Volume 4 — South Carolina Law Reports

Indictment for passing a counterfeit bank hill of the Bank of the United States, tried before Waties, J., jit Edgefield district. ^ After the prisoner had made his peremptory challenges at the trial, and had accepted a certain juror, who was about to be sworn, the soli, citor objected to him on the part of the State, wilhout shewing cause. The right of the State to such a challenge was questioned, and made one of the grounds for p new'trial in this case.

<p>If a husband convey his wife’s land in fee, and she does not join him hi the conveyance, the transfer shall hold good during their lives, so as tc bar the wife from recovering from the husband’s grantee during the co-verture, the land, or damages for the possession of the grantee, without . her consent: and in such case, the wife shall-have seven years after becoming discovert, to bring her action to recover possession of the land.</p> <p>WiTREiisrooN, for the defendant. Ervin, contra.</p>

Demurrer determined by Brevard, J., in Marlborough district. The action was debt on a joint aud several bond, giveu by Moses T?ort and Thomas Evans, to John M‘Call, the 3d July, 1784, eon* ditioned for £90. The defendant pleaded four special pleas, ia bar. 1. That M. Fort was principal in the bond, and defendant’s testator the security, of which the plaintiff’s testator had notice, when the bond was made.

The action was trespass, quare cl. fr., and was intended to try the titles to a tract of land, but the plaintiff had neglected to indorse on the original and copy writ, that the action was brought for that purpose. The declaration was indorsed with these words : “ Trespass to try title, as well as for damages but it was not Icuown whether the defendant’s counsel ever saw those words on the de-duration, or not.

Motion to reverse a decision, made by Bay, J., in Richland district; argued in November, 1804, at Columbia, before Grimke, Waties, Trezbvant, and Brevard, Justices. The defendant had been found a lunatic, by a commission from the Court of Equity, and a guardian had been appointed.

The case was tried in Charleston district, before Trelevant, J. The action was assumpsit against the defendants, as indorsers of a promissory note, drawn by Edwin Gairdner & Co., in favor of the defendants, for three thousand dollars, payable on the 22d and 2oth January, 1802. The note had been placed in the bank for collection, and was protested on the last day of grace.

• On demurrer. Motion to reverse the decision of Trezevant, J., in the District Court of Charleston, who overruled the demurrer in this case. This was a special action on the case. Declaration stated, that the defendant was one of the commissioners of the treasury for the State of South Carolina.

The action was assumpsit against dc- Trezevant, J., before whom the cause was tried, was of opinion, and so charged the jury, that these declarations of Fronty did not amount to a sufficient acknowledgment of a subsisting, debt, and of a promise or intention to pay the same, to take the case out of the operation of the limitation act; and the defendant had a verdict.

Motion to set aside a nonsuit. Assumpsit on á promissory1 note1.Defendant pleaded general issue, and gave notice of a discount. Af.-ter adducing evidence on the tried of the general issue, the plaintiff moved for leave to suffer a nonsuit; which was granted.

Trover for certain negroes, which plain» tiff claimed as formerly loaned to his son Henry, whose widow the defendant married. The defendant claimed the negroes as having been given to the son, and not lent. Verdict for'the plaintiff, contrary to the opinion of Bay, J., before whom the cause was tried. It was proved that Henry Snipes had possession of the negroes ten years, and died possessed of them.

Motion in this court to reverse the decision of the district court. The case was, the defendants were prosecuted in the City Court for a breach of a city ordinance for retailing spirituous liquors on Sunday. The ordinance subjects the offender to a fine of twenty dollars, by suit in the City Court, one half to the informer.

Motion to set aside an order of Johnson, J,, in Charleston district. Plaintiff had succeeded on a motion for a new trial, and in the district court, before the new trial came on, defendant moved for a rule of survey; in the same term, the cause was called for trial, being the first term after the new trial was granted. The resurvey not being made and returned when the cause was called, a postponement of the cause was moved for until a resurvey should be made.

This action was assumpsit on two notes signed by Sarah Cave. Verdict for the plaintiff, before Trezeva-nt, J., in Charleston district- The motion in this court was to arrest the judgment. The declaration on the face oí it imported, that the notes were given by the said Sarah, as a feme covert, and did not state any circumstances to shew how the wife was authorized to make the contract, ox-why she should be bound thereby. > cited 6 'Bac. Abr. 324, new ed. 3 Esp. Rep. 18.

Assumpsit on several notes of hand, tried in Abbeville district, before Beevaed, J. The defendant had not subscribed her name, but only her marie to the notes, and the subscribing witness was not produced ; but a witness who was examined, proved that the defendant was accustomed to make her mark jn tke manner ^ Was made on the notes, and said he believed the mark was her’s. This evidence was admitted to go to the jury, who found for the plaintiff.

Trover; tried in Abbeville district, before Beevaed, J. The defendant, of whom the chattels in question had been demanded, and who had refused to deliver them up to the plaintiff, (who claimed them as administrator of James Abbot, as property unadministered of his intestate,) claimed the same as his own right and property, under an instrument of writing under seal, signed by James Abbot, the intestate, purporting to be an agreement between the said James Abbot and the…

Motion in arrest of judgment. Appeal from the decision of a justice of peace, tried in Abbeville district, before Brevard, J. The plaintiff had sued the defendant in the court of a justice of peace on a note of hand for twenty dollars.

The prisoner was in the prison of Orangeburg district, in October term, 1804, when he demanded his trial. In April term, 1806, two bills of indictment were found against him for passing counterfeit bank bills. At this term he again demanded his trial. He was tried on one oí the indictments, and was convicted. He was not prosecuted on the second indictment, under an expectation that he would suffer death in consequence of his conviction on the first.

Trespass vi et armis for taking away cattle. The Judge, Trezevant, at the trial, directed-the jury, that if they believed the plaintiff had lost his cattle by the trespass of the defendant, that he was intitled to their value, as well as damages for the outrage ; and the jury found accordingly. contended, that the judge had misdirected the jury, for that damages were recoverable for the trespass, only, and not for the value of the cattle, for the cattle may still be…

Assumpsit on an agreement made with defendant when under age, to serve plaintiff as an apprentice. Defendant gave infancy in evidence, on the general, on the trial, in Richland district, before Grimke, J. The judge directed the jury to disregard this ground of defence. Verdict for plaintiff. cited 3 Burr. 1319, 1719, 1801. 2 Str. 939. 1 Str. 690. An infant may bind him tor necessaries, so to learn a useful trade, for his benefit.

Motion to reverse decision. On summary process, before Grimke, J., in Richland district, defendant gave notice to the plaintiff’s at- ■ tomey, (the plaintiff being beyond the limits of the State,) that he • would réquire the oath of the plaintiff to certain points particularly stated, on the defence at the trial. The plaintiff had no notice.

Trover, in Sumter district, tried before Tkezevant, J. Plaintiff bought the negro girl, (the object,of.the suit,) at sheriff’s sale, under an execution, against his father, John Teasdale, senior, who had purchased the negro from Hugh O’Pry, from whom he took a bill of sale, dated January, 1800. The defendant claimed under a bill of sale from Agnes O’Pry, the daughter of said Hugh O’Pry, dated in August, 1803.

Debt on a bond given by W. R. Davis and his securities, conditioned on the part of Davis to perform the duties of sheriff of Camden district. Defendants pleaded perform, anee. Plaintiffs, in their replication, set forth a breach, viz.: That Davis had received, as sheriff, £30 upon a certain execution placed in his hands to be executed, &c., which money he had not paid over to the person intitled thereto.

Assumpsit to recover the price paid for a negro, which negro (as the plaintiff insisted) was unsound at the time of the sale, tried before Trezevant, J., in Sumter district.

Motion to set aside a decree on sum. pro. Petilion and process on a promissory note, before TrezevanT, J., in Sumter district. Plaintiff proved the note, and closed. A nonsuit was moved for on behalf of the defendant, forasmuch as the plaintiff had not produced letters of administration, to entitle him to maintain the action. Overruled.

Action of debt, tried in Union district, before Bay, J. Plea, non est factum.

Motion to reverse a decision of Bay, J., in Union district. The cause had been referred to arbitration, and the arbitrators had made an award.

Action on the case for words, &c. Tried in Union district, before Bay, J. It was proved that defendant had said of t.he plaintiff, that he believed the plaintiff had stolen his corn, because one Dees had told him so, and he intended to prosecute plaintiff for the theft. It was further proved, that defendant had prosecuted plaintiff, and that the grand jury had not found a bill.

<p>The plaintiff erected a partition fence on the line dividing his land from that of an adjoining proprietor’s land, after requesting the said proprietor to join in the building thereof, which he refused to do, in the city of Charleston; and afterwards, on the refusal of the owner of the same land adjoining, to pay any part of the expence thereof, brought assumpsit for a contribution, or a moiety of the expence, and gave in evidence a local custom of the place, entitling the builder of a party wall, or fence, to recover half the expence of erecting the same, and had a verdict. On appeal, it was adjudged by a majority of the court, {contra, Brevard and Wilds,) to be a good custom. .</p>

Motion to set aside a nonsuit, ordered by Bay, J., in Charleston district. At the trial of the cause in the District Court, it was suggested and agreed that the cause of action in this case was embraced in a bill in equity, filed by the plaintiff against the defendant. But plaintiff alledged that the proceedings in equity had been discontinued prior to the commencement of the present action.

The principal question on the trial of this cause before Bait, J., in Charleston, was,'whether an agent, employed by a merchant to ship goods for him, is bound to have the goods insured without particular instructions to do so ? Evidence at the trial was given of a custom or usage among merchants by which such an obligation is imposed on the agent. The existence of the custom was left to the jury, who found in favor of it. cited Marsh. 209, 218.

Motion to set aside a verdict' given for the plaintiff in covenant on a bond, with a condition covenanting to guaranty the payment of sundry bonds assigned and passed to the plaintiff in payment, particularly a bond given by R. P. Sanders for one hundred pounds, in which covenant it is conditioned that the plaintiff should use due diligence to recover and receive the monies due on the said bonds.

Rouse had sued Thomas to recover the price agreed on, for half a schooner. The jury gave a verdict for the defendant. Rouse then applied for a new trial, which was granted. • Upon the second trial', Thomas was again successful. After the event of the second trial, Thomas brought an action against Rouse, for a malicious prosecution, and for vexatiously and maliciously holding him to bail, in the aforesaid action. This last action was tried before Bay, J. in Charleston.

Action on the case for defamation. The declaration stated that the defendant, to defame the plaintiff, maliciously wrote and published a malicious and defamatory libel, and did prefer a complaint against the Attorney General, by way of petition to the Legislature, setting forth that the Attorney General had neglected and refused to do his duty, in failing to prosecute said Reid at the instance of the petitioner for harboring or feloniously stealing his negroes.

The plaintiffs in these several cases had sued out attachments against the defendanl, Strobel, an absent debtor. The attachment sued out by Crowninshield, was against Strobel & Martini, on a joint contract as partners, and was first delivered to the sheriff, but without a copy, or any directions to serve a copy on any particular person to answer as garnishee.

