Volume 5 — South Carolina Law Reports

Motion to set aside a nonsuit, ordered by Judge Bay, in the Court of Common Pleas for Abbeville district. The action was to try titles to a tract of land, originally granted to Sarah Fee. The plaintiff claimed as heir at law.

Assumpsit, brought in Pendleton district. Tried before Bay, J. The evidence reported was to this effect: The plaintiff gave his bond to one R. A., conditioned to make titles to a certain tract of land, in a penal sum, which bond R. A. assigned to the defendant, with the plaintiff’s consent.

Motion to reverse the decision of the Court of General Sessions for Greenville district. Defendant was indicted before Judge Nott, for an assault and battery committed on his own wife, who was offered as a witness against him on the trial, upon the ground that no other person was present when the offence was committed. The court refused to admit this evidence.

- The defendant was indicted in Edge-field district, before Brevard, J., for stealing “ a shovel plow.” The evidence proved, that the defendant stole the iron part of what is called a shovel plow, which is commonly called the hoe. No evidence was given respecting the value of the article stolen.

Motion to reverse the decision of the Court of Common Pleas for Edgefield district. The action was for assaulting and beating the plaintiff at a place called “ the Sand Bar, in the State of Georgia.” The defendant pleaded in abatement, to the jurisdiction of the court, that the cause of action, if any, arose in Georgia, and could not be discussed in any tribunal of this State. To this plea there was a demurrer, and joinder in demurrer.

Motion in arrest of judgment. The defendant was indicted and convicted upon the stat. 22 and 23 C. 2, c. 7, P. L. 80, for unlawfully and maliciously killing a mare, in' the night time. The motion in arrest of judgment was made in the Court of Sessions for the district of Union, Judge Waties presiding, who, being doubtful, reserved the case for the consideration of this court.

Motion to set aside verdict, and enter a judgment of nonsuit. The action was debt on a bond, conditioned to make titles to land, tried before GRImke, J., in the Court of Common Pleas for Union district. contended that the bond was not assignable under the Act of Assembly OÍT798, (2 Faust’s Coll. 114,) as from the condition, it appears not to be for the payment of money. This method of taking advantage of the error of tlie plaintiff is proper. Cited 2 T. R. 569. 4 Esp.

Motion to set aside a nonsuit, ordered by Smith, J., injhe Court of Common Pleas for Richland district. The action was for assault and batiery. Plea, not guilty.

Assumpsit, tried in the Court of Common Pleas for Richland district, before Bay, J. The declaration contained but one count, for money had and received and money laid out and expended. On the trial the plaintiff proved that the defendant; and one Bryant, had been in partnership in selling negroes, and that when they came to a settlement the defendant delivered up to Bryant certain notes which were payable to himself, and also gave his own note for $1900.

Motion to set aside a nonsuit, ordered by the Court of Common Pleas for Richland district, Judge Smith, presiding. The action was trespass quare clausum, fregit. . The declaration set forth that the defendant on the day of, &c., in the district and State aforesaid, to wit, at Columbia, and within the jurisdiction of the court, with force and arms, &c., the close or plantation of the plaintiff, did break, &c. Plea, not guilty, and issue thereon.

Motion to set aside a nonsuit, and grant a new trial. Held: that the written promise given in evidence was nudum pactum, as it appeared to have been made without any consideration. See Peake’s Evid. 211. A nonsuit was ordered. The motion was argued May 4, 1810, before all the judges. agreed to the doctrine laid ^own the reporting judge ; but contended it did not apply to the case.

Action of trespass, guare clausum fregit, tried in Sumter district, before Brevard, J., Spring term, 1810. The plaintiff produced in evidence the record of a judicial proceeding in the Court of Common Pleas for Sumter district, in which the plaintiff had recovered a judgment against John Murray, who was the defendant’s tenant, for a certain tract of land called Dry Swamp, and ten dollars damages.

<p>Motion for a new trial. The material facts of the case are stated in the following opinion.</p> <p>cited 1 Bay’s Rep. 478. The object of the attachment act was to make the property of an absentee liable. The proceedings under the act are ad rem. and not ad per-sonam. The proceedings against a garnishee are to affect the property of the absentee, and not his person ; and such property only as can be attached. Attaching part, binds all the properly attachable, to respond the judgment, as in cases in the Courts of Admiralty. The defendant himself was never intended to be made a party, personally. He might, however, make himself a party, and dissolve the attachment as to the property. The judgment must be against the property, if the attachment is not dissolved. It would be very ■dangerous and impolitic to say that it might be rendered against the person of an absent debtor. The declaration to be filed pursuant to the act, cannot mean a declaration in the technical import of the word. A judgment to render the defendant liable, generally, would contrary (0 the principles of natural justice. It might be obtained without notice. By the attachment a lien was created, and a right vested, which was not divested.</p> <p>Upon general principles of lqw the action must abate. The A. A. points out a particular mode by which the absent debtor may be made a party in court. All the provisions of the act relate to the property of a person alive, and in a sitúation to answer personally. The judgment must be against the defendant, as in other cases, “ final and absolute judgment.” If against the property partially, it would not'be absolute and final. The provisions of the act are calculated to afford sufficient notice.</p> <p>The case stood over for consideration. Meanwhile, Judge .Trezevant, and Judge Wilds, died. It was submitted, without further argument in January, 1812.</p>

<p>Special verdict, found by a jury of inquest, pursuant to the act of assembly concerning escheats, referred to the decision of this court.</p> <p>The jury found, that pursuant to the escheat act, the act to vest in certain charitable societies certain escheats, and the act to authorize the City Council to appoint ah escheater, Henry Osborn, late of, &c., was, by birth, a British subject; that he became a naturalized citizen of the United States in 1789; that he purchased lands in St; Philip’s parish, and obtained a title in fee siml pie, in 1793, from an American citizen ; that he had possession of the said land until his death, in-May, 1805, and did not dispose thereof, &c.; that he left no kindred, citizens of the United States, but left kindred, subjects of the king of Great Britain, namely two brothers, Richard and Thomas, the former fifty, and the latter forty years of age, resident in England, who were his next of kin at the time of his death. And the jury-submitted the question of law, whether the land escheated or not; and whether the treaties with Great Britain would have any effect, to protect or sanction the descent of the land, to the next of kin of the intestate.</p> <p>Submitted without argument.</p>

