Volume 40 — South Carolina Law Reports

<p>A third verdict against the validity of a will set aside and new trial ordered, becauso the verdict was wholly unsupported by the evidence.</p>

Before Fe.ost, J., at Barnwell, July, Extra Term, 1852. The report of his Honor, the presiding Judge, is as follows : “ The action was brought on a note of the defendant for $ 130, payable to John H. Anderson (the plaintiff’s intestate) or bearer. The defendant pleaded infancy. The plaintiff replied that the note was given for a horse, which was .necessary to the defendant and suitable to his fortune and station in life.

<p>Assumpsit against B. & 0., survivors, on tlie joint note of A-, B. & C.: plea — the statute of limitations : proof — that A., who was dead, was the principal, B. & C. boing his sureties, and that after the note was barred by the statute, but within four years before the commencement of this action, A. made a payment on the note : — -Held, that the action was barred as against B. & 0.</p> <p>After a note is once barred by the statute of limitations, a promise to pay it constitutes a new cause of action — the old debt being the consideration: and where a payment on a note, already barred, is made by one of several joint makers, no promise to pay it will be implied as against the other makers.</p>

Before Frost, J., at Kingstreé, Fall Term, 1852. The report of his Honor, the presiding Judge, is as follows: “This was an action of trover for one young woman and her child, and two other young women, and a girl. “ Thomas R. Greer, (the son of Elizabeth Gibson,) testified— That the negroes in dispute were in the possession of his mother, Elizabeth Gibson, and had been bequeathed to her for life by her deceased husband, George Gibson.

Before Fhost, J., at Barnwell, July, Extra Term, 1852. The report of his Honor, the presiding Judge, is as follows : “ The plaintiff demanded dower in a tract of land which the defendant claimed under a sale by her deceased husband. “ Among other defences, the defendant pleaded that the demandant had elected to take the provision made for her by her husband’s will, in lieu and satisfaction of dower.

<p>In an action upon a security executed for the purchase money of land, bought at a fixed rate per acre, the purchaser may abate the price by proof of a deficiency in quantity; and the agreement to sell, at a fixed rate per acre, may be shown by parol.</p>

Before Frost, J., at Marion, Fall Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ At the opening of the case, this was stated to be an action to recover damages for an illegal distress. It was shewn that the defendant had issued a distress warrant dated the 8th Oct. 1851, for $42 61, ‘ part of two years’ rent due’ the 1st of October in the same year.

Before Frost, J., at Barnwell, July, Extra Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ This was an action of assumpsit, to recover the deposit of a wager on a horse race. The plaintiff bet with another on a horse race, and deposited $200, his stake on the race, with the defendant. The judges of the race decided that the plaintiff was the loser. He was dissatisfied with the decision, and gave notice to the defendant not to pay over the stake.

Before Whitner, J., at Kershaw, Fall Term, 1851. In this case — trover for negroes — his Honor’s report is as follows: “ The plaintiff having stated his case, offered his first witness, one H. D. Coats, who being sworn on his voire dire, denied having any interest in the event of the suit, being, as he said no blood-kin to any of the parties. “After much prevarication, he said he had been offered $10() by the plaintiff to ensure the suit, to which *he replied, ‘Your money…

Before Withers, J., at Barnwell, Fall Term, 1852. This was an action of trespass to try title.

Before Withers, J., at Barnwell, Fall Term, 1852. The report of his Honor, the'presiding Judge, is as follows: “ In this action the plaintiff (for the benefit of J. C. Richardson) claimed damages for the escape of one Charles J. Provost, who was in the custody of the defendant, by virtue of a ca. sa. “ He had filed a schedule, and had been before a commissioner of special bail, on application for discharge, but was remanded until he should deliver the assets specified in his…

<p>T. and two others were tenants in common of a tract of land. P. entered under of color of title and held possession several years, hut before the statutory period was complete, T. and his co-tenants made partition of the land, and to T. was assigned a part over which P.’s color of title extended, but of which he had no actual possession. P. continued in possession after the partition, as before, until the statutory period was complete :— Held) that P. had not, as against T., acquired a title by possession to the part of the tract allotted to T. in the partition.</p> <p>Possession to give title to land must be adverse, continuous and unbroken, for the whole statutory period.</p>

