Volume 38 — South Carolina Law Reports

Before Wardlaw, J., at Sumter, Spring Term, 1850. This was an action of trover for a negro woman, Silvy, and her children.

Before Withers, J., at Union. Fall Term, 1850. Benjamin MeJunkin had been appointed by the Ordinary, guardian of his infant son, John C. MeJunkin, and this was an action on his guardianship bond, against the defendant as surety. The plaintiff proved that the guardian had been cited before the Ordinary, had made default, and that a decree had been rendered against him, for the amount of which a verdict was claimed.

Before Evans, J. at Lancaster, Spring Term, 1850. These were actions of debt upon prison bounds bonds. James McMullan had been arrested by the sheriff on ca sas, at the suits of the plaintiffs. He gave bonds to keep the bomids, and render a schedule, with the additions required by the Act of 1841 — that at the expiration of the forty days, he would assign the property mentioned in the schedule, and surrender the same, as far as in his power.

<p>Where negroes were bid off at a sheriff’s sale, and the sheriff, having neglected to follow the directions of the 58th see. of the Act of 1839, in relation to re-sales, some months after tendered the negroes to the purchaser, and, upon his refusing to take them, advertised, and re-sóld them, at his risk. Held, that the sheriff could not maintain an action against the first purchaser, either, 1, for a sale and delivery of the negroes; 2, for a sale and refusal to take the negroes and pay the pu -chase money; 3, for a sale, and re-sale at the risk of the former purchaser ; 4-, on the general indebitatus count for goods sold and delivered; or, 5, on the common money counts.</p> <p>Where property sold at sheriff’s sale is not delivered to the purchaser, and, after resale, the sheriff seeks to make the first purchaser liable, he must show that the directions of the law, in relation to re-sales, have been complied with.</p>

<p>Where land was sold by the sheriff for partition, by order of the Ordinary, and the teims of sale were not complied with; and the Ordinary, without making an order for re-sale in writing, placed the order of sale in the sheriff’s hands, and verbally directed him to re-sell, at the risk of the first purchaser; and the sheriff re-sold the land for less than at the first sale: held, that the Ordinary could not recover from the first purchaser the difference between the first and second sale, on the ground that the order of re-sale was not in writing.</p> <p>Under the Act of 1839, orders by the Ordinary for sale of land for partition, and for re-sale where the first purchaser does not comply, must be in writing.</p>

Before Withers, J., at Fairfield, Fall Term, 1850. This was an action for a libel. After the usual prefatory aver-ments, the declaration alleged the libel to be “in substance as follows and proceeded to set forth certain words addressed, in writing, to the plaintiff.' The defendant filed a general demurrer, and the plaintiff joined therein. His Honor sustained the demurrer; holding that a libel must be set forth in hcec verba, or according to the tenor.

Before Evans, J., at Newberry, Fall Term, 1850. This was an action of trespass, vi et armis, to land and goods. The report of his Honor, the presiding Judge, is as follows: “ One Charles Floyd was the former owner of the land. He was the brother of the plaintiff, and the nephew of the defendant. In 1845, Charles Floyd put the plaintiff to live on the land.

Before Richardson, J., at Edgefield, Spring Term, 1850. This was a rule upon the clerk to show cause why he refused to tax the costs of the defendant, and sign judgment and execution against the plaintiffs for the collection thereof.

Before Evans, J., at Lexington, Fall Term, 1850. This was an action of trespass to try the title to a tract of five hundred acres of land, granted, in 1794, to one Roland Williams. In 1813, Williams, by a deed, which recited that the land had been surveyed in his name for the Starks, conveyed, in consideration of ten dollars, and without warranty, except as against himself and his heirs, the land to Alexander B. Stark and Robert Stark. This deed was never recorded.

<p>Before Evans, J., at Darlington, Fall Term, 1849.</p> <p>This was an action against the defendants for the negligence of their intestate, sheriff of Darlington, in not levying an execution of the plaintiffs against one William King. On the 26th February, 1842, plaintiffs entered a judgment by confession against King, for $996 60; and on the same day lodged their fi. fa. with Wingate,, as sheriff. At the end of the confession of judgment was added, in the hand-writing of one of the plaintiffs, “Sales to be stayed until the 26th day of October, 1842,” or words to that effect; and on the fi. fa. was an indorsement as follows: “Sales only under this execution postponed till the 26th October,-1842.” On the evening of the day the execution was lodged,-Wingate called on Ervin; plaintiffs’s attorney, for an explanation of the indorsement on .the execution, who informed him that it was not intended to stay any thing but an actual sale under that execution, and told him to go and levy on King’s property immediately. Ervin also stated that between that day and the day on which the sheriff sent to make the levy, he had frequently urged Wingate to levy the execution; but he declined, saying that he thought there was no danger. King’s property at that time consisted of some negroes, the title to which was in dispute, a stock of goods in his store, some hogs, &c. On the 12th March, 1842, Wingate became uneasy, and sent his deputy to make a levy, who, accordingly, on, the 14th March, levied on all King’s property except the stock of goods, which King, after the 26th February, had assigned to some persons who, before the 14th March, had placed it beyond the reach of the sheriff. ' From the • sales of the negroes, hogs, &c., a balance of $168, after satisfying an older execution and the costs of plaintiffs’s fi. fa., remained in the sheriff’s office, applicable to plaintiffs’s debt.</p> <p>His Honor charged the jury that the sheriff was bound, within a reasonable time, to execute his writ of fieri facias, and, in default, he was liable for any damages which the plaintiffs sustained by reason of his neglect; and submitted to them to decide, on a review of the facts, whether Wingate, the sheriff, had been guilty of negligence in not levying on King’s property. He told the jury that, in his judgment, a stay of sale, without further instruction, would imply a stay of levy; but as in this case he was specially instructed that a stay of levy was not intended, and was directed to proceed and levy immediately, he should have obeyed the instruction; and his omission to do so, within a reasonable time, was a neglect of his duty.</p> <p>It was said, in the argument of the defendants’s counsel, that the sheriff was not bound to obey the plaintiffs’s instructions. On this subject his Honor told the jury that the writ was the sheriff’s ■authority and guide in the execution of his duty, but a neglect or refusal to obey the reasonable and lawful instructions of the plaintiffs, was an assumption on himself of the responsibility, and he ought to answer to the plaintiffs for any direct loss sustained by reason of his negligence or refusal.</p> <p>The jury found for the plaintiffs $150, exclusive of what they were entitled to in the sheriff’s hands. Both parties appealed; but in this Court the plaintiffs abandoned their motion for a new trial, and the defendants alone insisted upon theirs.</p>

Before Wardlaw, J., at Chester, Fall Term, 1849. This was an action of assumpsit brought to recover from the defendant $>881, paid by the plaintiff, under the following circumstances. Kelsey & Halsted recovered judgment against John Polly and William Castles, and on the 29th of April, 1839, issued their ca. sa., and placed the same in the hands of D. G. Cabeen, then sheriff of Chester.

■Before RichaiidsoN, J., at Fairfield, July, Extra Term, 1848. This was an action of assumpsit, for a breach of warranty, as regards title, on the following instrument, to wit: “Received, of S. F. Rice, seven hundred and fifty dollars, in full, for a negro woman, Lilly, and child, James, which negroes I warrant slaves for life, and sound in every respect. Witness my hand and seal, November 2d, 1836.

Before Withers, J., at Fairfield, Fall Term, 1850. This action, was brought to recover from the defendant f230 72, (less commissions,) which he, as attorney, had collected in a case entitled Kinsler & Jordan vs. John Z. Hammond, administrator of J. T. Williamson.

Before Evans, J., at Lexington, Fall Term, 1850. In this case — trespass to try titles — the report of his Honor, the presiding Judge, is as follows: The plaintiffs’s title was made out thus: The land was granted, in 1786, to Wadsworth & Turpin. Turpin conveyed his inter' est to Wadsworth in 1797. In 1799 Wadsworth devised all his lands, in certain districts, to H. W. DeSaussure, and other gentlemen, in trust, to establish a Poor School in Laurens District.

Before Frost, J., at Richland, Fall Term, 1849. This was an action of assumpsit for the price and value of goods sold and delivered. On the 11th of November, 1846, the plaintiffs sold the defendants a parcel of goods, amounting to $431 29, and took their two notes, payable at five and seven months.

<p>Title presumed in the United States to the Mount Dearborn tract, as it was originally granted, from long possession of it held by the officers, agents, &c. of the General Government, under a deed which had been made to Mr. Jefferson, President, his successors and assigns: there being wanting to perfect the title the will of the grantee to authorize a conveyance by his executor, and a conveyance from Mr. Jefferson to the United States.</p> <p>A patent, signed by the Secretary of War, and authenticated by the seal of the War Department, held sufficient to convey land in South Carolina from the United States to the State, without the attestation of witnesses: — Congress having directed the Secretary to convey, and the State Legislature having impliedly recognized the jus disponendi and the sufficiency of the conveyance as proposed.</p> <p>A deed referred to a plat annexed — the deed and plat, when produced, were separate, but had evidently been once annexed by wafers. It was admitted that the plat was the same which was referred to. No other explanation of the mutilation was required.</p> <p>The parties to a deed acquiescing, a third person cannot invalidate it by shewing what might, if urged by one of them, be considered a fraud or mistake.</p> <p>The occasional occupation of a station in water for one or two months every year, during the fishing season, is not such a possession as will acquire a title under the statute of limitations.</p> <p>The presumption of a grant will not arise where the use has been permissive, and there has been change of claimants without any conveyance from one to another.</p> <p>A grant or conveyance of land bounded by a river, not technically navigable, extends to the medium fihm aijuce, unless the terms used in the writing clearly denote the intention to stop short of that line: and notwithstanding a survey directed and made of only the land not covered by water, the price fixed by computation per acre according to that survey, parol declarations of the intention of the parties to include only the land to low water mark, and corner trees marked on the bank and on the plat annexed to the deed, still the meaning of the words used in the writing, and not any extrinsic evidence of intention, must prevail.</p> <p>Islands in rivers fall under the same rule as to the ownership of the soil and its incidents as the soil under water does: if not otherwise lawfully appropriated, they belong to the riparian proprietor on one side, or are divided' in severalty between the proprietors on both sides, according to the original dividing line, or filurn aguce, as it would run if the islands were under water.</p> <p>The aguce is ascertained by measurement across from ordinary low water mark on one side to the srme on the other side, without regard to the channel or depth of water. If that margin of an island which lies next to a riparian proprietor and on his side of the middle of a whole river, has been lawfully appropriated by another person, then such proprietor’s boundary is the Atom midway between his bank and the island; otherwise, his boundary is the original fihm of the whole river, measuring from bank to bank across the island.</p> <p>The extent of a riparian proprietor’s ownership in a river is measured by lines perpendicular to the bank, without regard to the course in which the lines of his tract run to the river.</p> <p>The ownership of the soil in a river is subject to servitudes or public easements — to the right of the public to improve the river, and to use it as a highway, unobstructed for transportation and for passage of fish, and subject also to regulations lawfully enacted for the public good. Thus subject, the ownership of the soil gives the exclusive right to fish thereon, which is not common to all citizens, and differs altogether from the public right to have the passage of fish unobstructed.</p> <p>What are navigable rivers 1 The common law definition (those in which the tide ebbs and flows,) has not been changed by any authoritative decision in this State. The Court is not likely to extend the rules which apply to rivers technically navigable, to any rivers above the falls which naturally obstructed any serviceable use of the water for transportation: above those falls, at any rate, tire common law, as to the ownership of the soil, and the right of fishing incident thereto, subsists unchanged.</p>

Before Frost, X, at Richland, Fall Term, 1849. Held: in such instalments, not exceeding five dollars on each share at one time, and at such periods, with inter-va’s of not less than sixty days, as shall be prescribed and called for by the directors; and, on failure of any subscriber or stockholder to pay up any instalments so called for by the directors, the shares upon which default…

<p>Land was devised to trustees in trust to permit A. B. to have the use and occupation for life, and after his death to convey to the heirs of his body, with a limitation over if ho died without such heirs; and with further power, in a certain event, to convey the land to A. B. in fee, discharged of the trust. In February, 1837, defendant, under some agreement to purchase, entered into possession of the land, and held the same adversely. In 1845 the trustees conveyed the land to A. B., who, in September, 1848, sued the defendant therefor: Held (1) that, under the devise, the legal title to the land was in the trustees; (2) that, in February, 1837, the statute of limitations commenced to run against them; (3) and that, as the statute of limitations would have barred the trustees before September, 1848, had the title continued in them, so it barred A. B., who occupied, under his conveyance, no better position, as against the defendant, than they would have done had the conveyance not been executed.</p>

Before Frost, J., at Union, Spring Term, 1849. This was an action of trespass quare clausum fregit. The object of the action was to recover rent or mesne profits of the land. On the 1st January, 1844, the land was sold by the sheriff, under a decree of the Ordinary, for partition among the heirs of Reuben Anderson, and bought by the defendant. He entered into possession, and paid the purchase money to the Ordinary.