<p>Motion for a new trial, on the part of the defendant.</p> <p>The cause of action stated, that the plaintiff on the 10th March, 1802, purchased* from Edwin Gairdner, of Charleston, a bill of exchange for £500 sterling, drawn by Ed. G. & Co. upon Simpson and Davidson, of London, in favor of Andrew Bell, of Scotland, payable sixty days after sight; which bill was dishonored, and regularly protested for non-acceptance and non-payment, after which it was returned to the plaintiff, who demanded payment thereof from Ed. G. & Co. Edwin G. assured the plaintiff the bill was satisfied by his brother, the defendant, in London, and produced a letter from the defendant to Ed. G. & Co., stating that this amor]gSt others, was paid.</p> <p>The plaintiff relying on this statement, remained satisfied, until Edwin G. & Co. failed, and the opportunity of recovering from them was lost.</p> <p>Evidence for the plaintiff. Payne said Edwin Gairdner & Co. failed some months previous to that event; at the plaintiff’s request, he called on Ed. Gairdner, respecting the bill returned protested, who observed, that he had already explained to the plaintiff’s friends the circumstances of that affair, and that the bill was paid by.his brother in London ; asked witness into the counting-house to satisfy him of the truth of his statement; took from his desk a bundle of papers, which he said he had received from London, and selected one headed thus : “ Bills settled and paid, and unsettled,” which appeared to be in the handwriting of the defendant, in which list of bills the plaintiff’s bill was set down, and marked settled. Ed. G. told witness the bill was settled, and that the plaintiff ought not to be uneasy ; Mrs. Gairdner came into the counting-room ; Mr. G. shewed her the paper to quiet her anxiety on the plaintiff’s account, and she went away apparently satisfied ; witness was well acquainted with the handwriting of defendant; at this time Ed. G. was in good credit; he saw the paper for a short time, but did not-examine it minutely ; he placed implicit confidence in Ed. win G. ’s statement; could not say that the defendant’s n.ame was subscribed ; this happened two months before Ed. G. & Co. stopped payment; Ed. G. was the main stay of the company; it happened just after the bill in question had been returned dishonored.</p> <p>Keith. Plaintiff received information of the non-acceptance of the bill the 24th ; in consequence' of which, he called on Ed. G., who said his brother had taken all his funds with Simpson and Davidson, and was paying his drafts, and that his brother owed him money; afterwards, a vessel arrived from England, and witness called again, soon after his first call, on Ed. G., who then said "the bill was settled, and shewed witness a list, in which the bill.was mentioned, and marked paid ; he kept the list some days, and shewed it to the plaintiff; before the action was brought, witness called for the same paper, but Ed. G. said he had mislaid it, and could not find it; he promised to look for it, and shew it again to the witness, but never did so; the defendant was in England all this time; the bill might have been paid by Ed. G. & Co. before he failed 5 the witness loaned Ed. G. $10,000, and was repaid, after the bill was returned; this witness said he was acquainted with defendant’s handwriting, and believed the writing in the list was his; had never seen him write but once ; he first waited on Ed. G. 24th August, 1802, and on the 5th October, 1802 ; when the protest was returned, Ed. G. drew a new bill on the defendant, in plaintiff’s favor, in lieu of the bill on Simpson and Davidson, which was not paid ; defendant said he had paid large sums for his brother, and would have paid this bill, if the time was to run over again ; defendant denied he ever had said or written that the first bill was paid by him. ’</p> <p>De Besse said Ed. G. stopped payment 20th October, 1802 3 was in good credit until then ; that Ed. G. and defendant’s handwriting resembled each other; Ed. G., he believed, was indebted to his brother.</p> <p>The evidence for the defendant was contradictory. A letter from Mr. Bell, the payee, dated March, 1803, in which he says to plaintiff, h'e hopes she will not suffer as much as she feared ; enclosing the second bill and protest.</p> <p>Bay, J., charged in favor of the defendant, hut the jury found for plaintiff.</p> <p>Authorities cited, — 1 East. 318. 2 do. 105. 3 Bos. and Pul. 367. 3 T. R. 63. Peake’s N. P. 226. 1 Dali. 155. 2 Com. on C. 529. 1 6Ves. jr. 186. -2 Esp. Rep. 571. 1 Esp. R. 290. Taunton’s Rep. 558-1 Dali. 235. 2 D. 56.</p>

<p>The defendant was charged with having uttered words against the plaintiff, which were in themselves slanderous: but when these words were taken together, and considered in relation to the subject matter, or occasion of speaking them, they were not judged to be actionable, although some persons present did not hear the explanations which accompanied their utterance.</p> <p>C11 May, 1813, the cause was ¿gain tried before Brevard, J., and a verdict givenfor the plaintiff.] — Éd.</p>

On an application for a writ of partition,, before Judge Bay, in Spartanburgh district, an issue was made up,, by consent, to try certain facts by a jury, on a question whethei Arthur Crocker, deceased, was seized, at the time of his death, of the lands in dispute. The original grant to Arthur Crocker was produced. The defendants attempted to prove that the grantee had sold and conveyed the land to-Wofford ; and proved a lease, for a year, from him to Wofford, dated 1776.

Motion to reverse a decision of Waties, J., in Chester district, The writ was “ to answer to a plea of trespass on the case,” and the declaration was “ to answer for certain promises and assumptions.” The defendant pleaded the general issue, and the verdict was for the plaintiff. The motion in the District Court was to arrest the judgment, on the ground of repugnance, or variance, between the writ and count. The motion was overruled.

Motion to reverse the decision of the court of York district, on demurrer, before Waties, J. Covenant.

Trover for negro slaves, tried before Waties, J., in Union district. The plaintiff conveyed, or transferred the slaves in question, by deed, dated 24th November, 1806, to Beverly Sydner, of Virginia, in trust, to dispose of ior the benefit of plaintiff’s creditors, in pay‘ment of debts he owed them ; particularly a debt due Elias Palmer, of Virginia. The said deed to be void, if the plaintiff should satisfy Elias Palmer his debt on or before the 25th December, 1807.

Motion to reverse a decision on demurrer, by Grimke, J., in Union district. Plaintiff recovered judgment on a bond ; defendant filed a bill in equity, and obtained an injunction to stay the said judgment, and gave a bond, with sureties, to prosecute the suit in equity, to effect, or, &c. The Court of Equity afterwards dismissed the injunction bill, and decreed for the plaintiff with costs.

Motion to reverse a decision of the Court of Common Pleas of York district. The decision was -made by Judge Waties, on an appeal from a justice of peace, who certified the proceedings before him had, as follows : “ Debt on a note of hand, in the following words : * I promise to pay Francis Richardson, fifteen dollars, value received. Witness my hand, 9th March, 1804.’ Defendant denied the note; a receipt was brought forward to prove his handwriting.

Motion to set aside a decree,- and order a nonsuit, in this case, which was a sum. pro., tried before Grimke, J., in York district. The cause of action was an account stated, viz., an assumption to pay a debt due by Bennet Moore, to the plaintiff, in consideration of discharging Moore from the payment of it. The defence was, that the promise was not in writing, and being to pay the debt of another, was within the statute of frauds, and void-.

Assumpsit, tried before Waties, J., in Barnwell district. Verdict for the plaintiffs. The action was brought on a note of hand, given by the defendants to G. A. Monk, who endorsed the same to the plaintiffs. Defendants pleaded the general issue. The material facts of the case will appear in the following opinion. Waties, J., relied on 5 Mod. 752. The endorsement, he said, made a new contract. The original contract was void by stat. 2 Str. 1155. 1 Esp. Dig. 27.

Indictment for murder, tried before Judge Nott, in Sumter district. St appeared in evidence, that on the 19th February, 1811, a dark night, the deceaséd, (Naves,) came to prisoner’s house, part of which was occupied by Berwick and his family. Deceased came into a hall, which was common between the prisoner and Berwick. That prisoner came into the hall, and ordered the deceased out, although a stranger to him ; cursed him, and swore he would make him go. Went and got pistols.

Motion to reverse the decision of the Court of Common Pleas of Kershaw district, made by Judge Waties, on a rule on the sheriff, to shew cause why he should not pay over a sum of money to Edward Watson, being the amount of rent due from Hudson to him, under the following statement of facts : Early in December, 1809, Hudson agreed with Watson to pay so much for the use and occupation of a piece of land, which he was to take possession of after the first of January, 1810.

Motion to set aside a nonsuit, and grant a new trial. Case against the defendant, as sheriff of Fairfield district, for an escape, tried before Grimke, J., in Fairfield district. The material facts of the case are stated in the following opinion. cited P„ L. 456. 1 Dali. 349.

Assumpsit, tried in Laurens district, before Grimke, J. The case is substantially stated in the following opinion. Grounds for a new trial. 1. That the price actually paid for the slave was recoverable in this action, and no more. 2. That the jury ought to have discriminated on which count in the declaration their verdict was founded. 3. That the plaintiff -should not have been permitted to give any other evidence of warranty than what was contained in the bill of sale.

Motion to set aside a nonsuit.1 Trover brought to trial before Smith, J., in Orangeburgh district, for a' negro slave, which had been mortgaged by Snell to the plaintiff, to secure the payment of a sum of money lent by him to Snell. The mortgage was produced, and its execution proved. ’ An objection was made for the defendant to the relevancy of this evidence, to prove property in the plaintiff.