<p>Trespass for killing a slave : plea — not guilty: proof — that the slave was shot and killod by defendant while he was in pursuit of him as a runaway at the request of plaintiff: verdict for defendant, and new trial ordered, (with leave to defendant to plead specially,) unless defendant enter satisfaction for the costs.</p> <p>Whero, in trespass for killing a slave, the plea is the general issue, and the trespass is proved, the jury should find a verdict for the plaintiff for some amount: semble.</p>

Before Withers, J., at Edgefield, Fall Term, 1852. This was an action of trespass fork filing a slave named Bob, the property of Stanmore Watson, deceased, of whom the plaintiff was executor. Defendant was the overseer of plaintiff on the plantation of his testator.

<p>Before Withers, J., at Edgefield, Fall Term, 1852.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This action was in assumpsit for all the instalments, except the first, upon ten shares, at $20 each, (in the whole $200,) in the Greenville and Columbia Railroad. It was admitted that regular notice to pay the several instalments now demanded had been published by the plaintiffs.</p> <p>“ To prove the subscription a proxy was introduced which had been signed by sundry persons, among the rest this defendant, who described themselves as “ being stockholders, and holding the several shares opposite our names.” Opposite the signature of defendant was placed ten shares. The proxy authorized some person to vote at a certain meeting specified, and at all others, &c., until the power should be revoked. The defendant called for the original books of subscription, which were, not produced, and therefore moved for a non-suit; which motion I refused, on the ground that the proxy was prima facie evidence of subscription, and therefore of liability to pay the sum now demanded.</p> <p>“ The defendant introduced evidence to the effect, that in 1847, at a barbecue in Abbeville District, while a contest was going on as to the location of the road east or west of Saluda, one Dr. Thomas Garey appeared and urged subscriptions on people then and there assembled, that their influence might be felt in securing the location of the road west of Saluda. The defendant refused to subscribe until Garey asserted and “promised” (as the witness said) that he could subscribe and pay $>5 on the hundred, forfeit, and be free from liability as to the residue ; that Garey announced his object to be to get proxies from as many as he could, to secure the location on the west of the Saluda. Defendant said that he was willing to pay $>10 to secure that location ; and therefore executed the proxy, in which he is described as holding ten shares.</p> <p>“ Upon this case I held that the defendant was no stockholder ; that the prima facie evidence derived from the proxy was rebutted ; that to hold him to be a subscriber would be to enforce on him a deception, perpetrated by one who assumed to represent the corporation, out of which deception grew the only evidence that he had ever subscribed, or was ever a stockholder. The jury were told that there was no difference in this case and one parallel, arising between two individuals in any other kind of contract, wherein one party represented himself to be the agent of another, and deluded the party defendant into a contract, with a sort of condition of defeasance, that he had no authority to make; that I regarded the whole transaction developed by the case as an imposition upon the rival interest, touching the location of the road, in which Garey and the defendant were participant; that the public, however, had an interest in having genuine subscribers, according to the charter which the public had granted; and I advised the jury to find for the defendant, which the};- did.”</p> <p>The plaintiffs appealed and now moved for a new trial, on the following grounds:</p> <p>1. Because it is respectfully submitted his Honor erred in charging the jury that the subscription of the defendant, under the circumstances shown in the case, was contrary to the terms of the charter, and fraudulent in its nature.</p> <p>2. Because, from the terms of his Honor’s charge, the jury were led to believe that the defendant was in reality not a subscriber or stockholder in said company.</p> <p>3. Because his Honor charged the jury, that in the absence of the original subscription book, the contract of the defendant must be limited and controlled by the opinion expressed at the time by Dr. Garey, that the defendant, under the charter, would have a right to forfeit at any time.</p> <p>4. Because his Honor erred when he told the jury that Dr. Garey deceived the defendant. The charter was public, and of which the defendant had knowledge; and Dr. Garey did no more than express an, opinion upon a question arising under that charter.</p> <p>cited R. R. Company vs. Wood-sides, 5 Rich. 148 ; JR. R. Company vs. Cathcart, 4 Rich. 89 ; R. R. Company vs. Coleman, 5 Rich. 118.</p>

