Volume 39 — South Carolina Law Reports

Before O’Neall, J. at Lancaster, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ The first of these cases was an action of trespass for removing a house from a lot, in the village of Lancaster; the second was an action of trespass to try titles to the same lot. Gooch, the defendant in the first case, is the agent of Richardson, the plaintiff in the second.

Before Whitner, J. at Fairfield, Spring Term, 1851. Trespass to try titles. The plaintiffs had a verdict; and the defendant appealed, and now moved for a nonsuit or new trial.

Before O’Neall, J. at Union, Fall Term, 1851. The plaintiff declared upon a note made by James M. Gad-berry. The declaration also contained one of the common money counts. The note offered in evidence was signed 4 Gadber-ry and Fant.’ It was proved that there was no such firm, and that the defendant made the note. It was objected that the allegata and probata did not correspond. A motion for nonsuit was sustained on that ground.

Before Withers, J. at Marion, Fall Term, 1851. Covenant upon a warranty in a deed of conveyance, by the defendant’s intestate, of a parcel of land, wherein the válue of dower had been recovered against the plaintiff. He sought reimbursement. His Honor held that the right of dower having been asserted was a breach of the covenant by the intestate.

Before Frost, J. at Laurens, Fall Term, 1851. Case for flooding plaintiff’s land. The plaintiffs moved the following order. “ On motion of Sullivan, plaintiffs‘s attorney, it is ordered that James G. Gibbes do make a survey of the mill-pond of the defendants and such of the adjacent lands of the parties as may be necessary to ascertain the rise in the stream complained of by the plaintiffs.

Before Frost, J. at Laurens, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “The action was trover. The defendant hired to the plaintiff George, a young negro man, for two years, for the sum of one hundred and forty dollars. The plaintiff was to instruct George to make shoes. George was sent by the defendant to the plaintiff.

Before Withers, J. at Marion, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ The action was in case, for the recovery of damages, arising from a gun-shot wound received by Richard, the plaintiff’s slave, while on board the steamer Darlington, of which the defendant was captain or master, and which was navigated by him, on the Pee Dee -river, in a business carried on between Cheraw and Charleston, stopping at the intermediate landings.

Before Withers, J. at Darlington, Fall Term, 1851. Assumpsit for overseer’s wages.

Before Withers, J. at Marion, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “This action was in trespass to try title.

Before Fkost, J. at Laurens, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ This was an action on a sealed note of the defendant, dated January 1, 1847, for $ 183 47, payable to S. A. Dunn or bearer. Dunn assigned the note, by indorsement, to Daniel. Daniel had purchased from Washington, two slaves; and, in part payment, had delivered this note, and another, of one Caldwell, to Washington, and guarantied the solvency of Dial and Caldwell.

<p>No one lias a right to kill a slave committing a trespass.</p> <p>A master is liable for the act of his servant, done in the course of his employment about his master’s business.</p>

Before O’Neall, J. at Chester, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ This was an action on a note of hand, made on the 30th July, 1844, by James B. Davis, W. K. Davis, B. F. Davis and Nathaniel Holly, to Eli Cornwell, for $5572 08, with interest from the 18th August, then next ensuing, due one day after the date. “ This note James B. Davis, who was the principal and who was released by the defendants, testified was the renewal of a…

Before Frost, J. at Pickens, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ This action was brought on a note of the defendant for one hundred dollars, payable, one day'-aft|r dafi^to A. M. Folger or bearer, with interest after si^'pícinthsTroi^ de|e. The consideration of the note was the a^cppnt of; Forger %>r medical servi ces, rendered to the defendant. ip'Thekfpte vfas tjiinsferred to the plaintiff after it was due. £1 3 “ The defence…

Before O’Neall, J. at Chester, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ This was an action of replevin. The landlord, W. R. Davie, avowed under a distress warrant, for rent arrear. “ The facts necessary for a decision of the case, are as follows. The late F. W. Davie was tenant for life, of the land: the avowant was tenant in remainder. F. W. Davie died 9th of April, 1850.

<p>Before Frost, J. at Marion, Spring Term, 1850.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The plaintiff had recovered judgment against the defendant, in March Term, 1849 ; .and the defendant having left the State after the judgment was rendered, the plaintiff sued out this suit in foreign attachment on the judgment, and garnisheed many persons. Two of the garnishees made returns, that they had no effects of the absent debtor, and two made returns, admitting that they had choses in action received from the absent debtor, which, however, they claimed to retain as creditors in possession, and by assignment of the absent debtor to them, made in payment of their demands against him. Notice was given of the intention of the plaintiff in attachment, to contest these last two returns.</p> <p>“ On behalf of the garnishees, a motion was made to set aside the writ in attachment. The motion was granted, because the law and practice of the Court do not permit a fresh suit to be brought on a judgment, immediately after it has been rendered, nor during the period in which the plaintiff may sue out execution. If such suit cannot be brought by a common capias, neither can it be by a writ of foreign attachment. The Court must take notice of a judgment, recovered in its own juridiction, and would, on motion, at the instance of the defendant, set aside process, sued out on the judgment to recover a second judgment, as nugatory and oppressive. This case seemed not to be within the rule, that a garnishee cannot except to any irregularity in the proceedings against the absent debtor. The rule does not apply to process prohibited and void; and the Court will protect the garnishee against an expensive litigation with the plaintiff in attachment, when the Court is informed that his action is tortious. It was contended that although a suit on an effective judgment may not be brought by a common capias, yet it might be by attachment, in order to give the plaintiff a remedy against the property of the defendant, absconding after judgment, which a fi. fa. cannot reach. But tlie law has given bail as a security against a debtor who may abscond after a suit is brought against him; which is sufficient. At any rate, the attachment Act was not designed to afford relief in such case.”</p> <p>The plaintiff appealed, on the grounds,</p> <p>1. Because, it is submitted that neither the garnishee or absent debtor, at this stage of the proceedings, had a right to set aside the writ for the causes alleged, nor could the absent debtor have made such a motion, if he had appeared and entered special bail.</p> <p>2. Because the plaintiff had a right of action by proceeding in foreign attachment to attach the choses in action of the absent debtor, on his judgment against him, though the same had been but twelve months previously recovered.</p> <p>on the 1st ground, cited Rice vs. Beers & Bunnell, 1 Bice Dig. 76; 2 N. & McC. 323; 1 McC. 116; 1 McC. 345; 2 Bail. 209; 1 Hill, 229; Harp. 368; 3 McC. 347 ; 1 Tidd. Pr. 531-2; 5T.B..9; 6 T. R. 455; 5 B. &. Ad. 903. On the 2d ground, he cited 2 Strob. 347; 1 Bail. 449 ; Wheat. Selw. 445 ; Cowp. 72; 2 Bl. R. 782; 14 Mass. R. 378; 2 N. & McC. 323; 2 Gilman, 424.</p> <p>cited 1 Bail. 185; 2 N. & McC. 130; 1 Tread. 83; 3 McC. 347; Dud. 219 ; Harp. 127; 1 Bail. 449 ; 2 Bail. 303; Cheves, 6; Relph vs. Nolan, l Rice Dig. 78.</p>

Before Frost, J. at Barnwell, July, Extra Term, 1851. The report of his Plonor, the presiding Judge, is as follows. “This was an action of debt, on Ihe administration bond of Lucy D. Peeples, administratrix of Darling P. Peeples, which bore date the 18th September, 1829. Lucy D. Peeples died about sixteen years ago. George R. Odom and Allen Moye were her sureties in the bond.

<p>A motion to plead double may be granted "at any time so as not to operate a surprize on the plaintiff.</p> <p>Debt on an administration bond: the declaration set out the condition and assigned breaches : the plea traversed the breaches, affirmed that the administrator had in those particulars performed the condition and concluded to the country: — held that the plea was good.</p> <p>Where an administrator has removed from the State, and he and his sureties are summoned to account as directed by the 9th sec. of the Ordinary’s Act of 1839, a surety who appears and defends the suit, is not concluded by the Ordinary’s decree against the administrator, nor by the judgment of the Court of Equity affirming, on appeal, the Ordinary’s decree: such decree is only prima facie evidence against the surety.</p> <p>The surety may show that the distributee had been paid before the Ordinary’s decree in his favor was rendered.</p> <p>Before the Ordinary, and before the Chancellor, on the appeal, certain evidence to show payment was given and held insufficient: on the trial before the jury the circuit Judge permitted the same with additional evidence to be relied on in proof of payment: held that such permission was proper.</p>

Before Frost, J. at Barnwell, July, Extra Term, 1851. In the case against Hansford Parker, the report of his Honor, the presiding Judge, is as follows. “ This was an action of trespass to try title. The plaintiffs produced in evidence, a grant to Luke Breen and Henry Hughes, of the 5th June, 1786, for 12,555 acres of land on Saltketcher river, in Orangeburg district. The grant was located, and the land sued for shewn to be within the limits of the grant.

Before O’Neall, J. at Barnwell, Fall Term, 1850. The report of his Honor, the presiding Judge, is as follows. “ John Bailey, the father of the defendant, was once the owner of the land in dispute. He has been dead near twenty years. Some time before his death, he stated to a witness (Jefcoat) that the land belonged to John, the defendant; that he had paid oif a mortgage which was upon it, and that it was his.

