Volume 42 — South Carolina Law Reports

BEFORE O’NBALL, J., AT SPARTANBURG-, AUGUST, EXTRA TERM, 1854. The plaintiees were creditors of the firm of Morgan & Cothran, merchants, doing business on Thickety creek, in Spartanburg district. Held: that one partner could assign his share of the partnership goods, and the assignment would be valid against partnership creditors. He submitted it to the jury to decide, whether the assignment and possession were obtained, Iona fide. The jury found' for the garnishee.

BEEOBE O’NEALL, J., AT SPABTANBUBG, AUGUST, EXTRA TERM, 1854. The report of his Honor, the presiding Judge, is as follows : “ The plaintiffs were creditors of Morgan & Cothran. They sued out a writ of attachment against J. B. Morgan, or against the firm, and the defendants, as in possession of assets received from J. B. Morgan, were sued as garnishees.

<p>BEFORE GLOVER, J., AT GREENVILLE, FALL TERM, 1854.</p> <p>T. B. Roberts was plaintiff in a judgment and fi. fa. against C. B. Roberts, and J. B. Betts was plaintiff in another judgment and execution against C. B. Roberts and 0. A. Pickle, who had been partners in trade. Theso judgments and executions bore the same date. Under the fi. fa. of T. B. Roberts, the sheriff levied on and sold a house and lot, and other property of C. B. Roberts; and this was a rule on the sheriff to show eause, why he should not apply the whole amount to the ji. fa. of T. B. Roberts.</p> <p>His Honor held, that T. B. Roberts was entitled to the whole amount arising from the sale, and ordered the sheriff to apply the same accordingly.</p> <p>The sheriff appealed on the grounds,</p> <p>1. Because, from the facts before the court, the plaintiff in the case of J. B. Betts vs. Roberts & Pickle, was entitled to a part of the money in the hands of the sheriff, according to the lien of his judgment and ji. fa.</p> <p>2. Because the property of C. B. Roberts, who was a defendant in the case of J. B. Betts vs. Roberts and Pickle, was bound by the judgment of the said J. B. Betts.</p> <p>3. Because the order made by the presiding Judge in the rule in this case is contrary to law.</p>

BEFORE O’NEALL, J., AT EDGEFIELD, FALL TERM, 1853. The report of his Honor, the presiding Judge, is as follows: “This was a sai. fa. on a recognizance entered into by Austin Rowe and his surety James C. Vaughn, conditioned that the said Austin Rowe, should appear at the Court of General Sessions of the Peace, for Edgefield District, 'to be holden at Edgefield Court House, for Edgefield District, on the first Monday in March instant, to answer to a bill of indictment, for…

BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1854. The report of his Honor, the presiding judge, is as follows: “ The declaration alleged the taking of sundry goods belonging to the plaintiff, and also of some cattle and other goods of the property of certain other persons, viz: Jordan, Brogden and Glover. The defendant demurred specially, because of the mention of goods, as to which neither property nor possession in the plaintiff was alleged.

BEFORE O’NEALE, J., AT CHESTER, FALL TERM, 1854. The report of bis Honor, tbe presiding Judge, is as follows: “ This was a sum. pro. on a note under seal of Thos. Robins, deceased, the alleged testator of the defendant. The note was proved in the ordinary way. The defence was, that the defendant.yas not executor. The plaintiff averred that the defendant was executor de son tort.

BEFORE WHITNER, J., AT KERSHAW, FALL TERM, 1854. Defendant took from plaintiff’s slave Jacob, a fifty dollar bank bill, supposing it to have been stolon. He advertised for the owner, but no one appeared, and after waiting over three years the plaintiff brought her action for the amount of the bill. The bill, it appeared, was claimed by Sarah, another slave of the plaintiff.

<p>Defendant in sum. pro. "being served -with interrogatories to answer “whether he had purchased the goods charged in the account sued on, on credit, and at the prices charged;” answered, that he had, hut that he had paid the account; — Held, that plaintiff was entitled to a decree — defendant’s answer as to the payment not being evidence for him.</p>

<p>BEFORE WARDLAW, J., AT ORANGEBURG, FALL TERM, 1854.</p> <p>■ This was an action of assumpsit. The plaintiff alleged that the defendant had agreed not to employ, in certain ways, Tom, a slave of plaintiff’s, which he hired for the year 1852; and that he did so employ Tom, whereby his death was caused.</p> <p>The plaintiff adduced a note, dated January 2, 1852,? made by the defendant, payable to the plaintiff, or bearer, twelve months after date, for eighty dollars, “ it being for the hire of his boy Tom.” Testimony of conversations between the parties, at and before the making of the note, to show an agreement concerning the way the slave should, or should not, be employed during the hiring, was objected to by the defendant, as parol addition to the written contract contained in the note; but was admitted by his Honor, the presiding judge.</p> <p>The case was left to the jury, who found for the plaintiff eight hundred dollars.</p> <p>The defendant appealed, and now moved this Court for a new trial, on the ground, inter alia,</p> <p>Second. Because it was in evidence that the contract for the alleged breach of which the action was brought, was reduced to writing; and it is respectfully submitted that his Honor erred in ruling that parol testimony'"as to a parol contract was admissible.</p> <p>cited 2 Stark. Ev. 573; lb. 1076; Phil. Ev. 772; Wood vs. Ashe, 1 Strob. 412; Grasoway vs. Moore, Harp. 401; MeDowall vs. Bechley, 2 Mill, 265; Falconer vs. Grarrison, 1 McO. 209 ; Saund. on PI. & Ev. 137 ; 1 Chit. PI. 385.</p>

BEFORE O’NEALL, J., AT UNION, FALL TERM, 1854. The report of his Honor, the presiding judge, is as follows: “ This was a sei. fa. on a judgment recovered by the intestate against the defendant, on the 24th of October, 1844, for one thousand two hundred dollars, with interest from the 11th of May, 1844. “ The defendant’s defence rested upon a deed made by the intestate, conveying to Dolly Ivey, the wife of the defendant, and the lawful heirs of her body, after the death of…

BEFOSE WHITNER, J„ AT ANDERSON, FALL TERM, 1854. The report of his Honor, the presiding Judge, is as follows : “ A true bill was found at this term against the defendant, for harbouring a slave, and placed on the calendar docket. A bail writ had been issued and returned to this term, on which the defendant was arrested, and bail required in the sum of one thousand dollars. The' defendant was in jail and had been for some months.

<p>BEFORE WHITNER, J., AT LEXINGTON, FALL TERM, 1854.</p> <p>This was an action of trespass to try title. The paper title to the land was clearly in the defendant, Benj. Hutto, who claimed under a grant issued in August, 1793.</p> <p>The plaintiff claimed under a grant to Gibson, dated May 4, 1829. Gibson conveyed to Sarah Johnson, April 2, 1830. She died in 1847, and under proceedings fo'r partition the plaintiff became the purchaser of her interest. Sarah Johnson had been in possession several years, and much evidence was given upon the questions as to the extent and length of that possession, and whether it was adverse.</p> <p>Contrary to the charge of his Honor, the presiding Judge, the jury found for the plaintiff; and the defendants appealed on the ground that the verdict was contrary to the evidence, and the charge of the presiding Judge.</p>

<p>Action by the administrator of the vendor upon notes given for the purchase-money. No conveyance of the land had been executed, but the vendor had given bond to mate titles, and the defendant was in possession. Defendant claimed an abatement because there was -title paramount in a third person to part of the land. A survey; without notice to the vendor, from copy-deeds from the register’s office, the declarations of the vendor, and proof of claim made by a third person, hold to be prima fade evidence of paramount title, entitling the defendant to go to the jury upon the question of abatement.</p>

BEFORE O’NEALL, J., AT ABBEVILLE, SEPTEMBER, EXTRA TERM, 1854. The report of his Honor, the presiding Judge, is as follows: “ This was an action of trover brought for the recovery of the value of a negro woman named Milly and her children. The whole case turned upon the title ; and that depended upon facts about which there was little or no dispute. “ The late Leonard,J. White was a man of large means.

<p>When an action is Brought upon an injunction Bond, the law court may look into the proceedings in equity which led to the giving of the bond, in order to determine its validity.</p> <p>The commissioner may grant a special injunction requiring security for the forthcoming of property, which is the subject of a Bill in equity.</p> <p>An order By the commissioner, that “a special writ of injunction do issue,” is too general, and void.</p> <p>Such a general order may be cured by the writ, if that state the matter specially; but then the writ must be a judicial act, and be signed by the commissioner himself.</p> <p>The commissioner has no authority to grant a special injunction requiring the defendant to give security, that he “will not waste the estate of his testator, now in his hands as executor, and will fully account for the same.”</p> <p>Failure to pay a mere money decree cannot be a breach of any bond which a commissioner may rightfully take under a special injunction.</p>

<p>Indictment for a conspiracy to pervert legal process to tlie unlawful purpose of extorting a deed from J. M., charging that defendants executed their purpose by the concerted means. Verdict — guilty, which the Court of Appeals refused to disturb.</p> <p>The deed, which was extorted, was a conveyance of land from J. M. to L. Q., one of -the defendants. Evidence, in behalf of defendants, to show that the paper title to the land was already in L. G., was excluded on circuit, and on appeal held, that, under the circumstances, .it was properly excluded.</p> <p>Indictment for a conspiracy to extort a deed by means of a peace warrant:— Held, that the offence of conspiracy might be made out, although the affidavit to obtain the peace warrant was true.</p> <p>The conspiracy may be criminal, although the purpose be merely to get possession of land by means of an extorted deed in favour of the legal owner.</p>

<p>Testator bequeathed certain slaves to his grandson J. R. “for and during the term of his natural life, and, after his death, to the heirs of his body lawfully begotten, or to such person or persons as he, by will, after he comes of age, shall devise and bequeath them to: But if my said grandson shall die before having lawful issue, or before making a legal disposition by will of the said negroes, then and in either of such cases, the said negroes and their increase shall return and become part of my estate, and be equally divided amongst my heirs agreeably to the statute of distributions of force in this State:” — Held, that J. R. took an absolute estate defeasible upon the happening of the contingencies mentioned; and he having died of full age, before having lawful issue and intestate, his interest was determined.</p>

<p>Though the circuit judge improperly admitted evidence of the good character of the plaintiffs, a new trial was refused, because the evidence could have had no effect on the verdict.</p> <p>An appeal from the ordinary upon a question of admitting a will to probate, must be tried de novo, and the appellants may take grounds not taken before the ordinary.</p> <p>After the jury had been fully instructed, the circuit judge was asked to give further instructions upon questions of fact, which he declined to do. New trial refused.</p> <p>Where it is competent to give a conversation in evidence, the testimony of a by-stander who overheard it, is not secondary evidence. It is not necessary to call a witness who was engaged in the conversation.</p> <p>Where the objecion to the probate of a will is, that it had been revoked by writing, the jury in finding a verdict establishing the will may also find “ against the revocation.”</p>

BEFORE WHITNER, J., AT RICHLAND, FALL TERM, 1854. Neuffer, one of the defendants, Sheriff of Richland district, had levied two executions in his office in favor of A. M. Hunt, and Joseph D. Daly, on certain property, consisting mainly of household furniture; Und having the same in his possession, the plaintiff procured to be issued a writ of replevin, whereby the sheriff was required to surrender the property.

