Volume 8 — South Carolina Law Reports

<p>woTontiotee £325*“ tóíjS</p> <p>Moment for grand larceDjr peutiaSy.6”3</p>

Indictment for assault and battery on Andrew Nelson, tried before Mr. Justice Gantt, at Charleston, in May term, 1816. Verdict, guilty. A motion is made for a new, trial on the following grounds: 1. Because the prosecutor having come into the house of the defendant, being desired to depart, and refusing to go, justified the defendant in putting him out, and employing force to do so.

<p>This was a case on information in nature of a quo warranto, tried before Mr. Justice Gantt, at Charleston, in Term, 1816.</p> <p>The brief states the case in the words of the information, as follows: John S. Richardson, Attorney General of the said state of South Caroli* ^ na, who sues for the said state in this behalf, . * —. . comes here into Court at Charleston, m the dis-7 trict aforesaid, on the 11th day of June, 1816, in the same term, and for the said state, gives the Court here to understand and be informed, that the city of Charleston, to wit, the City Council of Charleston, for the space of years last past, and more, hath used, without any charter or warrant, the power and privilege of franchise, of laying a tax or assessment on bonds, notes, or other obligations, upon which interest hath been, or probably would be received; and of providing for the payment of the said assessment, and in case of default, for enforcing the payment thereof; which said powers the said City Conneil of Charleston still doth use. That in and by an ordinance ratified in Council the 26th day of February, in the year 1816, entitled “An ordinance to raise supplies for the use of the city of Charleston for the year 1816,” it is ordained, among other things, that the following species of property, owned and possessed within the limits of the city of Charleston, shall be subject to a taxation, in the manner, at the rate, and conformably to the provisions herein after specified, &c.; that after the enumeration of certain subjects of taxation, the said ordinance proceeds as follows, to wit: that all personal estate consisting of money, bonds, notes, or other obligations, upon which interest has been actually received, or will probably be received, (funded stock of this state and the United States excepted,) bank stock, the property and stock of insurance companies, whose capitals are not exempted from taxation by the laws of the state, and all stock in trade, shall be liable to a tax of 75 cents on every hundred dollars of the value or estimate thereof, to be returned by the respective owners, and to be assessed by the city inquirer and assessor, and assistant assessor. That in the several years past, the assessments or taxes made as aforesaid, have been paid to, and received by, the City Council of Charleston, in conformity to the provisions of the ordinance laying the same ; and that in the aforesaid ordinance for raising supplies for the present year, provision is made for raising the assessments required to be made-as aforesaid, and in default of payment thereof w'tiiin the period limited therein, further proviis made for enforcing payment ox me same by process, against the lands and goods of the defaulter; and in case he have neither lands nor' goods, by process against his person; that payment of the aforesaid assessment is now required' to be made. All which powers, privilege, and franchises, the said city of Charleston hath as aforesaid usurped, and still doth usurp, upon the said state, to the great prejudice thereof. Whereupon the said Attorney of the said state, for the said state, prays the advice of the Court in the premises and due process of law against the said City Coimcil of Charleston, in this behalf to be made to answer to the said state, by what warrant the said city of Charleston, to wit, the City Council of Charleston, claim to have, use, and enjoy, the powers, liberties, privileges, or franchises aforesaid. And the' Court having granted the said rule, and the same being served upon the said City Council, they-showed cause by their attorney, John Gadsden, whereupon the said Court of Sessions decided in favour of the relator ; from which decision the said City Council doth appeal to the Constitutional Court upon the following grounds :</p> <p>1. That an information in nature of a quo warranto will not lie against a Corporation as a body. at the relation of a private person in the name of the Attorney General.</p> <p>2. That the said City Council have full power, by the act of incorporation, to make on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit, and advantage of the said city, as shall appear to them expedient: That Mr. John Ravenell, the relator, is an inhabitant of the city of Charleston; that the bonds, notes, or other obligations of the said John are taxable property within the said city, and that the said City Council had therefore a right to impose the said tax upon the moneys, bonds, notes, or other obligations of the said John, yielding an interest.</p> <p>3. That the City Council had a right to levy the said assessment, by the usual process of execution for the collection of taxes.</p>

<p>This was a case of prohibition, brought before Mr. Justice Gantt, at Charleston, in May term, 7 7 v 7 1816, who directed a writ to issue.</p>

<p>fornkturai^affecderaDon of noo, reserving the use of a tract of land tohim«elfforiife, conveys it to his son for life, and afterwards to the SddSo°„n, ¿funy fate ^e'(nont“e wtnSnfthon ivho look as chasers from the thTiafna“r¿ n”dt subject to the Ser-swm the</p> <p>Joint, tenancy act of 1734.</p>

<p>A prohibition lies against the commissioners oE the public roads, whose functions are sufficiently of a judicial characscription of those inferior tribunals un-orteedt^cl «mliS ffeSs disputed' may bfc tried by jury.</p>

This was an action of assumpsit, brought to re- ° cover the balance of an unsettled account be-,•,,1 ,* t n i n twixt me pames. Une ground ox defence was a note of hand on Francis Rose, endorsed by plaintiff, to defendant, which was offered byway of set-off! This was objected to, because it did not appear that the, defendants had made application to Mr. Rose for payment, or had given notice to Tho **■ the -endorser that it had not been paid.

This case was tried before Mr. Justice JYott, in May term, 1811. The verdict was for the J ' plaintiff. A new trial was now moved for.

