Volume 43 — South Carolina Law Reports

<p>BEFORE MUNRO, AT SUMTER, FALL TERM, 1855.</p> <p>This was an action of dower: In 1838, the demandant intermarried with Etbeldred Eyans, who died in 1847. In December, 1840, the land in which dower is claimed, was conveyed by Etheldred Evans to his son J ames Evans; and in 1852 James Evans conveyed it to the defendant.</p> <p>The defendant pleaded, that Etheldred Evans died intestate, and that the demandant had taken her distributive share of his personal estate under the Act of 1791; wherefore, he contended, she was barred. It appeared from a certificate of the ordinary, that, as representing Etheldred Evans under the derelict section of the Act of 1839, he had brought an action of trover for some negroes against James Evans — recov'ered a verdict for about $1500, and paid one-third part thereof to the demandant as her distributive share, and that the remaining two-thirds went in some way to the other distributees. It further appeared that Etheldred Evans left a will, bearing date the 22d May, 1839, and purporting to dispose of both real and personal estate. The ordinary, in September, 1847, refused to admit this will to probate, even in common form, upon the ground that two of the three subscribing witnesses, sons of the testator, were legatees and devisees, and, therefore, interested and incompetent to attest the will. This decision of the ordinary seems to have been acquiesced in by the parties interested in the will, for no appeal was taken, nor was any other application for probate ever made. A witness testified, that he knew of no lands owned by Etheldred Evans, except those conveyed to James Evans, in 1840.</p> <p>His Honor held that Etheldred Evans died intestate, and that the demandant was barred under the 6th section of the Act of 1791, (5 Stat. 163.) He instructed the jury to find a verdict for the defendant, which they did.</p> <p>The demandant appealed and now moved this Court for a new trial, on the grounds:—</p> <p>1. That the defendant failed to show that the demandant was barred of her dower.</p> <p>2. That where a widow accepts a distributive share of the personalty, she is not barred of her dower under the Act of 1791, even in cases of total intestacy.</p> <p>3. That a widow is barred of her dower, where she accepts her distributive share under the Act of 1791, only in cases of total intestacy; and where husband leaves a will, as in this case, which is, or may be, valid for any purpose, it is not a case of intestacy to which the Act applies.</p>

<p>BEFORE MUNRO, J., AT SUMTER, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The late General Thomas Sumter, by a conveyance duly executed, and bearing date the 15th of May, 1814, conveyed to his son, Thomas Sumter, Jr., three thousand acres of land, a portion of which had been originally granted to General Sumter himself, in four or five separate tracts. The balance of the land had been granted to the following named persons : to Thomas Bosher three hundred acres, date of grant 29th September, 1765 ; to Thomas Anderson one hundred acres, date of grant the same year; to James Oook one hundred and fifty acres, granted same year, and to Litson three hundred acres in September, 1774. All the' above mentioned grants had been included in a survey made by one Adam McWillie, whose plat bears date the lóthMay, 1805, and is referred to in General Sumter’s conveyance to his son, which conveyance was duly recorded on the 15th of October, 1814. No intermediate conveyance from either of the above mentioned grantees, to General Sumter, was introduced in evidence. Two distinct trespasses were alleged to have been committed by the defendant within the limits of the McWillie survey, the first of which is partly on one of the grants to Thomas Sumter for four hundred and fifty acres, and is designated on Surveyor Bronson’s plat, by the letters R, S, T and Q, and partly on the Bosher grant. The other trespass is marked on the same plat as the residence of Henry Benbow, and is on the Bosher grant.</p> <p>“ The question on the circuit, and it is to that the plaintiffs’ first ground of appeal is directed, was, whether the first mentioned trespass .was really within .the limits of the Sumter grant; and, if so, whether there was sufficient evidence of a trespass on the part of the defendant to entitle the plaintiffs to maintain ejectment. Bronson’s survey was, to say the least of it, exceedingly imperfect; for according to the testimony of Wm. Butler, an intelligent witness, and who had himself occupied the premises in question, it was more than doubtful if the trespass is not exclusively ^within the limits of the Bosher grant. Conceding, however, the Surveyor’s location of this trespass to be correct; there was certainly no proof that the defendant either put his son Pinckney in possession of the land, or that he has ever asserted any claim to it since his son took possession of it, which was in the fall of 1851. The witness Butler said, that either in 1842 or 1843 the defendant put him in the possession of the premises in question, and that he remained there for six or seven years, and that in the fall of 1851 Pinckney Benbow took possession of it, and has occupied it ever since; that at the time Pinckney went into possession of it he was acting for himself, and owned the hands which he worked, and that he has never heard the defendant assert any claim to the land since his son took possession of it. It is true, that in answer to a general question, as to whether the defendant claimed all the land within his lines, he did reply, “I suppose he does, but I don’t know anything about his lines.” Nelson, another witness, said, “ Pinckney Benbow’s field was claimed by himself in 1852, I lived with him at the time.” The defendant’s trespass at the point occupied by Henry Benbow was clearly established, but as the plaintiffs produced no conveyance from the grantee to the ancestor, it became necessary to establish a title by possession within the limits of the McWillie survey. On this point the testimony was as follows:</p> <p>“ David Ragan said, himself and his brother Richard, in 1816, cultivated an old field on the Litson grant; they got permission from General Sumter; thinks his brother cultivated it the following year, but is not certain; the field had been cleared some years before witness and his brother planted it; is not certain if Terry ever planted it; Anderson lie thinks was there two or three years, but is not certain; does not know under whom either Anderson or Terry held; he knows of no possession by Sumter or by his tenants within the McWillie survey, except that of himself and brother ; witness knows the Rene Richbourg field; has known it for fifty years ; Richbourg never cultivated it; he cultivated the Well’s old field about a year, and moved away in 1811.</p> <p>“ John Gohia,"another witness, said he was seventy-six years of age, and had lived near the land all his life-time, but had never known either the Sumters or their tenants to occupy any part of the land within the lines of the McWillie survey.</p> <p>“I thought that- the plaintiffs had entirely failed to prove that at the commencement of the action the defendant was a trespasser on the Sumter grant; and furthermore, that they had also failed to establish that either they themselves, or those under whom they claimed, had ever maintained a title by possession within the limits of the McWillie survey, so as to enable them to maintain ejectment against one in the adverse occupancy of the Bosher grant. Entertaining these view's of the case, I granted the defendant’s motion for a non-suit.”</p> <p>The plaintiffs appealed, and now moved this Court to set aside the nonsuit, and order a new trial, on thejgrounds :</p> <p>1. The title of the plaintiffs to the land covered by the grant to General Sumter was fully and clearly proved. It was also proved that the defendant wh'o sets up claim to the land, put his son, P. G. Benbow, who makes no claim thereto, in possession of a portion of the land covered by said grant: And this, it is respectfully submitted, was sufficient proof of a trespass, and his Honor erred in holding the contrary.</p> <p>2. The'plaintiffs established title to the remainder of the tract by proving a survey made for their ancestor in 1805, and possession by Rene Richbourg, as tenant, though not for five years, and another field cultivated by Richard and David Ragin, and Anderson and Terry, amounting together to more than five years’, continuous possession, commencing in 1816 ; the Ragins were proved to be the tenants of General Sumter, and it ought to have been left to the jury to say whether Anderson and Terry were not also tenants of plaintiffs’ ancestor. Defendant’s trespass upon the land within the McWillie plat, was satisfactorily proved.</p>

<p>BEFORE WARDLAW, J., AT SPARTANBURG, SEPTEMBER, EXTRA TERM, 1855.</p> <p>The report of liis Honor, the presiding Judge, is as follows:</p> <p>“ Assumpsit against defendant as indorsor of a promissory note for seven thousand dollars, dated December 21st, 1853, made by E. C. Leitner, payable to the order of defendant at the Commercial Bank, and indorsed by defendant.</p> <p>“ The defendant admitting the making and indorsement of the note, undertook to show payment since the commencement of this suit. Below is a summary of the testimony which was adduced, embracing various papers, of all which copies or sufficient abstracts must be in the Court of Appeals.</p> <p>“ 1. Record, iS. Bobo and B. B. Foster vs. the Bivingsville Manufacturing Company and F. C. Leitner. Confession, June 20th, 1853, upon a note for fourteen thousand dollars, with interest from the date. Judgment, October 7th, 1853. Fi.fa. March 31st, 1855. On the note is written in the handwriting of the defendant: “ This note is not to interfere with any other transactions, but to settle debts that they (Bobo & Foster) have agreed to indorse in Bank.” And on the declaration is written in the same hand-writting, “ This^ confession is to indemnify the plaintiffs in being security for certain amounts in Bank. See note.” ,</p> <p>“ Bobo and Poster are brothers-in-law of Leitner.</p> <p>“ 2. Record: S. Bobo vs. the Bivingsville Manufacturing Company and E. C. Leitner. Confession November 17th, 1853, for six thousand dollars besides interest and costs. Judgment andjft. fa., January 26th, 1854.</p> <p>“ 3. Record : The Commercial Bank of Columbia vs. E. C. Leitner. Confession, judgment, and fi. fa., March 31st, 1855, for five thousand four hundred dollars, with interest. The balance of the note now in suit after a credit of one thousand six-hundred dollars paid January 7th, 1854.</p> <p>“ E. C. Leitner disappeared, from Spartanburg, about March Court, 1855.</p> <p>“4. On the first Monday of July, 1855, Sheriff H. S. Poole, under the preceding writs of fi. fa., and others, against E. CLeitner only, sold lands, negroes, live stock, &e., to the amount of about twenty-four thousand dollars. At this sale the defendant, as purchaser, became liable to the Sheriff for enough to satisfy his separate judgment, (No. 2,) and was ready to give a receipt for the amount of that judgment. The proceeds of sale were amply sufficient (after the satisfaction of about three thousand three hundred dollars, which was due on a fi. fa., of one Kirby, the oldest, against E. C. Leitner), to pay the separate judgment of S. Bobo (No. 2), and the judgment of the Commercial Bank, (No. 3), the next oldest after the fourteen thousand dollar judgment (No. 1), but not sufficient to reach No. 3 if No. 1 was to be paid, nor sufficient to reach No. 3 if Dorn’s claims, mentioned below, were recognized. /</p> <p>“ 5. A warning or direction not to pay any judgment hut No. 2, was served on the Sheriff by Mr. Farrow, Attorney at Law, claiming to act as solicitor and agent of W. B. Dorn. and as agent of George Leitner. This was immediately after the sale. W. B. Dorn claimed as mortgagee and as a creditor who had applied to Equity, as below mentioned ; and George Leitner claimed as creditor of his brother, E. O. Leitner, and as shareholder in the Bivingsville Manufacturing Company.</p> <p>“ 6. A written order which defendant gave to the Sheriff, same in substance as No. 7.</p> <p>££ 7. A paper without date, written by Mr. DeSaussure Solicitor of the Commercial Bank, and signed by defendant, which is. annexed to the fi. fa., of the Bank vs. F. Q. Leitner, No. 3 — in substance as follows: “Bobo Foster vs. E. G. Leitner, The Sheriff will pass over the above execution (No. 1) in favor of the execution of the Commercial Bank against defendant, and give precedence to this latter execution, by applying to it any money raised by- sale of defendant’s property, to which the above would be otherwise entitled. This is the second order to the same effect. Simpson Bobo.”</p> <p>£l 8. A letter from the President of the Bank to Poole, Sheriff, dated July 10th, 1855, telling of Mr. Bobo’s willingness to give precedence to the Bank, and asking payment of the Bank’s judgment, (No. 3).</p> <p>££ 9. A formal demand of the money from the Sheriff and Coroner, dated August 11th 1855, stating the consent of S. Bobo, oldest creditor, to its being paid to the Bank, signed by the President and Cashier of the Bank.</p> <p>££ H. S. Poole, late Sheriff, now resigned, testified: Soon after the sale I showed to the defendant the letter from the Commercial Bank, (No. 8,) and told him of the warning I had received, (No. 5). He said he would give me orders to pay' the Commercial Bank in preference out of the fourteen thousand dollars, and added, £ my money.I must have any how.’ In this I understood him to refer to the balance of the fourteen thousand dollars, and I - said, “ I consider that as collateral security.” He said, “ I must have it.” He then gave me an order in writing to pay the Commercial Bank out of the fourteen thousand dollars, which order is not now here.</p> <p>“ I cannot say which portion of the property I sold belonged to E. C. Leitner separately, and what portion to the Bivingsville Manufacturing Company. E. C. Leitner was the principal shareholder in the Binvingsville Manufacturing Company and was0manager of its affairs,</p> <p>“Reply. — The plaintiff adduced proceedings in Equity now pending, Wm. B. Born vs. B. O. Leitner, Simpson Bobo et. al. The bill was filed after March, 1855; one purpose of' it is to set aside the fourteen thousand dollar judgment, (No. 1), another to foreclose a mortgage which É. C.' Leitner made to W. B. Dorn of land, negroes, &c., (part of the property sold by the Sheriff in July, 1855,) which mortgage is older than the judgment of the Bank, (No. 3,) and subsequent in dates to the judgments No. 1 and No. 2. An interlocutory order was made in June, 1855, directing a reference, and calling in the creditors of E. C. Leitner.</p> <p>“ The defendant contended in argument that the waiver, in favor of the Bank, of the precedence which prior date gave to the judgment of fourteen thousand dollars in effect subjected the proceeds of sale to the fi. fa. of the Bank vs. E. 0, Leitner, and that payment from these proceeds to the Sheriff was payment by the maker to the Bank, and of course a discharge of the endorser. I held that of the judgment taken to indemnify himself, Bobo could not properly receive more than enough to cover his liability; that the waiver, or order given by him to the Sheriff in favor of the Bank, to which he had become liable, was no more than would have been a draft on one of his debtors —that is, it was payment if payment thence resulted, or if it was accepted as payment, but otherwise it was only collateral security for his liability. In support of this opinion I adverted first to the uncertainty as to the ownership of the property sold. Defendant Bobo had a lien which covered both the property of E. C. Leitner and that of the Bivingsville Manufacturing Company; the Bank’s lien extended only to the property of E. C. Leitner. - And second, I thought of Dorn’s mortgage intervening between the judgment of Bobo, and that of the Bank. If the fourteen thousand dollar judgment should be entirely disregarded, it might not follow that the judgment of the Bank would be reached.</p> <p>“ The defendant further contended that the Bank, by accepting the order of defendant on the fund in the Sheriff’s hands, had taken from the defendant the control over the fund thus virtually assigned, and had agreed to look only to that for payment. I held that the exercise of exclusive power over a fund assigned as additional security did not imply the abandonment of the original security; and I submitted to the jury the question whether the Bank accepted the order in payment, or took it only as additional security.</p> <p>“ The jury found for the plaintiff the balance due upon the note in suit.”</p> <p>The defendant appealed and now moved this Court for a new trial on the grounds,</p> <p>1. Because the money being in the hands of the Sheriff, belonging to the defendant, his transfer of the.money to the debt of the Commercial Bank was a payment of the judgment against Leitner, the principal, and discharged the endorser, the Bank having accepted the transfer and claimed the money.</p> <p>2. Because plaintiff having accepted the order of the defendant and a transfer of his right to receive the money from the Sheriff, who held it to be applied and paid over to the judgment against Leitner, was a discharge of the endorser and the jury should have been so instructed.</p>

<p>Where an administrator sold his intestate's negroes for partition merely and at the request of the distributees, and a negro, which the intestate had in his lifetime, made a parol gift of, was sold and purchased by one of the distributees : — Held, that such distributee was nob a purchaser within the Act of 1888, in relation to parol gifts.</p>

<p>Since the Act of 1825, (7 Stat. 330,) an alias, like any other process, maybe tested on any day previous to the return day thereof.</p>

<p>Payment in part by the repersentat-ive of a deóeased joint maker of a promissory note will not prevent the Statute of Limitations from running as against the survivor.</p>

<p>The provision in the Prison Bounds Act, that a prisoner is not entitled to his discharge if, since his confinement, he has gone without the prison walls, applies as well to a prisoner confined under mesne, as to ono confined under final process.</p>

