Volume 41 — South Carolina Law Reports

Before Glover, J., at Kershaw, Fall Term, 1853. The defendant was indicted for an assault and battery upon the person of Mark Johnson, who was offered as a witness by the State. The defendant objected to the competency of the witness, on the ground that lie was a colored person. An issue was ordered, which resulted in a verdict that the prosecutor was a colored person.

Before Withers, J., at Laurens, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “The action was assumpsit, on a note for $>500, dated December 1st, 1851, at one day, in favor of Jacob Haller or bearer. Defence — a gambling consideration. “I permitted the following evidence to go to the jury, obtained from Wm.

Before WhitNer, J., at Abbeville, Fall Term, 1853. The report of his Honor, the presiding Judge, is as follows: “These defendants were indicted and convicted for a riot, &c., in the village of Abbeville on the following proof: “Dr. J. Branch testified, that, at midnight in October of the last year, and during the sitting of the Court, he was aroused from his bed by a call from his domestics, that persons were in his stable: on getting into the yard he heard voices in the…

Before Whitner, J., at Spartanburg, Fall Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ The defendant was indicted for gaming. The witness proved that the game played was in an open place, by the side of the street, in the town of Spartanburg, during the sitting of the Court, in which many engaged, betting petty sums of money.

Before Whitner, J., at Abbeville, Fall Term, 1853. Sum. pro. on a sealed note, as follows : $28 80 Loundsville, 8. C. UMar.WoA One day after date I promise to pay Giles, Davis & Hill or bearer, Twenty-eight 80-100 Dollars, value received, with interest from the 1st of January last. JNO. C. MA ULDIN, [L. S.] No. Due fJany. The words in Roman letters were, printed, and so was the [L. S.J at the end of defendant’s signature. The rest of the note was in writing.

Before Glover, J., at Kershaw, Fall Term, 1853. In this case the plaintiff sought to charge the defendant as the guarantor of a sealed note. The facts appear in the opinion delivered in the Court of Appeals. contended, tha-t the endorsement in blank of a sealed note, is a guaranty which may be filled up at any time by the holder. He cited Parker vs. Kennedy, 1 Bay, 398 ; Story on Prom.

Before Whitner, J., at Anderson, Fall Term, 1853. Sum. pro. on a note under seal, for $25, executed by Edward Glaspy as principal, and the defendant as surety, dated the 25th March, 1851, and payable at one day. Edward Glaspy having left the country, the action was against the defendant alone. The defence relied on was infancy; and the wife of Edward Glaspy, and mother of the defendant, was offered as a witness.

<p>Where one is sued as surviving partner, and the question in the ease is as to the existence of the partnership, separate creditors of the deceased partner, who had died insolvent, and whose estate was liable for the demand sued on, are competent witnesses for the plaintiff.</p> <p>The creditor of an estate which is insolvent, is, it seems, a competent witness for the administrator of the estate in a suit against him, as administrator, by another creditor.</p> <p>An interest to render a witness incompetent, must be direct and certain, not remote and contingent.</p>

Before Whitner, J., at Laurens, Fall Term, 1853. This was another action of assumpsit, prosecuted against the defendant, as surviving partner of S. C. Thomas, for goods sold and delivered in 1851. It differed from the case of Haseltine & Walton (a) only in this: that in this case Thomas had given his individual sealed notes for the amount of plaintiffs’ account, and that was made an objection to their recovery. John Davenport was offered as a witness for defendant.

<p>Before Gloved, J., at Union, August, Extra Term, 1853.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This was a new trial granted on the plaintiff’s motion. The following report embraces so much of the evidence as is necessary to understand the grounds of appeal on which the plaintiff relies for another new trial.</p> <p>“ The action was assumpsit, brought to recover money which the plaintiff, as executor, had paid, and which he alleged the defendant is legally bound to reimburse. ‘The counts are in-debitatus assumpsit for money paid, and special counts on promises to indemnify,’ &c.</p> <p>“ Nathan Sims, in his lifetime, had advanced money, and had assumed pecuniary responsibilities for the children of Reuben Sims, and for a time managed their property. About 1842, and after a partition of their negroes, Reuben Sims’s children met for the purpose of making a settlement with Nathan Sims, who then exhibited an account showing his management of their business, and the amount which he had advanced on their account. A paper was produced in Nathan Sims’s handwriting, purporting to be a statement of the accounts between him and Reuben Sims’s children, and the respective liabilities of the children for the balance due to him. Opposite J. J. Caldwell’s note, which was then computed to amount to four hundred and fifteen dollars, is the letter G., which, it is alleged, was intended for M. Goudelock, the defendant, who had married a daughter of Reuben Sims, and who, it was said, had assumed to pay this amount. The witnesses do not prove either the assumpsit of M. Goudelock or the identity of the paper; but a copy of this paper was filed, and marked as an exhibit, in a bill in equity, wherein Benjamin F. Sims, executor of Nathan Sims, was the complainant, and M. Goudelock and the other children of Reuben Sims were defendants. The answer of M. Goudelock admitted that the exhibit filed with the bill was a copy of a paper made and submitted by Nathan Sims, and that the children did agree to pay according to said exhibit.</p> <p>“ The promissory note drawn by Nathan Sims in favor of J. J. Caldwell was for $347 35, dated 6th January, 1840, and payable one day after. An action was commenced on this note against the plaintiff, as executor of Nathan Sims, and judgment entered 9th April, 1849, who paid in satisfaction of the judgment, at sundry times, $>623 86.</p> <p>“ I instructed the jury that the extent of the defendant’s liability was shown by the exhibit filed in the Court of Equity, which was there stated to be four hundred and fifteen dollars— that he was not liable for costs incurred in the case of J. J. Caldwell vs. B. F. Sims, executor, nor would I advise them to allow interest, eo nomine, on that amount.</p> <p>“ The jury found four hundred and fifteen dollars for the plaintiff.”</p> <p>The plaintiff appealed, and now moved for a new trial, on the ground of error, in the charge, respecting the costs and interest.</p>

<p>An Ordinary has jurisdiction to make a decree against an administrator in favor of an assignee of distributees.</p> <p>In an action on the administration bond, the Ordinary’s decree is, as to the party in whose favor it was pronounced, conclusive.</p>

Before Wardlaw, J., at Kershaw, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “Debt for rent. The declaration, alleged that the plaintiff had demised a house and lot inCamd'en to the intestate, Allen, for one year, ending the last day of September, 1852, at the yearly rent of $250. Whether the demise was by deed or by parol, was not stated.

<p>0. D., defondant in execution, gave sheriff a paper, acknowledging a levy of certain chattels, and sheriff made a memorandum of the levy on the execution. C. D. afterwards sold the chattels, and for this conversion the sheriff brought trover against him:— Held> that the sheriff could recover without proving, at the trial, that the chattels had ever been within his power or control.</p>

<p>Where a witness residing out of the district has been examined by commission, and he afterwards attends under subpcena and is examined on the stand, only the costs of the subpoena and of his attendance can be taxed — not the costs of the commission also.</p>

Before O’Njeall, J., at Barnwell, Fall Term, 1853. This was a sura. pro. on a medical bill for services and medicine rendered and furnished by the plaintiff to the defendant, between filing his petition for the benefit of the Insolvent Debtors’ Act, and his discharge under the same. The defendant pleaded the statute of limitations.