<p>To an action of debt on bond given for the price of a tract of land, a defence of partial failure of consideration because of a deficiency in quantity, is not subject to the plea of the statute of limitations.</p>

<p>BEFO EE GLOVEE, J., AT GEEENVILLE, FALL TERM, 1854.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This was an action of assumpsit, to recover the remaining instalments due on one hundred shares subscribed by the defendant’s testator, John H. Joyce, to the stock of the Green-ville and Columbia Railroad Company.</p> <p>“ The general issue and the statute of limitations were pleaded. Only the first instalment had been paid; and, if nine months, within which time executors and administrators are exempt from actions, be added to the statutory bar, the remaining instalments were not barred. The jury was so instructed, and a verdict was rendered for the plaintiff, for all the remaining instalments and interest.”</p> <p>The defendant appealed, and now moved this Court for a new trial, on the grounds, to wit:</p> <p>1. Because it is respectfully submitted that his Honor erred in holding that the statute of limitations would not run in favor of an executor de son tort.</p> <p>2. Because, not only the second, but the third, fourth and fifth instalments, sued for by the plaintiffs, were barred by the statute of limitations, and his Honor should have so instructed the jury.</p> <p>3. Because tbe verdict of tbe jury is contrary to law and evidence, in including in it tbe third, fourth and fifth instalments, which were barred by the statute of limitations.</p>

<p>BEFORE WHITNER, J. AT SUMTER, FALL TERM, 1854.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This action was brought by plaintiff to recover damages for a negro boy, the property of plaintiff, killed by the train running the road of the Company, in the day time, the latter part of March, 1853. The boy was active and intelligent; about twelve years of age ; who had been frequently used in going on errands, and especially accompanying the plaintiff in care of his horse and buggy to Sumterville, the Railroad, and elsewhere. On this occasion the plaintiff was absent on a visit to Charleston, and being expected that day, the boy Ned had been dispatched to that point on the road where plaintiff usually got on and off the trains. This was neither a depot, station nor turn out, and the train only stopped when passing for the accommodation of a few families in that neighborhood, and when occasion required. Such passengers were put off when on board or taken up on a signal at and near the place where the boy was killed, without reference to any precise point. The boy was lying along side of the rail, and asleep on his face, though outside of the track, on the ends of the cross ties, with his head to the west, and in the direction the train approached — the course of the road at that point being east and west. Road entirely straight for more than a mile west, and more than four hundred yards east, with a descending grade. The boy was lying on the south side, being the side on which passengers were usually landed, and the side opposite that at which he came to the road, having crossed and gone further west, fifty yards or more.</p> <p>“ A neighborhood road crosses two hundred yards east, and a cattle guard, with a board fence, twenty-four yards west, and on same side of road with body — an excavation above and an embankment below, and being a few feet elevation at the spot the boy was killed — a clear open plain otherwise.</p> <p>“ The train was running at the rate of twenty miles per hour, being the usual speed, and consisted of the engine and tender, a passenger car and two intermediate cars.</p> <p>“ The cow-catcher which extends over the rail and above it some two inches, passed without striking, but a bolt through the tender box, about the same distance from the rail, though a little more elevated, struck the head of the boy in the forehead, near the edge of the hair. The skull was fractured and scalp knocked back, blood and skin being found on the end of the bolt.</p> <p>“ The body was not seen by any one but the engineer, as his signal gave the first intitnation that anything had happened. The Engineer and Conductor were examined on part of the defendants, and the Fireman on the part of plaintiff.</p> <p>“ The plaintiff did not return, as had been expected by his family, nor was there any other passenger to land there that day, and the habit was to pass with usual speed under such circumstances. The train passed also about the usual hour. Thus far I think there was no contest about the facts of the case.</p> <p>“ The great point of contest in the evidence seemed to be the point at which the body might and ought to have been seen by a vigilant Engineer, and the proper course to be adopted under various exigencies consequent upon such discovery; and this too was the gravamen of the argument.</p> <p>“And in this connection, the board fence, its construction, necessity, and precise proximity to the road was inquired after to determine whether this furnished any matter of obstacle and excuse.</p> <p>“ The plaintiif caused a little negro'boy, on a subsequent occasion, to be placed at the spot, lying on his side, with head near the rail and body perpendicularly off, and several gentlemen walked from the body, observing at different points the effect produced by distance — 50, 75,100, 125, 150 yards, &c. They testified, that with his face towards them he could be recognized as a negro between 100 and 125 yards ; at a distance of 200 yards an object could be seen on foot, and on horseback 400 yards. Mr. Dinkins did not know but 600 yards.</p> <p>“ The fence they thought constituted no obstacle to the view, not approaching the track near enough even to one on foot, much less from an elevation. Mr. Dinkins, who spoke with most emphasis, said it was four feet from track, though others thought two or three feet. Dinkins said it was no more in the way than Sumterville or Charleston. The other gentlemen besides Dinkins were Rev. Mr. Graham and Col. Mellett, the latter testifying it would make a great difference in taking an observation, to be in motion one’s self at time. Mr. Singleton was once on a tender, not running very fast, when a negro had been placed at the spot, and he could recognize it as an object some 200'ór 300 yards, and as a human being some 125 yards. He had placed the board fence at cattle guard to protect his fields, as near as he could well approach the rail, to permit trains to pass. He did not think the fence interposed any obstacle to vision.</p> <p>“ The engineer, H. H. Cole, not now in the employment of company, testified that he saw a small object about size of fist, on the rail, (afterwards ascertained to have been a clod of dirt,) at distance of twenty-five or thirty steps — was observing it particularly at ten steps, saw and as he passed recognised hand of human being. Shut off steam instantly, being -all he could do; blew down the breaks and reversed his wheels. Stopped some two hundred yards or more, and 'backed up near. Conductor and passengers got out and examined, &c. This engineer and another examined, (a Mr. Gay,) thought the board fence would constitute an obstruction to some extent in discovering an object, situated as this body was, until very near. Each of them together, with Wilder the conductor, and Sherwood .the mail .agent, who had formerly been employed on road, all testified to the comparative and increased difficulties in making observations as between being at rest and in motion; the disadvantage much enhanced occasionally by smoke, strong breeze and speed — a comparison as between being'.on an elevation or on foot.</p> <p>“They testified as perhaps did others, that on such a grade at this speed such a train, by all the -appliances to be used, could not be taken up under two hundred and fifty or three, hundred yards. Jesse Windham, the fireman, not professing much experience, thought it might be stopped in one hundred or two hundred yards, and Mr. Dinkins said, that once subsequently, to test this matter, a son of plaintiff intending to take passage, was concealed, until-as the' train was passing the guard fence, suddenly jumped out and made signal, and they took up in about 175 or 200 yards, and backed up for him.</p> <p>“ The character .of Cole as a skilful, cautious, and careful engineer, whilst on this road, and for many years on the road in North Carolina, whence he came to this road, was very fully proven.</p> <p>“ On the cross examination of one, it was proved that he had once or twice drank very freely, but never on duty, and after-wards testimony of his sobriety when on duty, and especially of his having been entirely sober at the time, was multiplied.</p> <p>“ Some other evidence was offered, showing the extent of the road running then as far as Hill’s, perhaps, near the Pee Dee, connecting through by staging, carrying certain mails, though not the great mail, and as to the usual number of passengers, tonnage of engine, weight and length of other cars, &c., which 1 have not deemed of sufficient consequence to detail.</p> <p>“ The case was very fully presented by an elaborate argument of two counsel on each side to an intelligent jury.</p> <p>“ The jury were told that to entitle the plaintiff to recover damages for the negro, a negligent killing must be shown. That if there was negligence on the part of the company, or fault on the part of the engineer, or other agent or servant of the company, resulting in the death, the defendant must answer, otherwise the plaintiff’s action must fall to the ground. These questions were to be settled by the special circumstances, to be ascertained by the jury. That the defendants were not to be excused by the mere fact that the negro, though having volition and intelligence, had voluntarily placed himself in danger, by lying down, and going to sleep on or near the track, if by proper care and conduct in reference to the management of the train, his life could have been saved. Distinguishable from the brute if any peculiar hazard attended one part of the road more than another, arising from descending grade, length of train, weight of engine, fences and cattle-guards, or other necessary incidents to railroads, the voluntary imprudence of one endowed with ordinary intelligence and acquainted with, the nature and use of railroads, exposing himself to such increased danger, became an element in the question of negligence and fault. In this connection, I adopted the “ proposition” of Judge Butler, in the case of Felder vs. R. R. Company, 2 McM., on page 406, holding this company to show,' however, the special circumstances, and that no fault was imputable to the engineer having. direction of the locomotive. I thought, and so said,, that if the grass in that case could not avail to fix blame, a cattle-fence of ordinary structure and necessity could hardly create a liability here. Whether in fact, the fence in question constituted any obstacle, was much mooted. I have no idea that the decision of the case was affected by it. The jury were not confined to an inquiry whether there was “ negligence in the engineer only,” and if it so seemed to plaintiff, it was only that in my remarks to the jury, pursuing the general line of argument adopted by counsel, especial prominence was given to him and his acts, in the testimony and argument, and the legal consequences claimed to flow from his sins, whether of commission or omission.</p> <p>“ The jury returned a verdict for the defendants, as I thought they were fully warranted in doing, upon any just view of the facts in this case.”</p> <p>The plaintiff appealed, and now moved for a new trial, on the grounds:</p> <p>1. Because his Honor charged the jury that if the fence at the cattle-guard obstructed the view of the engineer, then the plaintiff’s case fell to the ground, as in that case no fault or negligence could be imputed to the engineer, and unless there was fault or negligence on his part, the plaintiff could not recover: Whereas, his Honor should have charged that there was or might be fault, carelessness or negligence on the part of the company, sufficient to make them liable to the plaintiff, in erecting, or permitting to be erected, a fence so near to the road, and on their own land-, as to obstruct the view of the engineer.</p> <p>2. Because the whole evidence made out a clear case of negligence, and his Honor charged to the contrary, and erred in this, that he confined himself and the jury to an enquiry into the question, whether there was negligence in the engineer only.</p> <p>3. Because his Honor charged that the erection, or permitting to be erected, by the company, of a fence so near the road as to- obstruct the view of the engineer, was no ground on which carelessness or negligence could be imputed to the company, although the obstruction was at a grade in the road, and the cars were there run at the usual speed of twenty miles an hour.</p>

IN THE CITY COURT OF CHARLESTON, JULY TERM, 1854. The report of bis Honor, the Recorder, is as follows: “ On a former trial of this case, the Court below granted a nonsuit; which nonsuit was appealed from, set aside, and a new trial ordered bj the Court of Appeals. It may save much time and unnecessary repetition in this report, to refer to the report of the case in 7 .Rich. 130.

