Volume 7 — South Carolina Law Reports

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

Motion to set aside a non-suit granted by Judge Smith. In this case, it appeared that the plaintiff commenced an action ot assumpsit to recover back money he had. paid for an unsound horse, in which ac-íáon he was non-suited. 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.

Murder. This was an indictment for the murder of Samue^ Hairs. It appeared that the prisoners were committed to gaol in December, 1813. At-the spring term, 1814, whilst in gaol, they demanded their trial under the habeas corpus act. At that term, the presiding judge (Smith) declared the jury unlawful, and dismissed them, in consequence of which, no bill of indictment was given out.

Mot on for a new trial. This was an indictment for larceny in stealing a promissory note, of “ The president, directors, and company of the bank of South-Carolina,” payable to a certain person therein named, or bearer: (the sum of five dollars,) signed by the president and cashier of the said bank company.

Motion to set aside ar non-suit. judge Smith. Tried before this tbe plaintiff proved an account against tbe defendant, amounting to $219,84; all of • which was due previous to the 16th April, 1811. And that, on that day, the account was assigned to Burner Starke, and the defendant had notice of such assignment. The defendant proved in defence, a receipt In the following words: viz. i6Received, April 11th, 1812, of Mr. John W. Rees, five shillings, in full to this date.

The brief in this case states that ii this was an action by the plaintiff* a young man* hale, hearty, and in the bloom of life* for an alleged assault by Milly JRyan, an old body of upwards of fifty years.” The jury have given a verdict for 8275; and a motion is now made for a new trial on the ground that these damages were excessive.

Sum. pro. on note of hand, dated 22nd June, 1812, for 871. Decree by judge Colcock, for the amount of this note, with interest from 1st January, 1811. This was a motion to reverse this decree, on the ' ground that the note was usurious upon the face of it.

From Lancaster District Court. Court of. Appeals, April 1815. Trover for three hogs: verdict for plaintiff. Motion for a new trial.

Petition for Probate. The certificate of Harllee, Ordinary of Marion District. October 5th, 1812. Atan adjourned court of Ordinary, held this day, at Marion court-house, to have the will of Thos. Port, proved in due and solemn form of law. The legatees of Mr. Thos. Port, having appeared by their counsel; and the legatees of Mrs. F. Port having also appeared by their counsel, all the parties being ready for trial, the court proceeded to the same.

<p>A demurrer admits all facts that are well pleaded.</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.

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 life time. To this the defendant pleaded u plene administrara/’ 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, 8.

Trespass to try title to land. Verdict for defendant. ~ Motion for a new trial, on the ground of misdirection of the judge, (Brevard,) before whom the case was tried. Held: and so charged the jury, that as the statute of limitation had begun to run in the life time of old Mr. Rose, it continued to run on against the present plaintiffs, (notwithstanding there were minors among them,) until their right of action was barred. Upon which the jury found a verdict for defendant.

This was an action brought for the recovery of monies paid to the use of the defendant, by plaintiff's testator.

<p>In case of eviction, tlie meas--wre of damages is the price paid, with interest.</p> <p>Consequential damage cannot he recovered forabreacli of warranty.</p>

<p>^“btful case,^ there was sides, a was reuse</p>

Trover, At the trial of the above case, it was admitted that Benjamin B. Harvey and Charlotte Villepon-teux (in consideration of an intended intermarriage) together with Benjamin Alston, deceased, entéred 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 Ponteux; and after the death of either, to the use of the survivor for life, and after the death of the survivor to the issue of…

<p>The au>^ anag?nt mercantile doaway sjtyofludi p«>of.</p>

<p>The lapse raisesJaaK tionofpay-meut>in the case of a judg-weifaiTof whether of a plain-^lhyand of defend-bamssed stances", is p*esumption of payment Jltlf 2°</p>

<p>a witness testified, he fintzea N11*1 de: fondant’s hand-wri-^"suía- ' ¿ g° ^u" after ver-shall be has seen the defere-dantwrite.</p>

<p>The com-nrissioners to asses ought to thatftL land can-vided and offTetbre they assess a sum of money in doweiu mentTf*" one-thM oftheva-lue of the set aSde6’ m «Coes-</p>

<p>n is a de-fendant’s duty to en-pernee* f1 tlle first ;f the iiids1© does not attend*</p>

<p>itissuffi-wcesfbe 15 fore the the^ourt, ^c^nth court sits,< ding- the ^ci,n Proce!s is</p>

<p>A venire TO-turnabie tain day, rendered act of the turf alter-tíme of thecourt and de- ’ samftobe good for the day so fixed, at, though different from the day on which it was returnable.</p>

<p>Nodistress will lie, ^nt be*6 exPressl7 reserve^*</p>

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

<p>The jurisdiction of magis-caseTof der the county court act, assembiyf circuit court act does not ^ec“™' act; but parts tothatact.</p>

<p>The act of tkorismg jRcr sickness of a judge is unconstitutional & void. 'Re-Mu-coobü-tlltlO.l does not make the validity of a law, as to the point of constitutionality, di ;y ud on such laws being- enacted before, or since the constiMiíion The pow-r, therefore, given by the act of Assembly of 17 -9, to appoint in case of sickness of a judge, is taken away by the Constitution.</p>

<p>interest is not recoverable on account) timegbea fixetj.for unless^’ ana'gree-printer est. An ment* may plied,’as from a to give a fo°rthe°r trade* °f</p>

<p>Tcagery commit Bering the a bank-bill Qussre, if by simply them^gin Defendant Td for ^ ? biu of a* mcorporat ed bank, éT by°the "^“gpre-sident and Directors of the Bank of South-Carolina.” The bill produced was of “ The Rank 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 cepted an •menTnor in fact, Sign-7 ed! he was^ competent tain the se-tl0n*</p>