<p>A bond from a retailer, taken by the Town Council of Aiken payable to themselves, in the penalty of $1000, conditioned to observe all the laws in relation to retailing spirituous liquors, held, to have been taken under the Act of 1835, (6 Sfcat. 528,) and not to be enforceable against the retailer, who, .though he had been convicted for selling spirits to a slave, had paid the fine imposed.</p>

Before Wardlaw, J., at Union. Fall Term, 1852. The report of his Honor, the presiding Judge, is as follows : “ This was an action of assumpsit, brought to recover money which the plaintiff, as executor, has paid to James J. Caldwell, and which, he says, the defendant is bound to reimburse. “ The counts are, indeb. assumpsit for money paid, and special counts on promises to indemnify, to pay, &c. The pleas are, non assumpsit, the statute of limitations, and former…

Before Frost, J., at Williamsburgh, Fall Term, 1852. Held: would protect the sheriff against the plaintiff’s demand for all the other costs received, except what he received on his own account.

Before Withers, }., at- Barnwell, Fall Term, 1852. The report of his Honor, the presiding Judge, is as follows : “ Lythgoe was indicted for obstructing Fairfield-street, in the town of Aiken. A plan of town, (that is, a paper purporting to be such,) was introduced on behalf of the prosecution ; which Wm.

<p>The incidental acknowledgment, in a deed of conveyance of land, of tie receipt of tie consideration money, may be explained by parol evidence; Curry vs. Lyles, 2 Hill, 404. Assumpsit for tie price of land, negro lire, and price of negro : defonee — tie statute of limitations, and a discount for money paid, at various times, for tie use of plaintiff, articles purchased for him, &c.: — Held, that there were not such mutual running accounts between the parties, as brought the case within the exception to the statute of limitations, relative to merchants’ accounts; and that the items of discount could not bo regarded as payments pro tanto, so as to arrest the statute.</p> <p>Where a debt is already barred by the statute of limitations, it is not necessary that there should be an express promise to pay it, — a promise, sufficient to sustain an action, will be implied from an unqualified admission of a subsisting legal liability, in reference to the debt barred, unaccompanied by any indication of an unwillingness to pay.</p>

<p>Where a commissioner in repairing a road puts pieces of timber across it, and leaves the work unfinished, a traveller though he has the right to remove the pieces of timber if they obstruct his passage, yet if, in so doing, he dostroys or unnecessarily injures them, he may be indicted, under the 16th sect, of the Act of 1825, for hindering the commissioner from making use of such timber in repairing the road.</p>

Before Withers, J., at Charleston, Spring Term, 1852. This was an action of assumpsit on a policy of insurance taken by the defendant on the brig Tower, at and from Charleston to San Francisco. The plaintiff alleged that the condemnation and sale of the . vessel in the port of Rio de Janeiro, was the result of perils of the sea — and this the defendant denied, affirming that the ves-t sel was not sea-worthy.

Before Fhost. J., at Horry, Fall Term, 1852. The report of His Honor, the presiding Judge, is as follows : “ This was an action of trespass to try title. Th’e plaintiffs and the defendant both claimed under John Harris, who died intestate, in 1834, leaving his widow, Honor Harris, and two daughters, Prances, then the wife of John E. Vereen, and Sarah, then the wife of William Lee, his distributees. John E. Vereen died in 1840, and in 1842 his widow married Hartford Jones.

<p>Defendant, a blacksmith, hired from plaintiff two negroes at a very low rate per annum, and agreed to instruct them in his business : the negroes were to be subject to defendant during the term: he was to feed, clothe them, <&c., and send them to plaintiff only in case of sickness: the negroes ran away and were lodged in the work-house: defendant, though informed by plaintiff that they were in the workhouse, refused to take them out, on account of the expenses: plaintiff took them out, paid the expenses, and re-delivered them to defendant: — Held, that defendant was liable to plaintiff for the expenses thus paid.</p> <p>The hirer of a slave for a term, is regarded as the owner for such term, and, as a general rule, must pay such ordinary current expenses, incident to the right of ownership, and incurred during the term, as the absolute owner, if there had been no bailment, would have been liable to pay.</p>

Before Witheíis, J., at Charleston, Spring Term, 1852. Held: that the sale was regular, and its nett proceeds furnished the measure of deduction from the sum insured to which defendant was entitled.