<p>The charter of the Greenville and Columbia Rail Road Company requires commissioners appointed to value land taken by the Company for the purposes ot the road, to take into consideration “ the loss' or damage,” and, also, “ the benefit or advantage” which may result to the owner of the land by the construction of the road, and to “ state particularly the nature and amount of each held, that, if tire commissioners proceed regularly and conformably to the directions of the charter, but omit in their return to state the particulars of damage, the informality may be cured by amendment, and is not a ground for setting aside tire return.</p> <p>Where commissioners are appointed to value land upon which the Company have entered for the purpose of constructing their road thereon, the owner of the land may require the commissioners to assign to the Company and assess the value of one hundred feet on each side of the road, though at the time of the valuation the road upon the land is not completed, but only in the progress of construction.</p> <p>If the valuation be made before the Company enter, they may, it seems, taire any quantity of land they may deem necessary; but if, without having purchased and before valuation, they enter upon the land, the charter fixes the quantity to the use of which they are entitled, at one hundred feet on each side of the road, and that • quantity they may be required to pay for.</p> <p>Where the valuation is made after entry by the Company, the commissioners, in assessing the damages, are not limited to the actual value of the land, but may take into consideration the loss or damage resulting to the owner from the construction of the road.</p>

Before Evans, J. at Newberry, Fall Term, 1850. The report of his Honor, the presiding Judge, is as follows. “ In 1839, one R. Wilson died — being indebted to Daniel Sú-ber on a promissory note. Soon after, one W. B. Cates administered on his estate. The defendant, with James P. Caldwell and Allen Cates, were the sureties on the administration bond. In 1845, there was due on Wilson’s note $154. Of this sum, Cates paid in cash $33, and gave his note for the balance, $121.

Before Wardlaw, J., at Fairfield, Fall Term, 1849. This was an. action of trover for seven negroes — Aggy, her three grown daughters, and three children of those daughters. Held: and the course which Ford took, and permitted Elkin to take, in regard to them.

<p>Before Frost, J., at Darlington, Spring Term, 1850.</p> <p>This was an action of debt on a sealed note, given by the defendant to the plaintiff in a horse trade. The defence was, that the defendant was too drank to contract when he executed the note, and that the plaintiff had taken advantage of his condition and practiced upon him fraud and deceit.</p> <p>It appeared that the plaintiff was the owner of a mare, chiefly valuable for racing, which had some reputation as a “quarter nag,” and for which he had been offered and had refused to take $250, holding her at $300 or $350. On the day before the note was executed, the plaintiff bargained with the defendant for a sale of the mare, for a horse of the defendant, valued at from $100 to $125, and the defendant’s note for $250. The plaintiff represented the mare to the defendant to be very fleet; that she could beat any thing that run. During that day the defendant was drinking very hard ; in the evening, a witness said, he was drunk, incapable of making a contract. While the trade was going on, the plaintiff once invited the defendant to drink with him; and a short time before taking the drink, he said to a witness that he had made no trade, “ but had a fellow in soak,” meaning the defendant, and added, “ you know when Bob takes a notion he does not stand about price.” The note was drawn that night, but the defendant was too drunk to sign it, and the plaintiff put it in his pocket. The defendant continued to drink through the night, and the next morning the note was executed when he was very drunk. In the afternoon the defendant told a witness that he had given his horse and $250, or his note for that sum, for the mare. That afternoon the mare ran a race with a saddle horse of one Burch, and was easily beaten. The next day the race was repeated, with the same result. Burch said his horse “ had stood him in $88after the race he traded his horse to the defendant for the mare and fifty dollars. In their valuation of the mare, the witnesses varied from $30 to $250.</p> <p>His Honor, the presiding Judge, instructed the jury that ii the defendant was so drunk when he executed the note that he did not know what he was doing, the note was void, and the verdict should be for the defendant. Respecting the defence of deceii, he instructed them that, to maintain it, it should appear that the plaintiff had knowingly and falsely misrepresented the qualities of the mare. If, however, a party, after full notice of all the circumstances of fraud and deceit, should continue to treat and use the article sold as his own, he might be presumed to have waived the deceit and affirmed the contract; and that, if the defendant had notice of the circumstances of deceit, relied on for his de-fence to the action at the time when he traded the mare to Burch, he had waived his defence when he parted with the mare.</p> <p>The jury found for the defendant; and the plaintiff appealed, and now moved this Court for a new trial.</p>

Before O’Neall, J., at Edgefield, Fall Term, 1850. This was an action on the case to recover from the defendant, post master at Edgefield village, a sum of money contained in a letter mailed by the plaintiffs, on the 12th June, 1848, at New Market, Abbeville, and addressed to Watson, Johnson & Co., Charleston.

<p>In dealing with slaves as passengers, a high degree of caution, diligent and circumspect demeanor, are demanded of rail road companies; but to make such a company liable, to the owner, for the escape and loss of a slave, carried as a passenger on their cars, without tire knowledge or consent of the owner, something more than a blameless and unwitting transportation must be shown, — where no intentional wrong is charged, negligence must be shown.</p> <p>Where a slave of the plaintiff, in company with a white man who assumed to be in charge of him, was transported as a passenger on the defendants’s cars, whereby he was enabled to effect his escape and became lost to the plaintiff, and in the action against the rail road company, the jury, by their verdict for the defendants, negatived the charge of negligence, the Court refused to disturb the verdict, all imputation of intentional wrong being disavowed.</p>

<p>From an order granting a party leave to file a suggestion impeaching a judgment, confessed before the Clerk, on the ground of fraud, the opposite party may, it seems, either appeal at once, or wait until the issue is tried and a verdict found against him, and then appeal.</p> <p>A subsequent purchaser, for valuable consideration, from a defendant in a judgment confessed before the Clerk, may file a suggestion and have the judgment set aside on the ground of fraud,</p> <p>A conveyance of property, real and personal, for the life of the grantor, on condition, expressed in the deed, that the grantee would take immediate possession of the property, — would allow the giantor to remain on the plantation and in possession of the mansion house, — would live in the house with her, unless it should be otherwise agreed, and take care of her, she being old and infirm, in sickness and in health, — would provide for her from time to time as her wants might require, decent and comfortable clothing, and supply her at all times with an abundance of wholesome food, — pay her, yearly, ten dollurs in cash, and, at her death, bury her decently, held, on proof that the grantee was in possession of the property in pursuance of the deed, and had discharged the duties prescribed in it for him, to entitle the grantee to have a judgment, previously confessed by the grantor before the Clerk, set aside on the ground of fraud.</p>

<p>Before Wardlaw, J. at Sumter, Spring Term, 1850.</p> <p>This was an action of trover for six slaves, Jack, Rosannah, and four children of Rosannah.</p> <p>Jack and Rosannah were born the property of the plaintiff. In April, 1842, Arthur M. White was married to Martha W. a daughter of the plaintiff. White and his wife lived with the plaintiff, in Clarendon, twenty-five miles from Sumterville, until the last of December, 1842; then they removed a few miles, and he opened a store. Just before they removed, they both signed a paper, which a son of the plaintiff drew and witnessed, and which the plaintiff kept, without ever shewing it before 1849, so far as appeared. It is in these words:</p> <p>“ State op South Carolina — SumTer District :</p> <p>Know all men by this, that Arthur M. White and Martha W. White, my wife, do hereby promise to return a negro woman, Rosannah, and child John, and her increase, and a negro boy, Jack, to Andrew Burgess, or his estate, when called for by him or his executors or administrators or assigns. Whereon we have set our hands and seals.</p> <p>A. M. White, [s. l.]</p> <p>M. W. White, [s. l.]</p> <p>Dec. 28, 1842.</p> <p>Witness, W. R. BuRgess.”</p> <p>Jack and Rosannah, and the only child which Rosannah then had, went with White and his wife to their new residence, and with them remained there, until December, 1847, two other children of Rosannah being born in the meantime. In December, 1847, all together went to Sumterville, and there White continued his business of shop-keeping.</p> <p>In 1848, many judgments were rendered against White, upon various contracts made by him between 1st. November, 1847, and 2d. February, 1848; mostly for goods purchased in Charleston. Under writs of fi. fa. founded upon these judgments, the sheriff, in January, 1849, after selling some land, two other negroes, and all the known property of White, offered these negroes. The plaintiff forbid the sale, and gave explicit notice of his claim; time was taken for consultation with the creditors, and further delay ensued from Rosannah’s being again in the straw. In September, 1849, these six negroes were sold by the sheriff to the defendant, for $ 1010. Upon every one of the executions against White, except the oldest, a balance still remained unpaid, as to which a. return of nulla bona was made; and White had left the country.</p> <p>On the part of the plaintiff, there was testimony that, to the tax collector of Clarendon, the plaintiff had, in making his returns for various years, said that in the number of slaves he returned, were included some that he had lent to his sons-in-law, White and Blackwell; and, further, six witnesses, speaking of conversations had whilst White resided in Clarendon, and six others speaking of conversations with him after he went to Sumterville, testified to declarations of White, that negroes in his possession were not his own — (some mentioning particular negroes, others speaking indefinitely,) but (as sometimes said,) were his wife’s; (as more frequently said,) were lent to him by his father-in-law; and (as two or three more intimate with him understood,) were lent, and the father-in-law’s right to retake them, secured by some writing.</p> <p>A witness, on the part of the defendant, residing in Sumter-ville, near to White, and conversant with business, had never, before the levy made by the sheriff, heard a whisper that any of the negroes in White’s possession were not his own.</p> <p>On the part of the defendant, it was argued that the plaintiff had enabled White to delude the creditors, who had trusted him on the faith of these slaves, received with his wife; that if both were innocent, the plaintiff should suffer rather than the creditors; and that, in opposition to the natural inferences, from what was visible and public, to give effect to the private arrangement between the plaintiff and his son-in-law, would be to perpetrate a fraud.</p> <p>His Honor instructed the jury according to the principles laid down in Archer vs. McFall, (Rice, 73,) and Ford vs. Aiken, (1 Strob. 93,) and leaving all the facts to them, submitted especially the questions, whether the creditors had trusted on the faith of these slaves, and whether, with due diligence, they might have been informed of the defect of White’s title.</p> <p>The jury found for the plaintiff.</p> <p>The defendant appealed, and moved this Court for a new trial, on the grounds,</p> <p>1. Because the evidence was uncontradicted that the possession of the negroes, unexplained to the Charleston judgment creditors, enabled White to appear as the real owner, thereby getting credit, and the jury should, therefore, in law, have found for the defendant.</p> <p>2. Because, by law, as to the creditors, the title to the negroes •was in White; and the jury should, therefore, have found for the defendant..</p>

Before WitheRS, J. at Union, Fall Term, 1850. This was an action on a receipt, dated 13th January, 1843, by which Tucker, the defendant, acknowledged that he had received from Bishop, the plaintiff, a sealed note, then due, which Bishop held on one George Clarke, for $197 50, “ which amount I promise to pay to the said Jesse Bishop, when I collect the note, or, if not collected, to return the said note unto the said Jesse Bishop.” On the receipt were indorsed by Bishop, two…

Before Wardlaw; J. at Lexington, Spring Term, 1850. This was a sum. pro., lodged on the 22d September, 1849, upon the following cause of action: “ Columbia, 28th July, .1845.

Before O’Neall, J., at Edgefield, Bpring Term, 1850. The report of his Honor the presiding Judge is as follows: “ This was an action of trover for a negro man, Patrick, at the trial proved to be between 22 and 25 ; there was also a count in case against the defendant, for inducing the said negro to runaway from the service of the plaintiff, Eugenia, when sold. “ Edward Quinn was once the owner of Patrick; he resided in Augusta, Georgia ; he visited Ireland, his place of…

Before Withers, J., at York, Fall Term, 1850. This was an indictment for gaming with a slave, named Jim, belonging to one Simerall. The fact that the defendant played at cards with Jim, was fully proved. There was no proof, however, of any betting, nor did the only witness, who testified, know what game was played.

<p>In an action of covenant, it is not necessary to set out, in the declaration, the rvhole deed; it is sufficient to set out those covenants only which contain the mutual stipulations and conditions which are essential to the plaintiff’s cause of action.</p> <p>In declaring in covenant, if profert be made of the deed, and die covenant be mis-recited, the defendant cannot demur specially, alleging the misrecital as the cause of demurrer, without first craving oyer of the deed and setting it out in lime verba, so as to make it a part of the record.</p>

Before Withers, J., at York, Fall Term, 1850. This was an action of trespass to try the title to a small parcel of land.