The case was tried before Mr. Justice Smith, in January Term, 1813. 1 his was an action on the case for a libel published by the defendant concerning the Plaintiff. in a newspaper printed in Charleston, called “ The Times,” which was of the tenor and nn ¡ r t* • eiiect following: “ In reply to a handbill circulated in town last evening, or this morning, by William Thompson, I deem it due, out of respect No the community, to state the expressions alluded to, together with the…

This was an action of trespass, to try title*, tried before Mr. Justice JYott, at Williamsburgh, in October Term, 1811. The plaintiff claimed under a recent grant for 990 acres, or thereabouts. rr,-, . ttt* * i i i a. 1ms was adduced m evidence, and proved to A v embrace the locus in quo.

The case was tried before Mr. Justice Nott, at Georgetown, in November Term, 1811. , This was an action of assumpsit, brought by George Duncan of New-York, against Isaac Course, ° ^ resident in this state.

The case was tried before Mr. Justice JVoii, at Georgetown, in November Term, 1811. This was an action of debt ón bond. The „ proceedings were made up ready for trial, and just as the cause was about to be submitted to the Jury, a motion was made to set aside the proceedings, on the ground that the writ was not sealed with the seal of the Court.

These actions were brought against Ackworth as the drawer, and Cowan, the accepter, of a bill of exchange drawn in Nassau, payable in Charleston. Ackworth was ¿ resident of Charleston, and the captain of a vessel belonging to Charleston, and owned by Cowan, who was a resident merchant of Charleston. The plaintiffs were merchants engaged in commerce between these places.

This was an action to recover overseer’s ges, tried before Mr. Justice Smith, at Coosawati , . _~ _ _ chie. m JNovember lenn* 1813. 13y the 7 7 » o ment entered into between the parties, (which it . . was agreed should be reduced to writing, but O o never was,) the defendant agreed to allow the plaintiff for his own services, and for the labour of three hands, by him to be employed in the crop, six equal shares; these shares, it was proven, would have been worth $ 100 each.

This was a special action on the case tried he-fore Mr. Justice <SWVA, at Coos.awhatehie, in — =- Term, 1.81 — , to recover the value of fifteen bales of long staple cotton, delivered to the defendant, to be shipped by him from Beau-to Charleston. The defendant commanded a schooner called the Planter, and was in the „ habit of carrying between Beaufort and Charles-^ ’ ton.

This was an action on the case tried before Mr. Justice Colcock, at Charleston, in January Term, 1812, to recover damages for the loss , , a negro, Catharine, who, it is alleged, died of the small pox in Charleston.

This was an action of debt on bond, tried before Mr. Justice Grimhe, at Georgetown, in April Term, 1814. The action was in the usual form; and after the rule to plead had expired, and no plea put in, the plaintiffs took a judgment by default, which was considered final in debt.

This was an action of' assumpsit on a promis- . . . S0IT note. An interlocutory judgment was obtained by default, and a reference was ordered, under .the act of Assembly, to the clerk, to assess the damages. This order was made by Mr. Justice GrimJcé, at Georgetown, in April Term, 1814. A motion is now made in arrest of judgment, on the ground that the act of Assembly is unconstitutional, and the reference therefore void.

This was a rule to show cause why a writ should not issue to admeasure and lay off to the widow of Mr.'Righton her dower in certain lands therein mentioned. The defendants showed for cause that the deceased, in his life-time, and before his marriage with the demandant, had transferred the premises to them, so that he had not been seized during the coverture.

In May Term, 1814, at Charleston, the defend-J ant’s counsel moved to set aside the judgment in this case, which was entered up m Charleston * , district, on the 23d of February, 1811, on the ground that the verdict and judgment exceeded the damages laid in the writ. The presiding t i ti/r t • i 7 - , . . J udge, Mr. J ustice (Jolcoc/c, was of opinion that the motion could not be made in the Circuit Court, but ought to be made as an original motion in this Court.

This was an action of trespass, in nature of ravishment of ward, to try the right of the plaintiff’s ward (who was held in slavery by the defendant) to her treedom, and to recover damages. The case was tried before Mr. Justice Smith, at Charleston, in January Term, 1816. In 1806, Alexander C. Gibson removed from Baltimore to Charleston, and brought with him the girl Phebe, who was then about twelve years of age.

This was a motion for a new trial, on the ground of the discovery of evidence since the former trial, of the existence of which the party was A ^ not apprised at that time. The evidence consisted of letters, found among the papers of his testator. The ease was tried before Mr. Justice Grimké, in January Term, 1817. Verdict for the plaintiff.

This was a rule to show cause why money was not paid over which was alleged to be in his hands, and to Mrs. Mary Jones, executrix of Samuel Jones, to wit, 1750 pounds sterling, with interest from 1st September, 1807, being the amount of a bond due from David and Thomas Bailey to John Champneys, assigned to the testator by Mr. Champneys, upon which judgment had been obtained, and execution taken out and lodged with the sheriff.

Thé caSéwás tried beforé thé late Mr. Justice Wilds, at Charleston, in--Term,-181 — . This was axl action on a policy of insurance, 6th July, 1804, on the schooner Example and cargo, Cotí master, at and from Barracoa to Charleston, at four and a half per cent. The Example had sailed from Charleston on the 23d of May, and arrived at Barracoa on the 20th, a pas-J , * sage of six days.

