seem to render this testimony necessary for the court, I forbear to detail it. On the close of the plaintiff’s testimony, the defendant moved for a non-suit.</p> <p>First. Because the burning of the stable, even if charged by the defendant, was not arson, with which, it was alleged by plaintiff’s declaration, the defendant intended to charge the plaintiff.</p> <p>Second. That it appeared by the evidence, that the horse had only been disfigured by swabbing his tail; and that this is not such a disfiguring as is punishable by indictment under the Act.</p> <p>Third. That the plaintiff had failed to prove any cause of action against defendant, since the latter expressly denied that he charged plaintiff with the offence.</p> <p>“ As to the first ground. The Act of 1670, 2 Brev. Dig. 35, makes it felony to burn or cause to be burnt any ricks of hay, barns or other houses or buildings. If, therefore, the plaintiff had burnt Norris’ stables, he was guilty of felony under that statute; and the charge, if false, I could not doubt was actionable. The objection, however, was that plaintiff, by his declaration, had alleged that defendant had charged him with arson, when the words, if proved, did not amount to arson. There can be no doubt that giving character to the offence charged, will not make the words actionable, if they be not so without it; and I conceive it equally true, that if the words spoken charged the plaintiff with an offence for which he may be indicted, and if convicted, rendered infamous, they are actionable, although they do not impute an offence of the technical character, or subject the plaintiff to the punishment which had been intended or understood. Thus, if one say you stole A’s horse, and the plaintiff in declaring on the these words, were to allege that defendant intended to charge him with felony, without benefit of clergy, this would not prevent his recovery, for the words spoken were actionable, and it is the inuendo only which is erroneous. If it were otherwise, then it would follow that the plaintiff was bound to prove to the letter every inuendo in his declaration. The words proved in this case imputed, as I supposed, a felony to the plaintiff; on that ground they were actionable. If, as alleged by plaintiff, the defendant intended to charge him with arson, when the words used did not fix on him an offence of so high a grade, it was an aggravation of which the jury were to judge, although the language was not so strong as the defendant might have intended it to be. If one say to another, you are guilty of burglary, for you stole goods from A’s store, it would surely be actionable, although the stealing, as charged, did not amount to burglary. So, here, if the defendant charged plaintiff with felony, it was actionable, although it was not arson, as the defendant, according to plaintiff's declaration, intended to make it. The motion for a non-suit was therefore overruled on this ground : ,</p> <p>' “I did not think the words charged as to the docking of the horse actionable, becausé not a disfiguring within the Act, and so charged the jury. The third ground was entirely for the jury, and therefore the motion was overruled on-that ground. In relation to the grounds now relied on for a nonsuit, I would remark first as to the</p> <p>“ Second. The witness was very clear as to his understanding that defendant charged plaintiff with-both offen-ces, but I stated to the jury that if they, after all they had heard, believed the defendant alluded only to the docking of the horse, they should find for defendant.</p> <p>“ Fourth. The same remark is applicable to this ground of appeal. . ' .</p> <p>•“ Fifth and Sixth. The counsel is mistaken in supposing that I refused' the nonsuit on the ground that the words proved amounted to a charge of arson. I stated that I was not prepared - to, say this -was not a building so far “contri-butáry to the mansion,” as.said by the court in 1 N. and McO..584, 'as to make the burning arson. But I refused the motion , entirely on- the ground that, whatever difference-of opinion might exist as to the charge of arson, the words of themselves imputed a felony to the plaintiff. The plaintiff had a verdict.-”</p> <p>The defendant appealed, and: renewed his motion fora nonsuit, on grounds with which the Reporter has not been furnished. . • ■</p>

This was an action of trover for a negro woman named Dinah, tried before Richardson, J. John Crosswell testified that he knew Dinah as belonging to Asa Singleton. That in January, 1822, Dinah being run away, and Asa Singleton about to go to the West, he, Asa Singleton, told the witness to take Dinah and hire her out.

<p>Before Martin, J. at Union, Spring, Term, 1832.</p> <p>This was an action of detinue for a negro. John Foster, the plaintiff’s testator, gave the principal part of his estate to his widow for life, and part to an idiot son in fee. After the death of the testator, George S. Foster, the eldest son, applied to the ordinary for administration, stating, in the presence of the plaintiff, who then had the will in his pocket, that the paper supposed to have been a will, had been shewn to Col. Gist, and that he had pronounced it a nullity. Having obtained administration, George S. Foster sold the whole of the personal estate in December, 1823, when plaintiff was present. At this sale, George S. Foster bought the negro in dispute, at a full and fair, if not an extravagant price. In April or May, 1824, the negro passed into the possession of the defendant, the son-in-law of George S. Foster. It was very clear, from the evidence, that George S. Foster was a shrewd, intelligent and artful man — .and it was equally well established, that the plaintiff was very far his inferior. Yet no one pretended that he was not capable of understanding and transacting ordinary business, as well as other men of his class. Efforts were made to prove that George S. Foster exercised great authority and control over the plaintiff, but there was nothing from which such a conclusion could be drawn. The testator, John Foster, had been blind for several years previous to his death, and George had managed his business almost exclusively ; yet by his will he appointed Nathaniel executor, and when George took out administration, Nathaniel was one of his sureties. Some time after administration was granted, the sureties of George, having become dissatisfied, took from him a confession of judgment for their indemnity — and his administration was revoked 19th April, 1825. He made no returns to the ordinary, except an inventory and an account of the sales. Several witnesses were sworn, to establish the insolvency of George S. Foster at the time of the sale, or when the negro passed into the possession of the defendant, but the evidence was very unsatisfactory. The defendant having proved his possession and claim of the negro since April or May, 1824, the plaintiff produced a bill of sale made by George S. Foster to the defendant, dated the 6th December, 1825. The witness who proved that bill of sale, said it was executed the day of its date, and was given because the defendant stated to Foster that his affairs were unsettled, and he had nothing to shew for this negro, who had been in his possession for eighteen or twenty months. He understood from the parties, that it was in affirmation of whatever title the defendant had to the negro, by what had previously passed between them, and not the origin of his claim. The plaintiff also gave in evidence a report made by the commissioner in equity in relation to this claim.</p> <p>The plaintiff contended: first, that George S. Foster’s purchase was void, because an administrator cannot purchase at his own sale. Secondly, that as he could not do so, the property was still of the estate ; and that even if the purchase by Foster was good, yet the gift to the defendant was void as against his, Foster’s, creditors, of whom the plaintiff, in virtue of his right against Foster to an account of the estate of his testator, was one. The jury found for the defendant, and the plaintiff appealed.</p>

<p>Where a will has been proved in common form, and application' is made requiring it to be proved in solemn form, if there is no executor, or administrator mm testamento annexo, in existence, the parties interested in sustaining the will, whoever they may be, whether legatees or the representatives of deceased legatees, may be required to prove the will in solemn form, and are proper parties to the proceeding..</p> <p>Acquiescence in the probate of a will in common form for four years after the removal of all disabilities, will preclude the parties in interest from requiring it to be proved in solemn form, (a)</p> <p>After the death of U. W. in 1808, a paper purporting to be his will, in the hand writing of J: H., but not signed or witnessed, was admitted to probate in common form, on the affidavit of J. H., which stated “ that he drew the will which he now presents to prove, at the request of the late U. W., agreeably to the special directions of the said deceased; and to the best of this deponent’s knowledge and belief the said deceased was of perfect sane mind.” On application requiring this will to be proved in solemn form, J. H. being dead, his affidavit, which remained with the probate, was received as evidence, but held insufficient to prove the will.</p> <p>The requisites necessary to sustain the probate of an unfinished will considered by the court.</p>