<p>An agency created by writing, held, not to preclude evidence by parol to show a further special agency to do a particular act.</p> <p>"Where anew trial is moved for on the ground that the evidence was too slight to warrant the vordict, it is hard to lay down any useful or practical rule as a guide to the discretion of the Court.</p> <p>In an action against husband and wife upon a contract alleged to have been made by the wife dum sola, though the acts and declarations of the husband cannot be given in evidence to show a ratification or confirmation of a contract which the wife had never, in fact, made, or to throw a liability upon her which she had never assumed, yet such evidence is competent for the purpose of showing that the contract alleged had been, in fact, made by the wife, and was valid and subsisting at the time of the marriage.</p>

<p>Plaintiff claimed a certain negro, under an alleged parol gift from defendant, his father-in-law. The negro had boen sent home with plaintiff and his wife, when they removed from defendant’s, more than a year after the marriago: — Held, that defendant, for the purpose of showing that the negro had boen only loaned, might give, in evidence, as part of the res gestee, a paper signed by plaintiff’s wife, and bearing date a few days before their removal from defendant’s, containing a promise to return the negro when called for.</p> <p>where the husband uses the wife as a channel through which he claims a title to chattels by gift from another, the alleged donor may give in evidence the acts and declarations of the wife, made at the time of the alleged gift, though such acts and declarations were not known to the husband, for the purpose of showing that there was in fact no gift, but only a loan.</p>

<p>Plaintiff authorized defendant his debtor, to make payment to L. C., and afterwards said, If Ii. 0. would acknowledge the payment, he would admit it: — Hdd> that the oral declaration of L. C. was admissible, after his death, to show the payment.</p>

<p>Defendants offered, at public auction, a negro for salo on credit — note and approved, surety to be given by the purchaser. The terms were in writing. Plaintiff was the highest and last bidder, and his name was so entered. Plaintiff tendered a note with a responsible surety, but defendants refused to accept it and deliver the negro : — Held, that the contract of sale was not within the statute of frauds; and that plaintiff, by his tender of the note, had acquired such property with right of possession, as enabled him to maintain trover against the defendants for their refusal to deliver the negro.</p> <p>The purchaser of a chattel at auction, upon offering to comply with the terms of the sale may maintain trover against the vendor for refusing to deliver the chattel.</p>

<p>W.) a naturalized citizen, haying collateral kinsman capable of inheriting, made his will and thereby devised three parcels of land to M., “ in trust, and upon condition for the said M. to have and to hold the said lands for the use and benefit of my brother H., if alive at my death, now residing in Ireland — the legal title to remain and be vested in the said M., until such time as the said II., now an alien, shall become duly qualified, according to the Acts of Congress, to take and hold said real estate, when the said H. becomes qualified, the said M. is hereby directed to execute to the said H. a valid conveyance in feo of said lands: — the rents and profits of” (two of the parcels described) “ to go to the said H., from the time of my decease.” W. died. H. being alive at his death, took no step toward becoming a citizen, but conveyed all his interest under the will to L. and S. The escheator procured an inquisition, finding, according to the ordinary form under the Escheat Act of 1787, and contrary to the truth, that W. died seized, without leaving any person who can claim from him by descent or purchase, and that the lands were escheated. The inquisition was traversed, separately, by M., by the heirs of W., by L. and by S.</p> <p>The circuit decisions in favor of the escheator were overruled.</p> <p>It was held, that M. took the legal estate in fee, subject to a trust for H. during his life, or until he should become a citizen andreoeive conveyance in fee; and if H. should die without becoming a citizen, a resulting trust for the heirs of W.</p> <p>That no legal ostate could have beon conveyed by H. to L. and 0.</p> <p>That lands and accumulated profits might be held in trust to await the naturalization of an alien, to whom, on that event, they were to be conveyed: but that the trust, under which the profits of two parcels were to go absolutely to an alien, was contrary to policy, and liable to forfeiture for the alienage of the cestui que trust.</p> <p>That, as the alien was alive, an inquisition of office, according to the facts as they exist, should be found, and upon that the escheator might go into equity to compel execution of the forfeitable trust, for the benefit of the State.</p> <p>That the Escheat Act covers not only cases of technical escheat, but all cases of forfeiture to the sovereign, wherever the person last seized is divested by operation of law. But that the inquisition which has been found is unsuitable to the case, and must be quashed, leaving the escheator to proceed as he might be advised.</p>

<p>The principle, decided in Nicholas vs. Nubhavd, 5 Rich. 267, that it is no ground for a caveat that the land, for which a grant is sought, had been previously granted, reaffirmed.</p>

<p>It is within the discretion of the Court to arrest the examination of a witness, which is causelessly protracted. Such discretion should, however, he cautiously and soundly exercised.</p> <p>where the Court helow overruled a question as unnecessary and improper, a new trial was refused — the question, though proper, having been repeatedly answered by the witness before.</p> <p>Irrelevant question overruled, .and new trial refused.</p> <p>At the trial of an issue upon a suggestion of fraud under insolvent debtor’s Act, motion by creditor for leave to amend his suggestion, by charging that effects had come to the possession of the applicant since the making up of the issue — knowledge of which had come to the creditor only during the trial — refused.</p> <p>J. D., deceased, was indebted to S. by note for $1,000: — Held, that the oral declarations of the deceased were inadmissible to prove that the note, though nominally payable to S., was really for the benefit of defendant, — it not appearing that such declarations wore against the interest of the declarant, or that he possessed competent knowledge of the facts, or that it was his duty to know them.</p> <p>A witness who had been already examined in the cause, but who was not under subpoena, . declined again to go upon tho stand, and the presiding Judge refused to compel him. New trial, on that ground, refused.</p>

<p>Judgment for the penalty of the official bond of a Master in Chancery, was onterod in a suit instituted by A. B. Other suitors, whose actions were pending at tho samo time, were then ordered to file suggestions. At the close of the term, A B. proposed to prove his damages and take verdict as upon a writ of inquiry. The other suitors objected, as there was not time to try all the cases; and A. B’s. case was continued, that all the oases might be tried at the same term.</p> <p>A judgment for the penalty of an official bond, is for tho benefit of all persons who may prove damages upon breaches assigned. Tho judgment and jft. fa. thereon create the liens. Suits pending at the same time will be consolidated, and if the damages assessed in those suits exceed the penalty, the creditors will take ratably, until the penalty is exhausted, a creditor afterwards obtaining an assessment of damages upon breach assigned, has only to indorse the amount of his damages upon the fi-fa. and direct the sheriff to collect it.</p>

<p>Defendants, in order to raise money to pay for a negro they had bargained for, drew a promissory note payable to the plaintiff, upon which he advanced the money. The negro proved to be unsound : — Held, that defendants could not show the unsoundness as a defence to the action on the note — the consideration of which was not the price of the negro, but the money advanced.</p> <p>A promissory note drawn by a firm is not merged in a bond and mortgage given, at the same time and for the same debt, by one of the partners, in the name of the firm, but without the assent or knowledge of his copartners.</p> <p>A bond oxecuted by one partner in the name of the firm, without the assent or knowledge of his copartners, is the bond of the individual partner who executed it.</p>

Before O’Neall, J., at Charleston, Spring Term, 1853. Assumpsit, against the defendants as partners, for goods sold and delivered.