Assumpsit. John Paisly and James McBeth 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 account 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>Notice is necessary to the in-anote °f tíufcoun-trft- K6f the insoiv-the draw-lo away0t the neces-tice and° th(Tindoí a known cy'wiiiex-want o? Detice.</p>

<p>The ad_ mission boi one part/ "he’ aisso-m-rsbip, i» sibie to</p>

<p>Evidence soundness cicnt to fendantto a verdict tion for the hors' ,° un-unsou.ídness be proved to have exis-time of the contract.</p>

<p>fJonse-quential damages are not recoverable in trespass for taking away goods. A witness whose interest is equal on both sides, is competent.</p>

<p>The jury may find a defendant guilty of petty larceny, al-thoughthe goods ex-ci od the v ’.ue of 12 p nee. T >c possession of stolen goods is a presumption of guilt; and •tins pre-sumpi ion is not rebutted by tin of ’ ■ o months between the theft and finding. It is the right of the judge to cota pnu-n on the evidence.</p>

<p>proof that the prosecu-the first°k notjústífy an enor</p>

<p>a justice f/notuuv cnmhlaiiy for error of iudtr~ ment. He is answerable for corruption</p>

<p>Theoffi-cial acts of one whose sion'is not good’until the commission is declar* ed void.</p>

<p>Although qunes the rerme of ces toStl" wr't of'e habeas shig-k'S'jus-ble a* ne" refuses to Evkienee of tire motives ofthe justice for the writ, is ^iiere.lblc Son outlie habeas corpus act for refus-grfntthe beus°cor-" pus, the original warrant of méntmied duced.Pr°"</p>

<p>The pro-ofpro° ° ijf'ase the grant ad-ministra-tiontoone not entitled, is by appeal. Mandamus willnotlie,</p>

<p>^policy anee is by^tther aji%utio mppressio verdict^ turbed for the judge °f thfr‘ be,. other sufficient fó support</p>

<p>An officer punished . which is a constitu-ceedi,ig-!°' constitu-Carolina, ‘ gu^hiawB0 ontyasare not mcon-sistent with the true mean-fet^oftho °¡"nnstitu‘ The pro-ofthefen- ^ of imPeach' ment are not to be 01. review-tlie</p>

<p>Debt on Administration Bond.</p>

A suggestion in this case was filed in the said court, praying, for the reasons therein contained, f°r a writ of prohibition, which the court refused to grant. From that decision the said John Schroder ° has appealed to the associate judges of the said state, , . . - • . . mi on their meeting and sitting at Charleston.

Motion to set aside non-suit. 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. J. D. Pucliett 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>g-es in a ' clan’s mu mus1;ke specific, not loose eral,</p>

Dower. Plea. The husband was not seised 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 seisin the plaintiff’s 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 . A A 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 not negotiable, and in the process the plaintiffs s^et^ 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 66 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 Brevard presiding,) decreed for defendant, and allowed hini the balance, between the note and due bill.

Debt on Sheriff’s Bond, for the performance of duties. When this case was called, Mr. Blanding moved that - William Mary ant, 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>Parol evi-notbeCad-mitted to prove that damages fctl0n trover, fop any things "ed’ln the ^ onaia’-'</p>

<p>On an indictment for counterfeiting' a silver dollar, proof that defendant had counterfeited other dollars, not admissi-bl-. Indict-m nt for counter-fe ting, must charge it to have been done wtli intent to defraud some particular person.</p>

Trespass to try Titles to Land, tiff. Motion for new trial. Verdict for Plain In this case it appeared that Kennedy was only nominal defendant, being a tenant of Matthew Bus-sell, Who was the real defendant: that Russell had engaged Kennedy to defend the suit in his name; and for that purpoee had executed and delivered a bond of indemnity, to save him harmless against all cost, and also had employed counsel to put in a plea and conduct the defence.: but that Kennedy had…

-^u^e 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 oTanted. . , In this case there was no written lease, and the court ordered the prohibition.

Scire facias to revive a judgment in the county court of Fairfield, against Robert Young and Robert Ellison, sureties of /. 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 Larceny. This bill was found by the grand jury during the present; term;) and a motion was submitted to set as^de tlle 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 Mv. Israel Matthews, then sitting for Judge Brevard, overruled the evidence and decreed for the defendant. This was a motion to set aside this decree.

Summary Process. John McFall, the defendant, had formerly commenced an action in the name of Moses Holland, against the plaintiff, on the trial of which, judgment was adven for the defendant. The costs were then ° ... taxed, and an execution issued against Moses Hoi-land, the nominal plaintiff, which was returned nulla bona. This action was then brought against John Mc-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 plain- ^ claimed as his property, on the ground that it had been legally conveyed to him, prior to the lev- . „ , , yuig oi the attachments, Lockwood was in Charleston with the schooner Mary Ann, of which he was the owner.

Indictment for Coining, &e. The verdict was, (i guilty of passing the dollar knowing it to be counterfeit.*’ 1 he counsel for the prisoner took exception to the jurisdiction of the court to try any oifences against the coin; the jurisdiction thereof being exclusively • confined to the court of the United States.

<p>The truth cannótbe given in evidence in,a crimi‘ nal prose* cutíon.</p>

The bill was filed to compel the specific perform-anee of a contract for the purchase of a plantation called Bethel. The plantation had been sold under a decree of the Court of Equity, for an easy partition among the representatives of the late Major Pelot.

The bill was died by the complainants to obtain payment of their several demands, out of the assets of William Thompson and John Paul Thompson, complainants, joined in the same suit, because their de-to be paid out of assets in the hands of 1 mauds ,wer'e defendant.