<p>Before Withers, J., at Union, Fall Term. 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The action was founded on two single bills, executed by the intestate, in his lifetime, the one dated February 23, 1832, due 25th March, 1833; the other dated 21st February, 1832, due 21st March, 1833. Writ entered 18th October, 1849. The defence rested upon the presumption of payment, arising from lapse of time, aided by the evidence, that the intestate, (F. Ison,) when the notes were made, was in good circumstances, remained so until his death, six or seven years ago, and no movement had been made in his lifetime, or since his death, to collect the money.</p> <p>“ In the argument, Smithpeter was treated as a horse-trader, or itinerant speculator of some sort, and the plaintiff’s counsel treated him also as a resident of Tennessee. The evidence was only from one witness, who said that, about the time the notes were dated, he saw Smithpeter; did not know where he resided, but heard he was a Tennessean. He had neither seen or heard of him since.</p> <p>“ After advising the jury of what our Courts had said on the question raised by the defence, I told them that the question was for them, as a matter of belief, arising from the evidence. If they were convinced by it that the notes had been paid, the ver-diet must be for defendants ; if not, for the plaintiff — that the law did not presume the debts paid by the lapse of less than twenty years. Yerdict for the defendants.”</p> <p>The plaintiff appealed, and now moved this Court for a new trial, on the ground, that the verdict was against the charge of his Honor, the law and the evidence; and because another jury had found for the plaintiff on one of the notes sued on in this case.</p>

Before Wakdlaw, J., at Lexington, Bpring Term, 1850. This was a suggestion under the 2d sec. of the Act of 1846, 11 Stat. 359, “ to amend the law in relation to sheriffs.” The facts suggested on one side and traversed on the other were, that Townsend, Arnold &• Co., the plaintiffs, recovered against Henry A. Meetze judgment for $1,152 62, besides interest and costs; that on the 5th Dec. 1848, fi.fa. on said judgment was lodged in the office of John Kleckley, sheriff of…

Before O’Neall, J. at Charleston, May Term, 1850. This was an action of assumpsit, by attachment, to recover $1246 48, the price and value of goods sold and delivered by the plaintiffs to the defendants, in January, February and March, 1848. The goods were sold on- a credit of six months.

In the City Court of Charleston, May Term, 1850. This was an action on the case to recover damages on account of an alleged injury to Mrs. Freer, from the negligence of the defendants. 'The testimony was as follows: Mrs. Ann Henlin. — Witness lives on James’s Island; so do Ihe plaintiffs; was in the city in November, 1847, in company With. Mrs. Freer.

Before O’Neall, J., at Charleston, May Term, 1850. The report of his Honor, the presiding Judge, is as follows: “ This was an action of trover for the recovery of the value of fifty-one head of cattle, converted by the defendant to his own use. The cattle once belonged to Cloud & Gay, dealers in cattle in Kentucky. They were largely indebted to the plaintiff and to other persons.

<p>Before O’Neall, J., at Charleston, May Term, 1850.</p> <p>Debt on bond. The declaration alleged “that whereas the said Cruikshanks, on 11th December, in the year of our Lord 1845, at Charleston, in the District and State aforesaid, by certain writing obligatory, called a bond or contract, sealed with the seal of the said Samuel Cruikshanks, acknowledged and agreed to be held and firmly bound unto the said A. G. Summer in the aforesaid sum of $500, to be paid to the said A. G. Summer when he should be thereunto afterwards required, in the manner following : ‘ We do severally and each, in and for the sum of $500, agree to secure to the said A. G. Summer the payment of the sum mentioned in the condition of the within bond; in case of default made in the payment of the same, each of us will be liable to the extent of the sum of $500; to the payment of which we severally bind ourselves, our heirs, executors and administrators. In witness whereof, we have hereunto set our hands and seals, this 11th December, 1845.’ Signed by S. Cruikshanks et al.; which said bond or agreement was indorsed upon the bond of B. R. Carroll to the said A. G. Summer, dated the 11th day of December, 1845, in the penal sum of $9,000, and, being unpaid, was, together with the said obligation, assigned to the said plaintiffs ; and the said J. A. Folk et al. say that the said sum of money was not paid according to the bond aforesaid, and the condition thereof.”</p> <p>The defendant pleaded several pleas. The 3d was as follows :</p> <p>“And the said defendant, for further plea in this behalf, by leave and so forth, saith and so forth. Because he saith that on or about the 11th day of December, Anno Domini 1845, the said A. G. Summer and B. R. Carroll entered into an agreement, in writing, wherein and whereby the said A. G. Summer agreed to sell to the said B. R. Carroll one-half of the paper and printing-office known by the name of the South Carolinian, together with all the property belonging to the same, excepting the advertising accounts due on the first day of January, Anno Domini 1846. And in consideration thereof, the said B. R. Carroll agreed to pay the said A. G. Summer the sum of §5,500, in sums as follows, to wit: — §1,000 cash on the first day of January, A. D. 1846, and the balance in a bond, bearing seven per cent, interest, payable in five equal annual instalments, the first payable with interest on the first day of January, 1847, secured by a mortgage of the paper, and approved personal security. And the said defendant further says that, in the day and year aforesaid, to wit, on the ilth of December, 1845, he, this defendant, to enable the said B. R. Carroll to give the personal security stipulated for in the said agreement between the said B. R. Carroll and the said A. G. Summer, became one of his securities, and executed the bond or instrument in writing in the said declaration set forth. And this defendant further saith that the said mortgage, so as aforesaid stipulated for in the said agreement, was never executed and delivered by the said B. R. Carroll to the said A. G. Summer, but the same was altogether dispensed with by the said A. G. Summer, without the knowledge or consent of the said defendant; and the said agreement to mortgage was never entered of record in the proper office of registry, according to law. And afterwards, to wit, on or about the 20th day of February, A. D. 1847, the said B. R. Carroll purchased from the said A. G. Summer the other moiety of the paper, and so forth. And after-wards, to wit, on or about the 5th of April, 1847, the said B. R. Carrolb sold the whole of the said paper, and so forth, to the said A. G. Summer. And afterwards, to wit, on or about the day of , A. D. 1848, and before the commencement of this suit, the said A. G. Summer sold and conveyed the said paper, and so forth, free from all lien or incumbrance by the said agreement to mortgage of the 11th of December, 1845, to certain other persons, to wit, Cavis and Johnston.</p> <p>“And so this defendant saith, as surety as aforesaid, that he is altogether discharged from liability in respect of the said bond or instrument in writing, and the same is wholly void. And this he is ready to verify. Wherefore he prays the judgment of this Court, if the said plaintiffs ought to have or maintain their aforesaid action against this defendant, and so forth.”</p> <p>The plaintiffs replied; and the defendant to the replication demurred specially.</p> <p>Per Curiam. The demurrer carries us back to the first fault in pleading. There is nothing in the objection that the assignees cannot sue. The paper sued on is a bond within the words and meaning of the Act of 1798. The third plea is bad; for the agreement to take a mortgage, and a failure to do so, is no discharge of the liability of the defendant. The demurrer is sustained and the third plea and replication are overruled.</p> <p>The defendant appealed, and now moved this Court to reverse the decision of the Circuit Court, on the grounds—</p> <p>1. That the plaintiffs cannot maintain an action in their own names on the instrument sued on.</p> <p>2. That the 3d plea is a bar to the action.</p>

In the City Court of Charleston, February Term, 1850. This was an action of assumpsit.

Before Withers, J., at Charleston, May Term, 1849. This was a motion to set aside the plaintiff’s judgment.

<p>The City Council of Charleston have not the power to impose a tax on sales at auction of lands and slaves, (a)</p>

Before O’Neall, J., at Charleston, May Term, 1850. This was an action for a libel. The defendant pleaded, in bar, that the libel was true, and, therefore, he was not guilty; and put himself upon the country. The plaintiff demurred, and his Honor sustained the demurrer. The defendant appealed, and now moved this Court to reverse the decision of the Circuit- Judge, on the ground that the plea is valid, as a special traverse, and ought to be sustained.

Before Frost, X, at Horry, Spring Term, 1850. This was an indictment for murder. Held: the said Willis Rabón, in and upon the right side, and under the right breast, between the ribs of him, the said Willis Rabón, then and there, feloniously, wilfully and of his malice aforethought, did strike and thrust, giving' to the said Willis Rabón, then and there, with the knife aforesaid, in and upon the right side, and under…

<p>Before O’Neall, J., at Charleston, May Term, 1850.</p> <p>This was a suggestion to set aside a judgment, by confession, of Lawrence &> Johiisón vs. William P. Lawrence and Archibald P. Lawrence, constituting the firm of Lawrence & Brother. Rankin & Birch were also judgment creditors of Lawrence & Brother.</p> <p>William P. Lawrence lived out of this State. He gave a power of attorney to his brother, Archibald P., to confess the judgment, who, accordingly, for himself, and as attorney of William P., confessed the judgment to Lawrence & Johnson, on the 8th April, 1848. This judgment was older than that of Rankin & Birch.</p> <p>His Honor thought the Act of 1785 applies only to powers executed by persons within the State, and ordered the suggestion quashed. The plaintiff appealed, and now moved to reverse the-decision of his Honor.</p> <p>cited 1 Sp. 114; 2 Rice, 209.</p> <p>cited 3 Bl. Com. 397; 1 Com. Dig. 753, H.</p>

<p>A paper referred to in a replication, cannot, like an exhibit to a bill in equity, be considered as part of the record, and be the subject of demurrer; semble.</p> <p>A failure by an administrator to account before the Ordinary when cited to do so, is a breach of his administration bond, for which his sureties may be sued; semble.</p> <p>In order to maintain an action on an administration bond,, it is not necessary that the Ordinary’s decree should direct a specific sum to be paid to each distributee ; or that it should find the number of distributees, and the proportion to which each is entitled ; such a decree, made at the instance of one distributee, is sufficient, if it merely finds that the administrator is indebted to his intestate’s estate in a gross sum, and directs him to pay the amount to the parties who may be legally entitled thereto.</p>