BEFORE MUNRO, J., AT COLLETON, SPRING TERM, 1854. The report of his Honor, the presiding Judge, is as follows: “ This was an appeal from the Ordinary of Colleton district, admitting to probate the last will and testament of the late Simeon Yerdier. The paper propounded as the will purports to bear date on the 5th of September, 1825, and the testator departed this life on the 21st day of June, 1853.

BEFORE WARDLAW, J., AT CHARLESTON, SPRING TERM, 1854. The report of his Honor, the presiding Judge, is as follows: “ Action of trespass for assault and battery; damages laid at twenty thousand dollars. Plea, non eul. ' “ The material evidence here follows, for plaintiff: “ A. N. Lester. — Was clerk in the store of N. A. Cohen & Co., on the' bay, wholesale clothing — partners, N. A. Cohen & Leopold Cohn.

<p>Assumpsit for breach of contract. No special damages laid in the declaration. Plaintiff issued a commission to establish special damage: — Held, that inasmuch as the evidence was irrelevant, the costs and expense of the commission should not be taxed for the plaintiff against the defendant.</p>

BEFORE WARDLAW, J., AT BEAUFORT FALL TERM, 1854, The report of his Honor, the presiding Judge, 'is as follows: “ Case for obstruction of a private way. “ The plaintiff alleged a right of way through the defendant’s plantation called ‘ Richfield,’ from the plaintiff’s plantation called ‘ Castlehill,’ to a tract of pine land owned by the plaintiff, and by him considered as a necessary appurtenance of ‘ Castlehill.’ “ The case shown by the evidence was as follows: “ Public…

<p>A judgment may be confessed though no suit be, in fact, pending.</p> <p>A confession is valid though the judgment is not'to he entered up except upon the happening of a contingency.</p> <p>The judgment was confessed during vacation. After the next term the contingency happened upon which plaintiff was to have the right to enter it up. Shortly after the happening of the contingency the defendant died, and then the plaintiff entered up the judgment: — Held, that the proceedings were regular and the judgment valid, notwithstanding the 10th Rule of Court, and the death of the defendant.</p>

<p>The charter of a railroad company authorized them to construct their road “from Charleston,” &c.: — Held, that the company had no authority to enter the city, but that the boundary of the city was the terminus a quo.</p>

<p>IN THE CITY OOÜBT OE CHARLESTON, JULY TERM, 1853.</p> <p>In this case the jury found the following special verdict:</p> <p>We find that the defendant, Thomas N. Gadsden, is a broker, residing'in tbe city of Charleston; and that bis place of business is at the corner of Chalmers and State streets. That the said Thomas N. Gadsden, as a part of his business, is engaged in the purchase and sale of negroes. That he provides shelter, clothing, and food, for such negroes as may be left with him for sale, when the owner or owners so desire, and not unless desired so to do by the owner or owners of such negroes; and that for such shelter, clothing, and food, when required, he charges a resonable price. That A. Nachmann did place with the said Thomas N. Gadsden a negro for sale — the expenses of sheltering, clothing, and feeding the said negro, while in charge of the said Thomas N. Gadsden, to be paid by the said A. Nachmann ; and after being for some time with the said Thomas N. Gadsden, the said negro was withdrawn. That the said Thomas N. Gadsden, at the time of the withdrawal of the said negro, presented the following statement of expenses :</p> <p>“Advertising, - - ... ¡$4 90</p> <p>Board 20 days, at 25 cents, - - 5 00</p> <p>Commissions 2£ per cent, on, $525, - 13 12</p> <p>$23 02</p> <p>Cryer’s fee,.1 00</p> <p>$24 02</p> <p>And to this statement is appended the following receipt: “ Received from A. Nachmann fifteen dollars in full for this bill, less than my dues, 15th April, 1853. T. N. Gadsden.” We further find that the City Council of Charleston, by its ordinance, ratified 20th Nov. 1839, ordained, that “it shall not be lawful for any person or persons to institute or establish any building, lot, or enclosure within the city as a house or place for the reception or accommodation of the slaves of other parties, for entertainment, safe keeping, correction, or sale. And if any person or persons shall institute or establish any such building, lot, or enclosure, for the purpose aforesaid ; or shall admit or receive into the same, any slave or slaves belonging to any person or persons, he or they herein offending, shall for each slave so admitted or received into such building, lot, or enclosure, for any purpose contrary to the provisions of this section, forfeit and pay the sum of five hundred dollars.” And if it shall be the opinion of the court, that the ordinance of the 20th November, 1839, is constitutional, and under the foregoing facts entitles the plaintiff to recover, we find for the plaintiff five hundred dollars : otherwise we find for the defendant. Oct. 23d, 1853. W. B. Smith, Foreman.</p> <p>His Iionor, the Recorder, made the following order:</p> <p>. “ Ordered in this case, upon the special verdict found by the jury, and hereto attached, that judgment be entered for the plaintiff for the sum of five hundred dollars, and costs. Oct. 28th, 1853. Wm. Rice, Recorder.”</p> <p>And the defendant appealed because:</p> <p>1. The ordinance of 20th November, 1839, or so much of it as is set forth in the special verdict, is unconstitutional.</p> <p>2. If constitutional, the verdict finds that the defendant only “ provides shelter, clothing, and food, for such negroes as are left with him for sale, when the owner or owners so desire; and not unless desired to do so, by the owner or owners of such negroes.” And this cannot be held illegal under the ordinance of the City Council, without extending its construction, and so qualifying the right, and restricting the mode of selling negroes, as to amount to its prohibition. And this would be beyond the powers belonging to the corporation of the city of Charleston.</p> <p>3. Because providing “shelter, clothing, and food,” for the negro slave of A. Nachman; the said slave having been by his owner placed with the defendant for sale; and the expense thereof to be paid by the owner; is a contract, necessary in most cases, where slaves are to be sold: consistent with that humanity which should be approved, and not forbidden in such cases: and sanctioned by the laws of the State, which consider slaves the subjects of sale, and legalize such contracts as are made for such sales.</p>

