Volume 45 — South Carolina Law Reports

BEFOEE WARDLAW, J., AT EDGEFIELD, FALL TEEM, 1857. The report of bis Honor, tbe presiding Judge, is as follows: “ Assumpsit upon tbe warranty of a slave. “ Tbe plaintiffs are John Croucb and Henry 0. Culbreath, partners in tbe business of buying and selling slave?, both of wbom, wben- at borne, live at tbe bouse of tbe latter.

BEFORE WITHERS, J., AT WILLIAMSBURG, FALL TERM, 1851. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ This case is on tbe enquiry docket: at tbe return term of tbe writ, tbe defendant moved to set it aside; motion was granted by tbe presiding Judge, and bis judgment reversed by tbe Court of Appeals.

BEFORE WHITNER, J., AT CLARENDON, FALL TERM, 1857. Tbis was an action of trespass to try title. Tbe writ was issued in Sumter District, to Fall Term, 1853, and described tbe land as “ a certain plantation and close of tbe plaintiffs, situate, lying and being in tbe district and State aforesaid.” Tbe action was first tried in that district at Fall Term, 1855, when a nonsuit was ordered, which, on appeal, was set aside.

BEFORE WITHERS, J., AT MARION, FALL TÜ3RM, 1857. Held: that no sufficient cause being shown, tbe plaintiff is entitled to revive bis judgment, and to have bis damages assessed — and it is so ordered.” Tbe defendant, Gordon, appealed on tbe ground: That defendant having, at tbe return term of tbe writ of scire facias, entered an appearance thereto, tbe plaintiff was not entitled to tbe…

BEFORE MUNRO, J., AT ANDERSON, FALL TERM, 1857. This was an action of assumpsit for building a bridge for the defendants. The declaration contained several counts, one on a special contract, one on an award, and the common counts for work, labor and materials.

BEFORE O’NEALL, J., AT FAIRFIELD, .FALL TERM, 1857 Assumpsit for money paid by mistake. The plaintiff, on the 20th. March, 1855, negotiated to the defendant at Winnsboro’,'a bilLof exchange, drawn on, and accepted by John M. E. Sharp, for one thousand and twelve dollars and fifty cents, payable thirty days after date in New Orleans, and received the nett proceeds of the bill.

BEFORE MUNRO, J., AT ABBEVILLE, FALL TERM, 1857. The report of bis Honor, the presiding Judge, is as follows: “This was an action upon an account for soap, inks, perfumery, &c., sold by tbe plaintiff, a merchant in Philadelphia, to the defendants, residents and merchants in Abbeville District. “ The plaintiff served the defendants with interrogatories to be answered on oath. One of the defendants only, A. M. Dodson, answered.

BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1857. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Trespass to try titles. “ Tbe plaintiff showed judgments and writs offi.fa. against tbe defendant, bad in 1834, a sale of tbe land in question by sheriff, 0.

BEFORE WITHERS, J., AT SUMTER, EXTRA, JUNE TERM, 1857. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe defendant bad been sheriff and was sued by tbe 'plaintiff, in case, for tbe voluntary escape of one Ellerbe H. Jones, sued by tbis plaintiff, bis bail process being issued upon a promissory note for nine hundred dollars. “ His writ was lodged 21st October, 1854, and was regular as bail process.

BEFORE WITHERS, J., AT DARLINGTON, FALL TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ This action was in trover, and was brought for tbe value and hire of six negroes, viz: Ebina, Peter, Prince, Isaac, Tom and Dick.

BEFORE O’NEALL, J., AT YORK, FALL TEEM, 1857. The report of bis Honor, the presiding Judge, is as follows: “ This was an action of covenant, on a deed of conveyance of land executed by the defendant’s intestate. The warranty was against himself and his heirs. He had, before he conveyed to the plaintiff, conveyed to another, a portion of land which conflicted with the plaintiff’s title, and cut off twenty-three acres.

BEFORE MUNRO, J., AT ANDERSON, FALL- TFRM, 1857. A statement of tbe case is contained in tbe opinion delivered in tbe Court of Appeals. Under tbe instructions of bis Honor tbe jury found for tbe defendant. Tbe plaintiff appealed : cited Com. on Con. 293, 250; Bowers vs. Watson, 1 Mill, 393 ; Eice, 188; 1 Strob. 106 ; Rupert vs. Dunn, 1 Bich. 102; 3 Bl. Com. 163 ; 2 Esp. E. 639 ; 7 Cow. 24. cited 1 Ob. PI. 98, 102, 243 ; 3 McO. 114.

BEFORE MUNRO J., AT SPARTANBURG-, FALL TERM, 1857- The report of Ms Honor, tbe presiding Judge, is as follows: “This action was trespass to try titles. The plaintiff claimed title to the land in controversy, under, a grant from ■ the State to one Abraham Markley, for one thousand acres, date the 3d Nov. 1788.

BEFORE MTJNRO, J„ AT SUMTER, FALL TERM, 1855. William Lewis, tbe petitioner, purchased from one Norton, a tract of land through which the road of the Wilmington and Manchester Railroad Company passed. Held: that the terms of the Act were explicit, and left to the Court no discretion to refuse the prayer of the petition, which was granted. The defendants appealed and moved this Court to reverse the order made on circuit, on the grounds: 1.

BEFOSE O’NEALL, J...AT ANDEKSON, JULY, EXTEA TEEM, 1857. Tbe report of bis Honor, tbe presiding Judgs, is as follows: “ This case was twice tried, first on a plea in abatement, that tbe plaintiff was tbe partner of ¥m, H. D. Gaillard •& Co.,- with whom, in law, tbe plea alleged tbe contract was made, and that therefd|e be could not sue alone; upon this plea an issue to tbe country was made, and resulted in a verdict for tbe plaintiff, and there would bave been an end of tbe…

<p>Sheriff- — Sheriff’s Sale— Gonveyance — Registry—Recording— Gases approved.</p> <p>Sale by a sheriff in 1826 under a levy of land made four years before by his predecessor, sustained.</p> <p>An ex-sheriff may buy land sold under a levy which he made when he was in office.</p> <p>The declarations of a person in possession of- lands, made during his possession and before controversy, are admissible to shew that his possession was not adverse: — and the want of adverse character in the possession, both prevents his acquisition of title under the statute of limitations and rebuts presumptions of title, which lapse of time might have raised in his favor.</p> <p>When a sheriff sells land under fi. fa., his deed of conveyance and not the contract made by the bidding, transfers the debtor’s title, and no relation back will be had to give priority to the conveyance.</p> <p>A previous conveyance of the land, not registered within the prescribed time, but registered in the interval between a sheriff’s sale and his conveyance, will not under the Registry Acts be postponed to the sheriff’s conveyance.</p> <p>The lapse of twenty years between the date of the previous conveyance and its _ registration, where the debtor has remained in possession acknowledging the rights of others under the conveyance, will not of itself make the conveyance fraudulent, or ineffectual either against the* debtor himself, or against a purchaser at sheriff’s sale, whose conveyance was executed after the registration of the previous conveyance, although the sheriff’s sale preceded the registration.</p> <p>Under Steel vs. Mansell, 6 Rich. 437, the registration of a conveyance registered after six months, has no relation back in determining the order of priority under the Registry Acts, but takes affect from the date of the registration to defeat all subsequent conveyances.</p>

<p>BEFORE MUNRO, J., AT PICEJNS, FALL TERM, 1857.</p> <p>These were actions of trespass to try title. The land in dispute was granted to the plaintiff, while she was a feme sole. She intermarried with John Bruce, and then joined her husband in conveying the land to James McKinney, under whom the defendants claimed. The conveyance from the plaintiff and her husband to McKinney, bore date the 13th August, 1823, and her renunciation of inheritance bore date the 19th August, 1823, the magistrate’s certificate declaring that it was made within the seven days; The plaintiff’s husband having died, these actions were brought for the recovery of the land.</p> <p>His Honor instructed the jury that the renunciation was void, and could not operate as a bar to the plaintiff’s right to recover. The jury, however, thought otherwise and found verdicts for the defendants.</p> <p>The plaintiff appealed, and now moved this Court for a new trial, on tbe ground:</p> <p>That the renunciation of inheritance by the plaintiffs, having been made on the sixth day after the execution of the deed by herself and husband, was void, and did not divest the plaintiff of her title; that the jury were so instructed, and erred in finding against the instructions; and that the verdicts were contrary to law, and should have been for the plaintiff in each of the cases.</p> <p>cited and relied upon the Act of 1795, 5 Stat. 257; 2 Dwar. on Stat. 611, 646; Thorn, on Con. 27; 2 Tucker’s Com. 259; Elliott vs. Piersall, 1 Peter’s, E. 328; 12 Peter’s E. 345; Watson vs. Bailey, 1 Bin. 407; Jaclcson vs. Gaines, 20 Johns. E. 301; Mclntrievs. Ward, 5 Bin. 296; Jaclcson vs. Stevens, 16 Johns. E. 114; 2 Dwar. on Stat. 672 ; Williams vs. Burgess, 12 Ad. & E. 638, 472; 4 B. & A. 522; 8 Ad. & E. 173; 6 M. & W. 49; 1 Bail. 611; Bigelow vs. Wilson, 1 Pick. E. 485; 1 Strob. 552; Brown vs. Sjpqnn, 2 Mill, 240; Marvin vs. Hodge, Dud. 23.</p> <p>The authorities all show that the true date of a transaction may always be shown — the date given to the instrument being only evidence and not conclusive. The question is then one of fact for the jury to decide. The evidence here, to show that the date was wrong, is the magistrate’s certificate which, if not conclusive, was at least sufficient, prima facie, and left the onus on the plaintiff. He cited, 3 Eich. 220; 2 McC. 213; 4 Strob. 6 ; 5 Eich. 39,</p>

BEFORE O’NE ALL, J., AT ANDERSON, JULY, EXTRA TERM, 1857. Tbis was an action of debt on a single bill, a copy of wbicb is as follows: “ One day after date I promise to pay James M. Carter, tbe sum of one thousand dollars, it being a part of Ms wife’s part of my estate, wbicb note will be collected after my decease. “Witness my band and seal, tbis 30th day of November, 1846. WILLIAM KING, [l. s.] “Test: Jambs G-.

<p>BEFORE MUNRO, J., AT SPARTANBURG, FALL TERM, 1857.</p> <p>This case will be sufficiently understood from the opinion delivered in the Court of Appeals.</p> <p>cited Chit, on Con. 774; Co. Lit. 264; Corbet vs. Lucas & Loiterer, 4 McO. 323; Story on Prom. Notes, § 410; Story on Con. 689 ; Shaw vs. Pratt, 22 Pick. 308; Wallcer vs. McCulbug, 2 Green. 421; Harrison vs. Close, 2 Johns. E. 449 ; 7 Johns. E. 209 ; 4 Strob. 14; Story on Prom. Notes, § 431) 435; Story on Bills, 437; Bail, on Bills, 365; 1 Johns. Oases, 131; 3 McC. 13; 8 Mass. E. 480; Chit, on Con. 747; 5 East. 232; 2 Strob. 205; 3 Strob. 36.</p> <p>cited 1 Eawle, 391; Story on Prom. Notes, § 435, 425, notes.</p>

'BEFORE O’NEALL, J. AT ANDERSON, JULY, EXTRA TERM, 1857 Tbe report of bis Honor, tbe presiding Judge, is as follows: “Tbe defendant bad, on tbe 29tb May, 1849, obtained a patent for certain improvements in looms from tbe United States, and on tbe 18tb of June, 1849, be sold tbe same for tbe state of Georgia, to tbe plaintiffs for four thousand five hundred dollars, which sum has since been paid by tbe plaintiff, John D. Wright.

