Volume 46 — South Carolina Law Reports

BEFORE MUNRO, J., AT BEAUFORT, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ The motion for a writ of mandamus is predicated upon the following statement of facts: “Edward P. Morrall, Esq., who was Ordinary of Beaufort District, died in office, on the day of August, 1857. Administration of his estate was, on the 31st day of the same month, by the Clerk of the Court of Common Pleas, acting as Ordinary, committed to William J. Morrall.

<p>BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“Assumpsit on a policy of insurance.</p> <p>“By the policy, dated November, 1853, which was admitted, the defendant insured the brig St. Andrew to the amount of six thousand dollars, for one year, against all “ dangers of the seas, men-of-war, fires, enemies, pirates, rovers, “ thieves, jetisons, letters of mark and countermark, surprisals, “ takings at sea, arrests, restraints and detainments of all kings, “princes, or people, of what nature, condition or quality “ soever, barratry of the masters or mariners, and all other “ perils, losses and misfortunes that have or shall come to the “ hurt, detriment or damage of the said vessel, or any part “thereof.”</p> <p>“ The declaration alleged, that through the carelessness and negligence of the master and crew of the St. Andrew, a collision had taken place between her and the schooner Ellen Maria, by which the St. Andrew suffered damage, and in consequence of which, under a decree in Admiralty, she became liable for the payment of the damage done by her to the Ellen Maria, which the plaintiffs, her owners, had paid.</p> <p>“ A record from the District Court of the United States for the District of Massachusetts, was produced by the plaintiffs. This showed that N. C. Newcomb, part owner and late master of the Ellen Maria and agent for the other part owners, had filed his libel in the said Court against the brig St. Andrew, her tackel, apparel and furniture, and against all persons lawfully intervening for their interest therein in a cause of collision, civil and maritime, and by the said libel had alleged that a collision between these two vessels took' place on the high sea in October, 1854, which was occasioned by the negligence of the master and crew of the St. Andrew, and resulted in the sinking of the Ellen Maria, to the damage of her owners three thousand dollars; that notice to all persons concerned was given by publication; that the St. Andrew was taken into the custody of the Marshal, and afterward, by order of the Court, upon H. T. Street & Brothers, as her owners, finding sureties to abide the decree, she was delivered to their agent; that the answer of H. T. Street & Brothers was filed, denying negligence on the part of the St. Andrew, and attributing the same to the master and crew of the Ellen Maria, but admitting the collision and the loss of the Ellen Maria; and that in December, 1854, a decree was made, after a full hearing of the cause, upon the facts proved and arguments of counsel, ‘whereby it was adjudged and decreed that the libellant do recover against the said brig St. Andrew the sum of two thousand eight hundred dollars, and costs taxed at two hundred and eighty-five dollars and forty-five cents.’ The plaintiffs, by the deposition of their agent in Boston, showed that the expenses of repairing the damage which the St. Andrew had suffered from the collision, were six hundred and ninety-five dollars and fifty-one cents, and that the plaintiffs had paid the decree and costs, three thousand and eighty-five dollars and sixty-five cents, besides counsel fees. There was no other evidence.</p> <p>“I refused a motion for nonsuit, and in instructing the Jury, held that the record before mentioned furnished competent testimony of the collision between the two vessels, and of a detriment thence ensuing to the St. Andrew to the extent of the liability imposed upon her by the decree; that the insurers were liable for loss occasioned by the negligence of the master and crew of the vessel insured, if the vessel was seaworthy and the master and crew competent; .and that the competency of the master and crew, which the defendant had insisted was disproved by the circumstances set forth in the libel, should be judged of by the jury; that payment made by reason of liability of the vessel insured for damage done to another vessel by collision, constituted a loss covered by insurance, and was not too remote ; and that there being no evidence of the value of the vessel insured besides the valuation in the policy, there could be no proportioning of a partial loss, but the whole amount of it, if within the valuation in the policy, should be found for the insured. I instructed the jury not to find for the counsel fees which the plaintiffs had paid. Besides this, they made some other deduction from the plaintiffs’ claim, and rendered a verdict for three thousand five hundred and sixty-three dollars and ninety cents, with interest on three thousand and eighty-five dollars and sixty-five cents from 25th December, 1854.”</p> <p>The defendants appealed and now moved this Court for a nonsuit, upon the grounds: .</p> <p>1. That there was no evidence of a collision, as charged in the declaration, the record between the plaintiffs and the owners of the “ Ellen Maria” having been improperly admitted as testimony to that effect.</p> <p>2. That the record, if evidence of any thing beyond the fact of its own existence, was evidence that the collision occurred through the negligence, neglect, ignorance of duty and in-, competency of plaintiffs’ agents, for which the insurers were not liable.</p> <p>And failing in the motion for a nonsuit, then they moved for a new trial upon the same grounds, and also the following :</p> <p>1. Because his Honor charged the jury, that the question before them, upon which the verdict wás to turn, was merely the “ general competency of the crewthat the record was evidence of a collision, but was not evidence of the negligence of the guilty party, leaving the jury to suppose that they were compelled by the evidence of the decree to find the amount decreed, irrespective of the cause; and this, though the plaintiffs neither introduced nor excused themselves for not introducing the proper evidence, viz.: the witnesses to the fact; and finally, that the policy covered the negligence of the crew and captain.</p> <p>2. Because, even if his Honor’s charge be sustained in law, the verdict of the jury was not justified by the evidence.</p>

<p>BEFORE WHITNER, J., AT BEAUFORT, SPRING TERM, 1858.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The defendant, alleged to be a shop-keeper, and occupying a house in G-rahamville used for purposes, of trade, was indicted and convicted of buying corn from a slave.</p> <p>“ The bill was found November Term, 1857, and the defendant appeared by attorney and traversed in the usual form by an indorsement on the back of the record.</p> <p>“ At the present term he interposed an objection, ore tenus, by way of plea in abatement, because he had not been desig-. nated by his true Christian name. I thought the objection came too late, and the casts was submitted to the jury on its merits.</p> <p>“ The various grounds now taken in arrest of judgment require a copy of the indictment to be furnished the Court of Appeals, and perhaps, an inspection of the original bill. The form of the indictment which had been prepared before the present incumbent came into office, was not free from objections, but it remains to be seen whether after verdict it may not be sustained and judgment follow, (a)</p> <p>“ The jury was instructed, in conformity with general principles, that the offence should be set out in such way as that defendant might fully understand what be was called to answer, and that all material allegations must be sustained by satisfactory proof; that in this case the indictment had undertaken in the usual way to designate the slave by name, and as the “ slave of Joseph Gloverand amongst other things, they were directed to ascertain whether the proof sustained the allegations in these particulars. The slave was known by the name of Guffee, and sometimes called Guff. I thought the indictment might be read só as to meet the proof.</p> <p>“ The solicitor did not interrogate the witness in the usual way as to the ownership, and the omission was seized upon in the argument.- Joseph Glover, the prosecutor, was examined, and referred to some circumstances, though in a general way, (as a minute detail was objected to,) whereby, in consequence of certain discoveries in connection with the slave, he had been required to proceed with corn to this store or shop, between the hours of twelve and two o’clock at night, where the purchase was consummated.</p> <p>“ In all this, the jury were left to infer ownership, from the possession, direction and control, if in their judgment such inference was authorized, or perhaps to derive further aid from any form of expression or manner of statement by prosecutor as to the slave, as his hoy, or the like — as my notes of the evidence had not been carefully taken on that point. By some strange mistake, my remark that the allegation in the indictment of ownership was in conformity with approved form, has been confounded with an assertion that the allegations of ownership furnished evidence of the truth of the fact alleged — a blunder which could only have been equalled by an intelligent jury adopting it.”</p> <p>The defendant appealed, and now moved this Court to reverse his Honor’s ruling on the plea of abatement:</p> <p>Because it was sustainable, in that the initials T. J. S. are no name, and are not the name by wbicb defendant was known, which name was Tbomas J. S. Earr.</p> <p>Because his Honor erred, in ruling that tbe plea came too late, for tbe traverse is not a plea of not guilty, but only a motion of imparlance, and tbe appearance to indictment against T. J. S.. Earr is not tbe appearance of Tbomas J. S. Earr.</p> <p>And failing in that motion, then be moved in arrest of judgment:</p> <p>1. Because tbe indictment was framed under tbe A. A. 1817, as appears from tbe words “ not having a permit to sell tbe said corn from or under tbe band of tbe said Joseph Glover, or from or under tbe band of any other person having the care and management of tbe said slave;” and</p> <p>2. Because the State by marking in the margin “1817,” gave tbe defendant notice to defend a charge under that A. A., and not under tbe Act A., 1834.</p> <p>II. Because tbe indictment alleges that tbe slave who was traded with was tbe slave of Joseph Glover, and tbe State was bound to prove it. And bis Honor erred, in telling tbe jury they might presume it by putting together tbe two facts, that tbe State bad asserted it, and that Mr. Glover said be ordered tbe negro to go and trade with defendant.</p> <p>III. Because tbe proof was, defendant traded with a negro named Ouffee, while tbe indictment charged a trading with a negro with another name than Ouffee.</p> <p>IY. Because tbe indictment followed the words of tbe Act of 1817, and not tbe words of tbe Act of 1834.</p>

BEFORE O’NEALL, J., AT CHARLESTON, JANUARY TERM,, 1858. A sufficient statement of this case is contained in the opinion delivered in the Court of Appeals. The instrument sued on is a sealed note, and does not support any of tbe counts in the declaration. Not the two first. Parks vs ..Dulces, 2 McC. 380; Benton vs. Gibson, 1 Hill, 58; Tryon vs. DeRcty, 7 Bicb. 13 : Not the counts upon the collateral undertaking.

<p>Potver of Attorney — Assignment—Attachment.</p> <p>A power of attorney, from a debtor to his creditor, to transfer to himself bank stock which the debtor had hypothecated for the payment of her note in bank, is irrevocable, and such an equitable assignment of so much of the stock as may remain after payment of the note in bank, as a court of law will respect.</p> <p>"Where a creditor, having such a power of attorney from an absent debtor, is made garnishee in attachment, he has such possession in law of the hypothecated stock as entitles him to priority under the Attachment Act.</p>

BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858. The report of his Honor, the presiding Judge, is as follows : “Under the Acts which afford to landlords an expeditious remedy for regaining possession, these plaintiffs instituted proceedings against the defendant, their lessee, and the result was a writ of restitution ordered. “ A petition for a writ of certiorari, presented by the defendant in this court, complains that the Court of Magistrates instructed the jury to…

BEFORE MUNRO, J„ AT BEAUFORT, SPRING TERM, 1857. The report of his Honor, the presiding Judge, is as follows; “ The action was trespass guare clausum fregit — the facts upon which it was founded are these: Sometime between the years 1825 and 1830, one Wm. Kirk, by the permission of one Peter Floyd, erected a summer residence on land belonging to the latter.

IN THE CITY COURT OF CHARLESTON, APRIL TERM, 1858. The report of his Honor, the Recorder, is as follows: “ These were actions brought in the City Court of Charleston, under the 5th séction of an ordinance of the City Council, ratified 7th February, 1848. Walker’s Digest of City Ordinances, p. 48.

IN THE CITY COURT OF CHARLESTON,‘FEBRUARY TERM, 1858. Held: in the case of Anderson vs. Fowler, 1 Hill, 226, that a debt created by a penal statute is not such a contract that an action would lie on it in a Magistrate’s Court; although, by the A. A., 1824, (6 Stat. 239,) the jurisdiction of justices of the peace in matters of contract to the amount of twenty dollars is exclusive. “ The third…

BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ At January Term there was a rule against the sheriff to show cause why he did not pay money in his hands to the plaintiff in this case.

BEFORE HUNRO. J., AT HORRY, SPRING TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ The plaintiff sues as the bearer of a promissory note, drawn by the defendant, in favor of Solomon Strickland, or bearer, for $150, dated the 1st March, 1851, and payable the 1st of January following. “ About the time the note bears date, Solomon Strickland, the payee, being about to remove to Florida, sold to the defendant a tract of land for $1000, in payment of…

BEFORE O’NEALL, J., AT CHARLESTON, FEBRUARY TERM, 1858. This was an action of trespass quare clausum fregit. The defendant filed a general demurrer. His Honor held that trespass quare clausum fregit would lie against a railroad company, and overruled the demurrer. The defendant appealed. If trespass quare clausum fregit can be maintained against a corporation aggregate as such, the law has changed. Ld.

BEFORE MONRO, J., AT BEAUFORT, FALL TERM, 1858. The report of his Honor,'the presiding Judge, is as follows: “ This was an action on the case for an alleged obstruction by the defendant of a right of way of the plaintiff. “ The proof was that the plaintiff was the owner of a tract of land in Beaufort District, called Hamilton Ridge, from which there extended an old road called the “Daniel’s Ford Road,” through and over lands of Major Maner and of the defendant to a public…

BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858. Tbe report of bis honor, tbe presiding Judge, is as follows: “ Action on tbe case. “The count alleges that, by order of tbe Court of Chancery, in a cause there pending, entitled “ Jewell, etal. vs. Jewell, et al.,” tbe plaintiff offered for sale, at public auction, a certain lot in tbe city of Charleston, on tbe following terms, to wit: “ one-third cash; the balance on a credit of one and two years, to be secured by bond of…

BEFORE WARDLAW, J., AT CHARLESTON, JUNE TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ N. A. Cohen having been arrested under a ca. sa., at the suit of John Hooper, Sen., & Co., filed his petition with a schedule of his estate, to obtain the benefit of the Insolvent Debtors’ Act.

<p>BEFORE GLOVER, J., AT BEAUFORT, SPRING TERM, 1857.</p> <p>The plaintiff served interrogatories in this case, and when the defendant appeared before the Clerk of the Court to swear to his answer, the Clerk refused to swear him, on the ground that he was a free person of color. His Honor sustained the clerk in this proceeding, and the defendant was not allowed to answer. - The note being signed by making a mark in the preseiice of a colored witness, the plaintiff offered to prove his case, by producing a witness to prove the handwriting of the subscribing witness to the note; to this, defendant’s attorney objected on the ground, that the subscribing witness to the note was within the jurisdiction, and that he, himself, should have been produced to prove the execution of the note. His. Honor heard the witness, and decided for the plaintiff.</p> <p>The defendant appealed on the grounds:</p> <p>1. That his Honor erred in refusing to allow defendant to answer the interrogatories served upon him.</p> <p>2. That his Honor erred in allowing proof of the handwriting of a subscribing witness; said subscribing witness being within the jurisdiction of the Court.</p> <p>■ 3. That allowing proof of the handwriting of a free person of color, is virtually making said free person of color a witness in this Court, which should not be allowed.</p> <p>1. Party in sum. pro., served with interrogatories, may either give his answer in writing sworn to before the clerk', or ore terms in open Court; 3íth Bule of Court, Miller’s Comp. 38. '2. Free negroes may make all necessary affidavits in collateral matters, in cases in the superior court's, in which they may be parties; Qlenn vs. Lopez, Harp. 109. 3. Subscribing witness to an instrument of writing, must be produced to prove its execution if within the jurisdiction of the court; Trammel vs. Bobert, 1 McM. 307 ; Townsend vs. Covington, 3 McM. 219. 4. Proof of handwriting of subscribing witness not sufficient; the signature of the maker must be proved; Gervais vs. Beard, 2 Brev. 37; Paisley vs. Snipes, 2 Brev. 200. 5. Free person of color not a competent witness to any instrument of writing, nor in any case in Courts of Becord. Evidence of signature of free person of color as witness is inadmissible; the principal evidence being excluded, that which is secondary cannot be admitted; Groining vs. Devana, 2 Bail. 122.</p>

BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1858. The report of his Honor, the presiding Judge, is -as follows: “ The plaintiff sued in assumpsit to recover the value' of Ned, a slave purchased of the defendant, and alleged to have been unsound at the sale, and who died a few weeks after. The proof was that Ned, if sound, would have been worth eight or nine hundred dollars.