<p>BEFORE MUNRQ, J., AT NEWBERRY, FALL'TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This was an action of trespass to try titles to one and eleven one-hundredths of an acre of land.</p> <p>“ The land in dispute was originally owned by one John Renwick, who departed this life some time prior to the year 1843, intestate; leaving a widow, Jane Renwick, two daughters, Mary A. E. and Rosanna, and the defendant, his son, his only distributees.</p> <p>“ It further appears, that in the fall of 1843, or the spring of 1844, the said distributees, with the assistance of a surveyor, made partition among themselves of the intestate’s real estate; in which partition one hundred and ten acres were allotted to the daughters Mary A. E. and Rosanna, and two hundred and eighty-six acres were allotted to the defendant, and on the 14th of March, 1844, the widow and the defendant, by a deed duly executed, released to the sisters Mary A. E. and Rosanna, all their interest in and to the one hundred and ten acres that had been allotted to them ; and on the same day, by a similar instrument, the widow and the two daughters, released to the defendant, all their interest in and to the two hundred and eighty-six acres, the portion that had been allotted to him in the above-mentioned partition. On the back, of each of these instruments there was a plat, but without course or distance marked thereon — representing the land embraced in each of them — these plats it was conceded, were made by the defendant himself. Subsequently to the above-mentioned partition, Rosanna intermarried with one Nathan Henry, who, together with his wife, on the 31st of March, 1848, conveyed to the plaintiff, all their right, title and interest, in and to the one hundred and ten acres in question; and, on the"23d of October, 1850, the other sister, Mary A. E,, who in the meantime had intermarried with one Widman, joined with her husband in conveying to the plaintiff, all their interest in the said land; by this means, tthe entire interest in the one hundred and ten acres, that had been allotted to the two sisters, became vested in the plaintiff.</p> <p>“ On the part of the defendant, it was conceded, that the one and eleven one-hundredths of an acre, the portion of land really in dispute, is included within the lines of the plat, on the back of his own and his mother’s deed to the two sisters for the one hundred and ten acres above referred to. Notwithstanding such concession, it was however contended, that it was competent for the defendant to show by parol, first, that the plat in question was left unfinished, and the reason for its having been so left; and secondly, that it is not a plat, or a true representation of the land in dispute, notwithstanding it is so designated in his own deed. I held the testimony offered to be incompetent, so that my ruling in this particular, furnishes the basis of the defendant’s first and second grounds of appeal.</p> <p>“ In reference to the third ground; I did exclude the declarations of the parties from whom the plaintiff derived title, and made subsequent to the date of their conveyance, upon the ground that they were incompetent by their declarations to disparage a title, which they had previously transferred to another.</p> <p>“ The gin-house and screw mentioned in the fourth ground of appeal, were erected by the defendant upon the land in dispute, some time between the years 1848 and 1845; subsequently the land around the gin house was cleared, and for the last three years that portion of the land which is in dispute has been fenced in and cultivated by the defendant. Since the commencement of the suit the gin house and screw have been removed off the land by the defendant. They were valued at five hundred hollars.</p> <p>“ The plaintiff’s writ was lodged in the Sheriff’s office on the 23d of Sept., 1853, the alias was lodged on the 2d of March, 1854, and the pluries on the 28th of March in the same year; and the deed referred to in the sixth ground of appeal bears date the 14th of March, 1844; so that only nine years and six months had elapsed between the date of the deed in question and the lodgment of the original writ. But it is clear, that the adverse occupancy of the premises in dispute, can, under no circumstances be traced back to a period of more than three years.</p> <p>“In relation to the ground in arrest of judgment, it is manifest that the verdict of the jury exceeds the amount of damages laid in the declaration, by at least one hundred dollars.”</p> <p>The defendant appealed, and now moved in arrest of judgment, on the ground:</p> <p>Because the verdict of the jury gave a larger amount of damages for the plaintiff than -the amount claimed by him in his declaration.</p> <p>And failing in this motion, then he moved for a new trial on the grounds:</p> <p>1. Because his Honor refused to permit the introduction of parol testimony by defendant, to show that certain lines, drawn on a deed without course and distance, were not a plat of the tract of land on which was situated the land in dispute.</p> <p>2. Because his .Honor erred in not allowing proof by defendant, to show that the plat was left unfinished on the 14th of March, 1844, the date of the deed, and the reason of it.</p> <p>3. Because his Honor erred in not allowing the declarations of the parties under whom the plaintiff claimed, to be given in evidence by the defendant, to show that they acknowledged the land in dispute to belong to defendant.</p> <p>4. Because the defendant is not liable in this suit for any damages for the removal of the gin house, gin and screw ; all this having been proved to have been done after the filing of the plaintiff’s declaration, and because, it is submitted, that the value of the gin house, gin and . screw, proved to be worth five hundred dollars, entered materially into the consideration of the jury in making up their verdict in this case.</p> <p>5. Because, it is respectfully submitted, that the ruling of his Honor in these various respects is contrary to law.</p> <p>6. Because more than ten years had elapsed from the date of the deed to Wm. W. Renwick from Jane Renwick, Mary A. E. Renwick and Rosannah II. Renwick, under whom plaintiff claimed, and the time the pluries writ was issued by which defendant was arrested, which would bar the action, the defendant living in Union district.</p>

<p>BEFOEE MUNEO, J.,. AT UNION, SPEING TEEM, 1855.</p> <p>The report of his Honor the presiding Judge is as follows:</p> <p>“This was a summary process, to recover on a sealed note for seventy-five dollars, dated the 13th April, 1853.</p> <p>“ The consideration of the note was a mule sold by the plaintiff to the defendant. — The defence was infancy, and payment.</p> <p>“ The defendant’s infancy, at the time of the execution of the note, was clearly established by his mother, Mrs. Martha Duncan, who proved that the defendant was born in January, 1833, consequently he was not of age until January, 1854. This witness also stated that the day after the defendant purchased the mule, he let his elder brother, Amos, have it; but whether by sale or gift, she did not know. The mule, she said? was worked on the place where she and her two sons resided, from April to July, when Amos went to Texas.</p> <p>“ In order to sustain the plea of payment — and this, by the way, was the ground, too, upon which the plaintiff relied for a confirmation of defendant’s contract after he had arrived at full age, it was proved, that in the month of December, 1854, about eleven- months after the defendant had become of age, he tendered to the plaintiff a watch, valued at seventy dollars in part payment of the note. Out of this transaction, another question arose, as to whether the acceptance of the watch by the plaintiff, was absolute,'or merely conditional. In reference to this transaction, Mrs. Duncan stated, that about two months after the delivery of the watch by her son to the plaintiff, the latter came tc her residence, during her son’s absence, and proposed to her to take up a note which she held against one Wm. Smith, by delivering to her the note in suit, and another note of defendant’s, to which, I think, the mother was surety — at the same time he proposed to return the watch to her, alleging as a reason for so doing, that he could not afford to keep it, at the price the defendant had put on it — that the witness declined receiving the watch, upon which the plaintiff hung it up on a nail in the house, and left it there, where she saw it several times after-wards, but could give no account of what eventually became of it. Wm. Smith, the individual above referred to, and a witness for the plaintiff, stated, that shortly after the delivery of the watch to the plaintiff, in a conversation with the .defendant, in reference to the notes the plaintiff held against him, the latter admitted that the note in suit was a just transaction, and that he had delivered to the plaintiff a watch in part payment; and in reply to an inquiry by the witness, why the note had not been credited with the watch, he stated “that he did not know if the plaintiff would keep it — that he was to keep the watch at seventy dollars, provided he liked it, and it kept good time.”</p> <p>“ On the first question, as to the confirmation of the contract by the defendant, after his attaining the age of majority, I thought the delivery of the watch was conclusive, provided an instrument under seal, executed by an infant, be at all capable of confirmation, about which I confess I entertained considerable doubt — and od the other ground, it appeared' to me equally conclusive, from the defendant’s own declaration, that the plaintiff’s acceptance of the watch had been only conditional' — :and furthermore, although the watch had. not been actually returned to the defendant in person, still, from the fact of its having been left hanging up in the house where the defendant resided, in the presence of his mother, who interposed no objections to the plaintiff’s leaving it in that situation, and where she saw it upon several occasions afterwards — and withal from the total absence of any proof as to what eventually became of it, I could draw no other conclusion than that the watch had actually come into the defendant’s possession. Taking this view of the testimony, I decreed for the plaintiff the amount of the note, and interest.”</p> <p>The defendant appealed and now moved this Court to reverse the decree, or for a new trial, on the following grounds:</p> <p>1. Because the plea of infancy was a complete bar to plaintiff’s recovery, and his confirmation, if any, was conditional, and upon the ground that plaintiff should keep the watch.</p> <p>2. Because the confirmation should have been in writing, in an equal degree with the note sued on.</p> <p>3. Because, at least, the defendant’s plea of payment was sufficiently proved, and the decree should have been in his favor on that plea, or he should have been allowed a discount to the value of the watch.</p> <p>4. Because his Honor erred, it is submitted, in holding that defendant had received the watch from plaintiff, and because the decree is contrary to law and evidence.</p>

<p>BEFORE MU3STRO, J.} AT SUMTER, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was an action upon the following promissory note:</p> <p>“ ‘ Charleston, December 21, 1854.</p> <p>“ ‘Ninety days after date we promise to pay to the order of McKenzie, Cadow & Co., at the agency of the Bank of the State of South Carolina, in Sumterville, seven hundred and twenty-seven dollars and twenty-two cents, value received.</p> <p>“ ‘ R. & S. Durant.’</p> <p>“ The testimony of Montgomery Moses, Esq., was,as follows: That on Friday, March the 23d, 1855, R. Durant, one of the defendants, called upon him, and inquired if the note, the one in suit, had been sent to witness, as agent of the Bank, for collection. Witness replied that it had not been sent to him as agent, but had been sent for suit; to which Durant replied, ‘ I have taken legal advice and will not pay it.’ Witness then told him, if you do not pay it on to-morrow, I shall put it in suit. Four or five days previous to this, Sidney Durant, the other co-partner, inquired of witness about the note; said that his brother would call in a few days and arrange it.</p> <p>“ The writ was lodged on Saturday afternoon, the 24th of March, between four and five o’clock. The note was not sent to the agent; no demand was made by witness as agent; don’t knpw the distance defendants lived from Sumterville; they reside at or near Lynchburg.</p> <p>“ It is the custom not to protest when the payer is only endorser ; never protests unless to charge endorser; not desirous of putting to unnecessary expense; this note was payable to plaintiffs and endorsed only by them. The sheriff goes home by railroad; the cars left between five and six o’clock in the evening. The note was lodged in the sheriff’s office in time for him to take it with him that evening.</p> <p>“ Here a motion was made by the defendants’ counsel for a nonsuit, on the ground that the action was prematurely brought. I overruled the motion, and told the jury that the plaintiffs were clearly entitled to recover. The jury, however, concluded that my ruling on the law of the case was erroneous, and that the forfeiture of the debt was nothing more than a merited punishment for the premature commencement of the suit, and accordingly found a verdict for the defendants.”</p> <p>The plaintiffs appealed and now moved this court for a new trial, on the grounds:</p> <p>1. Because his Honor, the presiding Judge, after the facts had all come out, overruled a motion made by the defendants for a non-suit — stating that the plaintiffs were entitled to recover ; notwithstanding which the jury found for the defendants.</p> <p>2. Because questions of law are to .be decided by the court —and if this verdict stands the jury will be permitted to be judges of law, as the court instructed the jury that the law was with the plaintiffs.</p> <p>3. Because the action was properly brought, and the verdict should have been for the plaintiffs.</p> <p>4. Because the finding was capricious, and against law, evidence and the charge of the court.</p>

BEFORE A COMMISSIONER OF SPECIAL BAIL, AT CAMDEN, NOVEMBER, 1855. Application for benefit of Prison Bounds Act.

BEFOEE WAKDLAW, AT SPABTANBUBG-, EXTEA TEEM, SEPTEMBER 1855. The report of his.Honor, the presiding Judge, is as follows: “ Trover for a slave Prudence. “ The plaintiff lives in Rutherford County, North Carolina, ten miles or more beyond the Court House; is old, and has, for twenty years, been so crippled with rheumatism that he cannot walk without help ; has twelve children, who have all left him, and has about twelve negroes.

<p>Where, in an action upon a sealed note given for a patent, the defence is that the payee, who represented himself to be the assignee of the patentee, had no title, the onus of showing the want of title is on the defendant.</p>

<p>BEFOBE -WABBLAW, J., AT FAIBFIELB, FALL TEEM, 1855.</p> <p>A sufficient statement of this case will be found in the opinion delivered in the Court of Appeals.</p>

BEFORE MTJNRO, J., AT CHAMBERS, AUGUST, 1855. Certain slaves of the relators were prosecuted by one Caraway, and found guilty by a magistrate and freeholders, of harboring three runaway slaves in the employment of the prosecutor. The harboring, it was alleged, took place in what is known as the Kingstree beat, where the defendants and their owners resided, and the trial was had in the Indiantown beat, both beats being in Williamsburg district.

BEFORE MUNRO, J., AT NEWBERRY, FALL TERM, 1855. The report of his Honor, the presiding Judge is as follows : “ This was an action of assumpsit to recover the price of a cotton gin, which the plaintiffs alleged the defendant had contracted to purchase from them, through their agent, John M. Young. “ The testimony of the agent, Young, which was taken by commission, was as follows : That the' plaintiffs are employed in the manufacture of cotton gins, and reside in Atlanta, in…

BEFORE WARDLAW, J., AT LAURENS, EXTRA TERM, AUGUST, 1855. ■ The report of his Honor, the presiding Judge, is as follows : “ Trespass to try titles. “ The plaintiff claimed under a sheriff’s sale made by virtue of a fi. fa. against Andrew J. Culbertson; the defendant, Y. J. Culbertson, claimed by force of a conveyance from Andrew J. Culbertson older than the fi. fa. against Andrew J. Culbertson, and the question in the case was, whether the transaction in which the title was…

<p>Where a horse is stolen in one district and is carried by the thief into another and there sold, the indictment, under the statute, for horse-stealing, may be in the latter district.</p>

<p>BEFORE O’NEALL, J., AT SUMTER, SPRING TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ In this case, which was an action of trover for a negro woman named Clarissa and her child, by the will of Mary Eees, dated 6th February, 1832, Clarissa was bequeathed to her granddaughter, Sarah Huger Mayrant, now the wife of the plaintiff, Wert Adams. There was no dispute that this woman once belonged to the testatrix, who died in Mobile* in 1838.</p> <p>“The late Orlando S. Eees, and Maria P. Mayrant, the mother of Mrs. Adams, were named as executor and executrix of the will. It was proved in common form in 1838. Neither the executor or executrix qualified. According to the statement of the defendant, John Mayrant and wife, the executrix Maria P., and the executor, Orlando S. Eees, defendant’s father, had settled the legacy between themselves and thereby transferred this woman to Orlando S., in payment of a large debt which John Mayrant owed to him. He said they had treated the will as a nullity.</p> <p>“ The defendant admitted he had the woman and child in possession and refused to give her up on a demand made by the agent of the plaintiffs.</p> <p>“ On closing the plaintiffs’ case, a motion was made for a nonsuit, on the ground that there was no assent of the executor and executrix to the legacy.</p> <p>“I thought that the course pursued by the executor and executrix, in treating the property as that of John Mayrant, and the executor, Orlando Rees, receiving and holding it as his own, dispensed with the necessity of proving an assent.</p> <p>“ It appeared from the defence that the defendant was in possession as executor of William J. Rees,- deceased, to whom the negro came by bequest or descent from Orlando S. Rees, deceased. The case was submitted to the jury. They found for the plaintiff six hundred and twenty-five dollars.”</p> <p>The defendant appealed, and now renewed his motion for a nonsuit on the grounds:</p> <p>1. Because the plaintiffs proved no title, possession or right of possession in them, sufficient to maintain their action.</p> <p>2. Because the property sued for being a, legacy, bequeathed to the plaintiff, Sarah Huger Adams, the plaintiffs offered no proof of the assent of the executors, or acceptance by the legatee.</p>

BEFORE MTJNRO, J., AT RICHLAND, FALL TERM, 1855. The report of his Honor, the presiding Judge, is as follows: “ In taxing the cost for the plaintiff who recovered a verdict in the above case, the clerk of Court, allowed to witnesses who reside out of the district but attended Court under subpoena, mileage, at the rate of one dollar for every thirty miles, going and returning, of the distance between the rqgidence of the witness, and Columbia, where the case was tried, in…

BEFORE WHITNER, J.; AT MARION, SPRING TERM, 1855. Suit, by attachment. William E. Richardson and Andrew J. Richardson were summoned as garnishees and failed, to make return. Judgment against the absent debtors was entered 28th October, 1854; and at this Term the plaintiffs moved for leave to enter judgment against the garnishees.

<p>BEFOEE WAEDLAW, J., AT UNION, FALL TEEM, 1855.</p> <p>A full statement of this case will be found in the opinion delivered in the Court of Appeals.</p>

<p>BEFORE O'NEALL, J., AT DARLINGTON, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was an appeal from the decision of the Ordinary on the probate in solemn form of law, of the will of Henry Welch, deceased.</p> <p>“ The appellants are the executor, devisees and legatees: the appellee is the testator’s only lineal descendant — his grandson. The paper propounded bears date five years before testator’s death. It was written by John S. Huggins, the executor, and, with the appellee, a residuary legatee.</p> <p>“ It is unnecessary to report the volume of evidence given in the cause. The sole question in the case is, whether the propounded paper was sufficiently attested under the statute by three credible witnesses ?</p> <p>“ The paper has on its face the names of three persons as witnesses, — Absalom Oliver, Edwin Jordan, and James A. War, — the two first recollected the execution and proved their attestation in the presence of the testator. Oliver recollected that James A. War who, as well as himself, was a marksman, also signed as a witness in the presence of the testator. Edwin Jordan, who alone wrote his name, did not recollect James A. War signing — he remembered he was sent for. At the burial of the deceased, he said he would swear there were but two witnesses, himself and Oliver.</p> <p>“James A. War, who now lives in Alabama, attended the trial, and proved that he was called on by the deceased to witness a paper, which he did not remember to have seen him sign. Oliver he said witnessed the paper with him, and John S. Huggins wrote both names as they made their marks, (this appeared to be the fact, the names were in Mr. Huggins’ handwriting.) He did not recollect whether Jordan was there or not.</p> <p>“ There was much testimony confirmatory of the fact,' that the paper propounded was according to the testator’s previously expressed wishes.</p> <p>“ There was proof by one witness that the testator expressed a wish that he had settled the appellee before he went to Georgia ; if he had his own way he woul'd, he said, have done it; and that his property came by his first wife, the grandmother of Henry. The appellant, Elizabeth Welch, the widow of the deceased, was heard to say, that James A. War was not there the day the will was “written.” She said to the appellee with w'hom she was talking, that he ought to have had the property; that she did not enter the suit: he said it was entered Betsey Welch vs. Henry Welch: she said “surely not.” She is a very old woman.</p> <p>“ The case was submitted to the jury with very full explanations of the law. My charge closed after one o’clock, P. M., and as I was about leaving my seat to go to dinner, the foreman, Mr. William Evans, asked me if the jury should agree before I returned, could they disperse, get their dinner, and bring in their verdict at two o’clock, P. M. ? I said to him certainly? This course was so usual that I did not think to say to the bar, ‘ Gentlemen, are you willing that this verdict should be brought in after dinner ?’ The jurymen, in a few moments, dispersed, got their dinner, and were in their places at two o’clock, P. M.: they were called over; their verdict ‘for the will’was received: no objection was made at that time, (Friday,) nor until Saturday morning. If there was anything in the objection, it came too late.”</p> <p>Henry Welch, appealed and now; moved this court for a new trial on the grounds :</p> <p>1. That in the probate of a Will in due form of law, the requirements of the statutes are satisfied with nothing less than the independent and separate proof by each attesting witness, of the signature, or the testator’s distinct acknowledgment of his signature; and such proof was not furnished in this case.</p> <p>2. That James A. War, one of the alleged attesting witnesses, failed to prove the signature o'f the supposed testator, or his acknowledgment of his signature to the paper propounded as a will.</p> <p>3. That a constructive acknowledgment of signature to a will by a testator to an attesting witness, is not enough, though the other two witnesses swear positively to the signature; and the witness, War, in this case, proved nothing more than such constructive acknowledgment.</p> <p>4. That the jury after retiring to their room to' consider of their verdict, separated, without consent of parties, in 'the absence of the Presiding Judge from the Court House, and returned an unsealed verdict.</p> <p>5. That the verdict of the jury is contrary to law, and unsupported by the evidence.</p>

<p>AVbere plaintiff has a right, under contract, “of occupying” a house, he cannot, although not in the actual possession, maintain case against a wrong-doer for pulling the house down — his remedy is trespass.</p>

BEFORE WITHERS, J., AT BARNWELL, FALL TERM, 1855. The report of his Honor the presiding Judge is as follows : “ The general character of this case is familiar to the Appeal Court under the name of Gideon Uvans vs. William Weeks.