Before Frost, J. at Greenville, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ The action was brought to recover ten instalments on 250 shares in the Greenville & Columbia Rail Road Company, held by the defendant. It was not denied that the defendant had subscribed for 250 shares and had paid the first instalment.

Before Frost, J. at Greenville, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ The action was brought to recover ten instalments on twenty-five shares. It was not disputed that the defendant had subscribed for that number. In the certified list of subscribers, made by the commissioners, the name and number of shares of the defendant are entered, with the payment of one dollar on each share.

<p>Before Whitner, J. at Fairfield, Spring Term, 1851.</p> <p>Debt on bail bond given by John B. Thompson as principal, and the defendant and Robert Quigley as his bail. Defence,— a render to the sheriff before return of ca. sa.</p> <p>John B. Thompson, examined by commission, though objected to, was allowed by his Honor to testify in behalf of defendant. (a) The verdict was for the defendant; and the plaintiff appealed, and now moved for a new trial, on the grounds, that Thompson was an incompetent witness, — and that the evidence was wholly insufficient to prove a render.</p>

Before O’Neall, J. at Union, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “The plaintiff was a creditor of Jefferson Gault, an absconding debtor. She levied an attachment on a mare, wagon and gears.

Before Warblaw, J. at Edgefield, Fall Term, 1851. The report of his Plonor, the presiding Judge, is as follows. “ In 1845, the plaintiffs became sureties of James Cochran, for money borrowed by him from the Bank of Hamburg to establish a weekly newspaper, called the Hamburg Republican. For their indemnity, they took from him a mortgage of his printing press, type and the appendages of his printing establishment.

Before EvaNS, J. at Barnwell, Spring Term, 1849. Assumpsit to recover $3100, part price of certain negroes sold and delivered by Gantt & Mortimer, agents of the plaintiff’s testator, to the defendant. Defendant had paid the money to Gantt, and the question made in the case was, whether that was a payment to Gantt & Mortimer for the plaintiff’s testator, or, whether it was a mere deposite with Gantt as agent of the defendant.

<p>Before Evans, J. at Marion, Spring Term, 1851.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was an action on the case, for obstructing a private way-leading through the defendant’s land from the plaintiff’s plantation .into the public road from Darlington to Marion Court House. That, as far back as any witness could remember, there has existed a road from the public road passing by the plaintiff’s plantation, and going down to the river at the mouth of Black creek, used by the plaintiff and those under whom he claimed, and by persons residing in the river swamp, in what the witness called the Duck Ponds, was clearly established by the witnesses. The plaintiff has resided at his place since 1831, and before him it was owned by the Hindses, by all of whom a road was used over the land now owned by the defendant, until recently, when it was closed up by a fence, and a road left open for those who lived beyond, through the defendant’s fields, with gates on each end. The plaintiff claiming to have a legal right of way, refused to accept the substitute and brought this action. The dispute was about the identity of the way claimed, and the adverse character of its use. The land over which the disputed road passed, was, formerly, the property of one Samuel Brown, who lived on the river and used the road to pass out of the swamp. He died many years ago. From him it descended to his son, Jerry Brown, who settled on the land, and cleared a field about 1825. He built a house and resided on the land. Before this it was woodland. In 1834, Brown sold to John McClenaghan, who enlarged the clearing and extended the fences as hereinafter stated. From him it descended to the present defendant, his widow. The road was 'several times changed by the owners of the land, and I find great difficulty in presenting an intelligible report of the case, for the want of a plat representing the road as described by the witnesses. Some of the witnesses knew the road as far back as 1801. It was then an old and well beaten road, and no change was made in it until Jerry Brown settled on the land about 1825, but during all that time it passed through woodland, and there was no proof that any work was done on it, except occasionally a log was removed which had fallen across it. At the time Brown settled on the land, it ran nearer to where he built his house than it now does. At this point he turned the road, to the west on the swamp side. The witnesses differed about the site of the road at the time. Some thought the road was on the east side of Brown’s house, and entered the public road near where a gin house now is, and some distance to the east of where the disputed road intersected it. Others said it passed on the west, and that Brown only threw it out a short distance further on the west, towards the swamp; whilst another witness said there were two roads, one on the east and the other on the west. Those going up towards Darlington used the west, and those going towards Georgetown or the river, used the east road. The latter, Brown shut up entirely. The former, he changed a little. I thought it likely this last statement was correct. But all agreed that, at all times, there was a passage around Brown’s field, which was travelled by those owning Pearce’s land, and others living on the Duck Ponds. There was also some difference in the recollection of witnesses as to whether Brown, when he shut up the old road, did not make a new road around his fence. Some said he did, and others that he did not. According to some of the witnesses, Brown made other changes in the road about 1832, further up towards Pearce’s. But after Mc-Clenaghan purchased the land, it was put back on the old site at this point, and a lane made by a fence on each side. Mc-Clenaghan was a merchant, and had an interest in keeping open this road for the use of his customers from the.Duck Ponds and the adjoining neighborhoods. This lane continued until it was shut up by the defendant in 1848. It was proved that McClenaghan’s overseer had worked on the road with Mc-Clenaghan’s hands and by his direction. And, on one occasion, when Pearce complained to him that the road was out of repair, he told Pearce to tell the overseer to make it passable. It was also proved, that Pearce had, on several occasions, worked on the road, by cutting down bushes and stumps and filling up washy and boggy places, whilst the land belonged to McClenaghan.</p> <p>“ In 1842, Pearce’s land, was sold under a ji. Ja. to satisfy a debt due to McClenaghan. At this sale, McClenaghan was the purchaser, and the sheriff conveyed the land to him, in trust for the sole and separate use of Mrs. Ann Pearce, wife of the plaintiff, during her natural life, and after her death to her children. Since the death of McClenaghan, Dr. Johnson has been appointed trustee, in the room of McClenaghan, and has given bond to perform the trust. He has settled with Mrs. McClena-ghan, as the administratrix of her husband, in which settlement was included the price McClenaghan paid for the land. He accounts, annually, with the commissioner for the proceeds of the crops, but Pearce is in possession, and has the entire management.</p> <p>“ The foregoing presents such a view of the points raised in the case, as will enable the Court to comprehend the questions made in the notice of appeal. On the first ground, I charged the jury that a private way was such as belonged to and was for the use of individuals, one or more; but a public road was such as the public in general used. It was not essential to prove they were laid out by any order of those in authority, or be worked on by the commissioners of roads, but I thought it essential that a public road should have a public character— be kept in repair by contributions of the labor of those who used it, and, in general, have their termini at a public road or some public place, as a town, village or public landing, so as to open it to the use of the traveller as well as the neighbors. Such was the road in Sartor’s case, and other cases where a public road had been established by prescription.</p> <p>“II. That, in general, when the owner of the land over which a private way passed, became also the owner of the tenement to which it was appurtenant, this was in law an extin-guishment or merger of the right. But I did not think the principle applied where he was seized for the use of another.</p> <p>“ III. That Pearce ‘being in possession, could maintain the action without proof of further title to the land.</p> <p>“ IY. Of the allegations in the declaration, I have no recollection, and do not remember they were brought to my notice. It was clear Pearce had not been 20 years in possession. His possession commenced in 1831. But he claimed through the Hinds family, who had been in possession for at least 20 years before. No title deeds were produced” but parol evidence was given of the succession of tenants, claiming through each other.</p> <p>“ Y. The jury returned into Court with a verdict for plaintiff merely. They were asked if they intended to give damages, and were told they should find some damages. They weir allowed to go back and amend their verdict, by finding a small sum for the plaintiff.</p> <p>“ YI. On this ground I have nothing to say, as I do not know what description of the way is contained in the declaration.</p> <p>“ YII. The jury were charged that if the plaintiff established a right of way as claimed, it was no objection that others used it, unless such use gave it a public character and established it as a public road.</p> <p>• “ YIII & IX. As to the law in relation to a prescriptive right of way, the jury were charged, that whether there over existed a grant of the way was not a question of belief, but an inference from the facts proved. That to establish such a right, there must be an adverse use for 20 years at least.</p> <p>“ That adverse use in law does not include the idea of hostile attitude to the owner oí the land, but means such use as one makes of that to which he has a legal right.</p> <p>“ The mere use of a road through woodland, is no trespass on the right of the owner of the soil. There is nothing in such use from which any inference of a claim of right can be drawn. Where, therefore, the road passed through woodland, our decided cases require something more than mere use. There must be some act of ownership proved, such as the opening the road, or the working on it — keeping it in repair- — such acts as are usually done by one claiming a right to do them. Or there must be some act of the owner of the land, amounting to an admission of the right, as if, when he cleared the land, he made a lane, or if he obstructed the way, he made another as a substitute for it.</p> <p>“ That a shifting way, which the owner changed and obstructed at his will and pleasure, without any recognition of the right, was but a permissive use, and could never ripen into a right.</p> <p>“ That the use must be of the same way for twenty years, but after that time slight changes would not affect the right.</p> <p>“I submitted the facts as proved, to the jury to decide whether, according to these legal principles, the plaintiff had established his right to the way claimed. ■</p> <p>“L Did the evidence establish the way anterior to 1824? The road was through woodland. There was no proof of any exercise of dominion, other than use by those under whom the plaintiff claimed. But if Brown, when he obstructed it, made another road in lieu of it, which was used as a substitute for the old one, that might admit of the inference that he recognized the legal right to the way, but if he closed up the road and made no substitute, then no inference of admitted right could arise.</p> <p>II. Had any right of way been established since 1824 ? The evidence was, that Brown had made some, but not very material alterations between that time and 1832; that McClenaghan, after one change, had put the road back. He made a lane, and occasionally worked the road — and that Pearce had several times worked and kept it in repair. The jury found for the plaintiff.”</p> <p>The defendant appealed, and now moved for a new trial, on the following grounds, to wit:</p> <p>1. Because his Honor charged the jury that unless there was evidence that the way spoken of in the testimony, had been laid out by public authority, or worked on by the people of the neighborhood generally, it could not be regarded as a “ private path” or neighborhood road.</p> <p>2. Because, if there ever was a right of way over defendant’s land appurtenant to the tenement occupied by the plaintiff, as claimed in this action, the same was extinguished by unity of seisin, when John McClenaghan, under whom defendant holds, acquired the legal title to the said tenement in 1842, by purchase at sale under execution, and a deed to himself from A. Carmichael, sheriff; and his Honor charged the jury to the contrary hereof.</p> <p>3. Because the plaintiff having in his first count alleged seisin in himself, of the tenement occupied by him, and claimed the way as appurtenant to said tenement, and “ by reason of such seisin,” and it having been clearly proved that he is not seised, but that the seisin is in another, the title set out by the plaintiff was disproved and he was not entitled to recover on this count, and his Honor charged the jury to the contrary hereof.</p> <p>4. Because the plaintiff, in his second count, not having alleged his right of way as appurtenant to his tenement, nor “ by reason of his possession of the same,” and not having proved twenty years continuous and adverse use by himself personally, could not recover on this count, and his Honor should have so charged the jury.</p> <p>5. Because after the jury, having been instructed in the charge of his Honor on the subject of damages, had brought into Court a verdict for the plaintiff generally, and the same had been published, they were permitted to return to their room and change their verdict by adding damages.</p> <p>6. Because the description in the pleadings of the way claimed, being uncertain and indefinite, the verdict of the jury, which is general, does not sufficiently ascertain the rights of the parties.</p> <p>7. Because the way claimed by the plaintiff appeared from the evidence to have been used by all the inhabitants of a region of country called the “ Duck Ponds,” equally with himself, and to have been open to every person who chose to pass, and if established at all, as a right, could only have been a “private path” or neighborhood road, for the obstruction of which a civil action will not lie, and the jury should have been so charged.</p> <p>8. Because the way claimed by the plaintiff ran through unenclosed woodlands, until a period within a few years before the obstruction complained of, and there were no acts of plaintiff or defendant, or of those under whom they respectively hold, proven, which were sufficient to give an adverse character to the use of the way.</p> <p>9. Because the evidence did not establish any certain definite way, but a road changed and turned at the mere pleasure of the owners of the land over which it ran, at one time in one place, at another time in another place, as the clearings or fields were changed, and, therefore, no right could be presumed from use.</p> <p>cited 2 McC. 445 ; Chev. 1; I Sp. 17; 3 Rich. 85; 2 Rich. 136; 1 Bail. 56, 341; 1 Rich. 60; 2 Pick. 51; 7 Mete. 33; 3 Brev. 85; 1 McM. 44; 2 Bl. Com. 35, note 28; 3 Kent, 449; 4 McC. 96; 2 Hilliard, 15, 31, 75; Cruise Dig. Title 23, § 88, Title 24, § 24, 30, Title 28, ch. 3, § 4, 5; Bacon Abr. Extinguishment, A; 2 Hill, 642; 2 Chit. PL 808, note z; 8 T. R. 50; 2 Saund. on PI. & Ev. 949; 2 Saund. R. 113, note 1; Saund. on PI. & Ev. 113,920; 2 Stark. Ev. 378, 380 ; 17 Pick. 162, 164; 3 McC. 31; Dud. 92.</p> <p>cited 2 Hill, 644; Gale & W. on Easem. 253, 303; Carth. 241; Ang. on Water Cour. 58, 68 ; II Conn. R. 311; 1 Chit. PL 372, 142, 373 note; 1 Wm. BL 840; 1 Salk. 363; Cro. Eliz. 336; 1 Bay, 490 ; 2 Mill, 371; 2 East, 497; 23 Eng. C. L. R. 59 ; Chev. 238; 6 Eng. C. L. R. 308; 3 East, 294; 2 Hill, 387; Com. Dig. Suspension, A. & B; Saund. on Pl. & Ev. 918, 568; 1 Saund. R. 346; Bul. N. P. 76; Com. Dig. Pleader, 6, 39 ; 2 Tidd, 897, 869; 1 East, 377; 1 B. & P. 371; 1 McM. 329; 3 Rich. 85; 2 Rich. 136.</p>