<p>Before GanTt,' J. at Charleston, Spring Term, 1832.</p> <p>The report of His Honor, the Presiding Judge, is a§ follows:</p> <p>“ The defendants were merchants in Baltimore, trading under the firm of Creighton & Woodville. Certain goods were entered at the Custom-House, the duties on which were secured by a bond. The bond is signed by Wood-ville, but not in his co-partnership character; the plaintiffs became security for the payment of the duties, and also executed the bond. The condition of the bond recites that the duties on the goods were chargeable to Creighton & Woodville, and it is customary to insert in bonds taken to secure the payment of duties, the names of the persons for whom the goods are imported, or those to whom the goods are consigned. The signatures to the bond, the articles of co-partnership entered into by the defendants, and the receipt of the money paid by the securities to the bond, are all fully and satisfactorily established by the examinations had under a commission. Mr. Cross moved for a nonsuit, on the ground that Creighton is not bound, and that none are responsible on the bond but those who have signed it. This action was not brought upon the bond, and the motion for nonsuit was refused.</p> <p>“ It appeared that several attempts had been made to make Creighton liable on this bond, in the Federal Court, but ineffectually. The reason was, that the bond had not been executed by Woodville in the name of the firm, which the Act of Congress of the 18th April, 1820, requires to .bind the firm.</p> <p>“ The whole case is this : The plaintiffs, at the instance and request of Woodville, of the house of Creighton & Woodville, and for their benefit, loaned their names at the Custom-House. They paid the debt, and they ask the reimbursement of the money thus paid.</p> <p>“ Is it an answer to this just demand to say, that Creighton did not sign the bond ? What has the bond to do with the case 1 The plaintiffs laid out and expended monies for the defendants, and at their request, which the evidence shews — the recital in the condition of the bond, being a strong link in the chain of evidence to shew it, and one which estops the defendants from saying to the contrary. A very intelligent jury gave the verdict, which appears to have been well-founded, both in justice and in Jaw.”</p> <p>The defendant appealed, and now renewed his motion in this court for a nonsuit.</p>

Before Gantt, J. at Charleston, Spring Term,, 1831. The report of His Honor, the Presiding Judge, is as follows : t£ This was an action to recover for the use and occupation of two lots, for which the defendant held a parol lease from the plaintiff. There was not a particle of proof that the defendant ever had possession of the lots.

Before Martin, J. at Beaufort, Bpring Term, 1831. This was a sum. pro. on a note given by Mrs. Youmans for purchases made at the plaintiff’s sale as executor of Wm. Deloach. She was herself appointed executrix: of Wm. Deloach’s will, and after that sale qualified on his will, and this was relied on as her defence.

Before Earle, J. at Beaufort, Fall Term, 1831. The report of his Honor, the presiding Judge, is as follows : “ John Law, the defendant’s intestate, in his life time instituted separate actions of slander against' the present plaintiffs, Cordray and Cuthburt.

Before Gantt, J. at Charleston, Spring . Term, 1831. This was an action brought by the plaintiff to recover from the defendant one-half of the expense of erecting a wooden partition fence between two dwelling-houses and lots adjoining each other, in Archdale street; one belonging to the plaintiff, the other the property of the defendant.

<p>Before Gantt, J. at Charleston, Spring Term, 1831.</p> <p>This was an action of assumpsit on a promissory note given by the defendant, whilst a feme covert, to the plaintiff’s testatrix. In the note the defendant entitled 'herself a sole trader, and the action was against her in that character. Her husband was joined in the action for the sake of conformity, but died before the trial. The plea was the general issue.</p> <p>His Honor, the presiding Judge, overruled a motion for a non-suit, made on the ground that the plaintiff should have proved that the defendant was a sole trader when the note was given. The plaintiff had a verdict, and the defendant appealed, and now renewed his motion for a non-suit, on the ground taken in the court below;</p>

<p>If, after a note is barred by the statute of limitations, the drawer promise to pay it, such promise is a new cause of action, the old debt being the consideration; and it seems, that in an action to recover the debt, the plaintiff must declare specially on the new promise.</p> <p>The drawer of an unnegotiable note promised verbally to pay it, after it was barred by the statute of limitations; held, that such promise was a mere chose in action which could not be assigned so as to enable the assignee to maintain an action thereon in his own name.</p>

<p>Testator devised land to his son A. and “ if age, or should die without leaving lawful issue of over. Held, that or must be construed and, and that- on A’s attaining twenty-one years of age, he acquired an absolute estate, and not merely a fee conditional in the land.</p>

Befóte Evans, J. at Charleston, January, 1832. Motion to quash an indictment. The case was as follows : A mare was brought before James Ferguson, Esq.,, one of the justices of the peace for the parish of St. John’s Berkley, which had been seized by one Zachariah Norwood, as the property of a slave belonging to the defendant, Ma--zyck.

Before Gantt, J. at Charleston, Bpring Term, 1831. Trover for a mare.

<p>Process for selling and exposing for sale goods in defendant’s shop on Sunday. The proof was that the defendant kept a retail liquor store ; that on Sunday his store door was open, and his liquors were exposed; that several persons were in the store, and one of them was seen with a tumbler in his hand; that the weather was very warm ; that the shop doors were the only means of ventilating the room in which the defendant usually sat and ate; and defendant’s clerk testified that nothing was sold on that day. On this proof, the jury found the defendant guilty, and the Court of Appeals granted a new trial, on the ground that the verdict was without evidence.</p>

<p>Under the Act of 1817, allowing sheriffs to recover, “by special action on the case,” from the plaintiff the jail fees of the defendant in execution, the action to recover the fees may be brought in a magistrate’s court.</p> <p>An attorney, without special instructions from his client, may issue a ca. sa. and cause the defendant to be arrested and confined in jail, (a)</p>