BEFOBE WABDLA'W, J., AT ABBEVILLE, JULY, EXTBA TEB3VI, 1855. The report of his Honor, the presiding Judge, is as follows: “ Case to recover damages for a man slave, named Dabney, alleged to have been hired by the plaintiff to the defendant, and to have been killed whilst in the employment of the defendant, through his negligence or improper use.

BEFORE MUNRO, J., AT KERSHAW, FALL TERM, 1855. The report of his Honor, the presiding Judge, is as follows : “ The prisoner was jointly indicted with one William Adkins, for the murder of a negro boy, named George, between six and eight years of age, the property of the prisoner. Adkins had not been arrested, so that the prisoner was tried alone.

<p>Under tbe Act of Congress prescribing the mode in which the records and judicial proceedings of one State shall be proved in another, whether the attestation by the Cierk is in proper form, can be known only by the certificate of the Judge. His certificate, that it is “in due form” is conclusive.</p> <p>In the attestation of the Clerk, there was a blank where the word “record,” or “judicial proceedings” should have been inserted: — Held, that the attestation was sufficient.</p> <p>Held, that the words in the attestation, “we have caused to be exemplified,”- was a sufficient declaration that the copy was complete.</p> <p>It need not appear from the exemplification that the judgment has not been reversed on appeal. That, if it be true, is a matter for the defence to show.</p> <p>Held, that it was no objection to the exemplification, that the several pieces of paper exhibiting it, were united by a string secured beneath the wax on which was the impression of the seal.</p>

BEFORE GLGYER, J., AT BEAUFORT, SPRING TERM, 1855. The report of his Honor, the presiding Judge, is as follows : “ The action was assumpsit to recover the value of a negro named Isaac.

IN THE CITY COURT OF CHARLESTON,-TERM, 1855. The report of his Honor, the Recorder, is as follows: “ This case came up on a motion in behalf of the plaintiff for a rule against the sheriff, to show cause why he had not made the money on th e fi.fa. in the above case. “ It appears from the return of the sheriff — and there is no dispute about the facts — that on the 23d day of January, 1855, a fi. fa. in the case of James Hanahan vs. MoLeish, was satisfied by the defendant,…

BEFORE WITHERS, J., AT CHARLESTON, SPRING TERM, 1855. The report of his Honor, the presiding Judge, is as follows : “The defendants were “Express” Carriers; and on the 19th March, 1852, at Charleston, gave a paper in writing, acknowledging that they had received, in good order from M. L. Jacobson, at Combs & Co’s office, one trunk marked I. S., care of Isais, New Orleans, Louisiana. “ The plaintiff sued for the value of trunk and contents, as having never been delivered…

<p>Where a common carrier limits his liability by special contract, the onus of showing not only that the cause of the loss is within the terms of,the exception, but also that there was no negligence, is on him.</p>

<p>BEFORE WITHERS, J., AT C0LLET03ST, FALL'TERM, 3855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The plaintiff’s action was for malicious arrest. It was in evidence, that Lewis O’Bryan was a candidate for the House of Representatives of the State Legislature, for St. Bartholomew’s Parish, and was elected; . that there was much excitement attending the canvass; that the defendant, and others, who were included in a warrant for surety of the peace, was opposed to the election of O’Bryan; that he had spoken strongly against O’Bryan’s pretensions, but not in a way to lead to the idea that he designed any personal violence; that on the 11th October, 1854, O’Bryan caused to be issued, upon the usual affidavits for surety of the peace, warrants against sundry persons, the plaintiff among the rest; that on the next morning, October 12th, O’Bryan, being advised that the parties he dreaded were in an attorney’s office, in the hands or under supervision of a constable, told the Magistrate that he was willing the .plaintiff should be released, as he (the plaintiff) had satisfied him he need not dread him; that .the plaintiff, when informed of this by the Magistrate (who said he did not think he had a right to release him), declined to be released, and went to jail with the party, and remained there some hours ; was brought thence with the party before two Magistrates, after candle light, and the plaintiff then, in obedience to the judgment of the Magistrates, executed his own recognizance, without surety, to keep the peace for the space of one month towards O’Bryan. It appeared further, that plaintiff was reputed to be of peaceable character, but (as witness expressed it) he was a man of “pluck.”'</p> <p>“ Upon this case a nonsuit was moved for on various grounds:</p> <p>“ 1. Because there was no proof that the man who took the affidavits and issued the warrants was in fact a Magistrate. I was not affected by this — because I would have heard that proof.</p> <p>“. 2. Because the confinement in jail was quite voluntary on the part of plaintiff, since O’Bryan desired him to be released; and it was contended, that the allegation of imprisonment embraced only the confinement in jail, and not custody by the constable. I was of opinion, that there was a sufficient allegation of the cause of action, as arising out of the constable’s custody, for nothing was alleged as to arrest.</p> <p>“ 3. Because there was no proof whatever of malice, or of want 'of probable cause; and in this view I concurred, and granted the motion for nonsuit. I could see nothing to support the allegation of malice, and a want of probable cause, either or both; the evidence of plaintiff’s general peaceable character, seeming to be alone relied on for that purpose. That I thought wholly insufficient to raise any presumption of necessary elements of the action, and I could perceive nothing else in evidence to be added to it. An appeal goes up upon the accompanying grounds.”</p> <p>The plaintiff appealed, and now moved this Court to set aside the nonsuit, on the grounds:</p> <p>1. Because the absence of probable cause was shewn (as far as such proof could be made) by the good and peaceable character proved for plaintiff, and it ig respectfully submitted, that the absence of probable cause, in a case of this sort, being proved, malice may be presumed therefrom, and that this ought to be left to the jury to presume.</p> <p>2. Because there was enough in the evidence, from which malice might be inferred, either by the judge or jury.</p> <p>3. Because the nonsuit was in other respects contrary to law.</p> <p>cited 2 Saund. PI. & Ev., 658, et seq.; Braveboy vs. Ooelcfield, 2 McM. 274; Morgan vs. Livinqston, 2 Rich. 585 ; 1 Hill, 82; Williams vs. Taylor, 19 Eng. C. L. R. 50.</p> <p>cited Ford vs. Kelsey 8? Deas, 4 Rich. 365 ; Horn vs. Boone, 3 Rich. 307 Fulmer vs. Harmon, 3 Rich. 576 j 2 Stark. Ev. 913, n.</p>

<p>The Act of Congress of 1852, requiring certain "steam vessels to have on board a pilot for the voyage, has not superseded the laws of the different States relative to pilots for ports and harbors : Such pilot for the voyage must, therefore, on entering a port or harbor, give place to a local pilot.</p>

<p>BEFORE G-LOYER, J., AT CHARLESTON, FALL TERM, 1855.</p> <p>A full statement of this case will be found in the opinion delivered in the Court of Appeals.</p> <p>The action is brought upon the fraud, not upon the contract. Fraud and damages constitute a cause of action. Pasely vs. Freeman,-1 Smith L. C. 148 ; Ghisolm vs. Gadsden, 1 Strob. 220; Sough vs. Svans, 4 McC. 169; Sussel vs. GlarJe, 7 Cra. 69; Upton vs. Vail, 6 Johns. E. 182 ; Wardell vs. Davis, 13 Johns. E. 325; Barney vs. Duey, lb. 226; Morrell vs. Golden, lb. 400. The argument for defendant amounts to this, that if you can connect the fraud with an informal contract, for instance, with a parol contract for the sale of land, the informality of the contract purges the fraud. The present case is taken out of the statute by part performance. What constitutes part performance to take a ease out of the statute, is seen in Thompson vs. Scott, 1 McC. Ch. 36 ; 2 Story, Eq. § 762; Massey vs. Mcllvain, 2 Hill, Ch. 426; Anderson vs. Ohielc, Bail. Eq. 118; and where part performance would justify the Court of Equity in decreeing specific performance, there an atcion on the case at law will lie.</p>

<p>IN THE CITY COURT OF CHARLESTON, MAY TERM, 1855.</p> <p>The report of Ms Honor, the Recorder, is as follows: — ■</p> <p>“ This was an action of covenant against defendant upon his written guaranty, under seal, of the performance of certain covenants contained in a lease from the plaintiff to one James Burke.' For the more clear understanding of the question raised on the argument of the ease, and the decision made by the Court, I annex a copy of the lease itself, and of the defendant’s guaranty on the back of the same.</p> <p> “‘State of South Carolina. </p> <p>This Indenture, made the sixth day of July, Anno Do-mini, one thousand eight hundred and fifty-three, between Thomas N. Gadsden of the first part, and James Burke, the lessee, of the second part, Witnesseth, that the said Thomas N. Gadsden hath granted, bargained, and leased, and by these presents doth grant, bargain and lease unto the said James Burke, all that two and a half story wooden dwelling-house, situated on the North side of Queen street, nearly opposite Friend street, in the City of Charleston.</p> <p>To Have and to Hold the said above described premises, with the appurtenances, unto the said James Burke, his heirs, executors, administrators, and assigns, for the term of one year from the date hereof; yielding and paying therefor the quarterly sum of one hundred and twenty-five dollars, the first quarter ending on the sixth day of October, Anno Domini, one thousand eight hundred and fifty-three; And the said James Burke, his heirs, executors, and administrators, doth hereby covenant and agree, to and with the said Thomas N. Gadsden, well and truly to pay the above reserved and stipulated rent, at the time above limited; and also the same sum or rent on the day next after the day on which every subsequent quarter shall end. And it is further stipulated, that before the expiration of the term for which the said premises are leased, the said tenant shall give one quarter’s notice of his intention to vacate the aforesaid premises. And it is further stipulated and understood, by and between all the parties to these presents, that if it should so happen-that one quarter’s rent shall at any time be in arrear and unpaid, then the above-mentioned term shall immediately cease and determine; and it shall be lawful for the party of the first part to re-enter into and forthwith repossess all and singular the above granted and leased premises. And it is lastly stipulated, that the said James Burke shall not, without the consent of the lessor, convey this lease, or let the said premises to any other person; and shall leave the same in like good order, unavoidable accidents and ordinary wear and tear excepted.</p> <p>his</p> <p>JAMES ¡x! BURKE. [seal.]</p> <p>mark.</p> <p>THOMAS N. GADSDEN, .[seal.]’</p> <p>Signed, sealed, and delivered,</p> <p>in presence of</p> <p>John B. McClure, .</p> <p>C. C. Cambridge.</p> <p>“ On the back of the lease is endorsed the following—</p> <p> “ ‘ State of South Garolina, Charleston District. </p> <p>Eor value received, I hereby guarantee the faithful performance of the covenants within contained on the part of James Burke; also the punctual payment of the within stipulated rent at the times it falls due, unto Thomas N. Gadsden, his heirs, executors, administrators, or assigns. Witness my hand and seal, this sixth day of July, A. D. 1853.</p> <p>T. L. QUACKENBUSH. [seal.]’</p> <p>Witness, J. B. McClure.</p> <p>T. McNamara.</p> <p>“ If it were not for encumbering the case by too much and perhaps unnecessary matter, I would here subjoin a copy of the plaintiff’s declaration in full. But being a part of the record, the Court will refer to it, if required.</p> <p>“ The defendant filed a general demurrer, in which the plaintiff joined issue, and the case was argued before me upon the pleadings. I sustained the demurrer, and the plaintiff has appealed. It will be perceived, upon looking over the declaration, that the plaintiff’s cause of complaint or action against the defendant upon his guaranty, is the non-payment of rent by Burke the lessee for a portion of a second year, after the original term of one year, as stipulated in the lease, had ended. In this connection, it may„ be proper to call attention to the bill of particulars filed with the declaration, which is as follows :—</p> <p>‘James Burke, To T. N. Gadsden, Dr.</p> <p>1854, July 6, To one quarter’s rent due 6th October,</p> <p>1854,........$125 00</p> <p>October 6, To two months and fourteen days rent to 20th December, 1854, . . . 102 73-</p> <p>$227 73’</p> <p>“ It will be seen clearly that all the allegations in the declarations are intended to show the liability of the defendant upon his guaranty, (which was for one year,) to extend to an occupation of the tenant, by permission of his landlord, for another and ensuing year. This point is too clear against the plaintiff, and has been so decided. It was argued that the plaintiff would have a good cause of action against the defendant, (the guarantor,) upon that special covenant in the lease, ‘that before the expiration of the term (one year) for which the premises, were leased, the tenant should give one quarter’s notice of his intention to vacate the premises.’ This is alleged by the plaintiff not to have been done by the lessee — but the plaintiff alleges no damages to have resulted specially from this breach of the covenant, as for instance the loss of hiring the premises to another tenant by reason thereof. On the contrary, the plaintiff shows that by his implied consent, or by implication of law, the lessee was allowed to hold over into another year, which was in fact a renewal of the lease as between himself and the lessee, and the lessee thereby became liable for the entire year’s rent for the second year. But not so as to the guarantor — as far as the payment of rent was concerned, it is clear the guarantor incurred by his contract no further liability in behalf of. the lessee, than for the stipulated term. I do not think more need be said to present clearly to the Court of Appeals the true question involved, and the grounds of my decision.”</p> <p>The plaintiff appealed on the grounds :</p> <p>1. Because the defendant, by his guarantee, covenanted for the faithful performance, on the part of the tenant, of all the' covenants contained in the lease.</p> <p>2. Because the tenant, failing to give three months notice of his intention to quit at the expiration of the term, was in for another year: and so being tenant from year to year, could not be ousted without three months notice from the landlord, before the end of the succeeding year.</p> <p>3. Because the breach of covenant happened within the term, and the liability of the tenant and his guarantor for subsequent rent, was a necessary consequence thereof.</p> <p>4. Because the guarantee of the defendant was a general guarantee of the lease, and of such consequences as would follow a breach of any of its covenants — and was such a guarantee as would subsist and continue at least for the succeeding year.</p> <p>5. Because, it is respectfully submitted, his Honor erred in sustaining the demurrer.</p>

BEFORE GLOYER, J., AT CHARLESTON, FALL TERM, 1855. This was an application by the South Carolina Railroad Company for the appointment of commissioners to assess the value of two lots of land. The petition is as follows : The State oe South. Carolina.

<p>H. and T. purchased goods from D. Á, and offered him their joint note for the amount of the purchase, payable “ to the order of D. A.” at four months. D. A. declined to keep the note — requiring “additional security,” and thereupon the note was taken off by H. & T. and afterwards returned with the name of O. D., endorsed thereon. Held, that C. D/s undertaking was not necessarily joint; and a separate action was maintained against him.</p>