<p>Practice— Continuance — Casements—Adverse use — Backing water in channel of stream — Damage—Oases approved.</p> <p>The 23d and 25th rules of Court give directions to parties in reference to motions for continuance, but impose no restraint upon the discretion of the Court.</p> <p>Where one backs water by his mill-dam on another’s land, the use, if long continued, should, it seems, be considered adverse, in the absence of proof that it was permissive.</p> <p>Garrett vs. McKie, 1 Rich. 444, as understood by the Court, approved. Backing water within the channel of a stream, from which no appreciable damage results to the owner, is not of itself a legal injury which will sustain an action.</p>

<p>BEEOBE WAKDLAW, J., AT SUMTEB, SPBING- TEEM, 1856.</p> <p>The report of bis Honor, the presiding Judge, is as follows;</p> <p>“This was- an action of trespass for assault, battery, and mayhem. The pleas were non cut. and son assault demesne.</p> <p>“ It appeared that unkind feelings existed between the par-tiés, who were near neighbors. That whilst the plaintiff was, with an axe, in the discharge of public duty, working on a road, the defendant, who was not a hand on the road, made appeals to the defendant about a previous fight between the defendant’s brother and a hireling of the plaintiff, although plaintiff requested that his name might not be used. That, thereupon the plaintiff made a very offensive charge of moral delinquency against the defendant, to which the defendant replied by the d — d lie. That instantly the plaintiff struck a severe blow with the axe at the defendant’s head, which the defendant dodged so that only the axe handle hit him. That a fight ensued, in the course of which the defendant, the larger man, bit and gouged the plaintiff, and the plaintiff attempted to gouge bim. That afterwardgj;he plaintiff uttered horrid imprecations against the defendant^lay suffering for a long time, and in consequence of the defendant’s acts lost one eye and the use of one thumb.</p> <p>“ The jury found for the plaintiff thirty dollars — a sum which I thought very small, to be found by those who had ascertained his right to recover something.</p> <p>“After the verdict was rendered, the plaintiff was presented for my inspection, and I could not but perceive that he was maimed in the manner described in the declaration and shown by the evidence. Whereupon the plaintiff moved for a rule against the defendant, to show cause why the damages should not be increased. Upon return of the rule, I refused to interfere — not because I considered the damages sufficient, nor because I thought the Circuit Court was not the tribunal to which the plaintiff’s application should be made, if it could be properly made anywhere; but because I thought that, under the laws and practice of this State, no Court possesses the power to increase or diminish the damages in due form found by a jury, in any other way than by granting a new trial.</p> <p>“ The plaintiff appeals from my refusal to increase his damages ; and under notice given, will also make to the Court of Appeals his motion for increase, as if the rule was returnable to that' Court.”</p> <p>The plaintiff appealed, and now moved this Court to reverse the decision of his Honor, on circuit, and either to increase the damages here, or to send the case back to the Circuit Court, with instructions to the Judge, at the next term, to increase them, on the grounds:</p> <p>1. That, by law, the damages may be increased by the Court in • actions of assault, battery, and mayhem; and, in this State, the authority so to increase the damages is vested in the Circuit Judge, with right of appeal.</p> <p>2. That tbis is a proper case fer tbe exercise of such authority; and bis Honor erred, it is respectfully submitted, in refusing to exercise it.</p> <p>3. That tbe verdict having negatived tbe plea of justification, tbe plaintiff was entitled ex débito justicice, to recover damages commensuraté with tbe injury be sustained from tbe loss of bis eye and the injury to bis thumb.</p> <p>Tbe action, is trespass vi et armis, for mayhem,, which consisted in tbe destruction of an eye, and tbe loss of tbe use of thumb of tbe right hand. Verdict, thirty dollars for plaintiff — “ a sum,” says tbe circuit Judge, “ which 1 thought very small to be found by those who bad ascertained bis right to recover something.” So thought tbe plaintiff and bis counsel, and hence tbe motion to tbe Circuit Judge to increase tbe damages super visum vulneris. Tbe motion was refused, and hence tbis appeal. Tbe refusal on tbe part of tbe Circuit Judge was not based upon tbe notion that tbe jury bad found damages sufficient in amount, but because “ no Court possesses the power to increase or diminish tbe damages in due form found by a jury, in any other way than by granting a new trial.”</p> <p>To tbe first branch of tbe proposition tbe plaintiff objects— to tbe second be accedes. “ To increase tbe damages,” some Court possesses tbe power, as a Court,11 otherwise than by granting a new trial,” but only in this form of action. Tbe right “ to diminish” is properly negatived.</p> <p>Tbis is an action at common law, and tbe common law incidents attend it, unless these incidents have been repealed by statute. “ One remarkable property is peculiar to the-action for mayhem ; viz., that tbe Court in which tbe action is brought have a discretionary power to increase the damages, if they think tbe j ury at tbe trial have not been sufficiently liberal to tbe plaintiff; but tbis must be done super visum vulneris, and upon proof that it is the same wound concerning which evidence was given to the jury.” Note 5, 3 Black. 121.</p> <p>Benton vs. Bayne's, Barnes Notes, 153, where the damages were increased. Brozvn vs. Seymore, 1 Wils. 5, in which Lee, C. J., said, “ there is no doubt but the Court can increase the damages, &c.” See cases cited. Many other cases have been found to the same effect from “ blach letter” down to the date of Christian’s note to 3 Black. Here is an unbroken current of common law authority in favor of the motion; and what is the objection to the exercise of the power, as is admitted would and ought properly to be invoked and exercised in this instance, if it existed in this State ? What has deprived our Courts of their common law “ power” in this particular ?</p> <p>Obsoletism cannot be properly urged, and if'Urged should not prevail. The Court should exercise its “ power” in proper cases, however novel or unpopular the case invoking the aid of the Court.</p> <p>The English Courts and ours have declared “ that an Act of Parliament” (of the .State) “cannot be repealed by non-user;” (State vs. Tidwell, 5 Strob. 7.)</p> <p>The Act of 1712, (2 St. 409, (“ imported into our code” the British Statute, 4 and 5 Phil, and M„ Ch. 8, “ since it appears in the schedule accompanying that Act, by the designation of the names of those who wore the crown, the year, chapter and title.” Per Withers, J., Id. Thus, “ a person seducing away from'her father’s house a maid under sixteen years of age, and deflowering her afterwards, without the consent of her parents or guardians,” was held to the penalty imposed by' said statute in 1802, State vs. Findley, 2 Bay, 418 : though that “ was the first conviction which ever took place in Carolina, under the statute of Phil, and M. for that offence.”</p> <p>That statute was passed by the British Parliament in 1557, two hundred and forty-five years before it was ever enforced in Carolina, and ninety years after the Act of 1712.</p> <p>As non-user does not repeal an Act of Parliament in England, or an Act of tbe Legislature in tliis State, tbe plaintiff insists, under tbe 5 Sec. A. A. 1712, (2 St. 413,) ‘‘ that all and every part of the common law of England" is tbe statute law of Carolina, “where tbe same is not altered by tbe”'Acts of tbe British Parliament enumerated in tbe schedule to tbe Act of 1712 “ or inconsistent with tbe particular constitutions, customs and laws of this Province;” certain exceptions not affecting tbe point under consideration being specified in said section.</p> <p>If, therefore, tbe statute of Phil, and Mary became statute law in Carolina, for the reasons (or any other) given by tbe Judge in tbe case of Tidwell, and was therefore obligatory on our own courts, so did “ tbe common law of England” become “imported in our code,” as statute law, by said 5 Sec. of tbe Act of 1712, except so far as it was “inconsistent with tbe particular constitutions, customs and laws of”' tbe then Province.</p> <p>Tbe common law, then, could no more become “ obsolete by non-user,” than could tbe statute of Phil, and M., both standing on the same footing of authority, to wit, tbe Act of 1712.</p> <p>As to tbe point under consideration, no change of tbe common law was made by any British statute, because since 1712 we find English Judges doing precisely what we now urge upon tbe Court.</p> <p>■ No constitution of tbe “ Province” can be found to speak upon tbe subject; there has been no “ custom,” for we find no proof of it: and no law can be shown to tbe contrary. It thus' appears that tbe motion should be granted, and" tbe increase made, as sought by tbe plaintiff.</p> <p>But this is enough to show that tbe Common Law is tbe law of South Carolina, and must be recognized as such, without reference to any other authorities.</p> <p>Objection on tbe Circuit was made tbat-a Nisi Prius Court could not increase thé damages. This is tbe English Law. But its application is denied. Change of organization is not destructive of right. "The power” must exist under our law; and it must reside in our Circuit Judges; else the remedy, or right of the party is lost; because, under the organization of our Courts, motions can only be made on Circuit, and appeals can only be taken, under the Constitution, (Art. 10, Sec. 3, 12 St. 13,) “at the conclusion of the Circuits'1 to-the "Judges” who “shall” then “ meet and sit at Columbia ” or Charleston, “ for the purpose of hearing and determining all motions which may be made for new trials, and in' arrest of judgments, and such points of law as may be submitted to them.” The plaintiff, by his notice failing on the Circuit, had the right to be heard in the Appeal Court. One or the other was bound to grant his motion, and increase the damages. The Circuit Court was the proper tribunal, in this State.</p> <p>There is no Court in this State which has the power to increase the damages. This Court is appellate, and cannot exercise jurisdiction in any other way than by appeal; and the authorities show that a Nisi Prius Court has no such power, 3 Com. Dig. Damages increased, and the Circuit Court is a Nisi Prius Court, 7 Stat. 295. — He further cited Act 1767, 7 Stat. 245 ; 7 Stat. 260 ; Jac. Law, Die. Amercements ; 7 Stat. 325, 335, 340 ; /State vs. Simons, 2 Spear, 767; Bran vs. Norton, 2 McM., 147 ; 2 Black. Com., 42; Leigh vs. Kent, 3 T. B., 364; Magna Charta, § 14, and contended that the rule had never been adopted in this State, and could not now be enforced because it was repugnant to the Constitution and law of the State, to the trial by jury, and the practice of the Court.</p> <p>That the law contended for by the appellant exists in England to this day, and is familiar to the profession at Westminster, is scarcely controverted. We find it not only in the decisions of tbe Courts, but recognized by elementary writers as late as 1847. Law Lex., Mayhem, p. 413. Several objections, however, are raised to its exercise here. It is said, in the first place, that Nisi Prius Courts have never exercised the power; that our Circuit Courts are Nisi Prius Courts, and this Court has only appellate powers; there' is, therefore, no Court in this State with authority to enforce the rule. That this Court is appellate we admit, and has no power to exercise jurisdiction in the matter as an original motion. But we deny that our Circuit Courts have only the limited and intermediate jurisdiction of Nisi Prius Courts. On the contrary, we say that each District Court in this State has original, complete and final jurisdiction, and possesses in itself all the powers of all the three great Common Law Courts which sit at Westminster Hall. Prior to the year 1768, the only Common Law Court of general jurisdiction which existed in this State, or rather Province, was a Court consisting of a Chief Justice and two or more Judges, which sat at Charleston. In 1734, 7 Stat. 184, the jurisdiction of this Court was declared by statute, and the Chief Justice and Judges were invested with all the Common Law powers of the Courts of King’s Bench, Common Pleas and Exchequer at Westminster. In 1768, 7 Stat. 197, and again in 1769, P. L., 269, Nisi Prius Courts were established for certain districts in the Province — the Court at Charleston retaining the general jurisdiction, the writs being returnable there, and the record being there kept. 1 Brev. Dig. Intro. 14. As long as this system prevailed, the motion now made could only have been made at Charleston. But in 1789, 7 Stat. 253, that system was superseded by our present District Court system, and now each "District Court possesses all the powers of the Court at Charleston, see Act 1791, .7 Stat. 260, that is, it has original, complete and final jurisdiction, and possesses all the Common Law powers of the three great Common Law Courts which sit at "Westminster. Tbe objection, therefore, so far as tbe powers of tbe Circuit Court are concerned, is not well taken.</p> <p>But it is said tbat tbe rule bas never been,put in practice in tbis State, and tbat it is obsolete, and no longer part of our law. In 1712, 2 Stat. 413, tbe great body of tbe Common Law was adopted and made tbe common law of South Carolina. Tbat common law, thus adopted, is tbe perfection of reason; and its principles having their foundation in truth, are in their very nature immortal. This vital principle of tbe common law is strongly illustrated by the cases. In 1818, on an appeal of murder, Thornton, the appellee, threw down his glove before tbe Chief Justice of England, and demanded trial by battle. (1 Barn. & Aid., 405.) Tbe case was discussed before tbe Judges, and it involved the question whether tbe right of trial by battle still existed as part of the common law of England. Upon tbis point Lord Ellen-borough, Chief Justice, said : “ Tbe general law of tbe land is in favor of tbe wager of battle, and it is our duty to pronounce tbe law as it is, and not as we may wish it to be. Whatever prejudices therefore may justly exist against tbis mode of trial, still, as it is tbe law of tbe land, tbe Court must pronounce judgment for it.” In 1824, in Postell vs. Jones, Harp. 93, the question first came before the Courts of this State whether fees conditional at tbe common law, .existed under the law of this State. It was.held that they did,' although it was then supposed that in England they had “been entirely annihilated by the statute de donis.” In 1837, ■the question arose in this State, for the first time, whether a feoffment, with livery, by tenant for life, would bar contingent remainders. It was contended that the law was obsolete. But, said Harper,-Ch., “I am not aware that we can regard any law as obsolete, merely because for a long time no case has arisen under it; nor can I conjecture what length of time would be necessary to have tbe effect.” Medfern vs. Middleton, Rice, 467, Dud. Eq. 119. These authorities are enough, and sbow conclusively that non user is no objection to the common law.</p> <p>Other objections are hinted at rather than urged. It is said that it is contrary to the spirit of our laws, our institutions, our constitution, that a single Judge should assess damages — that this belongs to the jury, and it is an invasion of their right for the Court to do it. There is nothing in any of these objections. The trial by jury has been had in this case. They have found the defendant guilty, and have assessed such damages as they deemed proper. Is it any invasion of their right for the Court to increase- those damages ? If ’this had been an indictment for the battery, the Judge would have determined the amount to'be paid by the defendant; and merely because the money to be paid is called damages, and not a fine, does that alter the nature of the thing so as to make the exercise of the power so monstrous? But the thing itself is done at every Court. In the sum. pro. jurisdiction the Judge alone may assess the damages, and in fact does it in almost all the cases; and in Bird vs. the Wilmington and Manchester Railroad Company, the Court of Appeals in Equity, expressly decided, in December, 1855, that the Court of Equity has the power, without the aid of a jury, to assess damages in a case of trespass upon land.</p>