BEFORE GLOVER, J., AT WILLIAMSBURG, SPRING TERM, 1859. Sum. pro. on an account for medicine and medical services rendered. The plaintiff proved the entries from his book, and stated that he was a practising physician. It was insisted for the defendant that plaintiff should produce his license before he should be allowed to prove his account; and on this ground a nonsuit w.as moved. His Honor overruled the motion and decreed for plaintiff.

<p>BEFORE WARDLAW, J., AT, SUMTER, SPRING TERM, 1859.</p> <p>Case for negligence in transporting a slave of the plaintiff without his consent from Sumter to Kingsville. The first trial of the case will be found 11 Rich. 399.</p> <p>The jury found for the plaintiff five dollars.</p> <p>The first ground of appeal was supported by the affidavit of the plaintiff and of a witness who heard the foreman of the jury say that he was a stockholder in the road. Upon the second ground of appeal, his Honor’s report is as follows:</p> <p>“ One of the witnesses for the defendant was the conductor on the train in which it was said, Rose had been transported. He was examined in North Carolina by Commission. Annexed to his deposition was.a formal release, duly executed by the President and Secretary of the Company, under the common seal of the Companj'', a corporate body — which release, the witness deposed, had been delivered to him before his examination. Upon objection made, a witness in court testified that the signatures to the release were respectively in the handwriting of the President, the Secretary, and the attesting witness, and that all of these three persons resided out of this State. The deposition of the conductor was admitted.”</p> <p>The plaintiff appealed, and now moved this Court for a new trial on the grounds:</p> <p>1. Because one (or more) of the jury charged with the trial of the case was a stockholder in the said Company, and therefore interested in the case — the knowledge of which came to the plaintiff on information communicated after the verdict was published.</p> <p>2. Because the witness Ivey was incompetent, and the Court was not informed by proper evidence of the factum of a release.</p> <p>cited on first ground 3 Chit. Gen. Pr. 10, note n, 795, note c; Bac. Abr. Tit. Trial, L. 3; Lady Herbert vs. Shaw, 11 Mod. 119 ; Co. Litt. 157, (c) ; Bailey vs. McCauley, 66 Eng. C. L. B. 814; Hyon vs. Ballard, 7 Mod. 54; and on second ground 1 Green. Ev. § 569,570; Bex vs. Bathzviclc, 22 Eng. C. L. R. 268 ; Act 1802, 5 Stat. 435; Abbot vs. Plumbe, Doug. 205; Bussell vs. Tunno, Pinckney & Co. 11 Rich. 318; Moisés. vs. Thornton, 8 T. R. 303 ; Henry vs. Adey, 8 East, 221; Delafield vs. Hand,, 3 Johns. R. 310 ; Ang. & Am. on Corp. 195.</p>

BEFORE O’NEALL, J„ AT BARNWELL, SPRING TERM, 1859. This was an action of deceit for selling to plaintiff land.to which defendant had no title. Defendant sold and conveyed to plaintiff one hundred and twenty acres of land at the the price of two hundred and thirty-seven dollars. It turned out that defendant owned but fifty-four acres of the tract he had conveyed — fifty-six were vacant and ten were covered by an older grant.

<p>Will — Probate—Attestation.</p> <p>Where the Will was attested by the three subscribing witnesses at different times, and one of the three, who attested in the presence but not very near the testatrix, did not see her sign the Will, nor hear her acknowledge her signature ; Held, that the Will was not proved.</p>

<p>Estoppel — Evidence—Constable.</p> <p>W., a constable, having an execution of B. against E., and being indemnified by B., levied on and sold as the property of E, a mule, which J. claimed under a bill of sale from E. J. brought trespass against W., B. and S., for taking and carrying away the mule, and recovered its value. Before J.’s recovery, E. disclaimed title to the mule, but afterwards he brought an action against W. for the surplus' arising from the sale of the mule which remained in W.’s hands after satisfying B.’s execution ; — Held, that E. was not entitled to recover ; that W/s act, in levying on and selling the mule, did not amount to an estoppel, but only to an admission of title in E., and of his right to the proceeds of the sale; and that that admission had been conclusively rebutted.</p> <p>The bill of sale by E. to J., and the record in the action of trespass for taking and carrying away the mule, were held, to be competent evidence for the defendant.</p>

<p>Insolvent Debtors’ Act — Evidence—Witness. '■</p> <p>Upon dissolution of tlie firm of R. & G., G. released R. from all liability to pay the uotes of the firm, and R. released to G. his interest in the goods and choses of the firm. Judgments were recovered against the firm, and G. applied for the benefit of the Insolvent Debtors’ Act:— Held, that R. was an incompetent witness for the creditors of the firm, upon the trial of a suggestion charging G. with having rendered a false schedule, and with fraud.</p> <p>That the description of property in a schedule is vague and uncertain, is no ground for opposing the applicant's discharge under the Insolvent Debtor’s Act, unless he shall refuse to amend his schedule upon .being required so to do.</p>

<p>Trover Bond— Condition.</p> <p>The condition of the bond was “ if the above bound B. M. do appear at the Court of Common Pleas to be holden at Lancaster C. IL, &c., to answer to O. M., plaintiff in action of trover, for the production of the negro boy Peter, sued for to satisfy the plaintiff 0. M.’s judgment in case he should recover against the defendant, B. M., then the above obligation to be void,” &c. — Held, a good trover bond under the Act of 1827.</p> <p>A trover bond conditioned for the production of the chattel is not void, because it contains a further bad condition for the appearance of the defendant.</p>

<p>Promissory note — Indorser.</p> <p>Where one indorses a note drawn by a third person and payable to plaintiff or bearer, he may be charged as drawer, indorser, or guarantor, even though the indorsement be made after the note fell due, according to the circumstances, as shown by the evidence ; and he will be held liable in the capacity in which he intended to make himself liable.</p>

<p>BEFORE O’NEALL, J., AT EDGEFIELD, SPRING TERM, 1859.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The ground of appeal on the part of the plaintiffj does not make it necessary to report the whole case.</p> <p>“ A recovery of Micajah Dinkins vs. Masco Samuel of the land in controversy, was given in evidence by the. defendant.</p> <p>“It appeared that Musco Samuel entered under the present title of the plaintiff, and defended the action under it; that the plaintiff was present at the trial, and assisted in the defence, and that he lived with Musco on the land.</p> <p>“ I thought if the jury believed that Musco Samuel entered under the plaintiffs title, set that up as his defence in the former action, and that the plaintiff was present at the trial'and aided in that defence, then that recovery as much concluded him as it did Musco.”</p> <p>The plaintiff moved for a new trial upon the ground, that the presiding Judge erred in giving to the jury the following instructions:</p> <p>That if Musco Samuel, the plaintiff’s father, held possession of the land in dispute as tenant of the plaintiff, or by his permission and consent, when the said Musco was sued by the said defendant, Micajah, in a previous action for the recovery of said land, then that the verdict and judgment in favor of the said Micajah in that action, would operate against the plaintiff) as effectually as if the plaintiffhad himself been the defendant in that action, and would, therefore, be conclusive evidence against him in this suit.</p> <p>The plaintiff in this suit was not a party to the former suit of Micajah Dinkins vs. Musco Samuel, nor did he claim through the defendant in that former suit, and the verdict and judgment therein were, therefore, not conclusive or even admissible as evidence of title for the defendant in this action. Duchess of Kingston's Case, (and notes thereto) Smith’s Lead. Gas. 412, 438, and 447 ; Doe vs. Harvey, 8 Bing. 239 ; Bul. N. P. 232; 2 Hill, 527.</p>

<p>Partnership — Frauds, Statute of.</p> <p>A. and B. agreed by parol as follows: A. agreed to erect a steam sawmill on the land of B., and to manage the same at his own cost, and B. agreed to deliver at the mill, at his cost, all the timber growing on a certain tract of land belonging to B., and they were to divide the profits betweep them. A. erected the mill, and the parties complied with the contract until B.’s death, and then his administratrix refused further to comply: — Held, that this was a copartnership which was dissolved by the death of B ■ — the whole Oourt holding that if the agreement was to divide the nett profits after the lumber had been sent off and sold, it was clearly a copartnership ; and three Judges to one holding that even if the agreement was to divide the lumber at the mill, still it was a copartnership.</p> <p>Held, further, that the contract was void under the statute of frauds.</p>

BEFORE O’NEALL, J., AT EDGEFIELD, SPRING TERM, 1859. The report of his Honor, the presiding Judge, is ás follows: “ In this case it appeared that the plaintiff and defendant had been partners, that on a bill' filed for an account, the matter had been referred to arbitrators, who examined and awarded updn the matters in dispute, and in the award, directed that the plaintiff and defendant should each pay one-half of the outstanding debts of the firm.

<p>Discount — Limitations, Statute of.</p> <p>As against a discount tie currency of the Statute of Limitations is not arrested by the commencement of the action, but continues until notice of set-off is given, and if the demand be then barred the plea of the Statute will avail and defeat the discount.</p>

<p>Injunction Bond — Construction—Injunction.</p> <p>On a bill in Equity for foreclosure, it was ordered, “that the defendant be enjoined from removing the negroes, (naming them,) and that he do enter into bond with good security, in the sum of one' thousand five hundred dollars, for the forthcoming of the said negroes to abide the further order of the Court.” The condition of the bond was for the appearance of the defendant at the next term of the Court, to answer to a bill of complaint — not stating the names of the parties — and that he “ do in the meantime desist from removing or disposing of certain negroes (naming the same negroes,) until a further order of the said Court shall be made respecting the same ; then this obligation to be void.” Held, that the bond must be read as part of the proceedings in Equity, and that so reading it, it was not void for uncertainty.</p> <p>That the condition of the bond was in conformity with the order.</p> <p>That the condition of the bond was not limited in point of time, to a removal before the next term of the Court, or the making of an order. That an order for sale of the negroes, and their non-production to meet that order, was a breach of the condition.</p> <p>That the onus was on defendants to show that the decree for foreclosure was paid.</p> <p>That the injunction continued of force until dissolved by order of the Court.</p>

<p>BEFORE GLOVER, J., AT MARLBOROUGH, SPRING TERM, 1859.</p> <p>So much of the report of his Honor, the presiding Judge, as relates to the questions decided in the Court of Appeals, is as follows:</p> <p>“ The plaintiffs, with the widow and fourteen other children and two grandchildren, are the statutory heirs of Moses Parker, deceased, and in that right claim their undivided interest in the land in dispute. In a former action of trespass, quare clausum fregit, by this defendant against the plaintiffs and William Parker, since deceased, for a trespass on the same land, the defendants pleaded the general issue and liberum tenementum, and a verdict was rendered for the defendants. I refused to admit that record to be offered in evidence in this case, or to permit parol evidence of what witnesses, now deceased, swore on that trial, on the ground that, if relied upon, either as an'estoppel or as evidence, the parties are not the same.”</p> <p>The jury found for the defendant.</p> <p>The plaintiffs appealed, and now moved this Court for a new trial, on the ground:</p> <p>1. Because the Court ruled out the record in the case of John Legett vs. Lewis Parker, Harris Parker and William Parker, the same having been an action' of trespass guare clausum fregit, pleas, general issue and liberum tenementum, wherein the title to the land in dispute.had been put in issue and decided for the defendants in said action, with no difference between that and the present action, except the death of William Parker, a tenant in common with the present plaintiff's. all claiming then, as -now, through Moses Parker, their common ancestor.</p> <p>2. Because the Court also ruled out parol testimony of what witnesses now deceased swore on the trial of the action of trespass guare clausum fregit above stated, whereas it is submitted, the present action is substantially the same, and is strictly so, with the exception of the change of the relative position of the parties to the record, which of itself ought not to avail to exclude the testimony offered.</p> <p>The record of the former case, and parol evidence of what, witnesses, now deceased, swore on its trial, should have been admitted in evidence, as the same subject-matter was in issue, and the parties in both cases were substantially the same. Outram v. Morewood, 3 East, 346; Wood vs. Jackson, 18 Wend. 107 ; Lamar vs. Payson, 7 Eich. 509 ; Hitchen vs. Campbell, 2 Black. Eep. 827 ; Hancock vs. Welch and Cooper, 1 Stark. 347 ; Lawrence vs. Hunt, 10 Wend. Eep. 80 ; Phillips on Ev., note, 561; Jackson vs. Wood, 3 Wend. 27; Henderson vs. Kenner, 1 Eich. 474; Shutileworth vs. Hughey, 9 Eich. 387 ; 5 Denio, 370; 13 Howard, 307.</p> <p>cited 1 Phil. Ev. by C. & H. 391, notes, 111, 112 ; Crawford vs. Ward, 7 Geo. Eep. 445; Binda vs. Benbow, 11 Eicb. 24; Bishop vs. Tuclcer, 4 Eich. 181; Richardson vs. Moody, 2 Brev. 42 ; Douglas vs. Remanáis, 2 Bail. 78 ; Par-leer vs. John son, 2 Mill, 9; Oourdin vs. Davis, 2 Eicb. 486; Atlcinson vs. Anderson, 3 McO. 223.</p>

BEFOSE G-LOYER, J., AT MARION, SPRING TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ Copy writs in foreign attachment, in the two above cases, were served on James Lane, who returned that he has in his hands, as the guardian of Eliza Bass, the wife of the said Robert R. Bass, about five hundred and fifty-four dollars.