<p>BEFORE GLOYER, L, AT CHARLESTON, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judg'e, is as follows :</p> <p>“ A rule was granted against T. Pinckney Huger, President of the North-Eastern Railroad Company, to shew cause why a writ of Mandamus should not issue, commanding said Company to remove obstructions placed in New-Market and Var-dell’s Creeks, which are alleged to be navigable streams, and, in the passage of said Creeks by their railway, to proceed according to the directions of the Act incorporating said Company.</p> <p>“The North-Eastern Railroad Company was incorporated in 1851, (12 Stat. 129,) “ for the purpose of constructing a railroad from the city of Charleston, to such point on or near the Wilmington and Manchester Railroad, West of the Great Pee Dee, as may be selected,” &c. By an Act passed in 1854 the Company was permitted to extend their road within the corporate limits of the city of Charleston. Within these limits the road crosses New-Market and Vardell’s Creeks. The fifth section of the Act provides that ‘ for crossing rivers or other courses the said Company may, at' their option, either construct viaducts, but so as not to obstruct the navigation of such rivers or water courses, or proper wharves and landing places, and use steam-boats or other suitable boats.’</p> <p>“Erom the affidavits submitted, it appears that New-Market and Vardell’s Creeks run from Crooper River up to the high land on the Meeting-street road, which is a public highway; that in them the tide ebbs and flows, and that schooners, sloops and other vessels, have passed beyond the points where the railway crosses. It also appears that the width of New-Market Creek was about seventy-five feet, and Vardell’s Creek forty-five feet; that in both creeks the width has been contracted to fifteen feet, and that the depth of both at low water has been reduced two feet, ‘ by an accumulation of mud or sand caused’ by the erection of said road. The rails of said road pass over these creeks, obstructing their navigation by schooners and sloops, and the respondents have failed to comply with the provisions of the Act incorporating their company.</p> <p>“ To the rule served on them the respondents have answered:</p> <p>“ 1st. That the said streams are shallow streams, recognized as private.</p> <p>“ 2d. That access to the said creeks is cut off by marsh at every point, and there are no landings — a condition incompatible with their use as a public highway.</p> <p>“ 3d. That the creeks are neither public highways nor navigable streams.</p> <p>“ 4th. That they have not been so used as to fall within the provisions of the Statute law of South Carolina.</p> <p>“ 5th. That if the respondents have committed a nuisance, Mandamus is not the proper remedy.</p> <p>“ Our first inquiry is, are these creeks embraced within the Act of incorporation ? The ‘ rivers or othér water courses’ mentioned in the fifth section of the Act, are such as are navigable; and if New-Market and Vardell’s Creeks fall within this description, the obstruction of them is in direct Violation of the Company’s charter.</p> <p>“ The General Assembly has not defined what constitutes a navigable river. Some streams, from which the natural obstructions have been removed, are by legislative enactments declared to be navigable, and the owners of mills erected on streams which had been used for the passage of boats, flats, or rafts of timber or lumber, have been required to provide slopes by which such boats, &c., may pass. (6 Stat. 268.) This Act does not embrace navigable streams, but such as have been used by those interested in the lumber or timber business— £ little streams and rivers that are not a common passage for the public.’ Their pbstruction is not prohibited, provided it existed before their use by boats, flats, or rafts of timber and lumber.</p> <p>“ The water in New-Market and Yardell’s Creeks flows and reflows, and they are, therefore, strictly arms of the sea. In them are no natural obstructions, and they have been navigated by schooners sloops and other vessels, and seem to-be such water courses as the Act contemplates, and the obstruction of the navigation of which it forbids. Lord Hale (Pe Jure Maris, Cap. III.) says: There be some streams or rivers that are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the King’s people. Again, there be other rivers, as well fresh as salt, that are of common or public use for carriage of boats and lighters.” Prima facie, a stream where the water flows and reflows, and where no obstruction exists to the free navigation by schooners, sloops and other vessels, is publici juris, without reference to its use. If, however, it were necessary to establish a use by the public, to give character to these water courses, the evidence shews that wood and brick have been transported in vessels at points beyond the line of railway. To these points, therefore they must be regarded as navigable streams, and are embraced within the provisions of the fifth section of the Act. If the respondents’ road has obstructed the navigation of these creeks, which the Act forbids, such obstruction is a public nuisanee. The width of both has been contracted and their depth of water diminished, and the viaduct which crosses them prevents their navigation by any vessels with' masts. This is certainly such an obstruction of the' navigation as is expressly provided against. The mode of crossing navigable rivers or water courses is left to the option of the company, provided, they shall not thereby interpose obstacles to the navigation.</p> <p>“ The last inquiry suggested by the answer of the respondents is, whether a writ of mandamus is the proper remedy. The removal and abatement of a public nuisance is generally effected by indictment, which affords, in most cases, an ample and a satisfactory remedy; but it does not follow that a mandamus will not be issued where an indictment may be sustained. The cases referred to in the argument, show that the remedy by mandamus has been adopted to compel a corporation to do its duty to the public and to individuals. In its form, the writ commands the performance off some act or duty therein specified, the execution óf which is consonant to right and justice. (3 Steph. Com. 681.) Although railways have become important for public travel and transportation, yfet they are private corporations enjoying large privileges, and should strictly comply with the provisions of their charters. The public is interested in their successful operation, and their usefulness should not be impaired by any unnecessary restraints; but they must not be permitted to abuse the powers granted, and should be held to a strict performance of the duties enjoined. If the nuisance be abated by a removal of the track of the road or the piles which sustain it, the public would suffer in the temporary delay in destroying the connexion: whereas, the remedy by mandamus does not destroy the road or delay its operations, but commands the company to fulfil its duty to the public, by pursuing the directions prescribed by their charter for crossing rivers and water courses.</p> <p>“The remedy by mandamus has been often used in England, in cases not unlike the present; The Eastern Counties Railway Company obtained an Act of Parliament for making a railway from London to Norwich and Yarmouth, and it appearing doubtful if the Company intended to extend their road to the points indicated, a mandamus was issued, calling upon them to complete the whole line of road, pursuant to the provisions of the Act. {Reg. vs. Eastern Counties Railway Company — 1 vol. Railway and Canal Cases.) Lord Denman, O. J., delivering the judgment of the Court, says : — “ This interference is occasioned by inferior Courts or persons refusing to proceed in some course prescribed by law, and not in consequence of any misapprehension or error in their course, provided they have entered upon it. And accordingly, if it had appeared that the Company were substantially complying with the terms of their "undertaking, there would have been at once a satisfactory answer to the application.” The writ, in this case, was issued at the instance of stockholders; but it has also been granted to command a railway company to increase the height of a bridge erected by them over a public carriage road, according to the provisions of their Act of Parliament. (Tapp, on Man. 243.) The remedy by mandamus will embarrass the Company less in the progress, completion or use of their road, than an indictment to abate and remove the obstructions complained of. The result of an indictment would be the punishment of the Company by fine, and this might not afford to the public the relief which is sought, to which they are entitled, and which the Railroad Company are required by the provisions of their charter to afford. It is no objection to this mode of relief, that the relators have another remedy, especially when that remedy is not so convenient, complete and beneficial. (Tapp, on Man. 24.)</p> <p>“ It is, therefore, ordered that a writ of mandamus issue, commanding the North-Eastern Railroad Company to construct viaducts, or proper wharves and landing places, and to use steamboats or other suitable boats, at their option, for crossing New-Market and Vardell’s Creeks, so as not to obstruct the navigation of said creeks; and that they remove forthwith the obstructions placed by them in said creeks.”</p> <p>The defendants appealed, and moved this Court to set aside the order granting the mandamus, on the ground, inter alia.</p> <p>3. That if the respondents have committed a nuisance, mandamus is not the proper remedy.</p> <p>cited Bac. Ab. Mandamus; Tapp, on Man. 243, 5, 20; Bac. Ab. Highway; G-oldsly’s case, 2 Grat. 575; People vs. Brooklyn, 1 Wend. 318; State vs. Bruce, 3 Brev. 264; State vs. Watson, 2 Sp. 97; Carey vs. Brooks, 1 Hill, 365; Ang. on Wat. Courses, 159, 214; Warren vs. Webb, 1 Taunt. 379.</p> <p>cited Bac. Abr. Mandamus; Grant on Corp. 159; 2 M. & S. 30; 2 B. & Aid. 616; Tapp, on Man. 243, 244.</p>

<p>Wbero a promissory note, given for a share in the stock of an incorporated company, was endorsed by the payee to the president of the company by his individual name, with letters attached intended to designate him as such president, and the note was afterwards treated as the property of the corporation : — Held, That it might be given in evidence as discount in a suit by the drawer against the company.</p> <p>Where a note intended to be transferred to an incorporated company, is endorsed to the president by name, with letters attached intended to designate him as president, the note may be sued on by the Company in its corporate name :— Semble.</p>

BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1855. Held: that any promise subsequently made by the defendant to pay the note, if the consideration was for money lent or advanced for gaming or betting, would not sustain the plaintiff’s action. “ The verdict was for the defendant.” The plaintiff appealed, and now moved this Court for a new trial, upon the following grounds: 1.

BEFORE G-LOYER, J., AT BEAUFORT, SPRESTG TERM, 1855. The report of his Honor, the presiding Judge, is as follows : “ This was an action on the case for a libel, which consisted of an obituary, announcing the plaintiff’s death, and published in the Charleston Mercury.

BEFORE, GLOYER, J., AT CHARLESTON, PALL TERM, 1855. Sum. pro. on a physician’s bill. Plaintiff offered in evidence a parchment purporting to be a diploma from a Homoeopathic Medical College in Pennsylvania, and an exemplification of the Act of Pennsylvania incorporating the College. His Honor held that the diploma, without some .proof, of authenticity, was not admissible in evidence; and a nonsuit was ordered. The plaintiff appealed. cited 1 Phil. Ev. 376; 7 Serg. & R. 313.

<p>BEFORE WITHERS, J., AT WALTERBOROUGH, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The action was upon a warranty, executed by the defendant upon the Bd day of March, 1852, by which he covenanted that the slave, Peter, sold to Gadsden, on that day, was “ sound and healthy in all respects.”</p> <p>“ The evidence was, that the slave was taken sick in a few, days after the purchase, and on the day he was taken sick, or the day following, Hr. Cobb was called to visit him On the 8th April, 1852, Hr. Thomas Y. Simmons was called into consultation, but found Peter in a dying state, and he did die that day. A post-mortem examination was made, at which Dr. Simmons was present, and he said the disclosures were, chronic affections of the liver, its adhesion to the diaphragm, effusion of the pericardium of the heart, the heart surrounded by a false membrane. ‘ I judge,’ said he, ‘ Peter must have been diseased for a length of time; how long, it is hard to state, I consider him to have been unsound on the 3d of March, 1852. I consider adhesion of the liver to the diaphragm as evidence of previous disease, it may exist without impairing the general functions of the system. It is not considered a fatal disorder, chronic hepatitis is the effect of previous acute inflammation, no.t necessarily a disease fatal and incurable. It is impossible to say of what particular disease Peter died, most probably of disease of the heart, though in such a complicated condition of the system, all must contribute somewhat to dissolution. He was beyond medical treatment when I saw him. Cannot say whether I could have arrested the disease when first attached.’</p> <p>“ The deposition of Dr. Michael was also adduced by the plaintiff, who also made a post-mortem examination of Peter’s body; he said, ‘there was chronic inflammation around the heart, no disease of the heart itself. The other organs were healthy, nor was any appearance of the internal organs that could sufficiently account for his death. I think he was unsound, judging from appearances at the post-mortem examination. I think he labored under an affection of the membrane around the heart; I cannot say of how long standing, it might have been three weeks or a year, nor can I say whether Peter was sound or not on the 3d of March,-1852. I think the liver did not endanger his life, and the affection of that was not beyond the reach of medicine; stomach and intestines appeared healthy; the heart itself was healthy. I think, but cannot positively affirm, that Peter died of pericarditis; the disease at his death was beyond remedies, but I cannot say what would have been their effect if applied at the inception of the disease.’</p> <p>“Both of these doctors said, ‘a man is unsound who has an organic affection existing, whether curable or incurable.</p> <p>“ Dr. Stokes, called for the defendant, said, that inflammation of the lining membrane of the heart, in an acute form would soon produce death, if not arrested; that blood-letting and blistering, reducing the system might cure it. In a chronic form, one might last a good many years, and suffer more or less, though in that form incurable. He said Peter seemed to be quite healthy in 1850, he then belonged to Mrs. Walker, of whom he was the family physician.</p> <p>“ Two other witnesses testified to the apparent robust health of Peter up to a period near the time of sale — one having known him for ten or twelve years;' and had him employed in helping him to roll logs, within two months before he was sold, and he worked well at that heavy labor, never complained, seemed perfectly healthy, and very valuable. The other had him on hire for 1851, and sent him home the last of the year. He performed good service throughout the year, except for a day or two in the summer, when he had a cold with slight fever removed by simple remedies.-</p> <p>“ The foregoing is a sketch of the material testimony:—</p> <p>“ I did not place this case upon Stephens and Ohappell. I alluded to that case as indicating a class of causes brought into Court that was not unsoundness — that is to say, a class where a physician would undertake to say that the seeds of an inflammatory fever were existing before a sale. I also told them, that predisposition to disease was not unsoundness; but the jury was expressly instructed, that the rule to control this case was this, to wit: Was there a disease of a vital organ existing in a formed state at the time of'the sale?. And in regard to what the doctors have advanced as a definition, I stated that I did not feel warranted in adopting their words, “whether curable or incurable,” for I thought, if a disease of any sort was easily removed, and by neglect or maltreatment, it was allowed to prove fatal, this should not be accounted unsoundness — and I give as illustration, what was usually called a cold; it might affect some vital organ, and be maltreated or. neglected, or subjected to reckless exposure, and thus produce consumption, or other fatal form of disease; but if easily removed in the inception, I should not think that such- affection even of a vital organ, unsoundness.</p> <p>“The material testimony having been carefully recited to the jury, they returned a verdict for the defendant.”</p> <p>The plaintiff appealed, and now moved this Court for a new trial on the grounds :</p> <p>1. Because it is respectfully submitted, that his Honor erred in charging the jury, that the disease of the slave Peter, must be proved to have been in a formed and developed state, at the time of purchase; whereas it is submitted, that if the seeds of the disorder existed, at the time, it was sufficient; and this being a chronic disease of the pericardium and liver, did not fall within the rule laid down in Stephens vs. Ohappell.</p> <p>2. Because his Honor erred in instructing the jury, that the unsoundness of a slave can only exist, in cases where the disease' is incurable, in direct opposition to the testimony and professional opinion of Drs. Thomas Y. Simons and Michael.</p> <p>3. Because the verdict was directly against the testimony and opinion of Dr. Thomas Y. Simons, the attendant physician, and unsupported by law and all the facts of the case.</p> <p>cited Stuckey vs. Glyburn, Chev. 188; Schoolbred vs. Timrod, 1 Bay, 324; Venning vs. Gantt, Chev. 87; Bell vs. Jeffries, 13 Ired. 356; Oliph. on Horses, 33 Law Lib. 29-, 38, 45.</p> <p>cited 1 Bail. 648.</p>

BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1855. The report of his Honor, the presiding Judge, is as follows : “ This was an action of debt on a lost bond, alleged to have been made by Bird M. Pearson and Edward Croft, and payable to Ellen W. Cook. In the declaration, the plaintiff is styled assignee of Ellen W. Cook, but in the allegation setting out the assignment to the plaintiff, no assignor is named.

BEFORE MÜNRO, J., AT CHAMBERS, 15th JANUARY, 1856. A sufficient statement of the facts of this case will be found in the opinion delivered in the Court of Appeals.

BEFORE G-LOYER, J., AT CHARLESTON, FALL TERM, 1855, The report of his Honor the presiding Judge is as follows : “ This was an action within the summary process jurisdiction, on a merchant’s account. The goods were sold and delivered to one McCormick.

<p>An instrumont in the form of a promissory note by which defendant promised to pay plaintiff one hundred and fifty dollars, for the hire of “negro fellow, G.;” “said negro to be furnished with the usual quantity of clothing,” is not a promissory note within the Statute of Anne.</p> <p>Plaintiff declared upon such an instrument as a promissory note, and also in indebitatus assumpsit for the hire of G.: — Held, that having failed upon the first count, because the instrument was «not a promissory note, he might fall back and recover upon the second, using the instrument as evidence.</p>