<p>Before Gantt, J. at Charleston, Spring Term, 1831.</p> <p>This was an action of assumpsit on a note of hand taken under the following circumstances. One Bacon, who was the father-in-law of the defendant, Prescott, called at the store of the plaintiffs, and requested credit for goods to the amount of six or seven hundred dollars, upon his own responsibility, which was declined. On the next day he called with the defendant, Prescott, and it was arranged that he might take the goods on a credit of nine months, on his giving a draft on Prescott, Bishop & Gray, and their acceptance. The bill was made out, calculations made, and the draft drawn. The plaintiffs immediately, and before the delivery of the goods, sent the draft for acceptance. The young man who carried it, (since dead) on his return stated that Prescott was not within, and that Mr. Bishop requested that it might be left till Mr. Prescott came in ; and that he had left it accordingly. The next morning the young man was sent back for it— he brought it back with the acceptance upon it by Prescott, Bishop & Gray, in the hand writing of Prescott. The goods were then delivered to Bacon. The note on which this action was brought, the signature to which was in the hand writing of Prescott, was afterwards substituted in the place of the draft. On the back of the draft, which was produced as evidence, was the following indorsement in the hand writing of Bishop, “ paid the 9th January, 1827.” It was further proved, that some years before the trial of this case, a draft, drawn by Bacon on the defendants, was accepted, and passed to the payee’s credit in bank.</p> <p>The defence set up, was, that this was a transaction by Prescott in his individual character, and that the firm were not bound by it. Under the charge of his Honor, the presiding Judge, the jury found for the plaintiffs ; and the defendants appealed, and now moved for a new trial, on the grounds:</p> <p>1. The'rule of law is settled, that where an individual copartner pledges the copartnership responsibility for his own individual debt, or for the debt of a third party, such contract is not binding on the copartnership, without the express assent of all the copartners.</p> <p>2. The consideration of the note in question was clearly proved to have been a debt due by Joseph Bacon to the plaintiffs, and no assent of the other copartners to become securities for Bacon, was proved by the plaintiffs.</p> <p>3. The verdict was against law and evidence.</p>

<p>If the drawee of a bill of exchange drawn payable at sight, promises to pay it, if it be presented at a particular time, in an action against him on such acceptance, the plaintiff need not aver or prove presentment of the bill for payment at that time.</p> <p>If a promissory note be made payable at a particular place, the plaintiff, in an action on the note against the drawer, need not aver or prove presentment for payment at that place. Smith vs. Bwrrell, cited in opinion of Johnson, J.</p>

<p>Before Evans, J. at Charleston, January Term, 1832.</p> <p>The report of His Honor, the Presiding Judge, is as follows :</p> <p>“ The facts of this case, material to its decision, were as follows, as admitted by the counsel:</p> <p>1. In 1819, Lowden and others obtained judgments against Gibbes.</p> <p>2. In 1820, he mortgaged his house, on South Bay, to the plaintiff, Harth.'</p> <p>3. In 1824, Gibbes assigned to the defendants all his property for the benefit of Ms creditors.</p> <p>4. The mortgage was foreclosed by suit at law, and the plaintiff became the purchaser at the sheriff’s sale, in April, 1825, for the price of $2000.</p> <p>5. The money was paid to sheriff Cleary, who, after deducting expenses, and $45 for the corporation tax, paid the balance to the judgment creditors older than the mortgage.</p> <p>6. Afterwards the plaintiff, as owner of the property, was compelled to pay the State tax, $15.45, and to the city sheriff, Deliesseline, the corporation tax of $45, and costs.</p> <p>This action was to recover these two sums, making $71.45, from the defendants as assignees of Gibbes, but the plaintiff claimed a decree for the State tax and half the city tax only, the other half having been remitted by the city council. I understand the settled law of this State to be, that the purchaser at sheriff’s sale takes the property subject to all legal incumbrances, among which is its liability for taxes. He purchases without warranty, and, in general, cannot at law call on the former owner to refund money paid in discharge of incumbrances. But it would seem, from the case of Butler vs. Bailey, 2 Bay, 244, that taxes take precedence of all other liens, and if the sheriff had been ruled, as he might have been according to the authority of this case, the taxes would have been ordered to be paid out of the amount of sales in his hands. This would have reduced the sum paid to the elder judgment creditors by the amount of the taxes, viz: $71.45; and the other property assigned to the defendants would have been chargeable with the payment of that sum. Of these creditors, I therefore thought that the plaintiff, ex equo et bono, might demand the money thus paid, as money paid to their use. The principle, however, did not extend beyond the State tax, as Oleary, the sheriff, had retained out of the sales the city tax of $45, which, it was said, was still in his possession. I, therefore, gave the plaintiff a decree for the sum of $16.45, and interest from the time paid, making $21.99.”</p> <p>Both parties appealed; the plaintiff, on the ground that the decree should have been for $48.95 ; and the defendants on the ground that the facts, as proved, and the law, as applicable thereto, did not warrant a decree in favor of the plaintiff.</p>

<p>The terms of a commissioner’s sale of negroes were, a credit of one, two and three years, the purchaser giving a bond and mortgage¡ u the titles to be made, but not delivered till the payment of the first instalment, and on non-payment the commissioner shall re-sell for cash, at the risk of the former purchaser.” A. B. purchased negroes, and, although they went into his possession, he gave neither bond nor mortgage, nor were titles delivered to him. Shortly after the sale he sold the negroes to the plaintiff, with notice of the incum-brance, in whose possession they were afterwards seized, and re-sold by the commissioner, under the terms of the order requiring a re-sale on non-payment of the first instalment. They had been in possession of the plaintiff more than four yeaTS from the time he purchased from A. B., but not four years from the time A. B.’s first instalment became due. On trover brought by the plaintiff against the commissioner, held that he could not recover ; that the commissioner, by permitting the negroes to go into the possession of A. B., had not waived his right to re-sell on non-payment of the first instalment; and that the plaintiff’s adverse possession, as against the commissioner, did not begin until the first instalment was due.</p>

Before Bat, J. at Chambers, Charleston, May, 1831. This was an application for a writ of prohibition to restrain the defendants from collecting certain fines imposed on the Relators, inhabitants of Sullivan’s Island, for not working on the high roads on the main-land in Christ Church Parish. His Honor ordered the writ to issue, and the defendants appealed.

The action was assumpsit for goods sold and delivered, and the opinion of the Court of Appeals sufficiently states the question made and decided.

Before Evans, J. at Charleston, February, 1832. This was a rule on the sheriff to shew cause why the proceeds of a sale made by him, of a house and lot of the testator’s, should not be applied to plaintiff’s judgment on bond, under which they had been sold.

Before Gantt, J. at Charleston, Spring Term, 1831. This was an action of assumpsit on a policy of insu-surance, on com and peas shipped in the sloop Leonidas, from —■—■, in North Carolina, to Charleston. The policy, interest and loss, were admitted, but the plaintiffs claimed the whole amount insured, $1900, deducting only the two per cent, provided by the policy — contending that it was a valued policy.

Before Gantt, J. at Charleston, Spring Term, 1831. The report of his Honor, the presiding Judge, is as follows : “ The plaintiffs were the owners of a steam-boat, and sold the same to Joseph H. Townes.

Before Gantt, J. at Charleston, Spring Term, 1831. Indictment for a riot. The defendants were found guilty; they appealed, and moved in arrest of judgment, and for a new trial.

Before Gantt, J. at Charleston, Spring Term, 1831. This was an action of assumpsit on a promissory note, given by James Richbourg to Robert J. Kirk, executor of Dr. William T. Moore, for $223 75, dated May 25th, 1826, and expressed to be for value received. The defence was; failure of consideration. The note was given for an account for medical services rendered by Dr. Moore to the trust estate of Robert W. Rogers, during the year 1820, and until the 29th October, 1821.