<p>The penalty for keeping a billiard table without licence, cannot be exacted by way of indictment.</p> <p>Note. If the Attorney General enter a nolle prosequi, the informer may, notwithstanding, proceed for his part. 1 Leo. 119. Cro Eliz. 583. Com. Dig. “ information.” See 2 Dali. 112, a distinction between informations filed by tho Attorney General and those filed by him at the relation of a private person. The former are always ex officio. The latter are, in a great measure, private suits. See 3 Burr. 1812,1270, 1305. Doug. 227. See Bac. Abr. qui tam.</p>

Sci. fa. against bail, before Trezevant, J., in Charleston. The declaration stated that judgment had been obtained, in the original action, against Theophilus Pease, against whom execution issued, and that sheriff had returned non est inv. That sheriff had returned to the capias ad respondendum against Pease in the original act cepi corpus, and had marked the names of the defendants as bail; and that they were liable, and prays judgment.

Motion to amend a special verdict. A feigned issue, had been made up, by consent of parties, to try the right which the United States claimed of being satisfied, in preference to all the other ere. ditors of the absent debtors, by attachment. A special verdict had been agreed on, and was found ; but certain material facts had been omitted, which were necessary to be found, in order to a full investigation, and satisfactory determination, of the question.

<p>The defendant cannot set up by way of discount to an action of trover by an executor, a right to detain the thing sued for, on the ground that the testator died at his house in possession of the thing in question, and that the defendant is intitled to compensation for his care, trouble and expenditures about the testator.</p>

Motion to set aside a judgment obtained against William Alston, as garnishee of Charles Pinckney, an absent debtor, on the ground that a copy of the writ of attachment had not been personally served on the said Alston, but was only left at his house in Charleston, at a time when he resided at another place near Georgetown; and that he had not been legally summoned or notified, and therefore, was not subject to a judgment for default.

<p>Motion for a new trial. Argued in December, 1804, before Grimke, Bay, and Brevard, Justices; continued under advisement, and by reason of the absence of Grimke, J., until 6th January, 1806.</p> <p>The action was trespass for taking personal property. Defendants avowed the taking for rent arrear. It appeared in evidence, that one Clayton was tenant of the defendants, and indebted to them for rent. That Clayton exercised the employment of a factor, or broker; and that the goods in question belonged to the plaintiff; who had instruted them in the hands of Clayton to dispose of for the benefit of the plaintiff. The action was tried before Johnson, J., who charged the jury that there was not sufficient evidence that Clayton was a factor, or broker. But admitting the evidence to be sufficient, yet, as a factor, or broker, was not intitled to any privileges of exemption from the general law of distress, the plaintiff was not inti-tied to recover: and the jury found for the defendants.</p> <p>Cited the cases in Bay’s Reports. Cro. Eliz. 249, 549, 596. 1 Salk. 249, 50. Co. Litt 47, a. He contended that the case of a broker, or factor, could not be distinguished on principle from the case of a vendue master; and that for the benefit of trade, and for reasons of public convenience," the goods in question ought not to be deemed liable to seizure for rent.</p> <p>insisted, that admitting the evidence ivas sufficient to prove that Clayton was a factor, or broker, and not a private agent merely, (which he denied,) yet that the goods were legally distrainable for rent, being taken on the premises. He said, that in England the question would not admit of dispute, and yet in that country commerce was highly favored, and the rights of property sedulously protected. That it would be attended with mischievous consequences to break through the well settled rules of distress, and under the influence of impressions favorable to trade and general convenience, to sacrifice the rights of landlords, whose dependence for rent rests on the right to distrain. Particular instances of hardship olten occur under the operation of almost every general rule of law, yet it would be unwise for that reason, if the court had power to abolish the rule, or deny its application in such cases. A mind capable of combining causes and effects, always regards the sum of things, and estimates the result in regard to society from their general operation. He animadverted on the case of fiimeiy v. Wyatt and Richardson, 1 Bay, 102 ; but admitted that notwithstanding the decision in that case was erroneous, yet the law, as therein laid down, could not now be denied. He, however, distinguished the present case from that; and contended, that as the cases were not exactly similar, that case ought not to govern the present. A licenced vendue master is, in some respect, a public officer ; he exercises a public employment, as well as a private trust. But a broker has no public trust or confidence reposed in him. He is only responsible for the personal trust confided to him. In all the cases cited, the privilege of exemption from distress, is founded on public convenience, and where the party privileged is, in some sort, a public character, and answerable in that capacity, as an innkeeper.</p> <p>Further, he alleged, that the right of the landlord to distrain, is advantageous to the tenant, inasmuch as the landlord relying on this security for his rent, is enabled to lease the premises on better terms for the tenant than if he had no such security. Cited 2 BI. Rep. 485. 8 Burr. 1504.</p>

Foreign attachment. The declaration was filed 31st March, 1806. James Laney and others were summoned as garnishees. The absent debtor had obtained judgments against the said garnishees, and execution was about to issue, when a motion was made in Abbeville District Court, before Grimke, J., to stay the execution, and stop the money recovered on the said judgments, in the hands of the garnishees, to satisfy the debt to be recovered of the absent debtor in the attachment.

<p>In an action of assumpsit founded on a special agreement, the substance of the special agreement ought to be stated in the declaration.</p>

Trover. Tried before Grimke, J., in Abbeville District. The action was brought to recover damage^ for converting a certain, bond conditioned to convey land given to one Winn to Drake. It appeared in evidence, that Drake, being in custody of the sheriff at the suit of plaintiff, Clarkej deposited the bond in question in the hands of defendant, Howard, as a friend, whereon to raise money for his relief, and to satisfy his creditor.

<p>At the next term after obtaining a verdict in debt on a bond, with a condition for the performance of covenants, the plaintiff' may submit the condition to a jury, as on a writ of enquiry, if not compelled to do so by the defendant pursuant to A. A.</p>

Trespass, to try titles, to land, tried before Gkimke, J., in Abbe-ville.

Assumpsit. General issue pleaded. At the first court, after the declaration was filed, at Abbeville District Court, before Grimke, J., defendant in open court, and in the presence of the plaintiff's attorney, who was attending to the motion, moved for leave to plead double, which was granted ; whereupon the additional plea was directly handed to the clerk.

Debt on bond, conditioned to make titles to land. The writ was returnable to April term, 180S. The declaration was filed the 26th August following. Rule to plead was posted the 5th September following. No appearance had been entered with the clerk of the court during the sitting of the court to which the writ was re, turnable.

Assumpsit on a note of hand, tried before Grimke, J., in Spar-tanburgh District. The defendant proved that the note was given for the plaintiff’s dower in 640 acres of land. The assignment of her dower was produced, by which it appeared that she had assigned all her right of dower, in, and to the said land, but did not warrant the same, nor set forth in the deed that she was entitled to dower, to the whole or any part of the land in question.

Assumpsit on a judgment rendered in Virginia. The proceedings of the court in which the judgment was given, stated a verdict in these words : “ We, the jury, find for the plaintiff nine pounds da. mages, with interest from the 15th December, 1783, till paid.” The judgment was in these words : “ Therefore, it is considered by the court, that the plaintiff recover against the said defendant his damages aforesaid, by the jury in form aforesaid assessed, together with his costs.

Debt on a bond, conditioned for payment of money* The de-fence set up by the defendont was, that the bond was given to secure the consideration money agreed to be paid for a tract of land, sold by the plaintiff to the defendant, and that there was a deficiency in the quantity sold.

Trover, for a mare, tried before Waties, J., in Chester dis. trict. It was proved at the trial, that ihe mare in question had belonged to one Henry Culp, who sold her to John Culp, and that the plaintiff had purchased her from John Culp.

• Summary process on a note of hand, given by the defendants for the purchase of a mare, sold by the plaintiffs under the estray act.

<p>If the indorser, at the time of the indorsement of a note, knows that the maker is insolvent, and that he has absconded, he will be liable to the indorsee, without^ any formal proof of notice of nonpayment.</p> <p>Note. See IT. R. 408. Bull. N. P. 271.</p> <p>Quere. If the motion had been to arrest the judgment?</p>

<p>The absent debtor drew an order on A. in favor of B. and A. accepted the same, to be paid when he should collect as much on certain notes, &c. belonging to the absent debtor; afterwards, and before A. collected the money, an attachment at the suit of C. issued against the absent debtor, and A. was summoned as garnishee, who afterwards collected the money before he was required to make a return to attachment. It was adjudged that A. was bound to pay the money to B. on his acceptance, notwithstanding the attachment.</p>

All the judges present. Assumpsit for goods sold, money had and received, &c. Tried in Richland-District Court, before ORrsiKBr J., April last. The case was this : One Mackin, being indebted to the plaintiff, agreed to give him an assignment of certain goods and merchandize then in his (Mack-in’s) possession, provided the plaintiff would undertake to bear harmless the defendant in regard to two notes of hand which he had signed along with Mackin as Mackin’s security.

All the judges present, except Bay, J. Trespass vi et armis.

Special action on the case, Plaintiff set forth in her declaration that the defendant, pretending to address her, in order to prevail on her to become bis wife, seduced her affections, debauched her, and got her with child; and afterwards deserted her and married an. other woman. Plea not guilty.

Special verdict found in Charleston district, in substance as follows: That the defendant bona fide creditors of Bird, Savage and Bird,sued out foreign attachments in this State ; after the service of which, other attachments were sued out on the part of the United States against the said Bird, Savage and Bird ; that Bird, Savage and Bird, are British subjects and merchants of London ; that the last mentioned attachments were served by attaching the same effects and credits…

At the trial in Charleston district, before Judge-, he allowed the plaintiff, who was a scrivener, to give his books of account in evidence.

The action was assumpsit, tried before Wilds, J., in Beaufort district. The plaintiff was a physician, who seeing, not far frbm his residence, a female negro slave, belonging to- the defendant, in the road, in a miserable condition, almost naked, shockingly beaten, and having an iron on her leg of fifteen pounds weight, was induced, from motives of humanity, to take her to his house, where she was carefully attended, clothed, nourished, and cured.

Assumpsit, tried in Georgetown District, before Bay, J. To prove the plaintiff’s'demand for goods, &c., sold and delivered as a retail merchant, one Crawley, a clerk of the plaintiff, proved the original entries in the plaintiff’s account book, and that the goods were delivered to one Woods, who applied for them on the defendant’s account. It appeared that this Woods had lately married the defendant’s daughter. The goods were charged to the defendant.

This was an action to try titles to five hundred acres of land, on Long Cain, in Abbeville district. The plaintiff produced a grant from the State to himself, for the land in dispute, dated 5th Decern-ber, 1785. The land was identified ; and it • was proved that the defendants lived on part of the land, not far from each other, and that William M’llwain, one of them, had lived ten years, and upwards, on the land ; and another of them seven or eight years.

Trespass to try titles to land, in Abbeville district, before Wilds, J. The plaintiffs produced an original grant of the land in dispute to John Young, on which the following words were endorsed : “ I, the subscriber, do hereby for myself, my heirs, executors, adminis. trators, and assigns, sell, alien, remise, assign over, and confirm forever, unto Dr. Thomas Clark, of Long Cane, all my right,-title, in. terest, claim, and possession of the within deed of 309 acres of land,…

Trespass to try titles, tired before Wilds, J., in Pendleton district.

This was an action tried in Laurens district, before Wilds, I. The first count in the declaration was a special count in trespass on the case, stating that the defendant had sold the plaintiff a tract of 300 acres of land for £100, and that he knew at the time he sold the same, that it belonged to one Samuel Bell, and that he promised to warrant and defend the same land to the plaintiff; and that the plaintiff confiding in the promises of the defendant, took possession of…

<p>Grants of land, issued by authority of either province of North or South Carolina, prior to the complete establishment of the boundary line, in 1773, considered valid.</p>

Trover, for the conversion of a negro boy, tried in York district, before Waties, J. The plaintiffs founded their claim upon an instrument of writing, which was in the words following: “ State of South Carolina, York district.