<p>Practice — Commission to examine Witnesses — Evidence— Bail — Ca. Sa. — Mesne Process — Sheriff—Escape.</p> <p>Where there is no suspicion of unfairness, it is a sufficient compliance ■with the Tule of Court requiring Commissioners to take testimony, to write their names across the seals, for the Commissioners to write their names across the face of the envelope, the seals being on the other side.</p> <p>If defendant be rendered by his bail after judgment, and there be no ca. sa. in the sheriffs hands, or none under which he can act, the defendant is in custody under mesne process, just as if he had never given bail.</p> <p>The recital in a prisoner’s petition for his discharge, under the Insolvent Debtor’s Act, does not bind the sheriff; he may show the contrary in an action against him for an escape.</p>

BEFORE WARDLAW, J., AT KERSHAW, SPRING TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ This was another action on the case against the late sheriff for the escape of Enoch Tryon. It was called Friday morning, the jury having the night before returned a verdict in the case of McKenzie, Cadow & Go. vs. Edwin Barnes, in which the Court had. been industriously occupied from dinner time Tuesday, taking testimony and hearing arguments.

<p>Wills — Prolate—Proof of Contents — Capacity.</p> <p>Where a will is offered for probate by the person who drew it, and who takes a large interest under it, if it appears that the capacity of the testator was weak, and other circumstances of suspicion are shown, there must be strong and satisfactory evidence, beyond the mere proof of execution, that the testator knew the contents of the will, and approved of them.</p>

BEFORE MUNRO, J., AT YORK, SPRING TERM, 1859. Trespass for entering upon tbe plaintiff’s premises and carrying away two wagon loads of corn. The defendant, a constable, offered to justify by showing that he had seized the corn under a magistrate’s execution against T. C. Traylor, the father of plaintiff, and that plaintiff’s title was fraudulent as against the creditors of the defendant in execution.

BEFORE O’NEALL, J., AT EDGEFIELD. SPRING TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ This was an action of. slander for words spoken. It was alleged that the words spoken had caused the marriage about to be had and solemnized between the plaintiff and Mrs. Josephine Watson, to be broken off. Although it was clear that they had some effect, yet they were not the sole cause.

BEFORE WARDLAW, J„ AT SUMTER, JUNE, EXTRA TERM, 1859. Held: and still holds Friday, under contract of loan, with acknowledgment of his (the father’s) title. “John Ballard, Sr., is dead, and so is Mrs. Bostick.

BEFORE GLOVER, J„ AT DARLINGTON, EXTRA TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ The action was trespass to try titles. Before 1848, an action was pending in the Court of Common Pleas, between J. C. Ward, plaintiff^ and A. N. Stuckey, defendant; and the plaintiff having been required to give security for costs, A. Gr. Crosswell became his surety.

BEFORE WHITNER, J., AT SPARTANBURG, AUGUST, EXTRA TERM, 1859.

BEFORE WHITNER, J., AT GREENVILLE, FALL TERM, 1859. • This was an action of trover, for the conversion of a negro girl. The conversion was alleged to have been made by Massena Taylor, the intestate of defendant, in his lifetime. The facts were submitted to the. jury, who found, for the plaintiff The defendant appealed.

<p>Sheriff's Bond — Sum. Pro. — Pleading—Gases Overruled.</p> <p>Sum. pro. will not lie against a surety, on the condition of a sheriff’s official bond ; the action must be debt on the penalty.</p> <p>The Treasurers vs. Walker & Horton, 2 Hill, 629, overruled.</p>

<p>BEFORE WHITNER, J., AT WILLIAMSBURG, FALL TERM, 1859.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ This was an action on the case to recover damages for a trunk lost. The plaintiff resided near' Graham’s Cross-road, had visited Charleston, and purchased a trunk and some clothing. The value of the contents, at first cost, after rather a tedious inquiry of a fellow traveller, who occupied same room at hotel, was conceded to be fifty-five dollars.</p> <p>“ Another witness who had gone down and returned with the plaintiff proved the delivery of the trunk to the conductor, who marked it for Graham’s, but gave no check.</p> <p>“ Two or three witnesses proved that the train was behind time, and arriving at Graham’s aftern ight, the delay was so brief as barely to allow passengers to get off, and a very hurried delivery of baggage, which consisted of a single trunk and bandbox. Immediately as the train passed off, the plaintiff claimed the trunk, and was removing it, when he was stopped by the witness, to whom in fact it was ascertained to belong.</p> <p>“In the defence the conductor proved that all the baggage received had .been delivered. That when the train stopped at all, at a depot, his habit was to stop at least a minute, and always long enough to put off passengers and baggage, and that on this occasion, several trunks were delivered on the platform, and no claim made at the time, or for several days after, for another trunk.</p> <p>“Evidence was offered, by way of enhancing damages, of the amount of a reasonable fee in such cases tó be paid to attorneys. The. matter was debated between counsel, but rather, it seemed to ine, as to the true sum which should be allowed for such a service. Hence, on this subject, I have a distinct impression, I in no way participated, further than to join my own reprobation with that of defendants’ counsel, as to the practice of suing in the higher jurisdiction, when a summary process would confessedly attain all .the ends of justice. In estimating the injury, the jury were told they might add as a compensation for the delay, such sum as would be equivalent to the interest, and also any special value imparted at the point of destination, and injury resulting from the particular occasion for which, the new suit was needed, though as we were not informed of any special damage, even in the delay of his marriage, much less the loss of a wife, I was unable to give them any rule on the subject.</p> <p>“Let this all be as it may, if wrong has been done to defendants, I am willing to share with the counsel on each side the blame that attaches in adding a fee to the value of the clothing, for in point of fact, the jury came into court with a verdict for damages by items, fifty-five dollars for clothing, fifteen dollars for counsel fee, and three dollars for interest, and this I permitted to be reformed by a verdict for seventy-three dollars, willing enough to get rid of the only remaining case for the Term, and which I thought had been very unnecessarily protracted.”</p> <p>The defendant appealed, and now moved this court for- a new trial on the grounds:</p> <p>1. Because, it is respectfully submitted, that his Honor erred in charging the jury that they might take into consideration the counsel fee of the plaintiff as a part of his damages.</p> <p>of</p> <p>2. Because, even if counsel fee is a legitimate item damage, there was no proof that there had been any paid; and, therefore, the jury erred in taking it into consideration as a part of the damage sustained.</p> <p>cited Sedg. on Dam. 99, 369, 370,. 375, 549, 551, 552, 553, 570 ; 3 Dal. 30; Ang. on Car. 466.</p>

<p>Evidence — Selling Spirits to a Slave — Permit.</p> <p>Where one is indicted for selling spirits to a slave, he may justify by showing a permit, and such permit may be proved by showing it to be in the hand-writing of the person having charge of the slave, without examining the person himself.</p>

BEFORE GLOVER, J., AT DARLINGTON, SPRING TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ The defendant, a shop-keeper, was indicted under the Act of 1817, for trading with a slave without a permit. The proof was, that the slave went into defendant’s shop with five pounds of bacon and an empty bottle, and came out without the bacon and with a bottle of whiskey.

<p>BEFORE MUNRO, J., AT LAU-RENS, FALL TERM, 1859.</p> <p>This case will be sufficiently understood from the opinion, delivered in the Court of Appeals.</p>

BEFOBE O’NEALL, J„ AT NEWBEBBY, FALL TEBM, 1859. The report of his Honor, the presiding Judge, is as follows :— “ In this case, the defendant relied on an alleged acceptance, under the assignment of Walker & Glenn, in discharge of their liability under a bond of $35,000. “ The assignment provides, ' and it is further a provision of this assignment, that any creditor desiring to avail himself of the provisions herein made, shall, within six months from the date hereof,…

BEFORE MTJNRO, J., AT SPARTANBURG, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ This was a summary process on the money counts.

BEFORE MUNRO, J., AT SPARTANBURG, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ This was a sum. pro. on the money counts.

<p>Real estate — Reservation—Conveyance—Timber trees.</p> <p>Where growing timber trees are reserved for the grantor, and excepted from a conveyance of the fee, such trees are considered as real and not personal estate.</p> <p>Where such an exception is made from a conveyance in fee, if the reservation be to the grantor simply, and not to him and “ his heirs,” the grantor has but a life estate in the trees.</p> <p>The grantor in such case has not only an estate in the trees, but also an interest in so much of the soil as is necessary to sustain them, and such estate cannot be terminated at the will of the grantee by giving the grantor reasonable notice to remove the trees.</p>

<p>Medical Witnesses — Dying Declarations — Hearsay.</p> <p>Medical witnesses, in giving their opinions as experts, are not confined to opinions derived from their own observation and experience, but may give opinions based upon information derived from books.</p> <p>Upon the trial of an indictment for the murder of A. by poison, which was taken at the same time by B. and 0., both of whom, as well as A., died from its effects, the dying declarations of B. are admissible against the prisoner, although the general rule seems to be that dying declarations are admissible only when the indictment is for the murder of the party making the declarations.</p> <p>Dying declarations not confined to the fact of the death and its immediate circumstances, but extending‘to the previous conduct of the prisoner : held, admissible.</p> <p>The declaration of a third person, who had as strong motives as the prisoner to commit the murder, against whom there were strong circumstances of suspicion, and who had left the State, that the prisoner was not the right man : held to be the mere declaration of a third person, and inadmissible as evidence for the prisoner.</p>

BEFORE MUNRO, J„ AT EDGEFIELD, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ The action was assumpsit — the only counts in the declaration were the money counts, and the only one of these relied on by the plaintiff, was the count for money had and received, under which he claimed to recover, according to the bill of particulars, the value of the slaves Kellah and child, Lymus and Jack, the sum of four thousand dollars, being money had and…

BEFORE GLOWER, J., AT NEWBERRY, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows : “ This is an application for a writ of prohibition to restrain the town council of Newberry from collecting taxes imposed, on the relator’s property, real and personal. “By an Act of Assembly, passed in 1841, (11 Stat., 162,) the village of Newberry was incorporated, and the limits were confined within ‘one mile in each and every direction from the court house, now…

<p>BEFORE WHITNER, J., AT ABBEVILLE, SPRING TERM, 1859.</p> <p>The facts of this case are fully stated in the opinion deliv-' ered in the Court of Appeals.</p>

BEFORE GLOYER, J., AT DARLINGTON, EXTRA TERM, JULY, 1859. Sum. pro. on tbe administration bond of William J. Mott, administrator of H. T. Mott. The action was against the administrator and his two sureties, to recover the amount of a decree in the sum. pro. jurisdiction recovered by Haveland, Harral & Co., against the administrator, on a sealed note given by the intestate. The pleas were non est factum and performance.

BEFORE O’NEALL, J.; AT KERSHAW, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ Trover for a negro woman and child. “ The gift by the owner, James Baskins, déceased, of the girl Jinney, to the wife of the plaintiff, as far back as 1842, was abundantly proven, and as no question is made in the grounds of appeal as to that matter, I do not report further that part of the case.

<p>BEFORE O’NEALL, J., AT KERSHAW, FALL TERM, 1859.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“This was an action of assumpsit on a note of hand for two thousand dollars/ drawn payable to Thomas 0. Haile, or bearer, and due 1st January, 1855. The note was dated 4th April, 1854. There is no such person about Camden as Thomas C. Haile. Thomas E. Haile is known.</p> <p>“ At the date of the note, D. L. Sargent, a well-known gambler, was in Camden. Sargent and Ben Baskins, as they both told the witness Sutherland, were in partnership in gambling. The defendant was in Camden and drunk at the date of the note.</p> <p>“ Witness said he saw two other notes, one payable to James Dunlap and the other to J. T. Gfreen, (gentlemen who had nothing to do with the gaming, and who knew nothing of the notes,) in the possession of Sargent, or Patterson, both obtained by gambling, and which were produced, and which were not attempted to be enforced.</p> <p>“ In this case Sutherland proved the declarations of Baskins, that he and Sargent went right on to Columbia after the date of the notes, and on the 5th or 6th of April he sold the note before the court to the plaintiff for one thousand dollars. They divided the proceeds in Charleston. On the back of the note, Baskins guaranteed the payment of the note: His statements made to the witness were made after the date of his guaranty, but soon after. Baskins is dead.</p> <p>“ I admitted his declarations as a party to the note, and as those of a deceased party calculated to charge himself.</p> <p>“Thejury found for the defendant. The plaintiff appeals on the annexed grounds:</p> <p>“ 1. Because there being no evidence that B. Baskin was ever in possession of the note constituting plaintiff’s cause of action, his Honor erred, it is respectfully submitted, in allowing the declarations of the said Baskins to be given in evidence to show that the note was given for a gambling debt.</p> <p>“2. Because B. Baskins was not in possession of said note at the time the declarations were made.</p> <p>“3. Because the verdict of the jury was contrary to law and evidence.”</p> <p>• 1. ff the consideration of the note was gaming then the guaranty of Baskins was void, and his declarations tended to discharge him from the obligation. 5 Stat. 178.</p> <p>2. When two persons make a joint and several note, and one of them is sued, the other is not a competent witness for the defendant. The guaranty of Baskins imposed upon him an equal liability with the maker. He would have been incompetent as a witness for defendant, a fortiori his declarations were inadmissible. Kile vs. Graham, 1 McO. 552.</p> <p>3. The declarations of an indorser after endorsement, are inadmissible for the maker in a suit against him. Crayton & Sloan vs. Collins, 2 McC. 457.</p> <p>cited 1 G-reen. Ev. § 147; 1 Mill. 275; Eoss on Mer. L. 889; 19 Wend. 357; 4 Eich. 149; 2 McO. 241.</p>

BEFORE WARDLAW, J., AT NEWBERRY, SPRING TERM, 1859. Held: that when a reasonable human being was hurt, and by his own imprudence had essentially contributed to produce the result, the presumption spoken of was not applicable; and although care, proportional to the dangerous nature of the machinery which they used, was always required of the agents of the Company, and should be exerted to…