Before O’Neall, J. at Abbeville, Spring Term, 1851. Trover for the conversion of a mulatto man named Ail, otherwise called Caleb. Ail was born the property of Benjamin Johnson, a resident of Abbeville district, whose sister was the wife of the defendant, also a resident of the same district.

<p>Before Wardlaw, J. at Laurens, Extra Term, July, 1851.</p> <p>Debt on two notes under seal, for $500 each.</p> <p>Special Plea. That the notes were given in part payment of the price at which defendant G. had bought from the plaintiff the printing press, type, subscription-books and good will of a weekly newspaper, called the Laurensville Herald: that the plaintiff fraudulently represented the subscription list of the paper to contain 600 subscribers, when, in fact, there were not more than 400, and made other fraudulent misrepresentations, (which are specified,) whereby the defendant was deceived and induced to buy, at the excessive price of $>2,400.</p> <p>A replication denied deceit in the sale, and issue was joined. Evidence was given to sustain the defendants’s plea. The principal facts which it was attempted to shew, were, that plaintiff represented the number of subscribers to the paper to be six hundred, when, in fact, there were but five hundred.</p> <p>The reputation of the paper was very much raised, and its circulation enlarged, while Godman owned it. About the end of 1850, he sold it, with all materials and all accounts due to the office, for $4000 — guarantying that there were 1,500 good subscribers, the actual number being greater.</p> <p>“ In the last speech made for the plaintiff,” his Honor said in his report, “ the objection was taken that, under the pleadings, there could be no abatement short of an entire rejection of the specialties sued on, and no rescission of the contract, as the defendant had re-sold without tender back. I was very unwilling, after having spent many hours in examining the defence, to sustain an objection, which, if it must prevail, would have arrested the trial as soon as the defence was stated, if it had then been urged. I held that the plea might be considered a sufficient notice of discount, or such notice of partial failure of consideration as under our practice will serve to admit a partial defence. I directed the jury to make an abatement, if! under the evidence and the instructions given to them, they might find the defendant entitled to it.”</p> <p>The jury found for the plaintiff the balance, after allowing an abatement of $450.</p> <p>The plaintiff appealed, and now moved, for a new trial, on the grounds, inter alia, as follows.</p> <p>3d. Because his Honor also erred in charging the jury “ that they could allow a discount,” although no discount had been pleaded nor notice served upon the plaintiff of such a discount claimed by defendant.</p> <p>4th. Because the special plea in this case went to the whole action, and could not be sustained in part, and held bad in part; but that, under the pleadings in this case, the verdict should have been either for the plaintiff’s whole demand, to wit: — the amount of the notes and interest, or for the defendants.</p>