This was ‘ an action of assumpsit on a note of 400 dollars, dated 15th October, 1811. Rappearecl in evidence that at the time this note was ^ given, and for some time before, and after, the defendant was confined to her bed with sickness, much enfeebled in body, and frequently in a state of mind unfit to attend to business.

This was an action of assumpsit — plea, non as* sump sit infra quatuor amos ; replication, that “ the defendant had assumed, within four years next before suing out the original writ,” on which,issue was joined. So that the question was, whether the defendant had promised to pay this debt at any time within four years next before the commencement of the action.

This was an action of assumpsit-, brought on the following agreement: “ It is agreed between Moses Myers, Samuel Holman, and John Taylor, to - . “t out the schooner Centurion, from Georgetown, on an African voyage, viz. they agree, the said J ° J 0 Holman and Moses Myers, to gire the saiu John Taylor, for two-thirds of the schooner Cen- ' ” turion, at the rate of two thousand five hundred dollars for the schooner, and the said John Tay- ° l°r reserves the other third as his…

This was an action of debt on bond. The bond was granted by Dubois to the plaintiff’s testator; it was dated 20th November, 1778, conditioned for the payment of £15,000 cur-On the bond two receipts were endorone. dated 20th November, 1779, for one interest, and the other the 24th January, 1787, for £524.3.7 sterling.

This cause was tried before Mr. Justice Smith, at Williamsburgh,-Term, 18 — . ° The only question involved in this case was, whether selling for a price equal to the value of the thing sold, if it was free from defects, implies ^ warranty on the part of the seller that the thing sold is free from all defects, known or unknown.

This was an action of trespass to try title, . 1 J brought to recover a lot of land at the south-east corner of Broad and Orange-streets. In support . # 0 # x x the action, the plaintiffs gave in evidence a conveyance of the lot from the Master in Equity to them, and a decretal order of the Court of Equity, under which the conveyance was made. The trespass-, it is understood, was either proved or admitted.

case was tried before. Mr. Justice Grimke* hi January Term, 1811, at Charleston. The piainhii was the owner 01 a schooner em-x ployed in carrying produce to market, and the defendant sent on board of her a quantity of rice, which he consigned to his factor in Charleston.

This Case was tried before Mr. Justice Grimk'e, at Williamsburgh, in March Term, i 811. __ . . . * 1 his was an action of assumpsit on a promis» a I soi’v note made by the defendants to the plaintiff , .

<p>evidenced £ tiki’granted.new</p>

<p>An East Indian, il though a free ble to a capitation tax, under thé ordinance of the City Council pf Charleston.</p>

<p>tinffawritof quiry, find a verdiet for defend-Where there is a judgment by default., the Jury</p>

This case was tried before Jdr. Justice Mott, at Georgetown, in November Term, 1811.

The case was tried before Mr. Justice Grimké., at Charleston, in-Term, 181 — . This was an action of assumpsit on a policy of insurance on the brig Commerce, K. o. Long, master, at and from Charleston, to the westward ^oast of Africa; during her stay and trade on :he coast, and at and from thence back to - ___ _ , ' .

<p>pj£Vsof “estl" to?ey’the a?ury] miShistacteaSa/f fact, it iS not necessarilyaground “rortatadthedi¡dmission or the reAction of testi-</p> <p>The Jury are the proper judges of the degree of credit tobe given to witnesses, whose incompeteucy is removed by a release of their eventual interest.</p> <p>Fraud is never to be presumed— must be proved positively, or from strong unequivocal circuma¿anees.</p> <p>SanHyofate3.. be^rraumeaftíe ESsane.IS once</p> <p>pro-IcyourUDdthe Ju''</p>

This was a motion in the Circuit Court for the District of Charleston, to restrain and prohibit 4 x City Coroner from taking inquests upon the 7777»/» *77 77 7 7 dead bodies of persons occasioned ou sudden and casual “ deaths within the limits and jurisdiction of the said city, upon the ground, that by the law of the land, as well as by divers acts of Assembly, that power and authority within the district of Charleston, exclusively belongs and appertains to the State Coroner…

Debt on bond; verdict for plaintiff; motion for new trial. The bond was given for a negro carpenter, and was conditioned for payment of 1007 dollars. Tried before Mr. Justice Bay, at Jacksonborough, in May Term, 1812. ‘Defence, that this negro did not answer the description given of him at the time of sale. This was a case which turned upon the evidence offered on the trial.

<p>In an action containing only a count for money bad and received, the plaintiff must always file an acSfofgivesimé Se nature áf°tte count on the and in such case cause wmtmi,’e stricken oif the docket.</p>

<p>Where a person Sssiir Eófk ‘tie W uses those funds notesofthe er, when he is in a state of vency, at an unbrought f¿clthS ™c3r.tyiíentitied to no more paid:h%nduule right™giífeviifotesalere"Vurchased.</p> <p>where a jury elusions from facts and cire.utnparticularv 11 evidence on «.the yerdik ?heajus°t!ceaofathe case, it shall not poinf-was not gil-</p> <p>It does not lie in the mouth of a party to object against the verdict, the want of testimony, on a point ,to which testimony was offered, and successfully opposed by that party at tne trial, but which ought to have been admitted.</p> <p>Opinion of J udge cheves, contra,</p>

Quo warranto. This was a rule, obtained be- - * y _ __ . , . i lore Mr. Justice Colcock, at Marrion, m March Term, 1817, to show cause why an information m the nature of a quo warranto, should not be hied against the incumbent, to discover by what au- . thority he then held and exercised .the office oi Ordinary, in Marrion District.

was an indictment for receiving stolen goods. The case was tried before Mr. Justice (xrimlcé^ at Charleston, in January Term, 1817.