<p>BEFORE FROST, J„ AT CHARLESTON, FALL TERM, 1853.</p> <p>Tbe Report of bis Honor, the presiding Judge, is as follows: .</p> <p>“ This was an appeal, by the Railroad Company, from the appraisement, by the Commissioners, of the damages, sustained by the defendant, in consequence of the location of the road through her land. The defendant’s land is twelve miles from Charleston, on the State Road to Columbia. The dwelling-house of the defendant was formerly and is still kept as a public house, but has now no custom. The S. C. Railroad passes through her tract of land to the West of the settlement, about half a mile from it, where there is a station. The route of the North-Eastern Railroad is also through her land, about half a mile east of the settlement. The tract consists of three or four parcels, bought by the deceased husband of the defendant, at different times. The road is located so as to extend eight thousand three hundred feet through her land, taking-twenty-six acres; and the Commissioners assessed her damage at one thousand four hundred' and five dollars. In making this appraisement, the Commissioners estimated the land taken at from six to ten dollars per acre ; and the cost of fences, on both sides of the road, along its whole extent, was included in the sum allowed. Eor a part of the way the road passed through cultivated grounds ; but for the greater part it passed through woodland. The evidence showed the land to be very poor, and little valuable for cultivation. Its chief value consisted in the timber, which was cut and sent to Charleston for sale. Goose Creek bounded the tract towards the East, and on it there were three landings used for the sending of wood to market. The other chief value of the land consisted in the range it afforded for cattle. From cutting wood and raising stock the defendant derived an income. Some provisions were planted. The stock range was on the creek, and the road passed between the settlement and the creek. The best timbered land was to the west of the road. Thus the road was located between the settlement and the cattle range, and between the wood-land and the landings, to which it had to be hauled. For about one thousand feet, no material change of the surface was made by the track of the road; but, for the rest of the distance, the road bed would average about four feet in intrenchment and excavation, the highest embankment or deepest excavation being eight feet. The structure of the road would make the hauling of wood to the landings more laborious. Some deep swamps ran up from the creek across the road. If the road was not there, wood could be carted through the pine land directly to the nearest landing. It could be carried over the road only where crossings might be made. These it would be difficult to keep in order. A short distance under the surface quick-sands were said to occur. The cost of hauling wood was from seventy-five cents to one dollar per mile, for a cord. Wood might be sold at the landing from two dollars fifty cents to four dollars per cord. The witnesses estimated variously the increased distance of hauling made necessary by the road. The load would be diminished by the necessity of the ascent, when it was hauled over a high embankment or a deep cut. The South Carolina Railroad did buy some wood at the station on defendant’s lands, but their chief supply was brought from above. They would give only one dollar twenty-five to one dollar fifty cents a cord, at the station. There was evidence that the South Carolina Railroad had been very destructive of cattle. The Rev. Mr. Danner said he could maintain seventy head of cattle on his range, and would have had that number if it were not for the destruction of them by the trains. He said he did not own a cow. The last of his stock, five or ten head, he had sold. The trains had destroyed a great many. He would not say how many, any nearer than that from ten to sixty head had been killed. He said that he had recovered at one time from the South Carolina Railroad Company, three hundred or four hundred dollars. He had been paid for cattle killed at various times. But, for a long time, the company refused to pay: and it cost more to recover the damage, by suit, than the cattle killed were worth. Besides this, payment of the value of the cattle killed was no compensation for the destruction of them. He said he had not butter, nor even milk, now, for the use of his family. This witness had acted as a Commissioner to assess the damages of lands, and h,ad voted for five thousand dollars, while the Commissioners allowed one thousand seven hundred and fifty dollars.</p> <p>“ The Rev. Mr. Leadletter also testified to great destruction of his cattle. He stated only the loss of a ram. He, too, had acted as a Commissioner in Vose’s case, and had proposed three thousand dollars, while the commissioners assessed a much less sum.</p> <p>“ Sims’ place is about thirteen miles from the city. The South Carolina Railroad does considerable damage to a cattle range; many are killed. His range depreciated twenty-five per cent. by the railroad. He has lost his best cows; was paid for one. The cost of recovery exceeds the value of the cattle killed. Stock yields, in annual profit, about twenty-five per cent, on the value of the entire stock. The defendant had about seventy head. Other witnesses could not say how many; but that defendant had a large stock. She had offered to buy a tract of land, where her cattle might range away from the railroad. The profits had been much reduced; but she sold some calves last year. It was further in evidence that a railroad injures timber land by burning up the young growth, and injures a range for cattle by burning the grass and young cane. All the witnesses concurred, in saying that the tract of the defendant was valuable for its timber and cattle range, and for little else. Rhame,, one of the Commissioners, testified that defendant’s land was valuable only for its timber and range. The South Carolina Railroad destroyed many cattle. They would go on the track of the road. The grass on the embankment w^as better than' on the land adjoining. Stock raising had to be given up about defendant’s. Cattle affords the ‘best yield’ of the land. One thousand dollai’s in cattle will yield two hundred and fifty dollars per annum, besides milk and manure. He would not have the road located, as it is, for three thousand dollars. He would give five thousand dollars for defendant’s land as it stands. Traxler testified that defendant’s tract contains between two thousand five hundred and three thousand acre3. The several tracts of which it is composed, had cost defendant’s husband about seven thousand four hundred dollars. The value had been increased. But he said the railroad was of no advantage to a wood-cutter who had water-carriage to Charleston, and three landings, as the defendant had. The railroad Company gave about one-third of the price which could be obtained for wood at the landings. These three landings are a great advantage to the land; if cut off, that would be a great disadvantage.</p> <p>“ Prevost, Rhame, Sims, Traxler, Danner, and Leadbetter all testified that a railroad did not increase the value of lands within fifteen or twenty miles of the city. It afforded no facilities for conveying farm produce to market, nor for bringing manure from the city.</p> <p>“ Rhame had sold his place on the South Carolina Railroad because it was an annoyance; and Danner said he had bought bis tract cheap, because the seller was dissatisfied with a location on the railroad.</p> <p>“ Messrs. Ferguson, Ravenel and Furman, expressed the opinion that railroads do enhance the value of land. That the effect of a railroad is to increase the population of Charleston, and give increased value to farming lands in its vicinity. Neither of them stated any sales or other facts to show that the South Carolina Railroad had, within fifteen miles of the city, enhanced the value of lands. Ferguson knew G-oose Creek Parish by riding over the State Road to his plantation, in St. John’s. Ravenel was also over the State Road to his plantation on the east side of Goose Creek. Furman said that he had been agent for some lands in Goose Creek. One tract of tAvo hundred or three hundred acres had been bought for seven hundred and fifty dollars. He sold this tract to Mr. Waring for the same price, tAventy years after the South Carolina Railroad had been constructed Avithin a mile of it. This place is about twelve miles from Charleston. It had been a long time advertised for sale before it was sold to Waring. Waring goes to the place chiefly by the plank road, Avhich has been laid on the State Road, and finished for the distance of seven miles from Charleston. Waring, he supposes, Avould not now take Avhat he gave for the land.</p> <p>“ The jury were instructed that, by an appeal from the appraisement of the Commissioners, the valuation was opened as a new question, and that their estimate of benefit or damage must be made according to the evidence submitted to them ; and that, as they might find less, they might also find more than the Commissioners had done, although the defendant had not appealed.</p> <p>“ They were further instructed that as the expense of fencing was alloAved where the railroad passed through cultivated land, it would be proper to make that alloAvance if it passed through a grazing farm or a tract of land which was used for the pasturing of cattle.</p> <p>“ They were further instructed that the increased labor’ and cost of hauling wood to the landings, which the railroad might create, was a proper subject for the assessment of damages; and so they were instructed woul 1 have been the injury to the value of the tract as a cattle range, in consequence of the structure of the road; but that item of damage was merged in the allowance for fencing.</p> <p>“ They were advised that the weight of the evidence tended to the conclusion that the North-Eastern Railroad would not appreciate the value of defendant’s land. And, on this subject, their attention was directed to the fact that the South Carolina Railroad now passed through defendant’s land, and also to other particulars of the evidence.</p> <p>“ It was intimated to them that they should not exceed the appraisement made by the Commissioners, who were persons so well qualified to decide. But they by their verdict increased the assessment to two thousand dollars.”</p> <p>The Company appealed on the grounds:</p> <p>1. That there was strong evidence in the nature and facts of the case, as well as from witnesses, that the lands of the owner had appreciated, or must have necessarily appreciated in value, in consequence and anticipation of the projected road; and his Honor erred in charging that the weight of evidence was the other way.</p> <p>2. That his Honor erred in charging that the Commissioners and the jury were warranted by law in giving the' owner compensation for fencing along both sides of the track of the projected road, throughout the whole length of her tract, and not for fencing only of the cultivated land.</p> <p>3. That his Honor erred in charging that the Commissioners and the jury were bound or at liberty to give conjectural damages for the possible killing of cattle or obstruction of cartage by a railroad not yet built.</p> <p>4. That his Honor erred in charging the jury that they were at liberty to surcharge the assessment of the Commissioners.</p> <p>5. That the verdict of the jury, so far as it surcharged the assessment, was excessive, unwarranted, and unsupported by the evidence, against the acquiescence of the owner and contrary to the charge of the presiding Judge.</p> <p>6. That the verdict of the jury was in the foregoing and other respects contrary to law and evidence, and the justice of the case.</p>

<p>Where executors, who are also legatees, propound a will for probate, their declarations, as well after as before the execution of the will, may be giren in evidence by the next of kin.</p>

<p>BEFORE WARDLAW, J., AT CHARLESTON, SPRING TERM, 1854.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ Debt on a constable’s bond: — Plea, performance.</p> <p>“ Breach assigned in replication — that J. D. Kennedy, constable, did not safely keep goods which he had distrained for rent, under a warrant, issued in the case of Louisa Belser, lessor, and T. H. La Rousselier, tenant.</p> <p>“ Demurrer, on the ground that in executing a distress for rent, a constable is a mere private agent, and not an officer performing a public duty.</p> <p>“ Demurrer overruled: and respond, ouster, by consent.</p> <p>“ Rejoinder — that after the constable had seized the goods, the lessor, Louisa Belser, directed him to discharge the levy, and yield the possession.</p> <p>“It appeared that Chas. Blum applied to magistrate Schroder for a distress warrant, to collect rent due by La Rousselier to Mrs. Belser. The magistrate called on Mrs. B. for an affidavit — she made it, and said to the magistrate that Col. Blum was her agent for collecting her rents. The warrant was issued by the magistrate (a) and delivered to J. D. Kennedy and another constable (Manahan) for execution: they dis-trained goods, took bond for their forthcoming, and on the day appointed were proceeding regularly to sell. Through the interference of Mr. Campbell, the magistrate was induced to confer with Col. Blum, who after hesitation agreed to depend upon other means of collection which had been held out, and directed the magistrate to stop further proceeding on the distress. The magistrate in haste sent verbal and written instructions to the constables saying, “ The case is settled — stop all proceedings.” The constables abandoned the goods — Col. Blum was disappointed — the goods removed, and the rent lost.</p> <p>“tIt did not appear that Col. Blum was to receive compensation for his services.</p> <p>“ I considered the liability of the defendants to depend upon the validity of the authority under which the constables acted in stopping the proceedings; and I submitted to the jury the question of fact, Was the order of discharge authorised by Mrs. Belser ?</p> <p>“Verdict for defendants.”</p> <p>The plaintiff appealed, and now moved for a new trial on the grounds,</p> <p>1. Because his Honor erred in admitting parol evidence to modify the terms of a written instrument under seal.</p> <p>2. Because his Honor refused to charge the jury that the general agency'of Col. Blum to collect Mrs. Belser’s rents, (the only agency proved,) was determined by the appointment of a special agent under a distress warrant; ancl that without proof of some authority subsequently conferred on him, authorising him to control the distress, there could be, under the circumstances, no valid release of the levy, except an immediate release by the landlord.</p> <p>3. Because there was no evidence of Col. Blum’s authority to control the levy, inasmuch as there was no evidence of the nature and extent of his agency.</p> <p>4. Because the verdict was, in other respects, contrary to the law and evidence.</p>

<p>BEFORE GLOVER, J., AT GEORGETOWN, SPRING TERM, 1854.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The action was debt on a bail bond. The defendant was the surety of J. M. Commander, against whom bail process had issued at the suit of the plaintiff; who, having obtained judgment, entered a capias ad satisfaciendum in the Sheriff’s office, and the only question submitted by the pleadings, or made by the evidence was, has there 'been such a breach of the condition of the bond as fixes the liability of the bail ?</p> <p>“E. Waterman, Jr., Ex-Sheriff of Georgetown, stated, that a ca. sa. was entered in his office, in the case of A. J. McKnight vs. J. M. Commander, and unddr this ca. sa., Commander was arrested. ‘ He put his hands upon him, and regarded him in his custody.’ Commander promised to give a bond if plaintiff would not consent to release him. He was at large, because of the understanding between witness and Commander respecting his release by the plaintiff. .Witness did not tell Mr. Dozier, that he had not arrested nor released Commander, but that he had taken no bond. The plaintiff told witness, after the arrest, to let Commander alone, who produced an order from the plaintiff to discharge him, and witness did so. He made no record of the arrest at the time, because he was waiting to hear from the plaintiff, and to know if he would discharge Commander.</p> <p>“ Mr. Dozier stated, that E. Waterman, Jr., said to him, on the wharf, before last Court, that there had been no arrest nor release : that he had written 'to Commander, who replied, that if plaintiff wpuld not agree to the proposition to release, he would surrender.</p> <p>The Jury was- directed to enquire, if there had been an arrest of Commander under the ca. saand if he had been discharged from that arrest by the agency and direction of the plaintiff. These were the only questions involved and litigated, and their decision depended on the construction of the evidence, which was contradictory; and, in the apprehension of the presiding Judge, the decision of both questions was properly for the jury, to whom he submitted it.</p> <p>“Their verdict was for the defendant.”</p> <p>The plaintiff appealed, and now moved for a new trial on the grounds:</p> <p>1. Because there was no evidence of any actual arrest sufficient to discharge the bail.</p> <p>2. Because the statements of E. Waterman, the late sheriff, respecting a certain constructive arrest of the principal, were entirely too indefinite and vague to rebut the legal presumption arising from the silence of the record; more especially as the said E. Waterman, by bis contradictory statements, showed that his acts had reference to no fixed purpose beyond giving notice to the principal of oa. sa., and allowing him time to consult the plaintiff.</p> <p>3. Because the law having directed the manner in which ■ the sheriff shall make known his official acts, it is incompetent to allow secondary evidence without proof of the loss of the primary.</p> <p>4. Because the same certainty of proof should be required to establish an arrest under a oa. sa., as is required to establish the fact of a surrender by the bail. Any less certainty is destructive to the rights of the plaintiff in requiring the bail, and his Honor should have so instructed the jury.</p> <p>5. Because, if the principal’s arrest by the sheriff was sufficiently proven, his subsequent release by the plaintiff with his own consent, restored to the plaintiff all his rights and remedies against the bail.</p>