<p>BEFORE WARDLAW, J., AT SUMTER, JUNE, EXTRA TERM, L859.</p> <p>The report of his Honor, the presiding Judge, is as follows</p> <p>“ Assumpsit on a joint note, made by these two defendants payable to the plaintiff, dated November 22, 1854, due January 1, 1857.</p> <p>“In November, 1856, Dixon being about to leave the State, the plaintiff proeeeded under the Act of 1839 (11 Stat. 94), to sue before the’ debt to him became due. A writ 'of capias ad 'respond. against both defendants was lodged November 20, 1856. Dixon was held to bail, and Tindall was served personally in December, 1856.</p> <p>“ The defendants moved for nonsuit — contending that the remedy provided by the Act of 1839, did not extend to the case of a joint contract, where only one of the joint con-_ tractors was about to remove; or that at any rate, the service upon Tindall, who remained in the State, before the note .became due, was premature and unauthorized. I was much inclined to grant this motion; but it appearing that both defendants had appeared regularly at the Spring Term, 1857' and had joined in pleading and in giving notice of discount, I concluded to let the case go on, so that under any view, a final determination of it might be had.</p> <p>“ Under the notice of discount, or more properly of failure of consideration, the following case was made by the evidence.</p> <p>“1854:. November 22, the plaintiff conveyed'with warranty to Dixon, a tract of land, for twelve hundred dollars, secured.</p> <p>“ In part payment of the purchase money, the plaintiff received from Dixon two promissory notes, each for two hundred and sixty-two dollars and fifty cents, made jointly by the two defendants (Tindall being surety), payable, one January, 1856, the other, January, 1857, which latter is tbe . note sued on.</p> <p>“The land was then under a mortgage from the defendant, Josey, to one Kelly, to secure a debt of nine or ten hundred dollars; and of this Dixon was informed at the time of his purchase, or soon afterwards.</p> <p>“ Dixon conferred with the mortgagee, and an arrangement was made for the meeting of all the parties in January, 1856, to effect a full settlement. Tindall did not attend, nor tbe mortgagee; but the plaintiff and Dixon having obtained an exact statement of the amount due upon the fi. fa. (that had been issued under a judgment, which the mortgagee recovered at law against Josey for the mortgage-debt), this plaintiff, Josey, by money paid, and by the first two of the notes mentioned given up, and a credit entered upon the second note now in question, put in the hands of Dixon the whole'of the said amount, being nine hundred and ninety-eight dollars and fifty cents, which Dixon agreed to apply to the satisfaction of the mortgage.</p> <p>“ Dixon, notwithstanding notice given to him that proceedings would be taken to foreclose the mortgage, neglected to make payment to the mortgagee. In April, 1856, a bill in equity for foreclosure of the mortgage, was filed by Kelly against Josey and Dixon. No defence was made; and under the decree of the Court of Equity, the land was sold, in January, 1857, to E. Skinner, for a sum insufficient to satisfy the mortgage, and title, paramount to that conveyed by the plaintiff to Dixon, was executed by the Commissioner in Equity.</p> <p>“ I held that Dixon was by the circumstances precluded from complaining of failure of consideration, and that Tindall was bound by Dixon’s acts and agreements in the premises.</p> <p>“ The plaintiff had a verdict for the balance due upon the note.”</p> <p>The defendants appealed, and now renewed their motion for nonsuit, on the grounds:</p> <p>1. Because the action was commenced, and both defendants served with process before the cause of action fell due; whereas the defendant Dixon, was alone proceeded against under the Act of 1839.</p> <p>2. Because a defendant has the right, under the law, to avail himself of as many defences as he may have; and by giving notice of discount or- failure of consideration, or by pleading specially, he does not preclude himself from moving for nonsuit, or making any other defence under the general issue which he would otherwise be entitled to make.</p> <p>Their motion for nonsuit failing, then the defendants moved for a new trial, on the grounds:</p> <p>1. Because his Honor, it is respectfully submitted, erred in instructing the jury that the agreement between Josey and Dixon, in relation to the mortgage, precluded Tindall, the surety, as well as Dixon, the principal, from availing himself of the defence of failure of consideration, so fully and clearly established by the evidence for the defendants.</p> <p>2. Because the defence of failure of consideration having been successful, as to Tindall, the verdict should have been for both defendants, or at least for the defendant Tindall.</p> <p>3. Because, if plaintiff furnished Dixon with funds to take up the mortgage, and Dixon failed to do so, plaintiff’s remedy is against Dixon alone, for failure to perform his promise to take up the mortgage ; plaintiff has no remedy against Tindall on the note.</p> <p>4. Any dealings between creditor and principal without the consent of the surety, whereby the surety may be prejudiced, will avoid the contract as against the latter; and here the surety has been prejudiced by the loss of the land which furnished security for the payment of the note.</p> <p>Motion for Nonsuit. Act of 1839, 11 Stat. 62, gives right of action against the debtor about to remove--the case of a joint contract not provided for. The intention is not to be presumed, but to be collected from the words of the Act, and those words should be constructed in their ordinary import. — Dwar. on Stat. T03. The Act could hardly be construed to provide, that, if there be twenty joint contractors and one were about to remove, they might all be sued. If the action be prematurely brought, it is ground of nonsuit, 1 Chit. pi. 452; Pegram & Go. vs. Williams, 4 Bich. 219 ; and, it would seem, of motion in arrest of judgment, Walher & Bradford vs. Roberts, 4 Bich. 561. Appearance and plea no waiver of right to move for nonsuit, for until' the party appears and pleads, lie cannot make the motion. The notice of discount or failure of consideration is no waiver, for that was to be resorted to as an alternative defence, the right to prepare for which, the law gives every'defendant. It would be new doctrine to hold, that a party by pleading specially waives his rights under the general issue, or that by giving notice of special matter, he waives his right to avail himself of another defence which he might make without notice.</p> <p>Eor New Trial, “ The principle upon which the surety is discharged by the creditor giving time to tbe debtor, is also applicable where the creditor enters' into any new arrangement without the consent of the surety, which will have the effect of altering the situation of the surety.” Bees vs. Berrington, 2 W. & T. pt. 2, p. 263, note citing Eyre vs. Bariop, 3 Mad. 221; and Calvert vs. The London Dock Company, 2 Kee, 637. In this case, the new arrangement consisted in paying a contractor to do a particular piece of. work, a portion of the money in advance of the time stijiulated, and this was held to discharge his sureties — a much weaker case than the one before the Court. It was Josey’s duty to take up the mortgage. ■ If he had done- so, the land would have stood as security for the payment of the debt. By not doing so, the land is gone, and yet it is said that- the surety cannot avail himself of the defence of failure of consideration. The new arrangement was a discharge'of the surety, and a fortiori it cannot deprive him of the defence of failure of consideration.</p>

BEFORE WHITNER, J., AT MARION, FALL TERM, 1859. These were cases by domestic attachment. The bonds given for plaintiffs were by William Ford, and were taken without sureties. His Honor ordered the proceedings set aside. The plaintiffs appealed on the grounds: 1. That it was erroneous to set aside the proceedings for the supposed irregularity. 2. That the irregularity was cured by an appearance entered by defendants.

BEFORE WARDLAW, J., AT NEWBERRY, SPRING TERM, 1859. Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbis was an action of debt on a prison bounds bond. “The declaration sets forth tbe recovery of judgment by tbe nominal plaintiff against Charles P. Pope, tbe arrest of tbe said C. P. Pope under a ca. sa., tbe execution by tbe defendants of a prison bounds bond with proper conditions, the assignment of the bond by Bonds, sheriff, successor of Kinard, sheriff,…

BEFOBE, O’NEALL, J„ AT KICHLAND, FALL TEEM, 1859. The report of his Honor, the presiding judge, is as follows: “ This was an action of trover to recover the value of a negro man, purchased by the plaintiff, 23d June, 1855, of Thomas Eyan, a broker, in Charleston. “The case may be stated thus: The negro, beyond all doubt, was once the property of Emanuel- Geiger. He ran away from. him.

BEFORE GLOVER, J., AT NEWBERRY, SPRING TERM, 1858. Trespass to try title.

BEFORE WHITNER, J., AT MARION, FALL TERM, 1859. Held: the said Enoch Stevens, in and upon the right side of the head of him, the said Enoch Stevens, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto him, the said Enoch Stevens, then and there, with the said gun-barrel, by the stroke aforesaid, in manner aforesaid, in and upon the right side of…

BEFORE MUNRO, J., AT BEAUFORT, FALL TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ From the facts set forth by the relators in their suggestion,(a) and which are conceded by the respondents to be true, it is manifest, that if the latter really possessed the power -winch they claim to exercise over the streets &c., of the village of Bluffton, the power in question must be derived from one of two sources : That is, it must be derived either from the…

JBEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ The action was debt for balance of four hundred and twenty-six dollars and eighty-nine cents, with interest, from February 15, 1849, claimed as due and payable on a bond executed by the defendant to the plaintiff, ou the 1st day of November, 1845; penalty, eight thousand dollars; condition, four thousand dollars; and payable in three annual instalments. “ The…

BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ The prisoner was charged with the murder of one John Saffron, alleged to have been committed on tbe 7th day of July last, in a grocery shop, in Judith near to America street. “ The facts of the case will be found so fully disclosed in tbe testimony, (which is herewith annexed,) as to supersede the necessity of any observation thereon.(a) “ In reference to the…

BEFORE WITHERS, J., AT GEORGETOWN, SPRING TERM, 1859. Assumpsit on sundry instruments declared on as promissory notes simply. The instruments were promises to pay money to the plaintiffs, or order, at the Bank of Georgetown, for value received, “with exchange on New York,” and were executed in the city of New York. His Honor held that the papers produced were not promissory notes, and ordered a nonsuit.

The report of his Honor, the*presiding Judge, is as follows: “ This was a sum. pro. on a note made by another and the defendant.(a) The subscribing witness proved that he saw the first maker sign the note, but that Stone was not then present. Jt was then proposed to prove Stone’s signature by other proof. It was objected that this could not be done, inasmuch as the subscribing witness had failed to prove it, and the defendant had denied the signature on oath.

BEFORE MUNRO, J., AT HORRY, SPRING TERM, 1858. Tbe report of his Honor, tbe presiding Judge, is as follows : “ In my Inst notions to tbe jury in this ease, I endeavored to conform as nearly as possible to tbe principles announced in tbe opinion of tbe Appeal Court, ordering a new trial. See 10 Bich. 332.

BEFORE WARDLAW, J„ AT CHARLESTON, JANUARY TERM, 1860. Tbe report of bis Honor, tbe presiding Judge, is as follows: “This was an action of trover, to recover tbe value of slave, Polidore, and tbe following are tbe facts agreed on : “ It is admitted: First.

<p> Jimh Shop. </p> <p>On proof that defendant dealt largely in buying, keeping in his store houses, and shipping to the North for sale, old metals, old ropes, rags, and other odds and ends: — Held, that he was properly convicted of keeping a junk shop without license, contrary to a city ordinance.</p>

BEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ Trespass quare clausum fregit.

BEFORE O’NEALL, J„ AT CHARLESTON, JUNE TERM, 1858. The report of his Honor, the presiding Judge, is as follows: “ In this case it appeared that the governor offered a reward for the apprehension and delivery of Moses, a fugitive slave charged with a felony, at the jail of Charleston district. “ The plaintiff, by his slaves, apprehended Moses and had him confined on his own premises.

BEFORE GLOVER, J., AT CHARLESTON, OCTOBER TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ The relators, who are free persons of color, represent, by the petition, that they were arrested by the police of Charleston and brought before the Mayor on an alleged charge of gambling; that they were adjudged to be guilty, and were sentenced each to pay a fine of fifty dollars, -or to receive twenty lashes, and they pray that a writ of prohibition may…

BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “This was a motion in behalf of the defendant to set aside a verdict which had been rendered against him at the present term of the Court on the Inquiry Docket; also, to set aside the order for judgment and for leave to appear and plead to the declaration. “ It seems' indispensable to a proper understanding of the case, that I should give a brief history of it…

BEFORE WITHERS J., AT CHARLESTON, APRIL TERM, 1859. The report of bis Honor, tbe presiding Judge, is as follows: “Scire Facias, read. Recognizance enclosed. Held: that the defence must be shown by affidavit; and none being shown,’ it is ordered, (notwithstanding Mr. Simons wishes a continuance,) that the case proceed; and it is ordered, that judgment of estreat be confirmed.” Copy Recognizance. The State H. Ahrens, J. H. Kalb — bail, $1,000. J. C. H. Olaussen — bail, $1,000.

BEFORE WARD LAW, J., AT CHARLESTON, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ Rule against Mr. Carew, late sheriff, to show cause why he should not be required to pay to the plaintiffs, the balance of the proceeds of a sale made by. him. “The affidavits of Charles Kanapaux, (deputy sheriff,) Archibald McKenzie, (landlord,) and Patrick Dewan, (garnishee.) were read in answer to the rule.

BEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859. The report of his Honor, the presiding Judge, is as follows : “This case appeared upon the docket, as represented aboye.

<p>Insurance — -Abandonment—Master—Agent.</p> <p>Under all the circumstances of the ease, it was held that the assured were justifiable in abandoning the cargo of a wrecked vessel to the insurers, although the cargo was damaged to less than half its value, and it was further held, that from the time of the abandonment, the master became the agent of the insurers, and they were liable for his acts.</p>

<p>Barth — Depositor— Chech — Holder—Implied, Promise.</p> <p>Where a check is drawn by a depositor on a bank having sufficient of his funds to meet the check, the holder, on giving notice to the bank, has the right to be paid, and if payment be refused; may maintain an action of assumpsit against the bank, on the implied promise which the law raises in his behalf; and this is especially true where the charter of the bank declares that it “ shall receive money on deposit, and pay away the same to order, free of expense.”</p>

BEFORE MUNRO, J., AT CHARLESTON, JUNE TERM, 1857. The report of his Honor, the presiding Judge, is as follows: “ This was an action of assumpsit, to recover the price of a certain lot, with a brick house thereon, situate on the north side of Queen street, next eastward of the corner of State street, in the city of Charleston. “ The defendant is the tenant of the plaintiffs, and admitted the contract, and also the title of the plaintiffs, but insisted that their estate was…

BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “This was a summary process to recover forty-seven dollars and fifty cents, being two and a-half per cent, commissions on one thousand nine hundred dollars, the proceeds of the sale of' three slaves, viz.: Horace, his wife Matilda, and their son Horace. “It appeared from the testimony, that sometime in the month of November or December, 1858, the defendant placed…

BEFORE WARDLAW, J., AT CHARLESTON, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows : “Debt upon a Prison Bounds’ bond, by which the defendant was bound as surety for Charles E. Levy, who had been arrested under a ca. sa., at the suit of this plaintiff'. “ The plea was, that Levy had been lawfully discharged under the Prison Bounds’ (or ten day) Act. “ The defendant exhibited á paper, upon which was a schedule sworn to by Levy, an assignment (in…

BEFORE WARDLAW, J.,‘AT CHARLESTON, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “ Assumpsit on a note, of which, in its present form, this is a copy, viz: Charleston, June 12tA, 1856. “ Twelve months after date, I promise to pay to the order of Robert McCreary, one thousand dollars, for value received. Interest from date.

BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, Í859. Held: on all these points, in favor of the plaintiff.; and he had a verdict for what was claimed, to wit, for two thousand and forty-eight dollars and ninety-five cents, without interest. The defendants appealed and now renewed their motion for a nonsuit, on the grounds: 1.

BEFORE WITHERS, J„ AT CHARLESTON, JANUARY TERM, 1860. Thg report of his Honor, the presiding Judge, is as follows: “ This action was in assumpit for the price of a house, situate on Sullivan’s Island; and this was a second trial.

BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ Action on the case for damages, for the detention of the plaintiff’s slaves in the work-house, on the allegation that they were free, which the highest Court had overruled.