<p>IN THE CITY COURT OP CHARLESTON, PEBEUARY TEEM, 1855.</p> <p>The report of his Honor, the Recorder,,is as follows:</p> <p>“ This was an action on the case, the nature and character of which will best appear from the- declaration; the first count, in which is subjoined, ‘For that whereas the said defendant, on the fifteenth day of March, in the year of our Lord one thousand eight hundred and fifty-one, at the city of Charleston, in the State aforesaid, and within the jurisdiction of this Court, intending to deceive and defraud the said plaintiff, did wrongfully and deceitfully advise and persuade the plaintiff to purchase and buy from one Anna Miller, one negro man slave named or called Joe, for the sum of seven hundred and seventy-five dollars, and then and there for that purpose did falsely affirm and represent to the said plaintiff that the said slave called Joe was then and there sound, healthy, and free from all diseases ; and did thereby deceitfully induce and persuade the said plaintiff to become the purchaser of the said slave for the price aforesaid. And the said plaintiff avers that, confiding in the said affirmation and representation of the said defendant, and believing the same to be true, and not knowing to the contrary thereof, he did afterwards, to wit, on the day, in the year, and at the place aforesaid, purchase and buy of and from the said Anna Miller, the said slave called Joe, and paid to the said Anna Miller, for the said slave, the said price or sum of seven hundred and"seventy-five .dollars : Whereas, in fact, the said slave was not, at the time of the said purchase, and at the time of making the said affirmation and representation, by the said defendant, sound and healthy; and he, the said defendant, well knew the same, to wit., at the place, and within the jurisdiction and State aforesaid: but on the contrary thereof, the said slave called Joe was sick and unsound, as he, the said defendant, very well knew, with a fatal disease called and known as consumption of the lungs, by reason of which the said slave became, and was of no use or value to the said plaintiff. And so he, the said defendant, deceived the said plaintiff by his false and deceitful affirmation and representation aforesaid, and thereby he has been imposed upon, and has wholly lost the said slave named or called Joe, and the said price or sum of money so paid by him as aforesaid, to wit., the said sum of seven hundred and seventy-five dollars ; and thereby also the said plaintiff was then and there put to great expense of his monies, amounting in all to a large sum of money, to wit., the sum of dollars, in and about the feeding, nursing, and taking care of the said slave, and for his medical and other necessary attendance, to wit., at the place, and within the jurisdiction and State aforesaid.’</p> <p>“ There were several other counts in the declaration, varying somewhat in the statement of the facts alleged, upon which the plaintiff founded his complaint or right of recovery; if necessary the record may be referred to, but they were all essentially in spirit and substance the statement of the same grievance complained of in the first count of the plaintiff’s declaration. The defendant pleaded not guilty. The written and oral proofs introduced in the cause were substantially as follows: Among'the most essential and important proofs introduced by the plaintiff in the cause, and upon which he relied, was the following written statement or certificate, signed by the defendant, and reference to which will be found to be subsequently made in the testimony of the witnesses. The following is a copy :</p> <p>“ ‘Joe is an excellent bread and cake baker; he has been brought up to the business from a boy; he has not been out of the 'Miller family. Mrs. Miller is now out of the business, and sells him to change the investment. Lowest cash price, $800.</p> <p>(Signed,) Geo. Kinlock,</p> <p>Agent for Mrs. Miller.’</p> <p>“ The following testimony was subsequently introduced:</p> <p>PLAINTIFF’S PROOFS.</p> <p>“Mr. Qhafee, sworn. — Knows bill of sale dated March 15th, 1851, signed Anna Miller, and attested by the defendant as a witness. Slave was named Joe, warranted sound. Witness knew Mrs. Miller; was a connection of defendant; defendant married Mrs. Miller’s sister; she lived with defendant; Mrs. Miller had owned Joe for eight or ten years. He belonged to Mr. Miller in his lifetime; was a baker by trade. Mrs. Miller had three or four negroes; they died before Mrs. • Miller; Mrs. Miller died about three years ago; left no negroes that witness knows of. Joe was addicted to drinking. Mrs. Miller had, sometime before her death, hired Joe to the Josephs, who had the exclusive care of him. Joe was for a short time in the employ of defendant; it was known to all the family that Joe was a drunkard. Witness never heard that Joe had a hemorrhage at any time. Mrs. Miller hired Joe to the" Josephs because she could not manage him.</p> <p>“ Cross-examined. — Witness married defendant’s daughter; was intimate in the family; was there frequently; often advised the sale of Joe; put him in Ryan’s hands. Witness regarded the boy as sound, except his lad habit of drinking, which might have occasioned his death at any time. Defendant is a resident of the city.</p> <p>“'Here the testimony of Dr. S. H. Deas, taken by commission, was offered in evidence; the substance of his testimony, as taken from my notes, was as follows : He attended Joe on May 2d, 1851; first attacks ; hemorrhage of the lungs ; was unsound at this time; no hope of recovery; disease was of longstanding; unsound and valueless.; charged about twenty or twenty-one dollars.</p> <p>“ Gross-examined. — Don’t know that Joe was addicted to drinking ; would not attribute this disease (hemorrhage of the lungs) to drinking.</p> <p>“ B. M. Boyhin, a ‘second witness, examined under the same commission, testified in substance as follows: He is a physician — attended Joe (disease was hemorrhage of the lungs); he supposed this was not the first attack; disease was of a-dangerous character; chances against this case; did not regard Joe as sound.</p> <p>“ Gross-examined. — The habit of drinking would not necessarily occasion this disease.</p> <p>“ Witness, Wm. B. Campbell, examined under the same commission. — Was conductor on the Railroad; saw Joe in Camden ; saw first attack in April, 1851, of hemorrhage ; saw another attack afterwards in the same month.</p> <p>“ Gross-examined. — Joe was carried back to Charleston; witness is plaintiff’s son ; did not know Joe’s habit as to drink.</p> <p>“ Caroline- McKenzie, examined under the same commission, testified as follows. — Knew Joe in 1851; Joe was unsound ; coughed incessantly ; threw up quantities of blood. Joe was carried back to Charleston.</p> <p>“Mr. Chaffee, recalled. — Proves signature of Mr. Kinlock (defendant) to a paper certifying to the soundness and character of Joe (no date).</p> <p>“ Cross-examined. — Josephs had Joe for several years, at twenty dollars a month.</p> <p>“J. JF. Kennedy, sworn. — Mr. Kyan gave witness the above paper; witness gave this paper to plaintiff; plaintiff came down and bought the negro ; Joe went to Camden with the plaintiff; witness saw Joe when he returned, he looked badly; plaintiff offered him back; defendant refused to receive ; (Mrs. Miller was out of town;) plaintiff said he bought him from defendant.</p> <p>“ Cross-examined — Thinks plaintiff*knew the boy; plaintiff worked with Mr. Miller some nineteen years ago; brought Joe down on Rail-road.</p> <p>“ In Refly. — Plaintiff insisted defendant was liable to him as principal.</p> <p>“ John M. Ryan, sworn. — Sold Joe to plaintiff; bill of sale filled up by witness; Mr. Chafee put Joe in his hands; wanted witness to sell him, said he belonged to Mrs. Miller; referred witness to Mr. Kinlock. Kennedy wanted a certificate; witness applied to defendant, who gave him the paper. Mr. Hall wrote the paper in defendant’s office, and the defendant signed it; the sale was made on the faith of this paper. In two or three weeks witness received notice from plaintiff of Joe’s hemorrhage. Joe was brought to town; Oakes sold him, witness had declined to sell him. Account of sale June 19th, 1851; net sales $49 79. Joe was bought by Mr., Hogan.</p> <p>“ Cross-examined. — Mr. Campbell saw the negro, recognized him as one he had known. Joe was apparently strong, and ' healthy. Witness carried the bill of sale to defendant; defendant agreed to take the reduced price. Defendant got the bill of sale signed by Mrs. Miller; was informed there was a breach of the trestle work on the Rail-road; plaintiff told witness he had been delayed some time, (perhaps a day,) in getting over the swamp. Witness judged from Joe’s appearance that he was sound.</p> <p>11 In Reply. — Defendant received the money. After the transaction had conversation with defendant, advised that defendant should take him back, if unsound; defendant remarked the money could not be returned, as a portion of it had been spent.</p> <p>u Gross-examined. — Did not consider defendant as the owner of Joe, while in his hands for sale.</p> <p>“ B. Bross, sworn.' — Knew Joe, witness was working with John Miller when Joe was; afterwards with Robert Miller; knew him while at Josephs; knew him from boyhood ; was the property of John Miller, afterwards of Mrs. Miller; knew him to be of bad habits, a confirmed drunkard; was not sound, had a cough; was much swollen, regarded as unsound; in 1850 or 1851, was in the guard house at one time; plaintiff may have worked with John Miller twenty years ago, when Joe was sound; Joe was frequently laid up; thinks his unsoundness was apparent.</p> <p>“ Gross-examined. — Joe was a good cake baker; negroes employed in this business are mostly in the bake-house; let them off on Saturday night; knew when plaintiff worked with Robert S. Miller, Joe was then a mere boy; wages of a good cake baker should be about $20 per month.</p> <p>' “ Patrióle Hogan, sworn. — Bought a negro in 1851 from Oakes, was very sickly when he bought him; his name was Joe; gave $60 ; witness sold him afterwards; bought by R. S. Miller; he died afterwards.</p> <p>“JR,. S. Miller, sworn. — Knew Joe; witness bought Joe from Hogan, he died ten days after; worked with witness 'about twenty years ago; over twenty'years since plaintiff worked with Mr. Miller.</p> <p>“ Gross-examined. — Has seen Joe in the streets, appeared to be sound ; negroes work day and night at this business. John C. Miller died about, twenty or twenty-one years ago; Mrs. Miller bought Joe in out of the estate. In 1851 negroes were high; Joe, if sound, would have been worth $1500. J. C. Miller died in 1837, Joe sold about a year afterwards. Joe was loorth, nothing when witness bought him from Hogan; bought him from sympathy; he died shortly afterwards.</p> <p>“ Mr. Ohafee, recalled. — Tax return of Mrs. Miller, 13th Eeb. 1850, signed Geo. Kinloek, agent; Joe is named in the return; witness purchased Maria from Mrs. Miller; Mrs. Miller applied the purchase money to pay a debt. George was conveyed to a daughter of Mrs. Miller; Mrs. Miller had but one child.</p> <p>“ Gross-examined. — Told Ryan he could recommend Joe as a first-rate cake baker; knows Miss Miller had some $1000 or $800 left her by a Mrs. Russell; Mrs. Miller was indebted to a Mr. Gates to a large amount. Witness would not have warranted Joe — unsound.. Once bought a negro, warranted sound, who was a drunkard. Would have united in the paper signed by defendant; they are precisely the instructions given by witness to Ryan. Witness had no doubt that defendant must have known the habits and character of Joe. ■-</p> <p>“ Here the testimony closed.</p> <p>“Among the grounds of appeal, hereto annexed, is one complaining that the Court refused to grant the defendant’s motion for a nonsuit. It is apparent that, at all events, the Court could not have done otherwise; as at least, upon the allegations in the declaration, and the proofs submitted, there was enough to go to the jury, if not to warrant a verdict for the plaintiff. It is true, that the plaintiff’s counsel, in his argument to the jury, (as it appeared to me,) forbore to press upon their consideration the, entire force of the allegations .against the defendant; it was clear to my mind that in that aspect of the case, it resolved itself into a mere question of fact, as to the fraudulent intention of the party, which it was the province of the jury to decide; he alluded to the well-known probity of the defendant, and disclaimed any intention of a pre-conceived or premeditated fraud. Thence, he argued that, as it. appeared by the evidence, the plaintiff had purchased the negro Joe upon the faith of the written representation of the defendant, professedly acting as, and signing himself as the agent of Mrs. Miller, which representation turned out to be untrue, the defendant was nevertheless liable as for a false misrepresentation, in a matter in which he was indirectly concerned, although he may not have intended an intentional fraud. I was very much disposed to regard the transaction in this point of view: and, as suggested in the grounds of appeal, may have instructed the jury, that even in this aspect of the case, upon the proof before them, they would be authorized to find a verdict for the plaintiff. The jury may have taken this view of the matter, and I presume it is most likely they did so, in finding their verdict. At the same time, the responsibility of the defendant, upon the allegations contained in the record, and the proofs before them, were not formally or legally withdrawn from their consideration.</p> <p>“ The question of the soundness or unsoundness of Joe, spoken of in the first ground of appeal for a new trial, was distinctly and entirely, without the least prejudice in any opinion on the part of the Court, submitted to the jury. As to the third ground, I did regard the defendant, acting professedly as the agent of Mrs. Miller, and signing the written representation of Joe’s character as such agent, as equally bound to disclose all facts within his knowledge, touching the soundness of Joe, as though he had been the actual vendor himself.”</p> <p>The defendant appealed, and now moved this Court for a nonsuit.</p> <p>Because, it is respectfully submitted, that his Honor erred in refusing the nonsuit, there being no proof of a fraudulent iptent to deceive or injure the plaintiff, but the defendant was .admitted by the plaintiff and his counsel to have acted without any intention to deceive.</p> <p>And failing in that motion, then for a new trial:</p> <p>1. Because his Honor charged the jury, that there was no doubt of the unsoundness; and, it is respectfully submitted, his Honor should have referred this question to the jury.</p> <p>2. Because his Honor erred in charging the jury, that it was sufficient, if the representation was false, and it was not necessary for the representation to be fraudulently made.</p> <p>3. Because his Honor erred in charging the jury, that if the defendant knew of the habits of the negro, and omitted to disclose them, he was as much liable as vendor would be to the vendee, in an action brought against vendor to recover for unsoundness.</p> <p>4. Because his Honor charged the jury, that if the plaintiff was misled by the representation of the defendant, without any intent to deceive, and (such intention was admitted by plaintiff to be wanting,) the defendant, in this form of action, was liable as the vendor.</p> <p>5.Because his Honor charged the jury, that the representation of the defendant as to Joe’s capacity in his employment, and the omission to state his knowledge of his habits, made him equally responsible as the vendor.</p> <p>6. Because his Honor charged the jury, that if the plaintiff was misled by the certificate of the defendant, without any preconceived intention on the part of the defendant to deceive, the plaintiff was entitled to a verdict.</p> <p>7. Because his Honor charged the jury, that although the defendant at all times acted as agent, and was at all times so known to the plaintiff, yet he was liable to the defendant as principal.</p> <p>8. Because his Honor erred in charging the jury that knowing the habits of the negro, the omission to put the same in the certificate, without any fraudulent intent, made him responsible to the plaintiff.</p> <p>9. Because the charge of his. Honor was in' other respects contrary to law, and the verdict contrary to law and evidence.</p>

<p>An obituary notice of one living, if conceived and published falsely and maliciously, is a libel.</p>

<p>IN THE CITY COURT OF CHARLESTON, OCTOBER TERM, 1854.</p> <p>" This was an action of assumpsit on a promissory note, and an open account. The following is 'a copy of the note:</p> <p>$297 70-100. Charleston, S. C., March 26, 1852.</p> <p>Six months after date, we promise to pay to the order of Townsend, Crane & Co., at their offiee, two hundred, and ninety-seven and seventy cents, value received.</p> <p>William B. Henry,</p> <p>Budd C. Wall.</p> <p>Residence, Cook’s Law office, Ellert Co., Ga.</p> <p>Endorsed,</p> <p>Rec’d March , 1853, one hundred dollars.</p> <p>The following are copies of the letters referred to in the report of the Recorder.</p> <p>Ellert County, Ga., Dec. 13th, 1853.</p> <p> Messrs. Townsend Crane Co. </p> <p>Gentlemen :—</p> <p>I received your letter of last month, with account of last year and this year enclosed. In account of March, 1853, you have me charged with six pieces of prints, 197 yards, at 102 cents per yard, which amounts to $20 69-100 ; and I only received 2 pieces, 65 1-2 yards, which, at- 102 cents, will amount to $6 56-100, which leaves a balance of $14 13-100 in my favor. I informed you of the mistake, immediately after the reception of the goods; and Mr. Corny told me, when he was in Ellert last summer, that he would have it corrected. If you will correct the account, and send me the amount, I will remit you the money. You will please write to Mr. Wall for the balance of last year’s note. He is not interested in the store, but was to give me the first stock of goods. I will try and have the money ready for the goods bought of you this fall, by the time the note is due, and I shall endeavor to pay cash for the goods I buy hereafter. I am, gentlemen, with much respect,</p> <p>Yours, &c.,</p> <p>W. B. Henry.</p> <p>Charleston, S. C., Dec. 16th, 1853.</p> <p> Mr. W. B. Henry, Oooles Law Office, Cfa.: </p> <p>Yours 13th inst. is received, and remarks noted. We regret that so large an error should have occurred in your bill, but will make the deduction as requested. Below we give a statement, showing the amount due on your account to this date ; also the balance due on your note signed by Mr. Wall, which please collect and remit to us as soon as received. By so doing you will confer an obligation. This arrangement will suit us much better than to send the note up, or to write to Mr. Wall for the money, as we look to you for its payment.</p> <p>Yours truly,</p> <p>Townsend, Crane & Co.</p> <p>The letter from the plaintiffs was accompanied by a statement showing the amount due on the account and note, with interest calculated to 30th December, 1853, to be $297 37.</p> <p>The report of his Honor, the Recorder, is as follows:</p> <p>“ This was an action by plaintiffs to recover the amount of an . alleged indebtedness on a note and account. There was no dispute on that part of the case. The defence set up was payment. This payment was alleged to have been made by the defendant, (living somewhere in the interior of Georgia,) having remitted the money by mail. The testimony of two or more witnesses, taken by commission, showed beyond dispute that the money, after being carefully counted by third persons, was enclosed in a letter directed to the plaintiffs in Charleston, and put in the mail at Cook’s Law Office, in Georgia. It was •alleged on the part of the plaintiffs, that the letter never came to hand, and it would appear the money had been lost, or had miscarried. The whole point of the controversy turned upon the authority of the defendant to remit money by mail. This again depended upon the terms of a certain letter from plaintiffs to defendant. It was a letter in reply to a previous one of the defendants to them, apprising them that he had the money in hand for them; (a part of the amount appears to have been the proceeds of a certain note of another party, of which the defendant was either a joint-maker, or rather surety.) After the plaintiffs had been informed as above stated, they wrote the letter referred to. The only important part of the letter consisted in the use of the terms in the way of direction to the defendant to remit. There was considerable evidence on the trial, upon what might be called the general habit, custom, usage, and understanding of our merchants in Hayne street, as to the validity of a remittance by brail from a debtor living in the country. The opinion most strongly expressed on this subject, was perhaps by Mr. Banks. He said that ‘ where the debtor lived in a neighborhood offering no Banle facilities, or means of procuring a bill of exchange or draft on Charleston, he should consider a general or unqualified direction to remit, as a direction to remit by mail.’ It appeared clearly that Cook’s Law Office was a place such as he mentioned, and therefore for the most part, if not entirely out of the reach of bank facilities, or the chance of obtaining bills of exchange or drafts. I had no doubt in my own mind, that a general direction of the creditor in Charleston, to his debtor living in the interior, under the circumstances stated in this case, to remit, without giving any other or special direc-. tions as to the mode, must of necessity, as it were, be construed as a direction to remit, in the only available way, to wit., by mail. The grounds of appeal do not call in question the correctness of the above opinion, which I expressed to the jury in my instructions, but they turn upon what I conceived matters of no importance to the issue between the parties.' I am supposed to have given various instructions to the jury, in regard to notes payable at a particular place, and as stating that there was no difference between notes payable generally, and notes payable at a particular place. I was not called upon to lay down mere abstract principles, in regard to the distinction between notes payable generally, and those payable at a particular place. If the plaintiffs’ counsel had qualified his statement by saying what I did say, and which he may have forgotten, ‘ That in regard to this point of remittance by mail, and payment of a debt past due, it was manifest there could be no distinction between a note payable generally, and one payable at a particular place, as Charleston,’ it would be more correct. I take it as clear, upon the law of contracts» that when the contract, whether to pay generally or at Charleston, (as alleged in this case,) had been broken, in regard to the enforcing payment, or receiving payment from the debtor, they were alike. The validity of -the payment here depended upon the direction of the plaintiffs to the defendant to pay in a particular mode, and I suppose that it will hardly be contended, that it is not competent to the creditor, after the non-payment of a note at a particular place, to direct or agree to a payment at another place, or in another mode. It is evident, in this view of the case, that some of the grounds taken by the plaintiffs’ very zealous counsel, require amendment and qualification, to be consistent with my real statement of the law. As for 'example, the third ground only requires to have added to it these words, ‘ if the creditor so agrees or directs.’ The jury found a verdict for the defendant.”'</p> <p>The plaintiffs appealed and now moved this Court for a new ' trial, on the grounds:</p> <p>1. Because it is respectfully submitted, that his Honor erred in charging the jury that a note and account payable at a particular time and place after the time appointed for their payment, was payable at the residence of the debtor, and that it “ made no difference if the debt was payable in Charleston or Georgia, after it was past due.”</p> <p>2. Because his Honor charged the jury that a contract by a debtor to pay a certain sum at a particular place, was discharged as to the payment at the place specified, by his failure to pay at the specified time.</p> <p>3. Because his Honor erred in charging the jury, that the sending of the money by mail by a debtor, without its receipt by the creditor, was the payment of a debt payable at a place different from the debtor’s residence.</p> <p>4. Because his Honor erred in charging the jury, that the letter of the 23d of December of the plaintiffs, was an order to remit by mail, and that said letter waived the payment' in Charleston.</p> <p>5. Because the verdicts were in other respects contrary to law and evidence.</p>