<p>Before O’Neall, J., at Charleston, May Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows : “In this case, thé\ relators are shipowners to a large amount. They paid the city tax on all their property for the fiscal year 1848-49, except on their ships. They paid the Harbor Master’s fees on their ships entering the harbor of Charleston, and being moored at the wharves. The City Council, by an ordinance regularly passed 24th April, 1849, provided that “ a tax of forty-eight cents on every one hundred dollars of money, or capital invested in shipping,” should be paid into the city treasury. The relators refused to make a return of their money or capital invested in shipping. Ravenel, Brother & Co. and James Wels-man made verbal statements of the amount invested, and were assessed accordingly by the city assessor. He assessed James Chapman and Gourdin, Matthiessen & Co., at such sums as he had thought right, and gave proper notice of his assessments. James Chapman and Gourdin, Matthiessen & Co., according to the city laws, reduced their assessment. The taxes being unpaid, executions were issued, which did not specify on what particular subject the tax thereby to be collected was assessed. The relators applied for a prohibition, on various grounds — 1st, that the executions were defective, inasmuch as they did not specify the subjects of taxation or assessments for which they were issued. This objection was sustained, as was supposed in the argument, by the case of the State vs. Graham, (2 Hill, 457.) But I thought that case had no relation whatever to the point before me. That was where the capitation tax on a free mulatto being unpaid, the tax collector, under the Act of 1833, issued an execution for the sale of the man himself; “this,” as Judge Harper said, “ was an extraordinary mode of proceeding,” given by law, and doubtless the execution itself should show that the defendant comes within the provisions of the Act. But here there is no such necessity; this execution is for the collection of a property tax, and there is no more necessity to state the cause of the tax, than there would be in an execution for taxes tinder the general tax Act of the State. 2d. The relators alleged that, having paid a tonnage duty, in the shape of Harbor Master’s fees, they were not liable to a farther tax on the same property. The relators here commit a plain mistake; they have paid no tax on the' ship; they have merely paid the Harbor Master’s fees for assigning their respective vessels a berth at a wharf. They are ascertained, it is true, by the burthen or tonnage of the ship ; but it is in no shape a tonnage duty; otherwise, the ordinance would be unconstitutional: {Alexander vs. Wilmington and Raleigh Railroad Company, 3 Strob. 594.) 3d. It was; supposed, in the argument, that the ordinance was in contravention of the Constitution of the United States, as a regulation of commerce, as a tonnage duty, and as a preference of the ports of one State over the ports of another. I confess I thought these various constitutional objections were the results of legal ingenuity, tasked to its utmost powers of research and distinction. A tax on money invested in shipping, is no more a tax on commerce, or a regulation of commerce, than a tax on stock in trade, or money at interest. Each affects a man’s income ; but they neither increase nor diminish the facilities by which commerce is carried on. It is very true that an ordinance, calculated to induce men not to invest in shipping, or improvements, in such a city as Charleston, is far from a wise exercise of powers. Burdens imposed on industry are like slanders upon female character, irreparable. I am very much inclined to concur with the learned counsel for the relators, in saying, if Charleston should ever see the grass growing in her streets, she may blame her own legislation. Whether I and the relators’s counsel be right, in our judgment, as to the policy of the city legislátion, is altogether unimportant in the decision upon the matter in hand. That even a tax upon the ship is not in violation of the Constitution of the United States might, if necessary, be shown. Indeed, if it be property and within the jurisdiction of the State, it seems to me the power to tax is plain and self-evident. In Smith v. Turner, at page 13 of the pamphlet published by the United States Senate, containing the opinions of the Judges of the Supreme Court in that case, and that of Norris v. The City of Boston, it is said by Judge McLean, and not at all disputed by his brethren: A State cannot regulate foreign commerce, but it may do many things which more or less affect it. It may tax a ship, or other vessel used in commerce, the same as other property used by its citizens.” The same principle, although upon another subject, supposed to be protected from State taxation by the Constitution of the United States, is affirmed by the whole Court, in Berney v. The Tax Collector (2 Bail. 654.) The tax here, however, is less obnoxious than a tax on the ship, eo nomine, would be ; it is “ on money invested in shipping.” How can it be called a regulation of commerce ? It is merely k deduction from the per centum of profit which the owner is allowed to realize. There is, to my mind, no difference between such a tax and that on stock in trade. What is stock in trade but money invested in merchandize, for sale, barter, or exchange ? And what is merchandize but a means of commerce ? So is a ship ! A tax upon both, or either, unwisely applied, may banish trade from Charleston, and may, in the end, make her as deso-: late as Tyre. Still this is no regulation of commerce. It is taxation, forced upon the people, until they find it to their interest to seek other homes Í The tax here is in no sense a duty of tonnage. Acording to Alexander v. the Wilmington & Raleigh Rail Road Company, (3 Strob. 594) a tonnage duty is a tax on the capacity of a ship or vessel. This is no such thing in words or effect. It is on the money invested in shipping, and that may not at all be regulated by the size. For a small ship, of fine finish, may .cost as much as one of much heavier burthen, coarsely fitted up. Neither can it be considered as a preference by a regulation of commerce or revenue of the ports-of every other State over the port of Charleston. It is not, as we have already seen, any regulation of commerce. It cannot give any preference, as a matter of city revenue, to other ports. For, although it may be an unwise tax, still it leaves the port of Charleston as it was before, free to all who choose to visit it. If there be anything at all affecting it, her own people are less favored by herself than citizens of other States. The Constitution did not intend to control domestic regulations, by the State or city, affecting' her own people. It intended that neither Congress, the States, nor any City should give such a preference to one port, by discriminating legal advantages, so as to draw commerce or trade from other ports of other States. But if Charleston is unwise enough to levy such taxes as will drive every ship her merchants may own from her own port, I do not see how the Constitution of the United States can help her. The ballot box, not the Court House, is the place to obtain the remedy.</p> <p>I'd m0fi0n for the writ of prohibition was refused.”</p> <p>The relators appealed, and now renewed their motion in this Court, on the grounds :</p> <p>1st. That the executions against the defendants were fatally defective, in that they did not specify the subjects of taxation, or assessment, for which they were issued.</p> <p>2d. That the defendants, having paid a tonnage duty, in the shape of Harbor Master’s fees, a further assessment on their capital in shipping, amounted to a double tax on the same property.</p> <p>3d. That the assessments made by the City Council on the capital of the defendants, vested in shipping, are in violation of the Constitution of the United States, being a regulation of both foreign and domestic commerce, duties levied on tonnage without the consent of Congress, and a preference, by a regulation of commerce or revenue, of the ports of every other State over the port of Charleston.</p> <p>4th. That the decision of the presiding Judge was, in these and in other respects, contrary to law, and to the Constitutions of this State and of the United States.</p>

Before Frost, J., at Charleston, October Term, 1850. Friday, the slave of David Lopez, had been convicted, by a Court of Magistrates and Freeholders, of murder ; and this was a motion to reverse the decision of his Honor, Judge Frost, refusing him a new trial.

Before O’Neall, J., at Charleston, May Term, 1850. This was an action of debt on a prison bounds bond against the surety. The condition of the bond was in the usual form, except that it recited two ca. sas., one at the suit of William M. Taylor and the other at the suit of John Waring, and required, .the debtor to render a schedule of his whole estate,, or so much thereof as would satisfy both ca. sas.

In the City Court of Charleston, May Term, 1850. Sum. fro. to recover a penalty of $50, imposed by a City Ordinance, for selling coal which had not been weighed upon one of the public balances. The process alleged a sale to Miss Mary Bates. The proof was, that the defendant delivered the coal at the house of Miss Bates ; — that there were several sisters (the Misses Bates) who lived and kept school at the same place.

<p>Before Frost, J. at Charleston, October Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows.</p> <p>“ This was an action to recover damages for the breach of a copartnership agreement. The breach alleged was, that the defendant, without the consent of the plaintiff, dissolved the partnership, and excluded the plaintiff from a participation of the profits, before the expiration of the term, limited by the contract of partnership, for its continuance. The questions in issue were, first, what definite term, if any, was, by the agreement of the parties, stipulated for the continnance of the partnership; and, secondly, was it, or not, dissolved with the consent of the-plaintiff? The grounds of appeal present no exceptions to the instructions, in the circuit court, to the jury, on points of law. The appeal being, in effect, a motion for a new trial, on the evidence, requires a tedious detail of the testimony. Nearly all of the plaintiff’s testimony was in writing, and may be referred to for the purpose of correcting or supplying any imperfect statement in this report.</p> <p>“ George W. Munday, examined by commission, stated that, at Lexington, Ky. in 1841, he can’t say the date, but thinks in the latter part of the spring, he was present at two conversations between the parties. In the last, an agreement was concluded, that the plaintiff was to go to Charleston, and take charge of the defendant’s stables, in the fall of the same year; the copartnership to continue two or three years, the witness could not say which. He did not recollect what was the agreement about the rent of the stables; but his impression was, that the personal services of the plaintiff were to go, to a considerable extent, if not entirely, in payment of the rent, He did not recollect that the plaintiff was to pay a dollar, or contribute any thing, except his personal services. The stables were to. be put in, by the de~ fendant, as a part of the stock; and the plaintiff’s services were to be set off against the rent, to a considerable amount, if not entirely.</p> <p>“ Cross-examined. — He went to Charleston, with stock, and put up at the stables of Brown & Co. He saw Brown every day. His acquaintance with Brown was as limited as with Brassfield. Some days before the agreement was concluded, he had conversations with both of the parties, who seemed desirous, of the partnership. The meetings between the witness and the parties, at which the conversations occurred, were not concerted, but casual. He understood the difference between the parties was $> 100; it was proposed to split the difference; he did not understand how the difference arose. The partnership was to commence the 1st of August, 1841, to the best of his recollection. He understood the conversation to be a final agreement between the parties. He saw no written agreement, and heard of none.</p> <p>“The deposition of Patrick Brady, in a cause pending between the parties in the court of equity, were read. The witness attended to the stables, and made entries in the books, by the plaintiff’s directions. Both the parties were occupied about the stables when he went there. The plaintiff went to Kentucky in June, 1843. The witness was left in charge of the stables, as he had been the year before. When the plaintiff left, the last time, he said he could not inform the witness what his future compensation should be, because Brown was in New York. Brassfield expected to return to Charleston. He bought grain, and paid for it, and directed the witness to call on Kin-loch for what more might be necessary. Brown returned from New York on the 18th June; and, the next day, he told the witness Brassfield had nothing more to do with the stables; that the business would, thereafter, be conducted in Brown’s name. The witness paid various sums to Brown within a short period after this. He remained with Brown until the fall, and then turned over the books to Hieronimus, who locked them up, and refused to let the witness have the key, or access to the books, except at night. He told H. the money of Brassfield and Brown was mixed up in the books; but H. would not give him access to the books by day, and he refused to resort to them at night. Brown was often about the stables, not merely stopping and chatting. Brassfield hired a servant from Lord, until he should return in the fall. The witness was employed at $20 per month, from July, 1842. The witness expected that Brass-field would return in the fall of 1843, from the hiring of Lord’s negro, and other circumstances. He never heard Brassfield say he was going to .rent the stables until after his return,' and then he spoke of wishing to return to Charleston. Brassfield never spoke of a change in the business before he left Charleston. The witness did not know of the copartnership between Brown and Brassfield. The first intimation the witness had of any copartnership, was when Brassfield said he could not increase his wages, on account of Brown’s absence.</p> <p>“ For the purpose of making competent certain declarations of Brassfield, affirming the terms of the copartnership, according to his interest in the issue, the plaintiff produced and read the bill in equity, filed by Brown vs. Brassfield. The statement in the bill was, that Brown entered into partnership with Brassfield, in the business of stabling; that the rent of the stables agreed upon was $2,100, to be equally charged to the partners. That Brassfield did give his personal attention to the business; and the rent was reduced to $800, in consideration of his personal services. The copartnership was to continue from year to year, until it should be dissolved by mutual consent. It continued until June, 1843, when it was dissolved by mutual consent. The bill charged that the defendant had had the sole management, received the income, and paid the debts; that defendant had come to no settlement with the complainant, although often desired; and that a balance of $1500 was due by defendant to complainant, on account of the copartnership.</p> <p>“ The deposition of Patrick Brady was then continued. He said that Brassfield had got hay and oats from Kinloch & Philips; He, Brady, got hay, &c. until Brown returned. There were then in the stables, corn, hay, oats, &c. He told Brown he had kept an account since the 1st of June.</p> <p>“ Preston West's deposition in Equity. A conversation was held between the witness and Brown and Brassfield, about the witness and Brassfield hiring the stables from Brown. He thinks that a person, to take charge of Brown’s stables, and keep the books, ought to receive f>30 to $40 per month.</p> <p>Cross-examined. — The witness and Brassfield spoke of taking the stables. He knew Brassfield in Lexington ; he lived respectably ; was esteemed ; did not own property, rented ; closed his business when he came to Charleston. Knew Brassfield keeping stables in Charleston; did not know Brown and Brassfield were partners. Sixteen hundred dollars is as much rent as the stables are worth.</p> <p>“ In reply. — Brassfield could stable sixty horses in Lexington. Witness don’t know if he made money. He kept there a private boarding house, and did so in Charleston.</p> <p>“ William C. Ferrell, deposition in Equity. A bail writ was issued against Brassfield, at the suit of Brown, the 27th June, 1844, for rent of the stables from the 1st of June, 1841, to the 1st of June, 1843, at $800 per annum.- It was entered in the sheriff’s office the 28th June; on that day, or the next, the witness was authorized to let Brassfield go at large, until further orders. On the 5th July, Brassfield gave bail.</p> <p>11 Patrick Brady. — Additional deposition. He states that, while Brassfield occupied the stables, a part of a mule lot, a valuable appendage to the stables, was taken away.</p> <p>“ John Brady. — Deposition in Equity. Brown and Brass-field, with the aid of Hieronimus, were endeavoring to settle their accounts. They were employed for eight or ten days in June or July, 1844. They had been engaged at a settlement ten days before H. came; they ‘split’ about the rent; the witness then heard of Brassfield’s arrest. He has known the stables since 1838, and was employed as agent of Brown & Co. since January, 1839. He was employed by Brown. By usage, the stable year ends the 1st of June; stable hands are employed till that period; and after that, the stables are closed until the drove season commences. Brassfield kept the stables open all the summer. He left Charleston in June; the witness was Brown’s agent during his absence. He received no notice from Brassfield of his intention to give up the stables. He did not know of any copartnership; Brown did not tell him. There was no copartnership account in the books; he was Brown’s book-keeper. Nothing was done but to take an account of the oats and hay, which was taken by the witness the day after Brown left Charleston. The brother of witness took charge of the stables, as agent of the owner, whoever, he might be. Brown went to Kentucky in May, 1841. The witness received a letter from him, dated September, 1841. The difference between the parties was, that Brown demanded from Brassfield rent, at $800 per annum, and half of the profits. Brassfield refused, saying that would leave him nothing. There was no talk about copartnership, only about the rent. Brassfield left Charleston in 1843, a few days after Brown had gone. Brown claimed a rent of $1600; this was objected to by Brassfield; he does not recollect the time. It is the impression of the witness that Brassfield admitted to him that the agreement was, that Brown should receive rent $800 per annum, and half of the profits. The witness rebuked him for the folly of his bargain. This was after the accounts for a settlement were produced.</p> <p>“ George F. Kinloch, sworn.- — Knows Brassfield and Brown. In 1841-2-3, the witness was a corn dealer. He supplied Brown’s stables while Brassfield was there, by Brassfield’s order. He did not know Brown was a partner of Brassfield. Brassfield left Charleston the 3d or 4th June, 1843. Supplies were furnished to the stables, for a short time, until Brown took possession, by Brady’s orders, pursuant to Brassfield’s direction. He has been paid by Brassfield'. Brown brought Brassfield, and introduced him to witness’s house, in the fall of 1841. Brown did not then say they were partners; he always denied the partnership, until the suit in equity. He introduced Brassfield as conducting the stables on his own account. Brown never admitted to the witness that he was a partner of Brassfield. At first, after the difficulty, he insisted that he was not a partner. Brassfield returned in the winter of 1843, during the session of the Legislature. He informed Brassfield that Brown had taken possession of the stables; he supposed Brassfield was not before informed of that fact. Since the rupture, Brassfield has been in very reduced circumstances. The witness went to Macon for him, to attend to this suit, and he could not pay his expenses to Charleston. He is Brassfield’s bail.</p> <p>“ Cross-examined. — Brown returned to Charleston about the 18th or 20th of June.</p> <p>“For the Defence — George W. Grouget. — Deposition in equity. Brown left Charleston the 26th May, 1843, for the North; Brassfield and witness accompanied him to the boat; Brown said to Brassfield, if you take the stables, you are to leave a writing to that effect with Brady; and if he did not, he was to make a settlement with Brady of the copartnership, to the 1st of June. He inferred that there had been a partnership; that was the first intimation he had of it. Buford arrived the 12th September, 1841, and Brassfield the 24th or 27th. Before Brassfield arrived, Brown directed the stables to be put in order for Buford. When Brassfield arrived, he asked the witness if he was ready to give up the stables, and witness replied, he was directed to do so. Brassfisld asked him if he knew the contract about the stables; Brassfield said only he, (B.) and Brown knew it. In the conversation in the steamboat yard, Brassfield agreed to take the stables on his own account, or give them up to Brown on the 1st of June, 1843, and make a final settlement with Brady. He understood Brassfield to say, he could not then give an answer, on account of West’s proposed partnership. The conversation was continued in the steamboat cabin. Brassfield left Charleston, that year, before Brown returned from the North. He understood Brassfield to say, that unless West became his partner, he could not take the stables.</p> <p>“ Cross-examined. — He joined Brassfield and Brown at the comer of Market and Church streets; McKenzie was with them; McKenzie left them at the market; Brown and Brass-field were conversing about business; he only noticed what was said about the stables; the conversation was continued to the boat, and in it. He supposed it was intended he should hear. He had heard of the proposed partnership of Brassfield and West. He understood Brassfield to say, he would either take the stables and leave the writing, or make a settlement with Brady. Patrick Brady was clerk at the stables. Witness never heard Brown say, before that time, that he was a partner of Brassfield. From 1840 to 1847, witness was Brown’s clerk. He attended to the out-door business of the wharf. Before Brassfield arrived, he had nothing to do with the wharf.</p> <p>“ William T. Hieronimus. — Deposition in equity. He was called by Brown and Brassfield to settle their accounts, in June, 1844. Both were present, and the books produced. The greater part of the entries were in Brassfield’s writing. Book A, 1 to 27, is in witness’s writing, and is a statement of the account between Brassfield and Brown. He went through all the items in the books, and set down in the Book A, what both admitted to be correct. The books were admitted by B. and B. as containing partnership accounts. It was admitted, by both parties, that the profits were to be shared equally. The account in book A, was made from several books, to the 1st of June, 1843. The witness did not draw the lines in the cash book. When he returned in the fall of 1843, he left Brassfield in Kentucky. He understood, from both Brown and Brassfield, that the partnership terminated the 1st June, 1843. At the time of settlement, the articles at page 13 were left at a valuation in the stables. John Laurens’s and several other accounts were brought into the settlement, as closed the 1st June, 1843, although they were continued beyond that time. He does not recollect that Brassfield contended for a continuation of the partnership beyond the 1st of June, 1843. The witness took charge of the stables on the'3d of October, 1843, as the agent of Brown. It was not intimated Brassfield had any interest in the stables. Brassfield was then in Kentucky, and did not return until the 14th December, 1843. He brought sixteen mules and four horses, put up at the stables, and was charged as any other drover. He did not then claim any interest in the stables. He kept horses there from December, 1843, to June, 1844. He brought with him two boys, who were hired by witness, and their wages credited. What prevented a settlement was, Brown claimed $800 per annum rent; and Brassfield claimed $850 to be paid to him out of the profits. The witness rented the stables at $2500 per annum, for two years prior to 1841. He received $700 per annum for keeping the stables for Brown. When the statement in book A was made, Brassfield was under arrest.</p> <p>“ Cross-examined. — He considered the partnership ended the 1st June, 1843. Neither said it extended beyond that time.</p> <p>“ James TV. Gray, Master in Equity, sworn. — The books mentioned by H. are before him for a settlement of the partnership accounts.</p> <p>“ Cross-examined. — The testimony of both parties is incomplete. Brown claims $3421, including rent. Brassfield claims $714.</p> <p>“EVIDENCE FOR THE PlAIP TIFF-IN REPLY.-Arch. McKenzie, sworn. Brown, Brassfield and Grouget, called at his store, on their way to the boat. He went with them; Brown and Brassfield walked together; at Dn Porcher’s corner, he is almost certain Grouget left the party; witness went along with B. and B. to the corner of Market, and Church streets, and then parted with them; Brown was on his way to the boat; Grouget was walking with witness; he did not hear the conversation between B. and B.</p> <p>“ Cross-examined. — He thinks that after Grouget left them, he joined B. and B.; Brown had called to take leave of him, and he walked a short distance with Brown. It is very possible that Grouget might have joined Brown and Brassfield, at the corner of Church and Market streets; the witness took leave of B. at the market, and in going back to his store, turned his back on Brown and Brassfield.</p> <p>“ Quachenbush,, sworn. — Recollects the parties passing his store, at the corner of Church and Cumberland streets. He recollects Brown, McKenzie, and Grouget, but not Brassfield. Grouget said Brown was bound for the North, and he was seeing him off. He can’t say how long Grouget stayed at his store ; some few minutes, he supposes; Grouget took a drink; he thinks Grouget went towards Brown’s wharf, at the foot Of Queen street.</p> <p>“ Cross-examined. — He was a tenant of Brown; he knew Grouget well; Grouget said he was seeing Brown off-; he thinks Grouget came to the door on Cumberland street; he thinks when Grouget left,-he went down Cumberland street; he could go down Cumberland street and overtake Brown in the market, as easily as to go by Church street.</p> <p>“ John Myerhouse. — Deposition'. He was present when Brown and Brassfield came into the steamboat yard, in May, 1843. He did not see Grouget; he saw Brown and Brassfield enter the yard; Brassfield returned from the boat with witness ; witness staid until the boat left; he thinks B. and B. stopped at the head of the wharf; he left his omnibus with a boy, and went to the boat; he is sure Grouget did not come with B. and B.; some person may have entered the yard unobserved by witness; the boat did not stay long.</p> <p>“In submitting the case to the jury, a summary of the evidence was presented to them, with observations respecting its ■effect on the issues made in the case. Their attention was directed to the omission of the plaintiff to produce any evidence of the profits of the two first years of the partnership, whereby the damages of the plaintiff, for his alleged exclusion, during the last year, might be estimated; and also to a consideration of the loss the plaintiff might have sustained, by breaking up his business-in Lexington, to engage in the partnership with the defendánt, in Charleston, by reason that the defendant had prematurely dissolved the partnership a year before the end of the term, which the plaintiff contended had been agreed upon for its continuance. They returned a verdict of $ 1250 damages for the plaintiff.”</p> <p>The defendant appealed, and now moved for a nonsuit, or new trial, on the grounds :</p> <p>1. That the plaintiff’s action was for the alleged breach of an agreement of partnership; and that the plaintiff proved neither the agreement, nor the breach, as laid.</p> <p>2. That, by the evidence, there was an agreement for a partnership from year to year, and a dissolution at the end of the second year, by consent of plaintiff. That if it was a partnership from year to year, the defendant had a right to dissolve it at the end of the year ; and if the dissolution was with consent of plaintiff, it was immaterial when the partnership would expire by its own limitation.’</p> <p>3. That the partnership was dissolved in June, 1843, and plaintiff acquiesced, and never complained of the dissolution until April, 1847; and that such acquiescence was a bar to his action.</p> <p>4. That the verdict is without evidence, and against his Hon- or’s directions in point of law.</p>