<p>Before O’Neall, J. at Chester, Fall Term, 1851.</p> <p>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 last will and testament of Thomas Terry, deceased.</p> <p>“ The appellants are the brothers and sisters of the deceased. The will bequeaths his entire estate, consisting of (I think) seventeen slaves, to his two illegitimate female children, with cross-remainders in the event of dying without respectively leaving children, and an executory devise over on the failure of children of both to the brothers of the deceased.</p> <p>It was not denied that Thomas Terry had been a lunatic, both before and after the execution of the will. An inquisition of lunacy had found him to be a lunatic, 28th June, 1842; his estate was committed to a committee, James A. Lewis, one of the executors, and so continued to his death. He was an inmate of the Lunatic Asylum, Columbia, from 1839 to 1843. In this latter year he was discharged, not as cured, but as so much improved that he could safely return to his friends. The will bears date Ihe 9th of May, but was really executed 25th May, 1849. He was returned to the Asylum in August, 1849, and there died 11th March, 1850.</p> <p>“ Three questions were made by the appellants. — 1st. Was the will duly executed according to the Act of 1824? 2d. Was the testator of sufficient capacity to make a will ? 3d. Was the will obtained by undue influence ?</p> <p>“ The first question arose out of the doubt supposed to exist, whether the three subscribing witnesses, Adam Walker, Alexander Walker and John B. Stokes, signed in the presence of the testator. He was in good bodily health. One of the witnesses, Adam Walker, said the will was executed in the room where they all were sitting around the fire-place. The two other witnesses said the testator and the witnesses walked out into the piazza, and the testator signed the will at the end of the table near the door; that after he had written his name, he was in the act of getting up, when the necessity of a seal was suggested ; he sat down, made a seal, and stepped into the house. Alexander Walker said he could have seen the witnesses sign: John B. Stokes said he could not. None of them, however, pretended to know where he was in the house when they signed. If he was standing up near the door, or at the window opening into the piazza, he could have seen. Jf he was sitting-in front of the fire-place and near a window where he commonly sat, and where the witnesses found him sitting on their return after the execution of the will, he could not have seen. The testimony on this issue was carefully analyzed and presented to the jury. They were told, if Adam Walker was right, there could be no room to doubt that the witnesses did sign in the presence of the testator. If Alexander Walker and Stokes were right, then the question was, could the testator see them sign ? I told the jury that where the testator was in ordinary health, and capable of hearing, walking and seeing, and was in a room opening into the piazza where the will was executed, I should be slow to believe he did not see the witnesses sign. Still, it was a question for them, and they were told if he might have seen the witnesses sign, it was sufficient.</p> <p>“The other questions of capacity and fraud and undue influence, were so purely of fact, that I do not perceive the necessity of reporting the evidence in detail. My notes will be at the hearing, and can be referred to when needed. I will merely explain and answer the grounds of appeal.</p> <p>“The testator had been advised, through his committee, by eminent counsel, that he could make a will, and that it would be better for him to write it with his own hand. Wm. A. Walker, Esq. proved that the testator gave him instructions how to write the will; that he accordingly wrote it; that- he read it to the testator, and that the testator himself read it; it was left with him on the 9th; and executed two weeks after. Commenting on this part of the case, I said to the jury, if the facts were stated truly by Walker, it was just as satisfactory of the sanity of the testator as if he had written the will himself.</p> <p>“ In speaking of Stokes’s testimony, with whom Terry lived for near four years, from fall of 1845 to summer of 1849, and who had pronounced him always insane, I said to the jury, that Mr. Stokes’s intercourse with the testator was such that he ought to know more of the testator’s mind than perhaps any one except a physician; but yet it might be from his constant association with him, and his settled conviction of his general madness, that he might not have noticed what to other witnesses seeing him less seldom might be more apparent.</p> <p>“ I said to the jury, that if testator was sane at the execution of the will, and understood the act which he did, it was sufficient.</p> <p>“As to che children, (the legatees) the proof was clear that the testator, before his insanity, during his insanity, and in the will itself, acknowledged them as his children. He declared at all times his wish to give them his property. During the life of his mother, the children lived with her. After her death, his brother Stephen took one and has her yet. If the 6th ground by “ the best evidence,” means, that the mother was not sworn as to the paternity of the children, such was the fact.</p> <p>“ There was no evidence that the will was obtained by imposition, undue influence or fraud. If the witnesses, Adam Walker, Alexander Walker, Wm. A. Walker, Esq. Dr. A. P. Wylie, Dr. John A. Reedy, Dr. Cornwell, John R. Nicholson and James Walker, were to be believed, he was perfectly sane at the execution of the will, and it was his free and voluntary act.</p> <p>“ The appellants had the testimony of John B. Stokes, T. Lipsey, Biggers Mobley, Elijah Walker, Franklin Walker, Mrs. Mary Linn, Col. Samuel Mobley, Alexander Walker, Jane Kennedy, Sarah E. Jones and Mrs. N. Lipsey, that he was of unsound mind and incapable of making a will.</p> <p>“ The testimony was fully summed up. and carefully presented to the jury, with the instruction, that as the lunacy of the testator was established, they must be satisfied that the will was the result of a clear, lucid interval. That the burden of showing that the will was executed in a lucid interval rested on the executors.</p> <p>“ The jury found for the will. Their finding meets my entire approbation.”</p> <p>The defendants appealed, and now moved for a new trial, on the following grounds.</p> <p>1. Because the plaintiffs wholly failed to prove that the will was signed by the witnesses in the presence of the testator.</p> <p>2. Because his Honor erred in his charge to the jury, as defendants suppose, in saying to them, that if the testator was in a place where he might have seen, so far as you know, if he wanted to have done so, that was sufficient in law.</p> <p>3. Because his Honor said to the jury, it will not make one particle of difference whether the will was in testator’s own hand-writing, or written by another, under his instructions given to the writer.</p> <p>4. Because his Honor said to the jury, that those who were always with lunatics, are more likely to think them insane than strangers ; whereas, he should have told them, that they were the most competent to judge of their capacities.</p> <p>5. Because his Honor said that if the testator was sane for one moment, at the time of signing the will, that was sufficient.</p> <p>6. Because the best evidence as to who was the father of the children of Sally Smith, the devisees, was not produced.</p> <p>7. Because the will was obtained by imposition, undue influence and fraud, on T. Terry, who was a mad man and insane.</p>

Before Wardlaw, J. at Chambers, Abbeville, July 22, 1851. On the 26th February, 1851, Elizabeth Mitchell, a white woman, of Laurens district, made oath before Thomas J. Sullivan, a magistrate of the same district, as follows :— “ Personally came Elizabeth Mitchell before me, the subscribing magistrate, and maketh oath, as the law directs, and saith that, on Saturday, the 22d of February, last past, at the residence of my mother, in the district and State aforesaid, I was…

Before Wardlaw, J. at Charleston, May Term, 1851. The declaration alleged that the plaintiff was book-keeper in the South Western Rail Road Bank, and the defendant, to cause his dismissal from office, in discourse with the President of the Bank and others, spoke these words, “ Levi J. Moses, one of the officers, induced me (the defendant) to endorse a lottery ticket and become responsible for a prize, by promising to pay me an old judgment debt, and has refused to pay,”…

<p>Before EvaNS, J. at Charleston, Fall Term, 1851.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The prisoner was indicted for stealing a diamond brooch, a bracelet and a finger ring, worth in all several hundred dollars, the property ol Hayden & Gregg. He was a stranger, recently come to Charleston; he claimed to be a British subject, and made his appearance at the store of Hayden & Gregg in company with a' Mr. Lance, who was a clerk in the office of the British Consul.</p> <p>“Andrew Y. Gardner, a clerk in the store, said the prisoner came into the store and purchased a gold watch, at the price of $ 175, and left it to be regulated; he asked for the loan of one to wear in the mean time — a cheaper one, worth about $50, was loaned to him. On the Saturday after, he called again alone, and said he liked the watch he had and would keep it in place of the other, tie said he desired to make a lady a present, and requested he might be permitted to take several articles for her to choose from amongst them. He would return in half an hour, and return the other articles and pay for the watch and the articles which the lady selected. The clerk said that having seen him in the company of Mr. Lance, he did not hesitate to entrust him with the jewelry; this was before or about 9 o’clock. He did not return, and the clerk began to fear he had trusted too much to a stranger; he made a memorandum of the articles and the prices, and gave it to another clerk, that he might receive payment if the prisoner called. The witness then went about 11 o’clock to the rail road, to see if the prisoner attempted to go off. About the time the cars started, the prisoner arrived in a buggy, had his trunk taken off, but the cars started before he went on board ; he desired the agent to have them stopped, which was refused. He then got in the buggy and rode off, the witness followed him — he was soon out of sight; he then returned to the store, and enquired if the prisoner had returned; he was answered in the negative; he got another clerk (Spencer) to help him hunt the prisoner. He went down the street in pursuit, saw the prisoner get out of the buggy and go into Holmes’s store ; went in and found him examining a pair of pistols; demanded the jewelry : the prisoner said he had it, and if the witness would let him go, he would return it in half an hour, which was refused ; he then said if the witness would go with him he would give it to him. They got in the buggy and went to the market wharf, where he took from his trunk in the ferry house the brooch and bracelet, and delivered them. The prisoner said he would deliver the rest at the Consul’s office; he there gave up the watch and $20 in money, which he said was all he had. At Holmes’s store, the prisoner denied he had been at the rail road, but afterwards said he had been, but only intended to take a short ride into the country and return. He refused to tell where the ring was — witness heard the ring was pawned at Oakley’s, where he found it and recovered it by paying $45. This witness said, that some person told him that was only a breach of trust, and he took out a bail writ in assumpsit, for the price of the ring; he afterwards, by the advice of the Attorney General, prosecuted the prisoner for larceny. The prisoner said he had pawned the ring for $40, out of which he had paid his board, and the $20 was what was left — the price of the ring, I think, was 65 or 75 dollars.</p> <p>“ G. W. Spencer, another clerk, said prisoner came into store; saw him looking at some goods; he went out; this was between 9 and 10 o’clock. Gardner gave him a bill to settle with prisoner if he came ; Gardner went to the rail road; when he returned, inquired if the prisoner had been there, and told the witness to run down to Market-street. As he was going down, saw him coming from the Market wharf; he started in a gallop, and witness followed him to Holmes’s store. Gardner came up; heard the conversation between them — he denied that he had been to the rail road, but afterwards admitted he had, as stated by Gardner. Gardner said he would not leave him until he got the goods. Prisoner said if one of them would go with him to the Market wharf he would deliver them.</p> <p>“ W. 0. Oakley, a broker. He said the prisoner applied to him to loan him money to pay his board ; said he had a diamond ring which cost him twelve pounds in London, which he offered in pledge. Witness told him he was no judge of such articles, and advised him to go to Hayden & Gregg, tie said that was too far off, and he had not time ; afterwards witness advanced him $40 on the ring ; this was about 8 o’clock ; he said he would have plenty of money in a few days, and would call and redeem the ring.</p> <p>“ Some of the witnesses said that he, the prisoner, said he expected a large consignment of diamonds in a few days, which he would sell as cheap as they could be bought in London, and that he had rented a store in the city.</p> <p>“ The prisoner offered no evidence, and his defence was put on the ground that the facts proved did not make out the crime of larceny.</p> <p>“ I charged the jury, that if one obtain possession of goods on a contract of sale, though he may fraudulently intend never to pay for them, this was not larceny.</p> <p>“ 2. That in general, to constitute the crime, the absence of the owner’s consent to the possession was an essential ingredient.</p> <p>“ 3. But where the owner did not part from the right of property in the goods, and the possession was obtained by false representations, with the intent to convert them, this was larceny. And if, therefore, they believed, from the evidence, that there was no sale, and that the prisoner had by fraud and falsehood got possession, with the intent to convert them to his own use, this was larceny, and they should find him guilty, which they did.”</p> <p>The prisoner appealed and now moved for a new trial, on the following grounds:</p> <p>1st. Because the evidence was insufficient to prove a felonious intent on the part of the prisoner.</p> <p>2. Because it was not proved in evidence that the consent of the owner was wanting, which is of the essence of the offence of larceny.</p> <p>3. Because his 'Honor said in charging the jury, that although the owner of the chattels entrusted the prisoner with them, his subsequent disposal of them, and conversion to his own use, were sufficient to constitute the offence of larceny.</p> <p>cited Ros. Cr. Ev. 586 ; 2 East, P. C. 555, 694; Hale P. C. 504; Russ, on Cr. 109 et seq.</p>