In the City Court of Charleston, October Term, 1853. This was a rale on the Clerk to show cause why he had refused to deliver pay certificates to certain grand and petit jurors of the City Court.

Before O’Neall, J., at Charleston, Spring Term, 1853. Assumpsit on a written contract, whereby the plaintiff, for the sum of $1,225, (no time of payment being mentioned,) agreed to dig a canal for the defendant. The contract bore date January 5, 1850.

<p>New trial ordered, the verdict being without evidence to sustain it.</p> <p>Payment by sheriff to plaintiff’s attorney after notice from plaintiff not to do so, is no payment.</p> <p>So, also, it is no payment, if, instead of actually paying the money, the sheriff applies it to a debt due him by the attorney, taking from him a receipt as plaintiff’s attorney.</p> <p>Verdict for defendant upon proceedings under Act of 1846, (11 Stat. 368,) to recover the sum withheld and five per cent, per month, is no bar to an action on the sheriff’s bond for the money actually received: semble.</p>

In the City Court of Charleston, October Term, 1853. The report of his Honor, the Recorder, is as follows: “ This was an action brought by the plaintiffs, merchants in Baltimore, against the defendants, auctioneers and commission merchants in Charleston.

<p>E. R. purchased from an agent of the Bank a draft on the Bank, and indorsed it to S. E. The Bank refused payment: — Held, that E. R., notwithstanding the transfer, might recover the amount he had paid for the draft, in an action against the Bank for money had and received.</p> <p>The draft had been indorsed and sent to S. E. to pay a debt which E. it. owed him which debt S. E. had assigned to P.j and P. presented the draft to the Bank for payment. The refusal of the Bank to pay, was because S. E. was largely indebted to them, and they claimed the right to retain the amount of the draft, as his creditors:— Held, that this was no defence to the action of E. R., who sued for the use of P.</p>

<p>Defendant, as Ordinary, had taken charge of a derelict estate under the Act of 1839, and suit was brought against him on a debt of the intestate. Pending the suit, the Act was repealed, and defendant pleaded the repeal in abatement :■ — Held, that defendant’s plea was not good, unless he added to it plme administravit, or plene ad-ministravit prmter.</p>

<p>Where son-in-law enters upon land under a conveyance from fatlier-in-law, expressed to he for valuable consideration, no presumption arises that the land was intended as a gift.</p> <p>A slight acknowledgment, made before the statutory period is complete, is sufficient to take a case out of the statute of limitations.</p> <p>Motion by plaintiff to strike out certain counts, made during the trial and after he knew that the presiding Judge thought he could not recover on those counts, refused.</p>

<p>X L: executed a deed of certain negroes in trust to pay his debts. The negroes were sold under senior executions against X L., and the purchaser conveyed them to the wife of X L.j so that his marital rights attached: — Held, that this was in effect the removal by X L. or a lien of incumbrance on the negroes; and that they remained in his hands subject to the provisions of the trust deed.</p> <p>"Where one sells and conveys property, and afterwards destroys or removes a lien or in-cumbrance upon it, such destruction or removal enures to the benefit of his vendee</p> <p>A debtor running off negroes from Mississippi to Texas, for the purpose of defeating his creditors, is such a fraud as will deprive him of the benefit of the insolvent debtors’ Acts, in this State.</p> <p>Where a debtor conveys land to a trustee for the benefit of his creditors, his afterwards selling and conveying the land to another, inasmuch as it tends to hinder and delay the creditors, may be such a fraud upon them as will deprive him of the benefit of the insolvent dobtors2 Acts.</p>

In the City Court of Charleston, May Term, 1853. The report of his Honor, the Recorder, is as follows: “ This was an action by the plaintiff against the Railroad Company to recover the sum of $313 25, the value of certain articles ill the way of baggage, alleged to have been lost, or not delivered by the defendants to the plaintiff, a passenger on the road from Columbia to Charleston.

Before Frost, J., at Charleston, Fall Term, 1853. Henry Husman, a naturalized citizen of this State, died intestate, leaving a widow, who was an alien ; and three sisters, natives of Hanover, who were also aliens. The escheator claimed that some portion of his real estate had escheated.

Before 0’Neajc.l, J.; at Charleston, Spring Term, 1853. The report of bis Honor, the presiding Judge, is as follows: “ The action was debt on bond, which, in the condition recited, that by a decretal order entered on the 27th of June, A. D. 1840, in the case then and there pending, of Thomas Napier & Co. vs. J. J. Gidiere, executor of L. P. Descoudres, it was ordered, that the defendant enter into bond to the Commissioner of this Court, with two good and sufficient sureties,…

Before O’Neall, J., at Charleston, Spring Term, 1853. After the decision of the Court of Appeals in this case (see 4 Rich. 271) the plaintiff obtained leave to file an amended replication.

Before Frost, J., at Horry, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ This was an action of trespass to try title. For the plaintiff, it was shown that the land in dispute had been assigned to Isabella Floyd, for her distributive share in the lands of her deceased husband, Francis Floyd, in 1806.

Before O’Neall, J., at Charleston, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ In this case, the plaintiff sued for damages sustained by him in the non-delivery in time of two cases of hats, which the defendants undertook to deliver to Mr. Murray, in Camden, for the plaintiff. “ The goods were delivered to the defendants to carry about the 12th of May. They did not reach Camden for several months.

Before O’Neall, J., at Charleston, Spring Term, 1853. The report of his Honor, the presiding Judge, is as follows: “ This was an action of assumpsit to recover damages on a contract for the sale of a tract of land and mill, and its appurtenances. The facts of the case are stated in 5 Rich. 254, with the exception of the proof which I will now state. “ Five letters of the' defendant were given in evidence.

Before O’Neall, J., at Charleston, Spring Term, 1853. This was an action against the South-Carolina Railroad Company for damage to cotton in its transportation to Charleston by the Atlantic and Western, the Georgia, and the South-Carolina Roads. The declaration consists of forty-three counts on forty-seven special receipts.

Before O’Neall, J., at Charleston, Spring Term, 1853. In the case against Toomer, the report of his Honor, the presiding Judge, is as follows: “ This was an action of debt on the bond of the late Master in Equity, Edw.

Before Frost, J., at Charleston, Fall Term, 1853. Held: on the 26th of April, of Shareholders to the Bank, at which the Commissioners presented their report, stating the number of shares subscribed, and the apportionment made by them; and also reporting the objection made by Mr. R. Dulin, and the protest which he had piesented to them.