<p>Non Compos — Necessaries—Implied Promise — Son-in-law — Limitations, Statute of- — Promise by Administrator.</p> <p>A demand for necessaries may be recovered against one non compos, upon the implied promise.</p> <p>A son-in-law is not bound to maintain bis fatber-in-law.</p> <p>Where an account not barred by the statute of limitations was presented to .an administrator, who “made no objection, and expressed his willingness to pay —Held, that such promise was sufficient to arrest the currency of the statute, and furnished a new starting-point for its commencement.</p>

<p>Evidence — Office Copy of Deed — Seal, Proof of \</p> <p>Where a party relies, under the Act of 1843, upon an office copy of a conveyance of land, which copy is without seal, he is not concluded by the Register’s book, but may show that the original had a seal, which the clerk omitted to copy.</p>

BEFORE WARDLAW, J., AT CHARLESTON, Al AY TERM, ' 1857. Held: that he could appoint a guardian of personalty to a minor in any case, issued the citation, and decreed payment to be made by A. Eeigne to Trumbo. “Alfred Eeigne appealed, and filed a suggestion setting forth these matters. “ I held' that the Ordinary’s power to appoint and cite a guardian was not confined to cases of intestacy, but…

BEFORE MUNRO, J., AT CHARLESTON, JUNE TERM,'1857. Tbe report of bis Honor, tbe Presiding Judge, is as follows:— “ Tbis was an action of trover, brought by tbe plaintiff to recover tbe value of a certificate of two old shares in tbe Bank of Charleston. “ The case was upon tbe inquiry docket, and Mr. Thomas J. Sbingler, tbe only witness examined, proved that, as tbe agent of tbe plaintiff’ be called upon tbe defendant, and demanded tbe delivery to him of tbe certificate of…

<p>Abatement — Pleading.</p> <p>Defendant pleaded in abatement tbe marriage of plaintiff, a female, pending the suit. Plaintiff replied; appointment of an attorney under the Act; and the plea was overruled. At the next term, defendant pleaded the coverture of plaintiff, alleging her marriage to another husband before suit brought: — Held, that the second plea was bad after the first was overruled.</p> <p>After one plea in abatement, defendant cannot plead another in the same degree.</p>

<p>BEFORE WARDLAW, J./AT CHARLESTON, APRIL TERM, 1857.</p> <p>A note for four hundred and seventy-five dollars, dated 5th February, 1855, in favor of-and indorsed by L. T. Potter, was admitted. It was also admitted that the defendant was indebted to said Potter for goods sold, one hundred dollars— upon a note due 2d April, 1855, four hundred and twenty-five dollars.</p> <p>The note was due (sixty days after date) on the 9th April, 1855, and had been taken up by L. T. Potter, (on 11th of April,) after it became due, the same having been discounted in the Planters’ and Mechanics’ Bank. It was also admitted that the note had been transferred to the present plaintiff after the 11th April, and for valuable consideration. The defendant introduced a general deed of assignment for the benefit of creditors from Lopez to trustees,” dated 6th March, 1855, which, after conveying all his property in trust in the first place, to pay all expenses and charges of the trustees, and “ from and after the payment of the same, then to pay and apply the whole of the moneys remaining, ratably and in proportion to their respective debts, to and among those creditors only of the said David Lopez, to whom he is indebted, as maker of any promissory note, or as. principal obligor upon any bond, or as tbe principal debtor upon any open account, and who shall, on or before two o’clock, p. m. Tuesday, 10th day of April next, signify their acceptance of this assignment, and execute a release to the said David Lopez of their respective demands.”</p> <p>A general release was also introduced, of various corporations and parties, creditors of David Lopez, in which they state “that they do severally, and not one for the other, absolutely release and discharge the said Lopez from all claims-, causes of action in law or equity,” &c.</p> <p>The release was signed and sealed by .L. T. Potter, per attorney, and by about forty other individuals, creditors generally.</p> <p>The following special releases were signed. By the Bank of the State, as follows: — The President and Directors of the Bank of the State of South Carolina, (as holders of sundry notes, of which David Lopez is maker and not otherwise,) per C. M. Furman, President.</p> <p>The South-Western Railroad Bank and the People’s Bank, by their Presidents, signed releases subject to the same limitations.</p> <p>The Planters’ and Mechanics’ Bank signed the release twice. First in the following words, “ The P. and M. Bank on note of D. Lopez, endorsed by J. F. Church, per C. Gr. Mem-minger.” The other, as follows: “The Planters’ and Mechanics’ Bank of So. Ca. on note of David Lopez, endorsed P. M. Cohen & Co., dated 3d January, 1855, at sixty days, two hundred and fifteen dollars, and also for note of David Lopez, at sixty days, endorsed by W. J. Bennett, for four hundred and seventy-five dollars.”</p> <p>The plaintiff in reply, proved a demand on the trustees, made by Potter, after he had taken the note from Bank, and before he transferred it to plaintiff', and the refusal of the trustees to pay any dividends on the note in suit, upon tbe ground tbat tbe Bank had not released upon tbis note, and tbat L. T. Potter could not, be not being a creditor upon tbe note on lOtb April.</p> <p>Tbe report of bis Honor, tbe presiding Judge, is as follows:</p> <p>“ Tbe foregoing statement, prepared by counsel, is correct.</p> <p>“ Tbe case baying been submitted to me as one turning on a point of law, I agreed with 'tbe defendant, and ordered a non-suit, with leave for plaintiff to move to set it aside.</p> <p>“I considered tbe release of tbe Bank unimportant — for tbat I thought was confined to the debts specified in it. But tbe release of Potter and bis subsequent payment and application for a dividend on tbis note, I thought should be so connected as to make tbe contingent liability, which tbe debtor was under to him, at tbe execution of tbe release, an actual, subsisting debt. In tbis view Potter was tbe creditor, and tbe bank was bis agent for collection.”</p> <p>Tbe plaintiff appealed and now moved tbis Court to set aside tbe non-suit upon the grounds:</p> <p>1. Because it is respectfully submitted tbat bis Honor erred in ruling tbat tbe release executed by L. T. Potter, and tbe special release of tbe Planters’ and Mechanics’ Bank, operated as a full release to tbe defendant, Lopez, of all claim upon tbe note in suit.</p> <p>2. Because it is respectfully submitted, tbat bis Honor erred in ruling tbat tbe Planters’ and Mechanics’ Bank in releasing all claim as to tbe' notes specially named iii tbe release which it signed, necessarily released also all claim as to tbe note in suit.</p> <p>3. Because it is respectfully submitted, tbat tbe Planters’ and Mechanics’ Bank did not release the note in suit by its special release, and that L. T. Potter could not have done so on tbe 10th. April, 1855.</p>

BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1857. The report of bis Honor, tbe presiding Judge, is as follows: “Assumpsit by a planter against factors, to recover for fourteen bales of Sea Island Cotton, which were sent by the former to the latter for sale, and. were accidentally burnt in store without insurance. “ In several counts, the plaintiff claimed money for cotton sold, money received by defendants for his use, and damages for the defendants breach of their…

BEFORE WARD LAW, J., AT CHARLESTON, MAY TERM, 1857. , ' Tbe report of bis Honor, tbe presiding Judge, is as follows: “Action on tbe case for a private nuisance, commenced March, 1856. “Tbe declaration, (wbicb will be before tbe Court,) contains four counts.

BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1857. The report of bis Honor, tbe presiding Judge, is as follows: “The 12th section of ‘an Act to establish certain Roads, Bridges and Perries,’ passed Dec., 1856, (12 Stat. 506,) provides, ‘ that E. N. Puller, Edward W. Seabrook, Edward H. Baynard, Ephraim S. Mikell, Thomas A. Baynard, Ephraim C. Bailey, Joseph W. Seabrook, Oliver H. Middleton, James E. Whaley, and Ephraim M. Seabrook, or such of them as may act in this behalf,…

Trespass quare clausum fregit for removing obstructions placed by the plaintiff across a- cut or ditch.