Before his Honor, Judge Bay, at Chambers. This was an application for a writ of prohibition, under the following circumstances. The city council of Charleston, under their tax ordinance, was proceeding to levy a tax or assessment on the real property of the Banks within the corporate limits of the city. The Banks claimed exemption under the words of their respective charters exempting them from taxes.

Before Martin, J. at Charleston, February, 1832. The report of His Honor, the Presiding Judge, is as follows: “ The defendant’s counsel submitted a motion to strike this case from the docket. The facts upon which the motion was founded were, that the writ issued to May Term, 1827, and the declaration, pleas and issue, were filed for October, 1827. But the case was not. docketed, as defendants allege, up to June, 1829.

Before Gantt, J. at Charleston, May Term, 1831. Action for cotton bagging sold and delivered. The plaintiff produced his book of original entries, and testified to the entry as made by himself, &c. He was then asked by defendant’s counsel if he had sold and delivered the bagging himself, personally, to the defendant. This question was objected to, on the ground that the plaintiff’s examination should be confined to the proof of the entry.

<p>Before Evans, J. at Georgetown, Spring Term, 1831.</p> <p>This was an action of debt on two sealed notes. The defendant made his mark. To the proof of one of the notes there was no objection. To the other, the plaintiff, W. D. Bryan, who was the executor of Bellamy, was the only subscribing witness. . His signature to the note was proved. The defendant contended that Bryan should himself have been examined, and that proof of his signature, as subscribing witness, was insufficient. His Honor thought the proof sufficient, and that Bryan could not be examined as a witness. The plaintiff had a verdict, and the defendant appealed.</p>

Before Gantt, J. at Charleston, May Term, 1831. These were three actions of debt, on the defendant’s bond as tax collector of the parishes of St. Phillip’s and St. Michael’s. The plea in each case was performance, and the replication set forth a breach in retaining money received to the use of the poor of Charleston neck. The defendant was elected tax collector of St. Phillip’s and St. Michael’s, in 1816.

<p>Before Gantt, J. at Charleston, May Term, 1831.</p> <p>This was an action of slander, for words charging the plaintiff with larceny. The plaintiff had a verdict, and the defendant appealed, and moved for a new trial, on a number of grounds, which it is deemed unnecessary to state.</p>

Before Gantt, J. at Charleston, Spring Term, 1831. This was an action of trespass for beating a slave. Several points were made in the course of the trial, only two of which it is necessary to state. The plaintiff’s attorney was called on to shew his warrant of attorney. No cause was shewn, and his Honor thought it unnecessary, and overruled a motion made for that purpose.

Before Gantt, J. at Charleston, May Term, 1831. This was an action of assumpsit. The jury found the following special verdict. “ We find that a promissory note, endorsed by Arthur Howell, Thomas W. Howell, and Halls, Kirkpatrick Co. in the order in which they are mentioned, dated the tenth of May, 1823, and payable sixty days after date, for fifteen hundred and fifty dollars, was discounted at the Branch Bank in Columbia.

Before Gakttt, J. at Charleston, May Term, 1831. The following is the report of the case which was adopted by His Honor, the presiding Judge : “ This was an action of assumpsit, brought by White, sur-vivot of Rowe, against the defendant, as executrix of L. C. Murphy, on an open account — non assumpsit, and the statute of limitations, were put in.

Before Gantt, J. at Charleston, May Term, 1831. This was an action against the defendant, on his official bond, as sheriff of Charleston District. The general issue and performance were pleaded. To the plea of performance there was a replication, setting forth that the defendant had received certain tax executions, and had omitted to collect the same, or to make a return at the time prescribed by law.

Before the Recorder, in the City Court, January Term, 1832. Á judgment was entered up in this case, in the city court, on the 20th January, 1821, on an open account. Some years afterwards, the defendant paid to the plaintiff the amount apparent on the face of the judgment, including the costs, and took a receipt, without prejudice to the plaintiff, if interest thereon should be ultimately ruled to be due.

Before Martin, J. at Charleston, February, 1832. The report of his Honor, the presiding Judge, is as follows : “ The executor of defendant had taken a rule to shew cause why satisfaction should not be entered on this judgment. On the return of the rule, it appeared that the action had been instituted on a bond; that in 1821 the condition, with the interest, equalled the penalty.

Before Evans, J. at Georgetown, Spring Term, 1831. This was an action on three promissory notes of the defendant, payable to Desbrow. The notes and the assignments were admitted. The defence was a discount, which consisted of three bills of exchange drawn by other persons on Desbrow, and accepted by him, and afterwards indorsed to the defendant. The acceptance by Desbrow was fully proved.

<p>Action by the city council for retailing, on the 3d November, 1830, without license. Defendant prc duced a license from the city council, dated the 3d December, 1830, authorizing him to retail until the next October, and a receipt from the city treasurer, bearing the same date, for sixty dollars — the price of a license for one year — which expressed that it was given for the price of a license to retail for one year from October, 1830. A city ordinance provides, that licenses to retail shall be taken out in the first week in April and first week in October, to continue in force for one year: “ provided that council may be authorized to grant licenses to such persons as may not have applied at the usual time, who shall, notwithstanding, pay therefor as though they had obtained licenses for a full and entire year, commencing at either of the periods above stated which shall immediately precede.” Held, that the city council, by giving the defendant a license, on the 3d December, 1830, to retail until the next October, and taking from him the full price of a license to retail for one year from the October preceding, had not waived or released the penalty incurred for retailing in the period between October and December, 1830.</p>