<p>Indictment for tho murder of a slave named Joe, the property of a person unknown:— Heldf that proof,</p> <p>1. That the person killed was a negro, was prima fade evidence that he was a slave ;</p> <p>% That he called himself Joe, and was so called hy the prisoner, was sufficient evidence of his name $ and</p> <p>3. That he was a stranger to the witnesses who saw him alive, and his owner unknown to them, although he said he belonged to M. — and that his remains when found were in such a state that they could not he identified, was sufficient evidence to sustain the allegation that he was the property of a person unknown.</p> <p>So much of a confession as led to the discovery of a material fact may he given in evidence, although the party was induced to make the confession hy persuasion and hope of immunity.</p> <p>An objection, that one of the grand jurors, who found the hill, was not qualified to act as a juror, comes too late after arraignment, trial, and verdict.</p> <p>On the separate trial of B., upon an indictment against M., B., and R., for murder, the jury found “the prisoner guilty” : the Circuit Judge immediately directed the verdict to be amended hy the foreman hy inserting the name of the prisoner on trial, and as amended to he published in the presence of the jury before they had left their box: — Held, on appeal, that such procedure was propor. “</p>

Before Munro, J., at Edgefield, Spring Term, 1854. This was a motion to strike out of the writ, which was in slander, the name of the plaintiff’s wife, and to amend the same, by striking out and inserting so that the writ shall read as follows: “ To answer to Robert C. Jones of a plea of trespass on the case, and-so-forth; and also for certain false, malicious, scandalous and defamatory words of and concerning Margaret Jones, the wife of the said Robert C., by the said…

<p>In trespass to try title, a plat made from a survey, without notice to the opposite side, may be given in evidence, upon the question of location or identity — the surveyor fortifying the plat by his oath.</p> <p>S. K., a naturalized citizen, died intestate, leaving a widow, who was a resident of this State and an alien : he left also a brother, who was a naturalized oitizen: — Held, as to the real estate of S. K., that his brother was his sole distributee — the widow being entitled to no share.</p> <p>The widow of S. K., after his death, made application and became naturalized : — Held, that her subsequent naturalization did not operate retro-actively, so as to divest the brother, and vest her with a share of the land.</p> <p>The Act of 1807 (5 Stat. 574) has no application to the case; and the widow cannot claim under the Act of 1828 (6 Stat. 363) — the intestate, S. K., having left an heir capable of taking under the statute of distributions.(a)</p>

<p>The Law Court cannot notice a resulting trust.</p> <p>B. entered and held under W., and defendant entered under B. Plaintiff purchased *W7s interest at Sheriff’s sale: — Held, that defendant was estoppod from disputing plaintiff’s title.</p> <p>A possession by several consecutively for more than twenty years, though neither held for that period, raises the presumption of a grant.</p>

<p>Before Whitner, J., at Chester, Spring Term. 1854.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>‘ ‘ This was an action of trespass quare clausum, fregit. The defendant had purchased a mill seat, situate in the middle of plaintiff’s plantation, and had permission of egress and ingress along a road passing by plaintiff’s house to the mill. Having determined to remove some of the timbers from the mill, to one he designed to substitute higher up on the same stream, his wagon and team, under charge of his negro driver, was employed, in the Spring of 1851, in hauling. The exact localities were very imperfectly understood by the counsel and the Court, and the witnesses succeeded badly in furnishing such descriptions. After a very tedious examination, having reference to what afterwards proved an inaccurate diagram, these matters, with others arising in the case, were committed to the jury. It appeared in evidence, that the defendant had not in any instance accompanied his wagon in person — that several of the loads had passed along the permitted route — that occasionally the wagon had passed through the field by a nearer route, but before the crop had been planted, though one witness testified that he had seen the wagon returning empty twice through the field, after the corn had been planted, and was up. Two witnesses testified that hogs had rooted up corn in this ten or twelve acre field, perhaps the next night after the wagon had passed through along the route permitted to be travelled. There was some contrariety in the testimony as to the fences, though the weight of evidence showed that the fences were very inferior, especially a cross fence between the parties, and that a water-gap was often out of proper condition. There was no road-way in the direction the wagon had taken, when taking the nearer route, nor could I at all learn from any representation offered or description given, how this travel was effected.</p> <p>“ The first ground of appeal objects to the competency of John Kirkpatrick, who cropped with plaintiff in 1851, and received a share of the corn made on the field, of which crop, it was in proof, there was a fair yield, better than in the neighborhood usually though it had been replanted after the hogs had rooted it up.</p> <p>“ On the second ground, as to the liability of the defendant for the act of the slave, he had the benefit of very special instructions, as favorable as he could have required, that the master should be held only to answer for such trespasses as were committed when in the master’s employment, and by his direction. I thought, until I saw the ground, that this view had been pressed quite to the satisfaction of defendant; for really, regarding as I did, the case on the part of plaintiff, without any special merit, I offered the jury a fair opportunity on this point, to acquit the defendant of any trespass whatever. So, too, I thought at most, a very petty trespass had been committed. I intimated very plainly that the justice of the case could not suffer, so far as plaintiff was concerned, by a verdict for the smallest coin known .to our currency. These matters I felt constrained to submit to the jury, and they returned a verdict of thirty dollars.”</p> <p>The defendant appealed, and now moved this Court for a new trial, on the grounds:</p> <p>1. Because the witness on the part of the plaintiff, John Kirkpatrick, was an incompetent witness, as the suit was brought for damage done to the crop, and he was interested in that crop.</p> <p>2. Because defendant was not responsible for the acts of his slave, in driving over the land of plaintiff with his wagon, if he had done so without his orders, and so his Honor should have charged the jury ; but he did not do so, but said to the jury he did not think the defendant was, but told them they might infer he was, liable, when there was no legal evidence from which such an inference could be legally drawn.</p>

Before Munro, J., at Edgefield, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ This was an action of debt. There were two counts in the declaration. The first was on a sealed note for $107 42, payable to plaintiff at one day, and bearing date April 15, 1853.

.Before Withers, J.. at Newberry, Spring Term, 1854. This was an indictment for bastardy. The child was born 18th February, 1840. The affidavit for the arrest of the defendant was made on the 15th April, 1851, and the warrant for his apprehension was issued on the 28th May, 1851. A true bill was found against him at Fall Term, 1851; and on the 10th November, 1851, a bench warrant was issued, and he was arrested on the 3rd January, 1854.

Before Glover, J., at Chesterfield, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ The defendant was indicted for official misconduct as jailer, under the Act of 1829 (6 Stat. 390). “ The official misconduct alleged in the first and second counts, consisted in furnishing the prisoners under his charge with spirituous liquors.

Before Q’Neall, J., at Laurens, Spring Term, 1854. The report of his Honor, the presiding Judge, is as'follows: “ This was an action of trover, to recover the value and hire ofa negro man slave, Ben. The plaintiff married the daughter of the defendant, his only child.

Before Munro, J., at Edgefield, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ This was a suggestion in the form of an appeal from the decree of the Ordinary of Edgefield district, admitting to probate the will of Henry F. Freeman, deceased. The will was executed on the 8th of June, 1851, and the testator departed this life on the 1st of August following.

<p>In casos in domestic attachment within the higher jurisdiction of the Court, the plaintiff's attorney is entitled, under tho fee hill of 1827, to ten dollars, “ in addition to the common costs."</p> <p>But in such cases within the sum. pro. jurisdiction, he is not entitled to the ten dollars in addition, hut only to the common costs allowed in sum. pro. cases.</p>

<p>There exist, in this State, two classes of publio ways — (1) Public highways; (2) Neighborhood roads, or private paths. These last have either been laid out by public authority, or the right to the use of them has been acquired by grant or prescription, by those residing in a particular neighborhood; they are not under the jurisdiction of the Commissioners of Roads, and are kept in repair by the voluntary labor of the residents of the neighborhood; the public, however, has the right to their use, and for their obstruction an indictment is the remedy.</p> <p>The erection of a gate, continued for more than twenty years, by the owner of the soil, across a neighborhood road or private path — which gate is opened and shut at pleasure, and hinders no one from the use of the road — does not amount to an extinguishment, though it may to a modification, of the public easement.</p>

Before O’Neall, J., at Laurens, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ In this case the plaintiffs, merchants in Charleston, sued Madden & Thomas on an account for goods sold and delivered. Pending the suit, Thomas died; the action went on against Madden. “ The business was carried on in the name of Thomas alone.