<p>BEFORE GLOWER, J„ AT CHARLESTON, JANUARY TERM, 1857.</p> <p>This was an action of trover for the conversion of four hundred and eighty-six bushels of wheat, and one hundred and fifty barrels of flour.</p> <p>On the 31st July, 1855, one M. W. Williams, who was engaged at Knoxville, Tennessee, in the business of purchasing and shipping grain and flour, shipped from Knoxville two hundred and forty-three sacks, containing four hundred and eighty-six bushels of wheat, consigned to the defendants at Charleston, South Carolina, and took a receipt or bill of lading for the same from the agent of the East Tennessee and Georgia Eailroad Company. On the 15th August, and again on the 21st August, 1855, he shipped flour, on each occasion seventy-five barrels, from the same place to the same consignees, and took receipts for the same as before. Upon these receipts were endorsed assignments from Williams to the plaintiff, of the receipts themselves, and of the articles shipped, dated the 3d September, 1855.</p> <p>Samuel Morrow, examined by commission, testified, that the signatures of. Williams to the assignments endorsed on the receipts were genuine; that about the 21st August, 1855, he, the witness, advanced five hundred dollars to Williams, who placed the receipts in his possession as security; that a few days afterwards, on the 24th August, the plaintiff, to whom Williams was indebted, paid to the witness the five hundred dollars, and thereupon he returned Williams the receipts, who immediately transferred them to the plaintiff; that Williams was then considered solvent, has since become insolvent and gone to parts unknown.</p> <p>Benjamin Bhett, of the firm of Ehett & Eobson, testified, that the receipts were enclosed by the plaintiff in a letter to his firm; that on the 28th August, 1855, the day after they were received, he took them to defendants, and seeing Hendrix, asked if they had received the flour and requested that he would indorse the receipts. Hendrix refused to indorse and said he did not know if the flour had been received. Accompanying the receipts was a draft at sixty clays for one thousand five hundred dollars, dated 21st August, 1855, drawn on defendants by Williams in favor of plaintiff. Witness presented the draft to defendants for acceptance. Hendrix took up his pen as if to accept, but did not.</p> <p>Evidence as to the value of the wheat and flour, and showing that it had been received by the defendants, was given. It further appeared that from June to September, 1855, large shipments of wheat and flour were made by Williams to defendants,- the sales of which were made by them until November, 1855.</p> <p>The defendants produced their account current with Williams, as follows:</p> <p>M. W. Williams, in account current and interest, from July 24,1855, to December 29,1855, with Keuffer & Hendrix.</p> <p>[[Image here]]</p> <p>They also produced their account current with Eavenel & Co.</p> <p> Messrs. Davenel <& Co., in account with Heuffer <& Hendrix. </p> <p>[[Image here]]</p> <p>B. F. Moise, proved three drafts on defendants by^ Wil- • liams: one dated lOtb July, 1855, for $1,500, and payable tbe 11th September; one dated the 20tb July, 1855, for $680, due the 21st September, and tbe third dated 23d July 1855, for $1,500, 'and due 26tb September, and all of these were paid. Williams was in the habit of shipping flour to defendants. (AVitness proved two letters from Williams to defendants, one dated 3d August, and one 30th July 1855.)</p> <p>Knoxville, July 30, 1855.</p> <p>Messrs. Neuffer & HeNdrix :</p> <p>Gejstts : — In reply to your two last, I will say I will undertake to furnish you on the ears, by last next week, 500 bbls. Knoxville Steam Mills at 6 50 dolls, per bbl. as you propose. And as to shipments of wheat I will send you 3 to 10,000 bushels at 1 50. Your order for 30,000 bushels could be filled from below here and money made on it if you allow 15 cts. per sack, for all new two bushel Osnaburg sacks, as others have been dping in the market. Please write about the sacks.</p> <p>T need no letters of credit where E. E. Eeceipts accompany the Drafts, and therefore return them.</p> <p>I send you a car load Shorts and Middlings to see what can be done with them in your market.</p> <p>Yóurs, &c.,</p> <p>M. W. WILLIAMS.</p> <p>Knoxville, Aug. 3, 1855.</p> <p>Messrs. Neuffer & HeNdrix:</p> <p>Geuts : — I wrote you a few days ago that I would take 10,000 bush: of the wheat you had an order for at 1 50. I have now five car loads in depot, and receipts for two car loads. Will have it all in, in a few days, and am willing to take 20,000 bush, more if you have not let it out. Can have the 30,000 bush, in depot by 1st Sept., and if the Eail Koad can take it forward as fast as delivered you should get it all by 10th Sept. Wheat this year is very good and if you desire it, can send you samples by express. Please write me about the sacks. Will heavy domestic sacks do? They can be bought at 10 or 12 cts. Osnaburgs will cost 15 and our town is now out of the Osnaburgs. Have four car loads flour ready.</p> <p>Yours, &c.,</p> <p>M. W. WILLIAMS.</p> <p>Of the 243 sacks in July, can’t say how many were received 145 were received and sold the 12th and 20th September. A week or ten days is the time of transportation between Knoxville and Charleston. All the flour shipped by Williams was sold. The bulk by the 5th September — some before — and most before the 3d. The transactions with Williams in wheat are in one lot $1,621 63, and in flour and shorts $3,151 66. From July 12th to 29th August, or 1st, 2d or 3d September, were the dates of the receipts in Knoxville, and the sales at different times until 6th November, when some few sacks of damaged wheat were sold. 10th Sept. 1855, $3,151 66, is nett proceeds to Williams’ credit, and 24th Sept. 1855, $1,621 63, is amount to Williams’ credit from sales of flour and wheat. The.flour was sold from $6 50 to $9 per barrel. $6 50 is price agreed upon by Williams and defendants as per letter of 30th July, 1855. Defendants could not fill their contracts made with persons here for flour. Defendants received only 300 barrels during the contract. He don’t know if the first 150 barrels, shipped 12th July, were on this contract. He commenced with defendants as clerk, in June, 1855. Prom defendants’ ledger, $18 17 appear to be in favor of Williams, and this was carried to the credit of Brunson & Co., (of which Williams was a member,) and which firm is indebted still to the defendants in the sum of $10,646 34. Defendants charged Williams with a forfeit, as Williams did not complete his contract, and it is entered as cash in the book against Williams. There was a contract between defendants and Ravenel for wheat and a forfeiture was paid by defendants. He can’t say bow much, nor can he say that the $1,000 was paid or to whom.</p> <p>His Honor the presiding Judge, in his report, says:</p> <p>“ The important enquiry was, were the wheat and flour shipped and consigned to defendants pursuant to their order and had they a beneficial interest. Having called the attention of the jury to the rights and liabilities of consignor and consignee, they were directed to enquire, if the consignment was made according to the order of defendants, under a contract to purchase, and if they so found, the verdict should be for the defendants. They were instructed, that if goods were shipped pursuant to order, the consignor is no longer the owner and cannot change the consignment: that if this wheat and flour were part which Williams had contracted to sell to defendants, he could not, after the shipment, make a valid transfer of it to Morrow or plaintiff, by the endorsement of the bills of lading.</p> <p>“In directing the attention of the jury to the account current between the defendants and' Williams, I alluded to the forfeiture of $1,000, an item debited to Williams in the account, and asked where was the evidence to prove it. In this connection I referred to the character of forfeitures like the one alleged to have been incurred in this case, and compared them to those colorable contracts for the sale and purchase of articles where neither- party intended to deliver or accept, but only to pay differences according to the state of the market; and added, that such were held to be gaming contracts, in England, under a late Statute of Parliament.</p> <p>“ The jury found for the plaintiff a verdict of $1,737.”</p> <p>The defendants appealed, and now moved this Court for a new trial on the grounds:</p> <p>1. That his Honor erred in charging the jury that they should find for tbe plaintiff unless there had been a sale to the defendants. Whereas it is submitted that if the shipment was without order, then the consignor could not alter the bill of lading after delivery to the consignees, the defendants; and if pursuant to orders then the consignor was “ functus officio” and could not alter the bills of lading unless the consignees were insolvent.</p> <p>2. That the only evidence of the nature of the shipments was the letters of 30th July and the 3d of August, between M. W. Williams and Neuffer & Hendrix, his factors and agents, which clearly showed a shipment pursuant to orders and at a fixed price.</p> <p>3. That if the shipment was without orders then the verdict was manifestly wrong, as the proof was that all the flour and wheat received by the defendants, except that of the seventy-five barrels of flour of the 21st of August, had been long before delivered to the defendants and the whole by the 3d of September, 1855.</p> <p>4. That his Honor should have charged the jury that no property in these goods could have passed to the plaintiff under any circumstances until the 3d September, 1855, the date of the transfer.</p> <p>5. That his Honor erred in charging the jury that if there was no sale, then the defendants were bound to account to the plaintiff in an action of trover for the proceeds, whereas it is submitted there could be no recovery if there had been a delivery to the defendants before the transfer of the bill of lading, or if the shipment was pursuant to orders, or if the defendants were creditors.</p> <p>6. That his Honor erred in charging that there was no proof of any forfeit so as to charge Williams, Williams’ letters being silent as to any forfeit to be paid by Mm: as tbe forfeit of one thousand dollars was paid by the defendants as his agents, and so proved.</p> <p>7. That his Honor erred in charging the jury that a penalty to be paid as a forfeit for the non-delivery of goods was void as a wager.</p> <p>8. That his Honor erred in charging the jury that under the circumstances the defendants were bound either to accept the draft or refuse the consignment, whereas there is no proof of the presentation of the draft to defendants.</p> <p>9. That the plaintiff could not recover on the duplicate of the bill of lading of 31st July, there being no competent proof of the loss of the original.</p> <p>10. That the verdict was capricious and excessive, the only proof of the quality of the flour and wheat being that offered by the defendants, some of which was damaged, and that the jury should not have found more than the proceeds of the same realized by the defendants, and that the jury should have allowed the defendants the freight, drayage and customary expenses of the same.</p>

BEFORE WARDLAW, J., AT CHARLESTON, MAY TERM, 1857. • The report of his Honor, the presiding Judge, is as follows: “ Action on the' case for special damage done to the plaintiff by the defendant’s obstruction of the way from a public road to a public landing on Wadboo river. “ The public right to the landing, and to the way from the road to the landing, was shown by evidence of long continued use by everybody that pleased, and of repeated acknowledgments by various…

BEFORE GLOYER, J., AT CHARLESTON, FALL TERM, 1857, The report of his Honor, the presiding Judge, is as follows: “ The plaintiff sued in the summary process jurisdiction, and the case was this: John Magee, the testator, in his lifetime, hired a slave named John, of plaintiff, to work on board of the steamer General Clinch, which vessel he commanded. During the continuance of the contract of hiring, the steamer fell in with and saved a wreck.

<p>Law of Nations — Personal Property — Foreign Assignment — Contract—Attachment—Debtor and Creditor —Assignment—Evidence—Subscribing Witness.</p> <p>The right to sel}, transfer, and dispose of, personal property, belongs to the person of th$ owner, and such sale, transfer, or disposition, if valid where the contract is executed and according to the lex domicilii, is valid wherever the property is.</p> <p>A voluntary assignment of personal property by a foreign debtor for the benefit of creditors, executed abroad, if valid there and according to the lex domicilii, takes precedence over liens by attachment subsequently taken out in the Courts of this State- — the property being here at the time both of the assignment and the service of the attachment.</p> <p>Non compliance with the provisions of the Act of 1828, in relation to assignments for the benefit of creditors, does not make the assignment itself void.</p> <p>The Act of 1828, relates only to domestic and not to foreign assignments for the benefit of creditors.</p> <p>Where the subscribing witness to an instrument is dead or beyond the jurisdiction of the Court, mere proof of his handwriting is insufficient to authorize the sending of the instrument to the jury.</p> <p>The subscribing witnesses to an assignment were R. & M. both of whom were absent from the State. R., examined by commission, testified, that he remembered nothing about the transaction ; he recognized his own signature and believed the name of M. to be his signature, but did not know the assignor. The signature of M. was otherwise proved :— Held, that the proof of the assignment was insufficient.</p>

BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1857. This case will be sufficiently understood -from tbe opinion delivered in tbe Court of Appeals. cited 1 Bail. 507; 1 Green. Ev. 46, 47, note. cited 1 Green. Ev. 53; Sellick vs. Booth, 1 Y. & 0, 1X6; 2 Green. Ev. 299; 1 Strob. 14.