Before O’Neall, X, at Charleston, May Term, 1850. These were actions of assumpsit, tried separately. In each case the defendants were sought to be charged as co-partners in trade under the name and firm of John T. Darby. The written agreement, (in which the words “and Jno.

<p>Construction given to the 30th section of the Sheriff’s Act of 1839; the schedule of the prisoner need not be filed and assigned, before notice to the plaintiff has been given by the sheriff; the Act was intended for the protection of the sheriff and not for the benefit of the prisoner; to discharge a prisoner under it is not to give him the benefit of the insolvent debtor’s or prison bounds Act.</p> <p>The case of Robinson <£• CaldweU vs. Simpson, 3 Strob. 161, explained.</p>

<p>Before O’Neall, J., at Colleton, Fall Term, 1850.</p> <p>These were writs in attachment. The case of Brown & Stone was an action of debí; the other cases were actions of assumpsit. A motion was made in behalf of the defendant that the writs be set aside, on the ground that the penalty, of the bonds, given by the 'plaintiffs before the writs were issued, was for the amount of the damages laid in the writs, and not for double that amount.</p> <p>His Honor overruled the motion. The defendant appealed, and now moved this Court to reverse the decision of his Honor.</p> <p>cited 11 Stat. 76; 2 N. <fc McC. 110; Miller’s Comp. 164; 2 N. & McC. 125; 3 McC. 345; 1 Rich. 412; Harp. 38.</p>

<p>Before Frost, J., at Charleston, October Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“By the request of both parties, they were permitted to take a verdict in this case, out of its order on the docket, that the principle involved, important to the Company and to the community, might be adjudicated in the Court of Appeals. It was submitted to the decision of the Circuit Court, without argument or time for consideration, in the press of business, at the close of the term.</p> <p>“The plaintiff’s case, as stated in his own affidavit, which was admitted to be evidence, is, that between the first day of November, 1849, and the fifth day of October, 1850, the engines and cars of the passenger trains, belonging to the Company, had run over and killed, of the plaintiff’s cattle, four milch cows, of the value of $95; one steer, of the value of $15; and two heifers, of the value of $20 — amounting, in all, to $130. In each case of killing, neighbors were summoned, who appraised the cattle at the sums stated. In so doing, the plaintiff pursued the published notice of the Company, that, in all cases of cattle killed, the carpenter of the Company and two neighbors should be summoned to appraise the value. In only one of the cases stated could the carpenter be obtained; and then he concurred in the valuation. The Rail Road passes within 150 yards of the door of the plaintiff’s dwelling-house, and the passenger trains pass along his tract of land at the rate of about twenty-five miles an hour. The Company have no fence or enclosure to keep the plaintiff’s cattle from straying on the road. One of the cows was killed by the Ridge-ville train, which had no break to stop it; which cow was valued at #25. The part of the road on which the cattle were killed is perfectly straight for two or three miles. The engineers on the road are required by the Company to bear the loss of all cattle killed.</p> <p>“For the defence, John Chalk, an engineer, and John E. Marley, a conductor on the road, by their several affidavits, set out the danger of destruction to cattle from the speed of the trains, and the impossibility of arresting their progress suddenly. With the use of the breaks, and of every other appliance, the train, in full speed, cannot be stopped in a distance less than two to five hundred yards. They represent the dangers to be increased by the fright and insensibility to danger of the cattle, which frequently prompt them to rush before the train, under circumstances which no care or vigilance can avoid or prevent proving fatal. From the circumstances detailed by them, they express the opinion ‘that the destruction of cattle upon the road is never to be attributed to negligence or carelessness.’</p> <p>“The liability of the Company for the cow killed by the Ridge-ville train was admitted.</p> <p>“While .it is admitted, by the case submitted, that the rest of the plaintiff’s cattle were destroyed by the passenger trains of the Company, there is no evidence whatever of the circumstances or manner in which they were destroyed. It cannot be assumed, from the facts and opinions stated by the witnesses for the de-fence, that the destruction of cattle by the Rail Road trains can never be the result of negligence, since negligence is confessed in the killing of the plaintiff’s cow by the Ridgeville train. Because, in many cases, the destruction of cattle by the trains is inevitable, that does not warrant the assumption that in all cases it is so. The engineers, conductors and agents of the Rail Road cannot be exempt, by virtue of their employment, from the imputation of negligence, to which otherwise, in common with all persons, sui juris, they would be subject. The case made by the evidence is not such as can protect the defendants from liability. It is therefore contended for the defence that when it is admitted cattle have been killed by direct and immediate force, and the particular circumstances of the killing are not disclosed, it is a presumption of law that the servants of the Company have not been guilty of any negligence in' the conduct of the train; and that this presumption shall prevail until the contrary be proved by the party complaining. But it was held otherwise. Because, as a general rule, if it be admitted or proved that one person has sustained damage by the immediate act of another, the person doing the injury is bound to shew matter of excuse' or justification. That the damage was done in the pursuit of a lawful employment, does not except the case from the general rule. The law does not exempt'any employment from imputation of negligence, In the pursuit of a lawful trade or employment, wrongful injuries • may be done to the property of another, by want of skill and care, or wilfully. If the circumstances, under which an admitted destruction of property has occurred, be not shewn, it cannot appear that it was not done maliciously or negligently. In such case it is an unreasonable claim to protection that the complaint of the sufferer should be dismissed, on the presumption that the servants of the Company can do no wrong. To allow such a presumption, would give to them a dangerous license. They have the train under their conduct and control. They alone are witnesses of the damage they may do. The passengers are not in a situation to see under what circumstances it occurs. The party injured would have a poor chance for redress when the only witnesses who can maintain his action must charge themselves by any testimony they may give in support of his claim. The Company can, more readily than the plaintiff, procure the attendance of their servants, as witnesses, and can remove the exception to their competency and credibility by a release, which the plaintiff cannot do. The regulation of the Company, which charges the engineers with the value of eatlle that may be killed, could not have been adopted or tolerated if it were not true that at least most frequently such destruction is caused by culpable want of care; and can be prevented if it be made the interest of the engineer that it should not occur. The killing of cattle is not, like the escape of sparks from the smoke-stock, or of coals from the furnace, a necessary incident to the employment of a steam locomotive. When it was admitted that the plaintiff’s cattle were killed by the passenger train, it was held to- be incumbent on the Company to repel the plaintiff’s claim for compensation, by shewing the circumstances under which the damage was done.</p> <p>“A verdict was rendered for the plaintiff, for the amount of his loss.”</p> <p>The Company appealed and now moved for a new trial, on the following grounds:</p> <p>1st. The Court, it is respectfully submitted, should have instructed the jury, that, this being an action on the case for injury done by carelessness, the plaintiff, to entitle himself to recover, must either shew some carelessness on the part of defendants, or lay facts before the jury, from which carelessness might be inferred. The jury should have been made to understand that the onus did not lie. on the defendants to disprove negligence, but on the plaintiff to establish it.</p> <p>2d. Because the whole spirit and tenor of the charge of the Court, is the reverse,of the above, to wit: that the onus of disproving negligence lay upon the defendants.</p> <p>3d. Because “there being no evidence whatever of the circumstances or manner in which the cattle were destroyed,” as stated by the Court, the plaintiff was not entitled to a verdict!</p> <p>4th. Because, the Bail Road Company being authorized by Act of the Legislature to run locomotive engines and cars, are not responsible for the damage which ensues from the ordinary use of said engines and cars, according to the purposes of the charter. To show an accident which may have occurred either with carelessness or without, was not enough, even for a prima facie case. The plaintiff should have proved affirmatively that defendants were in some way in default, and his Honor should have so instructed the jury.</p> <p>Sth. Because the cars of the Company had, under the laws of the land, quite as much right to be on the Rail Road track as the plaintiff’s cows, and the principle that one should so use his own property as not to injure his neighbor, applies to the owner of the cows quite as much as to the Rail Road Company. Cows on the track endanger the lives of passengers and engineers, and subject the property of the Company to a risk of injury infinitely beyond their own value, whenever they are destroyed.</p>