Before O’Neall, J., at Edgefield, Fall Term, 1853. The report of his Honor the presiding Judge, is as follows: “ The defendant in this case issued his distress-warrant some time in the month of May, 1853, by virtue of which certain goods and chattels in the possession of Luther, the plaintiff, were distrained for rent.

<p>J. gave his negotiable note to W., who indorsed it before due and for valuable consideration to IT. IT. sued J. and W. separately, as drawer and indorser, and recovered judgj ments. W. paid the judgment against himself, and took an assignment from IT. of the judgment against J.: — On rule to show cause why satisfaction should not bo entered of the judgment of IT. against J., held, that the payment by W. of the judgment against himself was no satisfaction of the judgment against J.; and that W., as assignee, might enforce the judgment against J.</p> <p>"Where separate judgments are recovered against the drawer and indorser of a promissory note, and the indorser pays up the judgment against himself, and takes, at the same time, an assignment of the judgment against the drawer, this latter judgment is not extinguished, but may be enforced by the assignee.</p> <p>On a rule to show cause why satisfaction of a judgment should not be entered, the Law Court will take notice of and enforce the equitable rights of the parties: semble.</p> <p>The terms of the Act of 1849 (11 Stat. 556) providing for the protection of a surety making payment of a debt secured by judgment, are large enough to cover the case of an indorser paying a judgment against himself, there being one, also, against the drawer.</p> <p>If, in such case, the drawer should have a defence, available against the indorser, but not against the indorsee, upon affidavit of the facts the Law Court might order an issue; or he might go into Equity, and there obtain relief: semble.</p>

Before O’Neall, J., at Laurens, Spring Term. 1854. John D. Wright and Robert McCann purchased property jointly, and gave their .joint and several promissory note for $1500 in part payment, to John Wilson, or bearer. Wilson transferred the note to S. L. Maddox, who brought separate actions thereon against the makers, and recovered judgments— against Wright in Laurens, and against McCann in Anderson.

Before Whitner, J., at Chester, Spring Term, 1854. On August 26,1852, plaintiff shipped on the defendants’ cars, at Chester, a lot of 132 bales cotton, in good order, consigned to their factors in Charleston, to whom defendants undertook to deliver it. The usual time for the transit of cotton from Chester to Charleston, by railroad, is from seven to eleven days.

<p>Whore two or more persons are jointly charged in the same indictment with a capital offence, they have not a right, hy law, to ho tried separately. Such separate trial is a matter to be allowed, in the sound discretion of the Court, to be exercised with all due rogard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence.</p> <p>The right of peremptory challenge is not a right to select tho jury, but a right to reject a certain numbor of jurors; and that right will be preserved unimpaired to tho full extent allowed by law.</p> <p>That a denial of tho right to saver may lead to tho exelusion of tho testimony of ono prisoner, or of the wife or husband of one, for the other, furnishes no reason why tho right should be held to exist: nor is it any ground for exorcising tho discretion of tho Court in allowing separate trials, that one prisoner desires tho testimony of tho other.</p> <p>Difficulties supposed to lie in tho way of tho exercise of a sound discretion, mainly because of tho want of accurate information as to the facts on which tho judgment of tho Court should rest; the want of a uniform rule in all questions of discretion; and the hazard incurred by intermingling the innocent with tho guilty, furnish no reasons why tho right to sever should be held to exist.</p> <p>Immediately after a verdict of guilty, in a capital case, was published by the clork, the prisoners’ counsel moved to have the jury polled: nothing appearing, to create a doubt in the mind of the presiding Judge respecting the agreement and concurrence of the whole jury, the motion was refused: — Held, that such refusal was proper.</p>

<p>In ease for overflowing land, the action may be maintained on proof of plaintiff’s possession — such possession being presumptive evidence of title.</p> <p>A. G. entered, as purchaser, under a bond to make title, on demand, after he (A. G.) should procure a plat of the premises from a suryeyor, and held possession seventeen years, when he died. On his death his heirs continued to occupy the land fifteen years more, when they sold it: — Held,</p> <p>That the possession of A. G. and h'is heirs, was sufficient to raise the presumption of a grant.</p> <p>That, to raise such presumption, the possession of those holding, as purchasers, under the heirs of A. G., could, if necessary, be tacked to the possession of A. G. and his heirs.</p> <p>That the possession of A. G. and his heirs was adverso, and sufficient to give title under the statute of limitations, both as against A. G.’s vendor, and a third person claiming by paramount title.</p> <p>where one enters under a written contract to purchase, and the execution of a conveyance is only postponed that the land may be survoyed and a plat made, he may be regarded as holding adversely from the time of his entry.</p>

Before Whitner, J., at Chester, Spring Term, 1854. Indebitatus assumpsit, for money lent; money had and received, &c. Pleas: 1st, non assumpsit: on which issue was joined; 2nd, actio non accrevit infra quatuor annos. To the second plea plaintiff replied, that his intestate died January 19, 1848 ; that administration of her goods, &c., was not granted until June, 1850; and that, deducting the time from January, 1848, to June, 1850, the action was commenced within four years.

Before Mtjnro, J., at Barnwell, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows : “The declaration in prohibition stated that by the Act of 1835, incorporating Aiken, and by the Act of 1836, enlarging the powers and duties of its Intendant and Wardens, full power and authority are given to, and it is made the duty of the Town Council, to keep all roads, streets and alleys, within the limits of the said town, open and in good repair; and that…

<p>where a will is read oyer to the testator, and he approves of it understandingly by executing it, all previous verbal instructions are superseded.</p> <p>A mere mistako by the draftsman not amounting to fraud, or not calculated to change materially the testator’s disposition of his estate, will not vitiate his will — Semble.</p> <p>On an issue by way of appeal from the Ordinary the will must stand or fall. The law Court can neither add a clause to the will, nor correct the dispositions made by the testator — Semble. «</p> <p>If the legatee who is benefited by the mistake, admits and corrects it, in the absenoe of fraud, all ground for assailing the will is gone — Semble.</p> <p>Equity might correct a mistake by setting up a trust pro tanto: per O’Neall, J.</p>