Before Waedlaw, J. at Charleston, May Term, 1851. Assumpsit upon a promise to pay the amount of a judgment, from which the defendant had been discharged, by his discharge under the insolvent debtors’s Act. There were four counts in the declaration. The first, after setting out the judgment and discharge, alleged that, in consideration thereof, the defendant had promised to pay the amount of the judgment whenever he should be thereunto afterwards requested.

Before Frost. J. at Chambers, Charleston, July 21, 1851. The report of his Honor, Judge Frost, is as follows. “By a battalion court martial held the 6th May, 1850, the defendant was fined for default in the performance of militia duty, and execution was issued for the recovery of the fine of defendant and others, bearing date the 19th May, 1851, and lodged with the sheriff the 21st May.

Before Evans, J. at Charleston Fall Term, 1851. This was an action for a loss sustained by the plaintiffs, by the refusal of the defendant to complete a contract for the purchase of real estate described as the Brunswick Steam Saw Mill. The defendant refused to accept titles, or pay the money; but no formal tender of titles was ever made.

<p>If a prisoner, committed for felony, claims the benefit of the habeas corpus Act, in the manner prescribed by the 7th section, he must be discharged if not indicted and tried within two terms after his commitment.</p>

Before Wardlaw, J. at Colleton, Fall Term, 1851. The writ returnable to the eleventh day of November next, bears date 24th October, 1850, requires the defendant to answer to Josiah Dawson, the younger, for uttering certain false, scandalous, defamatory and malicious words concerning the said Josiah, to his damage $5000, and is signed Tillinghast, plaintiff’s attorney. At the return of the writ in November, 1850, W. F. Robert entered an appearance.

Before Evans, J. at Charleston, October Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ The action was on a penal bond for the payment of money.

Before Wardlaw, J. at Colleton, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ This was an issue which had been made upon a suggestion filed for the purpose of obtaining a caveat against the issuing of a grant for land that had been surveyed under warrant. “ The plaintiffs in the issue, by their suggestion, alleged that the land had been already granted, and that they claimed under the grantee : the defendants traversed the'allegation. “ 1…

Before Wardla'w, J. at Charleston, May Term, 1851. Declaration ; The plaintiffs complain that the defendant took them, free persons of color, and taken, holdeth them to'- their damage. Demurrer, general and for cause, that the plaintiffs being persons of color, can have the -writ of-ravishment of ward under our statute, and homine replegiando is inapplicable to their case.

<p>Before Waedlaw, J. at Beaufort, Fall Term, 1851.</p> <p>This was an action of debt within the summary jurisdiction of the Court. It was brought to recover the sum of forty-five dollars, for a default of the defendant in not sending fifteen male slaves to work upon a road.</p> <p>It appeared in evidence that the defendant had been duly summoned to send his hands upon the road; but there was no proof that he had ever been cited before the ‘‘Board of Commissioners,” to answer for his default, or that there had been any action of the board concerning the alleged default, before bringing their action of default. A nonsuit was therefore ordered.</p> <p>The plaintiffs appealed, and now moved that the nonsuit be set aside.</p>

<p>Before Frost, J. at Colleton, Spring Term, 1851.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The declaration sets out that the plaintiff is seized and possessed of a certain plantation ; and that he and those under whom he claims, have immemorially used a certain canal, partly on the land of the plaintiff, and partly on the land of the defendant; and that the defendant had unlawfully obstructed the said canal, used to vent the water from the plaintiff’s land, to his damage, &c.</p> <p>“ The plantation of the plaintiff comprised the lower portion of an inland swamp. Above the plantation of the plaintiff, Burrill Saunders and Edward Glover own rice lands on the same swamp. The road from Savannah to Charleston crosses the swamp, at or near the dividing line of the lands of the plaintiff and Saunders. There is a bridge in the road causeway, over the channel of the swamp, through which the water from Saunders’s and Glover’s lands is vented into the land of the plaintiff. Along the side of the causeway is a canal extending across the swamp; at one end venting into a spring ditch or canal, and at the other end into the canal in dispute. The channel or natural course for the water is obstructed below the causeway, in the land of the plaintiff, by banks which were made for the culture of the land. Below the land of the plaintiff the defendant owns a few acres of swamp on the creek, into which the swamp is vented, and the canal passes through that piece of land. The defendant obstructed the canal in this part, and a long way above, nearly to Tupelo bank. The plaintiff’s plantation had been owned and planted by Wilmot Gibbes from 1804 to 1843, when it was purchased by Sampson W. Leith.— The defendant’s plantation (Auckland) had been owned by Cotesworth Pinckney before 1843, when it also was purchased by Leith. Leith planted the Gibbes tract two years, and then died in 1845. After his death, Auckland was conveyed by the Commissioner in Equity to the defendant. The plaintiff was in possession of the Gibbes land, but did not produce any title. There was evidence that the canal, from the creek to the Savannah road, had existed and been used more than fifty years ago. Gibbes in 1837 and ’38 did not plant beyond Tupelo bank, which is some distance below the road. The water from above then flowed through the upper fields until it reached Tupelo bank, when it was drawn by a canal above and along the bank into the canal in dispute. The disputed canal is along the dividing line between Auckland and the Gibbes tract, following the edge of the high land. The earth from .the canal was thrown on Gibbes’s land, forming a bank between the canal and the swamp. There was also evidence that the natural channel for the water of the swamp had been filled up by the banks made across it for the cultivation of the land ; and that the canal was necessary to the cultivation of the plaintiff’s land, and of the lands above the road. Thirty-five or forty years ago the canal was open below the road, and above through the lands of Saunders and Glover. At that time, one or two squares next the road were not planted ; but before and until sixteen years ago the canal was kept open. That the earth was thrown on the Gibbes tract, was, in the opinion of some witnesses, evidence that the canal was the line. It was of no benefit nor any disadvantage to the Auckland tract</p> <p>“ The defendant moved for a nonsuit, on the ground that the plaintiff had not proved he was seized of the Gibbes tract; but the motion was refused, because there was evidence that Gibbes had, by prescription, acquired the right to the use of the canal, as appurtenant to his land; and the plaintiff, though he shewed only possession of the tract, might maintain an action for the disturbance of an easement appurtenant to the land.</p> <p>“ The defendant then produced in evidence a deed of conveyance from A. Campbell, Commissioner in Equity, to the defendant, of the Auckland tract, dated 11th February, 1845, and also a deed of the same date from Campbell, Commissioner in Equity, to Burnett McBride, of the Gibbes tract. This deed calls for Auckland as a boundary, and the first deed calls for the Gibbes tract as a boundary.</p> <p>“ Archibald Campbell testified that file plantations having been the property of Leith, were sold by him as Commissioner in Equity. McBride said he had paid for the land with funds of the estate of Ferguson, and bought it for that estate. The witness could not say that he had sold the lands by the plat produced by the defendant, but thinks it highly probable he did so. The plat is not referred to in the deeds. On the plat the bank is represented as the line between the tracts, and the canal is not laid down.</p> <p>“ It was contended that when the tide to Auckland and the Gibbes tract became united in Leith, the easement of the canal, appurtenant to the Gibbes tract, was extinguished; and was not restored when the unity of the title was severed by the sale of the Gibbes tract to plaintiff. But the-Jury were instructed that the canal, being a necessary easement, appurtenant to the Gibbes tract, was not so extinguished by the union of the title to it and Auckland in Leith ; that on a re-sale, byLeith, of the Gibbes tract, it was not deprived of this appurtenant easement; for an easement necessary to the cultivation or valué of a tract of land, and appurténant to it when it was acquired'by the vendor, by intendment of the law shall pass with the land when it is aliened by ■him, if there be no agreement to the contrary.</p> <p>“ The jury found a verdict for the plaintiff, affirming the existence of the canal in its whole extent. The verdict was not ordered to be amended, though it found more than the issue; because, though not evidence for Saunders and Glover, it might suppress other suits.”</p> <p>• The defendant appealed, and now renewed his motion for a nonsuit in this case,</p> <p>1. Because the words, as laid down in the declaration, that the plaintiff was seized and possessed of the land, was not sustained by evidence.</p> <p>2. Because the proof submitted by plaintiff clearly shewed that he had no ownership in the soil.</p> <p>And failing in that, then he moved for a new trial:</p> <p>Because the rights of plaintiff, if he ever had any, were extinguished by unity of title and possession in Dr. Leith to both plantations.</p>

In the City Court of Charleston, February Term, 1851. The report of his Honor, the Recorder, is as follows. “ This was an issue tried before me upon a suggestion of fraud. The suggestion contained several grounds. The jury found the defendant guilty upon the 6th, 7th, and 8th grounds, and not guilty as to the others. The 6th, 7th and 8th grounds were as follows. “ 6th.