<p>A widow, being entitled to one third of the real and personal estate of her husband, by deed, conveyed to the defendant, for valuable considera-tion, all her right of dower to the land in question; by virtue of which, > he took possession, and claimed all the title and interest of the widow as parcener, and offered the deed in evidence, to prove his right. The deed being objected to as irrelevant, it was held, that it could not legally be considered as conveying more than the widow’s right of dower at common law, and not the portion she was entitled to by act of assembly ; and that the defendant’s right, under the deed, to enter and possess the land, could not be maintained.</p> <p>The nature of the widow’s quarantine is not an estate in land, but a mere personal privilege ; and, during its continuance, is considered as con--tinuing her husband’s estate, and not as having an estate of her own.</p>

<p>An application was made for a writ of prohibition, on motion, without hearing 1 the other party on a rule to shew cause, which was refused: Brevard, J., being of opinion, that the party applying for such writ, should first be ordered to declare in prohibition, to put the question of fact in train for trial by a jury, in order to ascertain the right of the applicant to the writ.</p> <p>The expression of the A. A. of 1788, “ to make, alter, and keep in re-' pair,” if construed secundum subjectam materiam, means only such roads as are or shall be laid out by legislative authority, and not the vesting of a discretionary power in the commissioners to lay out, make,' alter, and keep in repair, any roads that they may conceive necessary.</p>

This case is stated in the following opinion of Judge Beevaed. For the prisoner, it was contended, that the judges of the Court of General Sessions have a discretionary power to bail in every case, as the Judges of the King’s Bench in England have, except in cases of commitment by Parliament for contempt. 4 Bl. Com. 398. 2 Hawk. 176. Cowp. 333. And that the judge ought to have considered and decided on the affidavits produced.

Summary process on- note made, tried before Nott, J., in Pendleton district. The action was by the indorsee against the indorser. The indorsement was in these words; “ I assign the within note,” &c. Nott, J,, was of opinion this was not such an indorsement as entitled the plaintiff to sue as indorsee.

Action for a malicious prosecution, tried before Nott, J., in Pendleton district.' The judge reported, that the evidence on the trial proved circum stances of probable cause. The verdict was for the defendant. Grounds for the motion. 1. Misdirection of the judge, who directed the jury to judge of the want of probable cause; whereas, the court ought to judge whether the cause is probable or not. 2.

Action of slander, tried before Smith, J., in Richland district. Declaration charged, 1st, that defendant said of plaintiff, “ he stole Clarkson’s medicine.” 2d, these other words, “ I never will invite a man to a frolic, &c., who could rob Clarkson’s medicine chest, which he,” meaning plaintiff, “ has done.” 3d count charged, that defendant said of plaintiff, that on pretence of being a Methodist preacher, he inveigled negroes, and took them oft, &c. Defendant justified.

<p>The act of 1748, does not change the nature, or take away any of the constituent properties of joint estates, but only provides an easier mode for obtaining partition of such estates."</p> <p>A parol agreement and partition may be good at common law, notwithstanding the statute of frauds, and may be considered valid if the line of partition on the ground be sufficiently marked, and there be a distinct possession for a length of time yet, where the evidence of a separate possession is vague and slight, there can he no solid ground for at legal presumption in favor of a partition.</p>

<p>The declaration was for a special injury done, by inveigling away plaintiff’s slave, and the issue was upon this special charge; but there was no evidence to support it, the plaintiff relying upon the evidence usually produced to sustain an action of trover. Held, by Brevard, J., that the proof ought to correspond with the allegations charged.</p>

<p>The State, having succeeded to all the prerogatives of the King of Great Britain, within the limits of the former Province of South Carolina, the question was made, whether the State, as plaintiff, could maintain the civil action of “ trespass to try titles to lard,” or whether such an action would lie in the name of the King, in this country, prior to the Revolution ? Held, by Brevard, J., (whose opinion only is reported in this case,) that the King could not have maintained such an «action; that the analogy between “ the State” and “the King,” holds, and the same reasons apply to both; and that the redress for public wrongs must issue from the Court of General Sessions, and not from the Court of Common Pleas.</p>

Motion to reverse the decision of the Court of General Sessions for Charleston district, Judge Nott, presiding. An inquest for a forcible entry and detainer, was taken by Gabriel M. Bounetheau, and John Mitchell, justices of peace for the district of Charleston. Before it was taken, the defendant tendered a plea to their jurisdiction, which was overruled.

This was an action of trespass, to try title to —— acres of marsh land on James’ Island. Title being the issue, there Was no question about the trespass. The plaintiff attempted to deduce his title from Samuel Stobo, but in tracing the title up to the original grant, which ivas to one Mary Patty, on the first of July, 1683, it appeared very manifestly, and so the court stated to the jury, that the grant did not cover the marsh, but expressly called for it as a boundary.

<p>Plaintiff had a claim against Barker & Lord, for sundry acceptances, which, it ’seemed to be understood, (though not expressly declared,) were to be refunded out of the proceeds of a cargo to be consigned to him; but before the vessel had completed her voyage B. & L. failed, and assigned the cargo to Gaillard, to secure a debt due him, who also consigned it to Slater, with directions to sell it for his benefit. Slater detained the proceeds as subject to his advances for Barker & Lord, and afterwards brought suit to recover the balance of an account against the defendant. Held, by. Brevard, J., and a majority of the court, that the plaintiff had no lien, and that the interest •of Barker & Lord passed by the assignment to the defendant, who was .entitled to the amount of the sales of the cargo.</p>

<p>Motion for a new trial.</p>

Motion to reverse the decision of the Circuit Court of Common Pleas of Kershaw district. This case was argued in December, 1812, and stood over for consideration. The action was debt on an administration' bond. Defendant pleaded a variance between the bond taken and the bond' prescribed to be taken, by A. A. 1789.

Motion in arrest of judgment. Defendant was indicted and tried in the Court of General Sessions of the district of Spartanburgb, before Smith, J., for marldng the prosecutor’s, hogs in the mark of the said Roberts, contrary to thé A. A. The indictment did not charge the defendant in the words of the A. A. 1789, with having “wilfully and knowingly marked, branded, disguised, or disfigured.” P. L. 486. insisted, that the indictment was insufficient.

Motion to revers.e the decision of the Court of Common Pleas of Tork district, on demurrer. Judge Grimke, presiding. The action was covenant. Held: that the mortgage gave the debt no such preference, except as to the property specifically mortgaged ; and that property-having been sold under the morlgage, the balancé of the debt, unsatisfied by such sale, was to be placed in the rank of other specialties, for which no security by way of mortgage was given. 26th Nov., 1812.…

Motion in arrest of judgment. From Laurens district. The defendant was indicted, together with Lewis D. Yancey, for murder. The first as principal, and the second as accessary ; they were tried separately, before Judge Colcock. Samuel Yan. cey was first tried.

Motion to reverse the decision of the Circuit Court of Abbeville district, Judge Smith, presiding. Debt on a bond given by defendant and two others. Defendant pleaded in abatement, that the obligation wasjoint, a.nd not several, and that all the obligors ought to have been sued jointly. Demurrer and joinder.

Motion to reverse the decision of the Circuit Court of Common Pleas of Abbeville district. Defendant moved to postpone the trial on account of the absence of a material witness, which was granted at his costs. The nonattendance of the witness was sworn to be occasioned by sickness. For the defendant, it w,as insisted, that the trial ought to have been postponed, without requiring the defendant to pay the costs of continuance. 1 Sellon, 414. Barnes, 133, 316, were cited.

The action was trover for sundry negro slaves, tried in Rich-land district, before Brevard, J., October, 1811. Both parties claimed under titles derived .from Wm. Fitzpatrick, deceased, who, some time before his death, became insane. It appeared in evidence, that Wm. Fitzpatrick had parted from his wife, and lived many years separate from her.

Motion to set aside verdict, and order a nonsuit. Debt on a sheriff’s bond, tried in Fairfield district, before Judge Waties, in November, 1811. ' A copy of the bond was produced in evidence, pursuant to A. A. 1795, 2 Dig, Tit. 156, sec. 37, in proof of the general issue.

Motion in arrest of judgment, or for a new trial. Indictment for a libel, tried before Bay, J., in Richland district. The indictment set forth a written libel, “ of and concerning the only daughter of Jane Roach,” with proper intiendoes and aver-ments.