<p>Before Whitner, J., at Union, Spring Term, 1854.</p> <p>This was an application for the benefit of the insolvent debt- or’s Act. The following are the specifications contained in the suggestion filed by the creditors :</p> <p>1st. Because the defendant, Charles Gowing. has fraudulently assigned and conveyed the whole of his personal estate to his son, Rodney Gowing, without good or valid consideration, and with a fraudulent understanding and intention of securing to himself a benefit out of the estate, at the expense, and to the injury of his creditors, by retaining possession of his estate so assigned.</p> <p>2nd. Because the debts and judgments preferred by defendant to his son, Rodney Gowing, are fraudulent and false, in fact and in law, and are set up under a corrupt and fraudulent understanding and combination between the father and son, to secure to the father a benefit, and to hinder and defeat the plaintiffs, and others, the creditors of the said defendant, in the collection of their just claims.</p> <p>3rd. Because, since the assignment aforesaid, by defendant to his son, the defendant has, by arrangement and sale of his real estate, with J. J. Pratt, one of his preferred creditors, paid off and satisfied the debt so preferred, or nearly the whole of it.</p> <p>4th. Because, &c. (This objection was answered, by the Court allowing defendant to amend the schedule.)</p> <p>5th. Because the defendant has fraudulently preferred creditors within three months of his arrest, and subsequent thereto, to wit: D. Wallace, W. H. Gist, and others, with the intention of hindering, and defeating these, and other of his creditors, in the collection of their claims.</p> <p>6th. Because, since the assignment by defendant to his son, Rodney Gowing, he has remained in possession, and used and enjoyed as his own, the assigned effects, contrary to law, and with the fraudulent intention of hindering and defeating these plaintiffs, and other of his creditors, in the collection of their debts.</p> <p>7th. Because a bill for discovery, account, settlement, and injunction, against the defendant, and others, has been filed in the Court of Equity, for Union district, by the plaintiffs, and others, and sustained by that Court, which, having taken cognizance, is the only competent tribunal to hear and determine the matters in controversy between parties.</p> <p>8th. Because defendant has fraudulently procured his brother-in-law, Hiram Baker, to assign an old judgment, out of date, for no consideration whatever, to his son, Rodney Gowing, with the intention to hinder and defeat his creditors.</p> <p>9th. Because the defendant has expended more than two shillings and six pence, per day, since his arrest.</p> <p>10th. Because the defendant, in his assignment to his son, has preferred persons as creditors, to whom he is not justly indebted, to wit: Rodney Gowing, J. J. Pratt, and F. T. Nethers.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“The defendant had applied for the benefit of the insolvent debtor’s Act, and suggestions were filed by these several creditors, by leave of the Court, contesting his right to a discharge. They were tried at the same time, according to an order at a previous Term, made by consent of parties. The several creditors had each obtained judgment against Charles Gowing, in the following order:</p> <p>“ 1. North & Rowe (of whom the present actor, North, is survivor) obtained a judgment for $1102, besides interest and costs, signed 24th February, 1829, founded on note under seal, 4th May, 1822, and renewed by sci. fa. 6th November, 1850, on writ of sci. fa. issued 17th February, 1849.</p> <p>“2. Rice vs. defendant; two judgments, each signed7th April, 1846 — one on note, 9th January, 1843, for $ 156.10, with interest and costs; the other on note, 4th April, 1844, for $ 175, with interest and costs.</p> <p>“ 3d. Branden & Nethers vs. defendant; judgment signed 1st November, 1851, for $175.27, on two notes, 20th February, 1849, and 2nd February, 1851.</p> <p>“To shew the general indebtedness of defendant, other judgments, to other creditors, were produced, in favor of J. J. Pratt, Boatwright & Crane, and James S. Brooks, bearer. The defen-ant was arrested 4th February, 1853. A ca. sa. had once issued against him, in the case of Rice, 4th October, 1849, though he was not arrested ; and by deed bearing date same day, 4th October, 1849, and recorded in Clerk’s office, 20th December, 1849, Charles Gowing had made an assignment to his son, Rodney Gowing, (a.) The defendant’s property had all been sold by sheriff Johnson, 1st and 2nd October, 1849, sales of personality amounting to $567.12, and his son, Rodney, had bought (all except $95.74) $471.39. The house and lot, tan yard, &c., had been bought by Mr. Pratt, who afterwards sold to Rodney, on time, Gen. Wallace and W. H. Gist being his sureties, with a mortgage of the premises.</p> <p>“ There was some contest over the production of deed of assignment, Rodney Gowing having it in possession, and refusing to produce, unless he was sworn as a witness on the part of contestants, which they declined. It was at length produced, its execution proved, and some acknowledgments, also, of defendant, Gowing, “ that it was executed at the Reed field, two miles below town ” — “ that he had been dodging the sheriff, who had a ca. sa., but that he had fixed it between Rodney and himself.” This was on Friday after the Tuesday when his property had been sold, and made to a witness who had carried him provisions in the woods. Again, it was proved that a day or so after sale of defendant’s property, Rodney Gowing was present at a conversation in reference to a ca. sa. being sued out in the Rice case. Soon after, defendant was in the street, and Rodney out to meet him; a brief conversation was had, defendant returned again to his house, and was not again seen, either in the street, or at his house, for two or three days after.</p> <p>“A schedule of debts is annexed to the deed of assignment, footing up a sum of $11,000. No one could speak, of those examined, as to its value, with accuracy. Mr. Culp, on the part of plaintiffs, said that sums of considerable amount were on substantial men; some debts on insolvent persons, and for some, there were doubtless discounts. Mr. Skelton, called on the part of defendant, had looked over a schedule of debts, at instance of Rodney Gowing, which schedule he produced in Court, to form an opinion as he had been requested, as to the solvency or insolvency of debtors. He found many on persons wholly insolvent, and had so marked them, though he had examined only five or six pages out of twenty. I declined to charge the jury, as requested, that in this schedule the debts were all good. However used in argument, I did not believe the fact to be so, or that any one of the counsel, on either side, so believed.</p> <p>“ Much testimony was offered on the subject of Rodney Gow-ing’s pecuniary resources. He had attained the age of 27 years; had been employed, first, as clerk, by Mr. Addocks, and in 1848 and 1849 by General Wallace, in their stores, and for a short time, more recently, in Columbia. He was expert in this business, and gave satisfaction to his employer, (Wallace.) His wages were not proved, and settlements were made with him at the end of each year. At the close of his engagement with General Wallace, he received a small sum of money, and a hundred dollar note on a customer. Once when a Mrs. Cole and a Mr. Churchill were in this country, he got as much as $100. The wages of clerks vary from $200 to $600. As to his habits, those who judged most favorably said he lived on his wages ; others said he lived freely; dressed finely; rode a good horse ; drank wine; smoked cigars; and toward the close of his engagement with General Wallace, drank too freely, and the habit had grown on him. He had no visible property but his horse and clothes, and some of his intimate associates did not believe that he lived within his income.</p> <p>“ Mr. C. H. Hillard was objected to when offered as a wit-tness, as the general lawyer of defendant. The witness, interposing no objection, was permitted to proceed, saying he would disclose nothing received from defendant as his client, in professional confidence. Defendant had brought to him two executions against himself, for renewal — one in favor of Baker, the other in favor of Brooks & Co. He was struck with the length of time these cases had been open, and remarked upon the fact to defendant. Defendant had then spoken to him of the Baker execution, and this may have been confidential, regarding him as a friend; but that no advice was sought, no fee paid, no charge made against him, nor could the witness regard the communication as made in the course of business, by a client to his lawyer. There was no professional relation growing out of the transaction or the disclosure. With the approbation of the Court, but without any order to the witness by way of compulsion, he testified that defendant, Charles Gowing, had told him Baker was his brother-in-law, and lived at the North; that there was nothing due on the execution; that he, Gowing, had once been in a straight, and confessed this judgment to Baker to aid him through, but he had got along without it. The judgment in favor of Baker was confessed and entered 16th October, 1826, and purported to be assigned to Rodney Gowing 22nd June, 1849 ; a consent to renew, signed by Charles Gow-ing 8th September, 1849. The Brooks debt, made the subject of a special ground of appeal, was traced in the following particulars, having commenced in the name of James S. Brooks, bearer, and in the progress of renewals, being entitled James S. Brooks & Co. The note was payable to E. A. Cole, or bearer; a writ in name of James S. Brooks, bearer, vs. Charles Gowing, was issued, with affidavit to hold to bail, stating debt due deponent, (‘ as agent of Cole,’ and these words stricken out,) followed with declaration, judgment, and fi. fa., each by the proper title, and the latter lodged 25th October, 1826 ; second fi. fa. lodged 29th December, 1829. Then there was an execution issued in the name and handwriting of ‘ Thompson, att’y,’ entitled James S. Brooks & Co. vs. Charles Gowing, which I think was not lodged, though of this I am not confident. On this was an assignment, purporting to be made to Rodney Gow-ing, and signed ‘ Roulta M. Cowles, [l. s.] ; James S. Brooks & Co., by Wm. E. Churchill,’ 8th February, 1848 ; consent to renew, signed by Charles Gowing, 20th May, 1848. Neither of the renewals by Dillard were produced to me, though all parties seemed to regard them as present; yet they were not furnished when asked for by me. I did not think the mistake in the renewal fi. fa., as to the title, material to the bona fides of the transaction, and so said to the jury. The mystery was in connection with the assignment, principally. The seventh ground of appeal makes it necessary for me to say that all parties having treated the validity and continued existence of the Brooks’ execution and debt, as an important element, I did suggest that Brooks and Churchill might have furnished more satisfactory information on some of the matters which had been the subject of comment. Instead of assuming to decide as to the weight of evidence, this was fully submitted to the jury, hav. ing taken the precaution to suggest, in behalf of the defendant that the absence of these witnesses from the State, their great distance, and difficulties not susceptible of explanation in this issue, might afford sufficient solution of this apparent omission. These had been the subject of remark by counsel on each side, but this ground complains as though but one side had been presented.