This case was tried before Mr. Justice -, at Charleston, in - Term, 181-. This was an action of assurnpsit on a promissory note, drawn by the defendant, payable to the plaintiff, endorsee, John Smyth. The defendant called John Smyth as a witness, to prove that the note was endorsed after it became due, with a view to let him into a defence which he would have been entitled to make, ~f the note had remained in the hands of the said John Smyth.

A motion was made in the Circuit Court at Charleston, in-Term, 181 — , before Mr. Justice Smith, to discharge the bail given by the ° 0 defendant in this case, on the ground that the am-davit annexed to the writ of the amount of the debt, and which had been taken before, and certified under, the notarial seal of a notary public in Pennsylvania, was not sufficient to authorize the Sheriff to require the defendant to give bail.

<p>mi* r * i This was a ieigned issue to try the right to mo- ° ' J ° neys attached as the property of Thomas Topham, an absent debtor, resident in England, and who ° had there been declared bankrupt. The case was tried before Mr. Justice Smith, at Charleston, in January Term, 1813. The verdict for the plaintiffs, the assignees of the bankrupt, under the commission of bankruptcy. The defendants are attaching creditors, under the laws and in the Courts of this State. This is a motion to set aside the verdict.</p>

the first are not complied with. This was a case under the vendue act, tried before Mr. Justice Bay, at Charleston, May Term, 1812. The act enjoins on the court to afford the parties the most speedy and eftectuai rebel L x for the recovery of the difference between first i t i , ,. •» ,¶ . and. second sales at auction, where the terms oí '

This was an action for money had and received by the defendant, to the use of the intestate, H. Ryer.

<p>The general uragea of trade form a part of the Law of the Laud, are presumed to be known to all, aad are the tesin of all contracla analog under them; but loes~ sIaages, or those prevailing in a particular branch of trade or traftics, linlesa palpably unreasonable, maybeproved by evidence. A printer of a gazette, who has kept an advertisement for a long time in his paper, may adduce evidence to prove a custom of the trade, that ad-~ vertisernenta aeet for publication, with no orders iimiting the timea of insertion, may be continued until directiona be given to stop tim insertion.</p> <p>in «hat cases general usages may or may not 1,rooC</p>

In this case the plaintiff, who was editor of a gazette, brought his action in the City Court of Charleston to recover the amount of a demand for inserting an advertisement in his paper a certain number of times. The advertisement had been sent to the plaintiff’s office without any express directions as to the number of times it should be inserted.

This was an action brought to recover the amount of the damage sustained on certain goods, shipped by the plaintiff, on board the sloop Elfrida, of which the defendant was master, on a voyage from New-York to Georgetown, and which it was alleged were damaged, by the neglect or want of skill of the captain or his agents.

This was a motion to reverse the decision of The case was tried before Mr. Justice Jyott, at Charleston, in May Term, 1811, who now de- # # bvered the opinion of this Court. This was a scire facias on a bail bond to the # J sheriff, to show cause why the plaintiff should not have judgment and execution against the bail.

<p>was a motion to reverse the decision of the District Court.</p> <p>The case was tried before Mr. Justice Colcock, at Charleston, in May Term, 1814, who now delivered the opinion of this Court.</p>

This was an action by scire facias, under our acts of Assembly, by the plaintiff against the defendant, as bail to the sheriff, of Thomas G. Wait. _ , The bait bond was dated, the 16th August, 1810- and on the 8th September following, the plaintiff _ . gave the defendant, or his bail, the following © 7 7 © note, addressed to his (the plaintiff’s) attorney: “ Sir — You will please, on the receipt of this, to discharge the bail in the suit brought against Thomas G. Wait, as it…

<p>It’ in making a title under a sheriff’s deed, the execution under «lands,tenements,» &c. this being a coS!ed by ‘he Where a she-['f \e"0s la”dtuf" the meexS'onn, provided the levy fucS safé a «tie under betweenae píy chaser and par«eds but when thfpS^^“¡0^0° title will apply, “acpu“; bySa saie^ndw execution will notrarythecase'</p>

<p>This case was tried before Mr. Justice Brevcird, at Charleston, in May Term, 1813. " 1 *? 7</p>

Trespass for taking away sundry negroes, &c. tried before Mr. Justice Brevard, in May Term, ini 0 lOAO. This was an action, as stated in the brief, brought against George Parker, Lewis Chupein, and Frederick Tavel, jointly; prosecuted alone against Parker, (the names of the others being o ' v. o stricken from the proceedings,) in which Jury gave a verdict against him for 50 dollars.