Trespass to try titles to land, tried before Waties, J,, in Charleston. Verdict for the plaintiff. Motion for a new trial was argued before all the judges, in January, 1806, by Simons, and Parker, for the defendant, and Bailey, Peinóle, Drayton, and- Gaillaed, for the plaintiff; and the case was continued under advisement, until the 12th of January, 1808, when the following opinions were delivered.

Indictment, tried in Charleston district, Court of Sessions, before Colcock, J., for extortion and mal-practice in office ; for trying, convicting, and fining a free woman of color named Amey Lapier; the defendant being a justice of peace and Q. U. for Charleston district, Amey Lapier had been charged before the defendant and two freeholders, under the negro act, A. A. 1740, P. L. 165, 1 Dig. Tit. 107, sec. 25, of having slandered and insulted Mrs. Thomas, a white woman.

<p>Notice is necessary to the indorser of a note made in the countiy; and the reputed insolvency of the drawer will not do away the necessity of notice and demand. The insolvency, which may excuse want of notice, or which may be equivalent to notice, must be such an absolute and notorious insolvency as leaves no doubt of the fact. [See Clark v. Minton, 2 wl. 185.],</p>

Assumpsit, to recover the amount of a book debt, tried in Charleston, before Judge Grimke. The plaintiff’s books, and especially the book containing the original entries of the several items of merchandize charged to the defendants by the plaintiff, was required by the defendants to be produced in evidence, which was not done, nor was the person who charged the goods, and made the same entries, produced as a witness, nor examined by commission.

Action of trespass m et armis, for taking á quantity of iumber in a raft, tried in the Court of Common Pleas of Georgetown district, before Smith, J. Verdict for the plaintiff. It appeared in evidence, that a judgment had been obtained for $700; whereupon ají. fa. issued against M. and W. Knight.

Motion to set aside decree on summary process, and order a non. suit. Plaintiff sued on a promissory note of hand, made to him by the intestate. Plea, non assumpsit within four years. The note being produced, appeared to be payable on demand, and. there was no evidence of a demand until the process was sued out. There was not any evidence given of a promise within four years from the date of the note.

Motion to set aside a nonsuit. Assumpsit on a book account. Held: that whatever might be the doctrine as to the assignment of bonds, it would not apply to open accounts, and that the release, even after notice of the assignment, would be good. The plaintiffs submitted to a nonsuit, with leave to move to set it aside. There was no formal notice of the transfer.

Motion to reverse a decree of Judge Bay, in the Circuit Court, Abbeville district, on summary process. The plaintiff became surety for the defendant to re-pay §5(), borrowed, and took the defendant’s promissory note of hand, to be used by way of indemnity. The action was brought on this note before the plaintiff had suffered, or was in any immediate danger of sustaining damage by his suretyship.

Assumpsit on a promissory note of hand, tried before Bay, J., in the Circuit Court of Abbeville district. , Defendant -pleaded infancy, to which the plaintiff replied, that the consideration was necessaries; &c. It appeared in evidence, that the defendant had been placed by his father with the plaintiff, who was a practising physician, to be instructed in the science and practice of medicine; and that the father gave his note of hand to the plaintiff for $100, as a fee, or…

Indictment, tried in Newberry District Court, before Gkimke, J., for stealing a promissory note, of the Directors and Company of the Bank of South Carolina. To support the indictment, a five dollar bank-bill was produced in evidence, corresponding with the description given in the indictment of the promissory note.

<p>The judgment of the Ordinary upon a will in common form, cannot, after thirty years, be controverted by a petition to prove the will in solemn form.'</p>

<p>By the stat. 27 Eliz. voluntary conveyances are to he regarded, as against subsequent purchasers for valuable consideration, as fraudulent and void, and that notice of a prior voluntary conveyance is not material.</p>

Assumpsit on an open account. Tried in Laurens district. Plea, -statute of limitations. Replication, fraud. Demurrer to the replication in judgment for defendant on demurrer. Motion to set aside this judgment. v The action in this case was upon an open account between Allen and Mayson, during their lives, amounting to $521,74, for sundry articles alleged to have been sold and delivered to the deceased, Mayson, between the years 1792 and 1795.

<p>Special action on the case, originally tried before Judge Treze-vant, when a verdict was found for the defendant; the plaintiff then obtained a new trial, on which a verdict was found for the plaintiff.</p> <p>In the month of October, 1804, the plaintiffs delivered to the defendant, one thousand pieces of britannias, to be shipped in the brig Fame, commanded and owned by defendant, to the port of Cape Francois, with instructions immediately to dispose of them to the best advantage, and to invest the proceeds in the first quality of coffee, which he was to bring back to the plaintiffs, on the return of the brig. About the 16th of October, 1804, defendant arrived at Cape Francois, where, instead of procuring $6, or $10, a piece for the britannias, as the plaintiff's expected, he could only obtain, at first, $4 a piece, and afterwards a smaller sum, $3. The defendant, however, before he had received the proceeds of those britan-nias, wrote, that he had commenced purchasing coffee for the plaintiffs, and saying that he would be very particular with respect to the quality.</p> <p>On the 3d of February, 1805, the defendant, in the brig, left Cape Francois for Charleston, and, on the 4th, was captured by a French privateer, carried into St. Jago, and there condemned. On the 14th of March ensuing, the defendant arrived in Charleston, and informed plaintiffs of the capture of his brig and cargo, and that he had on board, when captured, $1506,32, belonging to plaintiffs ; this being the proceeds of 481 pieces of britannias, sold on their account at the Cape, and which amount they received from the underwriters, they being insured. The balance of the britan-nias, viz., 510 pieces, had been left in the hands of a substantial house, Messrs Kelly & Asburgh, at the Cape; and britannias were then selling at $3 per piece.</p> <p>The plaintiffs contended that they were entitled to a compensa. **011 ^or VQlue °f the 519 pieces of britannias, which were left in the hands of Kelly & Asburgh, unsold, and not invested in coffee. They produced their letter of instructions to the defendant, of the import already stated ; they also produced two letters from the defendant, to themselves, dated the 16th, and 28th of October, 1805. The first, stating his arrival at a bad market; britannias, $4; coffee, scarce and high, 18 cents per lb., &c. The second, that the sales were still dull, britannias at §3,75 to $4. That he disposed of 250 pieces, at §4 ; but knowing the plaintiff would be a considerable loser by them, he had stopped selling, in hopes to receive an answer to his letter of the 16th. It also appears, by the defendant’s protest, that he had purchased some coffee for himself.</p> <p>The defendant contended, that from the situation of the country, it being then in the possession of the brigands, the strict rule of the Mercantile Law could not be complied with ; that, under the peculiar circumstances of the case, he had acted for the interest of the plaintiffs, and contrary to his own interest, because he abandoned to them in the first instance, upon the sales of the bri-tannias, 5 per cent., his commissions upon investing the proceeds in coffee, 2 1-2 per cent. ; and his freight upon the coffee, when purchased. The britannias sold for credit, except one case. That he had used every exertion to buy coffee, which was to be had only in small quantities. Defendant thought it to be to the interest of the plaintiffs to leave the britannias, the market being very fluctuating. Had the britannias been exported, a duty of 10 percent, must have been paid upon them ; 14, of the article of coffee must be paid to the government, for liberty to purchase. The defendant was to have purchased for others also.</p>

<p>By an act 'of assembly of 1783, the power Of the commissioners of streets) were vested in the City Council, who, by an ordinance of 1786, appointed commissioners to execute certain duties relating to the office of commissioners of the streets, reserving to Council the right of approving. The authority confirmed by that ordinance, was not a delegation of power contrary to the act.</p> <p>The City Council may legally assess the proprietors of the adjoining lots with the expenses of a pavement.</p> <p>It is not lawful for the City Council to lay an assessment and distrain for nOn-payment, without giving notice; and the party charged by such assessment, has a right to be heard against it.</p> <p>A prohibition granted against laying an assessment without notice, or op¿ portunity of defence.</p> <p>Council may assess, beyond the jurisdiction of the City Court. By three judges, Brevard, J.-, dissentient.</p> <p>Note. In the ease of Hueston v. The City Council, 1 M’Cord, 345, it was decided that the act of 1764, P. L. 49, is repealed by A. A. 1785, P. L. 398. The authority of this case, therefore, as far as the questions decided appear to turn on the construction of the act of 1764, seems to be overruled.</p>

Motion to set aside a prohibition, in May term, 1809, By the tax ordinance of the City Council of the 29th March, 1809, all profit, or income, arising from the pursuit of any faculty, profession, occupation, or trade, or employment, shall be liable to a tax of 38 1-2 cents on every one hundred dollars, of the value or estimate thereof, to be assessed by the city assessor, provided, that nothing herein contained shall be construed to subject to taxation the profit or income…

<p>The rule that parol evidence cannot be admitted, to contradict a written instrument, does not apply to a loose memorandum, not containing a complete engagement.</p>

This was an’action to recover the price of a young female slave, upon the ground of a failure in the warranty of soundness. The plaintiff produced the advertisement, under which this slave, together with several others, was advertised to be sold, all of whom were described as prime negroes.