<p>Parent and Child — Infant, Custody of</p> <p>Upon a question between father and mother as to the custody of their infant child, the law gives the preference to the father as the head of the household, and without sufficient cause shown the custody will not be given to the mother.</p>

BEFORE WARDLAW, J., AT CHARLESTON, MAY TERM, 1857. The report of bis Honor tbe presiding Judge, is as follows: “ Trover, in which, under the Act of 1827, the defendant had given bond and security for the production of the chattel sued for to answer the judgment. “After the commencement of the suit, the defendant arrested by another creditor, received a discharge under the insolvent debtor’s Act. “ The defendant, conceiving that the discharge was necessarily a discharge from…

BEFORE O’NEALL, J., AT CHARLESTON, SPRING TERM, 1856. The report of bis Honor, the presiding Judge, is as follows : “ These were actions for the recovery of losses sustained by the plaintiffs in the burning of cotton in the defendant’s yard. “ The receipts given by the defendant, as a common carrier, limited the liability of the Company to the unloading of the cotton from the cars. The cotton in these cases was unloaded and placed on skids in the Company’s yard.

In tbe City Court of Charleston. The report of his Honor, the recorder is as follows : This was an action within the summary process, jurisdiction for one hundred dollars, being the penalty imposed by the city ordinance for selling liquor without license.

AT CHARLESTON, MAY TERM, 1857. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Assumpsit to recover damages for tbe refusal of defendants to receive and pay for cattle according to contract. “ It appeared that tbe plaintiff, a cattle driver, who resides in Florida, being in Charleston in tbe summer of 1854, made a verbal agreement with defendants, butchers in Charleston, under which he was to deliver to them one hundred and twenty-five bead of beef cattle, to…

AT MARION, SPRING TERM, 1858. This was an action of debt on a prison bounds’ bond against the defendant as surety of Tristram Hamilton. Tristram Hamilton bad been discharged under the prison bonds Act. The notice was dated 29th September, 1856, and Ms discharge was on the 8th October, 1856, and the only question was whether sufficient notice bad been given. The verdict was for the plaintiff.

BEFORE GLOVER, J., AT SUMTER, SPRING TERM, 1858. Sum. Pro. against tbe defendant as executrix of Samuel J. Wesberry, deceased, late husband of the defendant. The cause of action was a promissory note for forty-seven dollars and forty-one cents, given by Samuel J. Wesberry to the plaintiff, bearing date the 5th August 1856. The plaintiff was sheriff of Sumter, and the process was lodged with the coroner on 23d October, 1857.

BEFORE WARDLAW, J., AT ANDERSON, SPRING TERM, 1858. ■ This was an indictment for bastardy. A printed form was •used which, after alleging the birth of the child, &c., proceeded as follows: “And the jurors aforesaid, upon their oaths aforesaid, do further present, that one Aaron Caspary is the farther of the said bastard child, and has refused to enter into recognizance,” &c. The defendant was found guilty.

BEFORE GLOYER, J., AT NEWBERRY, SPRING TERM, 1858. Tbe report of his Honor, the presiding Judge, is' as follows: “ The petitioner, one of the firm of L. B. & B,. D. Maffett, and who was in custody at the suit of George G. Be Watt, executor, applied for the benefit of the Insolvent Debtors’ Act. His application was resisted by S. S. Parrar & Brothers.

BEFORE O’NEALL, J., AT CHESTER, SPRING TERM, 1858. Trover for tbe conversion of negroes.

BEFORE MTJNRO, J., AT DARLINGTON, SPRING TERM, 1858. Tbe report of bis Honor, tbe presiding Judge,’is as follows: “ This was a summary process on a note payable to one W. L. Morse or bearer, and transferred to tbe plaintiff after it became due. “ Tbe defendant offered in discount, a judgment rendered in tbe summary process jurisdiction, on a non-negotiable note, executed by tbe said W. L. Morse in favor of Leitcb & Carrington, and by them transferred to tbe defendant Petty…

BEFORE WARD LAW, J., AT SPARTANBURG, SPRING TERM, 1858. Held: be conclusive and unchangeable as to third persons, whether their indenture was regarded as a letter of instructions from a corporation to its agent, or as articles of partnership between partners. “ To meet such views in the Court of Appeals as I thought must have suggested the alternative question, whether the corporation confessed…

<p>Evidence — Negligence—Witness—Bond of Indemnity— Damages — New Trial.</p> <p>In case against a Bailroad Company, for carrying off plaintiff’s slave without Ms knowledge or consent, mere proof of transportation is itself sufficient evidence of negligence to throw the onus on the defendants.</p> <p>"Where a witness is interested and a release will make him competent, such release must be given, and a bond of indemnity from a third person will not answer the purpose.</p> <p>In case against a Bailroad Company for carrying off the plaintiff’s slave, the value of the slave is the highest measure of damages.</p> <p>New trial granted for excessive damages.</p>

BEFORE GLOVER, J., AT CLARENDON, SPRING TERM, 1858. The report of bis Honor, the presiding Judge, is as follows: “ The plaintiff sued in case to recover damages for the loss of a slave named Washington, hired to defendant in 1855, and drowned while employed on a steamboat, contrary, as is alleged, to the terms of hiring. “The competency of W. E. Butler, a witness offered on the part of the plaintiff, was objected to on the ground of interest.

<p>BEFORE MUNRO, J., AT DARLING-TON, SPRING TERM, 1858.</p> <p>The report of Ms Honor, the presiding Judge, is as follows:</p> <p>“ The plaintiff’s demand amounting to forty-seven dollars and eighty-nine cents, is for bacon, clothing, blankets, shoes, &c., furnished the slaves of the estate of defendant’s testator. It appeared that in the year 1852, and while the validity of the testator’s will was the subject of contest, 'the testator’s widow, to whom a life estate in the plantation and slaves was given by the will, took charge of the same, and directed the plaintiff to supply the articles in question. Some time after the will had been admitted to probate, and the defendant had qualified as executor, upon his refusal to pay the plaintiff’s demand, the present action was brought.</p> <p>“I held, that an executor can only be held personally liable for a debt contracted for his testator’s estate upon an express undertaking, but that the law would not raise the implication of a contract in such cases, the tendency of which, would be, to subject him to personal responsibility without the means of showing that the estate was .either totally, or partially insolvent.”</p> <p>The plaintiff appealed on the grounds:</p> <p>1. Because tbe defendant having neglected to furnish the slaves of the estate with necessary food and clothing, was in law and justice bound to pay the plaintiff for such necessaries supplied by him.</p> <p>2. Because on the proof made that the articles supplied to the slaves of the estate were necessary and proper, the law will raise an implied assumpsit against the defendant as executor.</p> <p>8. Because on the proof and law applicable thereto the decree should have been for the plaintiff to the amount of his demand.</p>

BEFORE O’NEALL, J., AT YORK, EXTRA TERM, APRIL, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows “ Trespass for seizing and selling a mule. “ In tbis case, tbe plaintiff proved tbe execution of a. bill of sale to ber of a mule described therein, by tbe former owner, James Etters, dated 9th January, 1857.

BEFORE WARDLAW, J., AT ABBEVILLE, SPRING TERM, 1858. The report of Ms Honor, tbe presiding Judge, is as follows: “Dower demanded in three hundred and thirty-five acres.

BEFORE WARDLAW, J„ AT ANDERSON, SPRING TERM, 1858. Tbe report of his Honor, the presiding Judge, is as follows: “ These were two actions of trespass to try titles, brought to recover two lots of land in the Village of Anderson. “ The plaintiff showed, 1. A grant to William Turpin, dated February 6, 1786, for four hundred and eighty acres on branches of-the Grenerostee; 2. A conveyance of the land, thus granted, from William Turpin to Thomas Wadsworth, May 2, 1797; 3.

BEFORE GLOVER, J., AT SUMTER, SPRING TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “Pending an action of trover, brought by the plaintiff against John C. Khame, the defendant executed the following agreement, January 6th, 1855: “ In consideration of the transfer this day made to me by H. Gr.

BEFORE GLOVER, J., AT CLARENDON, SPRING TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe action was in tbe Summary Process jurisdiction to recover twenty-five dollars, a fine imposed by tbe Board of •Commissioners of Eoads for neglect of the defendant to send bis slaves to open tbe streets in Manning.

BEFORE MUNRO, J., AT CHESTERFIELD, SPRING TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe defendant was indicted jointly with bis father, Alsy Brock, for trading with Dick, tbe slave of B. E. Pegues. Tbe trading proved on the trial was tbe sale of a bottle of spirits to tbe slave, and for this same act tbe defendant was at this Term convicted on two other indictments of retailing, and of selling spirits to a slave.

<p>Parent and Child-Infant, Custody of — Habeas Corpus —Practice.</p> <p>"Where a father seeks by habeas corpus to obtain possession of his infant son, the discretion of the Oourt in discharging the infant from illegal restraint, is not limited to protecting him in returning, but it may, even whore the infant is of the age of choice, order that he be delivered to the father.</p>

<p>Pleading — Bond, Construction of.</p> <p>In an action of debt on a bond for the payment of money, the plea of non-damnificatus is bad on general demurrer.</p> <p>A bond reciting amongst other things that the obligors were willing to indemnify and save harmless the obligee against future liabilities, followed by a condition to pay a certain sum of money in instalments, held to be a money bond, and not a bond to indemnify.</p>

BEFORE GLO'VER, J., AT SUMTER, SPRING TERM, 1858. Tbis was an action of assumpsit for one hundred and twenty-four dollars and thirty-four cents, for bagging and rope furnished by plaintiff, a factor, on the 7th September, 1855, with charges for freight, shipping and drayage. The charges were proved by a witness examined by commission. The defendant produced an account current which had been furnished him by plaintiff, as follows : Mr. T. 0.

BEFORE WARDLAW, J., AT GREENVILLE, SPRING TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbis was an action on tbe case. I treated it as an ordinary action for obstruction of an easement; but tbe plaintiff’s counsel bad other views of it, wbicb tbe declaration, grounds of appeal, and argument will explain. “There are two counts. Tbe first, complains in substance that tbe defendant was part owner of certain land.