<p>The Clerk of the City Court of Charleston has authority to issue commissions for the examination of -witnesses.</p> <p>Where a bill of exchange is payable to and indorsed by firm, the indorsee, in declaring upon it against the acceptor, need not set forth the names of the members of the jwm.</p> <p>The subsequent indorsee of a bill of exchange may give the same in evidence and recover against the acceptor on a count for money had and received.</p>

Before O’Neall, J., at Charleston, May Term, 1850. The report of his Honor, the presiding Judge, is as follows : “ This was an action of assumpsit. The facts upon which I thought the plaintiff might be entitled to recover, mainly appeared from the testimony of Patrick McBride, a witness for the defendant.

<p>In 1818, G., being tenant of S. of a lot, offered to purchase the lot. His offer was accepted on his giving bond for the purchase money, secured by a mortgage of the lot. The bond and mortgage were given, and the mortgage recorded. G. died in 1819, in possession of the lot, leaving, as his heirs at law, a widow and an infant child only a few days old. G. was insolvent, and owed X>. when he died, a large sum of money, which his estate was entirely insufficient to pay. D., immediately after G.’s death, took possession of the lot, and administered on his estate, and about a year afterwards paid the bond and had satisfaction entered on the mortgage. In 1824, the executors of D. sold the lot, and various persons were in undisturbed possession of it, claiming under the sale by D.’s executors, until some years after G’s child arrived at age, when the widow and child claimed the lot and brought suit to recover it. Search was made, but no deed from S. to G. could be found. Held that the plaintiffs were entitled to recover; that the mortgage and other facts proved were, until rebutted, conclusive evidence that S. had conveyed the lot to G., and that no presumption from the proof could arise, that either G. or the plaintiffs had conveyed to D.</p>

Before O’Neall, J. at Charleston, May Term, 1850. The report of his Honor, the presiding Judge, is as follows: “ The prisoner was indicted, in the same indictment, for robbery, stealing from the prisoner, and larceny of bank bills. The jury found him guilty of larceny only, as read in Court, and recorded in the minutes of the Court.

Before O’Neall, J., at Charleston, May Term, 1850. The report of his Honor, the presiding Judge, is as follows:— “ This was an action on the case for a malicious arrest. “ The plaintiff lives in Sevier County, East Tennessee ; he is a man of good character; he traded in Charleston, and was a customer of the defendants. A hail writ, in the name of Kelsey & Deas, was sued out against the plaintiff, on the 19th of May, 1848, and was discontinued on the 9th June, 1848.

Before Frost, J., at Georgetown, Bpring Term, 1850. The report of his Honor, the presiding Judge, is as follows: “This was a new trial of an action of assumpsit upon a contract for building a bridge. The declaration contained a count on the special contract, and a count for work and labor. The defendants pleaded in abatement that the contract was made with defendants, jointly with sixteen other persons, named in the plea.

Before Frost, J., at Charleston, October Term, I860. The report of his Honor, the presiding Judge, is as follows : “ Assumpsit for money had and received. “ Archibald Broun, of Mobile, the plaintiff, being the factor of William S. Campbell, of Alabama, was instructed by Campbell to remit to Ker Boyce & Co., of Charleston, on his account, the sum of $6,373.

<p>On a bond to R., plaintiff was principal, and defendant surety: T., by letter to defendant, guaranteed plaintiff’s payment of the bond: defendant received a sum of money less than the bond, on a bill which had been remitted to him to be placed to the credit of plaintiff, but by mistake made a wrong entry, so that the fact of his having received the money was overlooked by all parties for some years. Defendant paid the whole bond, and then presented to T. an account for his whole payment : T., in ignorance of the fact that defendant had received money for plaintiff, paid to defendant the whole amount of the bond, and defendant gave to him full acquittances of all demands against either T. or the plaintiff. The mistake having been discovered, T. looked to defendant to refund to him an amount equal to what defendant had received for plaintiff; and for the sum so received by defendant, plaintiff brought this action of assumpsit for money had and received.</p> <p>Upon a case stated, the intention of plaintiff that defendant should apply the remittance to the bond, was inferred from circumstances; and independent of such intention, the implied request of plaintiff for defendant, as his surety, to pay the bond, was held to contain an authority for defendant to apply to the bond the plaintiff’s money in his hands: notwithstanding defendant’s acknowledgments made to T., in mistake of facts, it was held that defendant’s payment on the bond included the sum received for plaintiff, and that plaintiff could not recover what defendant had so paid, nor the equivalent sum paid through mistake by T., which plaintiff had not repaid to T., and for which defendant was liable to T.</p> <p>’Even if the conclusion should be attained that defendant had not paid on the bond the sum received, it was held that, by his payment, as surety for plaintiff, he acquired a discount against plaintiff: and that of the discount so much as was equ'al to the sum received by defendant had not been paid by T., but the equivalent sum, which defendant received from T., when T., after discovery of the mistake, disaffirmed it as a payment, became a mere advance by T. to defendant, which T. could recover ■ from defendant, but which plaintiff, before payment to T., could not recover.</p>

Before O’Neall, J. at Beaufort, Fall Term, 1850. The report of his Honor, the presiding Judge, is as follows: ■ “ This was an appeal from the decision of the Ordinary, admitting to probate the will of John A. Wooster, deceased. “ The appellants are the widow, brothers and sisters of the deceased. The appellee, the devisee and legatee of the testator’s whole estate, arid his executor, is his brother.

Before Frost, J., at Charleston, October Term, 1850. The report of his Honor, the presiding Judge, is as follows: “Samuel Kant, watchman in the upper yard of the Company, on Charleston Neck, stated that one afternoon the plaintiff’s cow strayed into the yard. At 5l¿ o’clock he looked round the yard, and did not see the cow. At 8J o’clock he let loose the dogs; they started a cow; he was not near; he opened the gate; the cow missed the gate, ran by him, and fell.

<p>Action on a policy of insurance effected upon a vessel of which the plaintiff was captain and owner; Mid that the protest of the captain and crew was inadmissible, as evidence for the plaintiff, in proof of the loss.</p> <p>Plaintiff offered to erase his name from the protest, and then give it in evidence in proof of the loss: Mid that it would still be inadmissible.</p> <p>One of the crew, who had signed the protest, was examined as a witness by the defendants; Mid that the plaintiff might give his declarations, in the protest, in evidence, to contradict his testimony.</p> <p>Plaintiff examined a witness by commission, and on the first trial read his deposition, — on the second trial he declined using it, and it was read by defendants; witness, under such circumstances, defendants’s, and plaintiff authorised to impeach his credibility.</p> <p>The authorities are conflicting upon the question, whether, when a vessel is seaworthy when she sails on the voyage insured, and her equipments add crew are then sufficient, and she is lost by the negligence of the captain and crew, the insurers are responsible; where, however, the captain is himself the owner and the insured, and the vessel becomes unseaworthy during the voyage, and he neglects, on reaching a port, to have proper repairs made, and, by reason of such neglect, the vessel is afterwards lost on the voyage, the insurers are not responsible.</p>

Before Withers, J. at Beaufort,'Fall Term, 1849. The action was trover for a negro, by name Isaac. The plaintiff called a witness to prove a bill of sale by his mother, Mary Kittles, for Isaac, and he did prove her signature to a paper which acknowledged the receipt by her from the plaintiff of $350 for Isaac, warranting title and soundness, and purporting to bear date June 13, 1843.

<p>Before O’Neall, J. at Charleston, May Term, 1850.</p> <p>These were separate actions on the case for negligence, mismanagement and lax discipline in keeping the workhouse of Charleston, by means whereof each plaintiff lost a slave.</p> <p>Nicholas, the slave of William Kelly, was confined in the workhouse, under sentence, by a Court of Magistrates and Freeholders, of imprisonment for three years, each alternate month in solitary confinement. George, the slave of John L. Holmes, and John, the slave of A. V. Toomer, were committed by their owners for safe keeping. At the periods when his sentence did not require that he should be kept in solitary confinement, Nicholas, who was proved to be a very bad, ungovernable and reckless fellow, and who held that he was not a slave, and that he owed obedience to no one, was allowed to be in the yard, and, in consequence, had full communication with George and John, and other slaves. On the 13th July, 1849, Nicholas, being in the yard where negroes for sale were kept, resisted an attempt made by one Gilchrist to take out a negro girl he had bought, and beat Gilchrist’s man-slave, Scotland, who was directed to take her out. Gilchrist reported the state of insubordination to the Mayor, who went to quell it, accompanied by several officers and two men of the guard, all without arms. In the attempt made to reduce Nicholas to order, he resisted, and struck the master of the workhouse, and George and John, and some other negroes in the yard taking part with him, the guard was overcome, several of them being badly hurt, and Nicholas, George and John broke out. They were recaptured in less than an hour, and restored to confinement. George, it was proved, had been entrusted, by the master, with the keys of some of the cells, and allowed to lock up the prisoners therein at night.</p> <p>The three slaves, Nicholas, George and John, were tried for the violence committed upon the white men, found guilty, sentenced to be hung, and executed.</p> <p>In Kelly’s case, there was a count for the escape of another slave, on which the plaintiff recovered. Upon so much of the case as related to Nicholas, his Honor, the presiding Judge, charged the Jury, that for the loss of Nicholas, in consequence of the crime he had committed, the council were not liable. It was no natural and necessary consequence of any negligence in keeping him, of which they might have been guilty. It was his voluntary criminal act, and for it they were no more liable than a master of a steam or other boat would be, for the voluntary act of a slave on board, in drowning himself, or in not escaping from water in the boat when he had it in his power so to do. Clark ads. McDonald, 4 McC. 223. Felder vs. The Rail Road Company, 2 McM. 403. The jury found according to his instructions, and allowed nothing for the loss of Nicholas.</p> <p>In the case of Holmes and Toomer, his Honor ordered the plaintiffs nonsuited. The plaintiffs appealed.</p>

Before Withers, J., at Charleston, May Term, 1849. Held: Griffin vs. Moore, (2 Kelly, 331,) that bail may render principal at any time,before final judgment against them on sci. fa. In New York, Gorham vs. Lansing, (2 Johns.