The action was assumpsit, tried in the Court of Common Pleas for Charleston district, before Judge Wilds. It was for the price of a boat. The defence was, that defendant had not made the contrac! on his own account. That when the boat was built he was captain of the Hindostán, a.ship belonging to Andrew Holmes & Co., and that they were liable. It was proved the defendant ordered the boat to be built as for himself, and that it was delivered to him.

Assumpsit, for overseer’s wages.- The declaration contained two' counts: indebitatus assumpsit-, for work and labor; wá quantum meruit.. The defendant, by his plea, set forth a'special agreement, to allow the plaintiff one eighth of the crop» in consideration of his services; and averred that- plaintiff had violated the agreement by negligence, and absented himself without proper cause, and Concluded to the contrary.

<p>Verdict obtained by surprise, set aside.</p>

Action on the case for speaking certain false and slanderous ■words of the plaintiff’s wife. The words laid were for calling plaintiff’s wife a whore ; no special damage was laid, and the non-suit was ordered on the grouwd, that the declaration contained no cause of action.

Colonel William Thomson,'by his last will in 1796, duly executed, devises as follows. “ I will and devise that all the restand residue of my estate, both real and personal, be sold by my executors, and that the money arising from such sale, together with my outstanding debts, be appropriated in assistance to the provision herein before made to the payment of my debts, and the balance to be equally divided between Eugenia Thomson, William Russel Thomson, Rebecca Hart,…

<p>T. in a letter to N. uses expressions supposed to amount to a challenge to fight a duel, arid by a postscript, refers N. to H. (the bearer of the letter,) if any further arrangements were necessary. On an indictment, held that N. might give testimony of the conversation between H. (the hearer of the letter) and himself. '</p> <p>A challenge delivered in this State, to fight a duel in Georgia, is a breach of the law of this State against duels, and is indictable here.</p>

Trespass quare clausum, fregit, tried at Fairfield, April, 1811, for cutting a road through the plaintiff’s land. One Ferguson was examined, a witness, who testified that he was an overseer of the road; that he received direction from the defendant, as a commissioner, to lay off a new road through the plaintiff’s land ; and that by virtue of those directions, he did lay off and open a road accord, ingly.

This was an action of trespass to try title, tried before Judge Smith, at Abbeville. The plaintiff produced a conveyance of the laud in dispute from defendant, to one William Gordon, his son ; a.nd another conveyance from William Gordon to him, the plaintiff. Defendant then proved by the declarations of William Gordon, that ■he, William Gordon, was an alien : on which his honor nonsuited .the plaintiff. Motion to set aside the nonsuit.'

Action to recover dower in Abbeville district, tried before Smith, J., 1811. Defendant pleaded the statute of limitations. Marriage and sei-zin were admitted. The demandant admitted that the defendant had been in the peaceable possession of the land in question, under a purchase made before the death of Judge Ramsay, demandant’s husband, until the summons in dower was sued out, being upwards of five years.

Trespass to try title. The grant was to John Loumber; and the plaintiff claimed under a conveyance írom John Lumbus, or Lumbers. The presiding judge being of opinion that there was no ^er‘vat‘on of .title, nonsuited the plaintiff. Motion to reverse tbsf nonsuit.

The motion in this case was submitted without argument; It is to reverse the decision of the Court of Common Pie as for Abbe-ville District, on a question of costs.

It appeared that the son of the defendant, as the agent of his father, had aided ii removing a Major Ming from Virginia, on a consideration that he was to be loaded back to Virginia with cotton.

<p>A jailor’s books not evidence.</p>

<p>Depositions taken, de bene esse, may be read on affidavit, that the witness is, from indisposition, unable to attend.</p> <p>A mere doubt that a witness would be liable in equity, when not liable at law, is not sufficient to exclude him as incompetent.</p>

<p>Motion for a new trial. Trespass to try titles, tried in Orange-burgh District, before Judge Bay.</p> <p>The material facts and circumstances of the case are stated in the opinions following. The argument was in April, 1811. Submitted April, 1812.</p> <p>cited 4 Co. 58. Sadler’s case. 5 Burr. 2607. Runn. 60, 61. The A. A. concerning escheats.</p> <p>A hard case. Justice has been substantially done. The equity of the case is on the side of the plaintiff. Lands granted by the State, if it afterwards escheats, it revests in the public, and may be re-granted as vacant land is, and is subject to the operation of the act of limitations.</p>

<p>The surviving obligor in'a joint bond, was out of the State. A plea in abatement to an action against the administrators of the deceased ■ obligor, held good on demurrer.</p> <p>Note. The words, “jointly and severally," were notinserted in the obligation.</p>

<p>A purchaser of lands at a sheriff’s sales in an action to recoverthose lands from á third person, must shew a title in the person against whom the execution issued. Same rule in cases of sale of confiscated estates.</p> <p>The purchaser of land mortgaged to the paper medium loan office, cannot recover without shewing title in the mortgagor.</p>

Motion to reverse decision, and to set aside a writ of mandamus.- Tried before his honor, Judge Smith. In this case a suggestion was filed by the plaintiff, to obtain a writ of mandamus against the defendants, requiring them to return Nathan Hanks duly elected sheriff of Darlington district.

Motion to reverse the decision, on demurrer. Tried before his honor Judge Brevard. This was a special action on the case. The declaration alledged, that the plaintiff had a judgment, and capias ad satisfaciendum, against James Darwin, Jr. upon which ca. sa. he was in custody.

<p>Motion to reverse the decision of the Court of Common Pleas, for Sumter district, held by Justice Waties.</p>

Motion in arrest of judgment, and for a new trial. Tried before his honor Judge BRevard. The defendant was indicted for perjury, committed on a trial had before Leonard Adcock, Esq, In this case, Leonard Adcock was called and sworn as a witness, who deposed that he granted the summons, but refused to have it returned before him, or to sit on the trial of the case, as he had nonsuited the plaintiff in a former trial.

Trover. Motion to reverse the decision of the judge. Samuel Farrow, Esq., sitting as judge. This was an action of trover, brought by the plaintiff against the defendant, to recover a negro woman. The defendant pleaded the statute of limitations.

Special action for an escape. The plaintiff brought this action against the defendant, for the voluntary escape of J. M. Gallagher, who was in gaol, by the sur. render of special bail, at the suit of the plaintiff. The plaintiff proved that the sheriff turned the debtor out of gaol, because the plaintiff did not give security for the costs of feeding him when in gaol.

This was an action on the case, for procuring, persuading, and enticing, a negro slave to depart and absent, himself from the ser. vice of his*master.

<p>Motion for a new trial.</p>

Motion to set aside a decree given on summary process, by Nott, J., in Pendleton district. The action was on a promissory note of hand, given for a certain quantity of tobacco, contained in a hogs, head, supposed to weight 1200 lbs. There was a memorandum on the note, that defendant took the tobacco at his own risk.