Before Withers, J., at Charleston, April 5, 1852. The petitioner, a person of color, had been committed by the sheriff to the jail of Charleston district, in pursuance of the Act of 1835, (7 Stat. 470.). He applied to his Honor, Judge Withers, for a writ of habeas corpus under the statute of Charles the second. His application was refused and he gave notice of appeal.

Before Evans, J., at Colleton, Spring Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ This was an appeal from the Ordinary. The only question was, whether George C. Utsey, one of the subscribing witnesses, was competent. The fifth clause of the will gave a negro to Elizabeth Utsey, daughter of the testator, and mother of the witness, to her and her issue forever.

<p>Case, with a count in trover, for the value of a negro hired by plaintiff to defendant as a carpenter, and lost during the torrn of hiring: proof — that the negro was lost while trying, in a boat, to collect and save floating pieces of timber belonging to defendant: the jury, by their verdict for defendant, having found that the act of the negro, in attempting to collect and save the pieces of timber, was without the knowledge or consent of the defendant and during his absence, the Court refused to disturb their verdict.</p>

<p>“Where the goods of plaintiff have hecn wrongfully taken by defendant and destroyed by fire whilst in his possession, plaintiff cannot waive the tort and sue in form ex contractu.</p> <p>Damages which defendant may be entitled to recover in trespass or trover, are not the subject of discount.</p>

Before Withers, J., at Charleston, Spring Term% 1852. The report of his Honor, the presiding Judge, is as follows : “Trover for negro Rose. Plaintiff’s title rested on a deed of marriage settlement, in which he was trustee, executed by the plaintiff, A. L. Hammond, and Catherine, who became his wife.

Before Evans, J., at Beaufort, Spring Term, 1862. The report of his Honor, the presiding Judge, is as follows : “ This was an action of assumpsit on the implied warranty of the soundness of a negro man named Henderson. The bill of sale, dated 10th of June, 1848, expressed a consideration of 500 dollars, and contained a warranty of title but not of soundness.

Before Withers, J.,'at Charleion Spring Term, 1852. Held: that plaintiffs were that species of factors called by Judge Story, £ Commission Merchants,’ or‘Consignees.’ (Sec. 33 — Agency.) That though a factor was formerly defined to be an agent to sell, on commission or other compensation, that at this day it was not doubtful that he might also have that character in buying — for a…

<p>Case for not delivering stock alleged to have been bargained and sold by defendant to plaintiff: .Evidence considered, and non-suit on circuit because the evidence was insufficient to show a contract with defendant for the sale of the stock, sustained.</p> <p>Where, in a contract for the sale of bank stock, no time is fixed for the payment, the transfer of tho stock and the payment of the purchase money are concurrent acts, to be done at the same time, and the purchaser cannot recover damages for the vendor’s refusal to • transfer, alleging the same to be a broach of the contract, without alleging and proving payment, or tender of payment.</p>

<p>Assumpsit against C. & M. partners : the partnership had been dissolved: M., who was insolvent, was called as a witness for the plaintiff and consented to be sworn, C. objecting : — Heidi that M. was a competent witness for the plaintiff.</p> <p>One of two defendants, consenting to be sworn, though objected to by the other defendant, is a competent witness for the plaintiff.</p>