Before Evans, J. at Charleston, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ This was an action for the price of a steam engine, which the testator of the plaintiff contracted to make for the defendant. He had not finished it at the time of his death, but it was after-wards finished and delivered, and the plaintiff claimed $2,000, which the witnesses thought was a reasonable price.

Before 0’Neall,'J. at Chambers, Columbia, December 8, 1851. This was an application for a rule calling upon the respondent, John Sehnierle, to shew cause why an information in the nature of a quo warranto should not be exhibited against him, to shew by what authority he claimed and held the office of Mayor of the city of Charleston.

In the City Court of Charleston, November Term, 1851. This was an action of assumpsit on a promissory note, a copy of which is as follows. 210 King-street, Charleston. S. C. $115. December 19, 1850. Six months after date, I promise to pay to the order of E. G. A. Baker, one hundred and fifteen dollars, value received. {Indorsed.'> (Signed) William Ashton. E. G. A. Baker, Martha J. Scott.

Before Wardlaw, J. at Charleston., May Term, 1851. Held: that against a window which overlooked his unoccupied land, a proprietor was not bound to guard his right of property, by a wall or other erection useless to himself, and only hurtful to his neighbor. “ I called the attention of the jury to the manner in which the two buildings were connected, and submitted it to them to decide…

Before Evans, J. at Charleston, Fall Term, 1851. The report of life Honor, the presiding Judge, is as follows: “ The declaration stated that one E. Ludecus made a certain promissory note, payable to F. Ludecus or order, and that F. Ludecus endorsed it to the plaintiffs, who are called throughout by the name of R. A. & G. H. Wilthaus. There were common counts for goods sold and delivered.

In the City Court of Charleston, July Term, 1851. The report of his Honor, the Recorder, is as follows : “This case came up on a special demurrer to the plaintiff’s declaration.

Before Withers, J. at Georgetown, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows : “ Elly Godbold, sheriff of Marion district, sold under fi. fa. the property of one Gasque ; of the proceeds thereof, $>4,442 29 were applicable to an execution in favor of Gadsden, the plaintiff, against Gasque.

<p>Before Wardlaw, J. at Charleston, May Term, 1848.</p> <p>This was an action on the case for taking insufficient bail.</p> <p>On the 23d July, 1841, the plaintiff sued out a bail writ in assumpsit against one B. W. Basden and lodged it with the defendant. Basden was arrested, and on the. 9th August gave bail bond to the defendant, with one Angus Stewart as his bail. The plain tiff recovered judgment against Basden, and on the 11th June, 1842, lodged with the defendant fi. fa. and ca. sa. thereon. The ca. sa. was returned non ,est inventus by the defendant.</p> <p>Numerous questions were made, but it is deemed necessary to report only so much of the case as relates to the only question considered in the opinion delivered in the Court of Appeals. For the report of a former trial of the case, see 1 Strob. 303.</p> <p>Upon the question, whether the sheriff was bound to take two persons as bail, his Honor reported his charge as follows:</p> <p>“ The sheriff is answerable if he reject as bail two responsible persons of his district; but he is not necessarily liable for taking less than he was compellable to take. Justification of bail, properly speaking, is a judicial proceeding, to which our form of the sheriff’s taking bail is not accommodated ; but the swearing of bail, called by that name, is a known measure of precaution, which diligence would prompt in a case of suspicion; the neglect of it, where there was not suspicion, would not necessarily cause liability. If the insufficiency of Stewart as bail had been made to appear, the question of the sheriff’s liability would depend upon the inquiry, “ Did he take Stewart, knowing him to be insufficient, or under such circumstances that he should have known his insufficiency.” Prima facie, that the bail has proved insufficient, shows the sheriff’s liability, but this is rebutted by evidence that the condition of the bail changed after he was taken, or that appearances were such as to deceive the sheriff. Of course, information of the truth would correct false appearances, but in default of such information, what were the appearances ? (The visible condition of Stewart’s property, and the incumbrances which had been shown to affect it, were here pointed out according to the evidence).”</p> <p>The verdict was for the defendant. The plaintiff appealed, and moved for a new trial, on several grounds. The 2d and 6th were as follows :</p> <p>2. Because, according to law, the plaintiff was entitled to have the security of two persons to the bail bond, and the law, as distinguished from mere custom, ought especially to have been enforced against a sheriff who refused to take the caution and warning of the plaintiff not to take as bail a single surety, who turned out to be insolvent at the time the sheriff disregarded the objection of the plaintiff.</p> <p>6. Because his Honor charged, that, if the jury found for the plaintiff at all, they ought to take into consideration and assess the value of the judgments against Basden and Stewart, and deduct such supposed value from the amount of plaintiff’s claim, and find their verdict accordingly.</p> <p>The case was twice argued, first in January, 1849, and again at this term.</p> <p>cited, on second ground, Loker vs. Antonio. 4 McC. 177; Harwood vs. Robertson, 2 Hill, 338; Crosslin vs. Read, 2 McM. 13 ; Chiswell vs. Elbzey, Rice, 30 ; 2 Mete. 490; Long vs. Billings, 2 Mass. R. 482; Prac. Reg. 84; Barnes’ notes, 60 ; 1 Sellon Pr. 133, 159 ; Rice vs. Hosmer, 12 Mass. 130; 1 Mill, 314; 3 Rich. 49 ; Spa?'hawk vs. Bartlet, 2 Mass. R. 190; 2 T. R. 575; Petersd. on Bail, 204.</p> <p>cited Act 1809, 7 Stat. 399; Bew-fage’s case, 10 Rep. 100; 1 Bay, 322; 2 Bay, 173 ; 2 Brev. Dig. 210; Drury’s case, 10 Rep. 101, a; 2 Saund. 61, note 5 ; 1 Tidd Pr. 196; 1 Sellon Pr. 129 ; Act 1785, 7 Stat. 215 ; Act 1839, 11 Stat. 29 § 14 ; 3 Rich. 49.</p>

Before Evans, J. at Charleston, Fall Term, 1851. This was an action by the plaintiff, to recover for the injury to certain articles of hardware and crockery, shipped on board the ship Martha, of which the defendant was master or captain.

Before Evans, J. at Charleston, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows. “ The action was on a penal bond with a condition, in which it is recited, that the defendant had sold the plaintiffs a tract of land, and was to cause or procure to be delivered to them, good and sufficient legal titles for the same ; but, on investigation of the title, doubts had arisen which could only be solved by the Court of Equity.

Before Withers, J. at Horry, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: ■ “ This action was trespass to try title. The plaintiff established title in one Isabella Floyd, and traced the same to himself, as to two out of seven distributive shares of her heirs at law, by evidence that was not questionable. Isabella derived the land in question from her husband, as widow, the same having been allotted to her on partition.

Before Evans, J. at Charleston, Fall Term, 185L The report of his Honor, the presiding Judge, is as follows : “ On the 3d July, 1847, the defendants wrote to the plaintiffs, directing them to buy 500 bales of cotton, and “ for the amount to draw on our friends, Messrs. James Lee & Go.

Before Wardlaw, J. at Charleston, May Term, 1851. The report of his Honor, the presiding Judge, is as follows : “ The history of this case, if it should be found necessary to look into it, may be found in the report of a motion formerly made in it, Gray vs. Gidiere, (4 Strob. 438,) and in the reports of Equity proceedings, out of which it arises, Napiere vs. Gi-diere, (3 Strob.

Before Wardlaw, J. at Beaufort, Fall-Term, 1851. Held: John A. Scriven, Esq. acting as coroner.

Before Frost, J. at Colleton, Spring Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ In 1767, James Skirving owned the plantations now owned by the plaintiff, called the Bluff and Middle Place, and the defendant’s, called Smilie. The plantations are parts of a large swamp, vented by Deer creek into Ashepoo river. The Bluff, which is the highest on the swamp, is separated from Middle Place by Boone’s dam or causeway.