<p>BEFORE GLOYER, J., AT SUMTER, SPRING TERM, 1858.</p> <p>Tbe report of bis Honor, tbe presiding Judge, is as follows:</p> <p>‘‘The plaintiff, Commissioner in Equity for Sumter District, claims, under authority in tbe nature of letters ad Iona colligenda, under the hand and seal of the Ordinary of Sumter District, issued under the Derelict Estates Act of 1857, the sum of eighty-two dollars and thirty-two cents from the defendant, the sheriff of Sumter District.</p> <p>“Samuel J. Wesberry died intestate, some time in 1857. There was at the time of his death a judgment in favor of E. W. Bonney, against him, the fi. fa. upon which was in the sheriff’s bands. After tbe death of Wesberry, tbe sheriff levied upon the chattels of the intestate, which he afterwards sold. No administration having been taken out on Wes-berry’s estate, letters as above stated were granted to the plaintiff after the levy and before the sale. Notice was given to the sheriff of the plaintiff’s claim, to wit: that the proceeds of sale, amounting to eighty-two dollars and thirty-two cents be paid to him, to be retained by him, as provided for by the Derelict Law, until administration should be granted on said estate.</p> <p>."The sheriff refusing to pay over tbe said money, this action was brought to recover it.</p> <p>“ It is admitted that there are claims for expenses of the intestate during his last illness. A non-suit was ordered.”</p> <p>The plaintiff appealed and now moved this Court that the non-suit be set aside, on the ground:</p> <p>That by the Act of 1780, sec. 26, 5 Stat. Ill, debts due by an intestate, are arranged in certain degrees or classes— judgments and executions being postponed to funeral and other expenses of the last sickness, charges of letters of administration and debts due to the public, that all the personal property of the intestate is assets in the' hands of the administrator for the payment of the intestate’s debts in the order fixed by the said Act: that such payment would in this case be defeated if the sheriff be allowed to appropriate the sum in his hands towards the satisfaction of the execution in his office to the exclusion of preferred debts — that, therefore, the plaintiff is entitled to recover from the sheriff the said sum of money, and retain the same, as the custodian appointed by law, until an administrator be appointed, who can administer the estate, and with the assets pay the debts of the intestate, according to their priority as by law established.</p>

<p>BEFORE.'WARDLAW, J., AT ABBEVILLE, spring term, 1858.</p> <p>Tbis was an action of assumpsit on a promissory note signed “ Hodges & Smith ” payable sixty days after date to tbeir own order and endorsed by “Hodges & Smith” to the plaintiff’. The defendants were Elihu Hodges, Isaac Smith, and Robert Smith, and they were sued as partners in trade under the style of Hodges & Smith. . The pleas were the general issue and a former recovery against two of the defendants.</p> <p>It appeared that Elihu Hodges and Isaac Smith as ostensible partners, conducted a grocery business in Hamburg, that against them the plaintiff recovered judgment on the note ' sued on in this action, at Edgefield, in April, 1853; and that the purpose of the present action was to make Robert Smith also liable, who was alleged to have been one of the partners of the firm of Hodges & Smith.</p> <p>His Honor held tha't the former recovery barred another action upon the note; and the plaintiff having no evidence besides the note itself, to sustain any of his counts, a verdict was rendered for the defendants.</p> <p>The plaintiff appealed and now moved this Court for a new trial on the grounds</p> <p>1. Because bis Honor erred in bolding that a former recovery of judgment against two partners, without satisfaction, was, as a plea a bar, and as evidence, conclusive in a suit against all tbe partners, by tbe same plaintiff for tbe same cause of action.</p> <p>2. Because in tbe present action there is a count in tbe declaration, charging tbe defendants as acceptors of a bill of exchange, a count for money loaned and advanced, a count on an account stated, and a count for interest for forbearance of money lent and advanced; and bis Honor erred in bolding that tbe bill or note itself, tbe subject of tbe former recovery, was not evidence competent to go to tbe jury in support of said counts.</p> <p>8. Because the bill or note was not itself tbe debt, but merely the evidence of it; and bis Honor erred in bolding that judgment on tbe note against two of tbe partners, was an extinguishment of tbe original debt or cause of action against all tbe partners.</p> <p>A judgment or former recovery is a good plea in bar only in a suit between tbe same parties, and for tbe same cause of action. It is'no bar, nor is it evidence for or against a stranger to tbe former record. — 1 Phil. Ev. 821, 826, 827, Cowan & Hill’s Notes, page 818, note 571; Hurst vs. McNeil, 1 Wash, 0. 0. 70, 75; Meachern vs. Cochran, 1 M’C. 338; Treasurers vs. Bates, 2 Bail. 382. Plea of former recovery against one of several j'oint trespassers, or joint contractors without averment of satisfaction, is no bar to a suit against another for tbe same cause of action. Nor is it a bar to a suit against all tbe joint trespassers or contractors,; and it is immaterial whether tbe contract be joint and several or joint only. Hawhins vs. Hatton, 1 N. & M’O. 318, 319; Park vs. Hophins, 2 Bail, 411; Treasurers vs. Bates, lb., 382; Collins vs. Lemaslers & Lee, 1 Bail. 348 to 353; Walson, Crews & Co., vs. Owen & Co., 1 Ricb. Ill, 114; Livingston vs. Bishop, 1 Johns. R. 290, 293; Sheéhy vs. Mandeville & Jamison, 6 Cranch, 254 to 266; Comyn’s Digest, Action (L. 4.); Yelv. 67; Cro. Jac., 74. All contracts by partners are joint and several. Bice vs. Shuie, 5 Bur. 2613, 2614: Watson Partn., 436; Toolce vs. Bennet, 3 Cain’s Rep., 4; Brown vs. Belches, 1 Wash. Rep. 8; Ayrey vs. Davenport, 5 Bos. & Pul., 475. Sed vide contra: Collyer Partn. Sec. 757 and note 3; King vs. Hore, 13 Mees. & W., 494; Trafton vs. Kearney, 5 Hill, (N. Y.) 86; Bobertson vs. Smith, 18 Johns R. 481. A promissory note unless given and accepted as satisfaction, does not extinguish an open account. If the note does not extinguish the account, neither does the judgment on the note. Watson, Brews & Co., vs. Owens & Co., 1 Rich. 112; Dogan vs. Ashby, 1 Rich. 36'; Chastain vs. Johnson, 2 Bail. 674; Barelli, Torre & Co., vs. Brown & Moses, 1 McC. 449; Costello vs. Cave & Bradley, 2 Hill, 529; Hughes vs. Wheeler, 8 Cowen, 77, 84. A promissory note by defendant to the plaintiff is evidence under the count for money lent. The note imports that the maker has so much money of the payee in his hands. 2 Stark. Ev. 79; Harris vs. Hunibach, 1 Bur. 374, 375; Story vs. Atlcins, 2 Stra. 720, 725; Matthews vs. Fogg, .1 Rich. 369, 372, and note (a) 373; Haviland, Bisley & Co., vs. Simons, 4 Rich. 338, 342; Hughes vs. Wheeler, 8 Cowen, 77, 84; Israel vs. Douglass, 1 H. Bl. 239. He further cited 1 Oh. PI. 546, 556, 566; 1 Stra. 509 ; 1 Dev. Eq. 466.</p> <p>cited and relied upon King vs. Hoar, 13 Mees. & W. 494, which directly decided the question in this case; Ward vs. Johnson, 13 Mass. 148; 11 Grill. & J. 11; 9 S. & R. 142; 4 Johns. Ch. 560; 5 Wend. 240; 2 McM. 348; 5 Hill, N. Y. 83.</p>

<p>BEFORE WARDLAW, J., AT ANDERSON, SPRING TERM, 1858.</p> <p>Rule on tbe Commissioners of Roads of tbe forty-second regiment of South Carolina Militia, requiring them to sbo.w cause why a mandamus should not issue to compel them to restore the old road and highway leading from Anderson Court House to Greenville Court House, as recently obstructed and discontinued, under their authority, near the residence of Col. Wm. S. Pickens.</p> <p>It appeared, at the return of the rule, that the alteration had been made on the land of W. S. Pickens, and at his instance; that the new part, about one mile in length, was somewhat longer than the old, and that the Board, after due advertisement, and after hearing petitions on both sides, had adopted the alteration, believing that it was for the public good.</p> <p>Affidavits, both fox and against the motion, were submitted.</p> <p>His Honor overruled the motion for a mandamus, and the relators appealed.</p> <p>cited Act 1831, 9 Stat. 590; Act 1825, 9 Stat. 559; State vs. Broyles, 1 Bail. 134; Maddox vs. Ware, 2 Bail. 316; State vs. Commissioners, 4 McC., 5; Price vs. Commissioners, 3 Hill, 314; 10 Bleb. 303; Tap. on Man. 75.</p> <p>The Commissioners had the power to do what they have done; and that is an end of the matter. This Court cannot review their decision, and say that they acted unwisely — that the alteration was not for the public good. Their judgment concludes the matter. If they have done wrong, they alone can correct it.j Commissioners vs. Murray, 1 Rich. 335.</p>

BEFORE O’NEALL, J., AT UNION, FALL TERM, 1857. George Linam, by bis will, dated in 1815, devised as follows: “I give to Frances Linam, widow of Charles Linam, deceased, the one-half of certain tracts .or parcels of land,” (describing them) “ and if it should happen that the said Frances Liman should die without heirs, lawful begotten of her body, that then the said land shall descend to her sister Judith’s children, in common.” Frances Linam intermarried with Nathaniel…

BEFORE GLOVER, J., AT RICHLAND, SPRING TERM, 1858. Held: 9th December, 1852, William I. Bull was in tbe chair, and R. S. Bedon, T. J. Goodwyn, B. E. Hunt, J. Harleston Read, Jr., and L. M. Keitt, were present, when it was resolved, 1 that tbe Commissioners report their accounts and proceedings, and apply for an appropriation of $50,000 for the prosecution of tbe Eire Proof Building.’ 1 At…

BEFORE WARD LAW, J., AT EDGEFIELD, FALL TERM, 1857. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ This was an action of debt, within tbe summary jurisdiction of tbe Court, brought to recover tbe penalty of fifty dollars, which is prescribed by tbe 5 Sect, of tbe Patrol Act of 1839, 11 Stat. 58.

BEFORE MUNRO, J., AT ANDERSON, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ The action was trespass to try titles. Held: took only a life estate. Third. Because the verdict for the plaintiff is contrary to the law and the evidence.

BEFORE WHITNER, J., AT NEWBERRY, FALL TERM, 1857. These were separate actions on single, bills, given to tbe plaintiff. Some of tbe actions were by sum. fro. and others were appeals from a magistrate’s decrees in favor, of defendants. On November 15th, 1855, a will of David Pitts, late of Newberry, was admitted to probate in common form, and letters testamentary were granted to tbe plaintiff, executor and legatee. This will was dated 16th January, 1855.

<p>Insolvent Debtors' Act — Notice.</p> <p>Application for the benefit of the. Insolvent Debtors’ Act need not be made at the next term after petition filed, even though ninety days may elapse between the filing of the petition and the sitting of the Court. The petitioner is in time if the notice be given to the second term, and the application be then made.</p>

BEFORE O’NEALL, J., AT GREENVILLE, FALL TERM, 1858. Tbis was an action'of debt by tbe assignee on a bail bond taken in tbe City Court of Charleston, where tbe original action was commenced and prosecuted to judgment. Oa. so. had been issued and tbe bail fixed. The defendant demurred generally, and contended that tbe action was local, and confined to tbe Court and District where tbe judgment was recovered and tbe bond assigned.