<p>Before Bay, J. at Chambers, Charleston, March, 1882.</p> <p>This case came on before His Honor, Judge Bay, upon a motion for leave to file an information in the nature of a quo warranto, against N. Heyward and others, appointed by the Governor as Trustees of the Medical College of South Carolina, and Dr. S. H. Dickson and others, professors of the said College, who had assumed to act as a corporation, and confer medical degrees, under color of the Act of the Legislature of 1831, entitled “An act to incorporate the Medical College of South Carolina.” (a)</p> <p>The relators stated in substance that N. Heyward, Esq. with five other gentlemen, nominated by His Excellency, the Governor, together with the professors of the College, had organized themselves as a body corporate, and had assumed to confer medical degrees on such persons as had attended lectures in the College, heretofore lawfully established by the Medical Society of South Carolina, on which Society that franchise had heretofore been conferred by the laws of the land, and protected by the constitutions of this State and of the United States, and also had used, and still do use, without any lawful or constitutional warrant, “all the rights, powers and duties heretofore conferred upon or required of the Medical Society, in relation' to the Medical College all which privileges and franchises aforesaid, by the Acts of the Legislature and the constitutions aforesaid, can only be legally used by the said Medical Society of South Carolina. Whereupon the advice of the court and due process of law were prayed for, against the said individuals claiming to act as a body corporate, by the style and title of “the President, Trustees and Faculty of the Medical College of South Carolina;” that they be made to answer to the State by what warrant they claim to have, use and enjoy the privileges and franchises aforesaid.</p> <p>The statement of facts on the part of the relators, the Medical Society of South Carolina, was as follows :</p> <p>“ By A. A. 1794, (a.) the Medical Society of South Carolina was made ‘ a body corporate and politic, with a perpetual succession of officers and members.’ It was empowered to purchase and retain to itself and to its successors, in perpetuity, or for any term of years, any estates of what kind soever; to hold them forever; and to appropriate the same in such manner as may be determined on by a majority of the members.</p> <p>“ Under this charter the Medical Society has acquired a library and other valuable property.</p> <p>“ By A. A. 1817, the additional power of granting licenses to physicians to practice was conferred upon the Society, under certain limitations. In 1823, the Legislature of this State authorized the Medical Society to establish a Medical School. The Act conferring this power is in the following words, viz : ‘ An Act to incorporate certain Societies, and for other purposes.’ Whereas, the Medical Society of South Carolina have taken measures for the establishment of a Medical School in Charleston, to be conducted by professors chosen by them, and at their own expense, and have petitioned for the authority to confer medical degrees; and whereas it is the duty of an enlightened government to aid the advancement of science : Be it therefore enacted, that from and after the passing of this Act, the Medical Society of South Carolina shall be, and they are hereby, authorized to organize a Medical School, to consist ot such professorships as they may deem expedient, and to confer medical degrees upon such candidates as may qualify themselves therefor, under the regulations which they may establish.’ (a.)</p> <p>“ Shortly after the passage of this Act, the Medical Society framed a constitution for the government of the college. They gave notice in the public prints, that they would proceed in April, (1824,} to the election of professors. They did proceed to elect professors. At the request of the professors, with the concurrence of the trustees, a lot was granted ‘ for the irse of the Medical School,’ by the City Council of Charleston. Subsequently $15,000 were appropriated by council, for the erection of a building on the above mentioned lot, ‘for the use of the Medical School of South Carolina,’ on this condition, viz : that the professors should furnish the Alms House and Marine Hospital with medical attendance for-years. To this the professors appointed by the Medical Society agreed, and gave bonds for the faithful discharge of the duties.</p> <p>“ In 1825, the Legislature of this State made an appropriation of $10,000 ‘ for the Medical College of South Carolina,’ and in 1830, made a further appropriation of $7,000 ‘ for the relief of the Medical College of Charleston.’</p> <p>“ The institution, thus created, had gone on prosperously and uninterruptedly from its first organization until the year 1831, when the professors, appointed by the Medical Society, preferred a memorial to the Legislature, praying to be removed from the control of the Society, and to have other trustees substituted.</p> <p>“ Against this the Medical Society protested, urging that the power given to them was properly given, and had been properly used. They denied the power of the Legislature to impair their vested rights, or in any manner to interfere with them. Notwithstanding this, the Legislature did interfere, and passed an Act at its last session, which, if valid, would alter the whole government of the College. By that Act the powers of the Societyare taken away and vested in other hands. The Society is ousted of its trusteeship, and a new and different board is to be appointed. This is to consist of thirteen members, six to be chosen by the Governor, and six by the Medical Society, the president of which is to be declared president of the board. All regulations respecting the college are declared subject to a concurrent vote of the faculty and trustees.</p> <p>“ The Medical Society, regarding this Act as an unconstitutional invasion of their rights, refused to appoint trustees, or in any wise to acquiesce in the said Act.</p> <p>“ The Governor, however, appointed six trustees, viz': N. Heyward, S. Prioleau, B. F. Dunkin, H. L. Pinckney, C. J. Colcock, and R. J. Turnbull, who, with the faculty of the Medical College, viz: S. H. Dickson, J. E-. Holbrook, J. Wagner, H. R. Frost, Fi. Ravenel and T. G. Prioleau, have used the following privileges and franchises, which of right belong to the Medical College: that is, they have assumed to confer medical degrees on such persons as have attended lectures in the college, lawfully established by the Medical College of South Carolina, and also have used, and still use, all the privileges and franchises, rights, powers and duties, heretofore conferred upon or required of the Medical Society of South Carolina, in relation to the Medical College.”</p> <p>The statement on the part of the respondents was as follows :</p> <p>“ N. Heyward, C. J. Colcock, S. Prioleau, H. L. Pinck-ney, R. J. Turnbull, B. F. Dunkin, Doctors S. H. Dickson, Henry R. Frost, John Edwards Holbrook, Thomas G. Prio-leau, Edmund Ravenel and John Wagner, being called on to shew cause why an information in the nature of a quo warranto, alleging the usurpation by them of franchises claimed by the Medical Society of South Carolina, should not be filed, for cause to the said rule or notice do accordingly shew here -to the said court, as sufficient cause, the following statement, and rely thereon — in addition to what is contained in the statement of the Medical Society, as the foundation of the said rule to shew cause, or notice — that is to say, — -on the clauses of the appropriation Acts of 1825, p. 14, and 1830, p. 12 ; on the 2d article of those established by the Medical Society for the government in the college ; on the resolution of the city council, granting the use of the land now occupied for the college and its buildings ; on the resolution of the city council granting the sum of fifteen thousand dollars for the erection of the said college ; on the ordinance founded thereon, dated 14th June, 1825; on the resolution of said body, dated 14th June, 1825; on the resolution of said body of 4th May, 1825; on the resolution of 21st June, 1825 ; on the bond given by the six professors, individually, to the city council, dated 9th July, 1825 ; on the fact that the professors laid out, in various ways, on the Medical College establishment, upwards of eleven thousand dollars ; also on the further fact that the Medical Society, before they elected the first professors, declared by a resolve that they were unable to bear any part of the expense, and that the whole must be undertaken by the professors, and that, accordingly, they have never laid out one cent of their corporate funds on the said college establishment; moreover, that the applications to council and the Legislature for appropriations, were made by the faculty, and not the Medical Society; that the first professors provided a lecture room at their expense ; that they afterwards made all the contracts for the erection of the college edifice, in their own names; that the Society never interfered in any manner whatever, with the expenditure of the appropriations, the plan of the buildings, or any of the particulars of the contracts ; also on this, that the said professors, themselves, paid eight hundred dollars per annum to the former physician of the Marine Hospital, in execution of their contract with the city council; and lastly, that there never has been, at any time, the least loss to the Society, nor the least expenditure by them, nor the lease liability or responsibility assumed or cast upon the Society, in the management of the funds, the making of contracts, or any other pecuniary transaction. Lastly, these defendants rely on the Act of Assembly of the last session, as their warrant for exercising the franchises which have been called in question by the relators, and charged as usurpations.”</p> <p>In reply to which the said Medical Society allege, “that although not able liberally to endow the college in money, yet they have watched over the institution, and aided, by their countenance and support, the procurement of the liberal donations which the city and State have made ; which donations, the said Society aver, uere in law vested in the Society, as the only persons capable of holding the same, although purely in trust for the institution for which they were designed as an endowment; that they have not relinquished their interest therein, and now insist upon the same, and refer to the records of the Society to support their allegations.”</p> <p>Upon these facts the following questions were made:</p> <p>1st. Is the Act of the Legislature, of 1831, which deprives the Medical Society of South Carolina of “ all the rights, powers and duties heretofore conferred upon or required of the Medical Society in relation to the Medical College,” and bestows the same upon another and differently organized corporation, constitutional and valid 1</p> <p>2d. Can the professors of the college, and the gentlemen appointed by the Governor, who compose two only of the three constituents of the corporation under the Act of 1831, lawfully exercise the corporate powers and authorities therein granted, without the concurrence of the third constituent, to wit: the Trustees to be named by the Medical Society of South Carolina?</p> <p>These questions were submitted to His Honor, Judge Bay, who refused the order to file the quo toarranto, upon the ground, that the Act of 1831 was a valid and constitutional enactment; from which decision the relators appealed, and insisted—</p> <p>That the said Act is an Act impairing the obligation of the contracts contained in the several Acts of the Legislature, conferring upon the Medical Society the powers, liberties and franchises, of which said Act purports to deprive them, without due process of law.</p> <p>That the said Medical College is an institution belonging to the Medical Society, and held by them in trust for the purposes of its institution, of which they can only be divested by due process of law, for abuse or neglect of their trust, which is not alleged, and could not be proved.</p> <p>That the assumption of the professors and trustees, nominated by the Governor, to constitute a corporation and confer degrees, is not warranted by the Act of the Legislature,</p>