<p>Before Evans, J. at Barnwell, Bpring Term, 1852.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was an action of trover for two negroes. In 1815, one Stephen Phillips executed a deed, whereby he gave to his three daughters “a negro woman, named Abigail, and her future increase, which said negro and her increase, if any, after the death of my wife and myself, is to be equally divided between my above-mentioned daughters. It is understood that the above-mentioned property is to remain in my possession, or my wife’s, until after our death, then to go as above-mentioned, the above property is to my said daughters and the future heirs of their body. Now, if either of the above-mentioned girls should die without any lawful heirs of their body, her property shall go to the surviving children, and so o.n.” After the death of Phillips and wife, Abigail and her issue were divided, and the negroes in dispute were allotted to Mrs. Nix, one of the daughters. The defendant claimed, under a mortgage foreclosure from the husband of Mrs. Nix, and the plaintiffs are the children of Mrs. Nix, claiming under the limitation in the deed.</p> <p>“ I was of opinion the estate to the daughters was good under the authority of Jaggers vs. Estes.</p> <p>“ On the question whether the children of Mrs. Nix could take under the deed, I was informed that the Appeal Court of Equity had decided the question in the affirmative, on this very deed, in a case between other parties. This was a sufficient reason for my deciding in the same way; but, independent of this, I thought the case came within the reasons of the case of Means vs. Henry, and the cases which have followed it since. The jury, under my charge on these points, found for the plaintiffs, who were not barred by the statute of limitations.”</p> <p>The defendant appealed, and now moved for a new trial, on the ground:</p> <p>Because his Honor charged the jury, that the issue of Elizabeth Nix took as purchasers, under the deed of Stephen Phillips, after a life estate in their motherwhereas, it is submitted, his Honor should have charged the jury, that the limitation in the said deed is too remote, and that therefore Elizabeth Nix took an absolute estate, upon which the marital rights of her husband attached.</p>

Before O’Neall, J. at Sumter, Spring Term, 1852. The petitioner, John F: Ridgill, applied for the benefit of the insolvent debtors’ Act.

<p>In assessing the value of land taken by'the Greenville & Columbia R. R. Company, for the purposes of their road, the commissioners or jury, in estimating the ‘ benefit or advantage ’ to the owner, should take into consideration the speculative or sale-able increase in the value of the land attributable to the construction of the road.</p> <p>In estimating the ‘ toss or damage ’ to the owner, the expense of fencing along the line of the road, where it passes through fields, should be considered.</p> <p>So, also, in estimating the 1 loss or damage ’ the incidental depreciation of the value of the tract, by reason of the road’s passing through it, should be considered.</p> <p>If the owner has sold part of the tract at an enhanced price, but such enhanced price was not owing to the construction of the road, but to an accidental demand, then, the owner is not chargeable with it as an item of ‘benefit or advantage.’</p>

Before Whitner, J. at Sumter, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ This was an action of debt on bail bond, against the defendant, as bail of one Samuel Gr.

<p>The owner of a toll bridge is not a common carrier: his obligation is to keep the bridge in proper condition for the safe passage of passengers and goods, and only for negligence in so keeping it is he liable.</p>

Before Evans, J. at Barnwell, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows : “ The defendant was indicted for a nuisance in obstructing Shaw’s creek. About 1830, the defendant built a mill dam across the creek. His mill, at that time, was the upper one, on any part of the creek, which at that time could be made navigable, or has since been made so.

Before Wardlaw, J. at Pickens, Spring Term, 1852. These were all issues in dower. Held: would prevail until it was rebutted. As to the rebuttal by report of his having been hung, that, I remarked was rumor — mere hearsay — distinguished from the declarations made by persons who were in a situaiion to know, which would suffice to establish death and other matters provable by reputation.

Before O’Neall, J. at Kershaw, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows. . “ This was an action by way of sum. pro. to recover for a loss sustained in two barrels of molasses, part of a parcel of ten barrels shipped in good order. “ When they reached Camden, eight barrels were received; the drayman or wagoner declined to receive two, on account of their leaking condition.

<p>Before Whitner, J. at Kershaw, Fall Term, 1851.</p> <p>This was an action of assumpsit by sum. pro. upon a written contract, signed by plaintiff and defendant, as follows.</p> <p>“ On the first of January, 1851,1 have employed Ephraim Bradshaw; he is to help build a house; then his year’s work commences. I am to let him have twenty-five bushels of corn, at a dollar per bushel, and when he commences to work for me, he has to get fifty pounds of meat, at ten cents per pound; then after that, he will get two hundred and fifty pounds, at twelve and a half cents per pound. I am to give him one hundred and twenty dollars for his year’s work, and the meat and corn is to be paid out of his year’s wages. • He will have to lose all days he has to muster and work on the road, and when he goes to muster I will let him have a horse, provided he will take good care of it.”</p> <p>The action was to recover $ 120, less $50 93, which it was admitted defendant had furnished plaintilf with in provisions, under the contract. Plaintiff offered some proof of being dismissed by the defendant, of loss of time between his dismissal and finding other employment at a lower rate of compensation; of having been put to some inconvenience by his removing, and of his offer to fulfil his contract after his discharge, &c.</p> <p>His Honor thought the action could not be maintained until the year had elapsed, and, accordingly, ordered a non-suit.</p> <p>The plaintiff appealed, on the grounds,</p> <p>1. Because the defendant, having put an end to the joint contract by his own act, became liable presently, to pay the whole amount of money due on the contract to the plaintiff.</p> <p>2. Because, being so liable, the plaintiff was entitled to a decree, unless the defendant had discharged himself by proof.</p> <p>3. Because an employer who, without cause, discharges during the year, for which an entire contract is made, becomes liable at once, for the whole amount of money due on said contract.</p> <p>cited 8 Johns. R. 189 ; 11 Ala'. R. 375.</p>

Before O’Neall, J. at York, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ In this case, the testator, John Dennis, after the execution of his will and before his death, acquired three horses and a road wagon — there was no republication of the will. The defendant is the executor and sole devisee and legatee.

Before O’Neall, J. at Union, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ The defendant was indicted, under the Act of the Legislature, for unlawfully whipping a slave, the property of Mrs. Sarah Smith. It appears that she was in the possession of the slave, and had hired him to Wilson P. Gee, for the year in which the beating occurred.

Before O’Neall, J. at Union, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows : “ This was a sum. fro. on a single bill, alleged to have been destroyed. The existence of it was fully proved — indeed, a mutilated portion was produced. The mutilation was more than four years before action brought. There was ho proof of any thing like payment.

Before Frost, J. at Union, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ This was a sum. pro., by .domestic attachment, on a note. A copy of the note was not indorsed on the original or copy process.

Before Frost, J. at Lancaster, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows. “ The plaintiff claimed under a grant to John Marshall, in 1789. Benjamin Hale, in 1793, conveyed to Thomas Farmer 300 acres of the Marshall grant, one of the boundaries of which tract was the line of Francis Bettis; and the plaintiff derived title immediately from the devisees of Thomas Marshall.

Before Whitner, J. at Richland, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “ The plaintiffs brought this action (trespass) to recover damages of the defendant, for cutting away and destroying their fish traps, which had been constructed and placed in the Congaree river, between the shore and one of the islands.

Before Wardlaw, J. at Laurens, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows. “ The defendant was indicted, under an Act of 1843, (11 Stat. 257,) for conveying away his slave, Nathan, who was accused of a capital crime, so that he could not be brought to trial and condign punishment. “ The evidence shewed, that, in 1851, February 22, a crime was committed by a negro, whose name was unknown to the person injured.

Before Whitner, J. at Sumter, Fall Term, 1851. This was an action of trover for the conversion of a number of negroes. The plaintiff was a minor, about nineteen years of age, and the defendant was his father.

Before O’Neall, J. at York, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows: “This was an action by the plaintiff, a junior judgment creditor, to recover a sum of money collected by the sheriff, from the sales of the property of the late William Campbell, deceased. “ The sheriff, in his defence, set up an old judgment, Samuel Campbell vs. Wm.

Before WhiTNER, J. at Kershaw, Fall Term, 1851. The report of his Honor, the presiding Judge, is as follows : “ The defendant was tried and convicted of harbouring two slaves — Tom and Sam — the property of Mrs. N. Leigh, of whose estate John U. Ingram was executor.' The executor had hired the slaves in December, 1849, for one year — Tom to James M. Ingram, and Sam to Danl. Wilson.

Before O’Neall, J. at Sumter, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows. “This was an action of assumpsit brought by the plaintiff, on an agreement to oversee the defendant’s plantation for 1850. “ He proved that the defendant agreed to pay him three hundred dollars, and furnish him with meat and salt, and to do his cooking. “ He proved that he did his duty entirely to the satisfaction of the defendant, until 26th June; he was at that…

Before Frost, J. at York, Spring Term, 1852. Held: that the defendant was privileged from arrest at the time when he was held to bail; and the service of the process was set aside, and the bail bond, given for his discharge from custody, was set aside.” The plaintiffs appealed, on the grounds, 1.