<p>BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1857.</p> <p>It appeared by the record that at Fall Term, 1835, the defendant was indicted for keeping a riotous and disorderly house, and a true bill found; that at Spring Term 1837, a verdict of guilty was rendered, and the following sentence endorsed on the indictment. “Let the defendant be imprisoned two months and pay a fine of $500. J. B. O’Neall, P. J.” There was an affidavit and also a warrant to arrest, but no entry or indorsement which showed that the defendant had been arrested, or that he had entered into recognizance to appear.</p> <p>The defendant made affidavit that he had never been arrested under the warrant; that he had never entered into recognizance to appear: that he was absent from the State from the Fall of 1836, until December, 1838; and that he had no knowledge that the proceedings were pending against him until long after the trial and conviction; and he moved that all the proceedings subsequent to the finding of the grand jury be set aside.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ I refused a motion to set aside, the proceedings. Besides the presumption that the original proceedings were regular, it appeared tbat a sci. fa. quare executio non bad, under tbe judgment, been personally served on the defendant, after the expiration of seven years from the sentence, and that no cause having been shown to the contrary, an order for execution passed by default.” . ,</p> <p>The defendant appealed on the grounds:</p> <p>1. Because the defendant was never arrested under the warrant issued in the said cause, or otherwise made a party to the said indictment.</p> <p>2. Because the scire facias issued on the sentence was unauthorized, and null and void.</p> <p>made the following points:</p> <p>1. That the Court of General Sessions cannot bring its authority in action on any one unless he is personally present, has been arrested, or has voluntarily made himself a party to some proceeding by entering into a recognizance to answer the charge — in other words he must be personally present in Court, or he must be made a party. In this case the proceedings, independent of his own affidavit, do not show that the defendant was a party, but the contrary.</p> <p>2. The sentence was never pronounced by the Court on the defendant, but was indorsed by the Judge before whom the ease was tried on the indictment, and left with the Clerk of the Court.</p> <p>3. Presumption of the regularity of the proceedings arising from the lapse of time is a legal fiction, does not prevail in criminal cases against the accused, and is worth nothing, where the truth is known to be otherwise, in the Court of Sessions. It is admitted that a different rule prevails in re-gárd to rights of property.</p> <p>4. The written sentence left by tbe presiding Judge, if valid and now in force as to tbe fine, (an effort to collect wbicb gave rise to tbe motion on circuit,) is.equally good as to tbe imprisonment. And it is submitted and maintained, that if tbe defendant were now brought into Court to be sent to jail under that sentence, be would have a right to show for cause that tbe whole proceedings were ex parte, or rather tbe State would have to show that the defendant was a party; and lapse of time is inadmissible to prove tbe record of arrest or recognizance.</p> <p>5. The sci. fa. guare executio non was simply a void proceeding, arising from inadvertence and mistake on tbe part of tbe State’s officers. If there was a judgment of tbe Court tbe sci. fa. was proper; if not, it was irregular, void, and obnoxious to tbe disregard of tbe defendant. It was but a continuation of tbe old proceeding. Wright vs. Nutt, 1 T. R., 388; 2 Tidd, Pr., 983.</p> <p>6. Tbe serving a paper on one from tbe Court of Sessions not under arrest or recognizance to appear and answer, is a proceeding wholly unknown to tbe practice and procedure of that Court; and when done, may be disregarded without incurring liability, or the penalty of contempt. The proceeding should have been a bench warrant to arrest tbe defendant to answer to tbe charge in tbe indictment.</p> <p>7. The not showing cause to tbe sci. fa., like mere silence to an unauthorized question, simply left tbe matter where it stood before, neither implicating tbe defendant nor conferring authority 'on tbe Court. And if tbe defendant, by return, bad shown the grounds of the present motion, they were not new matter unknown 'to tbe Court, but such as tbe Court, would, of its own mere motion, take judicial notice.</p>

BEFORE WHITNER, J., AT LEXINGTON, FALL TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe defendant was indicted for wilfully leaving open a gate, under tbe 2d Section of ‘An Act to authorize tbe erection of gates upon all sucb roads as are not public highways,’ passed in 1855. See Act of Assembly, 1855, p. 408. “ The road in question was common to tbe neighborhood, sucb as are denominated private paths, and led from one highway to another.

<p>Contract — Conditional Sale — Trover—Vendor and Vendee.</p> <p>Where tlie contract of sale gives the purchaser the option to return the slave and pay hire, if by a certain time he should not like her, the contract is conditional, and does not confer such complete title on the vendee as will enable him to maintain trover against the vendor for taking away the slave within the time.</p>

BEFORE O’NEALL, J., AT GREENVILLE, FALL TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbis was an action of trespass to try title. “ Tbe plaintiffs are tbe children of Jesse Edwards, to whom tbe land in dispute was twice conveyed by bis father: 1st, absolutely; that deed was produced by defendant, but never recorded; 2d, to him for life, with remainder to bis children. Jesse Edwards was in possession more than ten years.

BEFORE WARDLAW, J., AT YORK, FALL TERM, 1858. These were actions of debt brought, in behalf of different distributees, upon the same administration bond, against the administrators and their sureties. To show the breach and amount of damages, the circuit decree pronounced by the Court of Equity, (Pettus vs. Sutton, 10 Eich. Eq., 356,) was produced.

BEFORE GLOVER, J., AT CHESTERFIELD, SPRING TERM, 1857. The report of bis Honor, the presiding Judge, is as follows: “ The plaintiff sued in assumpsit.to recover the amount of three hundred dollars, which the defendant promised to pay for the apprehension of a slave named Hiram.

BEFO EE WAEDLAW, J., AT FAIRFIELD, FALL TERM, 1858. An ordinanoe of the Town Council of Winnsboro, provides, “ That no person or persons shall sell any butcher’s meat within the corporate limits of the Town of Winnsboro, until after the hour of nine o’clock in the morning, excepting in the town market.

<p>BEFORE O’NEALL, J., AT SPARTANBURG, FALL TERM, 1858.</p> <p>This case will be sufficiently understood from tbe opinion delivered in tbe Court of Appeals.</p>

BEFORE MUNRO, J., AT ORANGEBURG, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows. “ This was an action on the case brought by the plaintiff against the defendants, for the obstruction of a private right of way through the lands of the defendant, Moses Braddy. The jury found for the plaintiff, eight hundred dollars.

The report of bis Honor, tbe presiding Judge, is as follows: “ The action was trover for cattle, (twenty-five bead, I believe, were claimed,) brought by Edith Myers, who had executed a power-of-attorney under the 16th section of the Act of 1712, she being a married woman, but having, for a series of years, twelve or fifteen, lived separate and apart from her husband.

BEFORE O'NEALL, J., AT ABBEYILLE, FALL TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe plaintiff Sims, and Clark, were joint contractors to put up a building, at Cokesbury, for tbe defendants. Tbe building was completed; and after being so completed, Sims gave notice to tbe defendant, Smith, tbe treasurer, not to pay Clark anything.

BEFORE WARDLAW, J., AT YORK, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ Trover for a negro woman named Malinda. “ The plaintiff being in 1845 a young physician, whose father had been a man of distinction in York, left this State in the spring of that year, intending, as he said, to hunt a place in the West for the practice of his profession.

BEFORE WHITNER, J., AT LEXINGTON, FALL TERM, 1858. to recover from tbe Ordinary tbe plaintiffs’' shares of tbe proceeds of land sold under tbe order of tbe Ordinary. Tbe share of each plaintiff was about eighty-four dollars. Tbe Ordinary bad paid to each plaintiff about forty dollars, and be claimed tbe right to retain the balance and apply it in some way not clearly disclosed by the evidence. His Honor, tbe presiding Judge, decreed for tbe plaintiffs.

BEFORE MUNRO, J., AT BARNWELL, FALL TERM, 1858. The prisoners were indicted, in one count, for inveigling, stealing and carrying away a negro slave, named Gilbert, the property of Margaret Hays; and, in another count, for aiding Gilbert in running away and départing from the service of his owner.

BEFORE O’NEALL, J., AT SPARTANBURG, FALL TERM, 1858. The report of bis Honor, tbe presiding Judge, is as follows: “ This was an action of trespass to try title. “ The plaintiff showed title under a grant to Abraham ■ Markley, for one thousand acres on the ridge between Island Creek and the head waters of Thicketty Creek, in Spartan-Burg district, dated 3d November, 1788, “ In the progress of the case, it was shown that the plaintiff in 1851, recovered the land now in…

BEFORE WHITNER, J., AT SUMTER, FALL TERM, 1858. The report of bis Honor, tbe presiding Judge, is as follows: “This was an action of debt on bond for payment of money. “ Tbe obligee and obligor were related, and bad each died after the day tbe bond was payable. I think years bad intervened, but precise dates were not furnished.

BEFORE WARELAW, J., AT LANCASTER, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ Trespass to try title. “The tract in dispute contains eight hundred acres or more, and is separated by Bird’s branch from a larger tract which, as it was said, the defendant at some time heretofore, under the sheriff’s conveyance to him hereafter mentioned, recovered against some occupant who held under Elijah Phillips hereafter mentioned. “ The plaintiff…

BEFORE WHITNER J., AT EDGEFIELD, SPRING TERM, 1858. Tbe report of bis Honor, the presiding Judge, is as follows: “This was an action of trespass guare clausum fregit, brought to recover damages for cutting and hauling away timber trees from a certain parcel of land situate in Edge-field. “ John Burgess was seized of a tract of land consisting of two thousand three hundred and sixty-four acres, and by deed executed 12th September, 1840, conveyed one-half the tract to Wiley…

BEFORE G-LOYER, J„ AT RICHLAND, EXTRA TERM, JULY, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe following letter was addressed to tbe plaintiffs, factors and commission merchants, doing business in Charleston: ‘ Columbia, S. 0., September 20,1853. ‘ Messrs. Wardlaw, Walker & Burnsides, Charleston. ‘ Gentlemen: ‘ We take pleasure in commending Mr. Geo.

BEFORE WARDLAW, J., AT FAIRFIELD FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “1856, Sept. 1, Meador made a sealed note for $160, payable one day thereafter, to Geo. G. Bhyne ór bearer. “This note was credited by a payment of $22, wbicb Nov. 5, 1856, Meador paid to Bhyne. “ 1857, March 9, Geo. 0. Bbyne made a promissory note for $2000, payable on demand to U. W. Meador: and the same day confessed judgment tbereon.

BEFORE WHITNER, J., AT KERSHAW, FALL TERM, 185V. The report of bis Honor, the presiding Judge, is as follows: “ This was an action of trespass to try titles. The land in dispute was included in two grants, to different persons, of equal date, founded on surveys which had .been recorded on same day, were certified on-same day, and purported to have been in virtue of warrants issued on the same day.

BEFORE -WARDLAW, J., AT YORK, FALL TERM, 1858. Tbis was an action of debt on a single bill for $259 50, given bj the defendants to the plaintiff. The defence was that the bill was given to compound a felony. The report of his Honor, the presiding Judge, is as follows: “ The plaintiff, living in York district, had a considerable sum of money stolen from him. His suspicions were directed towards Jake, a negro fellow of the defendant Brown, who lives in Hnion.