<p>In the City Court of Charleston, May Term, 1850.</p> <p>The report of his Honor, the Recorder, is as follows :</p> <p>“ In this case, I granted leave to the plaintiffs’s attorneys to file their declaration, take an order for judgment, and put their case on the inquiry docket. This was resisted by Mr. Campbell, on the part of the defendant, upon the grounds stated in a notice served on me, in his name, as the defendant's attorney. The circumstances, under and upon which the order was granted, were as follows: The writ, in this case, was issued to May Term, 1849, duly served, and no appearance entered by or for the defendant at that term. The further proceedings in the case was suspended at the desire and upon the application of the defendant, under an arrangement and understanding between the parties — the evidence and nature of which appeared by a certain letter written by the plaintiffs to their attorneys, Messrs. Petigru & Lesesne, which was brought to them by the defendant himself in person. The letter was dated July 2d, 1849, and was as follows:</p> <p>“Messrs. Petigru & Les'esne :</p> <p>Dear Sir, — We have made the following agreement with Mr. Ryan, to wit: on Saturday next, he will pay $100 on account of his note; and on that day, four months afterward, $100 more; and in four months after, the balance. And we have promised that no further steps shall be taken in the suit, upon the note, unless he fail to comply with the above terms ; but we are not to lose the benefit of having commenced at this Court.</p> <p>Yours sincerely,</p> <p>JOHN FRASER & CO.</p> <p>“ In pursuance of this understanding, proceedings were stayed. The first $100 was paid as stipulated; but the remaining payments were not made according to agreement, and the plaintiffs, on the 27th of April, 1850, within the year from the return of the writ, although two terms had intervened, filed their declaration, took an order for judgment by default, put the cause on the inquiry docket, and were about to take final judgment. It appeared to me entirely consistent with the strictest rules of practice, and proper that they should be allowed to do so. The farther proceedings, after the service of the writ, had been suspended at the request of the defendant; when this is the case, it does not lie in the mouth of the defendant, to object to the suspension. If the declaration had even been filed without leave or notice in the first instance, as in this case, I did not consider that, for that reason alone, it should be taken from the file and the proceedings set aside, but that, on application of the defendant, the Court would look into the facts, and if it judged a proper case for leave to file, would allow it to be done, or approve formally of, what had been already (perhaps informally) done ; and if the facts did not make out a proper case, would set aside the proceedings : that the leave to file might well be considered as granted nunc pro tunc, if the Court judged the proper case to be made out for such leave. It is proper to state that Mr. Campbell had entered an appearance in behalf of defendant, in the common appearance book, on the 18th May, 1850. No motion was made on the part of the defendant, by Mr. Campbell, founded on the merits of the case, or for leave to plead, or on the ground of surprise. The case was afterwards regularly called and disposed of, on the inquiry docket, and a final judgment entered up for plaintiffs for the balance of their demand.”</p> <p>The defendant appealed, and now moved that the decision of his Honor, the Recorder, be reversed, on the ground—</p> <p>Because the order of his Honor, the Recorder, permitting the declaration to be filed, and the case to be docketed, and ordered for judgment more than two terms after the return of the writ, was contrary to the rule of Court, and without the notice to defendant, required for such a motion by rule of Court.</p>

Before Frost, J., at Charleston, October Term, 1850. This was an action of trespass for killing plaintiff’s cattle. The plaintiff, it was proved, was the owner of a large herd of cattle — 1000 or 1500 head — which ranged over an extensive region of country. At the time the trespass complained of was committed, he had a drove of about 70 head ranging near Richard Phillips’s, on a tract of unenclosed land lying on Hell Hole Swamp, which Phillips claimed as his pasture land.

<p>The degree of care and vigilance, in ascertaining thdt a negro, representing himself to be free, is not a slave, which the law exacts of carriers dealing with negroes as passengers, is increased in proportion to the facilities of escape, which the carrying or transportation affords; for instance, the law does not exact the same high degree of care and vigilance from a Rail Road Company 'conveying a negro as a passenger from one place to another within this State, which it exacts from the master of a vessel transporting .one from a port in this State to a free State.</p> <p>In an action on the case by the owner of a slave against the master of a vessel for a negligent transportation of the slave, who -represented himself to be free, from Charleston to Philadelphia, whereby the slave escaped and was lost to the plaintiff, it was held, that the Circuit Judge was correct in charging the jury, that if the defendant knew that* the consequence of the escape of a slave to one of the free States, was practically the same as that of an ’ escape to England, where a slave coming within the realm is ipso fado free, the law exacted from the defendant ‘ the utmost care and vigilance that he should not give passage to a slave into a free State.’</p> <p>■And it -vvas further held that the jury, having found .for the plaintiff, adopted a proper measure of damages, when they found a sum. equal to the value of the slave, and the value of his hire from the time of the loss.</p>

<p>Before O’Neall, J. at Charleston, May Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows:— “ This was an action of assumpsit, brought by the plaintiff, to recover against the defendants, partners in trade, to whom he had made an advance of $6,016 95-100 on the 9th October, 1847, on 189 bales cotton, shipped by them to his correspondents, Glostein & Sons, of Bremen. The cotton, when sold there in February, 1848, netted 5804 rix dollars, equal to about $4571 96-100. The plaintiff claimed a balance due him; this, it appeared to me, from the proof, ought not to exceed $2140 79-100. There was some double charging of interest, probably as stated in the 5th ground of appeal, which I did not think should be allowed ; whether it was allowed by the jury I do not know. The plaintiff’s case was proved by George W. Glostein, Francis Gotting, and Adolphus Rodewald, witnesses residing in Bremen. They were examined by commission; their answers were returned in German. They were translated by a sworn interpreter, Mr. Morris Levin, in a very clear and intelligible way. I could not, at the trial, and cannot now, perceive any just objection to either the execution of the commission, or the manner in which the Court and Jury were informed of its contents.</p> <p>“ The question about the allowance for brokerage and commissions on the bill drawn by the plaintiff, on Glostein & Sons, for the advance, depended so much on commercial usage, that it was left to the jury to answer it.</p> <p>“ It is true, as said in the 5th ground, that there were charges in the plaintiff’s account, for insuring, mending, handling, and selling the defendant’s cotton — and the witnesses said that these charges were either paid, or charged according to mercantile usage. By which I understood, when the charges were for services rendered by others, they were paid by Glostein & Sons, when by themselves, they were charged according to usage.”</p> <p>The jury found for the plaintiff. The defendants appealed, and now moved for a new trial, on the grounds:—</p> <p>1. The plaintiff had sued out a commission to N. W. Glostein, in which defendant had joined. The persons to whom it was directed, returned the answer of the witness in German, annexed to a German translation of the English interrogatories and cross interrogatories. The defendant objected that the .return should have been in English, or accompanied by an English translation, and the objection was overruled.</p> <p>2. A native of Sweden, who professed to know German, was called to render orally the sense of the German manuscript to the jury. The defendant objected, that a sworn translation should have been offered, and the objection was overruled.</p> <p>3. The action was founded on a receipt in the following term : — Received, Charleston, 9th October, 1847, from Mr. H. W.. Kuhtman, six thousand and sixteen 5-100 dollars in advance,, on the above cotton.</p> <p>$6016 05. (Signed) Brown & Goldsmith.</p> <p>The plaintiff charged interest on the whole sum advanced; also, on the sum of eighty dollars for commission and brokerage and correspondence, about a bill drawn by Kuhtman, on Gols-tein, for the same sum of 6016 05 in rix dollars. The defendant objected, that he was not liable to Kuhtman for any sacrifices which he might have made to raise the said sum of $6016 05, but simply to the re-payment of the sum with interest, and the objection was left to the jury — who found a verdict for the whole amount.</p> <p>4. The plaintiff put in an account charging interest on the sum advanced to Brown, by Kuhtman, also on the sum advanced by Glostein to Kuhtman; the defendant objected to the statement of interest as exorbitant, and the objection was sustained by his Honor, but the whole amount was allowed by the jmy-</p> <p>5. The plaintiff rendered an account of various sums as paid in Bremen, for mending, insuring, handling and selling the cotton, over and above a commission of three and a half per cent, and the witness who interpreted the German manuscript, stated that the witnesses, Glostein and his clerk, swore that those charges had either been paid or were usual. The defendant objected, that these items were not proved, and his Honor left the objection to the jury, who found the whole amount.</p>

<p>A grantor, who executes a conveyance of his land to defraud his creditors, is bound thereby, and, in an action against him by the grantee or his heirs, to recover the land, will not be allowed to show the fraud of the grantee and himself, — the want of all real consideration, — and the intention of both parties that the title should not pass, — for the purpose, either of invalidating the deed, or of availing himself of the maxim, in pan délido potior est conditio defcnckntis, ant possidentis.</p> <p>If the consideration money paid by the grantee to the grantor at the time of the execution of the conveyance was, in fact, the'grantor’s own money, and was used as a mere blind to the subscribing witnesses, still there would be no resulting trust in favor of the grantor.</p> <p>Such a grantor, for the purpose of raising the presumption of a re-conveyance, was not allowed .to show the fraud and intention of the parties — that the money paid was the grantor’s own money — that the creditor, to delay whom the conveyance was executed, had been paid — that the grantor had been allowed to remain until the death of the grantee, near ten years, in the undisturbed possession, use and enjoyment of the land, and that the grantee had always, by both language and conduct, clearly disclaimed title.</p> <p>If plaintiff, in trespass to try title, can make out a location without a survey, he may, if he chooses, proceed without one.</p> <p>In a declaration in trespass to try title, though it is better, it is not necessary to describe a close by its abuttals, or to give it any precise identity: — it may be described as a close lying in Sumter district.</p> <p>Plaintiffs in trespass to try title declared for a plantation and close lying in Bumtev district — in one count giving boundaries, in others none: — they showed title by proving two deeds of conveyance from defendant to their ancestor for fifteen or more tracts of land described by reference to the original grants, and they proved that defendant resided on and used some of the lands embraced in the conveyances, claiming the rest as parcel of his entire possessions — that the several tracts in dispute lay adjoining each other, and called for each other: on this proof, the jury found for the plaintiffs “the several tracts of land contained in the deeds of conveyance given by” the defendant, &c. “bearing date,” &c. and the presiding judge certified the deeds as those given in evidence, and referred to in the verdict : — on appeal Mid, that the description in the verdict sufficiently corresponded with the description in the declaration; that the verdict was, substantially, a finding for the plaintiffs of the land in dispute; and that it was sufficiently certain.</p> <p>In executing a writ of habere facias possessionem,, it is the plaintiff’s duty to point out the land to the sheriff, and to take possession, at his peril, of only so much as his judgment covers.</p>

Before O’Neall, J., at Abbeville, Fall Term, 1849. The report of his Honor, the presiding Judge, is as follows: “ In this case, (which was an action of debt on a sealed note,) the defendant signed the note sometime after the first obligor had signed it.