<p>The town oounoil of Mount Pleasant have power, under their charter of 1845, to make assessments and levy taxes on the inhabitants, &c., and enforce-payment “to the same extent, and in the same manner, as is provided by law for the collection and payment of the general State tax — Held, that the authority of the town council was subject to the provision of the Act of 1788, that one believing his property overrated in the assessment, may swear off the excess .(a)</p>

IN THE CITY COURT OF CHARLESTON, MAY TERM, 1854. The report of his Honor, the Recorder, is as follows: This was an action for use and occupation, to recover the balance of two quarters’ rent alleged to be due by defendant to plaintiff under the following circumstances : “ Plaintiff had executed a written lease of the locus in quo to defendant, for one year, from the 1st of October, 1850, to the 1st of October, 1851, at nine hundred dollars per annum, payable quarterly, with…

<p>It is the duty of the clerk to enter causes on the issue-docket in the order in which the issues are made up — the first issue made up should be the first entered.</p> <p>Where the issues are made up at the same time, the directions of the plaintiff’s attorney, as to the order in which the cases should be docketed, should be regarded by the clerk; and in default of all directions the discretion of the clerk must, in such cases, determine the order.</p>

BEFORE GLOYER, J., AT GEORGETOWN, SPRING TERM, 1854. The report of his Honor, the presiding Judge, is as follows : “The action was debt on a penal money bond against the defendant and John M. Commander.

BEEOBE WAEDLAW, J., AT OHABLESTON, SPRING TERM, 1854. The report of his Honor, the presiding Judge, is as follows: “ Trover for certain slaves. “ The defendant, besides the general issue, pleaded actio non acerevit infra quatuor annos. “ The plaintiff replied preoludi non, because he saith ‘ that the said slaves in the said declaration mentioned being the property of the said plaintiff, were converted by the said defendant, on the day of , in' the year of our Lord one…

This case was heard upon a statement as follows: “ The defendant had lived at the house of his father-,in-law, in Charleston, during the summer of 1851, fqr over four months. In the winter of 1851 and 1852, he^ had removed, and lived upon his own plantation where he still was when the copy writ was left at the hause of his father-in-law, in Charleston, on the 23d April, 1852.

IN THE CITY COURT OF CHARLESTON, JULY TERM, 1854. The report of his Honor, the Recorder, is as follows: “ This was an action brought by plaintiffs, merchants, (residing, I believe, in Columbia,) against the defendants, for damage to goods entrusted to their care, or rather, perhaps, for their not having carried and delivered them, according to contract.

BEFORE WARD LAW, J., AT CHARLESTON, SPRING TERM, 1854. The report of his Honor, the presiding Judge, is as follows: “The defendants were Robert J. Caldwell, John Caldwell, and Winthrop B. Williams, late partners in trade as factors in Charleston.

BEFORE WARD LAW, J., AT CHARLESTON, SPRING TERM, 1854. This was a motion by plaintiff for leave to enter security for costs nuno pro tune.

This was an action to recover twenty dollars from tbe defendant, Mayor of the City of Charleston. The Magistrate, Thomas 0. Elliott, before whom the case was tried, made the following report: “In this case, a nonsuit was moved for and granted.

BEFORE O’NEALL, J., AT LEXINGTON, MAY, EXTRA TERM, 1855. The report of his Honor, the presiding Judge, is as follows:' “ This was an action of trespass, quare elausum fregit, in which the title of the plaintiff to the land as opposed to that of one Samuel Crafts, and the right of the defendant to cut the timber on the land of the said Samuel Crafts, became necessary to be investigated. “ The land in dispute was once the property of John D. A. Murphy.

BEFORE WIÍITNEE, J„ AT DARLINGTON, SPRING TERM, 1855. Tbe report of his Honor, the presiding Judge, is as follows: “ The plaintiff, a merchant, made an assignment under the A. A. of this State, for the benefit of creditors, 13th January, 1853. “ The action was founded on an account for goods sold and delivered previously, and included in the assignment. “The defendant filed a discount to set off various demands, and amongst them, one arising on a note given by C. H. Nettles…

BEFORE WARDLAW, J., AT PICKENS, SPRING TERM, 1855. The report of Ms Plonor, the presiding Judge, is as follows: “ The prisoner was indicted under the Stat. 22 & 23, Oh’s. 2, for burning in the night time, the house of Corde Otten. “After the arraignment of the prisoner, and the announcement of his readiness for trial, I perceived that the counsel of the prisoner as well as the Solicitor, were proceeding under the assurance that the offence charged in the indictment was a…

BEFORE O’NEALL, J., AT SUMTER, SPRING TERM, 1855. Under a bill in Equity between the parties for partition, the Circuit Court of Equity made an order, that an issue at law, in the nature of an action to try the title, be made up, &c; “ that either party be at liberty to prosecute, an appeal to the law Court of Appeals, and that the final result be certified to this Court.” The jury found for the defendants; and the plaintiffs appealed, and now moved this Court for a new…

BEFORE O’NEALL, J., AT HIGHLAND, SPRING TERM, 1855. The report of bis Honor, the presiding Judge, is as follows : “In this case, which was an action of trover for a negro woman slave named Eliza, the plaintiff claimed under a deed, whereby Middleton Fair bound himself, his heirs and executors, ‘ to warrant and vest the property, the heirship of my wife, Mary Ann Fair, in Hiram Addison for the support of Hester D. Carroll, the daughter of my wife, Mary Ann Fair, for the term…

BEFORE WHITNER, J., AT MARION, SPRING TERM, 1855. The report of bis Honor, the presiding Judge, is as follows: “ This case was on the inquiry docket, and no appearance having been entered, the plaintiffs proceeded to execute their writ. Mr. Phillips presented himself, and claiming to represent defendants, was permitted to cross-examine the witness, and address the jury.

BEFORE MUNRO, J., AT CHESTER, SPRING TERM, 1855. The report of his Honor, the presiding Judge, is as follows: “ This was a Summary Process to recover on a merchant’s account. “Interrogatories had been served on the defendant, requiring him to answer whether or no the account sued on was correct.

<p>BEFORE MUNRO, J., AT UNION, SPRING TERM, 1855.</p> <p>Tbe report of his Honor, the presiding Judge, is as follows :</p> <p>“ In this case, the charge against the defendant was for trading with a slave belonging to a Mr. Thomas, on the night of the 3d of August,-1853. The proof left no doubt as to the defendant’s guilt.</p> <p>“ On the defendant’s 1st ground, I did not think the cause shown for a continuance was sufficient, therefore, I ruled the defendant to trial, and notwithstanding the able constitutional argument of the defendant’s counsel, I did not think that I possessed the power to order the defendant’s witnesses bound over in a case of misdemeanor. In reference to the 3d ground, I did permit the original warrant to be given in evidence, as I did not consider that it was at all affected by the arrest of the judgment in the former proceeding against the defendant (see State vs. Thomas, 7 Rich. 481); but whether the warrant shared the fate of the indictment in that case or not, I thought it clear that it could not have the effect of barring the prosecution so far as the imprisonment was concerned, whatever effect it might have as to the fine. As to the 5th ground, it is true I did permit the warrant to be given in evidence on the trial after the testimony had closed, and just as the counsel had commenced his argument, as it was apparent that the omission to introduce it at an earlier stage of the case arose from amere inadvertence on the part of the solicitor.”</p> <p>The defendant appealed, and now moved for a new trial on the grounds:</p> <p>1. Because the case should have been continued, as the defendant made an affidavit, bringing himself perfectly within the rule of court, and also moved the Court for an order to have the witness bound' over, and his Plonor had not the power by law to order the cases on, as it is most respectfully submitted, that his Honor then had no discretionary power left by which he could rule the defendant to trial, as he had used all due diligence.</p> <p>2. Because the defendant’s motion to bind over his witnesses should have been granted.</p> <p>3. Because his Honor erred in permitting a warrant to be given in evidence which had been taken out against the defendant on the 29th August, 1853, on which an indictment had been given out against the defendant and the petit jury had rendered a verdict on the said indictment, in which case the judgment was arrested, which put an end to the legal existence of that warrant for any purpose whatsoever, and entitled the defendant to an acquittal from that indictment and the war. rant on which it was predicated, and so his Honor should have ruled, but his Honor held and ruled the reverse.</p> <p>4. Because the defendant’s plea of the Statute of Limitations should have been sustained by the Court, as according to the constitution and laws of this State, (3 Stat. 701,) the prosecution was wholly barred, both as to the fine and imprisonment, and so his Honor should have ruled.</p> <p>5. Because there was a variance between tbe allegations in tbe indictment and tbe evidence, .and tbe Court permitted tbe State to give evidence after tbe argument bad been commenced.</p> <p>6. Because tbe verdict is contrary to law and evidence.</p>

BEFORE O’NEALL, J., AT RICHLAND, SPRING TERM, 1855. The report of his Honor the presiding Judge, is as follows: “ The plaintiff and defendant are proprietors of land lying on each side of the Congaree River; the plaintiff’s land is on .the Richland side, the defendant’s on the Orangeburg or St. Matthew’s side.

BEFORE O’NEALL, J„ AT ABBEVILLE, FALL TERM, 1854. The report of bis Honor, tbe presiding Judge, is as follows: “ This was an action of trover brought to recover the value of a negro woman slave, named Martha.