<p>Judgment non obstante veredicto can be rendered only for plaintiff.</p> <p>Where, after all that is consistent with the allegations really made has been supplied by intendment, there still appears on the record a defect in substance, judgment must be arrested even after verdict, notwithstanding that an earlier condemnation of tho defect might have been obtained by demurrer.</p> <p>Upon motion in arrest of judgment a repleader will be awarded where verdict has been rendered upon an immaterial issue — semble.</p> <p>Action of covenant to recover rent upon an indenture of lease: plea, the statute of limitations : replication, an acknowledgment of payment -within time: rejoinder traversing all acknowledgments, and issue found for the plaintiff: the replication held not bad.'</p> <p>In an action of covenant, an acknowledgment in answer to a plea of the statute of limitations, operates not as a parol promise, nor as a covenant, nor as evidence of either, but keeps the covenant alive and shows that it does not fall within the reason and meaning of the statute: and this it does, not by ratifying tho covenant, but by making a waiver of the defendant’s privilege to claim the benefit of the statute for time antecedent.</p> <p>A verdict upon a question of fact ultimately to be decided, being controlled by the view taken of an implication of law from circumstances involved, set aside for misdirection.</p> <p>As to effect of admissions made by one party upon other persons liable for the same debt, tho distinction is between contractors bound by contracts joint, or joint and several, on the one hand, and those bound by contracts merely several on the other. As to the former, the admissions of one contractor bind the others if made whilst the contract subsists in force unbarred by the statute of limitations: as to the latter, one is not affected by the admission of another made without his authority: amongst the latter are principal and surety, where the surety contracts separately with the creditor, and the principal either is not liable to the creditor at all, or if liable is so by a separate contract. If there be no joint contract with the creditor, it is immaterial that it is known to him, or even that it appears on the face of a writing delivered to him, that the person contracting separately to pay him is contracting for the benefit of another who is really expected to make the payment.</p> <p>Partial payment is strong evidenco of an admission of liability to pay the remainder of the debt, against the person who makes the payment and those then jointly liable with him, but not against another who is by separate contract liable for the same debt.</p> <p>Distinction between agency to pay and agency to charge by admissions, the former does not always include the latter: a partial payment does not necessarily imply an authority to charge all who may derive benefit from the payment.</p> <p>Authority given to jS. to hold premises demised to the defendant as the substitute of defendant and to pay the rent out of his own means, the defendant covenanting separately for the payment: the statute of limitations in favor of the defendant runs from the non-payment at the time stipulated, and the substitute after the expiration of the term, has not, without further authority or ratification, an agency to charge the defendant by admissions inferred from partial payments.</p> <p>Upon covenants in an indenture of lease, the lessor may have an action of covenant or debt against the assignee of the lease at common law, but the action is founded on privity of estate and is local: it will not lie, where, by proof rebutting the presumption arising from possession, it appears that there has been no assignment under seal of the lease. No joint action lies against the lessee and his assignee.</p>

Before Withers, J., at Charleston, Spring Term, 1852. Held: that if Shannon had in his pocket, or on deposit, here or elsewhere, liable to his order and available when he pleased, the money that he carried to jail, or had there, or a part of it, I could not think the case had arisen in which the defendant was liable for his maintenance.

Before Frost, J., at Marlborough, Bpring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ The plaintiff demanded dower in a tract of land in possession of the defendant. Her marriage to Wm. E. Pledger and his death were proved. To prove seizin, a deed from George Bruce, Commissioner in Equity, to William E. Pledger, was produced.

Before Feost, J., at Chesterfield, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ A copy writ of attachment against John Linton at the suit of Wm. L. Robinson, had been served on Henry Linton, who returned that he had five negroes of the absent debtor, in his possession, and on his giving bond to the sheriff, they were left in his possession.

Before Whitneb,, J., at Barnwell, Spring Term, 1853. These were actions of trover — the first to recover the value of a slave named Gilbert, the second the value of a slave named Hannah. In 1843 and before, William Fortune was the owner of Hannah. In that year she went into the possession, in some way unexplained, of Mason L. Mosely, husband of Elizabeth, who was the step-daughter of Fortune. Gilbert, the son of Hannah, was born some time afterwards.

Before Withers, J., at Abbeville, Spring Term, 1853. The commissioners appointed in this case under the charter of the company (11 Stat. 327,) assessed the amount of compensation to be paid to the land-owner, Partlow, at •$2300. The company appealed, and the jury reduced the assessment to $1000. An appeal was taken to the Court of Appeals, and a new trial granted (see 5 Rich. 428:) and finally, by a verdict taken by consent, the amount of compensation was fixed at $500.