<p>Before Withers, J., at Spartanburg, Fall Term, 1850.</p> <p>Summons, issued 3d December, 1849, on a magistrate’s judgment, dated 28th July, 1845. Plea, the statute of limitations. Decree for defendant, which, on appeal, was sustained by his Honor, the Circuit Judge.</p> <p>The appeal was now brought before this Court.</p>

<p>Before Withers, J. at Lexington, Spring Term, Í851.</p> <p>In the case of Townsend, Arnold Co. vs. Kleckley, (ante p. 206) the Court having ruled that the sheriff was bound to regard as an existing lien, to its full amount, the execution founded on the judgment of Mich. Drafts and others, sureties of Meetze; and, in the opinion delivered in the Appeal Court, it having been suggested, that proper proceedings should he had to vacate or reduce the judgment, if less was due upon it than appeared upon its face, Townsend, Arnold & Co. submitted the following motion, supposing such to be the proceeding indicated.</p> <p>On motion of L. Boozer, attorney for plaintiffs in the case of Townsend, Arnold & Co. against Henry A. Meetze, it is ordered that Mich. Drafts and the other plaintiffs in the judgment confessed to them by Henry A. Meetze, do shew cause on the first day of the next term, why the said judgment so confessed to indemnify them as sureties to the official bond of H. A. Meetze, as Commissioner in Equity for Lexington district or otherwise, should not, so far as respects the judgment and execution aforesaid of Townsend, Arnold & Co. against Henry A. Meetze, and other judgments and executions against H. A. Meetze, junior to the said confession, be vacated, except for the amounts for which the said sureties have been actually made liable as sureties to the said official bond or otherwise ; and that they set forth and shew upon oath, the amounts for which they have actually been made liable in consequence of their said suretyship, what defalcations in office have been made by H. A. Meetze, and what sums they have paid in consequence thereof.</p> <p>Which motion his Honor refused to grant: whereupon, the plaintiffs, Townsend, Arnold & Co. appealed, upon the ground, that the said order ought to have been granted, no other course being open, in this Court, whereby the true amount due upon the said confession of judgment can be ascertained, and the proceeds of the sales of H. A. Meetze’s property can be justly and legally distributed among his judgment creditors.</p>

<p>To restrain the execution of the sentence of a slave convicted of robbery, a Judge at Chambers granted a writ of prohibition, on the grounds — 1st, that the offence proved was not robbery; 2d, that a former conviction, for an assault and battery, upon the same facts, was a bar to the prosecution for robbery: on appeal, held that prohibition would not lie on the grounds stated, and that the remedy was by appeal under the Act of 1833.</p> <p>Asa general rule, prohibition will not lie to correct mere errors of law and fact, where the person and subject matter are within the jurisdiction of the inferior Court.</p> <p>In some instances, however, where the law furnished no other remedy, the rule has been relaxed, and, to prevent a gross outrage upon law, errors, in relation to matters within the jurisdiction of the inferior Court, have been corrected by prohibition.</p> <p>The Act of 1833, allowing an appeal to a Judge in case of a slave or free person of color convicted of a capital offence, has superseded the authority of all those cases, decided before the Act, wherein errors, in matters within the jurisdiction of courts for the trial of slaves and free persons of color for such offences, have been corrected by prohibition.</p> <p>The power of a Judge, in case of an appeal from the judgment of a Court convicting a slave or free person of color of a capital offence, is ample, and may be exercised whether the error be of law or fact.</p>

<p>Dower, before it is assigned and set apart to the widow, is not an estate or interest in land, which can be assigned or sold, so as to vest the legal title in the assignee or alienee, and enable him to sue therefor in his own name.</p> <p>The Court, however, will take notice of and protect die rights of such an assignee, and sustain an action, for his benefit, in the name of the widow.</p> <p>The alienee of L. brought trespass to try title for the land; pending the action, the defendant procured from the "widow of L. a conveyance to him of all her estate in the land; the alienee recovered, and the defendant, then, for his own benefit, brought, in the name of the widow, an action for her dower against the alienee. Held, that the recovery in the action of trespass to try title was no bar to the action for dower.</p>

Before Frost, J., at Barnwell, Spring Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ Trespass to try title. The plaintiffs produced a grant to Luke Breen and Henry Hughes for 12,550, covering the land sued for, dated 5th June, 1786.

Before Evans, J., at Marlboro’, Extra Term, 1850. This was an action on the case for obstructing a ditch. The lands of the parties were adjoining. The plaintiff’s land, in 1817, belonged to her husband, one Alexander Lamb. The defendant’s land, then, belonged to one Bartholomew Cosnahan. Near Lamb’s house were some ponds, which, in wet seasons, were filled with water, and produced sickness.

Before Frost, J., at Darlington, Spring Term, 1850. This was an action of assumpsit on an open store account. Samuel J. Wilson had been a merchant, and .had made a general assignment for the benefit of his creditors. The defendant and Timothy Dargan were physicians, practising in co-partnership. Wilson had a store account against each of the co-partners, and they had a co-partnership medical account against Wilson.

Before Frost, J., at Spartanburg, Fall Term, 1850. This was au action on a promissory note against the defendant, who had joined William Clark, as surety, in making the note, for one thousand dollars, dated the 11th of March, 1845, and payable to the plaintiff, one day after date. ' On the. note were indorsed, in the writing of the plaintiff, the following credits f 139, 16th April, 1845; $523 50, 4th May, 1845, and $5, 6th September, 1846.

<p>Before O’Neall, J., at Barnwell, Fall Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ These cases were sum. pros, in trespass quare clausum fre-git, for entering the plaintiff’s plantation, throwing down his fences, and breaking his rails. On-the trials, the presiding Judge gave a decree for $2 in each case, and this is the entry on the docket. On the back, of the procesé, in each case, is written by the plaintiff’s attorney “decree for the plaintiff for $2 and costs,” and signed by the Judge. This memorandum of the decree thus signed, is that copied in the minutes. It thus becomes the judgment of the Court. Immediately on the adjournment of the Court, the plaintiff taxed his costs, and sued out ca. sais. for the damages and costs, amounting to f84 50. The defendants were arrested, and their attorney being sick, they proposed that the matter should be postponed, until he could move to set aside the ca. sa’s. This was peremptorily refused, and they paid the money, under a notice to retain the money until it could be brought to the attention of the Court. Being required to do so, the sheriff paid the money to the plaintiff’s attorney, under the understanding that it should be refunded if it should be decided that the defendants were not properly charged with costs. Subsequently, on motion of the defendants, the clerk proceeded to retax the costs, and decided that the defendants were not liable for the same. Rules have been served on the sheriff and attorney, to shew cause why the money collected for costs should not be refunded. The case came up on the rules against the sheriff. I have thought a good deal about this matter. The only difficulty I have felt, is whether the ca. sa’s. should not have been set aside on rules against the plaintiff. But as the facts are all out, and as the sheriff wrongfully collected the money, (after notice to stay his hand,) if the defendants were not liable for the costs, I shall proceed to decide the question.</p> <p>“ By the Act of the 13th June, 1747, sec. iv. (P. L. 214,*) it is declared ‘ if any person or persons, who shall commence or prosecute any action in any of (he Courts of law in this province, shall not recover above the sum of £20 current money, such person or persons shall lose all his, her, or their costs of suit.’ To this provision, exceptions have been made by subsequent Acts ; but this case does not fall within them, it is under the law just cited. £20 currency is about equal to $12 84. It is plain, therefore, that the decrees of $2 will not carry costs. But it is supposed that the Judge’s decree will have that effect. At law, costs depend upon the result of the case; they go as by law they are given or refused. The 6th sec. of the Act of 1769, (P. L. 270,*) creating the process jurisdiction, makes no alteration in this respect. The authority given to the judges ‘ to give judgment, and award execution, together with costs,’ means no more than that, in this new jurisdiction, they may give the judgment, and award the execution which followed in the usual common law causes, and that costs should be also given, when, by law, the party would be entitled to them. I am, therefore, satisfied that the defendants are not liable for the costs. The rules are made absolute that they should be refunded.”</p> <p>The sheriff appealed, and now moved that the judgment of his Honor be reversed, on the grounds :</p> <p>1. Because his Honor, Judge Withers, was correct in allowing the costs, and if his judgment was erroneous, the defendants should have appealed.</p> <p>2. Because the judgments and executions in the above stated cases were regularly entered up, and duly recorded, and have not been legally set aside or impeached, but still remain in full force and virtue, as the records of the Court.</p> <p>3. Because the judgments and executions in the above stated cases have been fully paid, and the executions returned satisfied, and the parties are out of Court, nothing remaining to be done.</p>

<p>Prima fade, he who enters upon land, under a contract to purchase, admits the title of the vendor to be good; and if he fails to comply with the terms of the contract, he, or any one holding under him, cannot, in an action by the vendor to regain possession of the land, put the vendor to proof of his title,</p>

Before O’Neall, X, at Spartanburg, Spring Term, 1851. These were actions of trover for slaves. The plaintiff claimed by title older and better than that of one Littlefield: Tucker had purchased at sheriff’s sale, under a mortgage or execution against Littlefield: Parks claimed under one Clark, who had purchased from Littlefield. Littlefield’s declarations, made while in possession, were given in evidence by the plaintiff, and afterwards by the defendants.

Before Evans, J. at ■ Williamsburg, Bpring Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ This was a rule on the sheriff. The facts were these On the 30th October, 1849, the defendant confessed a judgment in Charleston to Hyatt, McBurney & Co. for $10,758 43. A fi. fa. was lodged with the sheriff of Charleston on the same day, and with the sheriff of Williamsburg oh th.e 28th March, 1850.

Before Withers, J., at York, Extra Term, 1851. The report of his Honor, the presiding Judge, is as follows : “ The action was in case.

Before Frost, J., at Orangeburg, Spring Term, 1851. The report of his Honor, the presiding Judge, is as follows: “The declaration in assumpsit contained a special count, which alleged that the plaintiff had sold a slave, Bob, to the defendant, in consideration of a note of the defendant, to be delivered to the plaintiif, for $450 ; and the breach was charged in the non-delivery of the note.

<p>Before O’Neall, J. at Laurens, Spring Term, 1851.</p> <p>This was an action of trover, commenced 25th Sept. 1848, to recover damages for the conversion of four slaves, Milly and her children, Sam, John and Rachel.</p> <p>Milly, by the will of James Kolb, dated 13th Oct. 1802, was bequeathed to his daughter, Elizabeth Lawson Kolb, for life, and after her death to her children. Elizabeth Lawson Kolb married Clark Robinson, and died in Sept. 1824, leaving the plaintiffs, her only children, her surviving. In 1832 or ’33, Clark Robinson sold Milly, Sam, John and Rachel to the defendant, and he shortly afterwards sold them in Alabama.</p> <p>“ The great struggle in the case,” says his Honor, in his report, “ was, as to the age of James A. Robinson; for it was fully proved that Eliza was born in 1820 : she had been, therefore, of full age more than four years before suit was brought, and was barred by the statute.</p> <p>“ It'was most abundantly proved, in the course of the case, that Janies A. Robinson or Alphonsus James, as he was styled in the family register', was born 29th January, 1824; he was, therefore, not barred at the issuing of the writ, by- four months. At first, it is true, I admitted proof of Clark Robinson’s, the fa,ther’s, declarations as to the plaintiffs’s ages, and also an extract from the' family register. This, it- seemed to me, was clearly admissible to-prove age, and more especially, as the defendant claimed under the man making the declaration, and having the family register in possession. Afterwards, .in the progress' of the casé, Clark Robinson was examined for the defendant.' The family record was produced; it had be,en mutilated by tearing off the 4’ or other figure. - Clark Robinson affirmed it had been done accidently, by turning over the leaf; he did not undertake to say what was the age- of the plaintiff, James A. ’</p> <p>“James Finley proved. that he saw' the record when it was perfect, ‘ 29th January, 1824;’ so did S. W.- Robinson, a half-brother of the plaintiff. He proved that -the figure ‘ 4’ has since beentorn off To . James A. Smith, Clark Robinson, in the fall of ’48, stated that the plaintiff, James A., was born in 1824; Mr. Wallace stated that, in 1829, James A. appeared- to be four or five years of age. It abundantly appeared that Clark Robinson had declared he. would do all he coiild to defeat the plaintiffs.”</p> <p>. ■ The jury found for .the 'plaintiff,- James A., one half of the value of the' slaves, and hire from the lodgment of the writ, and against the plaintiff, Eliza C., on the plea of the' statute. ■</p> <p>The defendant appealed, and now moved for a new trial — the 2d and 3d grounds of appeal' were as follows : '</p> <p>2d. Because his Honor,'the presiding Judge, (it is respectfully submitted,) erred in ruling that the declarations of the father of the plaintiffs were admissible to prove their ages, when the father was living, and might have been examined to that point by plaintiffs.</p> <p>3d. Because his Honor also erred in permitting plaintiffs’s witnesses to prove the contents of the family record of Clark Robinson, although the original was in existence, and might have been produced by the plaintiffs.</p> <p>cited 1 Green. Ev. § 99.</p> <p>cited 2 Stark. Ev. 610 ; Story on Agency, §309, 310, 311.</p>

Before Whitnee, J., at York, Spring Term, 1851. This was an action of trespass quare clausum fregit, for ploughing up about one-fourth of an acre of cotton which the plaintiff had planted. The title under which the plaintiff entered, for she was not the owner of the land — her possession since 1845, and the trespass, were proved. The defence was stated to he a better title in defendant, and an acknowledgment of tenancy by plaintiff.

Before FRost, J., at Edgefield, Bpring Term, 1851. In this case the verdict was for' the defendants, and the plaintiff gave notice that he would move for a new trial, on several grounds.

Before Evans, X, at Chesterfield, Spring Term, 1851. This was an action of assumpsit on a contract for building a house. There were several counts in the declaration.

Before Whitnee, J. at Union, Spring Term, 1851. This was a sum. pro. to recover $35, money paid by plaintiff to defendant by mistake. In a case in equity — bill of interpleader — of Thomas M. Coin, administrator of Mary Means, against Wm.

Before Whitner, J., at Union, Spring Term, 1851. This case — covenant for building a house — first came before the Court on special demurrer to the declaration, (see ante p. 196.) By the terms of the agreement, defendant was to furnish the materials, and plaintiff to do the work; and the following provisions, among others, were contained in the instrument: “ The two windows within the portico to have pannels underneath to open and shut, so as to be used as doors. “ Every…

Before Evans, J., at Barnwell, Spring Term, 1849. This was an action of trespass to try title. The plaintiffs derived title from one Twining, who removed from this State, and died in Georgia in 1818, leaving a widow and an only child, the now wife of J. 0. Hill. The widow conveyed her share of the land to the plaintiffs.