<p>BEFORE MUNRO, J., AT CHESTER, SPRING TERM, 1855.</p> <p>This was an indictment for retailing. The defendant was convicted, and he now moved this Court in arrest of judgment.</p>

<p>BEFORE GLOVER, J., AT BARNWELL, SPRING TERM, 1855.</p> <p>The report of bis Honor, tbe presiding Judge, is as follows:</p> <p>“ The action was trespass quare clausum fregit, and issue was joined on the plea of not guilty.</p> <p>“ The tract of land on which the trespass was alleged to have been committed, was granted to William Minor the 5th August, 1793. From the grantee the plaintiff traced title through N. Bush to himself and William S. German, jointly. The latter conveyed his interest to the plaintiff, with a plat annexed, on the 26th of February, 1831. A plat of the Minor tract of land, made by Buckhalter, in February, 1831, for the plaintiff and William S. German, was also offered in evidence. The plaintiff proved a possession by himself of the land claimed under the Minor grant ever since the 16th December, 1830, when he and German bought of N. Bush.</p> <p>The defendant shewed neither title nor possession, but he insisted that the true location of the Minor grant would not embrace the land on which the trespass was committed. This was the opinion of the Circuit Judge; but Buckhalter’s plat, under which plaintiff had had possession since 1831, did embrace it; and whatever doubt might exist as to the identity of the Minor tract of land, there was none respecting the extent of the plaintiff’s claim by virtue of his possession since 1831. Under the instruction of the Circuit Judge the jury gave a verdict for the plaintiff.”</p> <p>The defendant appealed and now moved for a new trial, on the ground:</p> <p>Because his Honor, the presiding Judge, charged the jury that the possession of the plaintiff under the re-survey plat of William Buckhalter, in 1831, of the land granted to William Minor, extended to the limits designated by the said plat, and was sufficient to sustain the plaintiff’s action. Whereas, it is submitted that, inasmuch as the said plat upon its face purports to be a re-survey of the said land granted to William Minor, and refers to said grant, the possession of the said plaintiff should have beep restricted to the true limits of said grant; and his Honor should so have charged the jury.</p>

BEFORE MUNRO, J., AT YORK, SPRING- TERM, 1855. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ This was an indictment against tbe defendant for an assault and battery committed on tbe person of tbe prosecutrix, Nancy M‘Lean. “ At the preceding term of the Court, tbe defendant, together with three others named Ashcrafts, had been convicted of an affray, for beating a son of the prosecutrix in one of the streets of Yorkville. “ In the affray in question, the…

<p>BEFORE GLOVER, J., AT BARNWELL, SPRING TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ There were three cases entitled as this is, which were heard together. They were actions of debt on three several bonds, dated the 1st of January, 1842, each in the penalty of four thousand dollars. William J. Harley, who had been appointed by the order of the Court of Equity the guardian of Capers, Meldrid and Emily Dewit, and the defendant, executed three bonds with the usual condition of guardianship bonds.</p> <p>“ A bill was exhibited in the Court of Equity by his wards against William J. Harley as their guardian, and the defendant as his surety, praying an account, and by a decretal order, dated February Term, 1854, William J. Harley was required to pay to Capers one thousand six hundred and fifty-three dollars and five cents, and to Meldrid and Emily, each, one thousand six hundred and eighty-one dollars and forty-six cents, with interest from the 15th February, 1854. The Chancellor presiding at February Term, 1854, ordered that actions should he instituted on these several bonds, each of which had three seals attached, but they were signed only by William J. Harley and the defendant. The grounds of appeal suggest the enquiry, whether the Commissioner accepted these bonds in obedience to the order appointing William J. Harley guardian, or were they delivered ?</p> <p>“ Tbe fact of delivery was submitted to tbe jury, and depended on tbe evidence of A. P. Aldricb, Esq., tbe late Commissioner in Equity.</p> <p>' “ His habit was to take two sureties and to deliver letters of guardianship when tbe bonds were executed. Tbe letters directed to William J. Harley, dated 1st January, 1842, are now in tbe Commissioner’s office, and as be did not deliver them, be supposes that be did not receive or approve the bonds. He thinks that be stated to William J. Harley, but not to defendant, that be would require two sureties. While he acted as Commissioner, he took but one surety in cases of Dr. Ayer and Mrs. Crawley. In 1842, William J. Harley was regarded to be in very affluent circumstances, and the bond then was perfectly good. He received returns from William J. Harley, as guardian, after his appointment, for several years, and he reported him to the Court of Equity as an insolvent guardian in 1850. These bonds were recorded by his clerk, who was directed to record all papers in a certain desk. On the letters of guardianship ‘fees due’ were indorsed. James Aldrich, Esq., was a witness to the execution of the bonds and drew two of them; but he had no recollection of the circumstances attending the execution, nor of any conditions.</p> <p>“The attention of the jury was called to the circumstances that these bonds had been found in the Chancery and recorded; that the words ‘ fees due ’ were indorsed on the letters of guardianship; that William J. Harley made returns to A. P. Aid-rich, the Commissioner, to whom the bonds were drawn, and that he was reported to the court as an insolvent guardian by him; that a decree pro confesso-was ordered against William J. Harley on the bill exhibited against him by his wards, as their guardian, and that James Aldrich, who drew two of the bonds and witnessed the execution of all, recollected no conditions.</p> <p>“ The plaintiff had the benefit of the strong impression which this evidence made on the mind of the Circuit Judge; but whether the bonds were accepted by, or delivered to, the> Commissioner in Equity, was a question proper for the decision of the jury, who found for the defendant in each case.”</p> <p>The plaintiff appealed, and now moved for a new trial on the grounds:</p> <p>1. Because the Court of Equity having settled the questions of the fact of William J. Harley’s guardianship and the amount due by him as guardian, the defendant by whose suretyship he procured the appointment is as much liable as the said William J. Harley himself.</p> <p>2. Because there was no proof of any condition when the defendant signed the bond that he was not to be liable, except on a contingency not performed; and if the Commissioner did tell W. J. Harley, (of which there is no proof,) that he must give another security, the defendant, J. H. Harley was in no way a party thereto, and there was no proof that he was even present.</p> <p>3. Because had the Commissioner required W. J. Harley to give another “ security ” — intending not to accept his bond until he did so — the defendant was not affected thereby, it being (if it existed at all) a mere arrangement between William J. Harley and the Commissioner.</p> <p>4. Because, if the Commissioner did not approve the bonds at first (which he merely presumed he did not) he afterwards approved and accepted them by several distinct and unequivocal acts.</p> <p>5. Because there being not the slightest proof that there was any arrangement or agreement between the Commissioner and John H. Harley or between W. J. and John ,H. Harley, it is submitted that his Honor should have charged the jury that the plaintiff was entitled as a matter of law to recover.</p> <p>cited 1 McC. Cb. 107; 3 McC. 382.</p> <p>cited 11 Stat. 112, 358 ; 1 Mill, 456; 5 Rich. 171; 7 Rich. 217; 1 Crancb, 137.</p>

BEFORE O’NEALL, J., AT SUMTER, SPRING TERM, 1855. R. W. Donald was tbe administrator of John Donald, deceased, and Samuel McKay was one of the sureties on his administration bond. Held: that there was no foundation for the allegation of the surety; but inasmuch as it appeared that the bond of the administrator might not be well secured, he required the administrator to give additional security. This was done.

<p>Plaintiff conveyed to defendant a tract of land as containing one hundred and ten acres, at eight dollars per acre; and it was verbally agreed between them, that the land should be surveyed, and if it turned out that it contained less than one hundred and ten acres plaintiff should refund, and if it ■ contained more, defendant should pay for all over one hundred and ten acres at the rate of eight dollars per acre: — Held, that the agreement was not within the fourth section of the statute of frauds; and that plaintiff’s promise was a sufficient consideration to support defendant’s.</p>

<p>BEFORE D. HOKE, COMMISSIONER OF SPECIAL BAIL, AT GREENYILLE, MARCH, 1855.</p> <p>The report of the Commissioner is as follows:</p> <p>“ The note upon which the writ was founded under which the defendant was arrested, was offered in evidence. — W. B. Smith, defendant, sworn. — Says he gave his ledger, which he kept while merchandizing, to John Dill to pay him the amount said Dill was liable for as his'security. I delivered the ledger to Dill after the writ was issued. Unable to tell how many accounts were on this ledger unsettled. Never kept an account of goods sold as to the total amount. Purchased goods from various merchants, amounting nearly to one thousand dollars. Sold but little for cash. Bought horses, and traded in that way. Sales on books not counted up. Can’t tell the amount. Sold Elias Dill about nine hundred pounds of bacon at nine cents per pound. Sold him tobacco, one hundred and fifty pounds, at thirty-five cents; a small amount at twenty-two' cents, and at twelve and a half cents per pound, also a remnant of goods, and a buggy, conditionally.</p> <p>“ Gross-examined. — After Dill, my security, had paid himself, the balance to be rendered to the plaintiffs, Wiley, Banks, & Co., to be applied to the notes they hold against me for the amount collected on my ledger which I had assigned to him. Sold goods on credit. , Changed debts for horses.</p> <p>“ John Campbell, sworn. Says, I arrested the defendant, W. B. Smith, as deputy sheriff. Made search for Smith repeatedly, and failed to arrest him. r I eventually arrested him. After the defendant was arrested, Smith wished to have a secret talk with John Barnett, which I allowed. Smith did not wúsh to gp to jail. Stated he had plenty of money to pay his way in jail, provided he was not well treated. Witness asked defendant how much money he had. Defendant answered, no great deal. Witness said to defendant, it has been reported you have eight hundred dollars, defendant replied it was not so. Pie had but little money. I saw defendant have fifteen dollars at Crotwell’s store when he paid for some whiskey. I had no conversation with defendant relative to the money he gave Barnett. I told defendant he would have to render all his money. Defendant said, eertainly not, it would be hard to do so.</p> <p>“ Cross-examined. — I nevef saw defendant have more than fifteen dollars.</p> <p>“ William Campbell, sworn. — Says I saw defendant have money at Farmers. I do not know how much precisely at that time. I saw two or three ten dollar bills and a two dollar bill, and several bills in his bundle. I thought there might be two hundred dollars. Could not say how much.</p> <p>“ Cross-examined. — I only saw two or three ten dollar bills and a two dollar bill. I cannot say, with any certainty, how much money he had at the time I saw it. Never heard defendant say how much money he had. Saw the money the day he was arrested.</p> <p>“ Grodshaw, sworn. — And says defendant came to Crotwell’s store, and bought one quart of whiskey. Gave me a five dollar bill to have changed to pay for the whiskey. I saw a roll of money in defendant’s hands. Looked like there might be one hundred dollars or fifty dollars.</p> <p>“ Cross-examined. — Not certain how much money defendant had. He had a roll. Cannot swear he had fifty dollars. Looked like he had more. I saw ten dollars in the roll from which it was taken. The roll contained more money.</p> <p>“ John Barnett, sworn. — Defendant’s witness. Says Smith gave me his pocket-book when he was arrested by Campbell. Counted his money, some four weeks before he was arrested, which was eighty-four dollars the pocket-book contained. Counted the money after defendant was confined in jail, in the presence of McDaniel, jailor, and the amount in the pocketbook was seventy-two dollars.</p> <p>“ Cross-examined. — Talked with Smith while in the custody of Campbell. Grave me his pocket-book out of which he, defendant, took fifteen dollars. Wrote to me to bring his pocket-book down to the court-house, and not to open the pocket-book until it was opened in the presence of the sheriff; all the money I knew of the defendant having.</p> <p>“ J). Sohe, Commissioner of special hail, sworn, and says, defendant petitioned him praying for the benefit of the prison bounds on mesne process. Filed his schedule. Rule posted.</p> <p>“ After defendant filed his schedule, he received notice from plaintiff’s attorney that 'defendant’s schedule would be contested. Accordingly, a jury was summoned, and day assigned to try the validity of said schedule, suggestion filed by plaintiff’s attorney of false return, &c. After the suggestion was filed, defendant amended his schedule, but not until defendant gave the commissioner satisfactory reason for doing so, the commissioner being fully satisfied in his opinion that defendant had the right to amend where the plaintiff’s rights were not prejudiced, and consequently allowed the defendant the privilege to do so. Smith told commissioner he had rendered all the property and money he had.</p> <p>“ Cross-examined. — I was satisfied of the legality of allowing defendant to amend bis schedule. Defendant gave reason why be did not Ténder in bis first schedule all bis effects. I am willing to state the reasons defendant gave for not rendering all in bis first schedule, (objected to by counsel for plaintiffs,) defendant, remarked that all monies remaining after his security, Dill, was indemnified, shpuld be applied to plaintiffs’ claim as be did not wish to relieve himself from the payment of the plaintiffs’ claim against him.”</p> <p>The following verdict was returned by the jury :</p> <p>We find the defendant, W. B. Smith, guilty of fraud in making a false return of his effects, and not guilty of undue preference in the payment of other creditors.</p> <p>The defendant appealed on the grounds :</p> <p>1. Because the jury erred in deciding that the Commissioner of Special Bail had no right to amend the applicant’s schedule.</p> <p>2. Because the jury founded their verdict on applicant’s schedule, as filed by him on the 24th February, 1855, when they should have tried the issue in reference to his schedule as it stood when amended.</p> <p>3. Because the verdict of the jury was not supported by the testimony.</p>