<p>This was an action of trespass to try title.</p> <p>The plaintiffs claimed as heirs at law of Ben-a jamin Paul Williams, deceased, and the defend-as administrator, with the will annexed of 7 the said Williams. The defendant was admitted _ . ♦ _ _ , , be m possession oí the lands in question. It was proved that the plaintiffs were the heirs at ~ . T_ , ot Williams, and their right to recover was 7 o established, unless that right was defeated by a . under which the defendant claimed and ■ held. This will was written on two sheets of . . # PaPer’ in hand writing of Williams: on the first it was stated in the usual form to be the will of Benjamin Paul Williams, and the second was signed by him. It purported to be published and executed in the presence of Jacob Breaker, David Platt, an<f Lewis F. Breaker, and was dated 24th October, 1804. On the death of the testator, which happened in 1809, Jacob Breaker was informed that he was a witness to the will, and requested to prove it before the Ordinary. He declared that he had never witnessed a will for the deceased, and declined proving it; but being urged, he appeared before the Ordinary, and upon looking at his name, he said it appeared to be his hand writing, and he supposed he must have signed it, though he could not recollect it. He was sworn, and the usual probate annexed to the will by the ordinary, which J J1 states that it was executed and published by the testator, m his presence, ana m the presence of the other witnesses, and that they their names as witnesses thereto. On his examination in Court, he denied that he had sworn to these facts; declared that he had no recollection of having witnessed the will; that he believed his own name was in his handwriting, and that he must have signed it under an impression that it was some other paper than a will. That he did not know the handwriting of Platt, though he admitted, he had taken receipts from him for negro hire. It appeared that Platt was his brother-in-law, and had sometimes lived in his house for short periods. He would not declare Lewis F. Breaker's name was in his handwriting ; it looked like it, and thence he supposed it might be his.</p> <p>Mr. Keckley swore that Williams told him he had made his will; that Mr. Hume and Mr. Elias Ball were his executors; and that it was in the possession of the latter. He was so well assured of this, that when testator died he wrote to Mr Ball informing him of it. He would not be po sitive, but thought Williams told him the two Breakers and Platt were the witnesses to his will. Jacob Breaker, in the fall of 1810, told him he had seen the will, and believed his own name to be his handwriting, and the names of Lewis Breaker and of Platt to be their’s.</p> <p>Mr. Hume swore, that the ordinary asked Jacob Breaker, when he proved the will, “ If he saW B. P. Williams sign, sea.1, and deliver that paper? and if he saw the other subscribing witnesses sign with himself?” He did not recollect that he said, Yes; but he kissed the book. The probate was written in another room, but was afterwards signed by the ordinary in his presence, though he does not know that Breaker saw it. He might have seen it, unless he had shut his eyes.</p> <p>Lewis F. Breaker swore that he had no recollection of hating signed the will of the testator as a witness; that his name looked like his handwriting, such as it was at this time; that it was not like his hand at the date of the will; that in 1805 he had lost the use of his right hand, and had since that time written with his left hand. From this circumstance, and because he did not recollect having witnessed any paper for the testator, he doubted whether it was his or not — he wotdd not be positive it was not his handwriting. Jacob Breaker's name was very like his brother’s handwriting, but his brother denied it. He did not know Platt's handwriting. . If his own name had been cut out of the will, and had not befen connected with the date of the will, he, would have thought it was his handwriting.</p> <p>Platt swore that his name resembled his handwriting, but he never put it there. If his brother-in-law, Jacob Breaker, had sworn that he, •the witness, was present, and had signed the - will, he would not believe him, though he would generally believe what he would declare on •oath.</p> <p>The handwriting of Jacob and Lewis F. Breaker was very fully proved by several witnesses; but there was no other proof of Platt's than what may appear in the above statement. The will was found at Mr. Elias Ball's. The Breakers appeared to be men of good character. The Judge charged the Jury that the execution of the will was not proved according to the statute of frauds; particularly that the execution of the will in presence of Platt was not proved. The Jury, however, found for the defendant, and thereby sustained the will.</p> <p>A new trial is moved for, on the following grounds :</p> <p>1st. That the will is not executed according to the provisions of the statute of frauds.</p> <p>2d. That three of the J urors were members of the South Carolina Society, a Corporation entitled to a legacy under the will.</p> <p>The case was tried before Mr. Justice Grimké, at Charleston, in January Term, 1814.</p>

<p>negroes to a merchant here, who sells them, together with other bi4“N,S¿ groes, to W. (with ™k'es^!\aal°u““ house in which “”tte coSgnee, secure him-i»nd for u^gegigee“tSei mortgage he as-SeaconSiZ% i'V"hat,theNni and mortgage baa cú“Tdew giually due for ^ecsrasjf^t^, síS™ between the defendant and the' original consign-er, on which to ground an action for money had and s™e uofdtheynegroes under the mortgage- and the ground an action</p>