<p>Where a widow, after the death of her husband, kept and used a horse which belonged to him, for about one year, and then suffered him to estray, whereby he was lost, held, that she was liable as executrix de son tort. '</p> <p>Where a woman becomes liable as executrix de son tort, and af-terwards marries, she and her husband may be sued as executrix and executor. ■ '</p> <p>A recovery against one as executor de son tort, where the pleas are the general issue, and ne unques executor only, is for the whole debt, and not merely for the value of the 'assets proved to have been intermeddled with. * • •</p> <p>Averménts, in a suit against the drawer, on a bill' of exchange, of presentment, refusal and notice, are sustained by proof of presentment, refusal, and that the drawee had no funds.</p> <p>A bill of exchange is good without the words for value received, and in declaring thereon, it is not necessary to allege or prove a consideration.</p>

<p>Before Gantt, J. at Charleston, May Term, 1831.</p> <p>This was an action of trespass to try titles to a tract of four thousand acres of land, granted, on the 4th December, 1786, to Col. William Thomson. In 1796, Col. Thomson, by his last will and testament, duly executed, devised as follows : “ I will and devise that all the rest and residue of my estate, both real and personal, be sold by my executors, and that the money arising from such sale, together with my outstanding debts, be appropriated, in assistance to the provision herein before made, to the payment of my debts ; and the bálance to be equally divided between ” my wife and children, “ to them and to their heirs forever.” “ Lastly, I do nominate, constitute and appoint my wife, Eugenia Thomson, and my sons, William Russel Thomson, and John Paul Thomson, executors to this, my last will and testament.” The land in dispute was part of the rest and residue of his estate. John Faul Thomson qualified as executor, and died, leaving a will, in which he appointed Caroline Thomson, his widow, executrix, and William R. Thomson executor. Caroline Thomson qualified as executrix, and afterwards intermarried with Dr. Jean Louis Raoul; and, in 1822, a bill filed by Elnathan Haskell, Charles B..Cochran, Bourdieu, Chollet and Bourdieu, against Jean Louis Raoul, and Caroline, his wife, was heard before Judge Gaillard, who decreed that this tract of land be sold for the payment of certain debts of Col. Thomson, (see 2 Tread. 852, 873.) At the sale, made in pursuance of this decree, Dr. Raoul was the purchaser, and, on the 4th May, 1824, the commissioner executed to him a deed of conveyance for the land. On the 4th May, 1824, Dr. Raoul executed his last will and testament, by which he devised the whole of his estate to his wife, Caroline, and appointed her executrix. After his death she qualified as executrix, and, on the 4th February, 1826, conveyed the land in dispute to the plaintiffs, in trust. This action was commenced on the 17th September, 1829. The location and trespass were proved.</p> <p>For the defendant, several grants, covering parts of the land in dispute, were given in evidence, some of which, covering about one-eighth of the tract, were older than the grant to Col. Thomson. In Col. Thomson’s grant, no mention was made of these elder grants. A continued adverse possession, for about thirty years, in the defendant and those under whom he claimed, commencing, however, after the death of Col. Thomson, was proved. Theodore L. Gourdin testified that a petition had been presented to the Legislature, in relation to this land, by John Paul Thomson, and that he, the witness, had, with the clerks of both houses of the Legislature, searched for this petition, and it could not be found. John N. Davis was then permitted to testify for the defendant, that, at the request of the defendant, he searched the journals of the Senate for this petition, as far back as ’94. “ He could not find thereon more than witness took from the journals of 1801, of which the paper in court is a copy, taken in witness’ own hand writing. The paper was then read, showing ‘ That John Paul Thomson’s petition, to take out a grant of land, had fceen referred to a committee.’ Witness did not search the bundles of petitions : he only searched the journals, to see what had been done. There was no entry of what became of the petition.”</p> <p>For the plaintiffs, in reply, continued minorities, in the heirs of Col. Thomson, down to the time of the trial, was proved.</p> <p>His Honor, the presiding Judge, thought Col. Thomson’s grant a grant of surplus lands, to which the Act of 1787, P. L. 428, applied. He charged the jury, that the title, which Dr. Raoul purchased at the commissioner’s sale, was not protected from the operation of the statute of limitations, by the minorities in Col. Thomson’s heirs : that on the death of Col. Thomson, the title to the land did not descend to his heirs, but either passed, under the will, to his executors, or remained in abeyance until the sale by the commissioner ; and that it was immaterial, so far as the right of the defendant to hold by possession was concerned, whether the fee passed, under the will, to the executors, or whether it remained in abeyance.</p> <p>The jury found for the defendant, and the plaintiffs appealed, on the ground of error in the instructions of the presiding Judge, and because the extract, taken from the journals of the Senate, was erroneously received as evidence.</p>

<p>Where a purchaser of land, discovering that a part of the tract is vacant, takes out a grant therefor, he can claim, from the vendor, not the value of the vacant land, but only the expenses incurred in procuring the grant, (a)</p>

<p>Before Frost, J. at Laurens, Fall Term, 1845.</p> <p>At this, the return term of the writ, the defendant filed a plea in abatement of the writ, for the misnomer of the plaintiff’s sur-name.</p> <p>The plea was overruled, and the defendant appealed.</p>

Before James, J. at Laurens, Spring Term, 1827. This was an indictment for bigamy. The indictment alleged that the defendant, in July, 1826, intermarried with one Rebecca Dunlap ; his first wife, Elizabeth Cunningham, being then alive.