Trespass to try titles to land, tried in Lancaster district, before Geimke, J. Plaintiff claimed under patent from the State to John Hood. Defendant claimed under patent to Samuel Littlejohn. Defendant’s was the elder patent; but the land was described in the patent and plat annexed thereto, to be situate on Cedar Creek, waters of Broad river, whereas the land in dispute lays on Cedar Creek, waters of the Catawba river, and is so described in the plaintiff’s patent.

Motion to set aside nonsuits, ordered by Waties, L, in these cases, in Fairfield district. The actions were for maliciously, falsely, and without probable cause, prosecuting the plaintiffs for felony. The plaintiffs, at the trial, offered in evidence, copies of the indictments preferred against them, at the instance of the defendant, upon which they had been tried, and were acquitted.

<p>A free person of color, born of a free white woman, or the lineal descehd-ant of a free white woman, ex parte materna, is an admissible witness in our courts.</p>

Trover for two negroes, tried in Edgefield district, before Bee-Vard, J. The plaintiff declared as*administrator with the will annexed of Drury Chew, deceased, and proved that the negroes in question belonged to the estate of said Chew at the time of his death.

Assumpsit. Demurrer to the declaration, decided by Treze-vant, J., in Edgefield district, in favor of the defendants, on the ground that the declaration did not state that the plaintiffs were a corporate body, nor set forth the names of the several plaintiffs, which was necessary, if they were not incorporated. Assumpsit, as indorsees of a promissory note against the maker.

Summary process, in Edgefield district, before Trezevant, J. Plaintiff sued on a promissory note, in which nothing was said about interest. Upon calculating legal interest on the principal sum from the time it was payable, it appeared that the principal and interest would exceed £20. The defendant objected to the summary jurisdiction of the court. The plaintiff said he did not claim interest, and that interest was not stipulated to be paid by the contract.

<p>Action to try titles, tried in Edgefield district, before Grimke, J. The plaintiff made out a good title, under an original grant. The defendant then produced a grant of a subsequent date, to one Block, er, for the same land, and a deed of conveyance from Blocker to John Miller ; and proved that Miller had four years uninterrupted possession. He then proved a title from Miller to himself, and that he took possession of the land immediately after Miller quit the pos. session of it, and that he remained peaceably possessed thereof for the space of two years prior to the commencement of this action. The defendant relied on the statute of limitations. The judge charged the jury in favor of the plaintiff, who found a verdict accordingly.</p> <p>who insisted that by a fair construction of the limitation act the defendant was intitied to hold the land, and that the plaintiff was barred. That the second section of the act ought to be ex. pounded with reference to the first, and that the Legislature must have intended a possession under some kind of title, and not to am thorize or sanction trespasses without an)' semblance of right 5 and therefore as titles may be transferred, and as it is for the interest of the community to encourage the transmission of pro* perty by sale, there was every reason to believe the Legislature intended to favor possession, though by different persons, if their claims were founded in the same right, were concurrent, and not incompatible, or inconsistent; and, therefore, he contended the act ought to be so construed as to authorize the taking of the posses* sion of Miller and the defendant together, so as to complete the term of possession, which was necessary to bar the plaintiff.</p> <p>on the contrary, argued that the junioi grant, under which the defendant claimed, was a mere nullity, and did not authorize any entry on the land, and that those who were in possession, under the pretended authority of that grant, were trespassers. That a trespasser can gain no right or title by any act of trespass, unless he himself should have actual and peaceable possession for five years; in which case the act of limitation would, at the expiration of that time, quiet him in his possession, although founded in tvrorig, and forbid the future recovery by the true owner. That such possessory right, under the limitation act, must commence, and be consummated, in the same person ; because, till the tortious possession has been turned into a lawful possession by the operation of the act, it cannot be regarded as conferring any privilege or right, which can be the subject of a legal transfer; and two tortious acts, or two portions of time, during which different persons have exercised unlawful dominion over the land, cannot be joined, or consolidated, so as to make up the right to quiet enjoyment, intended to be given by the act of limitations.</p>

Trespass to try titles to land In Edgefield district, before Grimke, J. Plaintiff produced a grant to himself. Defendant proved that one Blocker had a grant of and conveyed the 'land to one Miller, and that Miller was five years and upwards in the peacéful possession of the land, and cultivated part of it.

Summary process, before Gkimke, J., in Edgefield district, March, 1806. Plaintiff, who was a planter, or farmer, offered to prove his demand, which was founded on an account charging various articles, viz., corn, beef, whiskey, &c., by his own oath, and his account book, containing the original charges of the several items in the account. The judge refused to admit the book in evidence, or allow the plaintiff to be sworn to prove his book.

False imprisonment tried before Trezevant, ‘J., in Edgefield district. Plaintiff proved that he was taken by Malone, who pretended to act as a constable, in Jan. 1806, who tied his hands together, and carried him to Blocker’s, where he was kept in cou-fmement some time, and then released upon his giving security to appear at court, and answer to a charge, or complaint, which had been made against him, by one Stedham, in the spring of the year 1805.

Action on the case for harboring a negro woman, the property of the plaintiff. It was proved at the trial, before Tkezevant, J., in Edgefield district, that the negro had been stolen from the plaintiff, and that she had come bona fide into the possession of the defendants’ intestate, of whom slie had been demanded, and who refused to deliver, her up to the plaintiff. After his death the negro was again demanded of the defendants, who also refused to deliver her up.

On partition, the case was thus: Daniel Nail died intestate, in 1801, leaving two maternal aunts, his next of kin, one of whom intermarried with Shaffer, the petitioner in partition. The demandants claimed a moiety of the intestate’s lands, which lands the intestate inherited from his father, Caspar Nail.

Debt to recover the penalty imposed by an act of February, 1791, against'the defendant, as a justice of the peace for Lexington district, for retailing spirituous liquors. The act prohibits the retailing of spirituous liquors, or keeping of a tavern, by any justice of the peace, or any of his house or family, or for his emolument; or the granting of a license to retail, to any such.

Debt on bond. Plea, non est factum. At the first court, after issue joined, in Richland district, before Bkevakd, J., on motion in behalf of the defendant, he was allowed to plead in addition to the general issue, performance oí the condition of the bond. The bond was conditioned for the due performance of the duties of commissioner oí the public treasury. This additional plea was objected to as inconsistent, and incompatible, but the objection was overruled.

<p>An attorney gave a receipt for certain notes for collection; and after his death, an action was brought ag'amst his executors for moneys had and received; and the receipt was the only evidence relied on to charge the testator’s estate. It was adjudged that this evidence was insufficient; and that the plaintiff was bound to prove the actual receipt of money, or other payment, or a discharge by the attorney on account of the notes.</p>

Indictment upon the act of assembly.to provide for the mainteance of illegitimate children, passed in December, 1795. The defendant pleaded that he never had been brought before a magistrate, and required to enter into a recognizance as directed by the act. This plea was objected to at the trial in Richland district, and was ordered to be disregarded by the judge, (Trezevant) and a verdict was found against the defendant. '

Assumpsit on a promissory note, payable to-Sabb, or bearer. The handwriting of the defendant, the maker, was proved; but no evidence was given, on the part of the plaintiff, to show that he had obtained the note bona fide; and at the trial a nonsuit was moved for on this ground, in Richland District, which the presiding judge, Trezevant, refused, and a. verdict was given for the plaintiff. cited 3 Burr. 1516.

Appeal froln the decision of the judge of Ordinary, Simon Taylor, Esquire, to the District Court of Richland district. The presiding judge, Brevard, confirmed the decision of the Ordinary and dismissed the appeal. The administrators of Hirons appealed to this court.

Motion in arrest of judgment. The action was trespass, for assaulting and beating the plaintiffs, to their damage. Verdict for plaintiffs, in Richland district, before Trezevant, J. In support of the motion, Nott cited 2 Com. Dig. 107, 8. 1 Com. Dig. 148,147. 1 Esp. Dig. 316. 2 Com. Dig. 111. 2 Wils. 227. 2 Cro. 573, 655. 2 Ld. Raym. 1208. Cro. Ja. 655. Hard. 166. The wife cannot join in an action for the battery of her husband. 1 Vent. 328. 2 Ventris, 29.

Trespass on the case, in Richland district,' before Brevakd, J. The defendant, as administrator, having recovered a judgment and execution against one Hay, pointed out a negro to the sheriff, who sold him to satisfy the said execution. The plaintiffs’ intestate was present when the negro was pointed out to the sheriff, and gave information to the defendant, that the negro was liable to the execu. tion, and purchased the negro at the sheriff’s sale.

Summary process, in Sumter District, before Bkevakd, J. The petition stated that the defendants had sued the plaintiff for certain goods, sold and delivered ; and that at the trial, the plaintiff had mislaid a receipt or release from Cavit, which he had given in his life, time, to the plaintiff, acknowledging satisfaction in full for the same goods, and was unable to produce the same, in consequence of which judgment had been obtained against him ; and that he had since…

, in Sumter district, on a motion to quash the writ, and set aside proceedings in this case, on the ground that the defendant had been served with the process, while he was on duty attending a muster of the militia, under a clause in the militia act of 1794, which enacts, “ that no civil officer whatsoever, shall on any pretence, execute any process, unless for treason, felony, or breach of the peace, on any person whatsoever, at any muster, or other time, when such person…

Trespass on the case, tried in Sumter district, before Brevard, J., against the defendant, for damages, for a loss sustained by the plaintiff, from the defendant’s boat being snagged in the river San-tee, having the plaintiff’s cotton on board, which was damaged by water.

Special action on the case, tried in Darlington district before Bre-vard, J. The sheriff of said district having an execution of fi. fa. against the plaintiffs, levied on a tract of land, their property, and sold the same at auction to the defendant, for three hundred and fifty dollars.

Sci. fa., to revive a judgment recovered on a summary process, in Darlington district, before Brevard, J. Defendant pleaded nul tiel record, and upon inspection of the record, the court.gave judgment for the plaintiff. The defendant moved that plaintiff should be allowed the costs of a summary process, and not full costs, for declaring. But the court overruled this motion.

Assumpsit by the indorsee of a promissory note against the in-dorser, tried before Brevard, J., in Kershaw district. The note ■was made by N. Douglass, payable to David Minton, on the first of -^Pr*l’ 1802, and was dated tenth of September, 1800. It did not ap«-pear when the plaintiff received it, but the indorsement was filled up, dated 10th September, 1800.

<p>Four years adverse possession of a slave gives a title, if the possession has been fairly obtained, and the owner knows where the slave is, and that the possession is adverse, unless he things suit.</p>

This was a motion for a new trial, which was argued by Tuen-bull, and Ward, for the defendants, and by Cheves, and W. L. Smith, for the plaintiff, before Bay, Trezevant, Brevard, and Wilds, Justices. The circumstances of the case are fully detail, ed in the following opinion of the court. The arguments of counsel are omitted.

The action was brought on a promissory note against defendant, as indorser. It appeared in evidence, at the trial, before Tkeze-vant, J., in Charleston district, that defendant had negotiated the note to the plaintiff, at a discount considerably above the legal interest, for the lime it had to run ; and at the same time he indorsed the note, and thereby made himself liable for the return of the money.