Before O’Neall, J., at Kershaw, Fall Term, 1852. The report of his Honor, the presiding Judge, is as follows: “ This was an action on the case for obstructing an alleged private right of way. The defendant pleaded, 1st. The general issue ; 2d. That the way was not a private way; 3d. Actio non accrevit infra quatuor annos. , “ The plaintiff acquired the right to the tract of land to which he claimed the way to be appurtenant, 4th Nov. 1846. The writ was sued out March, 1851.

Before Glover, J., at Chester, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ The action was trover to recover damages for the conversion of a negro named Alfred, given, it was alleged, by the defendant to the plaintiff after his marriage with defendant’s daughter and before December, 1851, when she died leaving an infant child. u The attention of the jury was directed to two enquiries : “ 1. Was there a gift? and if so, “2.

Before WhitNer, J., at Barnwell, Spring Term, 1853. Held: to have participated, as against an innocent purchaser, according to the view authorized by the fact, should be their verdict for or against.

Before Glover, J., at Union, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ A. fieri facias had been entered in the sheriff’s office in this case, and at October Term, 1852, the following rule was issued against John Gibbs, sheriff, at the instance of Matthias Myers, the administrator of Richard Starnes, deceased : “ ‘ On motion of T. & J. Dawkins, attorneys for Matthias Myers, administrator of R. Starnes, it is ordered, that John Gibbs,…

Before Glover, J., at Fairfield, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ Judgment having been heretofore recovered on the bond of Alexander W. Yongue, late sheriff of Fairfield, a suggestion was filed for the benefit of Abram F. Lumpkin, and his name was endorsed on the back of the rule served on the defendant requiring him to plead. “ The following breaches of the bond were suggested: “ 1.

Before Glover, J., at Union, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ The plaintiff, then an infant, sued out her writ in trespass to try titles, by Joseph Shuttlesworth, her father and procliein amy. Leave having been granted to amend her declaration, and the plaintiff having attained to her majority, the amended declaration was filed in her own name.

Before Glover, J., at York, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ This was an action of debt on a judgment recovered in North-Carolina.

<p>An injunction bond taken by the Commissioner in Equity from a defendant, conditioned to cause certain property “to be forthcoming to be subject to the final order of the Court of Equity in a certain cause/’ &c., and to “ abide by and perform such orders and decrees as the said Court shall make in the said cause,” construed, in an action thereon against the surety, not to require the principal debtor to pay, absolutely, any money decree which the Court might pronounce: Held, that, before recovery could be had, plaintiff must show a failure to produce the property specified, and the damage sustained by reason of such failure.</p>

Before Wardlaw, J., at Newberry, March 23, 1853. This was an application, by writ of habeas corpus ad subjiciendum, by the father, Peter M. Schumpert, for an order for the delivery to him of his infant daughter Frances, aged between four and five years, who, it was alleged, was unlawfully detained by the grand-father, Honorius Shepperd, with whom the mother Mary Schumpert, wife of the petitioner and daughter of Honorius Shepperd, resided.

Before Wi-iitner, J., at Barnwell, Bpring Term, 1853. Trespass to try title. The locus in quo originally belonged to one Henry Touchstone, the grantee, who, in 1841, removed to Georgia. Plaintiff proved, that about the time of his removal Col. Howell entered as owner, and continued in possession until 1847, when he also removed to Georgia.

Before Glover, J., at Chester, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ These were actions of debt on a bond given by John Johnsey, for the faithful administration of the estate of James F. Johnsey. Samuel Conn and J. A. F. Kirkpatrick were two of his sureties, and G. S. Hooper and W. J. Darby are the administrators of the estate of Leonard Pratt, another surety.

Before Wardlaw, J., at Union, Fall Term, 1852. This was a summary process, brought to recover a balance due on a bond given by the defendant to the Commissioner in Equity for the purchase money of a tract of land, the property of the late John Rogers, sold under an order of the Court of Equity, for partition amongst his heirs at law, of whom the plaintiff was one. The bond was admitted, and the defence was by way of discount.