</p> <p>“ The third ground charges an omission, on the Court, óf a peculiar character. I can only say the ground was not taken on the circuit. It did not occur to my own mind, nor do I regard it as tenable, now that it has been suggested by counsel.</p> <p>“ The fifth and sixth grounds refer to matters about which it is proper to say a word or two. The alleged debt of Rodney Gowing on Charles Gowing, recognized and preferred in the the deed of assignment, was for $870.15. For this, a note had been given, and by way of shewing the consideration of the note, an account stated was also produced, co-existent with the note. Whether this account should go with the note to the jury, led to some contest. I thought, under the circumstances, the account, itself, should be submitted to the jury. A casual remark as to its effect, unaided by other evidence, called forth free comment on the part of defendant’s counsel, as well in the progress of the evidence, as subsequently in the argument. The Court was more than once urged to rule it out, if not deemed of weight; but yielding to counsel the right to withdraw or introduce it, the account was read, and proof subsequently offered in corroboration. The account will be furnished by counsel in the printed brief. Some of the items were established, others were not; and in reference to some of them, everything would depend on the legitimate conclusion from the facts. An inspection of the account will shew a considerable item to be a debt paid John B. Edwards, by Rodney, on account of Charles Gowing. The evidence disclosed the following facts: Edwards had a debt on Charles Gowing, with J. C. Kitchens surety, and obtained a judgment against them, 31st March, 1849, for $298.18, with interest from 2nd April, 1841, and costs $23.62. This is the debt, and interest, and costs, charged in the account, 27th June, 1849. Rodney Gowing gave his note to Edwards, with J. C. Kitchens and Charles Gowing sureties for the debt, at one day, amounting then to $378.22. There was no evidence that the costs had been assumed, or paid. The witness Edwards, stated they were still due. Kitchens had procured Edwards to sue Rodney Gowing on this note, on which judgment had been obtained, and fi. fa. lodged, Sth Oc-tobe, 1852, and this judgment is yet unpaid. General Wallace proved, in reference to one item in the account, that Rodney Go wing had, in 1848, paid, on account of his father, $50, but had no knowledge of any other payment. A note was also produced in Court, of Charles Gowing to Rodney Gowing, bearing date 1st May, 1848. W. L. Palmer proved that he had engaged corn to Rodney Gowing two or three times — had charged it to Rodney in 1848, 1849, and Rodney had paid him. Rodney Gowing lived at his father’s, and kept his horse there, when about Union. In reference to defendant’s indebtedness to his son, I thought the mere existence of an account, furnished very slight evidence of its truth — that if an account stated, had been filed with the deed of assignment, whereby creditors would be there furnished with the items, out of which the debt was alleged to have arisen, the mere fact would, to some extent, have corroborated — that it was often difficult to obtain specific proof of each item of a running account, especially between those having mutual confidence, and therefore, that the account here produced, should be judged of fairly and liberally, from the general character of the transaction, but that fraud vitiated all contracts, and if the proof shewed a fraudulent incorporation of false items and charges, with a view of swelling this demand to be secured by a lien, and intended to cover the property of the father, it would contaminate the debt, and vitiate the transaction.</p> <p>“ In reference to the ninth ground of appeal, there was a good deal of evidence on the subject of the general appearances about the house of Charles Gowing, his business and conduct, and the general management of the shop and tan yard. Much of it was vague and indefinite, few specific facts being elicited that could be transferred to paper.</p> <p>“ The defendant, Charles Gowing, had been in the business of conducting a tan yard and shops, either of harness making, or some other employment in leather, in the town of Union, for many years. He contihued at the old stand ; lived in the same house he had done for-years; had the appearance of carrying on the same business; no change was seen about family affairs; an equal air of comfort, and his daughters were at school, and instructed in music, &c., before the sale of his property, and the assignment to his son, as since. Whilst, on the other hand, it was in proof Rodney Gowing had carried on business in his own name; had formed a co-partnership with one whose name was Rodgers; and that a notice had appeared in the Unionville Journal, on some occasion, that Charles Gowing was the agent of R. Gowing. It was also in proof that Rodney Gowing claimed proceeds of sale of personalty, in virtue of the Baker execution, and perhaps others.</p> <p>“These facts were submitted to the jury, without any conclusion of my own, or any attempt on my part to deduce a legal conclusion from such as had been made to appear. Some general principles were laid down, and which I need not repeat in this brief, because they would be controverted by no one, as to badges of fraud, where sales were made and possession retained; transfer of property to one creditor in preference to others, the debtor securing a secret benefit thereby; contrivances to hinder just creditors, &c. No othercompetent mode suggested itself to my mind; for without a special verdict, finding the facts, the legal conclusion could not be drawn. To have assumed certain facts, and thereupon have instructed the jury, would have been endless, and lead to no satisfactory result. The jury were told that these sales being public, and by the sheriff, should go far, if not conclusively, to shield the defendant from imputation of fraud, from the possession that followed ; but if the sales were the result of contrivance between the son and the father, under pretensive process, the son to procure the proceeds, and the father still to enjoy the property, then the continued possession was a badge of fraud. The peculiar terms of this ninth ground has seemed to require this full explanation. I have no idea the defendant suffered from any expression of mine, in reference to this branch of the case.</p> <p>“The verdict was for the plaintiffs, in the suggestion, on the first, second and sixth specifications.”</p> <p>The defendant appealed, and now moved this Court for his discharge, and for a new trial, on the grounds:</p> <p>1. Because C. H. Dillard, the attorney for the defendant, was not a competent witness for the plaintiffs, and the more especially so as he had declared in the hearing of the Court, that the communications of the defendant were confidential, as they in fact were, as the circumstances of the case clearly showed ; still the Court ruled that he was a competent witness.</p> <p>2. Because it was confidently affirmed by the plaintiffs, that the assignment and schedule of the defendant was good for over $>11,000, which was also admitted by the defendant; and still his Honor, in his charge to the jury, went on to say to the jury, that he did not believe they were worth $>11,000, in which it is submitted that his Honor erred to the prejudice of the defendant.</p> <p>3. Because his Honor should have instructed the jury, that if they found that the schedule and assignment were worth over $2,500, the amount of the debt for which he had been arrested, then they should find for the defendant. This his Honor omitted to do, which, it is submitted, was an error of omission.</p> <p>4. Because his Honor, in his charge to the jury, said, “ there was something mysterious about the Brooks execution, and its assignment to Rodney Gowing,” when, in fact, as the defendant’s counsel respectfully submit, there was no mystery touching the same, that could legally affect the defendant in these cases; but still, this part of his Honor’s charge was well calculated to, and no doubt did, mislead the jury in their finding, though these matters legally had nothing to do with the issues now before the Court.</p> <p>5. Because his Honor, in his charge to the jury, said, “ If a schedule of the debts paid by Rodney Gowing for Charles Gow-ing had been filed with the note for $870.15, then it might have been entitled to some weight; but as that had not been done, it could not weigh a feather.” In this, it is submitted, there was error.</p> <p>6. Because his Honor charged the jury, that if they should find that only some $500 or $600 of the $870.15 note had been paid in fact by Rodney Gowing, for the defendant, C. Gowing and the remainder falsely inserted, then the whole was null and void — in which, it is submitted, there was error.</p> <p>7. Because his Honor charged the jury, that “ it was an important element in this case, for the defendant to have proved by Brooks and Chfirchhill the validity of the Brooks execution, and the assignment of the same by thembut the defendant contends that these facts were well and legally proved.</p> <p>8. Because the findings of the jury, on the issues submitted to them are contradictory, the one tending to, and indeed and in law, defeating the legal effect of the others, in this, that they find for the plaintiffs on the first, second and sixth grounds of the suggestions, and for the defendants on all the other seven grounds contained in the plaintiffs’ suggestions.</p> <p>9. Because, under the circumstances of the case, the defendant remaining in possession of the property that had been sold as his, was wholly immaterial, and so his Honor should have instructed the jury; but still his Honor told the jury that was strong evidence of fraud, when he should have told them, that notwithstanding such retention of possession, still the defendant was entitled to his discharge.</p> <p>10. Because there was no proof whatever that the defendant had, within three months before his arrest, or at any time since, paid or assigned his estate, or any part thereof, to one creditor in preference to another, or fraudulently sold, conveyed or assigned his estate, to defraud his creditors; and therefore the defendant was entitled to his discharge. His Honor so charged the jury, still they found against the defendant, without any regard to time, as all the facts had occurred or transpired three years and four months previous to his arrest, on the 4th February, 1853.</p> <p>11. Because the verdicts are contrary to law and evidence, and the most important part of his Honor’s charge, and should be set aside, and a new trial granted.</p>