<p>This was an action of assumpsit, to recover A 1 the sum of two hundred and thirty dollars, the Pnce °* a negro wench purchased by the plaintin from the defendants, and interest thereon; which _______ negrowench was afterwards seized and sold by the Sheriff of Charleston District, by virtue of an ex- . , ' ecuüon against Joseph Dubose, one of the defend-in this action — tried before Mr. Justice Grimlcé, at Charleston, January Term, 1814.</p> <p>It appeared on the trial, that the defendants A L _ . # had sold and delivered the wench m question to the plaintiff on the 6th February, 1810, at and. * * for the price of two hundred and thirty dollars; that she had formerly belonged to Joseph Dubose, " ° x the deceased father of defendants, but how ghe came into the possession ot the defend-A ants did not appear; that the father had left other negroes besides the wench in question, and had died two or three years before the sale to the plaintiff; that plaintiff kept this negro woman upwards of a year in his possession, and then sent her down to a Mr. Croft, in Charleston, for sale, some time in the beginning of the year 1811; that the Sheriff of Charleston, while, she was thus in the hands of Mr. Croft for sale, seized her by virtue of an execution, at the suit of Sylvanus Keith against Joseph Dubose, as the property of Joseph, or as having been bound by the execution in his hands, and «old her for the price or sum of five dollars.</p> <p>It further appeared, and indeed it was admitted. that the judgment and execution was against Joseph the father, but against Joseph the son, one of the defendants; and that the execution under which she had been sold,"had not been lodged in the Sheriff’s office until the 1st of March, 1810.</p> <p>The plaintiff then called Mr*. Croft as a witness, who, being questioned as to her price or value, said she was upwards of fifty years of age, and that she was “ a crazy sort of a thing,” who had kept him in apprehensions of having his house burnt while with him, but that she appeared to be a healthy woman.</p> <p>Upon this testimony, it was contended by the plaintiff’s counsel, that the plaintiff had been divested of his property to pay the debt of one of the defendants, and that it appeared from the testimony of Mr. Croft, and the sum she sold for at the Sheriff’s sale, that she was worth little or nothing; consequently, that the plaintiff was well entitled to the sum he originally paid for her, with interest from the tim,e of the purchase.</p> <p>On the other hand, it was urged by the defendants’ counsel, in reply, that the Sheriff’s sale was no just or certain criterion for fixing the price or value of negroes; and that inadequacy of price was not a good ground in law to rescind a contract; and further, that it had been proved that the plaintiff had kept this negro wench in his possession, upwards of twelve months, without offering to return her, and that she was a healthy wench: and as to the sale by the Sheriff of Charleston district, it was null and void, as the wench was not bound by the execution, and he had no authority to sellher. The Jury, after hearing the casé, thought' proper to find a verdict for the plaintiff, 230 dollars damages. The present is therefore a motion for a new trial.</p>

This case was tried before Mr. Justice GrimTc~, at Charleston, in January Term, 1814, when a verdict was found for the plaintifl This was a motion for a new trial.

<p>at Coosawhatchie, in April Term, 1813. This case was tried before Mr. Justice Grimke, '</p> <p>. fl his was an action of assumpsit on two notes of hand, both dated at Charleston, 14th March, _ in 1804; the lirst, payable for 2092 dollars 50 cents, 60 days after date; the other, for 0277 dollars 50 cents,-payable 1 May, 1805, and endorsed by defendant, Mr. Morrall. The first note was protested by George Reid, notary public, on May, 1804, who called at the maker’s house, in J Charleston, where the endorser, Mr. Morrall, lodged when in town, and presented the note to Mrs. Alls ton, who gave for answer that Mr. Albion, the maker, and Mr. Morrall, the endorser, were both out of town, and that she could-not pay the note; whereupon a copy of the protest was left for the endorser. The second note, for 6277 dollars 50 cents, was protested by George Reid, the notary, on 4th May, 1805, who demanded payment of the endorser, Mr. Morrall himself, at Mr. Albion’s, who Was out of town, (and for whom a written notice was left,) but the endorser refused p.ayment. Whereupon actions were brought in Beaufort District, both against the drawer and endorser.</p> <p>On the 30th May, 1805, the holder of these notes, Mr. Moodie, the plaintiff, took a confession of judgment from the maker of the notes, Mr. Allston, for the whole amount of both notes; to wit, for the sum of 4079 dollars 9J cents, payable ¶ _ t i . -Mth March, 1806, and the residue payable the March, 1807. The suit still went on against the endorser, Mr. Morrall, for the whole amount of both notes. At the trial before Mr. Justice Grimícé, an objection was taken for the want of due notice of non-payment by the maker, to the endorser, but overruled by the Judge, who was of opinion the notice was sufficient. It was then contended, that the indulgence given by the holder to the maker of these notes, and taking a confession of judgment in manner above mentioned, exonerated and discharged the endorser. And of this opinion was the J udge who tried the cause; and the Jury found for the defendant accordingly.</p> <p>This is, therefore, a motion for a new trial, on the grounds, 1st. That the notice of non-payment by the drawer was not legal. 2d. That the giving day to the maker, and taking the confession of judgment, did not exonerate the endorser.</p>

This was an action of assumpsit against an endorser of a note of hand, tried before Mr. Justice Colcock, in May Term, 1814. The defence in this case was laches in not giving due notice of this non-payment of the note to the endorser: and afterwards giving time to the drawer to pay the money, and receiving partial payments from him, with promise not to look to the endorser, till the drawer became insolvent.

<p>Plaintiff having obtained a verdict on a promissory ZtbnnfoiVa now trial was pending, jad entered up toifimi°“ocperty míínotE comí SmLwetr?aT, fnteiest0 brought of™“dismis5aí Sld'prior’fotí¿ «rtheVtmiBi^</p>

This case was tried before Mr. Justice Col-cock, at Georgetown, in November Term, 1814. ta M-.n ,1 i/>'i j 1 In April, 1811, the defendants, who were meri ‘ 1 > chants in Georgetown, purchased a quantity of corn of the plaintiff, for and on account of Hunter & Ross, of Charleston, and drew a bill 1 1 . . . . 1 change on them in favour of the plaintiff for the amount, payable thirty days after sight; and this . r J J J o action was brought to recover the amount of the bill;…

This was an action of assumpsit, for sold-and delivered, with the common money counts. The case was tried before Mr. Justice 4 Colcock, at Charleston, in May Term, 1814. It appeared, m evidence, that the defendant bought of the plaintiffs 'three single pieces of . * . 1 .°A stockinet; but their clerk, by mistake, delivered him double pieces instead of single.

This was a summary process for the recovery of the sum of four dollars, paid to the defendant through mistake. It appeared on the trial before Mr. Justice CoIcocJc, at Charleston, in - Term, 181 — ■, that the plaintiff’s slave had been prosecuted (before defendant, as a Justice of the quorum) under the act of this State, called the negro act, and was duly convicted and punished.