Motion to reverse a decision made by Bay, J., in Laurens district. The case is substantially stated, in the following opinion. Argued 29th Nov., 1812, The solicitor cited, 2 Hawk. 456. Fost. 360. Principal and accessory may be tried together. May and shall are in law con. Vertible terms. If both be indicted together, they must be tried to-geth«r. Separate trials on one and the same indictment would tend to delay and embarrass the administration of justice.

<p>Motion for a new trial. Indictment, for inveigling away, and stealing a negro slave, tried in Georgetown district, before Ghiiuke, J.</p> <p>The prisoner claimed the right of examining every juror called to pass on his trial, on his voire dire, touching his prejudices against the prisoner, and the expression of opinions as to his guilt; and as to the general prejudice of the community. The presiding judge denied this right; and held, that to disqualify a; juror on the ground of prejudice or partiality, or on account o'f his opinions previously formed and expressed, relative to the guilt of the prisoner, other evidence than that which comes out- upon his own deamination, is necessary ; and that'he could no! be’compelled to answer on his voire dire to such points ; and that the evidence of general prejudice was not admissible evidence, exeept as to change the venue.</p>

<p>The underwriters refused to insure “ at and from” Amsterdam. They afterwards insured “ from” Amsterdam. It is the custom for vessels of a certain tonnage to take in part of their cargo at Amsterdam, and the' rest at the Texel. The vessel sailed from Amsterdam; but, while' lying in the Texel, waiting for cargo, received damage from bad weather. In assumpsit for general average, the underwriter was held liable.</p>

The defendant in this case, was found guilty of carnal knowledge ef an infant, under the age of ten years, contrary to the statute. The material witness, was the child, an infant little more than seven years old, at the time the charge is laid.

Assumpsit on a policy of insurance. The brig John, commanded by captain Joseph Hudson, was insured, together with her cargo or freight, $2,500, at 7 per cent, on the 25th April, 1806, by the plaintiff, on a voyage from Charleston to St. Domingo. She sailed from the port of Charleston, on the 30th of April, 1806, on her said voyage.

<p>The court will not grant a new trial on the ground of parol evidence discovered since the trial. In a case depending entirely on evidehce, the verdict will not be disturbed, if there be conflicting and doubtful testimony.</p>

Actions of assumpsit’ upon three policies. The first policy was on the schooner Lucy, dated 1st July, 1806, on the proper Account and risk of Bailey and Waller, citizens of the United States, on the proper account of themselves, as well in their own name, as in the’name and names of all and eyery other' person or person's, to whom the same doth, may, or shall appertain, at-and from Charleston to the Natchez, with liberty of touching at the Havana; warranted free from…

<p>In debt on bond, the defendant set up a discount for medical services rendered from year to year. Quere. Whether the defendant ought to have the, amount of his medical bill allowed to him as a payment, pro tanto, from time to time, when the bills were due ; or whether they are to be treated as a discount only against the amount of principal and interest at the trial.</p>

<p>:"In 1792, the defendant bought of the plaintiff a farm near Charleston, for £603. The land had been mortgaged to the loan office, and the sum of $223 was at the time of the contract, due on said mortgage. Defendant paid £380, in money, and gave for the residue, the following acknowledgement: “I promise to pay Col. Poste]], what he owes to the loan office, for paper medium borrowed on the mortgage of a plantation on Charleston Neck, called Paradise, this day bought by me ; the sum supposed to be about 223 pounds signed D. R.. The plaintiff afterwards, without suit being brought, voluntarily paid off the loan office bond, from an apprehension that he would eventually be compelled to dó so; and then brought this action to recover what he had so paid. Held that he could not recover.</p>

<p>James Duncan being duly authorised by the City Council to dispose of certain lottery tickets, sold them to defendant, and took his note. He' afterwards died insolvent, and the notes fell into the hands of the defendant, his administrator. Held, that the defendant could not retain the amount as assets, and that the plaintiffs were entitled to>recover.</p>

Fi. fa. in assumpsit. This was a rule against the sheriff, to compel him to pay over monies which.he had collected, belonging to the defendant; to which the sheriff made a special return.: — That he had monies in his hands, &c., but had in his office also, an execution of A. Blanding & Co., against Ulysses Rogers.

The plaintiff in this case, being a man of a weak mind, made an agreement with the defendant to serve him a year for his food and clothes. His father gave notice to_ the defendant, that if he kept him, he must pay at the rate of five dollars per month for his ser. vice. Defendant then desired him to go away, bathe refused to go.

The defendant, Moore, had purchased a judgment from Justin Smith, against James Monk ; and the defendant, Moore, had hound himself to pay the sheriff’s fees, without saying what fees. On this judgment, a ca. sa. issued, and Monk was imprisoued under it for a considerable time.

Tried before Judge Brevard. ■ This was a special action on the case against John Clarhe, as sheriff of Laurens district, to recover damages for permitting Wil. liam Prather, who was iil'the custody of the sheriff, by virtue of an attachment, issued from the Court of Equity, for a contempt, in not giving security to perform the decree of the said court, in the case of Jennet Prather, by her next friend, Jacob Miller, against the said William Prather, to escape and go at large.

After this case had been some time at issue, the defendant’s counsel moved for leave to withdraw all his pleas, and plead a release, puis darien continuance, which was granted, and the plea filed. The next court, the plaintiff’s counsel moved to strike out that plea as frivolous, because it was not supported by affidavit. The presiding judge granted the motion, and the plaintiff executed a writ of enquiry, for want of a plea.

Case from Greenville district. Constitutional Court of Appeals, November, 1814. Motion to reverse judgment for defendant in demurrer. The plaintiff in this case, brought his action of debt on an exemplification of a judgment from North Carolina. The presiding judge, Brevard, gave judgment for the defendant, on this demurrer, as he was of opinion the debt would not lie in this case, for that as-sumpsit was the appropriate remedy on a foreign judgment.

<p>Where an act requires a thing to be done in a particular way, that way alone must be pursued. Therefore, when an act required that the father of a bastard child, should be compelled by warrant to enter into a recognizance in the penal sum of £00, conditioned for the annual payment of £5, for the maintenance of the child, until the age of 12 years, and to save harmless the parish or county; and the bond taken was in the penalty of £60, payable by twelve annual instalments of £5 each— Held, that it was not in compliance with the statute, and void. So of a bond given to the commissioners of the poor; for though the act had not declared to whom the bond should be given, yet it must be made payable to the State. So where the act required the bond to be given for the maintenance of the child, it is not a compliance to give one for Jhe citizens of the aforesaid district; for, in the first instance, it is given in a wrong form; in the second, to the wrong persons ; in the third, to the wrong uses. Nor would such a bond be good at common law, inasmuch as the obligor was compelled to enter into it under color of legal process, and for purposes, which he was not morally bound to perform. Such defects in a bond, may be well taken advantage of on demurrer.</p>

<p>Motion to set aside a decree on summary process, &c.</p>

This was an attachment taken from a justice of the peace,- on an-affidavit by the plaintiff, that the defendant had enticed away his slave, of the value of $450. The presiding judge, Nott, reversed the judgment in this case, on the ground, that no attachment could issue from a justice of peace, hut on contract. This motion is to' reverse that decision.

<p>An infant may disavow, in various ways, his intention of carrying into effect a contract made during infancy. He may enter upon lands sold or conveyed by him when under age. He may, when he comes of age, convey the same lands to another. He may leave the service of one to whom ihe was bound, and enter into the service of another.</p>

Motion to set aside a nonsuit. Assumpsit, in the Circuit Court of Greenville district, before Brevard, J., founded on certain proceedings of the court of Burke county, in North Carolina. At the trial, it was objected by the' defendant, that the proceeds ings produced in evidence were not duly authenticated, according to the act of congress. This objection was overruled. It was then objected, that it did not appear any judgment had been rendered.

The defendant was the owner of a certain negro slave, who had committed some crime in Barnwell district; and he had been arrested at the instance of the plaintiff, to answer for this offence. The negro escaped, and got into Charleston, where he was apprehended and committed to the work' house.