<p>IN THE CITY COURT OF CHARLESTON, MAY TERM, 1855.</p> <p>The report of his Honor, the Recorder, is as follows:</p> <p>“As I understand this case, (all the facts in which, have been submitted to a jury, upon two several occasions,) it is simply this, the plaintiffs merchants in Baltimore, sold to one Bingley, then being in Baltimore, several casks or hogsheads of brandy, which under his (Bingley’s) direction, were shipped to the defendants, Auctioneers and Commission Merchants, in Charleston. The usual bills of lading for these goods, were signed by the masters or authorized officers, of the Schooner Maryland. They were consigned directly to the defendants. Previously to the arrival of the goods, the defendants, had received from Bingley, by mail, one of the bills of lading, upon the faith of which, it would appear, they had made advances to Bingley, to the amount, or nearly so, of the value of the goods. Bingley’s name did not appear in the bill of lading, that is to say, the goods, were consigned, not to Bingley or his order, but directly to the defendants, without any notice, or intimation from the plaintiffs to the defendants, in regard to any supposed right of property or interest of the plaintiffs, in the shipment, previously to its arrival.</p> <p>“Upon the arrival of the goods, and after part delivery of the same, the agent, of the Schooner Maryland, received instructions, not to deliver the same, to the consignees. He communicated his instructions to the defendants, they claimed the right of possession to the goods shipped to them, as the consignees and as having already advanced to the party, from whopi they had received the bill of lading, and knew nothing of the plaintiffs in the transaction. The goods were afterwards sold at auction, on account of Bingley, and the proceeds were placed to the credit of his account with the defendants. The plaintiffs now claim to recover in this action, the amount of the sales (either in whole or in part) from the defendants as accountable to them, and not to Bingley. The gist of their claim, appeared to depend upon the allegation, that as between themselves and Bingley, the sale being a conditional one, and the terms of the sale not complied with, that the possession of the bill of lading, was no absolute transfer of the property, either to him, or to the persons to whom, under his (Bingley’s) directions, the goods were consigned. It was-not pretended by the plaintiffs-, that the defendants acted otherwise, than in the utmost good faith, in the entire transaction. Their complaint seemed rather to be, that they had been deceived by Bingley, in the sale, and that he had not complied with the conditions as understood between them. As between Bingley and the plaintiffs, the condition of the sale referred'to, appeared to be cash, before or on delivery of the goods; the cash was not paid, but the goods were shipped by the plaintiffs, under the direction of Bingley, to the consignees, (the defendants) in Charleston, and received by them as already stated. This case has been already before the Court of Appeals upon two previous occasions; — upon the first', trial, the Court below, granted a nonsuit, (see 7 Bichardson, page 383) the Court of Appeals set the nonsuit aside, and ordered a new trial, the cause was retried, and under the view of the case expressed by the Court of Appeals, the jury found a verdict for the defendants; this was also appealed from, and for the reasons assigned in the opinion of the Court of Appeal (see 8 Bichardson, page 130) a new trial was again ordered; that trial was had, in May Term, 1855, and taking the opinion of the Court of Appeals previously expressed in the same case, as settling all the legal principles involved, the jury under my instructions as to the law, (they being the judges of the facts,) found a verdict for the defendants. The testimony upon all these trials has been substantially the same, except upon the last, in which was introduced on the part of the defendants for the first time, the testimony of R. M. Alexander, in regard to an interview between Mr. Corkey, either one of the plaintiffs, or the acknowledged agent of the firm. I regarded his testimony as important, (although by no means conclusive,) and entitled to great consideration. The jury, consisting in part of some of the most intelligent merchants in Charleston, familiar with the ordinary mercantile transaction of business, found a verdict for the defendants. I have received a notice of appeal from the plaintiffs’ attorneys, which will be hereto annexed. I will also endeavor to subjoin a statement of the evidence, written and oral, which were introduced upon this (as yet) last trial of the cause of Graff Co. vs. B. A. P. Caldwell, if I should find it necessary or proper to do so. The following are the grounds of appeal served on me by the plaintiffs’ attorneys, which I suppose dispenses with any further representation, or detailed statement of the case, than the grounds of appeal properly call for.</p> <p>“ Grounds of appeal.</p> <p>“ His Honor, the Recorder, will please take notice, that a motion for a new trial in this case, will be made before the next ensuing Court of Appeals, on the following grounds, viz.:</p> <p>“1. Because his Honor erred in charging the jury that R. & A. P. Caldwell were in law, not responsible upon the bill of lading to Graff & Company, and were therefore not bound to account to them for the proceeds of the goods sold by them as auctioneers.</p> <p>“2. Because his Honor in commenting on the opinion expressed by the Court of Appeals, and reported in 8 Rich, page 133, erred in stating that the doctrine of stoppage in transitu was involved in this case, and was the only pretext for the action of Graff & Company, and that there being no insolvency alleged in this case, the right could not be exercised.</p> <p>“3. Because his Honor erred in charging the jury that the possession of the bill of lading by Bingley, was a constructive delivery of the goods to Bingley, and that plaintiffs were bound to, rebut that presumption.</p> <p>“ 4. Because his Honor erred in charging that the sale as shown by the letter of Graff & Company, was not a conditional sale, but was rendered unconditional by the delivery of the bill of lading to Bingley.</p> <p>“ 5. Because the Court did not present to the jury one single aspect of the case in which the plaintiffs could by possibility recover.</p> <p>“ 6. Because in other respects, the verdict was contrary to law and evidence.</p> <p>Brown & Porter,</p> <p>Appellants’ Attorneys. •</p> <p>“ In answer to the first ground of appeal, I have to state, that although in giving a history of the case, or in commenting upon it, I must have necessarily said that I had originally doubted the plaintiffs’ right of recovery against the defendants, upon the simple force and effect of the mere bill of lading to them, unaided by any extrinsic evidence, yet, as the Court of Appeals had decided otherwise, and that the defendants were accountable to the plaintiffs prima facie at least, and bound to show and submit their defence to the jury, that point should be regarded as settled and beyond question.</p> <p>“ As to the second ground of appeal, I may have remarked to the jury, that I thought the plaintiffs’ claim against the defendants in this case, was founded upon, or more or less connected with, the exercise of the right of stoppage in transitu ; but in all my instructions to the jury, I called their attention to the cardinal principles upon which the Court of Appeals had decided the cause should turn. Among these, the main one seemed to be the fact (if established), of an actual sale, and a delivery, either real or constructive, of the goods in question, to Bingley in Baltimore.</p> <p>“ As to the third ground, I did think under the circumstances, and so instructed the jury, that, as between the plaintiffs and the defendants, the actual shipping of the goods on board the schooner Maryland, consigned to the defendants, under the direction or sanction of Bingley, and a bill of lading therefor given to Bingley, amounted to, if not a real, at least, a constructive delivery to Bingley, and that the defendants were, under the circumstances, fully warranted in regarding and treating with Bingley as the real owner.</p> <p>“ As to the fourth ground of appeal, I have to state, the argument of the plaintiffs’ counsel, upon this branch of the case, was, that it appeared, from the letter of Graff & Co., to the .defendants, that the sale of Bingley was a conditional one, to wit: a sale for cash, and that the cash not having been paid, the sale was either void or voidable as to them ; and therefore no right of property was acquired by Bingley in the goods sold. However this may have been as between the original parties, vendor and vendee, even though a fraud had been practised, not to say a mere noncompliance, with the conditions of the sale, it could have no effect upon the position of third parties without notice, who had dealt in good faith upon the usual and legal force and effect of the evidence of his title to the goods. I failed to discover anything in the law which forbade a vendor to waive if he pleased, any specific or precedent condition in the contract of purchase, by an actual or even constructive delivery of the goods to the vendee, at least, as affecting the interest of third parties dealing with him as the true owner.</p> <p>“On the subject of a conditional sale, the defendants’ counsel cited the case of 'Dupre vs. Harrington, Harper’s Law Reports, page 391. I do not see the application of that case to this. In that case it was a part of the contract of sale, and understood between the parties, that the article sold, although the possession of it was delivered to the vendee, should nevertheless be subject to a certain pledge in the way of mortgage, and liable to be reclaimed by the vendor, upon the failure on the part of the vendee to comply with the condition of the sale; he sold to a third party, but it appeared that he was entirely cognizant of the condition of sale, had full notice of the facts, and was therefore to be regarded as standing precisely in the position of the original vendee. .</p> <p>“ As to the fifth ground of appeal, I admit that I failed to perceive, and therefore did not suggest to the jury, any possible aspect of the case, in which I could consider the plaintiffs entitled to recover ; this may have been my misfortune, or if a fault, one I submit to the Court of Appeals for their correction.</p> <p>“I have already referred to the testimony of Mr. Alexander, introduced for the first time on this last trial af the cause ; he testified to an interview, between a Mr. Corkey, one of the firm, or admitted to' be the person referred to in the letter of the plaintiffs to the defendants. This was after the misunderstanding had occurred between the plaintiffs and the defendants. The goods had been sold, and the proceeds placed to the credit of Bingley. I give the substance of his evidence below :</p> <p>“ ‘ H. M. Alexander, sworn. — A man by the name of Corkey, representing the plaintiffs, came to the house of the defendants, in regard to this matter, in the winter of 1852, in December, shortly after this business occurred with Bingley about this brandy. Corkey said he had called on Caldwell, to see about this brandy — represented himself as one of the firm — said that they had sold Bingley the brandy, and he (Bingley) had represented himself as the agent of Caldwell — they considered Bingley as a d — d rascal, and they would make him pay for the brandy — there was discussion between the parties — the result of which was, Mr. Corkey expressed himself satisfied with Messrs. Caldwell’s correctness in the transaction, and that they were not liable to them, but would be glad to open a more extended business.</p> <p>“ ‘ Oross-examined. — Brandy was received in November— there was some hindrance in the delivery of the brandy.</p> <p>“ ‘ In reply. — Parties were talking about half an hour— knows Bingley — would have advanced at this time — defendants retained the proceeds.’</p> <p>“ A copy of the bill of lading sued upon, and one of the three offered in defence, may be hereto annexed, if thought necessary by the counsel in the cause; also a copy of the letter of the plaintiffs to the defendants, which seems to be material to the decision of the matter involved. I have not at present before me, nor been furnised with copies of either document, but think they have been in the previous recorded history of the case, sufficiently stereotyped.</p> <p>“ Outside of the grounds of appeal, with which I have been served, I do not think it improper to state, that assuming upon the facts, there might be a balance in the hands of the defendants, arising from the sale of the brandies, over and above their advances to Bingley, upon that shipment, yet that the plaintiffs were not entitled to recover in this form of action, whatever amount.may have remained in their hands, after their reimbursement of the advances made to Bingley. That supposing this to be the fact, (of which the jury were to judge upon the evidence submitted to them,) the result would be, that the defendants having no privity of contract with the plaintiffs, in regard to the goods in question, or their proceeds, would simply stand in the relation of debtors to Bingley, and the funds in their hands liable to be attached by the plaintiffs, in Bingley’s absence, as attaching creditors.”</p>

<p>Where a guarantor is sought to he charged upon a letter for future credit to be given to a third person, it must be shewn, as a general rule, that notice of the acceptance of the guaranty, was given.</p> <p>Where the proposition to guaranty came from the plaintiffs, and there were other circumstances from which knowledge of the acceptance might be inferred:— Meld, that it was error to nonsuit the plaintiffs; and the case was sent back that the jury might decido whether the guarantor had notice.</p>

BEFORE WHITNER, J„ AT HORRY, SPRING TERM, 1855. The report of his Honor, the presiding Judge, is as follows : ' “ This was an appeal from the clerk’s taxation of costs. The action was trespass quare elausum fregit, and the plaintiff had recovered a verdict of five dollars. It was said and conceded that defendant had, under the general issue, relied on title, and that in fact on the trial of the case the title of the parties to the land was contested.

<p>Where an action against the master or employer is founded upon the imputed negligence of the servant or agent, the latter is an incompetent witness for the defendant; for? in case of recovery, the record will he evidence to show the quantum of damages in an action against the witness by the master or employer.</p>

<p>Where one having been cited by the Ordinary to produce the will of a deceased person neglects to produce it, he may be indicted under1 the 18th Sect., of the Act of 1839, although the Ordinary did not proceed, as the Act empowers him to do, <e to issue against him process, as for contempt, and to imprison him until the will be delivered up.”</p> <p>Where there are several counts in an indictment, and a general verdict of guilty, judgment will not be arrested if there be one good count to which the evidence applies.</p> <p>•Nor will a new trial be granted for such cause, if the different counts relate to the same offence, and the same punishment would be awarded, no -matter under which count defendant was found guilty.</p>

BEFORE GLOYER, J„ AT FAIRFIELD, SPRING TERM, 1856. Held: jointly or in common with others. “ The verdict was for the plaintiffs and thirteen dollars damages.” The defendant appealed, and now moved this Court for a new trial, on the grounds : 1.

BEFORE GLOYER, J., AT UNION, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows : “ The action was covenant, and the following statement of the facts agreed to and submitted by counsel, will fully explain the case.

<p>BEFORE GLOYER, J., AT CHESTER, SPRING TERM, 1856.</p> <p>This was an action on the case for a libel.</p> <p>The declaration is as follows:</p> <p>“ Samuel Hamilton the defendant, was attached to answer to Edward Wilson, the plaintiff, of a plea of trespass on the case, and so forth: and, thereupon, the said plaintiff by McAliley and McLure, his attorneys, complains against the said defendant, for that the said defendant, heretofore, to wit: on the first day of September, in the year of our Lord, one thous- and eight hundred and fifty-four, at Chester Court house, in the district of Chester, and State aforesaid, did wickedly, maliciously and falsely compose, write and publish, of and concerning the said plaintiff, a false, wicked and malicious libel, in the words following, to wit: £ To de big faced blacksmith,’ (meaning the, plaintiff,)‘and his stretch-worm overseer, the infant, Peter Dickey, hog killer.’ ‘Now Ed.’, (meaning the said plaintiff,) ‘ when you go to bed, think how mean you have grown.’ ‘You’ (meaning the plaintiff) ‘borrow my tools and keep them as your own.’ (thereby meaning that the said plaintiff was guilty of dishonesty) ‘ My still-yards, augurs and horse phlemes, and other things too tedious to name.’ ‘ If you ’ (meaning the plaintiff) ‘ would think of them you surely would think shame.’ ‘ The wicked borrow but the same do not pay.’ —‘ Whereas, the righteous mercy show and gives his own away.’ -‘Now, if you” (meaning the plaintiff) ‘get any more of my tools, you’ll get them after night.’ ‘ And if you have a title to them I think it will not be right.’ ‘Now run away the stretch worm, your crop is nearly grown.’ ‘Now drive the red animal home and let him go until his own.’ ‘ The neighbors need not laugh, nor yet set up their snouts.’ ‘ You have got done with Billy Blue by feeding on sassifras sprouts, sprouts sprouts, sprouts.’ — ‘ Sassifras sprouts, as Blue. said himself.’ ‘ P. S., for postcript; Two setting chairs out of pocket by the said firm, Ed.’ (meaning the said plaintiff) ‘ and stretch worm.’ Thereby meaning that the said plaintiff had been guilty of stealing and was a dishonest man.”</p> <p>[Here followed a second count upon a letter written by the defendant to the plaintiff, also alleged to be a libel. The declai'ation concluded as follows:]</p> <p>“ By means of the committing of which said several grievances by said defendant as aforesaid, the said plaintiff hath been, and is greatly injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace, with and amongst all his neighbors, and other’ good and worthy citizens of this State, inasmuch that divers of these good neighbors to whom the integrity and innocence of the said plaintiff in the premises were unknown on occasion of the said grievances by the said defendant as aforesaid, from thence hitherto have suspected and believed, and still do suspect and believe the said plaintiff to have been and to be a person guilty , of dishonesty and fence burning, and hog killing, and of falsehood, and have by reason of the committing of said grievances by the said defendant as aforesaid, from thence hitherto have wholly refused and still do refuse to have any dealings or intercourse or discourse with him, the said plaintiff, as they were before used and accustomed to have and otherwise would have had. And the said plaintiff has been by reason of these premises otherwise greatly injured, to wit: at the place aforesaid, on the day and year, aforesaid. To the damage of the said plaintiff, five thousand dollars, and therefore he brings his suit, and so forth.”</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ This was an action on the case to recover damages for the publication .of an alleged libel.</p> <p>“ The witnesses for the plaintiff proved that the paper was in the hand-writing of the defendant, and was seen by two persons in the summer of 1854, about 9 or 10 o’clock, A. M., tacked on the plaintiff’s shop, which is on a highway, and that Andrew Wiley took it down. Hugh Brigham saw the defendant write it, who said, that he allowed to have it put on plaintiff’s shop door, but not.by himself. Defendant once handed a paper similar to this to David McWilliams.</p> <p>“ It is not necessary to report the remainder of the evidence, which is not pertinent to the questions made by the appeal.</p> <p>“The defendant’s counsel moved for a nonsuit on the ground, that there is no averment in the declaration connecting the defamatory paper with the plaintiff, and showing that he comes within the description; and also, admitting that there is a sufficient averment,, there is no proof to sustain it.</p> <p>“The nonsuit was ordered. Where the person is so ambiguously alluded to, it appeared to, me that it should be averred distinctly that the libel was published of the plaintiff, and that a suggestion by innuendo, as was contended in argument, was not sufficient.</p> <p>“The plaintiff has appealed on the annexed grounds.”</p> <p>The plaintiff appealed, and now moved this Court to set aside the nonsuit on the grounds:</p> <p>1. Because the declaration was sufficient in law.</p> <p>2. Because if the declaration had been insufficient in law, its insufficiency could not be legally a ground of nonsuit.</p> <p>3. Because the order1 of nonsuit was contrary to law.</p>