BEFORE GLOVER, J., AT BARNWELL, SPRING TERM, 1855. The report of his Honor, the presiding Judge, is as follows: “ The action was trover to recover damages for the conversion of a mule, the property of plaintiff. As the administrator of Youngblood, he was summoned to appear before a magistrate in two cases at the suit of Heidtman and Willis, and judgments were entered against him in each case.

BEFOSE O’NEALL, J., AT BA.BNWELL. FALL TERM, 1858. A full and clear statement of the facts of this case will be found in tbe dissenting opinion of his Honor, Chancellor Johnston, and in the report of his Honor, the presiding Judge, which is as follows: “ This was an action of debt on a bond, conditioned, that Lewis Kirkland ‘ shall, and do, well and truly cause certain property, to wit.: twenty head of cattle and two slaves, Nimrod and Comba, to be forthcoming, to be subject…

BEFORE WHITNER, J., AT SUMTER, FALL TERM, 1854. Held: that the appointee took the estate divested of the incumbrance of dower. But the case of Doe vs. Jones, 21 Eng. 0. L. R. 113, decides the very question before the Court. There A. B. had the use for life, with a power of appointment.

<p>BEFORE EARLE, J., AT FAIRFIELD, SPRING- TERM, 1832.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ Assumpsit on a promissory note.</p> <p>“The defence extended to part of the note only. Elizabeth Hughes, the widow and administratrix of William Hughes, deceased, was the daughter of John Bell, the plaintiff’s testator, and a legatee under his will. There had been a deficiency of assets, in the hands of the executors, to pay debts, and the legatees were called on to contribute. William Hughes having married Elizabeth, the legatee, first gave a bond conditioned to contribute his proportion, which was afterwards cancelled and this note given for a sum certain; intended, however, to meet only the amount for which he was legally bound to contribute. And it was contended for the defendant that the note was for too large an amount. This depended on the question whether the legacy to Elizabeth Hughes was pecuniary or specific, for that must determine how much William Hughes should contribute. It was admitted by counsel on both sides that if the legacy was pecuniary, the plaintiff should recover the whole note, but if it was specific then only a part.</p> <p>“ The clauses of the will of John Bell, deceased, connected with this question are as follows:</p> <p>“ ‘ To my daughter Elizabeth Hughes I give and bequeath one thousand dollars, to be paid in either money or negroes at their value.</p> <p>“ ‘ To my daughter Isabella Turner I give and bequeath, one thousand dollars, to be paid in either money or negroes at their value.</p> <p>“ ‘ To my son William I give and bequeath two thousand dollars; the property above mentioned is not to be removed until the first day of January next, (1820.)</p> <p>/“Negroes Lewis, Jane, Buck, Daniel, Job, Murphey, and a negro man named Prime to be divided according to valuation between Elizabeth Hughes, Isabella Turner and my son William to answer to the amount above bequeathed.’</p> <p>“ All the other legacies in the will were specific, except one of $500 to the widow.</p> <p>“ The executor assented to these legacies, also as specific, and delivered the negroes to the three legatees, between whom they were divided according to the proportions fixed.</p> <p>“ Had the construction depended upon the isolated clauses the legacies must have been held pecuniary, and that tbe executors had the option to pay the money or deliver the negroes. But taking all the clauses in connection, it is impossible, it seems to me, to construe them, and especially the last, in any other way than as specific. There seems to have been a clear and manifest intention to appropriate the negroes named, and no other negroes, as property to the three legatees. Those negroes were “to be divided between them to answer the amounts above bequeathed.” The executors could not have refused to deliver the negroes specified; if they had died the legacy was gone, for no other funds were provided for the payment of it, all the other property having been specifically bequeathed.</p> <p>“ I thought therefore that the legacy to Elizabeth Hughes, as well as those to Mrs. Turner and William Hughes, was specific and so ruled. The plaintiff recovered accordingly, allowing the abatement claimed by the defendant.”</p> <p>The plaintiff appealed on the ground:</p> <p>Because the presiding Judge decided and so directed the jury that the legacy to Elizabeth. Hughes was a specific legacy, when in fact it was a general or pecuniary legacy.</p>

<p>A deed will not be presumed, juris et de jure, without proof of twenty years’ possession.</p> <p>Eaots showing the existence, loss and contents of a deed, may authorise the presumption without the proof of possession.</p> <p>In the absence of such proof, a long possession, but short of twenty years, accompanied by possession of the grant and other muniments of title, may create a presumption of the deed.</p>

<p>Parol evidence is inadmissible to show, that a provision in the will for the widow was intended to be in lien and bar of dower.</p> <p>Testator bequeathed to his wife certain articles of personalty and “ all the rest of the property she brought when I married herand he directed that “the rest of my property, real and personal, be sold and equally divided between my four children:” — He Id, that the provision for the wife was not in lieu of dower.</p>

before gantt, j., at riohland, SPRING TERM, 1832. Judgment had been recovered for the amount of the penalty of the Sheriff’s bond. In behalf of the State it was suggested that sundry tax executions lodged with the sheriff he had failed to return ; -and it was claimed that damages should be assessed to the amount of those executions.

<p>A contract, if defendants would hire from plaintiff two negroes as boat hands, plaintiff would deliver to them his cotton crop to be carried to market, is not nudum pactum: it is promise for promise.</p> <p>A discount predicted of the breach of this contract, pleaded to an action for the hire of the negroes, is not barred if filed within four years after demand of performance.</p> <p>The statute of limitations ought not to be formally pleaded to a notice of discount. It may be objected ore tenus on the trial.</p> <p>If formally pleaded, it, with the replication, may be treated as surplusage, and will not injure either party.</p> <p>A plea of non assumpsit infra, &c., to an executory contract, is bad.</p> <p>A party may claim interest from a time anterior to the accrual of the cause of action.</p> <p>The damages found by the jury depending upon the facts, the Court would not interfere.</p>

<p>An innkeeper may not detain the goods of a hoarder for the price of his board, though he may those of a traveller, (a)</p>

<p>Plaintiff was tbe payee of a note drawn by defendant, which a third person had got possession of fraudulently and transferred to W. Notice was given to defendant not to pay the note to W., but he did pay it to him, and this action was brought for the amount of the note: — Meld, that W. was an incompetent witness for defendant — he being liable to defendant in case of plaintiff’s recovery.</p>

<p>BEFORE EARLE, J., AT CHESTER, SPRING TERM, 1832.</p> <p>This was an action of trespass for taking the goods and chattels of plaintiff. Defendants justified under a distress warrant, for rent in arrear. Estis, one of the defendants, had leased the premises to John Ragsdale, ending the 1st January, 1832, for forty dollars, and had his note payable accordingly. John Ragsdale conveyed his lease to plaintiff for the same term, for forty dollars, and had his note expressed to be for rent dated — day of February, 1831, due 21st February, 1831. On the 29th November, 1831, John Ragsdale issued his distress warrant and distrained a colt, some cotton standing in the field, some picked out, and some cprn and fodder. The proceedings were regular, if John Ragsdale had the legal right to proceed in this way. The property was sold, and the money going to Estis, the original landlord, was paid over to him: he was present and was directing. Mayfield, the other defendant, was the constable. Plaintiff proved that John Ragsdale had previously received the colt, and said he had got it for rent. The colt was worth fifteen or twenty dollars. The Court decreed for plaintiff, on the ground that John Ragsdale had no legal right to issue his distress warrant, and that the colt was in payment of rent.</p> <p>Defendants appealed on the grounds</p> <p>1. That as plaintiff’s goods were legally sold, under a distress warrant, defendants were not trespassers, and therefore the decree should have been for defendants.</p> <p>2. If the colt spoken of was in payment, it was only for about fifteen or twenty dollars, which left a balance for which defendants might distrain and sell.</p>

BEFORE RICHARDS ON, J., AT DARLINGTON, SPRING TERM, 1832. Sum. PRO. on open account. Defendant moved for a non-suit, which his Honor refused. The decree was for the plaintiff, and the defendant appealed.