Before Ward law, J., at Newberry, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ From papers now put into my hands, it appears that the printed form of a sum. pro., blanks unfilled, was endorsed, “ A. M. Wicker, for another, vs. Charles P. Pope, sum. pro. on sealed note, $72.43” — that, underneath this endorsement, the defendant wrote, “I accept the legal service of this process to Spring Term, 1850.

Before Frost, J., at Darlington, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows : “ This was a summary process, on a decree, to recover payment from George James, as executor de son tort of Wiley James. The decree had been rendered at March Term, 1841, against Wiley James, for $44.30, with interest on $37.2S from November 8, 1841.

Before Glover, J., at Fairfield, Spring Term, 1853. This was a suit by summary process on a magistrate’s judgment rendered the 26th March, 1849. The execution was signed 4th June, 1849, and had not since been renewed. The cause of action was a promissory note dated 3d February, 1844, and payable the 1st of January, 1845, on which a credit was endorsed the 18th January, 1849. The process in this case was entered in the sheriff’s office the 17th March, 1853.

Before Glover, J., at Union, Spring Term, 1853. This was an action of debt on a single bill, made by Jacob Ison in favor of Solomon Coleman for f 117 12, dated the 15th July, 1839, on which $>50 was paid the 30th December, 1842. Solomon Coleman assigned it to the plaintiff the 12th May, 1848, which assignment was witnessed by one Hill. Thomas H. Murray proved Jacob Ison’s signature to the single bill; his acknowledgment that he had made it and the consideration.

Before Wardlaw, J., at Sumter, Spring Term, 1853. This was an action of debt on the administration bond of Eleanor Spann, administratrix of Charles Spann, jun. The intestate of defendant was one of the sureties. The declaration was on the penalty of the bond, and the first plea was non est factum, on which issue was joined. 2. Plea. Sets forth the condition of the bond, and pleads performance. Replication.

<p>The indictment charged that the defendant “ did write a certain false, malicious and defamatory libel, of and concerning the said E. K., which said false, malicious and defamatory libel is of the following purport and effect, that is to say,” and then set out, within inverted commas, what the evidence showed to be an exact copy of the libel. Verdict, guilty. On motion in arrest of judgment, held, that the indictment was bad because it did not profess to set out the libel in hcec verba.</p> <p>An indictment must, as a general rule, profess to set out the words of the libel: and to set it forth according to its purport and effect, copying the libel within inverted commas, is not a compliance with the rule.</p>

Before Withers, J, at Anderson, Spring Term, 1853. These were actions of assumpsit — the first upon a promissory note, and the second upon an open account. The writ in each case was against the defendant and one Wm. R. Sanders, describing them as partners trading under the firm of Wm. R. Sanders & Company.

Before Whitner, J., at Orangeburg, Spring Term, 1853. This was an action of trespass quare clausum fregit for pulling down plaintiff’s fences on several occasions and leaving them down, passing through his field containing about forty acres, and finally forcing him to abandon his crop planted therein. The field had been cleared, enclosed and cultivated about four years. Defendants justified, claiming a right of way for the public through the field.

Before O’Neall, J., at Columbia, Fall Term, 1852. This was a suggestion for a writ of prohibition. His Honor pronounced judgment as follows : O’Neall, J. In this case, the relator had a license from the Town Council to keep a tavern, and consequently to retail.

<p>Action of slander: the words laid did not in express terms charge the crime, which, by innuendo, it was stated the defendant meant to impute to the plaintiff, and there was no prefatory inducement showing of what the words were spoken: the Circuit Judge charged, that the declaration would suffice if the jury believed that the words would well carry the moaning that had been ascribed to them, and were understood and should have been understood by the wifcnossos according to that meaning: — Held, that such charge was proper, and a verdict for plaintiff was sustained.</p> <p>It is not essential that words, to be actionable, per se} without prefatory averment, should charge a crime in express terms.</p> <p>Whore a prefatory averment is necessary, the omission of it should be pointed out by special demurrer: semble.</p> <p>A verdict supported by any one of the counts is good, although all the others be bad. Slanderous words spoken to a magistrate are actionable, if spoken maliciously and with no bonajide intention of prosecuting.</p> <p>Case lies for maliciously and without probablo causo applying to a magistrate for a warrant for hog-stealing; and malice will be, prima fad.ei implied, if want of probablo cause be shown.</p> <p>New trial in an action of slander, on tho ground of excessive damages, refused, it not appearing that the jury were not “ indifferent between the parties,” or that the damages wore “flagrantly extravagant.”</p>