Assumpsit on a promissory note, to which the defendant had subscribed his mark as the maker of the note. At the trial in Georgetown district, before Bay, J., the note was produced in evidence, and it appearing that there was a name subscribed thereto, as a witaess, the plaintiff offered to prove the handwriting of the-said witness, which the judge allowed him to do, in proof of ther note, although it was admitted that the witness was resident within the State.

A writ of sci. fa. was issued to revive a judgment entered up in Charleston district. The sci.fa. was returnable to Charleston, and was served on the defendant in Sumter district, where he resided.

In dower, before Trezevast, J., in Charleston district. The de-mandant claimed one-third of a lot of land, called the Distillery, in Mazyckborough.

This was an action on a bail bond. The defendant’s testator became bail for one John M’Allister, at the suit of the plaintiffs. The condition of the obligation was, that M’Allister should appear according to the exigency of the writ, and if he should be condemned in the action, that he, or the said bail, would pay the condemnation money and costs, or that M’Allister would render himself into the custody of the sheriff. The defendant pleaded the general issue.

Sci.fa. in Abbeville district, before Bay, J.,on a bail bond. Defendants were bail to the sheriff, for the appearance oí one William Wight. At the appearance court, in the action against William Wight, he. appeared by bis attorney, and made a defence; but no bail above, or bail to the action, was given.

In Lexington district, before Bay, J., the defendant was indicted, for that he did feloniously, and falsely, make, forge, and counterfeit, and cause, and procure, to be falsely made, forged,-and counterfeited, and did wilfully act and assist in the falsely making, forging, anti counterfeiting, a certain note of hand commonly called a promissory note for the payment of money, purporting to be a note of band for $150, and to have been made by one Nathaniel Durkie, payable, &c.…

Action on the case for deceit, before Bay, J., in Lexington district.

Action for words, in Richland district, before Bay, J. Defendant pleaded a misnomer of the defendant, and also a defect in the copy of the writ, in the notice indorsed thereon, no time being mentioned when the defendant was to appear to answer.

Summary process, brought to trial before Bat, J., in Lexington district. The plaintiff proved that he made a wager with the defendant on a horse race, for twenty dollars, and that he won. It did not appear that any money was staked. This action was brought to recover the twenty dollars so won.. On the part of the defendant, the laws against gaming were ob. jected, and the presiding judge decreed in favor of the defendant.

Debt on a bond, conditioned that William R. Davis should well and truly perform the duties of sheriff of Camden district; tried before Wilds, J., in Sumter district. Plea, performance. Replication setting forth a breach, by not having paid over, or accounted for, a certain sum of money, levied and collected upon an execution of fi. fa. of-, the real plaintiff, against--and Con-yers, and issue thereon.

Special verdict, found before Wilds, J., in Charleston, as follows: “ We find that the schooner Polly, was chartered by the plaintiff to the defendant, and Charles Reilly, whom he hath suri vived, on the 4th August, 1800, on a voyage from Charleston to the Havana, and back from the Havana to Charleston.

Special verdict, which stated,/ in substance, as follows. That the defendants entered into a charter party with-the plaintiffs, the 17th April, 1S0Ü, the plaintiffs acting as agents for the owners of the ship Polly ©f Boston, burthen 164 92-95 tons, for the affreight-men* Sa*^ vesselt0 said E. Gairdner These facts being disclosed by the special verdict, and the documents to which the same refers, it concludes, that if the court shall be of opinion that the plaintiffs are…

<p>An award will not be affirmed, unless made in conformity to the rules of court.</p>

Action on a policy of insurance, tried in Charleston, before-. The insurance was on the brig Flying Fish, from Charleston to the coast of Africa; underwritten by the defendant for $80O', and $400 on the same policy ; premium five per cent. Dated 21st Ssptem-ber, 1801. The brig valued at $300. The voyage to end at the place or port where she should first break bulk. Plaintiff claimed an average loss of 67 4-100 per cent.

Action on four bills of exchange, tried before Bay, J., in Charleston. The bills were dated Bordeaux, 7th November, 1800, for 36,340 livres, drawn by the defendant’s agent on him, payable in Charleston, at sixty days sight.

T^at the parties afterwards quarrelled; whereupon, the plaintiff demanded rent for the use of the premises, which the defendant re» fused to pay, saying I did not believe the spring belonged to the plaintiff, or that he had a good title to the same. It did not clearly appeauwhether this demand of rent was made six months prior to the commencement of the action; but there was evidence from which the jury jnight conclude that it was so.

The action was for false imprisonment, tried in Abbeville district, before Brevard, J. The evidence given at the trial was as follows.

Assumpsit. Defendants pleaded that their testator did not assume within four years. Plaintiff replied, that by reason of an act passed in 1789, no action could be commenced against the defendants for the sajd cause of action, until nine months after the said testator’s death. P. L. 494. And that the action was commenced within four years, exclusive of the nine months which ensued immediately after the time of the testator’s death.

The action was trover, for a negro slave named Jenny, and her son Prince. The plaintiff produced in evidence a deed of conveyance to himself, from Ezekiel Calhoun, in trust for the use of Mrs. Wilson, the wife of Hamilton Wilson^ dated in the year 1806 ; and it appeared in evidence, that Ezekiel Calhoun purchased the slaves in question, at a sale made by the sheriff of Abbeville district, under a mortgage.

<p>The judicial proceedings and judgments of the courts of any of our sister States, if duly authenticated according to the act of Congress, cannot be questioned as proper and conclusive evidence to be inspected by tlie court upon an issue of nul tiel record.</p> <p>And such evidence, on such an issue, ought not to be decided on by a jury- i</p> <p>The existence of such a record as that which is in issue in such-case, must be determined by the copy produced in evidence. But the effect of the judgment so appearing, may be questioned.</p> <p>Note. In this case, it appeared that sundry payments had been made alter the judgment obtained. The courtrecommended to the plaintiff’s counsel to submit the payments to the jury, and let them find the balance, allowing Georgia' interest on the judgment, which was done.</p>

Trespass on the case, tried in Laurens district, before Brevard, J. The defendant was charged with ig. iterance, and neglect in his duty as justice of peace, under the es-tray act, in consequence of which, the plaintiff sustained an injury; It appeared in evidence, at the trial, that an estray horse was taken up, and brought before the defendant, as a justice of peace; that the defendant caused the horse to be appraised by two persons only, and not on oath.

<p>Case sur assumpsit, from Union district, tried before Bay, J.</p> <p>Cited 1 Ld. Raym. 575. 8 Rep. 7 D. and E., 703, 300. Str. 739. Sellon 106. Barnes 100.</p>

Motion in arrest of judgment. Defendant was found guilty, before Smith, J., in Orangeburgh District, on an indictment upon the stat. 22 and 23 Ch. 2 c. 7, for burning a sawmill. The words used in the indictment did not strictly correspond with the words of the statute.

, at Newberry. The writ was returnable before October term, 1807. No appearance was entered during that term. In April term following, the plain* tiff filed his declaration, and demanded from the clerk an order for judgment by default, which the clerk refused, as no rule to plead had been served, or posted. The plaintiff then applied to the court; and the court ordered that plaintiff should have his order for judgment, and the cause docketed as a writ of inquiry.

Assumpsit, tried in Darlington district/ before Abraham Branding, Esq., sitting for Judge Waties. The declaration contained two counts. One for money had andre--ceived, the other for money advanced. The evidence was, that the defendant had sold the plaintiff a negro, for which he received a valuable consideration.

Debt on a bail bond. The defence was, that the bond was taken by the sheriff colore officii, and contrary to the stat. 23 H? 6. c. 9. It appeared, on the trial, that Hughes, the defendant in the original action, was arrested at the su‘t DeLieben & Co., in 1805. After the bail bond was given in that case, Hughes, on application to the court, for some cause-shown by him, was discharged from that arrest.

Action on a note of hand, due plaintiff’s intestate, who died partially insolvent. After his death, the defendant obtained cer. tain bank checks, which he set up against the action, by way of discount, and the same discount was allowed by the jury, although objected to by the plaintiff.

Debt on a bond, tried before Bay, J., in Charleston. Defendant gave notice of a discount, or of a de-fence by way of bar to the action, in nature of a discount..

<p>The admission of an attorney, in the management of a cause, ought to-be in writing; but, under particular circumstances, this rule may be dispensed with.</p>

CONSTITUTIONAL COURT, COLUMBIA, Motion in arrest of judgment, from Chester district. Action of trespass, vi et armis, for forcibly taking away the plaintiff’s daughter, under the age of twenty-one years, tried before Waties, J., who charged the jury that some degree of force was necessary to be proved, to support the action. Some short time after the taking, the daughter returned to her father, and seemed .much rejoiced getting- back.

In this case an issue had been directed by the Court of Equity, to be made up and tried in the Court of Common Pleas, on the question of devisavit vel non, which was tried before Brevard, J., in Colleton district, and the following special verdict, in substance, was found. That the testator, about to depart for England, made, and duly executed, his last will and testament, ou or about the 21st of June* ^03.

<p>Where the defendant gives notice of a discount, which overreaches the cause of action established by the plaintiff, the defendant shall have fell costs of suit in his judgment, for the balance of his discount.</p> <p>And it will not vary the case if the plaintiff sues in auler droit, because the judgment is against him, as defendant.</p> <p>Nor will it vary the case, if the judgment should be for a balance of the sum set off under £20, if reduced by the plaintiff’s demand.</p> <p>But in such case the defendant’s attorney shall not be entitled to charge more than once, “ for special matter and argument.”</p> <p>And in such case the charge of Is. for registering the judgment, may be taxed in the costs.</p> <p>Note. By the English law of set offs, if the demand pleaded as a set off over-goes the plaintiff’s demand, a new action must be brought by the defendant for ■file surplus. 3Esp. Rep. 104.</p>

Motion from Lancaster district, to reverse a decision of Bay, J., on a rule to show cause why a mandamus should not issue. The suggestion, on which the rule was obtained, set forth the following facts. That James Douglas left Ireland, of which country he is a native, and arrived in this State in the autumn of the year 1780, where he has continued to reside ever since.

Motion from Fairfield district, to set aside a verdict, and enter a nonsuit. Debt on a judgment obtained in the District Court of Camden. 'Plea, no such record.

A nonsuit had been obtained in this case. Execntion had issued against the plaintiff for costs. On motion to set aside the execution and judgment, as irregular in regard to the costs, before Smith, J., in Edgefield District, it was so determined. Motion in this court to reverse the decision.