<p>BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>“ The action was case, claiming damages for a negro, Charles, killed upon the North Eastern Bailroad.</p> <p>“ The declaration contained two counts: the first alleging that the defendant took on hire from the plaintiff his negro, Charles, a house carpenter, to be employed as such, and had diverted him to a different employment, whereby he was killed, and alleged a liability thereupon to respond fob 'his value. The proof did not sustain this count, and the jury were so advised. The second count, reciting that the defendant, having charge of the slave of the plaintiff, on hire, was bound to take due care of him, but alleged that he had so negligently conducted himself in that behalf, that the slave had been wholly lost to the plaintiff, whereby the defendant became liable for his value. A third count was in trover. The case was made to turn on the second count. It appeared in evidence, that the defendant, and one Moore, were engaged by contract with.the North Eastern Railroad Company, in building a bridge over the Santee river, and one Jackson was their agent and superintendent of the work, and various hands, slaves and white men, engaged in and about that work; that they had a saw-mill, some miles from the river, and about one and a quarter miles from the St. Stephen’s Depot, where the lumber was sawed and the bridge framed; that the railroad company had agreed to transport on their trains the timber from the mill to the place where the bridge was to be erected; that the hands, and Charles among them, under the authority of Jackson, went back and forth, on the trains which carried the timber for the bridge framed at the mill, loading and unloading the cars; that on the 22d May, 1857, a train laden with lumber for the bridge arrived from the mill at the depot, and had to wait there and take such position as to permit another to pass; that the train had gone on the turn-out; that Charles, among other negroes, was on the platform, some having bags of provisions ; that while the train was backing up to the platform, Jackson on it, and moving slowly, supposed to be at the rate of three miles an hour, the engineer intending to stop (as he testified) as much for the negroes to get. on as for any thing else, Jackson, while the train was in motion, at the rate aforesaid, proclaimed to the negroes on the platform, ' all aboard;’ that one of the negroes sprung on one car laden with lumber, falling back on the lumber, but Charles, in the attempt he made on another car, failed, and falling between the moving car and the platform, two trucks passed over him, and he died in half an hour. The engineer said he remarked at the instant he heard the order from Jackson, that there was danger in it; and he and others said it was specially dangerous to attempt to get on such cars, platform cars, laden with lumber, with no steps or hand rail, while in motion. Jackson, in his testimony, stated, he gave the order above, and that Charles was at the moment asleep, or lying down.</p> <p>“ I put the case to the jury upon the questions:</p> <p>“ 1st. Was Jackson the defendant’s agent, and employed in and about his business, when he gave the order, ‘ all aboard ?’</p> <p>" 2d. Was that order, under the circumstances, negligent, and the cause of the negro’s death ?</p> <p>“I held, that this form of action could be maintained againt one of several who might be responsible for negligence. And though it might appear (and it did appear that the plaintiff, by agent; before and directly after the death of Charles, had given receipts for his wages to Moore and Smith,) that the hiring was to Moore and Smith, yet the allegation, (in this form of action the contract not being the gist of it, and the matter being recitative,) that the defendant had charge, and the care and custody of Charles, by hiring, was well enough maintained by the proof; and it was immaterial in action for tort that Moore might also be joined with him in the care and custody, and be also liable to be sued.</p> <p>“ The doctrine announced in the second ground of appeal was urged on the jury, but I told them I saw no- application of it to this case. I admitted it might have applied, if Charles’ master and Jackson had been co-employees under Moore and Smith.</p> <p>“ The jury were not prevented from taking the view set forth in the third ground of appeal, but I did not instruct or advise them to take it, because I saw no warrant for it in the evidence.</p> <p>“Nor was the proposition, that if an agent does a wilful act of trespass, enunciated in the fourth ground of appeal, controverted, but, on the contrary, recognised as law. I suppose the jury did not see the application of it in this case; nor did, or do I.</p> <p>“ I was not aware, till I read the fifth ground of appeal, that the verdict of the jury was liable to the criticism therein set forth. I think I comprehend what the jury-meant, because I advised them, if they found for the plaintiff' at all, to refer their finding to the second ‘count.’ Such was the noise, however, generally prevailing in the court room, that the jury may have understood me to say 'account,’ which I think I did not say ; while I acknowledge that if I had so said, it would have been more flagrantly erroneous, and decidedly more discreditable in me than I deem the same to be in the jury. I can only leave that ground of error to rest on proferí of the untechnical language of the verdict.”</p> <p>The defendant" appealed and now moved this Court for a new trial on the grounds:</p> <p>1. Because the declaration alleged the hiring of the slave Charles, to have been to B. Press Smith, by whose negligence he was killed; whereas the proof was, that .the hiring was to the co-partnership of Moore and Smith ; and if there' was negligence, it was on the part of the agent of the said co-partnership.</p> <p>2. Because his Honor erred in charging the jury, that the rule of law, that one employee cannot sue his principal for the negligence of his co-employee, could not, and did not, apply to this case.'</p> <p>3. Because, if the said slave had remained on the train, as was his duty, from the mill of Moore and Smith, the place of starting, to the Santee river, the place of destination, he would not have been killed. That the act of his getting off and falling asleep at St. Stephen’s d,epot, while the train was waiting for the passage of another train, was a wrongful and voluntary act; and that therefore his Honor should have charged the jurjr, as contended for, that if the conduct of the slave himself had not been free from blame, or if the mischief complained, of was the result of the combined negligence of both defendant’s alleged agent and the slave, there could be no recovery.</p> <p>4. Because the order of the alleged agent, if given, was under the circumstances wilful, and not within the scope of his authority.</p> <p>5. Because the verdict being in these words, ‘ we find for the plaintiff fifteen hundred dollars on the second account,’ and there being no account on which it could be founded, is uncertain and void.'</p> <p>cited on first ground: Max vs. Roberts, 12 East, 94 ; Weall vs. King, 12 East, 454; Storhfleet vs. Fryer & Bird, 3 Strob. 301.</p> <p>On second ground: Murray vs. S. O. R. R. Go., 1 McM., 385.</p> <p>On third ground: Richardson vs. Wil. and Man. R. R. Go., 8 Bich. 120 ; R. R. Co. vs. Winn, 19 Geo. B. 440.</p> <p>On fourth ground : Parleerson vs. Wightman, 4 Strob. 371.</p> <p>And on fifth ground: Gity Oouncil vs. Waheman, 2 Sp. 374.</p>

BEFORE MUNBO, J., AT CHARLESTON, JANUARY TEEM, 1859. The report of his Honor, the presiding Judge, is as follows: “Pursuant to the judgment of the Court of Errors, pronounced at January Term, 1857, remanding this case to the Court of Probate, then entitled William ■ E. Dawson vs. Elizabeth Corbett; see report of case in 10 Rich. 505; and for abstract of the facts see’ pages 508-9 : “ to inquire and determine, whether the incompetence of Dawson to testify in the cause, can be…

<p>BEFORE WITHERS, J„ AT CHARLESTON, JANUARY TERM, 1860.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>" These were actions of debt, under and by virtue of the second section of an Act of Assembly, passed in 1840, which is in these words: “Every bank which shall suspend the payment of current coin for its notes, or which shall declare a determination to suspend, or refuse payment of its notes according to their legal obligation, in current coin, shall become liable to pay to the State of South Carolina, at the expiration of every month after such suspension, or declaration, a sum of money, at the rate of five per centum per annum upon the whole amount of its notes which shall have been issued in circulation at the commencement of the said month, and shall continue to pay at the same rate at the end of every month, until the said bank shall revoke its declaration, and shall lawfully redeem its notes when demanded, according to their legal obligation; the said sum of money to be recovered by action of debt, in any Court of competent jurisdiction.”</p> <p>"The banks above named .suspended specie payments, October 12th, 1857: and the debt sued for against each was a sum resulting upon a calculation, at the rate of five per cent, per annum, on the circulation of each, on the 12th October, 1857, the 12th November, ■ 1857, and for eight days of December, (from the 12th to the 20th of that month in 1857,) at which last day an Act of Assembly was ratified, providing (inter alia,) that the 2d section of the Act of 1810, above cited, “be, and the same is hereby suspended, until the first day of January, 1859, on the express condition, that no execution, issued upon judgments already obtained, or hereafter to be obtained, by any of the non-specie paying banks, shall be enforced until such bank shall resume specie payments : provided, that each debtor against whom the banks obtained judgment and issued execution thereon, shall pay to the banks to whom they may be so indebted, interest upon the whole amount of the judgment recovered, at the expiration of every sixty days from the passage of this Act, at the rate of seven per cent, per annum; and any debtor neglecting or refusing so to do, shall be ‘deprived of the benefits of this Act: provided, that if the property of the debtor be sold under an execution, or executions, of other creditors, the execution of the bank shall be entitled to the same lien and payment as now provided by law.”</p> <p>“ Demand of the debts sued for was made on the banks, January 80th, 1858; and actions brought, April, 1858. The Legislature met on the fourth Monday in November, 1857.</p> <p>“ The defence rested on these positions:</p> <p>“ 1. That the, Act of Assembly of 1857, though ratified 20th December, 1857, had relation back to the first day of the session, and, therefore, cut off all that was claimed for eight days of December, being the time between the 12th of that month and the 20th — the 12th being the end of a month of suspension. It was contended, also, that the sum to be recovered was to be reckoned by the month, not by any fraction of a month of suspension.</p> <p>“ I differed as to this position, and overruled it.</p> <p>"2. That the Act of 1840 imposed a Penally; and(being suspended as to the penalty, and as to all proceedings under it until 1859, (January 1st,) — and the demand, as well as the actions in these cases, being made and instituted during the term of suspension, these actions were not maintainable.</p> <p>"I disagreed with this position also, and overruled it. I held that the repeal of a law enacting a criminal effence, with a punishment provided on conviction, if repealed, estopped prosecutions under it, whether pending at the time of repeal, or instituted after the repeal, for offences committed before that period, against the provisions of the Act so repealed. I thought, also, there was good authority for placing'the case of & penalty, such technically, on the footing of a punishment for crime. But no case cited placed the suspension for a term of either a penal or a criminal Statute, on the same footing with the repeal of either. But, however that point may be decided, I held that the Act of 1840, second section, did not impose a penalty; that it was a financial scheme; that, if the banks suspended, allowed as they were a franchise which enabled, them to supply a currency for the people, and on suspension furnishing a currency which was below the standard of specie, at variable rates of depreciation, the Legislature designed, and wisely designed, to take from them five per cent, per annum of the larger .per cent.' they received from the people, place it in the Treasury in ease of the taxes to be levied of the people, and who would otherwise have to pay the legal rate of interest for the use of money, upon what was not money or its just representative ; and by such scheme, something like a pecuniary equalization was arrived at, whereby, in the end, the people would ultimately pay to the banks a rate of interest, if only two per cent., proportionate, nevertheless, to,the value of the currency they obtained, and the other five per cent, would go into the Treasury in ease of their burthen of taxation. I observed, also, that in other sections of the Act of 1840, forfeiture and penalty, eo nomine, were inflicted, that is, on bank officers . making default as to returns therein required, &c. If, then, what was now demanded was strictly a debt, though the second section of said Act was suspended for two years or so, yet a debt could be sued for at common law, and no permission to sue for it by statute was needed.</p> <p>"Touching the demand for the fraction of a month: I thought, and so held, that the rate of calculation was fixed by the Act of 1840, being according to the standard of five per centum per annum; that a month of suspension was spoken of, but only as fixing the period at which the liability could be enforced, not that the default must necessarily last a whole month before the liability could attach. Otherwise the mischief would not be remedied, for that was inflicted by the suspension, whether it endured eight days or thirty days. Besides, a declaration of a determination to suspend was equally prohibited as an actual suspension, (and obviously it would produce the same kind, if not the same degree of mischief;) and if the fraction of a month was excluded, a bank could declare such a determination, or actually suspend, on the first day of a calendar month, and revoke the declaration, or resume specie payments, the day before the month terminated,, and so from time to time, and, according to this ground of defence, such hank was safe from any operation of the Act of Assembly.</p> <p>“I held that the State was entitled to verdicts, in the several cases, and they were rendered accordingly. An appeal is taken on grounds annexed.</p> <p>“ I believe there was a case against the People’s Bank; but that bank is not named among those appealing. It can be added to the others, if so desired, and such be the understanding. ”</p> <p>The defendants appealed, and now moved this Court for a nonsuit, and failing therein, then for a new trial, on the grounds, to wit.:</p> <p>1. Because the second section of the Act of 1840, was suspended by the Act of 1857; and while suspended, no suit or action could be brought to recover the penalty or forfeiture specified in it.</p> <p>2. Because, after the suspension of the said second section of the Act of 1840, it could not be enforced for the penalties or forfeitures previously incurred under it.</p> <p>3. Because the Act of the General Assembly of the year 1857, relates back to the first day of the Session, and taking effect from that day, releases the penalty subsequently incurred.</p> <p>4. Because there- can be no recovery under the said second section of the Act of 1840, for'any period of time less than a month.</p> <p>cited United States vs. Passmoore, 4 Dal. 372; State vs. Gole, 2 McO. 1; Allen vs. Farrow, 2 Bail. 584; 6 Bro. P. 0. 553; 4 T. B. 660; 5 Yes. 237; Esp. P. St. 22; Dorchester vs. Webb, Cro. Car. 372; Wanford vs. Wanford, 1 Salk. 279.</p>

BEFORE WITHERS, J., AT CHARLESTON, JANUARY TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ A motion was made on the part of the plaintiffs to allow the late Sheriff (Carew) to make return, mine pro tunc, of the levy of the writ in Foreign Attachment of these plaintiffs against the defendant, issued 15th May, 1857.

BEFORE WITHERS, J., AT OHARLESTON, JANUARY TERM, 18G0. These actions were each upon a note. The defendants had appeared, pleaded the general issue, and in each case a verdict was rendered for the plaintiff. Judgments were regularly entered, and the defendants moved for a rule upon the plaintiff to show cause why they should not be set aside, on the ground, that Bonum, one of the defendants, was a slave. The motion was sustained by affidavits. His Honor refused the mdtion.

<p>Administration — Sureties—Administration Bond.</p> <p>Administration may be granted to one residing beyond the limits of the State.</p> <p>The Ordinary may take as sureties to an administration bond, persons residing beyond the limits of the State.</p>

BEFORE MUNRO, J., AT COLLETON, SPRING TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ This was an appeal by the Railroad Company from an assessment made by a majority of Commissioners appointed to assess the amount of damages due to the land owner, for the right of way through his land, taken by the company.