<p>BEFORE EARLE, J., AT SPARTANBURGH, SPRING TERM, 1832.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The defendant held the note of Joseph Nix in the following words:</p> <p>“ By the 25th of December next, I promise to pay T. W. Waters, or bearer, twenty-five dollars for value received. April 1st, 1826. Joseph Nix.</p> <p>“ In the spring of 1827 the defendant endorsed the note to plaintiff in the following words — ‘ I endorse the within note for vulue received on condition the holder first tries the within named Nix; if the money cannot be had before Christmas, then I hold myself responsible for the money to the holder.</p> <p>“ T. W. Waters.</p> <p>“ The plaintiff brought suit against Nix to Fall Term, 1827, when judgment was obtained and execution lodged in the sheriff’s office the 24th October, 1827. It was returned nulla bona. No further proceedings were had on the judgment against Nix, and this action was brought against Waters on the 24th December, 1881. Nix was a settled resident of Union District (where he was sued) during 1827, 1828, and until 1829, and carried on a farm. A motion being made for a nonsuit, the plaintiff offered to prove that Nix was insolvent. The Court, without deciding that the evidence was inadmissible or excluding it on that ground, replied that testimony of that kind could not be more conclusive or satisfactory than the return of nulla bona ; that it could only be allowed him to prove that Nix had been arrested, and had sworn out under the Act; and that the opinion or assertion of witnesses that he had no property, or not enough to pay his debts, for the purposes of the case I would consider as proved. I was unable to distinguish this case from that of Biddings vs. Gflascoelc.”</p> <p>The motion for a nonsuit was granted, and the plaintiff ap-. pealed on the grounds</p> <p>1. Because from the terms of the indorsement the plaintiff was not bound to issue a oa. sa. before proceeding against the indorser.</p> <p>2. Because the return of nulla bona was sufficient to entitle the plaintiff to recover in this action.</p> <p>3. Because the plaintiff should have been permitted to prove the insolvency of Nix by parol.</p>

BEFORE EARLE, J., AT EAIRFIELD, SPRING TERM, 1832. The report of his Honor, the presiding Judge, is as follows: “ This was an action of debt on a sealed note given by the defendant payable to Jackson Lynn, deceased, dated 29th November, 1828, due the 1st November, 1829, for one hundred .dollars. The defendant had purchased some negroes of Lynn, a fellow, a woman and three children.

<p>BEFORE MARTIN, J., AT NEWBERRY, SPRING TERM, 1832.</p> <p>This case will be sufficiently understood from the opinion delivered in the Court of Appeals. ,</p>

<p>An alias must correspond with the original in the amount of damages laid.</p> <p>An alias can only issue from the clerk’s office of the district to which the original is returnable.</p>

BEFORE EARLE, J., AT SPARTANBURG, SRING TERM, 1832. Sum. Pro. on an instrument as follows: — “ By the first day of January next, I promise to pay Obadiah W. Wingo, or order, five walnut bureaus, having four drawers, to be done in workman order.

<p>A prisoner indicted for horse stealing, is entitled, since the Act of 1830, to the right of peremptory challenge.</p> <p>It need not appear upon the face of the indictment whether it is for the first or a second oifence.</p>

<p>BEFORE EARLE, J., AT UNION, SPRING TERM, 1832.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“This was an action of trespass to try titles. Both parties claimed under Major Joseph McJunkin, and it was admitted his title was perfect. The plaintiff claimed under a sheriff’s sale, by virtue of sundry executions against Major Joseph McJunkin as his property, purchased by Thomas Craven and conveyed to John Anderson, and by John Anderson to plaintiff. The sheriff’s deed to Craven is dated the 16th of March, 1824, for one thousand and ninety-three acres, recites the execution and describes the lands by metes and bounds which includes the same in dispute. The defendant claimed the land under a deed from Joseph McJunkin, Jr., to himself for one hundred and fifty acres, dated 16th October, 1824, and endeavored to establish a title in Joseph McJunkin, Jr., to the land in dispute, by a parol gift in 1809 or 1810, and actual and uninterrupted possession from that time forward. I have not the plat of re-survey before me, and shall find difficulty in making a satisfactory report. The land in dispute was fifty acres of the Landtrip Grant, which was for one hundred and fifty acres. It was conceded that the title of Joseph McJunkin, Jr., was good to xOne hundred acres of that tract under the gift and possession, and the question was whether his father, Major McJunkin, had given him the whole tract or only one hundred acres.— They were both sworn, and many other witnesses, the father insisting that he had given to his son the whole one hundred and fifty acres, and therefore, it did not belong to himself, and the son denying that he ever had any claim to it. The jury by their verdict decided against the title of Joseph McJunkin, Jr., and I thought correctly. If the land did not belong to him it formed part of the estate of Joseph McJunkin, Sen., and the questions raised are whether it was levied on and sold by the sheriff, and was there legal and competent evidence of such levy and sale ? The original executions were all lost, and of course there was no proof of the actual levy as entered and returned on them. The sheriff’s execution book was resorted to and the following entry read in evidence (made in several of the cases recited in the sheriff’s deed): “ Levied on the defendants land, May 9th, 1822,” and other entries to the same effect of a later date but prior to the sale.</p> <p>“Major McJunkin, at the time of the levy and sale, owned a large body of la.nd, as appears from the deed, composed of two or three adjoining tracts of which the Landtrip tract was one. The fifty acres, or that part in dispute, lies between the one hundred acres, admitted to belong to defendant, under the deed of Joseph McJunkin, Jr., and the tract on which Major McJunkin lived. His house and the appurtenances are on the adjoining tract, but his plantation on which he resided at the time of the levy and sale, extends over upon the Landtrip tract and includes a considerable portion of the fifty acres. — ■ The sheriff’s deed, as already stated, describes the land sold by metes and bounds which embrace the land in dispute; and it was proved that Major McJunkin was present when the deed was drawn, and assisted in the description, and afterwards under some arrangement with the purchaser at sheriff’s sale, by which he was permitted to sell the lands if he could, he offered for sale the fifty acres with tbe other lands. I thought it therefore sufficiently proved that the land in dispute was levied on and sold as the property of Major McJunkin.</p> <p>“ The jury, after the charge, had retired to their room and were in consultation when the Court withdrew without adjourning formally for dinner. I gave the jury no instructions on their retiring or when I left the court house. When I returned after an interval of an hour, I found the jury in their boxes ready to deliver their verdict. But it was objected by the defendant’s attorney, that the jury after agreeing on their verdict had dispersed. On inquiry of the jury I learned, that after they had agreed and left their room, some of the jury were under the necessity of withdrawing; that they had accordingly dispersed for a short time but had returned as soon as they could. I had the jury twice polled: first, they were asked severally if they had agreed on the verdict before they left their room and dispersed: they all replied that they had. The Verdict was then published and they were again severally asked if that was still their verdict, and they replied in the affirmative. I then ordered the verdict to be recorded. It was for the plaintiff.”</p> <p>The defendant appealed.</p>

<p>BEFORE EARLE, J., AT CHESTER, SPRING TERM, 1832.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The perjury was charged to have been committed on the trial of an indictment, at last Spring Term, before me, against Samuel Kilpatrick, for an assault and battery on the person of this defendant. He was the prosecutor and I believe the only witness. As the assault and battery was clearly proved, and I think not denied, the then defendant wished to show the provocation he had received with the view of mitigating the sentence, and was permitted to ask the prosecutor, (now defendant) on a cross-examination, it not being objected to by the Solicitor, whether he had not given the defendant, Kilpatrick, some grievous provocation the evening before the day on which the assault and battery was committed. The indictment sets out the oath as follows: ‘ That the said Stephen Keenan did not give the said Samuel Kilpatrick any provocation a short time before the assault and battery charged in the said indictment, was committed, nor at any other time. And that the said Stephen Keenan did not stop at the bars, near the dwelling-house of the said Samuel, the evening before the said assault and battery was committed, and cry out: ‘hurra for the whore-shop.’ On this the perjury is assigned.</p> <p>“ A question was made by way of demurrer to the indictment, whether it could be sustained ? whether the oath charged to be false, or rather the fact sworn to, was so far material to the issue then pending before the jury as that perjury could be assigned upon it ? I was of opinion that the oath charged to be false, was in no way material to the issue, and therefore, that the indictment could not be sustained. The issue before the jury was guilty Or not guilty of the assault and battery, charged in the indictment to have been committed on the person of the prosecutor (now defendant). What I understand by the word material in this connection, is that the fact sworn to, in order to enable perjury to be assigned upon it if false, must tend directly or indirectly to produce conviction on the mind to which it is addressed, upon the particular issue before it: and in the present instance that the fact sworn to should have a tendency to lead the jury to a conclusion that the person charged was guilty or not guilty of the assault and battery, either by its direct bearing on the issue, or by supporting or weakening the witness’s testimony on some other point. And if the same verdict must have been rendered by the jury, whether the oath were true or false, it is obvious that it could not have been material. The very statement in the indictment seems to concede that the assault and battery was proved, and refers to some transaction anterior. Now if the defendant had committed the battery, and that was proved, the jury must have found him guilty, notwithstanding the previous provocation at another time. ■ The question of more, or less guilty is'one for the Judge after conviction or proof of the offence at least; and evidence brought out on the trial directed to the Judge upon the latter issue, cannot be material to that pending before the jury, if it cannot vary their finding. I question the propriety of allowing testimony of that character to be given. Suppose on the trial, the defendant Kilpatrick had offered testimony of the provocation on the previous evening, such as is alleged to have been given, I apprehend the Court would have rejected it, if offered either as a justification or as contradicting the prosecutor. I therefore sustained the demurrer to the indictment, and the defendant had judgment.”</p> <p>The State appealed on the grounds:</p> <p>1. That the perjury charged was circumstantially material to the issue pending.</p> <p>2. That the perjury charged was on a point material, as it was calculated to increase the punishment of defendant in case of conviction.</p>

<p>The indictment need not state whether it is for the first or a second offence, although the crime be punishable for the first offence with whipping, and for the second with death without the benefit of clergy.'</p> <p>New trial because the Circuit Judge refused to continue the case, on account of the absence of a witness in Georgia, refused.</p> <p>A prisoner indicted for horse stealing is not entitled to traverse.</p>

<p>A secret resulting trust arising from the fact that the negro was paid for with the defendant’s money, cannot avail as a defence to an action of trover brought by the party having the legal title — where the possession was never surrendered to the cestui que trust.</p> <p>An executor who had the possession may maintain trover in his own right, without styling himself executor.</p>

<p>An attorney-at law has authority to submit his client’s cause to arbitration by rule of Court, but in no other way.</p>

<p>• This was an appeal from the decision of the Circuit Court for .Sumter, at Spring Term, 1832.</p>