The plaintiffs had commenced a large number of actions of trespass to try titles, and Hugh Morrow had been nominated surveyor, on the part of the several defendants. The plaiutiffg had discontinued their suits ; and for the surveyor; the clerk had taxed costs in each case for his services as surveyor, and for each day that he had attended court, although he had attended without any subpoena.

This was an action of trespass, de bonis asportatis. To this, the defendant pleaded a plea of justification, under the judgment of a justice of the peace. And the only question was, whether a justice of the peace had jurisdiction of unliquidated demands above three pounds sterling 1 The presiding judge, Nott, decided that a single justice had jurisdiction as far as twenty dollars. And this motion is to reverse that decision, and to set aside a nonsuit.

Tvv.o questions were made in this case : 1st. Whether a defendant in a summary process can avail himself of a set off, by way of defence, which is over the summary jurisdiction of the court ? 2d. If he cannot, whether he can at the trial relinquish a part of his demand, so as to reduce it within the summary jurisdiction,

This was an action of trespass to try title. The land was sold' under execution by the sheriff of Spartanburgh, as the property of Thomas Leatherwood, and bought by the plaintiff. The defence' set up, was, that Leatherwood had surrendered up all his property, of which this land was a part; and assigned it over to trustees for the benefit of his creditors, according to the provisions of the act for the relief of insolvent debtors.

Motion in arrest of judgment, for nonsuit, or new trial. Tried before Judge Smith. This was an action of assumpsit, brought to recover the amomri of two promissory notes. The writ and declaration were for 8 demand of John Bowie against the defendant, and stated the notes to have been given to John Bowie. To this declaration the defendant pleaded the general issue, the statute, and a set-off.

This action was brought to try the right of Jane Heard, to a certain negro, Rose. Her claim was founded on a marriage contract, entered into before marriage; John -Heard agreed, in consideration of a marriage to take place between him and Jane Bernard, to make over to her, among other things, the negro in question ; and the writing was signed by both.

<p>Jt is not necessary to constitute a. forcible entry, that it should be made by a multitude of people ; even where the entry is lawful, it must not be made by a multitude ; where it is not lawful, it must not be made at all. The jury from the evidence of a forcible detainer, may find the defendant guilty of a forcible entry.</p> <p>Every unlawful entry upon the possession of another is, in law, a forcible entry; but such possession must be actual, not constructive. Two persons cannot be in possession of the same land, at the same time ; and whenever the unlawful entry of one, necessarily'dispossesses the other, an indictment for forcible entry may be maintained.</p> <p>Although the entry may have been surreptitiously obtained, yet, if continued by force, it will be regarded as forcible.</p>

Motion to set aside a nonsuit' granted by Judge Smith. In this case, it appeared that the plaintiff commenced an action of assumpsit, to recover back money he had paid for an unsound house, in which action he was nonsuited. He then commenced a special action on the case for a deceit, in representing the horse to be sound, when he was otherwise. But, four years having elapsed before the last action was commenced, the defendant plead the statute of limitations in bar.

This was an indictment for the murder of Samuel Hairs. It appeared, that the prisoners were committed to gaol in De. cember, 1813. At the spring term, 1814, whilst in gaol, they demanded their trial under the habeas corpus act.

<p>A general verdict is good, where there is one good count in the indictment to which the evidence applies.</p>

• The brief in this case states that “ this, was an action by the plaintiff, a young man, hale, hearty, and in the bloom of life, for an alleged assault by Milly Ryan, an old lady of upwards of fifty years.” The jury have given a verdict for $275 ; and a motion is now-made for a new trial, on the ground that these damages Were excessive.

Summary process on note of hand, dated 22d June, 1812, for $71, Decree by judge Coicock, for the amount of this note, wills interest from 1st January, 1811. This was a motion to reverse this decreee, on the ground that the note was usurious upon the face of it.

From Lancaster District Court: Trover for three hogs : verdict for plaintiff. Motion for a new trial.

<p>The defendant pleaded that the plaintiff was an alien, &c., and could not convey lands, dec.</p>

Indictment for nuisances, by intruding on the streets of York Village, and building piazzas in front of their dwelling houses. The jury in this case, contrary to evidence, acquitted the defendants.

<p>This was an action on the case, brought by the plaintiffs, to recover the value of a saw-gin, sold by them to Edward Wingate in his lifetime. To this the defendant pleaded “plene administravit,” to which there was replication of assets beyond those contained in the plea, upon which issue was joined ; and to establish the replication, Richard Brown, the father of the defendant, was called, who proved that the defendant, S. E. M. Wingate, before and at the time of her intermarriage with the intestate, was entitled to, and possessed of a number of negroes. To rebut this evidence, a marriage settlement, made and executed between the defendant and intestate, before their intermarriage, was produced, dated the 27th April, 1805, and recorded in the register’s office in this district, early in June, 1805, and before the intermarriage of the parties ; tq which two objections were made: 1st. That the deed upon the said intermarriage became null and void ; and 2d. That it was fraudulent and void as to the creditors, inasmuch as it was not recorded in the secretary’s office : which last objection was supported by the court; who left it, however, to the jury, to say whether they could support this deed, in violation of the acts of assembly, which declared deeds of this sort to be fraudulent and void, as to the creditors, &c.r if not recorded in the secretary’s office. Whereupon the jury found for the plaintiffs, with one hundred and ten dollars damage, and that the defendant had assets sufficient to pay the said damages. Whereupon the defendant moved for a new trial.</p>

<p>No one can take advantage of infancy, but the infant himself.</p> <p>An infant has five full years after his title to land accrues, within, which to bring his action, notwithstanding the statute of limitations had commenced to run in the time of the ancestor, under whom he claimed by descent.</p> <p>Although the statute of limitations has commenced its course against the ancestor, it is arrested by his death.</p>

. This was an action brought for the recovery of monies paid to the use of the defendant, by plaintiff’s testator. The note of the defendant, payable to plaintiff’s testator, for $500, and testimony of payment of interest on notes, of which this was a renewal, were given in evidence by the plaintiff, to substantiate his demand.

<p>Action on bond.</p>

<p>In a doubtful case, where there was evidence on both sides, a new trial was refused.</p>

At the trial of the above trover case, it was admitted that Benjamin B. Harvey and Charlotte Villeponteux, in consideration of an intended intermarriage, together with Benjamin Alston, deceased, entered into a marriage contract; by which the property in question was conveyed to Benjamin Alston, in trust for the joint benefit of Harvey and Miss Villeponteux ; and after the death of either, to the use of the survivor for life, and after the death of the survivor, to the issue…

<p>The authority of an agent must be proved. There is nothing in the mer'cantile usage to do away the necessity of such proof.</p>

<p>The lapse of twenty years raises a presumption of payment, in the case of a judgment, as well as of a bond. Qa®re> Whether-, evidence, pf a plaintiff’s, punctually and of defendant's embarrassed circurnstapce§| is, admissible to raise a presumptipn of payment within twenty years..</p>

<p>A witness testified, that he was acquainted with defendant’s handwriting. This is sufficient evidence to go to a jury; and, after verdict, it shall be presumed that he has seen the defendant write;</p>

<p>The cominigsioners to assess dower, ought to certify that the land cannot be, divided, and dower set off; before they assess a sum of money in' lieu of dower. An assessment of one third of the value of the fee simple, set aside as excessive.</p>

<p>It is a defendant’s duty to enter an appearance at the first term, even if the judge does not attend.</p>

<p>It is sufficient, if process be served fifteen days before the sitting of the court, including the first day on which the court sits, and excluding the day on which process is served.</p>

<p>A venire facias returnable to a certain day, is rendered valid by an act of the legislature altering the time of holding the court, and declaring the same to be good for the day so fixed, although different from the day on which it was returnable.</p>

<p>No distress for rent will lie, unless the rent be expressly reserved,</p>

<p>No mandamus lies to the managers of elections, to compel them to declare a candidate elected. The decision of the managers, in questions of election, is final and conclusive.</p>