This was an action of trespass, tried before Mr, Justice-, at Charleston, in-Term, 181 — , for taking and carrying away a spar irom ° J 0 J * the beach on Folly Island, which the plaintiff claimed, and which it was alleged was cast up by the sea and left there; that this spar had belonged to the ship Benson.

This was a motion made before Mr. Justice Colcock, at Charleston, in January Term, , ¶ . n - . _ to quash the writ oi replevin, on two grounds : .a JT y o 1st. That the remedy was unknown to our law, . n i • p tíxcept m eases oi distress tor rent. A 2d. Because, if known to our law, in other . ,. . ¶ . * cases, it cannot lie in this case. 7 n.

<p>This was an action of debt on bond. The tie-fendant was bound as-surety of William Webb, a teller in the State Bank; and the condition of the bond was, that the said William Webb should' faithfully perform the duties of that office; the bond was dated March 1, 1806. ft appeared by a book, m the hand writing oí Webb, m which J 7 O' he, as teller, stated daily his account with the , . _ bank, and which Was a boókkept in the regular course of the business of the bank, for this purpose, that on the 19 th June, 1810, he had m his hands, as teller, in bills of the bank, in bills of the other banks of the city, and in gold and silver, the several amounts ox each being particu- ° A larly stated, the sum of $ 25,701.6. That on the day after, (the 20th,) his cash was counted, and found deficient; that he was immediately sus-it t n t t * * t . pended, and soon afterwards dismissed : credit was voluntarily given for the balance of this cash, such other credits, if any, as he was entitled to when he was dismissed, which reduced the balance, on this account, to $ 1,736.22. It was further proved, by the plaintiffs, that Webb had received % 300 on 22d January, 1810, of R. Fair, as a deposit; that on the 13th June, 1810, he received for P. Bellisle's note $ 200; on the 19 th June, for G. A. Z. Smith's note $ 143; all of which sums he omitted to enter; and that on 21st May, / ' 1 1810, he overpaid on Coit &,<• Fraser's check $ 100; making-together $2,479.22, for which the plaintiffs claimed a verdict. Webb had held and exercised the office of teller, before the defendant became his surety; and some evidence was given by a clerk of the bank, who was examined for the bank, that he had been deficient before the defendant became his surety; but it appeared that four times a year his cash had been counted by a committee of the directors, and it was not alleged that it had been found deficient on such examinations.</p> <p>On this evidence, it Was contended by the counsel for the defendant, that the plaintiffs having admitted that they were not entitled to recover the full amount of $25,701.6, which appeared to the debit of Webb on his book, they were entitled to recover no part of it, unless every particular item, of which the balance was composed, was particularly and specifically proved. That they had not done so, and therefore were entitled only to recover the sums of $ 300, $200, $143, and $100 abovementioned, which had been particularly proved. Of this opinion was the presiding Judge, who charged the Jury accordingly ; and they found a verdict for the plaintiffs, only for the sum of $ 643, with interest from 19th June, 1810.</p> <p>In the course of the trial, the plaintiffs offered., in evidence, an acknowledgment under the hand of Webb, dated 10th July, 1810, which was after he was dismissed, of the deficiency of $ 1,736.22, which was rejected by the presiding Judge as inadmissible. The defendant also offered in evidence, the affidavit of Webb, which stated that his deficiency, or part of it, had occurred before the defendant became his surety. This the Judge also rejected.</p> <p>A new trial'is now moved for, on grounds which are resolvable into the following:</p> <p>1st. Because the plaintiffs, having proved the sum of $ 25,701.06 to have been in the hands of Webb on the 19th June, 1810, were at liberty to take a verdict for any sum within that amount, (not exceeding the penalty of the bond,) without further proof.</p> <p>2d. Because the acknowledgment of Webb, of 10th July, 1810, after he ceased to be in the bank, should have been received in evidence.</p> <p>The cause was tried before Mr. Justice Colcockr, in Charleston, in May Term, 1814.</p>

<p>By an act of 1807, a grant of land made to an Ye’dl&wkey; his intention to ^ct°h“eu. fS agreeably to the acts of Congress; but in this case, there being no proof of any com-proviso,the grants ^ deckred</p>

This was an action of detinue,' tried Mr. Justice Colcock, at Charleston, in May Term, 1814, for three' negroes, Jack, Dick, and George. The defence was, that they were the joint property of plaintiff and defendant: and, therefore, if the plaintiff had any claim against the defendant, his remedy was in the Court' of Equity, and not in this court; so that the question was, whether a co-partnership actually existed between the parties.

<p>Kumpsit he for one of two fheoTher, tides furnished and advances made to the partcomeím general account in</p> <p>partirnmtLigf-hat™ acknowledged to an uotwythJ’Jseí as there might be counter claims,</p>

This Was an action within the summary j urisdiction of the Court, for a medical account, in which there was a decree for the plaintiff for the amount of his demand. The case was tried before Mr. Justice Colcocfc, in May Term, 18)4.

These were two indictments against the defendant, for assaults and false imprisonment. One . « 7 r* .r* i i on the person 01 Head, a tree man oi colour, aud * the other on the person of Robinson, also a free man 0f colour, on both of which the defendant was convicted.