<p>BEFORE WARDLAW, J\, AT UNION, FALL TERM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ Trespass to try titles.</p> <p>“ The plaintiff, in opening his ease, stated that there had been a former adjudication between these parties, of the title now in question, which was conclusive in favor of the plaintiff.</p> <p>“ He adduced the record of an action of trespass quare clausum, fregit, brought by this plaintiff against this defendant, to recover damages for the defendant’s invasion of the plaintiff’s possession of the same land that is sued for in this case, and he offered the grounds of appeal and Judge’s report in that former case, which were authenticated by the superscription in the handwriting of the attorney who appeared for the defendant in that case, and appears for him in this. From these it clearly appeared that on the trial of the former case, at October’Term, 1853, a verdict had been rendered, finding seventy-five dollars damages for the plaintiff, and that upon that trial, the title of the land had been put in issue by the defendant, under the plea of the general issue, and depended upon the age of Hopkins Wilder Shettlesworth, in September, 1848, when -he conveyed by deed to Gasaway Shettlesworth — a question of fact, which, after much testimony adduced on either side, had been submitted to the jury.</p> <p>“ The plaintiff now (unnecessarily, as I think,) went further. He showed a deed of conveyance for this land from H. W. Shettlesworth to the plaintiff, dated September 11, 1850, and two deeds, professing to convey the same land, which the defendant produced under notice, to wit: first from H. W. Shettlesworth to Gasaway Shettlesworth, dated September 6,1848, and second, from Gasaway Shettlesworth to defendant, dated January 4, 1851. To this he added testimony to show that the defendant entered under Gasaway Shettlesworth after January 4, 1851, and that Ií. W. Shettlesworth was under the age of twenty-one years in September, 1848.</p> <p>“ The defendant showed a sale of the land by the .sheriff, under judgment and fi.fa. against Joseph Shettlesworth, and a deed from the sheriff to Gasaway Shettlesworth, dated Oct. 5, 1848 — that Joseph Shettlesworth was in possession more than ten years, even twenty, before the sheriff’s sale; and he offered testimony concerning the age of H. W. Shettlesworth» which, in my opinion, was strong to show that he was of full age in September, 1848.</p> <p>“ The plaintiff fell back upon the estoppel which resulted from the former trial. The defendant contended that if there was an estoppel, the plaintiff had waived it. I held that where, as in this case, a former adjudication could not be pleaded as an estoppel, it was conclusive when shown by evidence, and that conclusive evidence was not waived or overthrown by the addition of doubtful testimony, intended to confirm it.</p> <p>“ I submitted to the jury these questions: first, was the title brought into issue on the former trial, and had the jury then passed upon it in favor of the plaintiff? If not, I directed that the jury should now find for the defendant, as independent of the former case, the plaintiff had shown no title -which could prevail against the ’ sheriff’s conveyance to the defendant’s vendor. If the title had been so put in issue, and passed upon, I directed the jury to find for the plaintiff, without further examination of the facts involved in the '¡title. Second. What were the damages ? I held that the plaintiff was entitled, if she recovered, to have two years rent.</p> <p>“ The jury found for the plaintiff the land in dispute, and eighty dollars damages.”</p> <p>The defendant appealed, and. moved for a nonsuit or new trial, on the following grounds, viz:</p> <p>For a nonsuit. — Because when the plaintiff closed her evidence, she had failed to prove a good and legal' title in herself.</p> <p>For a new trial. — 1. Because the case ought to have been submitted to the jury on the whole of the evidence.</p> <p>2. Because the record in the former case is not conclusive against the defendant.</p> <p>3. Because there was no sufficient evidence to show ¿hat the jury in the former case passed upon the title of the land.</p>

<p>Assumpsit for money collected by an attorney at law, the intestate of defendants. , The money was traced into the coroner’s hands, but there was no proof that the intestate had received it. Verdict for the plaintiffs set aside and new trial ordered.</p>

BEFORE GLOVER, J., AT CHESTER, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows : “In this action the demandant seeks to recover from the defendant dower in a lot of land lying in the Town of Chester. “The defendant filed the following pleas in bar to the recovery. “ And the said defendant by McClure, his attorney, for further plea in this behalf says, that the said demandant ought not to have or maintain her action aforesaid thereof against…

<p>BEFORE GLOVER, -J., AT CHESTER,'SPRING TERM, 1856.</p> <p>During tbe year 1853, the plaintiffs, one of them, Pinchback, being at the time Intendant of Chester, entered into a contract with the Town Council of Chester, to keep the streets in repair until the 1st January, 1854, for the sum of eight hundred dollars. In January, 1854, Pinchback being still Intendant, the Council, by resolution, directed the clerk, to pay the plaintiffs. The clerk paid something over one hundred dollars, and this action was brought to recover the balance.</p> <p>The defendants moved for a nonsuit, on the ground that the contract was void. His Honor overruled the motion, and the plaintiffs had a verdict for the balance due them. .</p> <p>The defendants appealed, and now renewed their motion for a nonsuit.</p>

<p>BEFORE WARDLAW, J., AT NEWBERRY, SPRING TERM, 1856.</p> <p>This was a sum. pro. brought against the defendant as Commissioner in Equity, for the penalty under the Act of 1827, for charging and receiving six dollars and cents as commissions on the interest which had accumulated on bonds taken for property sold under the order of the Court of Equity; a commission of one per cent, had been received on the amount of the sale in cash.</p> <p>His Honor thought the Commissioner entitled to charge commissions on the accruing interest, and decreed for the defendant.</p> <p>The plaintiff appealed.</p>

BEFORE GLOVER, J., AT FAIRFIELD, SPRING TERM, 1856. When this case was called for trial, Mr. Boyls'ton of counsel for the plaintiff, stated that an agent of the defendants’ had satisfied the plaintiff’s demand, and moved that the case be marked settled on the docket.

BEFORE WARDLAW, J., AT SUMTER, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows : “ Trover for a slave named Bob. “ Bob was, in 1840, sold at sheriff’s sale .underfi. fa. against Thomas Garrett; was purchased by W. E. Richardson, who had been merely requested by T. G. to befriend him, and who paid his own money and took a bill of sale to himself; and was in 1844, after the money with interest had been refunded to W. E. R. by T. G. transferred by…

<p>Security for costs indorsed upon the declaration and witnessed by plaintiffs’ attorney, instead of the clerk, is no compliance with an order afterwards made requiring the plaintiff to give security for costs on or before a certain day.</p> <p>Compliance with an order requiring security for costs must be in strict oonformity with the Aot of 1839, and the rule of Court.</p>

<p>D. P. made an assignment for the benefit of his creditors: — Held, in an action brought in his name for the assignee, that he, D. P., consenting to be sworn, was a competent witness for the defendant.</p>

BEFORE WARDLAW, Jv AT SUMTER, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows: “Action on the case to recover damages for a slave killed in the employ .of the defendants. “ There were three counts : 1. That the defendants wrongfully employed the slave without the consent of the plaintiff, his owner. 2. That they hired the slave for one purpose and employed him for another. 3.

BEFORE WARDLAW, J., AT SUMTER, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows : “ Trespass for an assault and battery. “ The case made by the evidence was in substance as follows : “ The plaintiff was book-keeper for John China, at China’s hotel, in Sumterville. The defendant kept a store on the lot adjoining the hotel.

'BEFORE GLOYER, J., AT UNION, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows : “ The prisoner, who lives in Union District, was indicted under the Act of 1754, for stealing a slave named Ned, the property of James Shannon, also of Union District, and for aiding Ned to depart from his master’s service. “ On the 20th September, 1854, Ned, who had belonged to James Shannon about three years, left his master’s service without cause or consent.

<p>BEFORE GLOYER, J., AT LANCASTER, SPRING TERM, 1856.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“The prisoner was indicted under the Act of 1754, for inveigling, stealing and carrying away a slave named Toney, the property of Robert L. Crawford.</p> <p>“ About the first of August, 1854, Toney left his master’s service and was seen in Lancaster District the last of September or first of October, six miles above the Court House, within one half of a mile of the Waxhaw Church, and somewhat in the direction of the prisoner’s residence, which is ten miles further. The prisoner left Lancaster District about the middle of October, 1854, and was absent five or six weeks. On the 29th of October he arrived at the house of E. L. Powell, King William’s County, Virginia, four hundred miles from Lancaster, with Toney, whose name he said was Martin, and passing himself under the assumed name of Jerry M. Tobert. He left the 31st of October, professing a wish to purchase five or six negroes, and returned to King William’s County on the 2d of November with Toney, whom he exchanged with Powell for a woman and two hundred dollars, and executed a bill of sale calling him Martin and signed Jerry M. Tobert. He informed Powell that he had bought Martin in Tennessee, and exhibited a bill of sale from one Crayton. In October, 1855, Powell went to Richmond — where he had sold Toney — with Robert L. Crawford, who established his right of property and brought Toney home. Powell came to South Carolina, had a writ issued against the prisoner, and on the 17th October, 1855, with the sheriff and other persons went to his house. When the prisoner came up to the carriage, and Powell called him Tobert, he seemed to be alarmed and drew back, but said, ‘ I suppose you have come about the boy I sold to you and for your money, you are, like me, a poor man and shall not lose. I will satisfy you.’ The prisoner afterwards confessed a judgment in. favor of Powell which was satisfied by the sale of his property. When he agreed to satisfy Powell he endeavored to extort a promise from him that he would not be further dealt with. The reason he had changed his name in Virginia he stated was, because he learned from Toney- that the man he had bought from had not acted honestly, and that he would not have changed it in South Carolina. At his arrest the prisoner said he had bought Toney of David Crayton, at or near Charlotte, N. C., at a camp, for $700, and offered to show the bill of sale. . He was permitted to go in his house and make a fruitless search in a heap of cotton for the bill of sale, where he said he had placed it for safety; but soon after one of his children brought out a little trunk in which was a bill of sale, signed by D. C. Cray-ton, and the prisoner said he could prove that he had bought of Crayton.</p> <p>“ A short time before he left the State the prisoner said, he wished to see his grandmother’s will in Virginia, and that he had some interest there. After- his return he loaned $200 to William J. Cureton, and informed him that he had gotten some money from a widow lady in North Carolina, to loan out at seven per cent, for a short time, and he did not know how long before she would want it.</p> <p>“ In 1849 the prisoner worked a part of Mrs. Stinson’s plantation, where Toney was, and he and Mrs. Stinson’s negroes fed their horses at the same lot, and he was' seen once talking to Toney. Conversing with John M. Steel on one occasion respecting Toney, the prisoner said he was a great rascal. Sometime in 1849 or 1850, Steel saw Toney late on Saturday evening talking with the prisoner in his yard, and, as Steel approached, they separated, the prisoner going in the house and Toney coming out of the yard with a jug.</p> <p>“ In the fall of 1854, W. D. Hyatt saw the prisoner in Charlotte, N. C., who had a paper and said he was about to purchase a negro at Wallace’s camp, and asked Hyatt to go with him in an old field hard by. A man was there named Wallace, who said he was of North Carolina; another, whom'the prisoner ealléd Crayton, hailed from Florida. There was also a wagon and some horses. Hyatt saw no paper exhibited in the old field.</p> <p>“Wallace was arrested in Kershaw District in 1855, for trading with negroes, and the prisoner became his bail, and on that occasion he told William Windle, that he had been' two years with Wallace trading in liquor and tobacco. In July, 1855, John M.-Steel saw the prisoner on his way from Camden with a large roll of money, who said, ‘he had bailed Wallace out of jail.’</p> <p>“For the defence the bill of sale purporting to have been signed by David C. Crayton was offered in evidence. Dr. Wiley proved the handwriting of Wallace who had subscribed as a witness; but said he knew not the writing of Crayton, nor had he ever heard of such a person. Without further proof I refused to admit the paper in evidence.</p> <p>“ As no exception is taken to it, I will not repeat the charge given to the jury. The prisoner was convicted.”</p> <p>The prisoner appealed and now moved this Court in arrest of judgment, on the ground, that the indictment contained no allegation as to the value of the slave. And failing in that motion, then he moved for a new trial, on the grounds:</p> <p>1. Because there was no testimony going to show, that the defendant was ever in possession of the negro Toney, alias Martin, in this State, so as to create a case of stealing within this jurisdiction.</p> <p>. 2. Because if the possession in the State of Virginia as proved, raises a legal presumption that the defendant took or inveigled said negro from this State, that presumption was amply rebutted by the testimony.</p> <p>3. Because, it is respectfully submitted, his Honor, the presiding Judge, erred in not permitting the bill of sale, that the defendant held, of the negro Toney, alias Martin, to go to the jury as evidence of the character of defendant’s possession.</p> <p>4. Because there was sufficient testimony going to show that the defendant had the negro'Toney, alias Martin, in the State of Virginia innocently under what he supposed a good title, acquired in the State of North Carolina, and thereby all presumption in law of stealing or inveigling is rebutted.</p>

BEFORE MUNRO,.J\, AT FAIRFIELD, SPRING TERM, 1855. Debt on tbe official bond of the defendant late sheriff of Fairfield, torecover for the benefit of the administrator of Thomas Lumpkin, deceased, the difference between the price bid at the sale and that bid at the resale of a tract of land, which the defendant had levied on and sold as the property of Thomas Lumpkin.

BEFORE O’NEALL, J., AT CHAMBERS, APRIL, 1856. The report of his Honor, the presiding Judge, is as follows: “The prisoner, A. H. Farrow, was brought up before me, on the writ of habeas corpus ad subjiciendum. It appeared that the prisoner, who was in confinement in the goal of New-berry under civil process, applied for the benefit of the Prison Bounds Act.

BEFORE GLOYER, J., AT LANCASTER, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows: “ In an action between the same plaintiffs against the same defendants on three several promissory notes, a verdict was rendered for the defendants. This action was brought on an account which was the consideration of the three notes sued on in the former action.