<p>DeSaussure, Chancellor. — The object of the bill is to have an account of the profits of land and the hire and labor of slaves, and a discovery of the personal property of the estate of Robert Blakeley.</p> <p>The facts were as follow — Robert Blakeley died in January, 1804, intestate, leaving a widow, Catharine, and one child, Jeanette Amelia Blakeley, then an infant of a few months old, and also leaving real and personal estate. The widow, Catharine, administered and made an appraisement of the personal estate of Robert Blakeley, on the 16th of July, 1804. The amount was $4004 62. Of this sum $3700 was for the slaves. The appraisement for the other property was therefore only $304 62.</p> <p>In the course of the year 1804, the widow married John W. Starke, who possessed himself of the estate of Robert Blakeley, and on the 30th of January, 1808, he gave a bond with two sureties in the sum of $3000 for the faithful administration (in right of his wife) of the personal estate of Robert Blakeley.</p> <p>The property remained in the hands of J. W. Starke from his marriage in December, 1804, to the year 1819. He received the rents and profits of the estate, but made no returns to the ordinary’s office.</p> <p>Miss Blakeley was entitled to two-thirds of the estate left by her father, and the widow to one-third. She was brought up and educated by her step-father, and had an expensive education at female academies, for which J. W. Starke paid.</p> <p>Jeanette Amelia Blakeley intermarried with the complainant, Wyatt W. Starke, in January, 1819, and her share of the slaves was delivered up to the complainants. It does not appear by any evidence whether J. W. Starke accounted with the complainants for the rents and profits ol the estate.</p> <p>Mr. Wyatt W. Starke signed a paper of which the following is a copy:</p> <p>“ John W. Starke having expressed a desire, in common with his wife Catharine Starke, to be exonerated from responsibility as respects the hire and use of the negroes belonging to Amelia Blakeley, heiress of Robert Blakeley, I do hereby, in consideration thereof, promise and agree never to institute any suit or make any claim whatsoever against the said J. W. Starke or his heirs, on account of the use or hire of the said negroes.</p> <p>(Signed) Wyatt W. Starke.”</p> <p>There was no date to this paper, and it was alleged that it was executed before his marriage with Miss Blakeley, she being named Amelia Blakeley in the writing; from which the inference has been drawn, that the paper was signed before the marriage took place.</p> <p>If that had been proved satisfactorily, it would have been sufficient to have shewn the nullity of the instrument, as Mr. Wyatt W. Starke would, in that case, have had no authority or interest in the estate. We cannot, however, believe, without further proof, that the paper was signed before the marriage, because the administrator would have known that Mr. Wyatt W. Starke had nothing to do with the estate, and had no authority to act; and the latter would never have done an act in relation to an estate in which he had no concern. It would have been an unbecoming act in both parties, and not seemly in gentlemen of such respectable characters. In the absence of direct evidence of the fact, I must presume that the parties acted correctly as became their characters.</p> <p>There was a great deal of parol evidence in this cause, which was taken at great length. It is on my notes, which I connect with this decree, and forms a part of it. I shall refer to it in this discussion.</p> <p>It was proved that Mr. J. W. Starke got part of his property with his wife, (who had been the widow Blakeley,) but he had some negroes of his own; and purchased a few and some land (cheap) after his marriage; and he died rich; his lands were worth four or five thousand dollars ; and he left thirty or forty slaves.</p> <p>Miss Blakeley lived with her step-father, J. W- Starke, who was kind to her, and brought her up in good style. He sent her to Salem for education, and some witnesses proved, also, to Charleston. She was married to Mr. Wyatt W. Starke in 1819, when she was about 16 years old. She lived in the family for a year after. The division of the slaves was made voluntarily and satisfactorily between the parties. They had largely increased during the time Mr. J. W. Starke had charge of them — more than doubled. Mr. J. W. Starke conveyed, by deed of the day of January, 1819, to Wyatt W. Starke, and his wife Amelia Starke, and their heirs, a tract of land, (which appears to have been his, J. W. Starke’s) for which Mr. Wyatt W. Starke afterwards got $1200.</p> <p>The consideration expressed on the face of the deed, was one dollar.</p> <p>This canse was most elaborately and learnedly argued by the counsel, and many authorities cited to establish the points relied upon.</p> <p>It was argued by the complainants, that they were entitled to an account of the rents and profits of-the real and personal estate of their father, which had never been rendered to them or to the ordinary.</p> <p>The defences set up, were that Mr. Wyatt W. Starke had given a written paper as above stated, which amounted to a discharge, and that there was sufficient evidence that, though no formal account had taken place, there was such a settlement or payment, as must have done justice between the parties, and been satisfactory to them. ' And that at all events, the statute of limitations, or a sufficient lapse of time had occurred, to bar the claim to an account.</p> <p>On the first ground it was conceded by complainant, that the paper was signed by Mr. Wyatt W. Starke ; but it was contended that it was not binding, as no legal or proper consideration was expressed, and none proved. That the court was jealous of such settlements with young heirs, and would not sanction them when made without an account rendered and duly examined.</p> <p>It was also contended, that even admitting the paper relied upon as a release or discharge to have been fairly and properly obtained, yet it is not operative against the rights and interests of the wife, because it was a relinquishment which the husband had no authority to make — she also being entitled to a settlement thereof, which is now insisted on.</p> <p>There is no doubt that the court is, as it ought to be, very jealous and watchful of such transactions, between parties so situated. The decided cases cited by the bar, prove this to a great extent; yet it is not a blind jealousy. The court has never gone so far, as to declare that all settlements are void. If so, it would never enquire into the circumstances. It does, however, enquire into the circumstances, and decides according to them. In the case we are considering, the intestate, Robert Blakeley, left a personal estate of twelve slaves, as appears by the appraisement ; two of whom were very aged, and all the rest called boys and girls in that document. The widow was entitled to one-third, and the daughter to two-thirds. Excluding the two old slaves, there remained very few workers. Miss Blakeley was supported and educated at considerable expense. After the marriage of the daughter to Wyatt W. Starke, they lived in the family for a year. Soon after the marriage, Mr. J. W. Starke conveyed a valuable tract of land, worth $1200, to Mr. and Mrs. Wyatt W. Starke, without price ; for the consideration is stated in the deed to be one dollar. The conveyance to them both, shews that it was not a purchase by Mr. Wyatt W. Starke. The negroes had been well taken care of, and a greater number were delivered to Mr. Starke for his wife’s share, than the whole number at the death of the intestate. The witnesses prove that the number divided were between 20 and 30. All these circumstances shew fairness in the management, and lead the mind very strongly to the belief that there was fairness in the settlement.</p> <p>In the decided cases cited and relied on, there are always circumstances shewing unfairness, or at least loss and damage to the party complainant. Upon the whole, there does not appear to be sufficient ground to induce the court to interpose with a strong hand, and to declare a paper deliberately signed by a gentleman of mature age, bred to business, and of great intelligence, to be a void act; more especially, after the death of one of the parties.</p> <p>This view of the subject applies to, and supports, the two first grounds of the defence.</p> <p>With respect to the husband’s competency to give a discharge or release of his wife’s right in the choses in action, to wit: to the rents and profits and hire of the property, there is considerable difficulty.</p> <p>The court directs settlements of the wife’s property, where the husband must come into this court to get the property, otherwise it does not interfere. Here the husband made a settlement himself, with the administrator— and upon what was then a satisfactory arrangement, re*-linquished the right to thechoses in action ; for a disclaimer and relinquishment of remedy, is a relinquishment of the right.</p> <p>That a husband has a right to assign his wife’s choses in action during the coverture, is, I think, too well settled to be shaken, when done fairly, and on proper consideration. It is too late after a division of the bulk of the estate, and no marriage settlement made or asked for, and many years have elapsed, and the administrator is dead, to endeavor to get rid of a settlement and discharge, by setting up an equity of the wife in a mere inferior interest, derived out of the estate, which has been received without a settlement.</p> <p>In my opinion, the circumstances do not shew any unfairness ; and that the relinquishment was on proper consideration, is not doubtful, when we recollect the circumstances above stated, which must have led to the signing the paper in question.</p> <p>If there had been any circumstances which indicated unfairness, and any injustice resulting from it, the whole of this reasoning would be inapplicable, and the court would, without scruple, have opened the transaction, set aside the relinquishment or discharge, and ordered an account.</p> <p>The next point for consideration is, whether the statute of limitations and lapse of time would bar the demand.</p> <p>. It is the established doctrine of the court, that executors and administrators of an estate are trustees for those interested therein ; and it is also settled, that the statute of limitations does not, as such, run against the just claims of persons so interested. It does not, however, follow, that great lapse of time, neglect to pursue the remedy, an acquiescence in a settlement, until the death of a party who might have been able to render an account, may not operate as a bar to the demand. All these circumstances concur in this case. The paper given or set up as a relinquishment-of right, though without date, must, from the facts in the case, have been given soon after the marriage in 1819. It is most probable when the slaves of the estate were divided, and when the conveyance of the land was made ; (January, 1819.) This relinquishment of right has been acquiesced in till the bill filed in ’May, of the year 1829 , subsequent to the death of the person who made the settlement, and who might, if called upon in his life time, have been able to shew the justice of the settlement. X conclude, therefore, that it would be improper to set aside the paper of relinquishment signed by Mr. Wyatt W. Starke, and to order an account.</p> <p>I am sensible that there are real difficulties in this case, and that some of the decided cases cited by the counsel for the complainants, go very far'towards supporting their claim to an account. But it does appear to me, that there is one pervading principle running through the whole of them.</p> <p>There must be some'unfairness in the transaction, or some injury, loss, or injustice sustained, to induce the court to interfere and exercise its 'extraordinary power to set aside a party’s own instrument, voluntarily entered Into, without any proof of fraud or imposition practiced to induce it. It ought to be remarked, that Mr. Starke himself drew the paper. The property was largely increased by the management of the administrators.</p> <p>It is ordered and decreed that the bill be dismissed, but without costs.</p> <p>From this decree the complainants appealed.</p> <p>cited Stackhouse vs. Bamston, 10 Tes. 464, as to the statute of limitations. The bill was filed within five years after Jeanette Amelia attained twenty-one. The release was signed after the marriage. It was a release of her equitable estate, without her knowledge, without consideration, and without an account. As to the want of consideration, l-Phillimore, 424; 2 P. W. 203; 2 Sch. and Lef. 500; Reeve’s Dom. Rel. 129 ; Hatch vs. Hatch, 292 ; 9 Yes. 292 ; Duke of Hamilton vs. Mahun, 1 P. Wms. 118; 2 Atk. 15-34 ; 2 Ves. Sen. 514 ; Beam’s Pleas in Equity, 226. Can the husband assign the wife’s choses in action, without valuable consideration 'l 2 Atk. 206, 417 ; 4 Yes. 392 ; 8 Yes. 511; 4 Yes. 19 ; Henry vs. Udal, 5 J. C. C. 464 ; Clan-cey, 123, 494 ; Prec. in Chan. 412 ; 1 Jac. and Walk. 472 ; 10 Ves. 466 ; Ang. on Limitations, 134 ; 1 McCord C. R. 313, 176 ; 3 J. C. R. 216 ; 7 do. Ill ; Plow. 375.</p> <p>cited 1 Phill. 482; 2 Mc-Cord’s R. 218; 4 McCord, 326 ; Co. Litt. 282 ; Reeve’s Dom. Rel. 5 : Roper’s Hns. and Wife, 218; 9 Ves. 100, 107 ; 2 Ves. 280, 92 ; 3 Brown’s Ch. R. 633 ; 13 Ves. 148 ; 1 Fonb. 201 ; Newland on Con. 404 ; 3 P. W. 189; 2 Cranch, 180 ; 1 Harper Eq. R. 180 ; 2 Mad. Ch. 243, 353.</p>