<p>Motion from Edgefield district, to reverse a decision of Smith, J. Defendant was indicted for stealing two sheep, as for grand larceny at common law. His counsel moved to quash the indictment, on the ground that no prosecution, at common law, would lie, since the act of assembly, 1789. P. L. 488. The indictment was ao, cordingly quashed.</p> <p>said, that the indictment was brought for the common law offence, in order to preclude the defendant from taking advantage of the limitation act, to escape from justice. That it was optional to indict for grand larceny at common law, or under the act. That though it was usual to proceed, under the act, from motives of humanity and ciernen. cy, yet there was no obligation on the public officer to do so ; for that the common law was not repealed. The act does not create a new offence, and give a remedy where none was before. The of. fence was punishable before the act, which prescribes a particular punishment; and the rule in such case is, that either punishment may be inflicted, but not both. The punishment, under the act, is cumulative, and does not exclude the punishment at common law, Cowp. 648, 650. 1 Salk. 45. Cro. Ja. 643. 2 Burr. 799 to 805, Rex v. Robinson. 1 Salk. 832, Rex v. Royal. 2 Haw. P. C. 211. Though indicting, at common law, may have the appearance of oppression, inasmuch as the punishment is severer, yet the court ought not to have quashed the indictment on motion. The defendant ought to have demurred. See 10 Mod. 337. Bac. Abr, Tit. “ Statutes.” 2 Inst. 200.</p> <p>The punishment, for the offence, is altered by act of assembly, and the court are not authorized to award punishment according to the common law. The indictment must, there, fore, conclude against the act of assembly.</p>

Motion from Edgefield district, to quash the proceedings for irregularity, and for a new trial.

<p>Assumpsit is a proper action to try an express, or an implied warranty ^ but there must be a special count stating the contract and t.be breach ofit.</p> <p>If the purchaser, who has been deceived in a contract of sale, without any fault on his part, chooses to rescind the contract, he will be entitled to do so; but in order to do this effectually, so as to entitle him to recover back the whole of the consideration money, paid for unsound, defective, or deficient property, he rpust give the vendor notice within a reasonable time, of the cause of rescisión, and tender a return of the property, if within his power.</p> <p>But this is not necessary where the plaintiff’s claim to damages is founded on an express warranty, or on fraud, or intentional deceit, which is equal to an express warranty, but only where there is an implied warranty,, arising from mistake.</p> <p>Note. See 2 Binney’s Rep. 4. Kelley v. Foster. When the terms of a special agreement to do a certain thing, for a certain sum! have been performed by the plaintiff, the law raises a duty in the defendant, for which indeb. assumpsit will lie. Plaintiff declared in indeb. assumpsit, for work and labor, proved a promise, by the intestate, to pay him £200 if he would live with him till his death, which he had accordingly done. Held, the count was supported. No special count.</p>

The action was ^'ovel'> tried before Trezevant, J., in 1807. It appeared, from judge’s report, that M’Lain, the inféstate, left at his death a fe-mare, called Pol Jones, which pro. came into the possession of Margaret ma’e slave, named Bet, and a Iperty, after his death, M’Grew,- who claimed the same, as his next of kin, and legal heir.

<p>Motion from Richland district, to reverse a judgment on demur, rer, awarded by Wilds, J. The action was debt on a bond. The writ claimed $'<¡115. The declaration stated, that the bond, was given for $170, with interest and costs of suit; and averred, that by “ interest,” was meant such interest as had accrued on a certain promissory note, given by one Seltlinglon Haddon, to M. Harrison, and indorsed to the plaintiff; on which note an action had been brought against the said Haddon, who was holden to, bail; and that the bond in question was given by him and the de-fendai-t H dl, upon condition, tiv.il ¡1 tbe said Haddon should appear al the Court oi (humtw.i Plea-, to be holden at Columbia, on tbe fifteenth day of April next, alter the dale of the said bond, to answer to the plaintiff líale, indorsee of M. Harrison, for severa} promises, then the obligation to be void. [Tbe bond had sucb a condition underwritten.] And the averment further stated, that by interest was also meant such additional interest as should accrue on the same note to the time of' obtaining judgment on the same action, and that the whole interest so meant, amounted to $32 70. And also averred, that by the words, “ costs of suit,” in said bond, was meant such costs as should be taxed in the said suit, and that the said costs taxed in the said suit, amounted to $32 56. And that the said sums of 0170 and $32 70, and $32 56, amount to the debt demanded by the writ. The de-duration also contained an averment, that -the fifteenth day of April, in the bond mentioned, was meant for, and was, in fact, the same day as the third Monday after the fourth Monday in March, which was the appearance day next after the taking of the said bond for the Court of Common Pleas for the district of Richland.</p> <p>To this declaration the defendant demurred specially, and assigned the following causes. 1. That by the condition of the bond, as slated in the declaration, it does not appear that Haddon was to appear to answer on the day of the return of the writ, or any day in term. 2. Because the expression of the sum in the obligatory part of the bond is vague, uncertain, and obscure.</p> <p>The judgment of the District Court was for the defendant upon the latter exception.</p> <p>There is a difference be. twebn an apparent uncertainty on the face of the instruments, and a latent ambiguity resulting from external evidence. A secret un. certainty of words, not apparent on the face of the instrument, is cured by averment. An ambiguity apparent on the face of the instrument, cannot be helped by an averment. This doctrine is ac-bnowledged to be law ; but here the uncertainty does not arise from any ambiguity patens, or latens, within the meaning of the rule ; it is an uncertainty which may be rendered certain by a recurrence to facts and circumstances not slated in the instrument, but evidently alluded to. The rule of law is not very inflexible in its application, an exposition ought to be made of the whole instrument, and where certainty can be educed from evidence which .cannot be questioned, such evidence ought to be admitted, even if it should be parol evidence. If the uncertainty indicates what it is, which is to clear up the doubt, and points to parol evidence, such evidence ought to be admitted. Id cerium esl. Roberts on Fr. 96. Consider the object of the bond. It is a bail bond, with a condition to appear and pnswer. The obligation is to pay the debt, interest, and costs. The debt is ascertained ; the interest .and costs are not ascertained. The interest and costs could not be ascertained at the time the bond was given, because some part thereof was to accrue thereafter; but the whole was capable of precise ascertainment from unquestionable evidence. It is now certainly known, and is certainly averred in the declaration. The facts are stated in the declaration, which makes that certain which was not so before. These facts are admitted by the demurrer, for whatever is well pleaded is admitted by demurring ; a demurrer being an issue in law, which admits tho matters of fact properly pleaded.</p> <p>If the demurrer can be maintained as a general demurrer, it can as a special demurrer. Debt cannot be maintained on a specially for more than is expressed in the specialty ; because debt must be for a sum certain ; for a specific sutn, covenant might, perhaps, be maintained, for a sum beyond the specific sum mentioned, but not debt. 3 Bl. Com. 153. The written evidence of debt should not depend on other evidence to make if certain. Debt will lie on a verbal contract, in which action the plaintiff may recover less than he claims ; but the debt must be certain, and due, at the time of action brought. In this case the uncertainty cannot be made certain by any certain rule, or measure, which can be depended on. The certainty must depend on evidence which is uncertain ; on collateral facts to be established by parol evidence. The facts are not admitted by the demurrer, for the averments are improperly introduced, and ought to be rejected as irrelevant. 1 Esp. Dig. 190.</p> <p>Plow. Com. The facts pleaded must betaken as conceded ; and the only question must be as to their sufficiency in point of law. The defendant must be confined to the causes by him specially assigned, and cannot travel out of the declaration ; and the declaration maintains the writ, and shews the nature and certainty of the debt. But, surely, the plaintiff must have judgment for $170, although less than the sum demanded, since it must clearly appear that the defendant owes that sum at least. The plaintiff may, in debt, recover less than he demands, although he cannot recover more. 1 Saund. 285.</p>

<p>Lands that escheat, cannot be regranted as vacant lands, hut must be sold pursuant to the escheat act. " .</p> <p>Note. See A. A. 1787, P. L. 428. 3 Bl. Com. '73,258. 2 Bl. C. 245. 3 Burr. 1301. Co. Litt. 13, a. A. A. 1731. Special jury. See Plow. 213, 484. 3 Bl. Com. 259, and 2 Hen. and Munf. 330.</p>

<p>Motion from Richland district, to set aside a nonsuit. Action of' trover, brought to trial before Bay, J. It appeared at the trial, that the negro slaves, for the conversion of which this action was . brought, belonged to the plaintiff, and that he -had placed them in the hands and possession of the defendant, in pursuance of a contract, in writing, and under seal, entered into by the plaintiff and defendant, dated January 4th, 1805, which contained, among other things, the following covenants. The defendant agreed to sell and convey to the plaintiff certain lots of land, and the buildings .standing thereon, in the town of Columbia, for which the plaintiff agreed to pay the defendant $5000. The slaves in question were to be paid, and received in payment,at the price or value of $11,000. It was stipulated, however, that the said slaves, though they were delivered to the defendant immediately, in part execution of the contract, that they should not be answerable for his debts; and it appeared from the whole written contract, taken together, that the intention of the parties was, riot that the property of the negroes should be immediately and absolutely transferred, but that the transfer should be conditional only, and should depend on the performance by the defendant of his part of the same contract. The balance of the consideration money to be paid by the plaintiff, was to be paid on the first of May next after the date of the contract; and $31 66, of it were to be paid to William Fitzpatrick, to whom the defendant was indebted. The defendant was to make a title to the plaintiff of the land, and to lodge the deed of conveyance as an escrow in the hands of Mr. B. Purvis, until the contract should be completed ; and he was to put the plaintiff in possession of the-bargained premises, on or before the first of May next then .ensuing. The plaintiff,’ after producing the deed which contained the agreement aforesaid, and after proving the same, and also proving the defendant’s acknowledgment, that the negroes were in his power and possession, and a refusal to deliver them up, offered evidence to prove that the defendant at the time of the contract was utterly unable to comply with the terms of it on his part. That the lots and houses which he had covenanted to sell and convey to the plaintiff, had been sold prior to the date of the said contract, by the sheriff of Richland district, under an execution against the defendant; and that at the time of entering into the said contract, the defendant had no right, or power, to sell and convey the premises. That the plaintiff was-deceived and imposed upon by the misrepresentations of the defendant, and the concealment of material circumstances affecting the said contract, which it was the duty of the defendant to have disclosed. It was intended upon this-evidence to have con*’ ten<^’ t^at transfer of the slaves in question was conditional only, and not absolute. That the right of property still remained *n the plaintiff; and that as the defendant was unable to comply with the terms of the contract on his part, the contract was at an end, and had ceased to bind the plaintiff | and, therefore, that he was entitled to reclaim the negroes, or recover damages for their illegal conversion, after a demand and refusal. The learned judge, however, being of opinion, that the action of trover could not be supported, that the remedy was mistaken, and that covenant was the proper action in such case, refused to admit the evidence of» fered. Whereupon the plaintiff was nonsuited.</p> <p>Bay, J., was of opinion the covenants were independent. That the right of property in the negroes vested in possession by the delivery to the defendant.</p> <p>Nov. 7,1807. This case was argued before all the judges, except Treüevant, 3,</p> <p>in support of the motion. The evidence was rejected ; therefore it cannot be known whether the allegation of fraud was, or was not, true. If the allegation had been proven, the whole contract must be void. The court declared that the action was misconceived, and on that ground the nonsuit was taken. Though covenant would lie, it will not follow that trover may not also be maintained. But covenant would not lie in this case; and trover is the proper action. He referred to Esp. Dig. 285,538. The defendant has gotten possession of goods of the plaintiff, to which he has no just right, and refuses to restore them. The question is resolved to this. In whqpa is the right of property? The covenants are executory. The transfer of the negroes is conditional. Such a contract is lawful. It may be pru. dent, it may be necessary, to guard against fraud by such precautions. Covenant might lie to enforce the contract, and recover damages ; but in this case, the remedy would be ineffectual. The defendant is insolvent. The plaintiff has a right to insist on a re-scisión of the contract, either on the ground of fraud, or because the defendant is unable to comply with that part of it to be by hint performed. The terms of the contract authorize him to do so. The contract declares, “ that the property shall not vest so as to be liable to the defendant’s debts. It could not, therefore, vest, at all.</p> <p>Covenant goes to confirm the contract; trover to disaffirm it. 4 Co. 242. Plaintiff may have a choice of remedies. The intent of the contract was, that no property should be absolutely transferred until the contract should be executed in toto. The contract could not be executed, on the part of the defendant, who had notice by the demand of the negroes, that the plaintiff chose to consider .the- contract at an end. The defendants qualified property was thereupon discharged. He referred to 2 Bos. and P. 346. 7 D. and E. 65. 4 D. and E. 216, 5 do. 175. And insisted that property, not fairly and absolutely transferred, may be recovered in trover, or damages for the conversion.</p> <p>The plaintiff has no right to disannul the contract ; and therefore, according to the position of the plaintiff’s counsel themselves, trover cannot be maintained. The plaintiff cannot prove what he has suggested, that there was any imposition on the part of the defendant, or that he is unable to perform his part of-the contract. The contract was entered into with a full knowledge of all the circumstances relating to it. The defendant, by the terms of the contract, was to keep possession, at all events, of the negroes, till the other parts of the contract should be executed. Covenant is a remedy of a higher nature ; therefore trover will not lie. 2 Sir. 1028. Covenant would not so far affirm the contract as to vest the property of the negroes in the defendant, unless ac. cording to the true intent of the contract.</p>