<p>In an action on agaShlendoí <*e ' notary kby from“ademXe book, kept by hi®self an<* the notary, respectS5&Sfenf no distinct recollection with™e\.ook‘Tt“as held to be suffi^tt0 £°tothe</p> <p>therííoteSgif able to the costa "ee„S*¡?^ ™ ^ncompS witness — decided t^c“urt0r%hf and6 sfai^íai T.R. considered. cieves, contra.</p> <p>opinion;</p>

<p> Devisavit vel non. </p> <p>This cause was tried before Mr. JusticeGrimkL ' Charleston, in January Term, 1814. It was , # . . an actlon on a feigned issue to try the sanity of the deceased, Sampson Simons, on the night of x . the 20th January, when he executed his last will. The case came before the Court in this shape, after the determination of the ordinary of Charleston district, who had decided in favour of the sanity of the deceased testator. It appeared, that the deceased, a few days before, on the 18th January, had made another will, by which he bequeathed to his brothers, the present defendants, 100 dollars each, and the residue of his property to certain orphans, who were said to be his relations. In this will he named the plaintiffs, Cohen and Moses, his executors. In the last will he named the defendants his executors, and left the bulk of his estate to them. The evidence, (consisting of upwards of 40 pages,) which had been taken before the ordinary, for and against the last will, was regularly certified by him to the Circuit Court, and was read in the cause, and will be occasionally referred to, and filed with this opinion. The Jury, under the charge of the Judge, found a verdict for the defendants, by which the last will was established, as having been executed by the deceased when in a sound and disposing- mind.</p> <p>An appeal is now made on the following grounds:</p> <p>1st. Because the presiding Judge misdirected the Jury, in stating that Dr. Glover proved, that the testator had a lucid interval on Sunday morning, (being an hour or two* as it was alleged, after the signing of the last will,) whereas Dr. Glover expressly said, that the testator “ on Sunday morning seemed much better, but that.he did not think he was perfectly sane.”</p> <p>2d. - Because the Judge misdirected the Jury .in stating, that no one proved that the testator bore a hatred to his brother, except Mr. Saxas ; whereas, the fact was proven by six other persons, namely, Lyon Levy, Baruch Levy, Jacob Snares, Alexander Solomon, Saul Solomons, and Isaiah Mo&es.-</p> <p>s 3d. Because, although the subscribing witnesses to the last will swore, that in their opinion the testator was in his senses when he executed it, yet they also swore to facts and circumstances which proved that their opinion was incorrect, and that the said testator was insane at the time of the execution.</p> <p>4th. Because, from the weight of evidence, particularly that of Dr. Ramsay and Dr. Glover, the attending physicians, it manifestly appeared, that the testator, on the ni|ht of the supposed execution, was insane, and therefore incapable 7 7 * of making a will.</p>

<p>esíííeatedTands! Itth ofiE™- and’‘togeuei’wfth fits; and an action for money w^nfeagaiui'tife person to whose an? prolts may «m?aui“es’Uite¿f the State, or the grange of the</p>

<p>• This case, which was tried before Mr. Justice Colcock, at Charleston, in May Term, 1814, was an action for money had and received, to recoñ jiipta'I- i ver from the defendant, who was commander of the revenue cutter Gallatin, 509 dollars, which plaintiff claimed as third mate of the cutter, for his share of prize-money, arising from the capture of the schooner Grustava, and which had been received by the defendant. The defendant admitted that the Gustava was captured by him on the 16th February, 1809; that she was condemned and sold, and that he had received the whole of the prize-rponey. , But he alleged that Marston was the 3d mate, and not the plaintiff, and that he had paid the money-over to him.</p> <p>The monthly returns of the revenue cutter which the defendant made to the custom-house, were produced in evidence, in which the plaintiff was called 3d mate. The boatswain also swore that he was on board when the capture was made, and was regarded by him as an officer.</p> <p>The defendant then called Cox, who swore that he was the 2d mate; Pennington, the 1st; and Marston, the 3d; that he went on hoard and received his command before the cutter sailed, on the morning of the 16th February, which was the day of the capture; and that there could not fee two 3d mates at the same time. He also proved that he had received his share of the * prize-money from the captain, and that Pennington and Marston had received their shares.</p> <p>this, evidence-, the Jury found a verdict for the plaintiff</p> <p>The defendant moves for a new trial, on the following grounds:</p> <p>1st. Because the plaintiff, not being a commissioned officer of the revenue cutter, had no right to any share of the prize-money, which by act of Congress is distributed only to commissioned officers.</p> <p>2d. Because the plaintiff, at the time of the capture of the Gustava, was not 3d mate or lieutenant of the cutter, that birth being proved to be filled by Marston at the time.</p> <p>3d. Because there were on board the said schooner Gallatin, (the revenue cutter,) as 1st, 2d, and 3d 'mates, Pennington, Cox, and Marston, at the time the prize was taken; and these being all the law allows, the plaintiff could not be an officer at that time.</p> <p>4th. Because the verdict is contrary to law and evidence.</p>

<p>"cíved^nnle ^ recover back the consideration moS&wkey;-TplSportional part theiniu?yr»¿ tie proper Judges as thr: 9rantum-</p>

This was an action of assumpsit, tried before * Mr. Justice Colcoch, in May Term, 1814. The plaintiff claimed of defendant $1025.50, for building a dwelling house, a small summer house, and a fence. Hamsay, the witness, who 7 d had worked on the house, proved that it was 22 feet by 28, two stories high. That it was worth $1000, and that the charge of $23 for the small house was very reasonable.