The bill stated in this case, that on the 13th of November, 1821, John Reid and Harriet Hart, being about to intermarry, entered into a marriage contract, by which the property of said Harriet, consisting of lands and negroes, and other personal property, specified in said deed, was conveyed to D. Rumph and G. Butler, subject to certain trusts, &c. That the said marriage was afterwards solemnized.

<p>C. conveyed real estate to T. his heirs and assigns forever, in trust, first, to raise annually therefrom the sum of $800 per annum, to be paid to C. during his life, and after his death, in trust to permit E. P. the wife of J. P. “and present and future issue by her said husband J. P. to hold and enjoy the premises to their sole use and behoof; or in trust to sell the same or any part thereof, and to apply the proceeds to the use of the said E. P. and her children, and have and share alike, to them, their heirs and assigns forever,” freed from the debts and control of the husband, J. P. Held that the legal estate in fee remained in the trustee after the death of C. and of the husband J. P_ (it not being the case of an executed trust,) and that E. P and her children living at the death of C. were entitled to the benefit of the trusts as tenants in common.</p> <p>When issue is used as a word of limitation or of purchase.</p> <p>The trustee agreed with defendant to convey, and on a bill filed to compel performance, after the death of C. and J. P. the court held the trustee the proper person to convey.</p> <p>The idea “that though the legal estate were executed in fee in the trustee, yet when the objects of the trust were accomplished, the fee might shift and become executed in the cestuique use, does not seem to be warranted by any authority.”</p> <p>According to the objects of the trust and the terms of the conveyance, trustees have been construed to take only a chattel interest, as in the case of a devise to executors for or until the payment of debts, or a life estate; but if the fee be once vested in the trustees, the inheritance remains in them, unless, perhaps, a shifting use should be crea, ted by the terms of the deed or will.</p> <p>The rule seems to be, “that if the gift to the trustee be general, without words of limitation or inheritance, he will be construed to take a chattel interest, a life estate, or a fee, as the purposes of the trust appear to require; but if it be to him and his heirs, (provided any estate at all is executed in the trustee,) it imports a fee ; but these words iqay be restrained by other circumstances in the deed or will, which shew that the donor or devisor contemplated that the estate should be executed in some subsequent taker or after some event, or which are inconsistent with the notion of the fee’s continuing in the trustee.</p> <p>Trustees take a chattel interest only where the interest is uncertain.</p> <p>A devise to trustees and their heirs, carries a fee.</p> <p>So, of real and personal estate to trustees, their executors, administrators and assigns.</p> <p>So devise to trustees and their heirs, to the separate use of a feme covert during life, after her death to first and other sons, held a fee in the trustees.</p> <p>The case of Jones vs. Say <$f Sile, (.1 Eq. Ca. Abr, 483, Viner’s Ab. 262, Fearne Con. Rem. 52,) commented on and questioned.</p> <p>The power to sell, relates to the whole estate, and to satisfy that power, the whole estate must remain in the trustee.</p> <p>There cannot be a partial execution of a use. The estate is one, and must be executed either in the trustee or the cestuique use.</p>