BEFORE WHITNER, J„ AT GREENVILLE, SPRING TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ This was a suit in trespass for burning the screw and seven bags of cotton of plaintiff. “ His case rested mainly on the testimony of a single witness, Stacey E. Black, who professed to have heard a conversation between two of the defendants, father and son, and another conversation between the other defendant and somemegroes, whilst employed in pulling fodder,…

<p>Indictment — Trading with Slaves — Retailing—Statute of Limitations.</p> <p>As to distillers, vendors and retailers of spirituous liquors, the Act of 1834, 7 Stat., 469, repeals the Act of 1817, 7 Stat., 454, as to illicit traffic with slaves.</p> <p>Where the punishment of an offence — as, for instance, retailing spirits without a license — is fine or imprisonment, in the alternative, the prosecution will be barred under the Act of 1748, 3 Stat;, 701, if not commenced within six months. '</p>

BEFORE WHITNER, J., AT LAURENS, SPRING TERM, 1860. The report of bis Honor, the presiding Judge, is as follows: “This was an action of assumpsit by indorsees, against acceptor on following bill of exchange : “ $20,000.

BEFORE .WHITNER, J., AT PICKENS, SPRING TERM, 1860. Indictment for unlawfully marking six hogs belonging to J. H. Beck. The proof was, that one of the defendants marked one hog, which he claimed, and that two. other hogs were claimed and marked by the other defendant at another time. The verdict was guilty. The defendants appealed, and now moved this Court for a new trial, on the grounds: 1.

BEFORE GLOVER, J., AT CHESTER, SPRING TERM, 1860. The report of his Honor, the presiding.

<p>BEFORE MONRO, J., AT ABBEVILLE, FALL TERM, 1859.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ Under a decree of the Court of Equity, directing a sale of the estate of one Bird, deceased, for partition among the distributees, on sales day in January, 1859, the plaintiff, as Commissioner of that Court, .exposed for sale sundry slaves belonging to said estate, at which sale the defendant became the purchaser of a negro man named Lewis, at the price of $890; and in conformity with the terms of sale, executed to the plaintiff a bond to secure the payment of the purchase money. So that it is the recovery of this amount which the plaintiff seeks, as Commissioner, by action of debt to recover “ The defence was failure of consideration under the rule laid down by the Court of Errors in the case of the Commissioner vs. Smith, 9 Bich., 515, the slave having died about eighteen days after the purchase, to wit: on the 25th day of the same month, of a chronic disease, under which he was laboring at the time of the sale. To this it was replied that assuming the slave to have been diseased and unsound at the time of the sale, this defence could not avail the defendant, inasmuch as at the commencement of the sale, and during its progress, the plaintiff had caused to be proclaimed in the presence and within the hearing of the bystanders, that there would be no warranty of the soundness of the property, but that those who might be desirous to purchase, were referred to Mr. Wilson, who had been Bird’s overseer, and to Capt-Johnson, for any information respecting the condition of the slaves.</p> <p>“ This being a question of new impression, and likely to be one of frequent occurrence,- — for I was given to understand during the progress of this trial, that it is the habit of the present plaintiff to make similar announcements at all his official sales of personal estate — I announced it tobe my purpose to rule in such a way as to have the question finally adjudicated by the Appeal Court, although it is but justice to myself to say that my ruling was then in accordance with my own views of the law, and accordingly instructed the jury that it was as competent for a Commissioner at such a sale to make a disclaimer of warranty as it was for a private individual, and that the effect of such disclaimer in defeating the defence set up, would be the same as if the plaintiff had been acting in his private capacity.</p> <p>“ As regards the third ground of appeal, I would take leave to remark that the jury having been out for some time, expressed a desire to return into Court. What that purpose was I was not apprised until they came in. When they came in, .the foreman remarked that they did not precisely understand the rule I had laid down, or something to that .effect. I repeated it to them in nearly the same language I had doné before, or probably in similar language to that which is attributed to me in the second ground of appeal. But for my ruling of the law as I did, I have not the slightest doubt that the jury would have found a verdict for the defendant — nay, I can hardly suppose they could have found otherwise, for •the proof of the unsoundness of the slave at the time of sale, although apparently unknown to any one at the time, as established by the post mortem examination of the body by Drs, Pressly and Anderson, could hardly leave a doubt on the mind of any one.</p> <p>“ The only question then which I considered as involved in the case, was the purely legal question to which I have referred; and in passing upon this question, I am wholly unconscious of having been influenced by any other motive than an unbiased judgment — least of all was it my purpose in announcing a simple legal proposition “to wring a reluctant verdict from a jury, contrary to the law, evidence and the justice of the case.”</p> <p>“ I have made no specific reference to the testimony, because I considered there was nothing more than a legal question involved in the case.”</p> <p>The defendant appealed, on the grounds:</p> <p>1. Because the consideration of the bond sued on was a negro, who had dropsy of the heart at the time of the sale, and was in consequence utterly worthless to the defendant.</p> <p>2. Because his Honor erred in charging the jury that the plaintiff, Commissioner in Equity, had the right of his own head and without authority from any one, to disclaim warranty, so as to defeat the defence of failure of consideration.</p> <p>■ 8. Because the presiding Judge had the jury called back into Court, and a second time told, them emphatically that he took the responsibility of charging that the Commissioner had the authority to disclaim warranty, and which disclaimer was as effectual as that of any one, to defeat the defence of failure of consideration.</p> <p>4. Because his Honor would not charge the jury that such disclaimer could only be considered upon the question of notice by the defendant, under the plea of failure of consideration ; but on the contrary, charged that such disclaimer did more than put the defendant on his guard — that it brought the cause under the principle of law applicable to warranties between individuals trading in their own right.</p> <p>5. Because his Honor charged, that the mere unauthorized declaration of a Commissioner, that there was no warranty, took the case out of that class which proceeds upon the ground of failure of consideration, and placed it in that other class which depends exclusively upon warranty.</p> <p>6. Because the verdict, wrung from a reluctant jury, is contrary to the law, as well as the evidence and justice of the case.</p> <p>1. At the common law a purchaser may rely upon the defence of failure of consideration, certainly where there is an entire failure; and the defence in such cases does not go upon the ground of contract, but "because the thing contracted and paid for is not received.” Chit, on Con. 461-4, and note»; Wharton vs. O'Hara, 2 N. & McC. 65; Colville vs. Berly, 2 Denio, 139 ; Chit, on Con. 622, note.</p> <p>2. In this State the new doctrine has been adopted — which goes further than the common law — that where a full price is given, the seller is presumed to have agreed to warrant soundness as well as title. Timrod vs. ShooTbred, 1 Bay, 324, and numerous cases.</p> <p>3. But there is a class of cases where the sale is made under-such circumstances that there cannot be a contract of wanranty, either express or implied, and in such cases the ends of justice require that we should fall back upon the common law doctrine, at least as to executory contracts. Commissioner vs. Thompson, 4 McC. 434; Evans vs. Dendy, 2 Sp. 9; Fuller vs. Fowler, 1 Bail. 75; Prescott vs. Holmes, 7-Eich. Eq. 1.</p> <p>4. In making a sale for others, an executor, an administrator or a commissioner exercises an agency for the parties, which so connects the owners of the property with the purchaser, as to authorize tbe latter to plead failure of consideration, upon the common law principle. Commissioner vs. Smith, 9 Eich. 520, and the authorities cited.</p> <p>5. But the agency of a commissioner, who makes a sale under an order of Court, is limited and special. The power granted in the order is in writing, and cannot be extended so as to give the right to stipulate in any way upon the subject of warranty. And, therefore, neither his warranty nor disclaimer of warranty binds either himself or the parties. From his position the commissioner is legally and necessarily silent upon the subject of warranty. Story’s Agency, § 76; 5 B. & Aid. 204; FLugg vs. Smith, 1 Taunt. 352; Gibson vs. Colt, 7 Johns. E. 390.</p> <p>cited Turnio vs. Fludd, 1 McC. 121; Singleton vs. Seriott, Dud. 257; Long' on sales, 402; Paley on Ag, 209; Skinner vs. Gunn, 9 Porter, 305; Story on Ag. sects. 59, 97,122.</p>

BEFORE MCJNRO, J., AT ABBEVILLE, FALL^TERM, 1859. The report of his Honor, the presiding Judge, is as follows : “ The plaintiff, Sims, and one J. B. Clark, by an agreement in writing, bearing date the 23d November, 1853, jointly contracted with the defendants, as -trustees of- the Cokesbury Conference School, to put up a building at the last-mentioned place, to be completed by the 1st of May, 1854, for which they were to receive the sum of onedhousand seven hundred and…

BEFORE WITHERS, J\, AT CHAMBERS, JUNE, 1859. In March, 1853, the plaintiff issued his writ in debt against the defendant, returnable to Spring Term, 1853, of the Court of Common Pleas for Fairfield District. The writ was duly served, and no appearance was entered by the defendant. In July, 1853, the defendant, having been arrested at the suit of another creditor, applied for the benefit of the Insolvent Debtors’ Act.

BEFOBE WHITNEB, J„ AT LATJBENS, SEEING TEEM, 1860. The report of his Honor, the presiding Judge, is as follows : “ This action was brought to recover a sum of money on an alleged undertaking of defendant’s testator, Wm. E. Smith. Plaintiff married the daughter of testator, and shortly after was about to remove to the West.