<p>BEFORE GLOVER, J., AT LEXINGTON, EXTRA TERM, SEPTEMBER, 1858.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“This was an action on the case brought, to recover damages, occasioned by the obstruction of a private way.</p> <p>“Under proceedings instituted in the Court of Equity, a writ was issued to make partition of the real estate of Benjamin Jefcoat, deceased. In their return to this writ, the commissioners allotted to Marcella Jefcoat, the wife of Joshua A. Jefcoat, and daughter of the intestate, Benjamin Jefcoat, a tract of land marked H on the plat, which accompanied their return, and they recommended that'another tract, designated by the letter B, and which nearly surrounded the tract H should be sold for partition. In conclusion, the commissioners say: 1 We also give to J. A. Jefcoat, and Marcella Jefcoat, his wife, from letter H, through letter B, the present road leading to the old mill.’ At June Term, 1854, of the Court of Equity, this return was confirmed ; the commissioner of the Court of Equity was ordered to sell tract B, and it was further ordered ‘ that Joshua A. Jefcoat, and Marcella Jefcoat, his wife, their heirs and assigns, have the right of way from the said tract H, through the said • tract B, to the. old mill, where the road now runs.’ Afterwards, at the commis.sioner’s sale, on the first Monday in November, 1854, Jacob ‘ Eedmund purchased tract B, and on the 12th February, 1855, he sold it to William Knotts, his codefendant. In the Spring of 1855, the way through the tract B was obstructed by fences, enclosing a field, and a new road was opened, which deflected around the field, but was computed to be thirty-three yards shorter than the old.</p> <p>“ This,, action was commenced by Joshua A. Jefcoat and Marcella., .Éf&^ifey“'September 29, 1855. Marcella Jefcoat diedéimSeptembeéj ,1856, leaving her husband, Joshua A. Jef-coa|,; andysey^ral chillaren surviving, and her death was suggested oh"fb;d're6bf|l||The identity of the way was established, anql itf,|Lp.p^.r.ed7 that|] the change made by the defendants embraced áoo'tít4c«fe¿}mlf of the distance between its termini.</p> <p>“ Theré''"was:n¿á$versity of opinion respecting the relative advantages of the two ways. Thirteen witnesses preferred the road designated by the decretal order, and obstructed by defendants, while thirteen believed that the new one substituted was as good, if not better. When the defendant’s counsel .commenced the examination of witnesses touching the respective merits of the two ways, I suggested that such evidence could not justify the obstruction complained of, and for that purpose was irrelevant; but, as the objection to it was not insisted upon, the witnesses on both sides were fully heard, and on this, as on many questions arising from Pond Branch litigations, the number of witnesses was equal.</p> <p>“ The motion for a nonsuit, on the ground on which it is renewed, in this Court, was refused, and the jury was instructed that . Joshua A. Jefcoat was entitled to recover for the' whole actual loss sustained, during the lifetime of his wife, and the one-third of such actual loss sustained since her death. They were also informed tbat they were not limited to such damages, only as would recompense tbo. plaintiff for bis actual loss; but that an element entering into the estimate of damages, in cases like, this, is the motive, of the defendant, and that, if they saw any, circumstances showing evil intention and willful conduct, they might find punitive damages. • ' ■ ■ ■</p> <p>“ The actual damage consisted in the loss of some timber, which was prepared and ready to be hauled to a mill, in which the plaintiff was jointly interested, with. others, when the way was obstructed. Evidence was .also offered to show that plaintiff’s interest in the mill, which was onthe termini of this obstructed way, was wojá®*m[e^<¿l^jj^ day, and that the timber was supplied f$T^jtbnill fromHlJe.tract H, where he lived. Also, other evidence, ^h^jyipgv(^\ever, rather speculative than actual damaKjAvas ^Hren. Tqj, the plaintiff’s remonstrance against the fcbstrucJign^^TSheJvay, William Knotts directed RedmmniWífrar up a.fqp^e and clear a road around it. William KnoFfesj^s^gaSM to open another road for the plaintiff, who replied that he was afraid of him; that this was the road given to him ; was his only road and his right, and that if he allowed' this change, after a while he would be subjected to a greater one.;</p> <p>“ The jury, by their verdict, established the.way designated by the decretal order of the Court of Equity, and found six hundred dollars against the defendant, William Knotts, and for the defendant, Jacob Redmund.”</p> <p>The defendant, William Knotts appealed, and now renewed his motion for a nonsuit on the ground, -that the case had abated by the death of Marcella, the wife of the plaintiff, Joshua A. Jefcoat.</p> <p>And failing in that motion, then he moved for a new trial on the grounds:</p> <p>1. Because it is submitted tbat tbe alterations made, by tbe defendant, of tbe road in question, were not sucb material deviations as to’ destroy its identity or to give tbe plaintiffs a right of action, and tbat bis Honor erred in ruling and instructing -tbe jury otherwise.</p> <p>2. Because it is respectfully submitted tbat bis Honor erred in charging tbe jury, that in estimating tbe plaintiffs’ damages it was their duty to give him tbe value of tbe use of tbe mill, during tbe whole of his term, from tbe obstruction until tbe death of bis wife and one-third thereof since her death to the present time.</p> <p>3. Because tbe damages found are excessive.</p> <p>Tbe plaintiff was bound either to join bis wife in tbe action for tbe injury complained of, or be bad an election to sue in bis own name, or join bis wife, as best advised; in either event, whether bound to join, or having elected to join bis wife, tbe action, in case of his death, would have survived to her. It was, in fact, her cause of action, and nothing, for which tbe husband should.have sued alone, could be included in sucb action; and, of course upon her death, tbe cause of action cannot survive to theLusband, as a mere survivor. “ Tbe true rule is, that in all cases where tbe cause of action by law survives to tbe wife, tbe husband cannot sue alone.” 1 Chit. PL 29, note 2; Clapp vs .Inhabitants of Stough-ton, 10 Pick. 463. If the wife die pending an action by herself and husband for any tort committed either before or during coverture,' and to which she is a necessary party, the suit will abate. 1 Chit. PI. 75.</p> <p>As to the alteration of the road. The changes of the road in question were not material or detrimental to the rights of the plaintiff, and gave no cause of action. And the defendant denies that tbe proceedings in equity fixed tbe precise tract or exact locality of tbe plaintiff’s way or road, so as to renders, it so permanent as not to be' subject to improvement, if tbe convenience of tbe parties required it. “ It is said that a private way by grant, and a private way ex necessitate after tbe latter bas been selected, stand on tbe same footing.” Williams vs. Safford, 7 Barb. 309 ; 3 Kent’s Com. 425, 512, note 1. A right of way from necessity is by grant. 2 McC. 447. Tbe law allows only one road (from necessity) a right of egress and ingress; but it need not always be by tbe same way. Tbe party claiming tbe right bas ño cause to complain, so a convenient way be assigned him, even though it vary every day. 2 McC. 450. Changing a road between any two given points, for the purpose of ’straightening a fence, or for tbe convenience of tbe parties, so that tbe way is still kept open- from one place to tbe other, I should not consider as destroying its identity. 2 McC. 451. Every immaterial change in a road is not a destruction of its identity, but it must depend upon tbe situation of the country. 2 McC. 445. That tbe use must be of tbe same way twenty years, but after that time slight changes would not affect tbe right. 5 Eicb. 183.</p> <p>If husband and wife bad both lived to the trial, a recovery would have been bad to tbe extent of tbe whole injury. But tbe wife having died pending tbe action, and nothing having been recovered, the husband now, even if tbe action survives to him, could recover only tbe one-third of tbe whole damages — for no part of tbe damages for that in-, jury was reduced to possession by tbe husband. An action by husband and wife, for a proper cause,, to them jointly, cannot survive to him as a distributee of„ her estate, after her death, for in one character be sues as husband., and in tbe other, be would have to sue or maintain tbe action as a dis-tributee, and join tbe other co-distributees. Tbe death of the wife cannot effect such a transmutation of tbe character of tbe husband, so as to sustain this action. The,Court will always grant a new trial when the damages are capricious. Poppen-heim ys. Wilhes, 2 Eich. S56.</p> <p>cited 1 Chit. PI. 55, 56, 75, 51, 63, 64, 65; 7Stat. 593.</p> <p>cited, 2 Tidd. Pr. 763,1115; 13 Eng. C. L. E. 163.</p>

BEFORE WHITNER, J., AT RICHLAND, FALL TERM, 1858. These were actions of assumpsit on a promissory note for $10,000, bearing date the 9th May, 1854, drawn by P. P-Chambers, and payable nine months'after date to the order of J. D. Frost'at the Bank of Charleston.

18S8. : Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe action was assumpsit by tbe plaintiffs, asN bearers of a promissory note, tbe execution of wbicb was admitted, and tbe terms of it as follows: “ ‘ Twelve months after date, we, or either of us, pro.mise to pay to James Eppes, or bearer, fifteen hundred dollars, value received, with interest from date: 29th November, 1852.

BEFORE WARDLAW, J., AT UNION, FALL TERM, 1858. Tbe report of bis Honor, tbe presiding Judge, is as follows : “Assumpsit for medical services rendered to slaves of the defendant. “ To prove tbe items of account, tbe plaintiff was sworn and adduced bis book. The book showed enterics in this form: “ 1857, Eeb. 5. Attendance on Manuel, $5,00.” The bill of particulars, which was filed, consisted of items in this form: “1857, Eeb. 5.

<p>BEFORE O'NEALL, J., AT FAIRFIELD, FALL TERM, 18*57.</p> <p>So much of tbe report of bis Honor, tbe presiding Judge, as relates to tbe only important question of law wbicb tbe case involved, and in reference to wbicb alone tbe case is reported, is as follows:</p> <p>“In this case tbe action was brought on a bill* exchange, addressed to Messrs. Flint & Bingham for $12,500, in favor of E. 0. Leitner or order, payable ninety days after date, at tbe Corn Exchange Bank, New York, and drawn by E. 0. Leitner, agent of tbe Bivingsville Cotton Manufacturing Company, and indorsed by E. C. Leitner; and, without authority, be added the names of George Leitner, Simpson Bobo, and B. B. Poster, as indorsers. The bill was dated December 24,1854.</p> <p>“ E. C. Leitner and George Leitner constituted the Bivings-ville Cotton Manufacturing Company. > The Act incorporating the Company made the members liable to be sued as partners; and in that character the defendants were treated. E. 0. Leitner was out of the State, and was so stated, and the case proceeded against George Leitner alone, as the partner served.</p> <p>“ The bill was presented by E. C. Leitner to the Planters’ Bank of Fairfield, to be discounted, 12th February, 1855. Tt was discounted at one per cent, per month, having forty-five days still to run, making an usury of $187 50.</p> <p>“The bill was accepted by Flint & Bingham, before it was discounted by the bank; it was not paid by the acceptors at maturity, and was protested for non-payment. Notice was given to the plaintiff, and thereupon notice was given through the mail to the drawers.</p> <p>“I thought the transaction was usurious, and the jury took that view, for they found $12,500 for the plaintiff, without interest, damages, or costs. Their verdict should have been the sum actually loaned, $12,312 50,- and the plaintiff ought to release $187 50, the usury paid.”</p> <p>The defendant appealed, and moved this Court for a new trial on several grounds, the first being as follows:</p> <p>1. Because it was proved that the bill sued upon was discounted by the plaintiff at a usurious rate; and in accordance with the legal principle^ laid down i-n the charge of his Honor, the presiding Judge, the jury ought not to have found a verdict for more than the-sum actually lent to E. C. Leitner, which was $12,312 50.</p>

<p>Mortgage — Power to Sell — Deed—Delivery.</p> <p>The Act of 1791, in relation to mortgages, does not apply where the mortgagor is “ out of possession.” To such case the common law applies, and after condition broken, the mortgagee may maintain trespass to try title against a purchaser from the mortgagor, who has entered under his purchase.</p> <p>A clause in a mortgage of real estate, giving the mortgagee power to sell is valid: Semble,</p> <p>A mortgage of land delivered before delivery of a deed for the saíne land executed and dated before the mortgage, but-not delivered until after-wards, takes precedence of the deed.</p>

<p>The following dissenting opinion of Wardlaw, J., was not filed in time to be inserted with the case as reported at page 480 of this volume.</p>