Motion from Darlington district, for a new trial. Action of as. sumpsit, tried before Smith, J., for cabinet ware furnished to the defendant, and sent from Philadelphia. Plea, non assumpsit within four years. An acknowledgment of the debt, but a positive refusal to pay, was proved. Acknowledgment of the debt still existing, is evidence of a new promise., From such evidence, a promise may be presumed.

Action of debt, tried before Bay, J., founded on a clause of the act for the suppression of vagrants, of 1787, P. L. 431, which enacts, “ that if any informer shall be convicted before the judges of the County, or Circuit, or Court of Sessions, of having preferred* bis complaint through malevolence, or spite, without any just grounds of accusation, he shall be adjudged to pay a fine of five pounds to the party injured, besides being liable to an action for damages.” The…

Action of covenant, tried before Bay, J.' The covenant, upon which the action was founded, was contained in a deed of bargain, sale, and release, from the defendant to the plaintiff, in (in consideration of $500,) of 150 acres of land, more or less.

Motion in arrest of judgment, and for a new trial. The defend, ants were found guilty of murder, upon an indictment tried before Smith, J., in Kershaw district. The indictment contained several counts; but the verdict of the petit jury was founded on the first count only, which charged that Isaiah Jenkins, and Jesse Fley, Jr., on the 13th of April, 1805, with malice aforethought, made an assault on David Minton.

Trespass on the case, tried before Bay, J., at Abbeville. Verdict for the plaintiff. The defendant was owner of a machine for cleaning cotton from the seed, for a certain toll. The plaintiff sent a quantity of cotton to the machine to be cleaned. The defendant worked his machine • at night, by the light of a candle in an old lanthorn, under the management of a negro. The gin house, and its contents, were consumed by fire.

Assumpsit, for the work and labor of ■certain negro slaves, tried before Brevard, J,, in the District Court of Beaufort, in November, 1807.

Covenant, tried before Gkimke, J. in Charleston district. Verdict for the defendant. The motion for a new trial was argued the 8th and 9th of January, 1810, before all the judges except Gkimke, J., absent sick; by Cheves, and Pringle, for the plaintiff; and by Drayton, Pak-kek, and Simons, for the defendant. The following questions were debated : 1. Whether insurance be included in sailing expences ?

<p>Motion for a new trial. The action was trover, for the conversion of six negro slaves, tried in Georgetown district, before John Keith, Esq., sitting for Judge Grimke, in April, 1808.</p> <p>Verdict for the plaintiff.</p> <p>The motion was argued on the 9th and 10th of January, 1809, before all the judges, except Bay, J., who was engaged in the District Court, by K. L. Simons, and W. Drayton, for the motion, and Heath, contra.</p>

Action of assumpsit, in Georgetown district, before Waties, J., November, 1808. The declaration contained five counts. 1.

The action was assumpsit, to recover $2660 96, §>r the freight of 1050 boxes of sugar, shipped at the Havana for Boston, on board the ship Fair American, owned by the plaintiffs. It was tried in May, 1807, before Bay, J. It appeared on the trial, that the ship put into Charleston in distress, where she was condemned as unworthy of repairs.

Motion to set aside a nonsuit, ordered by Wilds, J., in Charleston District Court, January, 1800. The motion was argued in January, 1809, by Ward, and Dkaí-ton, for the plaintiff, and Curves, for the defendants. Many points were debated in the argument, relative to the propriety of evidence offered on behalf of the plaintiff, and rejected as inadmissible.

Action of assumpsit, for work done, and materials found, for the ship Jane, in the port of Charleston, tried before Bay, J. Verdict for plaintiff. The defence was, that the ship Jane was a British ship, owned by persons m England. That the plaintiff’s remedy, as the Jane was a foreign ship, was cither against the ship, the owners, or the master, or against the ship owners and captain.

, in the District Court of Pendleton, on an application by James M’Donald and his wife, upon a writ de lunático inquirendo sued out against Adam Richards, and upon which the said Adam Richards bad been found a lunatic, to be appointed the committee of the said lunatic, to have the custody and charge of his person and estate.

Motion to set aside a nonsuit, and grant a new trial. Assumpsit on a promissory note, brought to trial in the District Court of Spar-tanburg, before Bhevaüd, J. At the trial, the note being pro•duced in evidence, it appeared that an indorsement on the same had been stricken out by the plaintiff just before, which was in the following words, viz.: “ I assign the within note to Gabriel Benson, for value received, this 9th April, 1807.

Summary process on a promissory note, tried in Union district, before Brevard, J. The note in question was made by the defendants, payable to one Garner, by whom the same was indorsed to the plaintiff.

Motion to set aside an order of court mao’e in Spartanburg District Court, by Grimke, J. The action was brought to try the titles of the parties to a tract of land. While the cause was pending in court, it was agreed to refer the matters in dispute to certain arbitrators, mutually chosen by the parties, under a rule of court, by which the award of the arbitrators was to be returned to the next court, to be made a judgment thereof.

Motion in arrest of judgment, or for a new trial. Indictment in York District Court, before Gkoike, J., against the defendant, charging, that Fanny Harris, single woman, was delivered of a male bastard child, and that the defendant is the father of the same child ; that the same child will become a burthen to the district; and that the defendant refused to enter into a recognizance with security, for the maintenance of the said child, contrary to the act.

Motion to set aside á nonsuit. Assumpsit, in York district, before Wilds, J., March, 1809. The declaration contained three counts. Two of them set forth specially, that plaintiff and defendant had disputes about the possession of a tract of land, belonging to the Catawba Indians, leased to them (the parties) respectively for a term of years.

Assumpsit on a promissory note, tried before Brevard, J., in York district. Pleas: 1st, non assumpsit. 2d, the limitation act. 3d, plene administravit, before notice of plaintiff’s claim. At the trial, the plaintiff admitted that he had no evidence to offer to rebut the evidence on the part of the defendant to maintain his second plea, or to save the claim from the operation of the limitation act.

Motion to reverse a decision made by Brevard, J., in Lancaster district, on a writ of partition, the question was, whether a tract of land, or any part thereof, ought to be included in the writ. The facts were these : Jane Carnes, widow of the intestate, had been, before her marriage with the intesfate, married to James White, after whose death she married Carnes, and with her second husband, sued out a writ of partition of the estate of her first husband, who died intestate.

Motion to set aside a verdict, obtained by a writ of enquiry after a judgment on demurrer, in Sumter district, before Smith, J. The action was trespass on the case against the defendant as sheriff, for suffering a person to escape, who had been arrested by him on mense process, in debt, requiring bail.

Motion to reverse a decision made by Brevaed, J., in Sumter district. Indictment for an assault, with an intent to commit murder. The defendant pleaded in abatement, that his name was not Lorey, but Lorez.

Motion to set aside a decree on' summary process, and enter up judgment of nonsuit. The decree ,was given by Smith, J., in Sumter district, on a promissory noté’ of hand. Plaintiff proved the handwriting of the subscribing witness, and that he was absent from the state ; but gave no evidence to- prove the signature of the defendant, the maker of the note, which, signature was a marie in place of the maker’s name.

Trespass to try titles, tried before Bay, J., in Sumter district, in October, 1808. Plaintiff’s deduction of title was as follows. Grant to John Chisholm, in 1774, who died in 1796, intestate, leaving one brother and three sisters, living in Scotland,'aliens, bis next of kin. One of the sisters proved to be dead, intestate, before the commeneemenl of this action, and plaintiff, her child, born in Scotland, and never in this country.

, presiding. The plaintiff sued before the justice of pence, and obtained judgment, on a note ol ’hand given for §13 75, dated June 7tb, 1802, payable in thirty days. At the time of awarding judgment, the principal and interest amounted to §20 16, for which judgment was given; but when the note was sued, the principal and interest did not exceed $20.

Motion to reverse a decision made by Wilds, J., in Darlington district in November, 1809. Plaintiffs brought trespass to try titles to land, and obtained a verdict for four undivided ninth parts of a certain tract of land in dispute; it appeared on the trial, that there were other persons besides the plaintiffs jointly entitled to the same land.

Special verdict, found in Marlborough district; determined by Smith, J., for defendant. Motion to reverse said judgment. The special verdict states, that the land (this being an action to try titles) in question was granted to the plaintiff in March, 1806 ; but part of the same had been previously granted to Stephen Gibson, in the year 1789, as land lying in Georgetown district; although, in fact, it never lay in the district of Georgetown, but in Cheraw district.

The jury found for the defendants; from whose decision this motion was submitted by way of appeal.

Motion to set aside a nonsuit. Action ■ of trespass vi et armis, for taking away and disposing of the plaintiff’s goods, brought to trial before Bay, J., in Kershaw district. It appeared in evidence, that plaintiff had left his house in Camden, where he lived, being a house he had rented from a third person, with the goods therein, locked up, while he went into the country.

Action of debt on a bond, in Kershaw district. Defendant’s intestate confessed judgment, and soon after died; but before his death an order for judgment was entered on the record. Final judgment was, after his death, entered up. A motion was made before Bay, J., in Kershaw District Court, to set aside the judgment, as no notice had been given to the administrators before entering up the final judgment; and because the same had been entered up without a special order of court.

The defend* ant was tried, in Kershaw district, before Brevard, J., on an indictment founded on an act of assembly, 1796, to prevent dealing,' and trading with slaves, without permission in writing from the' owner, or persons having the care or management of such slave'.