<p>BEFORE MUNRO, J., AT CHARLESTON, JUNE, 1856.</p> <p>This was a suggestion praying’ a writ of prohibition to restrain the City Council of Charleston from enforcing the payment of certain assessments.</p> <p>His Honor refused the motion for a writ of prohibition, and the relators appealed.</p> <p>After argument in tbe Law Court of Appeals, tbe ease was ordered to this Court, where it was first heard in January, 1859. At that Term an order was made as follows:</p> <p>The Court is satisfied on all the grounds of appeal except the eighth in the first case, and the second in the other case. On those grounds, involving the constitutionality of the assessments, and their enforcement, “ grave doubts” are entertained, and upon them a re-argument at the next Term is ordered; and the attention of the attorneys concerned is directed to the Act of 1764, entitled “An Act to empower certain Commissioners therein mentioned to keep clean, and in good order and repair, the streets of Charleston, and for establishing other regulations in the said Town,” to be found in miscellaneous Acts from 1740 to 1778, marked C, in the Library of the Court of Appeals, at page 3 of the Acts of 1764 therein contained, and to the other previous Acts on the same subject, which may be found in the same and the other preceding volumes.</p> <p>^ JOHN BELTON O’NEALL,</p> <p> President. </p> <p>31si January, 1¿59.</p> <p>The case was nd|w reargued upon the eighth ground of appeal.</p> <p>In discussing this question, we must distinguish between the right of the State to take the property of particular individuals for some important public object, and the right to compel particular individuals, or the owners of particular property, to pay the expense incurred by the State in accomplishing the object. The latter is the question no w before us. Can the State (and I concede that the City, by virtue of its charter, may do all that the Legislature itself could lawfully- do in the premises), use the land of an individual for some public improvement, and then charge the compensation paid to the owner of the land, on certain individuals, because of tbe peculiar benefit conferred on their property? We do not gainsay, as was implied in tbe printed beads of argument of tbe City Attorney, the right- of tbe State to use a citizen’s property, even without compensation, if it is required for an important public road or street, or any other important public object. In other words, we admit tbe right of eminent domain in its fullest extent. But tbe right of eminent domain is entirely beside tbe question in this case.</p> <p>Tbe reason on which the propriety and justice of tbe right of eminent dopiain rest, is in its very statement an argument against tbe right now claimed. “ Tbe right of eminent domain,” says Ob. Kent, “gives to tbe Legislature tbe control of private property for public uses, and for public uses only.” 4 Kent Com. 389. It is essential, then, to tbe lawful exercise of tbe right of eminent domain, that tbe property taken away from its owner shall be taken for tbe use and benefit of tbe public — of tbe community at large, not of any individual or individuals. But if tbe whole community are benefitted by tbe appropriation of tbe individual’s property, tbe consequence is as logical and irresistible, as it is just, that tbe public should pay tbe expense. Tbe expense, whatever it may be, should be taken out of tbe public treasury.</p> <p>Again: it is only on tbe ground of public necessity, or great advantage to tbe public at large, that tbe land of tbe citizen can be taken and used by tbe sovereign. But tbe acts we are considering charge tbe owners of tbe adjoining lands, with one-half of tbe cost, expressly o.n the ground of peculiar benefit to them. Tbe language is “in consequence of tbe particular and local advantages resulting from tbe widening of tbe same.” Tbe city have used tbe land of individuals to widen George street. If tbe act was lawful >and proper, it must have been so because the widening of tbe street was a matter of benefit to the public at large. And I admit it to be so. If it be a benefit at all, it is so to the public at large. But if the benefit conferred is on the whole community, how can the cost be charged on a few individu- ' ais, and not on the public treasury ? In the Railroad Company vs. Chappell, Eice 888, it was decided that railroads are public improvements, and therefore private property may be taken and used for their construction. (P.-899.) But suppose the State were to build one for the public benefit, the adjoining proprietors would certainly be peculiarly benefitted. But no one would contend that they could constitutionally be compelled to pay the cost. And I am not able to perceive any difference between that case and the present one.</p> <p>I confess the proposition involved in these grants of power to the City Council is, to my mind, very startling. I can understand why, if a great public improvement were needed, and it could not be accomplished without using my land, it would be right and proper to take it. But it seems to me equally clear that I have a right to enjoy my land according to my own pleasure, so far as I do not render it a nuisance to my neighbors or to the public. If, for example, it becomes a pool of stagnant water, so as to generate disease, it is proper that it should be drained or filled up at my expense, if I refuse to have it done myself. But, if it is inconsistent with my taste or my pecuniary means that it should be improved in a particular way, my sense of liberty and justice revolts against the idea of power in the State or city so to improve it, contrary to my wishes, and compel me to pay the cost. The principle is of the very essence of arbitrary power, and if it were extensively carried out in the administration of affairs, I cannot conceive of anything that would be a more fruitful source of indignation and resistance.</p> <p>And to render this law more objectionable, the notion that tbe widening of a street necessarily confers a peculiar benefit on those who own lots bounding on the street, is a fallacy. As to this particular case, it may be that some of the property on the street has been benefitted. But as to a large part of it, it certainly has not been. St. Philip’s Church owns some of the lots on the south side of the street, which are rented out from year to year, as well as some which are on long building leases, and the rent has not in any instance been increased one dollar. Again, this part of George street ■is intersected by several cross streets — Coming, Glebe, St. Philip — and the buildings of some of the parties assessed front on the cross streets, and their entrances are on these cross streets. Their lots bound on George street, but do not front on it, and they make no use of George street. The widening of George street is of no manner of consequence to them; ■while, on the other hand, it is decidedly beneficial to the pro- ■ prietors of the house on Coming street, opposite to George street, giving him, as it does, a fine view down this broad street, and also to many persons at a distance, who find George street a convenient thoroughfare. But none of those persons pay any thing for the improvement.</p> <p>The power to exact these assessments, I have said, cannot be derived from the right of eminent domain. It cannot be maintained unless it can be deduced from the right of taxation. And the argument of the City Attorney seems to make that point (p. 3,) by putting it on the same footing with the power to lay assessments for pavements, and affirming that the latter “is as constitutional as the general power of the Legislature to lay taxes upon the people of the State.” I take issue with him upon that.</p> <p>The proposition will not be disputed, that taxation, to be lawful or constitutional, must be equal, and must be for public objects. “ Every person,” says Ch. Kent, “ is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of government.” 2 Com. 331. Equality implies that if one citizen’s property is taxed, similar property of every other citizen in the same- community must bear the same tax. The government must not undertake to decide that certain persons are benefitted by a certain improvement, and raise the amount it cost by taxing their property. The money raised by taxation can only be legitimately laid out on public objects, and public objects must be paid for out of the public treasury.</p> <p>I contend then, that upon principle, this tax or assessment is unequal and unconstitutional; that it is exactly that •“ partial legislation” which our Court has said, in Dunn vs. The . Gity Council, Harper’s Eep. 199, is “ contrary to the law of the land,” and unconstitutional! And this position does not conflict with any of our decided cases. Numerous instances of establishing, widening, and extending streets have occurred, and this, I have been informed, is the first case in which the City Council has ever attempted to ’ collect the assessments against the will of the lot owners. The case of Lindsay vs. The Commissioners, 2 Bay, .58, was cited on the 'other side at the last hearing. In that case the plaintiffs were not only owners of the lots assessed, but also of the land over which the new street was to pass. And the only point made was, whether the State could take the citizen’s land for the purpose of making a street, without compensation. The right to assess the adjoining lots was not questioned. It was yielded by the plaintiffs, and, of course, was not considered nor decided by the Court.</p> <p>The other cases relied on are, all of them, cases in which the Court sustained assessments made on adjoining lots, for the purpose of defraying -the cost of pavements and drains Now these cases are certainly not so identical with that at present under discussion, nor so exactly analogous to it, as to make the decisions amount to res judicata, and preclude the Court from determining this case differently, without overruling former decisions. Besides that those were cases of building pavements and drains, and this is a case of enlarging a street — very different things — and that the power to assess is' conferred in the two cases by distinct Acts of Assembly, there is also an obvious difference in point of the justness of the power. Pavements and drains are established in all the streets of a city, as the streets are built up and improved. There is, therefore, an equality in taxing the adjoining property to pay for them, because every lot will have its turn in time. But the widening, or even the opening of a street, is a thing of rare occurrence. A view similar to this was entertained by the Court in the case of the Gity Council vs. Pinckney, 8 Brevard, 224. “It has been the, constant and uniform practice of the old Commissioners of the Streets, and of those acting under the City Council,” says Mr. Justice Grrimke, “to assess those persons before whose houses the pavements are made; and a contrary mode of proceeding would tend to make those who have long ago paid for their own pavements, pay a double tax, if they were now to be assessed for the pavements of the city generally; and those who never yet have paid any assessments for pavements, if they were now required to do so, by a tax on the whole city, would be much better off than those who have been compelled to pay heretofore. A tax should operate in a general way, on all the citizens at large, and not partially.” And indeed in the last case on the subject of drains, Yeadon vs. The City Council Eckhard’s Digest, Appendix YL, the Court decided in favor of the power to assess, not on principle, but expressly on the authority of the previous decisions in such' cases; and intimated that if the matter were res integra, their decision would have been different. But the present case is one of widening a street, and the Court will not be embarrassed in deciding it upon principle, by the decisions in the cases of pavements and drains.</p> <p>The order for the re-hearing directs the attention of counsel to the Act of 1764, (which is to be found in 9 St. 697, as well as in tbe volume referred to by the Court.) That Act empowers certain commissioners to repair tbe bridges and causeways in tbe town; to fill up a certain moat, and all boies in tbe streets; to repair all common drains; to sink and repair wells; and provides'that the expense of doing those things shall be borne, in general, by the inhabitants and others interested in the town. It also empowers the commissioners to sink common drains and wells, to pave and level the principal streets, and erect posts in them; and provides that the expense of these last mentioned things shall be borne (not by the inhabitants at large, but) by the owners of the lands lying on the streets benefitted thereby, rateably and proportionably. And the commisioners are authorized to assess the owners of the lands, and to collect the asssessments by warrant of distress issued (not against the lands, as in this case, but) against the goods and chattels of such persons.</p> <p>Three things are worthy of notice in this Act:</p> <p>1. It carries out the idea of equality on which I have commented, namely: that while such improvements as are likely to be eventually made in all the streets, such as sinking drains and building pavements, shall be paid for rateably by the owners of the adjoining lands — those which do not occur in all the streets, such as repairing bridges and causeways, shall be paid out of the common treasury.</p> <p>2. That when the expense is to be raised by assessing certain individuals, the assessments shall be collected by distress against their goods and chattels, and not by execution against the freehold, as in the present case.</p> <p>3. That it does not provide at all for the opening, widening, or extending a street.</p> <p>The power, therefore, which the City Council have attempted to exercise in the case before the Court, of assessing the adjoining proprietors to defray the cost of widening a street, is not within the enactments of the Act of 1764, and is also contrary to its spirit.</p> <p>Thus far, I have endeavored to show that, conceding to the Legislature full power to lay out and enlarge public roads and streets, and to take the lands of the citizen for the purpose, the expense must be paid out of the common treasury, and cannot, constitutionally, be raised by assessing only the adjoining proprietors.</p> <p>But supposing even that may be done without violating the Constitution, still the assessments cannot be enforced by levy and sale of the freehold, without the verdict of a jury.</p> <p>Under the right of eminent domain, the Legislature may take the land that is needed for a public object, and may exercise the power through commissioners or agents of their appointment. But here the design is to collect a tax by seizure and sale of land without the intervention of a jury.</p> <p>These relators are to be disseised of their freehold by a summary proceeding. But the Constitution of the State (Art. 9, sec. 2) declares that " no freeman shall be disseised of his freehold,” or “ deprived of his property, but by the judgment of his peers, or by the law of the land;” and (sec. 6) that "the trial by jury, as heretofore used in this State, shall be forever inviolably preserved.”</p> <p>These persons are to be “disseised of their freehold” and “deprived of their property,” without any “judgment of their peers;” and the question then arises, is it in accordance with the “ law of the land” to do these things, under the circumstances ?</p> <p>In Coleman vs. Maxy, 1 McM., 501, these words were said to embrace the common law, as adopted here at the date .of the Constitution, and the statutes of Great Britain and of this State, made of force and in operation at that time. “ A free man is not to be deprived of his property but by the judgment of his peers or the law of the land; that is to say, -by the judgment of some competent judicial tribunal known to the law.” The proceeding in the present case is this: The Commissioners appointed by the city assessed the amounts to ■ be paid by the relators, respectively, and made their report accordingly to the Council, and thereupon the Treasurer issued an execution, directing the Sheriff to levy on the relators’ land to satisfy the amount. Can it be demonstrated that this report of the Commissioners is the judgment of a competent judicial tribunal, Tcnown to the law, at the time of the. establishment of the Constitution? and that it was according to law, at that time, to seize and sell the freehold to satisfy such judgment. The burden of doing so rests on the defendant.</p> <p>In While vs. Kendriclc, 1 Brev. 471, it was decided, that an Act extending the jurisdiction of magistrates to thirty dollars was unconstitutional. And in Commissioners of Neio Town Cut vs. SeabrooTc, 2 Strob. 564, the Court in commenting on that decision, says: “It was held that the sections (of the Constitution) under consideration established an epoch from which legislative innovation on the trial by jury should cease; and the Act was decided to be unconstitutional, on the ground that the trial by jury was to be preserved ‘ as heretofore used;’ and in no instance, at the time the Constitution was adopted, had justices of the peace ever exercised jurisdiction as far as thirty dollars.” We ask, whether, at the time the Constitution was adopted, a case had ever been known of the sale of the freehold by the sheriff, except under a judgment and execution founded on the verdict of a jury?</p> <p>In the case last cited, the Court held that the fines imposed by these commissioners were lawful, although they exceeded twenty dollars, expressly because the power to impose-and collect such fines, without a jury, belonged to the Commissioners of Cuts at the time of the adoption of the Constitution.</p> <p>I have considered the analogy contended for between these assessments and assessments for drains. And, in reference to the point now under discussion, I would call attention to the striking difference between the modes provided for their enforcement. The Act of 1764, already referred to, gave the power to make assessments for drains, and provided that they shall be collected' by levy on the goods and chattels of the persons assessed. In Houston vs. Gity Council, 1 McO. 345, it was held that the Act of 1764 was repealed by the Act of 1783, and that the City Ordinance of 1806 is now of force, and that ordinance, Eckhard’s Dig. 59, directs that they shall be Collected as the city taxes are collected; and that is, by a sale of the goods and chattels; and if none can be found, then of a lease of five years of the land of the party. Eckhard’s Dig. 279.</p> <p>But, under the Act of 1850, the assessments are to be collected by seizure and sale of the freehold, and it is clearly a “legislative innovation on the trial by jury,” as it existed when the Constitution was established.</p> <p>In The State vs. Dawson, 3 Hill, 103, Mr. Justice Evans says: '‘The clause of the Constitution, as well as Magna Oharta, intended to guard the property of the citizen against the exercise of any new or arbitrary power.” And it is unquestionably a new power to seize and sell the freehold, except under a judgment and execution founded on the verdict of a jury.</p> <p>I conclude, then, that these relators are entitled to the writ of prohibition asked for, because:</p> <p>1. It is unequal, partial, unconstitutional, to make any public improvement, for the general benefit, and compel particular individuals to pay the expense, on„the idea of special benefit to them.</p> <p>2. It has not been decided in any of our cases, that it is lawful to raise the cost of improving a street by assessments on the adjoining proprietors.</p> <p>3. The cases of drains and pavements are not so analogous to the present as to make the decisions in them amount to res judicata.</p> <p>4. The mode of collecting the assessments under consideration, viz.: by seizure and sale of the land, without the intervention of a jury, was unheard of at the formation of the Oonstitution, and at that time “ contrary to the law of the land.” And, in fact, all the acts in relation to drains and pavements provide that the assessments shall be collected by levy and sale of the personal estate, not the real.</p> <p>Spratt, same side. The question is, as to the power of the City Council of Charleston to assess upon the owners of adjacent lots the costs of widening a street. The power, if possessed by the State, has been sufficiently conferred upon the Council, and the only question then remaining is, whether the State itself possesses the power it has undertaken to confer ?</p> <p>The several Acts upon this subject prop ose, fir st, to take the land necessary to that purpose, and, second, to exact from the owners of adjacent lands a contribution in proportion to the particular local advantages they may have derived from it, which contribution is to be taken by assessment.</p> <p>I will not question now the power to take the land that may be necessary to the object. That has been already taken, and the owners are content. But the Council has proceeded to issue execution for the share of advantage which, in its opinion, has resulted to the several lot owners. Prohibition has been prayed; and the question then is, whether it will be granted. If not, then two propositions must be true : First, the State must have the right to such contribution, and, second, the power to levy that contribution by assessment.</p> <p>Has it such a right ? 1st. If the State has the right to contributions for the share of advantage which has resulted to the owners of lots from this improvement, so also must it have the right to the share of advantage which shall result to individuals from any other improvement. If the question were, whether the State can exact a specific service of the citizen, that question would be determined by the further question, whether the service was necessary to the existence and well-being of the State; and the State may well require the citizen to do service on highways or in war, for instance, .without the right to service in a theatre : for these classes of service are clearly distinguishable from each other. But if the State have a right to compensation for the advantage that has incidentally resulted from a public work in any one case, so also may it have in every other; for advantage, merely, being the condition of the obligation, the obligation would arise in every other case in which advantage could be charged. If, therefore, the citizen may be charged for the advancement in the value of his property from the widening of a street, so also might he be charged for the construction of a courthouse or a railroad. Again, if there be the right to contribution for the advancement in the value of property from the construction of a public work, so also must there be the obligation to indemnify for any depreciation that results, for such rights and obligations must of necessity be reciprocal. Again, if there be the right in the State to contribution from any such a cause, so also must there be in the citizen; and if there be the right in the citizen to contribution, so also must there be the obligation to indemnify for damage.</p> <p>And again, if this State may levy contribution upon the owners of property adjacent to a public work, for the reason only that they receive advantage from it, so also may they levy contribution for the same reasons upon a class of citizens at any distance off, — and so, therefore, upon its discretion, the State may have tbe right to say what class of its people shall bear alone the burthens of the government.