<p>Every bonefieial cloviso or legacy to a subscribing -witness to a will disposing of both real and personal estate, is utterly null and void by Statuto 25 Geo. 2, c. 6, of force in this State ; and, therefore, such witness is competent under the Act of 1824,. and his attestation will bo held good when the will is propounded in the Court of Ordinary.</p>

<p>One of two partners confessed a judgment for tho firm in tho names of himself and his copartner — no suit pending: both partners shortly afterwards made an assignment for the benefit of their creditors — one of the two plaintiffs in the judgment confessed being tho assignee: tho partner who had not joined the confession made no objection to it j but on motion of the agent of tho creditors, appointed under the Act of 1828, the assignee, as plaintiff, opposing the motion, the judgment was set aside as null and void. One partner has no legal right to confess a judgment'|or his copartner.</p> <p>By the Act of 1785 all powers of attorney to confess judgment before suit brought, are void, (a)</p> <p>Judgments may, in this State, be set aside on motion,5 for irregularity, defect, or error, in all cases where a writ of error would lie in England. (b)</p> <p>Though no one, not a party to the judgment, can impeabh it for mere irregularity; yet, if the judgment be null and void for defect of substance, any one interested can move to set it aside.</p> <p>A judgment confessed by one partner for the firm is defective in substance, and null and void.</p> <p>An agent appointed by creditors under the Act of 1828, has the same powers as the assignee ; and, as representing the creditors, has such an interest in a judgment against the assignors, older than the assignment, that he may move to have it set aside as null and void, notwithstanding objection by tbe assignee, he being plaintiff in tho judgment.</p>

Before WITHERS, J. at Georgetown, Fafírerm, 1851. The report of his Honor, the presiding Judge, is as follows: “ The action was debt, on a penal money bond, in the usual form; the defence rested on the plea of non est factum, with notice of a special defence. “ Upon the case being called, J. M. Commander confessed judgment.

Before Martin, J., al Laurens, Bpring Term, 1832. This was a sum. pro. to recover the penalty of $50 on any one who shall whip a slave with a ticket, imposed by the Act of 1819. The defendants moved for non-suit, on the ground, that a joint action against two or more cannot be sustained under the Act. His Honor overruled the motion, and decreed for the plaintiff.

Before Gantt, J. at Barnwell, Spring Term, 1832. Sci. fa. to revive judgment on sum. pro. On October 31, 1827, Cane, one of the defendants, confessed judgment before the Clerk, under the Act of 1821, (6 Stat. 160,) to Goode & Wooten for $44 37, besides interest and costs; and the plaintiff, Stokes, afterwards, at November Term, 1827, recovered judgment on sum. pro. against the' defendants for $80.

Before Martin, J., at Edgefield, Spring Term, 1832. The plaintiffs were the children of Richard Lewis, deceased, who was seized, at the time of his death, of a tract of land. He left a widow, who afterwards intermarried'with the defendant’s intestate. During the year 1829, the defendant’s intestate cultivated the land, either himself or by tenant: and for two undivided thirds of the value of the rent, the present suit, by summary process, was brought.

Before Earle, J., at Fairfield, Spring ' Term, 1832. The casé was reported for the Court of Appeals by his Honor as follows : “This was an action of assumpsit for work and labor, under a special agreement.

Before Richardson, J., at Marion, Spring Term, 1832. This was an action of trover for the conversion of a slave named Tenah. The declaration alleged the conversion to have been by the defendants to their use. The plaintiff’s intestate was the son of the defendants. On his marriage, the defendants allowed Tenah to go into his possession, and upon his death, the defendant, William Keefe, took her home.