<p>The jurisdiction of magistrates, in cases of attachment, under the county court act, and act of assembly of 1788, is legal. The circuit court act does not repeal every part of the county court act; but merely such parts as are repugnant to that act.</p>

<p>The act of 1789, authorizing the governor to appoint, in case of the sickness of a judge, is unconstitutional and void. The 7th article of the constitution, does not make the validity of a law, as to the point of constitutionality, depend on such laws being enacted before, or since the constitution. The- power, therefore, given by the act of assembly of 1769, to appoint in case of sickness of a judge, is taken away by the constitution.</p>

<p>Interest is not recoverable on an open account, though a time he fixed for payment; unless there be an agreement to pay interest. An agreement may be implied, as from a promise to give a note, or from the usage of trade.</p>

<p>Forgery may be committed by altering the words and figures of a bank bill. Quere, if by simply altering the marginal emblems, or marks.</p> <p>Defendant was indicted for counterfeiting a bill of an incorporated bank, incorporated by the name of “The President and Directors of the Bank of South Carolina.” The bill produced was of “ The Bank of South Carolina.” Held, that the evidence did not support the indictment.</p>

<p>The plaintiff, since the cause of action accrued, had taken the benefit of the insolvent debtor’s act; but his creditors had never accepted an assignment, nor, in fact, was any assignment made. Held, that ho was competent to maintain the action.</p>

Assumpsit. John Paisly and James M’Beth kept a store at Black-Mingo, during which time the former, who was the only co-partner, residing there, entered in the co-partnership book an ac. count on which this action was founded. Before the whole account was entered, John Paisly married the widow of William Goddard, and took letters of administration on the estate.

<p>Evidence of unsoundness not sufficient to entitle defendant to a verdict in an action for the price of a horse, unless the unsoundness he proved to have existed at the time of the contract.</p>

<p>The possession of stolen goods is a presumption of guilt; and this presumption is not rebutted by the lapse of two months between the theft and fiuding.</p> <p>It is the right of the judge to comment on the evidence.</p>

<p>The jury may find a defendant guilty of petty larceny, although the goods exceed the value of twelve pence.</p>

<p>Assault and battery.</p>

<p>The official acts of one whose commission is not valid, are good until the commission is declared void.</p>

<p>Debt on the statute, No. 330. P. Sr. Passed 12th of December, 1712.</p>

<p>The proper mode of proceeding, in case the ordinary should grant administration to one not entitled, is by appeal. Mandamus will not lie.</p>

<p>A policy of insurance is avoided by either aTlegatio falsi, or suppressio veri. A verdict ought not to be disturbed for an error of the judge in point of law, if there be other sufficient grounds to support it.</p>

<p>An officer may be punished by impeachment, which is a constitutional proceeding.</p> <p>The seventh article of the constitution of South Carolina, relates to such laws only as are not inconsistent with the true meaning and effect of the constitution.</p> <p>The proceedings of the Senate, in cases of impeachment, are not to be examined or reviewed by the court.</p>

<p>The security of an administrator cannot be made liable on Ms bond until the administrator has been cited; a creditor may assign a breach of an administration bond in not paying debts.</p>

A suggestion in this case was filed in the said court, praying, for the reasons therein contained, for the writ of prohibition, which the court refused to grant. From that decision, the said John Schro-der has appealed to the associate judges of the said State, on their meeting and sitting at Charleston.

Motion to set aside a nonsuit. / Action of debt. This was an action of debt brought on a bond given to the commissioners in equity, upon a writ of ne exeat, issuing out of the Court of Equity in a suit wherein B. H. Saxon was complainant, and D. J. Puckett, defendant, to restrain the defendant from leaving the State, or departing from the said court, without the leave thereof.

Debt on judgment from Virginia. Pleas, nul tiel record and nil debet. Motion to set aside the decision of the court on the first plea, and to reinstate the cause, so as to try by it the issue of the second. This was an action on a judgment obtained in the county court of Loudon, against the defendant, the bail of one Jones. An exemplification, duly certified under„the act of congress, was produced by the plaintiffs.

<p>Case for medical attendance, &c.</p>

Dower. Plea. The husband was not seized .upon the trial of the cause, and the defendant produced a copy of the will of Reuben Stark, the former husband of Mrs. Pickett, under whose seizin the plaintiffs claim, and contended, from the ample provision made for Mrs. Pickett, in the will of her former husband, that the jury had power of considering such provision as intended by the husband in lieu of dower, although not so expressed in the will.

This was an action to recover back money paid for a horse, that turned out unsound and died. The declaration contained only a single count for money had and received. ■ But there was a paper filed with the declaration, setting forth the particular cause of action.

This was a proceeding within the summary jurisdiction of the court, to recover the money due on a note riot negotiable, and in the process the plaintiffs styled themselves assignees of the payee. Judge Brevard held that the plaintiffs could not, even under the act of 1808, recover in their own names as assignees, and decreed for defendants. This was, therefore, a motion to set aside this decree, and for a new trial.

This was another case within the summary jurisdiction of the court, to recover a note of 86 dollars. Defendant offered in discount a due bill given by the plaintiff, to W. B. Farr, and by him assigned to the defendant, for 80 dollars. The court, Judge Beevabd, presiding, decreed for defendant, and allowed him the balance, between the note and due bill.

Debt on sheriff’s bond, for the performance of duties. When this case was called, Mr. Branding moved that William Mayrarit, Esq., a co-security, who had been served with a writ of subpoena duces tecum, should be required to make return to the writ before the case was opened.

<p>Trover'for a negro child. Verdict for defendant. Motion for a new trial.</p>

<p>On an indictment "for counterfeiting a silver dollar, proof that defendant had counterfeited other dollars, not admissible.</p> <p>Indictment for counterfeiting, must charge it to have been done with intent to.defraud some particular person.</p>

Trespass to try titles to land. Verdict for plaintiff. Motion for $ew trial.

Rule to shew cause why a prohibition to stay the proceedings of certain magistrates acting under the act of 1812, for the relief of landlords, should not be granted. In this' case there was no written lease, and the court ordered the prohibition. A motion is now made to set aside the prohibition, on the following grounds: 1.

Scire facias to revive a judgment m the county court of I1 airfield, against Robert Young and Robert Ellison, sureties of J. Winn, on the bond of John Winn, in the penal sum of £1,500, conditioned for the performance of the duties of sheriff of Fairfield county. The sum recovered in the original action was £75. The defendants insisted that the county court had no jurisdiction of the original action.

Indictment for larcepy. This' bill was found by the grand jury during the present term, and a motion was submitted to set aside the finding, on the ground, that the grand jury had not been duly impannelled and sworn. The facts on which this motion was made, were as follows. The former clerk of the court had resigned, and the vacancy had been filled.

Summary process on open account. Decree for defendant. Motion to reverse the decree. The only proof offered by plaintiff in support of this action, was the acknowledgment of the administrator, that the account was just, and Mr. Israel Matthews, then sitting for Judge Brevard, overruled the evidence and decreed for the defendant. This was a motion to set aside this decree.

John M’Fall, the defendant, had formerly commenced an action in the name of Moses Holland, against the plaintiff, on the trial of which, judgment was given for the defendant. The costs were then taxed, and an execution issued against Moses Holland, the nominal plaintiff, which was returned nulla bona. - This action was then brought ageinst John M’Fall, to recover the costs against him.

This was a feigned issue, made up under the attachment law, to try the question of property in the schooner Mary-Ann, which was attached by defendants, as creditors of Lockwood, and which the plaintiff claimed as his property, on the ground that it had been legally conveyed to him, prior to the levying of the attachments. Lockwood was in Charleston, with the schooner Mary Ann, of which he was the owner. He was indebted to Prime, the plaintiff, w^° ^ve(^ 'n New York.

Indictment for coining, &c. The verdict was, “ guilty of passing the dollar, knowing it to be counterfeit.” The counsel for the prisoner took exception to the jurisdiction of the court to try any offences against the coin ; the jurisdiction thereof being exclusively confined to the court of the United States.