Before O’Neall, J. at Sumter, Spring Term, 1852. This was a summons in dower. It appeared in evidence, that the demandant’s husband, in his lifetime and during the coverture, sold and conveyed the land, in which she claimed dower, to the defendant; that he entered under that title, and, at the time of the trial, possessed the land under the same and claimed it by no other.

Before Fuost, J. at Fairfield, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ This was a new trial of an action of debt on a bail bond. The evidence reported on the first trial was read ; and upon that, without argument, the jury found a verdict for the plaintiff “ The plaintiff had sued one Thompson, and the defendant was one of Thompson’s bail.

Before Whitner, J. at Kershaw, Fall Term, 1851. The plaintiff sued defendant by sum. pro. alleging the indebtedness of the latter in the sum of $36 85, by promissory note, a copy of which was indorsed, &c. On the process was copied a promissory note, dated 9th May, 1848, payable one day after date to James Harrison or bearer, for $36 85, signed by N. G. Gibson; and a copy indorsement as follows : “Dec. 13, 1848. I indorse the within note.

Before Evans, J. at Barnwell, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ It appeared from the evidence that the land on which the town of Aiken was laid out, was purchased by Rogers and Marsh, but the title was made to Rogers. Each effected sales, but Rogers made the deeds. A certain lot, now known as Marsh’s Hotel, was sold by Marsh to one Nathaniel Black, who received a title from Rogers.

<p>Before Frost, J. at Charleston, Fall Term, 1849.</p> <p>This was an application for a writ of prohibition. His Honor pronounced judgment as follows:</p> <p>Frost, J. The City Council of Charleston, by “an ordinance to raise supplies for the year 1849,” imposed a tax of five per cent, on every hundred dollars of dividends received on bank or other stocks, with certain exceptions, which do not include the State Bank and the Bank of South Carolina.</p> <p>The relators applied for a prohibition against the enforcement of the tax, and submitted the case, on a brief written argument.</p> <p>Edward Sebring is a stockholder in the State Bank, and resists his liability to pay the tax, under an alleged grant of exemption by the several Acts of the Legislature incorporating the Bank and extending the term of its incorporation. By the 10th section of the Act of 1802, incorporating the Bank, it is declared that “the said corporation, and the stock thereof, shall be relieved from the payment of all taxes during the time for which it is hereby incorporated.” By the Act of 1822, the charter of the Bank was renewed, “ with all the privileges, powers, immunities and benefits,” enjoyed under the original charter: and, by the 3d section, it is enacted, that “ for the charter renewed,” the Bank should “ pay into the treasury of the Lower Division a bonus of twenty thousand dollars.” The charter was again renewed, by an Act passed in 1833, with all its former “ rights, privileges,” &c., on condition that the corporation should pay “ twenty thousand dollars as a bonus.”</p> <p>William Birnie, the other relator, is a stockholder in the Bank of South Carolina, and claims a like grant of exemption, under the Acts incorporating that Bank and extending the term of its incorporation. The Act of incorporation requires the Bank to pay into the State treasury fifteen thousand dollars, “ and in consideration of said payment, to be relieved from all taxes during the time for which it is hereby incorporated.” By the Act of 1822, the charter was renewed “ with all the privileges, powers, immunities and benefits,” enjoyed under the original charter, and the Bank was required to pay .into the treasury “ a bonus of twenty thousand dollars for the charter renewed.” The charter was again renewed in 1832, in terms similar and equivalent to those used in the Act of 1822.</p> <p>By the Act of 1783, incorporating the City of Charleston, “the City Council is vested with full power and authority to make such assessments on the inhabitants of Charleston, or those who hold taxable property within the same, for the convenience, safety, benefit and advantage of the said city, as shall appear to them expedient.”</p> <p>The institution of a bank creates three interests, the subjects of taxation — the bank, in its corporate capacity, or the franchise of banking; the capital of the individual stockholders invested in the bank; and the income, or profit, which the stockholders may derive from funds so invested.</p> <p>In Bulow & Potter vs. The City Council of Charleston, (1 N. & McC. 527,) it was held, that though the Bank of the United States could not be taxed, yet that the stock, owned by individuals, was a legitimate subject of taxation. The same distinction was admitted by Chief Justice Marshall, in McCulloch vs. The State of Maryland, (4 Wheat. 436,) and is affirmed in Berney vs. The Tax Collector, (2 Bail. 654). In the case last cited, Judge O’Neall maintains that the dividends or profits of government or bank stock, when paid to the stockholder, must be distinguished from the stock ; so that the former may be taxed, though the latter may be exempt.</p> <p>In this case, the tax is laid on the dividends or income which the relators may receive on their shares in the capital of the banks respectively.</p> <p>It may be admitted that the Legislature possesses the power to declare any species of property to be exempt from taxation, and it may also be admitted that when these banks, by the Acts incorporating them, or the stock, are declared to be relieved from all taxes, other taxes were intended than those to be imposed for the use of the - State, directly by the Legislature, or indirectly by the agency of public functionaries to whom the power of the Legislature may, for specific objects, be delegated. Yet only the Bank of South Carolina, and only the corporation and stock of the State Bank are relieved. The dividends or income of the stockholders are not included in this exemption.</p> <p>The Acts incorporating these banks are private Acts, and should be construed with a saving of the rights and interests of all other persons. (Dwar. on Stat. 7. Law Library.) The terms used should be very direct and explicit, which declare the intention of the Legislature to divest the power of taxation which had been granted to the City Council of Charleston.</p> <p>The motion for a prohibition is refused.</p> <p>The relators appealed.</p> <p>The case was first argued, February, 1850, in the Law Court of Appeals, and was ordered to this Court, where it now came on to be heard.</p> <p>referred to the sections in the different bank charters, exempting the banks of this State from taxation, and cited Weston vs. The City Council of Charleston, Harp. 340; S. C. 2 Peters, 449 ; Fletcher vs. Peck, 6 Cra. 88 ; State Bank vs. City Council, 3 Rich. 342.</p> <p>cited 8 Stat. 101; 3 Rich. 342; State vs. Allen, 2 McC. 55.</p>

<p>A private individual, who brings case for a public nuisance, must show a particular direct damage, or peculiar actual loss, to himself. The cutting off of his facilities for making an entrance to his lot from a public street, at a point where he never had an entrance and has always kept a fence, whilst the way he has used remains unobstructed, is not sufficient actual damage: nor is a temporary diminution of the marketable value of his property, whilst the property has been out of the market and his enjoyment of it been uninterrupted. A peculiar loss which the nuisance has occasioned during its continuance, may be repaired by private action, but the speculative influence, which, if it lasted, it would have had on the value of property, is prevented by the abatement of the nuisance, which a public prosecution of the offender may effect.</p> <p>If the obstruction of a public street is authorized by law, damage, thence ensuing to an individual, is damnum absque injuria: if the obstruction of it by a Rail Road Company is unlawful, an action, by an individual,' lies not, without proof of direct damage, contra-distinguished from contingent and probable loss — and this, no matter in whom is the fee of the street, nor by what violation of charter the Company ha@ done the wrong.</p> <p>The plaintiff can have no action for mere trespasses on another’s land: and case, for consequential damages to himself, lies not for annoyances and hurt that he has received from acts done on land adj oining his, which the proprietor thereof might lawfully do in the exercise of his dominion over his own.</p> <p>Quere: How near to his exact boundary line, may one dig without liability to his neighbour I What are the rights of a lot owner, in the town of Columbia, to the street which is his boundary 'i</p> <p>The charter of the Charlotte and South Carolina Rail Road Company, authorizes the Company to enter the town of Columbia with their Rail Road, and, under certain terms, to occupy the streets.</p> <p>If the plaintiff’s private right of way in another’s land has been obstructed by the Company, under lawful authority, he cannot have an action for damages: he may have compensation, if his case falls within the provisions made for compensation— otherwise there may be no compulsory remedy for either damages or compensation, and if any action lies for him, it is not one grounded on tort.</p> <p>Difference between damages and compensation: — rights of the sovereign, of the grantee of a franchise for a public improvement, and of thfe land-owner whose land has been taken under the eminent domain and our State Constitution. Theremedy, by assessment of compensation, is here necessarily exclusive, where it is applicable to the subject; and where the talcing has been lawfully authorized, but no remedy for the land-owner provided, the action for damages is excluded.</p> <p>The sections of the charter examined, which require the Company to prepare another road in lieu of a public road which it may occupy and obstruct. The requirements therein demanded from the Company, are for the benefit of the public; and upon the supposition that a lot-owner in Columbia has, from the peculiar legislation concerning the town, a right to maintain his action for an unlawful obstruction of a public street, without showing particular loss to himself, if the terms imposed by the charter have not been violated by the Company so as to authorize the interference of the State, no legal wrong has been done to the lot-owner: and so, his supposed rights in the street may, in certain contingencies, be destroyed, yet all that is required from the Company may have been done.</p> <p>The mere levelling of a road, preparatory to the laying of a Rail Road structure in it, is no obstruction: and nothing else had been done when the plaintiff commenced this suit.</p>

<p>Testator bequeathed certain negroes to be equally divided between his two sons, H. and P. “ and if either of my two sons should die without lawful issue, that my other son shall have his part of my property:” H. died without issue: Held, that the limitation over to the other son was void for remoteness.</p>