<p>A man cannot, by a deed of gift, carve out a life estate for himself, and ’ limit over the remainder of a slave to another. The whole vests in the remainder-man, or the remainder is void.</p>

<p>Notes indorsed in blank, and deposited in a bank, as security for money borrowed, may be put in suit by the bank as indorsees; and the defendant cannot object to the action.</p>

<p>An execution tested on the first day Of term before the defendant’s death, ; may actually issue after his death; but in such case to be good, the judgment must be actually signed previously to defendant’s death. (Jn the notes.)</p> <p>Note. Execution may issue before judgment entered upon signing the roll. See Law of Executions, 43. Judgment relates to, and is considered a judgment from the first day of the term; and execution tested the first day of the term, relates to, and consists with the judgment. See 2 Ld. Caym. 766. 7 Mod. 2, 93. 3 P. Wms. 399. 7 T. II. 20. May have relation bail: to a time anterior to defendant’s death; and good, although sued out after. The deiiveryto the sheriff, and his indorsement when lodged, affects only where purchasers are concerned. See fctat. Frauds, and 7 T. R. 22, But if defendant be in fact dead before judgment signed, execution cannot issue by relation, &c. 6 T. R. 368. See 2 Stra. 882, 1081. 3 P. Wms. 400. Salk. 87. 2 Mod. 93. Sltinn. 257. 2 Mod. 310. I Bos. and Pul. 571.</p> <p>See 4 T. R. 632. An execution acquiesced under, is equivalent to a conveyance.</p>

Action on the case for harboring certain negro slaves, the property of the Joseph Hays’ estate, tried before Smith, J., in Barnwell district, in the fall of 1808.

Motion to set aside a nonsuit, from Newberry district. Assumpsit, brought to recover a sum of money which was paid to the defendants intestate, General Levi Casey, by the plaintiff’s testator, Joshua Whitmore, for a certain negro slave named Caesar, sold by Levi.

<p>In replying to a plea of the act of limitations, the plaintiffs must, in some cases, show that an alias writ issued, in which case he must show that it was a continuation of the first writ or leading process, and for the same cause of action.</p> <p>The plea of the limitation act is a bar to the plaintiff’s action, if it be not brought within the time limited after the right of action accrues.</p> <p>Note. See 3 Burr. 1281. Doug. 655. 2 Sellon’s Pract. 343.</p>

Motion to reverse a decision of Waties, J., in Richland district. Sci. fa. to reyive a judgment. The defendant pleaded a discharge under the act respecting prison bounds. Plaintiff replied that defendant had not rendered a true account or schedule of his property, but had concealed part of his effects. Motion in the District Court to strike out this replication as a frivolous plea; which was overruled.

Motion to reverse a decision of Grimke, J., in Richland district. The defendant had given two notes of hand, one for $ 100, and the other for $25, which were lodged in an attorney’s hands for collec. tion, who issued a writ on the first note, and a summary process on the second.

<p>Motion for a new trial. Indictment tried before Smith, J., in Richland district, for an assault and battery of the sheriff of Rich, land district, in the due execution of the duties of his office.</p> <p>It appeared that the sheriff attempted to arrest the defendant by virtue of a writ of capias ad respondendum, at the suit of Creyón & Co., to which writ an affidavit of the defendant, Creyón, was annexed, of the debt due, sworn to before the clerk of court. The affididavit'did not state the amount of the debt, but referred to the account stated, also annexed to the writ. The writ was returnable to the cleik on a particular day of the month mentioned, and not on the third Monday after the fourth Monday, &c., as presciibed by act of assembly. The defendant refused to be arrested ; and threat, ened the sheriff; pointed a loaded gun against him, &c.</p> <p>V, rdicl guilty.</p> <p>took sundry excep. tinns to the writ of mesne process, in virtue of which the sheriff pretended to be authorized to arrest the defendant. The irregular return; insufficiency of the affidavit to hold to bail; and cited 3 Burr. 1447. 1 Wils. 297. P. L. 273,144. A. A.'</p>

Trespass to try titles, tried before Trezevakt, J., in Richland district, in April, Í807. Verdict for the plaintiff* The argument commenced on the motion for a new trial, iri April, 1807. Some papers being mislaid, the counsel agreed to postpone further argument at another time. It was argued again at a subsequent meeting of the judges by

Trespass to try titles, tried in Richland district, before Waties, J. Plaintiff claimed under a deed of conveyance from the widow, and the only daughter of Dr. Hailey, who was proprietor of the land in question.

Defendants were convicted upon an indictment for a riot, and assault, in entering the plantation of the prosecutor, and violently disturbing him in his possession. Defendants found guilty of assault only. It appeared that the dispute was for the. possession of a tract of land, which belonged to one Rogers, and which, after Rogers’ death, the prosecutor, Manning, as his administrator, had taken possession of.

Motion to reverse a judgment of the District Court of1 Chester* on demurrer to an indictment against the defendant, charging him with having, in the night time, maliciously, unlawfully, and wilfully^ killed and destroyed a horse, the property of a person iri the indict, ment named, contrary to the statute in such case made, and provided, and made of force in this State. The statute 22, and 23 C The demurrer was overruled by Waties, J., who presided in the District Court.

<p>Ip the description contained in the grant of the land claimed by plaintiff, or defendant, if the land of another grantee should be called for, and the direction of the line called for is not mentioned, or no line should be called for, but only land generally ; and the line of plaintiff’s or defendant’s grant, should, from necessity, be the line of the elder grant called for; in such case, although the course of the line in the grant of plaintiff, or defendant, should be mentioned, upon a supposition that the course of the elder line of the land called for, is the same, and should be mistaken ; the course of the line of the elder grant shall control the course of the line of the younger grant; and if the next boundary called for should be another tncl of land, described as laying at the termination of the boundary line first called for, and the same lme should ter-mínate before it reaches the second, line called for, the direction of the first line must be pursued, without any variation, until it reaches the second boundary called for ; and cannot, after the termination of the first line called for, as a boundary, make a set-off therefrom, and assume the course'expressed in the plaintiff’s title, as the direction thereof.</p>

The defendant was tried in Barnwell district, before Charles Goodwin, Esq., who sat as judge, in place of Smith, J., on an indictment which charged him with stealing a pig, contrary to act of assembly. The counsel, for the defendant, moved to quash the indictment) on the ground that there was no act of assembly which made tbe stealing a pig criminal; and that the common law offence was done away by the act against stealing cattle and hogs.

The defendant ivas indicted before Smith, J., in Edgefield dis. trict, for murdering her bastard child. The jury found the defendant not guilty, but the judge being of opinion the evidence au. thorized a different verdict, refused to discharge her; aad now this motion, on the part of the State for a new trial, was argued by Stark, the Circuit Solicitor, who contended, that a now trial m such case might properly he granted lor the State, as well es for the prisoner.

Defendant was indicted for a forcible entry and detainer, in Lau-rens district, before Bay, J. It appeared in evidence on the trial, that when the defendant took possession of the land in dispute, the prosecutor was not in possession thereof, or on the land, and had no crop growing thereon, or any property thereon, except an empty barrel, and a piece of leather.

The libel was contained in a-pamphlet published ant^ written by the defendant, vindicating himself from a censorious decree of the Court of Equity, implicating his character; in which pamphlet the conduct of O. Lining, Esq., Ordinary of Charleston district, and an attorney at law, was severely animadveited on. At the trial, the defendant claimed the right of proving the truth of the facts stated in the pamphlet,' which were charged as-libellous.

Assumpsit to recover the amount of cer. tain groceries supplied by the plaintiff to the master of a brig he-longing to defendants, tried before Brkvaiíd, J., in Charleston, in which the plaintiff obtained a verdict. The plaintiff had been accus. tomed to furnish supplies necessary for the use of defendants’ vessels in the port of Charleston ; but the defendants had usually sent a clerk to direct the delivery of the articles.

Motion to reverse a decision of Waties, J., in Colleton district, on demurrer. The writ required the defendant to appear on the 10th November. Defendant moved at a preceding court to set aside the service and quash the writ for informality, as the 10th November happened on ¡Sunday, and the writ ought to have required the appearance‘of the defendant on the nest day after. But Judge Wilds, who presided, ruled that the advantage ought to be taken by way of plea in abatement.

M ition for a new trial. Action on a policy of insurance upon good#, as belonging to the plaintiff#, American citizens, resident ill Charleston, to be shipped on hoard -the brig Mary, from Port Republic, itt St. Domingo, to Norfolk, in Virginia, tried in Charleston district, before Grimke, J. The case appeared tobe this: The brig, with her cargo on hoard, sailed on the intended voyage, and .was captured by a French privateer.

■ Motion to reverse a decision of Bay, J., in' Charleston district. The case was this: The prince of Luxembourg died intestate in Switzerland in the year 1790, being indebted to sundry creditors, particularly the French Republic, for the ship sold to Commodore Gillon ; and his heirs renounced all claim to his estate in favor of his creditors. The State of South Carolina was indebted to his estate, in virtue of the contract made with Gillon.

Action of assumpsit, tried before Waties, J., in Charleston district. The defendant was commander and owner of the brig Fame, an American vessel bound from Charleston to St. Domingo, then in possession of the brigands, and obtained a consignment of goods from the plaintiff, and sundry other merchants in Charleston, which were shipped on board his vessel; ' for the carriage of which he received freight, and for the sale of which he was to receive customary commissions.

The defendants were found guilty upon an indictment for stealing a female negro slav|e, before-, J., in Charleston. The case was this : A Mr. Durke of Spartanburg district, sent the negro in question, by his agent, named Couch, to sell in Charleston. Couch, an illiterate and simple man, falls in w*di Cashman, who offers to procure a chap, and carries him to Brown’s, a place where Hope and Brown were. Hope said his wife wished such a servant.

<p>The lodgment of a writ of foreign attachment in the sheriff’s office, creates no lien in favor of the attaching creditor. The writ of attach» ment first executed is entitled to priority, in regard to the effects attached’</p>

Trespass to try titles, tried before Bax, J., in Abbeville district. Plaintiff provéd an original grant, of the land in question, to his father-in-law, Mark, and a conveyance by deed from Mark to himself. The defendant was allowed to give evidence of certain declara, tions made by Mark m presence of the plaintiff, that he had sold the land to one Williamson, of Charleston, and had made a conveyance to Williamson of the same, who had paid the consideration money.

Demurrer, determined by Bat, J., in Pendleton district, for the plaintiff. 'The case was this. The action was debt on a bond.

Motion to set aside a nonsuit, and for a new trial. Trespass to try titles, tried before Bay, J., in Lexington District.

Trover, for a deed of conveyance of land, tried before Smith, J., in Lexington district. The declaration set forth the instrument of writing, for the conversion of which the action was brought; and at the trial, the plaintiff proved a demand and refusal. But it was objected to any evidence being given of the existence and contents of the deed, without proof of notice to the defendant to produce it at the trial. This objection was overruled.

Assumpsit on a promissory note of hand,, tried before Smith, J., in Richland district. Notice of discount, in nature of a special plea, stating that plaintiff had contracted to purchase a certain tract of land from one Busby; that before he received a title from Busby, he sold the same land to the defendant, and gave a bond to make titles.

Indictment for a libel, tried before Smith, J., in Richland district.

Motion to sot aside a decree, given by Bay, J., in Newberry District Court, and for leave to enter a judgment of nonsuit. The petition and process was brought to recover damages for a breach of promise, on a non-negotiable note of hand, in the name of the plaintiff as indorsee. contended, that prior to the act of assembly of 1798, (See 2 vol.

Motion to reverse a judgment on demurrer, by Bay, J., in the District Court of Edgefield. The action was trespass to try titles» to land. Defendant plead in abatement, that the plaintiff was an alien, and concluded wjth a verification. Plaintiff replied, by confessing and avoiding the plea, setting forth the treaties made with Great Britain, in 1783, and 1794 ; and also, an act of assembly of jgg-^ t0 re]¡eve g,a]ph Spence Phillips from the penalties of the confiscation act.