Before O’Neall, J., at Abbeville, Spring Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ This was an appeal from the decision of the Ordinary, admitting to-probate the will of Robert C. Gordon, by Kirkwood and wife, the latter of whom was a child of the deceased. “ The grounds of appeal do not seem to make it necessary to state the evidence in detail.

Before Whitner, J., at Union, Spring Term, 1854. This was an indictment under the Act of 1834, 17 Stat. 469,) for selling, giving and delivering spirituous liquors to a slave. It contained no allegation that defendant was either a distiller vender, or retailer of spirituous liquors. The defendant was convicted; and he now moved in arrest of judgment for want of such an allegation.

Before O’Neall, J., at Abbeville, Spring Term, 1854. The report of his Honor the presiding Judge, is as follows : “ In this case, the prisoner was indicted, in the first count, for grand larceny, under the statute, for stealing promissory notes, commonly called bank notes ; in the second count for the same offence, at Common Law, for stealing a purse, handkerchief, knife and gloves; in the third and fourth counts for being an accessory before the fact in these particulars;…

Before O’Neall, J., at Laurens, Spring' Term, 1854. The report of his Honor, the presiding Judge, is as follows: “ The prisoner was indicted, in the first count, for stealing a man slave named Henry, the property of Melmoth M. Hunter; in the second count, for aiding the said slave to run away and depart from his master’s service. “ The owner of the slave, Melmoth M. Hunter, about the last of July, 1852, at his residence in Laurens district, missed the slave.

Before O’Neall, J.; at Barnwell, Fall Term, 1853. The report of his Honor, the presiding Judge, is as follows: ‘‘This was an action of trespass to try title to a tract of land, covered by the grant to Breen and Hughes, in 1786, which has been so often before the Court, in the case of Hill and wife. The plaintiffs are the heirs of Twining, who lived in Georgia several years before his death.

<p>The 4th section of the Act of 1849 (11 Stat. 557) provides, that every licensed tavern-keeper shall have and keep certain specified provision for the entertainment of tra-vellers, “ upon pain of forfeiting his license and recognizance, and "being subject to the like penalties as for selling without license — Held, that, upon an indictment for retailing without license, the State might show, that defondant, a licensed tavorn-lceeper, had not kept the specified provision, and upon such proof, the retailing being admitted or proved, defendant might be lawfully convicted.</p>

<p>A clerk employed by written agreement to “ purchase goods, and conduot a moroantile house in the village of Lancaster, upon the cash system,” with a certain sum of money placed in his hands for that purpose, has no authority to bind his principals for goods purchased for the house, on credit.</p> <p>The question, whether the principals (the defendants) had confirmed the aots of the clerk in buying goods on credit, by taking and selling a remnant of tho goods, and receiving and collecting notes and accounts due the house, after they know that he had purchased goods on credit, was submitted to the jury, with proper instructions, and their verdict for the defendants the Court of Appeals refused to disturb.</p> <p>Tho mere leaning of a Judge, in charging a jury upon a question of fact, adverse to a party, is no ground for a new trial — at any rate in a civil case.</p>

Before Glover, J., at Union, August, Extra Term, 1853. So much of the report of his Honor, the presiding Judge, as is necessary to a full understanding of the opinion delivered in the Court of • Appeals, is as follows: “ All the witnesses who were examined in the several trials of this cause heretofore, were again examined at the present term, or their evidence read from the reports of Judges Ward-law and Frost, (a) except Dr. James B. Hicks, William Little Reuben Coleman,…

Before O’Neall, J., at Barnwell, Fall Term, 1853. This case is so fully stated in the opinion delivered in the Court of Appeals as to render any statement here unnecessary.