<p>BEFOBE WHITNEB, J., AT ANDEBSOÜST, FALL TEBM, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This was an action on the case for overflowing plaintiff’s land.</p> <p>“ The defendant twenty-three, twenty-four or twenty-five years before had erected on his own land a valuable mill, and also a mill dam, which backed the water upon the lands now owned by plaintiff. The dam was broken by the August freshet in 1852, and immediately rebuilt.</p> <p>“In the progress of the case much testimony was heard calculated to enhance or lessen the damages, which I presume need not be reported.</p> <p>“ The case was regarded as one of very great hardship either way — the prosecution and defence was looked upon by the opposing party as. very ungracious, and hence each, as I was advised in the outset, stood upon his legal rights.</p> <p>“ The questions mainly involved were as to the character of defendant’s use and the right established thereby, as against the present plaintiff.</p> <p>“ It was alleged that the lands in question were conveyed by the will of Hugh Wardlaw to his daughter Peggy Wardlaw during her life, and after her death to her children. Peggy Wardlaw intermarried with James Wardlaw, and they occupied these lands near forty years.</p> <p>“During this time the mills and dam were erected and the latter reconstructed. Their children, of whom plaintiff was one, were raised on the place,, and lived in the family or immediate neighborhood, all being of age at the time of constructing the mills, without any objection on their part.</p> <p>“ On the death of James and Peggy Wardlaw, which happened recently, the former surviving a short time, a bill was filed in the Court of Equity for partition of the lands amongst the children, claiming under the devise of Hugh Wardlaw, — a sale was ordered, made and confirmed, and a title deed executed to plaintiff by the Commissioner in Equity for Anderson, bearing date January 7,1855. This suit was brought to March Court, 1855. Shortly before the writ was issued and after the plaintiff acquired title, he went to see the defendant, now an aged, diseased and very infirm man, on the subject of the overflow. Defendant said they had always been friendly and he desired to continue so; that when he put the dam there it was by the leave of old Mr. Wardlaw, and proposed to submit the whole matter to their friends and he would do whatever they said. The witness said the plaintiff did not seem to close with this proposition, and defendant then asked what would satisfy him, and plaintiff said to remove the water — and the interview there ended.</p> <p>“ Another witness, the brother of the plaintiff, testified that he was once present at a chat between his father and defendant twenty-five years ago, and when the mill and dam were in a course of construction. Defendant said something about cutting the rafters of the dam as he feared it would back the water above a particular ford on these lands. The father of witness said that it would make no difference as he could get another ford and made no objection to the work going on. The same witness said that about the same time, though at another con'versation, he was present when something was said about a trade or exchange of lands on another part of same tract. He could not recollect all that was said but amongst other things defendant said, if the children were all willing they were now of age and the trade might be made.</p> <p>1 “A plat of these lands was introduced, certified by James Gilmer for James Wardlaw, 25th October, 1837 — and deed from the Commissioner in Equity to plaintiff for same lands, was read and admitted from register’s office, the original as was alleged being mislaid. No question was raised as to plaintiff’s, possession, &c.</p> <p>“ The defendant introduced no evidence. In reference to the" different grounds of appeal it is proper for me to add something.</p> <p>“ 1st Ground. A paper purporting to be a certified copy of the last will and testament of Hugh Wardlaw was offered, and an objection to its being received in evidence, sustained, no notice having been given to opposite party.</p> <p>“ 2nd Ground. After the foregoing objection was sustained a witness was sworn and examined. The record of proceedings in equity were offered, and the Commissioner, the keeper of the record, introduced to verify. Pending an objection to its introduction the hour for recess being at hand the case was suspended — after the interval, counsel for plaintiff announced his purpose to move for a¡ continuance in consequence of these various objections, and another which he apprehended from the absence of plaintiff’s original deed, as he intended when going into the case to rely on the registry, &c. The continuance was opposed — the case ordered on — the record in equity admitted, and- the production of original deed to plaintiff waived. It did not appear that the party was any way misled by his adversary or otherwise surprised than one often finds himself in the progress of a case, that a witness on whom he relied fails to prove a fact as he anticipated, or is deemed incompetent when called to the stand.</p> <p>“ 3rd Ground. The plaintiff struggled to supply the evidence it was said would have been furnished by the adduction of Hugh Wardlaw’s will. Hence a witness was interrogated as to any declaration made by James Wardlaw as to the character of his estate in these lands, or of the estate of his children. Eor such a purpose I deemed such declarations, if made, incompetent, there being higher evidence — any such declarations made in presence of defendant or any admission by defendant in reference thereto were permitted to be inquired after freely and would have been fully heard. There was not an intimation that reached my ear that such declarations were called for as explanatory 1 of the nature of James Wardlaw’s possession,’ and to my mind it seems, thus limited, if made at all, they would have been unavailing. However subordinate the possession of James Wardlaw to the superior or peculiar title of plaintiff’s could not of itself avail in the issue presented.</p> <p>“4th and 5th Grounds. I did not feel warranted upon the case made to ‘ charge the jury, as matter of law, that that which began in permission could never, under the circumstances, ripen into right,’ and I did not charge them, ‘ that even although it commenced by the permission of James Wardlaw the husband of the tenant for life and not of right; that inasmuch as the easement had been enjoyed for twenty years they were not warranted in coming to the conclusion that defendant continued the use under such permission,’ &c. Acquiescence or permission at the inception of such an enterprise I did not think necessarily included or excluded the one or the other.</p> <p>44 A distinction was taken broadly as to the right to be affected or acquired by such use as between one who occupied the position of tenant for life, and the remainder-man, altogether favorable to plaintiff. The jury were told that in such a case as that alleged there would be no such injury as to the freehold as would authorise a suit, and therefore a right could not be acquired even by such use and for the period of twenty years against the remainder-man, the tenant for life having during the term or any portion of it the lawful possession of the premises. Whatever questions may be raised on such a proposition, as applicable to the present case where the remainder-men were of age during the whole term, it could hardly be by way of complaint from the plaintiff.</p> <p>44 The jury were told, that to create a prescriptive right there must be twenty years uninterrupted, continuous, adverse use, and as to what was or what was not an adverse use or enjoyment would depend upon the facts and circumstances of the case to be ascertained by the jury. 4 If the enjoyment is shown to have originated in mistake, or by favor or license, or if it was commenced and continued in any manner which does indicate an assertion of right, the enjoyment is not adverse and consequently the presumption is not raised;’ 4 But that the enjoyment without interruption for the length of time prescribed, is so strong evidence of a right that a jury should not consider small circumstances as founding a presumption that it arose otherwise than by grant.’</p> <p>44 6th Ground. Although I admitted the record or proceedings in equity and a paper purporting to be a certified copy of the will of Hugh Wardlaw was filed as an exhibit, I did not think that the will was thereby proven or to be regarded as in evidence.</p> <p>Such proceedings however conclusive between parties would not thus affect or conclude the rights of third persons or dispense with the ordinary rules of evidence — whether the proof aliunde satisfied the jury of the matter alleged by plaintiff was submitted to them.</p> <p>“7 th Ground. The coni plaint set forth in this ground reaches me under such circumstances that I' can only make the following statement: — more than two weeks actively employed in the Court intervened before I had any intimation that such a proposition was regarded as maintained. My allusions to the effect of such verdict as the jury might render were in reference to the question of damages. They were told this was very peculiarly and exclusively a matter for them — they were guarded against the mistake that in giving damages they were thereby to change the property, even although they should give a verdict equal to the fee simple value of the land affected — that the design being to abate the nuisance it would be competent for the plaintiff to renew his action in the event of the right being with him, again and again, until the remedy was effectual. That it was not unusual, in those cases where the contest was to test the right upon a controverted issue or doubtful question, for juries to adopt mild means at first, administering more sternly on a second application if necessary by the obstinacy of a defendant. If upon the question raised the facts were with the plaintiff, I certainly took it for granted their verdict would be for him. I should regret to think any wrong had been done the plaintiff from a careless form of expression on this point. I had no purpose to instruct them as to the effect of a verdict for defendant. It was riot a proposition on which I profess to have entertained an opinion; neither can I well see if asserted and found to be erroneous in what way it serv.es to negative the verdict of the jury.</p> <p>“ The verdict was .for defendant.”</p> <p>The plaintiff appealed and now moved this Court for a new trial, on the grounds :</p> <p>1. Because his Honor the presiding Judge, erred in holding •that an exemplified copy of the will of Hugh Wardlaw, deceased, was not admissible in evidence, unless sixty days previous notice had been given to defendant, of the intention to introduce such copy.</p> <p>2. Because the plaintiff was taken by surprise, as well by the objection of defendant’s counsel, as by the ruling of his Honor, that the said copy (will) was not admissible in evidence, and it is most respectfully submitted, that under the circumstances of the case, as developed in the course of the trial, his Honor should, for the promotion'of the ends of justice, have allowed plaintiff to continue the causé, to afford him time to give notice of his intention to offer said copy (will) in evidence, if such notice be' in fact necessary.</p> <p>3. Because his Honor erred in holding that the declarations of James Wardlaw, the husband of Peggy Wardlaw, the tenant for life of the lands which had been flooded by defendant, were not admissible in evidence, as explanatory of the nature of his possession, and the extent of his claim to the lands in question.</p> <p>4. Because his Honor erred in charging the jury, that although defendant originally flooded the lands of plaintiff by permission of James Wardlaw, the husband of the tenant for life, and not of right, that inasmuch as the easement had been enjoyed for upwards of twenty years, they were not warranted in coming to the conclusion, that defendant continued the use, under such permission, but that although defendant had recently admitted, that he erected his dam by the permission of James Wardlaw, as was in proof, such permission did not prevent the use from becoming adverse.</p> <p>5. Because the proof was full and complete, that defendant flooded plaintiff’s lands at the outset, by permission' merely, and that he continued the use by permission, without the slightest proof that he ever held or attempted to hold adversely, and his Honor should have charged the jury, as matter of law, that that which began in permission, could never, under circumstances, ripen into right.</p> <p>6. Because his Honor erred in holding that the record from the Court of Equity (which had been admitted in evidence) for the partition of the lands of James and Peggy Wardlaw, in which the will of Hugh Wardlaw, deceased, was made an exhibit, could not be considered by the jury, in passing upon the question, as to whether the children of Peggy Wardlaw took the lands in question as remainder-men, upon the termination of her life estate, — When it is respectfully submitted, that the said record, together with other facts proved, made such a prima facie case, as to put the defendant to proof, to show the contrary; and in the. absence of such proof, it should have been given in charge to the jury, to determine whether or not, it had béen shown to their satisfaction, that the children of Peggy Wardlaw, were remainder-men, under the will of Hugh Ward-law, deceased.</p> <p>7. Because his Honor erred in saying to the jury, that whatever the verdict might be, it would not conclude the parties —that, one action did not settle the question, but that many might be brought; which operated to mislead the jury, and cause them to conclude, that although the verdict was for defendant, plaintiff might sue again without prejudice.</p> <p>. 8. Because the verdict of the jury, is in other respects con. trary to law and the evidence, and subversive of the principles of justice between man and man.</p>

BEFORE WARDLAW, J., AT RICHLAND, SPRING TERM, 1856. The report of his Honor, the presiding Judge, is as follows: “ Action on the case to recover damages for the loss said to have been occasioned by the improper transportation of three slaves of the plaintiffs. There were counts for negligence, for violation of duty, and in trover. “ A summary statement of the evidence will be found below: “The three slaves were all children of the same mulatto mother by white fathers.

<p>BEFORE O’NEALL, J., AT RICHLAND, SPRING TERM, 1855.</p> <p>This was an action of assumpsit. The writ directed the the sheriff “ to attach the bodies of William J. Bull” and the other defendants, naming them,” Chairman and Commissioners of the New State Capitol, &c., “to answer to P. H. Hammarskold in a plea of trespass on the case and so forth; and also for certain promises and assumptions by the said William J. Bull and others, the defendants, to the said” &c., “made and not performed,” &c. The declaration, which was filed the 30th January, 1855, after reciting that the defendants, naming them, “ Chairman and Commissioners of the New State Capitol, were attached to answer,” &c., proceeded, in several counts, and without further reference to their official capacity, to charge them as for a personal liability upon promises made by themselves. The bill of particulars, filed with the declaration, was headed “ Commissioners of the New State Capitol to P. H. Hammarskold, Dr.” The items were numerous: — “ To five per cent, on contracts for iron fence,” &c.; “ my own salary as constructing and superintending architect, fire-proof building“ salary of assistant architect“ full right to my original design for the New State Capitol,” &c., &c. The balance claimed, after allowing sundry credits, was twenty-five thousand three hundred and thirteen dollars and fifty-five cents. An order for judgment was entered on the 7th March, 1855.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ In this case the defendants were appointed in 1851, by the legislature, to take charge of the ‘ fire-proof building,’ which afterwards was extended to the ‘New State Capitol,’ of which they were also continued as Commissioners, and in which capacity they are still acting. The plaintiff was employed as a Constructing and Superintending Architect, at a salary, and I suppose was to be allowed commissions at five per cent, on expenditures for the work, a salary for an Assistant Architect and Draftsman, for materials and expenses about the work, and for travelling expenses. This was ‘continued until 1st June, 1854. This statement is collected from the bill of particulars, filed with the plaintiff’s declaration. To these charges others are added in it for the plan of “The New State Capitol,” and other incidents attending the work, amounting in the whole to thirty-three thousand six hundred and seventy-two dollars and three and a-half cents, from which are deducted credits amounting to eight thousand three hundred and fifty-eight dollars and fifty-five cents, leaving a balance of twenty-five thousand three hundred and thirteen dollars and fifty-five cents, for which this action is brought. The defendants in the writ and declaration are styled ‘ Chairman and Commissioners for the New State Capitol.’ The bill of particulars filed with the declaration is headed ‘ Commissioners' of the New State Capitol, to P. H. Hammarskold.’</p> <p>“ A motion on the part of. the defendants is made to quash the writ and proceedings, on the ground that the cause of action set out is against them as agents merely of the State, in a work entirely under the direction of the Legislature, and dependent upon their will for appropriations to carry it on, and that therefore no action will lie against them. That this ■abstract proposition is legally true, I have no doubt. The doctrine is exceedingly well stated by Gibson, J., in Gooh vs. Irvine, Serg. & R., 497, ‘ a public agent treating for the government, but neither asking nor receiving credit for himself, is altogether irresponsible on any contract he may make in that capacity, and wherever his promise or engagement is connected with a subject fairly within the scope of his authority, it shall be intended to have been made officially, and in his public character, unless the contrary distinctly and expressly appear.’</p> <p>“ This is not denied by the plaintiff, but he alleges that the defendants are to be regarded as a quasi corporation. That there are cases in which public agents may be so treated, I admit. When they are constituted for a particular district, for a particular purpose, and powers are conferred upon them to raise the means by which they are enabled to pay any contract which they may make, or a specific appropriation is made for the entire work to be paid to them, then it may be that they would be liable as a quasi corporation to an action. Such are the cases against the Commissioners of the Roads and the Poor; and such may be cases against the Commissioners of Public Buildings where a specific appropriation is made for the building of a goal or court-house. But I" do not think these defendants stand in any such position — they are the mere agents of the Legislature, constituted to carry on a public work by annual appropriations, and subject to the revocation of their powers at any moment the Legislature might think proper. The utmost, however, which could he claimed regarding them as a quasi corporation, would be to charge them with so much money in their hands of the appropriation, and to which the plaintiff was entitled. But the bill of particulars makes no such claim. This covers and disposes of the second head under which the plaintiff claimed, to wit.: That the Legislature had made an appropriation for the work to be drawn by the defendants. Independently, however, of this remark made, and which disposes of the point, I may say I do not think these defendants could be sued by any one of their employees, on account of the general appropriation for “ The New State Capitol.’ They cannot be called thus to an account for it, and on showing an unexpended balance in their hands, be held liable to any one, who with others claiming separately might be entitled to it pro rata. They are liable to account to the State, and to the State alone.</p> <p>“ The plaintiff contends that the words l' Chairman and Commissioners of the New State Capitol,’ are mere deseriptio personce ; and that they are charged individually, personally, and not as an aggregate body. It is plain, on reading the declaration and bill of particulars, that this is not the case. The bill of particulars not only charges virtute officii, and not personally, but it shows that the whole subject matter was within the scope of their authority as public agents; and the legal presumption is, that the contract was official. Indeed the doctrine of deseriptio personce cannot apply to verbal or implied contracts. It is properly applicable to written contracts.</p> <p>“ This examination of the plaintiff’s grounds of action plainly shows that his action is not maintainable. It only remains to inquire, ought the motion to quash be granted, or should the defendants be left to avail themselves of the objection on the trial. The parties defendants have the right to pursue either course. Where the true nature of the case is disclosed by the record, and does not depend on matters aliunde, the motion to quash is preferable, for it ends the matter without subjecting the defendants to the costs of a trial. The motion .to quash the writ and all the proceedings is granted.”</p> <p>The plaintiff appealed, and moved this Court to reverse-the decision of his Honor on the following grounds:</p> <p>1. Because it was irregular to quash the writ and proceedings after interlocutory judgment had been entered up against the defendants, who should have made their defence in the usual mode.</p> <p>2. Because if it was necessary that the declaration should have stated the fund, or the express promise, his Honor ought to have granted leave to add additional counts to the declaration; and, if need be, a motion for such leave will be made in the Appeal Court.</p> <p>8. Because the said decision was erroneous, the defendants being liable in law, either as a quasi corporation, or in respect of the fund in their hands, (which they claimed and held forth as a means of meeting their contracts,) or in consequence of express promise — which the plaintiff ought to have been allowed to prove, as also any other facts sustaining his claim.</p> <p>4. Because the proceedings are so framed that the defendants are charged, either in their individual or official capacity, according to the proof, so that (if need be) the terms “ Chairman and Commissioners for the New State Capitol,” may be regarded as mere “ descriptio personarum,” and that the de*fendants are liable in their private capacity.</p> <p>5. Because a contract with the plaintiff not being denied by the defendants, (nor could it have been denied either in fact or under the state of the pleadings,) some means of enforcing that contract must exist; and the only means were either:— 1. Applying for a mandamus — to which the answer would have been that a madamus was not applicable to such a case. 2. A bill of injunction stopping the public works until the plaintiff’s papers were restored and claims allowed. 3. Applying for relief to the legislature, who would thus have been subjected to a tedious and interminable investigation ; who had made no contract with the plaintiff, and who had parted with the fund out of which payment was to be made; or, 4. (Lastly.) To bring his claims (for services on the new State Capitol and on the old State House, for his expenses for materials purchased, for interest on moneys advanced, and for the value of his plans and designs, which the commissioners have been using,) before the regularly authorised tribunals of the land, viz: a judge and jury, who would have full time and opportunity and means to decide on the merits of the case.</p> <p>6. Because the legislature by their Acts and resolutions, appointing the defendants a permanent Board of Commissioners for a particular purpose — authorizing them ¿o contract, and furnishing them with a specific appropriation, &c., &c., — gave to these Commissioners as much legal existence, with capacity to sue, as Commissioners of Roads and the Poor, or of Public Buildings, or any other quasi corporation as; and the defendants themselves have repeatedly and in various ways recognised their own legal existence — more especially in their contracting with and employing and dismissing the plaintiff.</p> <p>7. Because the application for and the granting of the mandamus at this very term in the case of the State ex relatione, Thomas J. Goodwyn and others vs. Ashmore, Comptroller General, and Erean, Deputy Treasurer, not only distinctly recognised the legal existence of the defendants, and their capacity to sue and liability to be sued, but it put them, as a permanent Board of Commissioners for the purpose of carrying on an exceedingly important work in the exclusive use and control (until their successors shall be appointed and shall enter on the duties of their office) of a very large fund, specially appropriated to meet their contracts ; and it is respectfully submitted that the legitimate result of deciding that the defendants are not, under the circumstances, liable to be sued, would not only contravene the evident intention of the legislature, but would vest in the defendants an irresponsible power, utterly inconsistent with private right and well established principles of law.</p>

BEFOEE WHITNEE, J.,-AT BAENWELL, SPEING- TEEM, 1856. The report of his Honor, the presiding Judge, is as follows: “ Plaintiff’s demand was admitted, being a note for three hundred and fifty dollars, drawn by defendant, 4th September, 1854, at one day after date. “Defendant set up a discount founded on an agreement in writing, a copy of which accompanies this report.* “ Under this agreement plaintiff had cut and hauled away one hundred and eleven trees of the description set…

<p>BEFORE MUNRO, J., AT NEWBERRY, FALL TERM, 1855.</p> <p>Assumpsit on a promissory note.</p> <p>The plaintiffs were nonsuited on the ground, that the Act of 1852, (12 Stat. 212,) incorporating the Bank of Newberry, was a private and not a public Act, and unless set forth in the declaration, which was not the case, could not be recognized judicially by the Court.</p> <p>The plaintiffs appealed.</p> <p>cited 6 Bac. Abr. Statute, F.; 11 Stat. 100 ; 2 T. R. 569 ; 8 Stat. 14, 18? 22, 57, 58; 4 Cran. 384; 1 Green. Ev. 595; 1 Dal. 458; 1 Bail. 546; 2 Bail. 461; 1 Hili; 153; 6 Rich. 380; 1 Johns. Cas. 132; 1 Bl. Com. 475; 10 Mass. 92; 3 Cowen, 662.</p> <p>cited Bul. N. P. 228 ; 8 Porter, 102; 9 Porter, 317; 12 Mod. 249; Ld. Raym. 440 ; 12 Mod. 613; Ld. Raym. 709; 4 Bing. 448; 3 B. & P. 565; 8 T. R. 468; 6 Peters, 320;' 2 T. R. 574.</p>

BEFORE GLOYER, J., AT MARION, JULY, EXTRA TERM, 1855. The report of his Honor, the presiding Judge, is as follows: “ The plaintiffs sue in trover to recover damages for the conversion of four slaves, Phoebe and her children, Brass, Alfred and Yiolet.

BEFORE O’NEALL, J., AT YORK, FALL TERM, 1854. The report of his Honor, the presiding Judge, is as follows :. “ This was an action on the bond of the defendant, given for the purchase-money of a negro woman and her son, sold for partition, under the decree of the Court of Equity. “ The defence was the unsoundness of the woman.

BEFORE WARDLAW, J., AT CHESTER, FALL TERM, 1855. This was an action of trespass to try title. A special verdict was taken, which is as follows: We find that the plantation at Landsford, the subject of this suit, was the property of Gen. William Richardson Davie, at his death, which occurred on the 5th November, 1820. That Gen. W. R. Davie devised this plantation, as in his will mentioned, dated the 17th September, 1819, which will is made a part of this verdict.