</p> <p>Such are the consequences which follow as corollaries from the original proposition ; and is, then, the proposition true ? One reason for believing that it is not, is in the fact that it has never been asserted. England, in certain periods of despotic power, has assumed to assess the burthens of the state upon certain classes, but the assumption has ever been rebuked by the spirit of English liberty, and at no time, and in no country, has the state undertaken to' exact of adjacent owners the incidental profits that may have come from the construction of a public work. It seems to have been considered, that between the state and the people there are the equities of a social relation, rather than the rights of a legal contract; and it has ever been regarded as enough to entitle the citizen to all the advantages which incidentally result from the acts of the state, that he shall submit with complacency to the incidental ills and evils that thence may come upon him.</p> <p>Another reason for believing that no such principle exists, is in the fact that it would be inconsistent with the well-being, and existence even, of society. If the state could only improve by responding to the claim of damage for injuries resulting; if, at every step to such improvement, the citizen shall be liable to such assessment; if the citizen with every house erect a battery of rights and obligations; and, more especially, if the political parasites that” feed upon the State could force its legislature to exact from sections the sums sufficient to perform its works, and so could acquire spoils without a pressure upon the whole country, — the society itself would become convulsed. Nor is it any answer to this objection, that these rights and obligations would be imperfect without an act of legislation. For in the first place, the principle cannot be .right, if such would be the wrongs that would result upon its operation ; and, in the next place, if the right be admitted, there would be political parasites to urge it into action. It has been conceded that States and towns may build railroads with the public funds, and though the burden falls on all, and the persons, therefore, that feel the pressure have the power to arrest it, yet the town of Charleston has been crushed by such exaction. This being so where those who feel the pressure hold the power, much more must it be so when it shall have been established that the burdens may be laid upon one class of our people, to the benefit of another.</p> <p>It may be said that these are reasons why the State should not have the right to such assessment, but that if the right have been given by act of legislation, there is no power to resist it. But I contend, that if there be no right in the State to such contribution, the exaction of it would be a wrong, and that there is no constitutional power in the State to perpetuate a wrong. It may be said, that the State can do anything from which it is not prohibited. But I do not assent to the pro-, position. The State is constituted to an object — the liberty and well-being of the people; and I contend, that it has no single power that is not consistent with that object. It might be difficult to find the clause in the Constitution by which the State is prohibited from promulging tenets of political or historical faith; but if the State were to make it penal to believe that Julius' Csesar lived, or that squatter sovereignty is right or wrong, the Courts would not, could not, enforce the penalty. Or if the State should assess its citizens to establish houses of ill-fame, the Courts would surely grant a prohibition; for of common light, if not by evident intendment of the Constitution, the State is precluded from every act in derogation of individual liberty, not necessary to the objects of its office. (And to this effect is Zylstra vs. The City Council, 1 Bay, 888, and Dunn vs. City Council, Harper, 189.) In the first, the Court of Wardens could not act in derogation of the right of trial by jury, although authorized to do so by an act passed anterior to the Constitution; and in the second, the commissioners for widening the street, though authorized to do so, could not take one foot of land not necessary to that object.</p> <p>But if there be the right to contribution in the State, it is necessary to the validity of this proceeding that it shall have power to levy such contribution by assessment.</p> <p>It is certain that this money, proposed to be taken from these relators, is as much their property as any other property they may possess, and being such property, we have the warrant of the Constitution for it, that it can only be taken by the judgment of their peers or the law of the land. There is here no judgment of their peers, and is it then taken by the law of the land ? The law of the land admits of summary process from certain Courts and from the State, in the exercise of certain powers. Such Courts as are competent to issue summary process must have existed at the time the Constitution was adopted. (Commissioners of Newtown Cut vs. Seabrooh,$ Strob., 888.) This commission, if it be a court, did not so exist, and this process, if it be warranted by the law of the land, must find its authority in the sovereign inherent powers of the State.</p> <p>There are two classes of rights in the State that differ in their nature and the means to their enforcement. The one I will call political and the other legal. The first class, such as the right to taxes; to service in war, — upon juries; upon highways, — in the removal of nuisances, and the like, are necessary to the State. They were inherent in the society of which the State was formed. They cannot be alienated or constrained in consistence with the obligation of the State to preserve and perpetuate its own existence. For reason of their necessity they can be controlled by no other than the /discretion of the State, and the State, therefore, without a jury and by the law of the land, may proceed to enforce them by summary process whenever the occasion for enforcement may occur.</p> <p>The second, such as to debts on bonds, and other legal obligations, and the right to penalties for violations of the law, are not so necessary to the State. The State may exist without the debt or penalty, and it is not even of interest to the State that these rights shall be enforced save only when it shall be determined that the facts have occurred upon which the right arises. The question, therefore, whether the State shall have summary process, is dependent upon the question, whether the right to be enforced is, of the one class, or the other, and then only, when it is determined that it is of that class which is inherent in the State, and with respect to which the State from its obligation to exist can admit of no discretion but its own, does the power of summary process arise.</p> <p>Is, then, this right to contribution from lot owners, admitting it to exist, of that class? I have shown that it is doubtful whether the State have any right to contribution at all ? and if the right of the State be doubtful, the enforcement of it at all events cannot be necessary to the State. The State, in such a case, can have just that right to such a contribution which it has to the money due on a bond, and may have process for its enforcement, only when the facts shall have been determined. The question is not whether the State can widen streets. That, for the sake of argument has been admitted — admitted that it can take the land, — admitted, even, that it may require service to that object, as it may make the neighbors work on roads; but it is, whether under its admitted right to widen streets it may assess upon whomsoever it pleases whatever of advantage they derive from it, and whether, therefore, under color of a legal power it may do what it could not do without. We contend it maj not, and • to this point are (The State vs. Allen, 2 McCord, 55; Dunn vs. Oity Council, Harper, 189; Birnie vs. Tax Collector, 2 Bailey, 654; L. C. & C. B. B. vs. Chappel, Rice, 383 ; Berger ads. The State, 1 McMullan, 410.)</p> <p>It may be said that the Act of 1850 provides for an appeal from the assessment of Commissioners. But in the first place that appeal is only as to the amount of the assessment. In the second place it is only to the discretion of the Circuit Judge whether he'will grant any. But, at best, the right of appeal is not the right of trial by jury. The question is not now whether some process may not issue at the suit of the State to collect contribution from these relators; but it is, whether this process shall be prohibited, and if to its validity there be any necessity for the verdict of a jury it is enough to show that in this case no such verdict has been rendered. {Zylstra vs. City Council, 1 Bay' 395.)</p> <p>It is said, however, that this process upon assessment is by the law of the land, for that before the Constitution it was in use, and the Act of 1764 is referred to as an exhibition of the power. But first, the powers exercised under that Act are not precedents for the powers proposed by these. That Act proposed to promote the health and convenience of this city, these propose no such object, and the State may well require service of men to the health and convenience of the public, which it could not require without such objects. That Act opened hiyhways and removed nuisances, these do neither, and the State may well require service to such objects without the power to require it in cases in which no object has. been indicated. That Act imposed the assessment upon adjacent lands and houses rateably and in proportion to their value. These exact a contribution for the local and particular advantage. That Act, therefore, is in the assertion of the power of the State to advance its own well being, and to assess the burdens rateably and proportionately upon those properly chargeable with them; these propose a speculation by the State at the expense of a particular section, and the one, therefore, is not a precedent to lead the other.</p> <p>But if so — if the Act of 1764 were as much in derogation of common right, as are the Acts in question now, it is not binding. There is, in time, no bar to- liberty. Our right to liberty is as perfect now as it was in 1764, the acts of legislation, and the edict of power afford presumption of the law, but they are not the law. That is in the consent not the subjection of a people, and every contest of liberty against power— Magna Charta — 'the bill of rights — the revolution in England —in America, — attest that whatever have been the encroachments of power, it is the right of liberty to vindicate itself* whenever it shall have the power to do so. We came by inheritance in this country to at least the liberties of the English subject — this Act of 1764, if it had the force and effect attributed to it now, was in derogation of such liberty. If in derogation then, it is in derogation now, and so in derogation it is within the power — it is the office of this Court to declare that it is not the law of the land. Elsewhere it has been necessary to roll aggression back by the strong arm of physical power, here it may be rolled back by the no less potent arm of the judiciary. That tribunal is instituted to the object of superseding the arbitrament of physical power, and when the occasion comes, it may'not, if it would, forego the functions of. its high office.</p> <p>The City Council claim the right, under executions issued by themselves, to sell the relator’s lots in George and Anson streets, to satisfy the respective sums assessed upon these lots by certain Commissioners appointed under the Act of 1850, by the Council itself, to ascertain and assess the expense of certain local improvements in those streets. The relators claim the protection of the ninth Article of the Constitution, sections 2 and 6.</p> <p>The counsel for the city njake two points:</p> <p>1st. That the Act of 1850, does not deprive the relators of the judgment of their peers, secured by the Constitution.</p> <p>2d. That the lex terras authorized this mode of proceeding without a jury, in such eases.</p> <p>If anything can be considered settled by repeated decisions, it is now settled by the cases of Kenrick vs. White, 1 Brev,469 ; Collier vs. Rogers, 2 Brev. 41; and The Commissioners of New Town Cut vs. Seabrook, 2 Strob. 560, that the right of trial by jury, secured by the Constitution, is that right which existed at the time of its adoption, to be enjoyed as it was then, because the Constitution declares it shall be forever inviolably preserved “as heretofore used in this State.” In the language of Frost, J., 2 Strob. 564, the Constitution " established an epoch from which legislative innovation upon the trial by jury should cease.” This is the foundation of our argument.</p> <p>As to the first point. The Act of 1850, does provide for a jury, it is true — but how ? Only by allowing the relators, if dissatisfied with the assessment made upon them, with the permission of a Judge, to “appeal” to a jury to rectify the assessment as to its amount. Now the right of jury trial before the Constitution, was a right to have the case submitted to them as res integra, in the first instance, as to an original tribunal, to hear and determine upon evidence. Every departure from the mode of its use is “ innovation,” as much so as departure from the mode of its organization. The case of the King vs. Gommirs of Sewers, &c., 7 East, 71, may serve to show the care with which the Judges of England watch and prevent any change in the organization of juries, even where long usuage and convenience alike seemed to warrant it.</p> <p>By this Act of 1850, the Relators can only have the trial by jury as an appeal — the Act so calls it. Now an appeal implies a previous decision by some tribunal authorized to take original cognizance. It is that tribunal which should have a jury. A jury was wholly unknown as an appellate tribunal at the adoption of the Constitution. But still more grave is the objection, that the Act gives to the relators no jury to try the right in question, but only the amount. It is nothing more than a jury upon a writ of enquiry, when they claim the right to a jury, upon an issue.</p> <p>Then as to the second point, the lex terree. The cases in which juries may be dispensed with by “ the law of the land,” may, with propriety for all the purposes of the argument in this case at least, be arranged under two classes or divisions.</p> <p>First. Where the procedure is in virtue of what is called the right or power of eminent domain.</p> <p>Second. Where a Court has been established before the Constitution by the course and practice of which juries are not needed or employed.</p> <p>The first of these classes is not easily specified and determined. The right or power of eminent domain is itself very vague, and perhaps will not, at present, admit of strict definition; yet it certainly cannot be unlimited, for if both undefined and unlimited, our government would be absolute and not constitutional. Some limitation to this power therefore there must be, according to the essential idea of our ' political organization ; and if this cannot otherwise be determined, we must look to common sense and common right, to circumscribe it, if not at first with accurate lines, yet within impassable boundaries.</p> <p>In time of war we recognize the right of the State, to send her citizens to distant lands to fight her battles and lay down their lives in foreign fields, or to deliver them up to captivity as prisoners or hostages. But can the Legislature in time of peace, condemn the citizen to death, or bánish him, or shut him up in prison for the good of the State by Act of Assembly ? Would not habeas corpus deliver him in such cases from death or prison ? So again, in time of war, the citizen may be forced from his hearth, his dwelling torn down and his children left houseless, when defence requires it. But can the Legislature, in time of peace tear down houses, level villages, and turn the inhabitants into the open fields, as ancient English kings did, to make forests for their game ? Although in time of peace, it seems now settled in this State, that under this power, private property may be taken without compensation for the purpose of. making roads, which in England would be considered against common right, -yet could the Legislature, therefore, authorize the seizure and conversion of any private property to any public use ? If so, what else could this be but the right of confiscation, and that without any offence charged or committed ? Suppose the Legislative had determined to take a certain improved square or squares in this city (Columbia) as the site of the capitol, and directed the land to be seized,’ the peaceful inhabitants driven out and their dwellings demolished, and that without any compensation offered or intended. Could your Honors have pronounced that lawful and constitutional ? The true light in which this right of eminent domain as applicable to the taking of private property for public use should be re-. garded, is, as a present or long adfnitted governmental or political necessity, to be allowed only in cases of emergency, or where immemorial usage has made it law, ever to be watched with jealousy and restrained within the necessity or' the usage, strictly and sternly.</p> <p>But it is said, this is an assessment, and assessments have been imposed and collected by execution summarily since the first planting of the colony. All taxes were formerly called assessments in our proprietary and early provincial Acts of Assembly, and all the early assessments cited, were general, and therefore nothing else than general taxes. The right to require contribution from all property in the State for the support of government in all its departments, and to coerce the immediate payment without the intervention of Courts or juries, that is, the power of taxation, is an obvious political necessity, and may perhaps be appropriately classed under the right of eminent domain. But a local improvement, by an assessment to be levied arbitrarily upon a few, cannot be such a necessity, and cannot, with any propriety, be classified under the head of taxation. It is in fact, nothing more than , partial legislation or partial taxation if you choose, which is nothing more than extortion. If it be in the power of the Legislature as a part of the taxing power, to assess the lots fronting a particular portion of a street where improvements are made, as this power is of necessity.uncontrolable, why should they not as well assess the inhabitants of a neighbouring Street, or a few individuals to be designated by name in the Act ? There is no more unity or community between the inhabitants of a street than between other individuals. The law knows districts, parishes and beats, and sub-divisions under Commissioners of Roads, as subordinate territories or communities for certain purposes, but has never recognized streets or parts of streets "as in any manner or sense, forming communities. It can only be said of any such taxation, (if you call it by that name,) that it is partial. It is this kind of taxation which feudal Kings and Lords claimed of their subjects and vassals, as arbitrary aids, reliefs, talliages, &c. Against these, barons and burgers contended for hundreds of years, and finally succeeded in abolishing the tenures to which they were incident, about the period when this colony was first planted, and our forefathers were allowed to take and to hold their lands, by the best of all tenures known to the common law, free and common soecage, the special and peculiar value of which was exemption from all arbitrary, unequal or partial exactions, under the name of taxation or under any other name. Such partial legislation or taxation, is therefore against the nature of our tenure and the vital principle of the law of the land.</p> <p>If this legislation of 1850, cannot be justified by the right of eminent domain, including in it the taxing power, can it be sustained as a proceeding by a Court known and existing at or anterior to the adoption of our Constitution ? There is but one body now in existence, which can pretend to anything like it, and that is the City Council of Charleston, to which was transferred the powers given to the Commissioners of the streets by the Act of 1764. We admit, that they may claim to be a Court of special jurisdiction over the subjects to which their jurisdiction extended at the adoption of our Constitution, like the Commissioners of sewers in England. Rut beyond that, they cannot go, and as (has already been shown by the council who have preceded me in behalf of the appeal) their power and jurisdiction did not extendió openings widening or extending streets, nor did they have power to issue executions against real estate. Our adversaries then, must intend by their review of the legislation of the State prior to the Constitution, to show that our Legislature did exercise the power of appointing Commissions from time to time to extend or widen streets, and to assess the expense without jury, and thence to infer, that our Legislature may at this day do the same.</p> <p>Admitting the power of the Provincial Assembly and of the Legislature of the State, prior to the adoption of the Constitution, to have been as unlimited as the power of the Parliament of Great Britain, and of course, admitting their power to create Courts, general or special, or Commissions to assess and levy without juries, what was this power but a power of legislation ? Now it is this power of legislation which we insist has been taken away by the Constitution, and it has been repeatedly so decided, (as has been shown) as to Courts of general jurisdiction ; and how can it be now claimed for the creation of Courts of special jurisdiction -or for Commissions, temporarily or occasionally appointed, to give judgment and execution upon the rights and property of the citizen, the most terrific of all engines, in all ages, for prostrating liberty and upholding tyranny ?</p> <p>But the history of our legislation prior to the Constitution, goes no further than to show that our Legislature asserted the right to exercise the power themselves, according to their own judgment and discretion, through agents specially selected by themselves. But the Act of 1850, goes far beyond this, and delegates to a corporation these rights of eminent domain (or what else you please to call them) but in the highest and strictest sense, sovereign rights and powers, to be exercised at their discretion. What authority can be pretended for this attempt to delegate these sovereign powers, or to substitute a City Council for a General Assembly ?</p> <p>It seems to have been suggested, although not actually affirmed, that the City Council may have this power under their Charter generally, without the aid of the Act of 1850, because the powers therein granted to them were so granted before the Constitution was adopted. The answer is first, That then the action' of the City Council should have been by a By-Law or Ordinance. Corporation of Columbia vs. Hunt & Kinsler, 5 Eich. 550. And next, That this was Legislative power, and it is this power which is controlled by the Constitution. Is the City Charter above the Constitution because it was before it ?</p>