Motion in arrest of judgment. After verdict for the plaintiff, in an action on the case for words, tried before Smith, J., in Edge, field District Court. The declaration contained two counts; but the verdict was found expressly on the second count.

<p>Motion to reverse a decision of Smith, J., in the District Court of Edgefield, on a motion there made, to quash an execution of fi. fa. which had been issued by the clerk of that court, against the de» fendant, at the instance of the plaintiff, and in his name, for certain fees of the keeper of the common gaol of the said district, and the charges of the said gaoler, for the maintenance in the said fgaol, of one William Sturgenegger, who had been confined in the said gaol, in the custody of the said sheriff, by virtue of a writ of capias ad satisfaciendum, at the suit of the said Taylor, the now defendant, and who had been discharged from his confinement upon that execution by a justice of quorum of the said district, under the act of assembly of 1788, commonly called the prison bounds act. The execution of ca. sa. had issued upon a judgment recovered in an action of slander. The clerk had issued the execution of fi. fa. for fees due to the sheriff; under an idea that he was authorized to do so, upon non-payment of the sum demanded, or neglected to be paid, without having recourse to any action, to recover the same by a regular judgment, or to any other mode of procedure, in order to obtain an order of court, for issuing execution.</p> <p>The motion in the District Court having been rejected, the present motion was submitted, and was argued by Stakk, for the defendant, and Goodwin, for the plaintiff.</p> <p>For the defendant, it was contended, that the acts for the relief of insolvent debtors afforded no color of sanction to the power which had been exercised; but if they could be construed to give any such authority, yet they would not avail the plaintiff in this case, as Sturgenegger had been improperly discharged, being con. fined for a malicious trespass. 2 Sand. 121. That by the common law, prisoners on civil, as well as on criminal process, must support themselves in gaol. The gaoler is not bound to feed them. Plow. 68. 1 Mod; 32. 12 Mod. 683. 9 Co. The common law has not been altered. The act of-assembly of 1791, authorizing the clerks of courts to issue execution fees, is unconstitutional and void.</p> <p>For the plaintiff, it was contended, that there is always a con. tract implied between the party at whose instance, and for whose benefit, fees have accrued, to the officers of court, to whom they are due ; and the act of assembly, 1791, authorizes the clerk to exact them. The fees of the gaoler, are the fees of the sheriff; for the sheriff may appoint what gaoler he pleases, and therefore the gaoler is quoad hoc, the servant of the sheriff.</p>

, in Union district. The plaintiff went to trial on a foreign attachment against one Johnson. The defendant, Wilburn, had been summoned as garnishee.

Motion to reverse a decision of Brevard, J., in Fairfield dis. trict, on a motion in arrest of judgment, after verdict of guilty, on an indictment against Fant, as keeper of a tavern, for allowing the other defendants to game in his house ; and against the others for gaming, contrary to act of assembly of 1802. The act imposes a penalty of $50, on tavern keepers, for permitting gaming, and $25 on those who shall play at any of the games prohibited.

y in the District Court of Fairfield. A decree was given for the defendants on tho following case.

Assumpsit on a note of hand, tried before Grisike, J., in Sumter District Court. The defendants, Irby Singleton, and Richard Haynesworth, severed in their pleas of non assumpsit. It appeared in evidence, that the defendant had been partners in trade, under the firm of Irby Singleton & Co., but that the partnership was dissolved some lime before the note in question was given.

Motion to set aside a nonsuit, ordered by Brevard, J., in Ker-shaw District Court. The case was as follows : The action wag for taking away, with force and arms, a negro man slave, the property of the plaintiff, and compelling him to go on board a canoe, in the Wateree river, whereby he was drowned. There was an additional count in the plaintiff’s declaration, for harboring the slave, and enticing him to go on board the canoe.

Summary process, in District Court of Sumter, before Brevard, J. The defendant had pleaded a special plene admitiistravit, to which defendant had demurred, and the court decided against the defendant, upon which a minute thereof was entered by the clerk in the minutes of the proceedings of court.

The opinion of the whole court was, that although, upon an at. tachment against an absconding debtor by act of assembly, a bond is directed to be taken, with security from the plaintiff in double the sum for which the attachment issues, payable to the defendant for satisfying all costs, (if the plaintiff shall discontinue,) and damages, the defendant may recover for suing out the attachment.

<p>Motion to reverse a decision of Wilds, J., in Kershaw District Court. On a rule against the plaintiff to shew cause why tlm judgment entered up by him, against the defendant, should not be set aside, the case appeared to be as follows : In the year 1790, the' plaintiff sued out a writ in detinue, against one Henry Giles, upon which an order was endorsed, requiring the defendant to be holden to bail for the sum of £120. This writ was returned “ cepi corpus,"1 and was accompanied with the following memorandum by the sheriff: “Fielding Woodroof, John Holzendorf, and A. F. Brisbane, bail.” The declaration on this writ was in detinue, and was filed in November, 1790, on which an order for judgment was indorsed, dated the 6th May, 1791; and also, a verdict in these words j “We find for the plaintiff, £61 3s., with interest from the 1st January, 1790. John Kershaw, foreman.” Judgment was after-wards signed in February, 1792, and afi.fa. was issued the same* day, as appeared by a memorandum on the roll, in the handwriting' of the clerk. The judgment was entered up for the damages pursuant to the verdict, as in an action of trover; and the Ji. fa. was consistent with the judgment. The Ji. fa., which was returnable in April, 1792, was returned “nulla bona;” and no further proceedings appeared to have been had against the defendant Giles.' A scire facias was afterwards sued out by the plaintiff against thé above named bail, in November, 1792, returnable to April Term, 1793. This sci. fa. states the aforesaid recovery against Giles, and that the money recovered remains unsatisfied. That on the 15th February, 1790, F. Woodroof, John Holzendorf, and Adam-F. Brisbane, came before the clerk of the court, and became surety and bail for the said Henry Giles, in the sum of £120, conditioned* that if the said Henry Giles should pay all such damages and costs as should be awarded against him, or Should render himself on that account, to the gaol of the said district, then, &c. Also, that the damages and costs are not paid, and that the said Giles hath not rendered himself to the sheriff. The writ of sci.fa. was served on Brisbane alone. The sheriff made no return as to the other copies of the writ, for each of them appear'ed in the record. A. declaration on this sci, fa. was filed in April* 1793, in the words nearly of the writ, against Adam Fowler Brisbane, stating a service of the sci. fa. on him, but taking no notice of the other defendants* ■Judgment against Brisbane was obtained, and signed 27th November, 1793, upon the sci. fa. Nothing is said in the judgment of Woodroof,- or Holzendorf.</p> <p>The judgment against A. F. Brisbane was afterwards revived against his executrix. (1. vol. 456.)</p> <p>In support of the rule in the District-Court, several objections were urged, as well against the original judgment as against the judgment against the bail on' sci.fa,</p> <p>1. It was contended, that a Security can in no case, b’é made lias ble beyond the extent of his undertaking. That it appears by the plaintiff’s own shewing, Brisbane became bail for Giles, in an action of detinue, in which action, the plaintiff, if he prevailed, must have had a judgment for the thing sued for, in specie, as well as for the damages for the detention of the thing, for which a distringas should regularly have issued -, and after the return of a distringas afi. fa. might have issued, but not before. Therefore, as it does not appear by the proceedings, that the form of the action, as commenced, was pursued, the bail could not be made liable. 2. That if this objection should be held insufficient to defeat the judgment agains't the bail, still it must be invalid* because it does not appear that ever a‘ea. sa. was taken out against Giles, without which the bail could not be charged, for the bail have until the return day of the ca. sa. to surrender their principal. ,3.- If a ca. sa. may be presumed to have issued, yet the judgment ought to be set aside* because the plaintiff, by deserting his action of detinue, and chang. ing the proceedings to trover, was enabled, after judgment, to charge" the bail six months earlier than he could have done* if he had pursued the original form of his action ; which being against the in¿ tention of the undertaking of the bail, ought not to bind tberrb 4, That it appears from the sci. fa., that Woodroof and Holzendorf were jointly bound with Brisbane* as bail for Giles* and that Briskane a^one was proceeded against by set. fa., wherefore, by that plaintiff’s own shewing, his writ is abated, and there was no occa* si°n to plead this.</p> <p>It was admitted by the counsel in the discussion of this rule,, that this very case had been twice before the Constitutional Court, and that some of the points now insisted on had been urged there ; but they did not agree as to what decision had taken place»</p>

<p>Motion for a new trial. The case was an issue directed to be tried, to determine a question between the parties as attaching creditors of one John Davidson, an absent debtor, tried in Charleston district, before Trezevant, J. The defendants claimed as creditors in possession.</p> <p>It appeared in evidence, that the property attached by the plaintiffs was a schooner, the Doris, and her cargo, consisting of African slaves. That Davidson left this State in 1805, and con. stituted Gilbert Davidson, his attorney in his absence; and in caa© of Gilbert Davidson’s leaving the State, the defendant, Broadfoot, was to act for Mr. John Davidson, as his attorney. That J. Davidson wrote to Gibson and Broadfoot, to take charge of the Doris, and her cargo, when she should arrive at Charleston. Gilbert Davidson was absent. The Doris arrived in port about one o’clock, on the 29th January. About the same time, the master of the Doris, Davenport, called on the defendants, at their counting house, to desire them to take charge of the vessel and cargo ; and then informed them that he would be governed by their orders. The defendants immediately ordered clothing for the negroes, and fresh provisions. Broadfoot went on board the vessel in the evening, and looked at the cargo ; and the next day caused an advertisement to be published in the newspapers, respecting the cargo, as having the disposal thereof. When on board, Broadfoot directed the master where to moor the vessel, which direction was obeyed. The vessel was not entered at the custom house till the following day.</p> <p>Between three and four o’clock, on the same day on which Broadfoot was on board, in the afternoon, after Broadfoot had left the vessel, the plaintiffs lodged their attachment against Davidson, in the sheriff’s office ; but as the vessel was out in the stream, the attachment was not served til! about nine o’clock the next morning. When it was served, the defendants had not, %n their actual possession, the vessel, or cargo, and no entry was made at the custom house of either. The master had still the actual, or immediate command of the vessel, and its cargo. The defendants produced letters from J. Davidson, stating that the proceeds of the cargo should be appropriated to their use ; but these were anterior to those which authorized the defendants to take charge of the vessel and cargo, upon their arrival at Charleston.</p> <p>A copy of the attachment was served on the defendant’s clerk, and another on the master of the vessel. It appeared that Davidson waa indebted to the plaintiffs £5000 sterling, and upwards, and that he was probably insolvent; also, that he was indebted to the defendants.</p> <p>The captain, Davenport, soon after being served with a copy of the writ, made a return thereto to the court, stating the vessel, and cargo, as being property of the absent debtor in his possession ; and claimed to be first satisfied out of the effects, as creditor in possession, for a debt due to himself. But he soon afterwards made another, by way of affidavit, in which he disclosed the circumstances above set forth, relative to the agency and control of the defendants in regard to the property in question, and of his own submission to such agency and control.</p> <p>It was contended, in behalf of the plaintiffs, that the defend. ants had only a constructive possession, which did not entitle them to claim as creditors in possession under the act of assembly ; and, also, that the lodgment of the writ of attachment in the sheriff’s office, bound the property of the debtor from that time, and created a prior lien.</p>